R.B. v. Enterline

Filing 15

MEMORANDUM (Order to follow as separate docket entry) re: 4 First MOTION to Dismiss Pursuant to F.R.C.P. 12b6 filed by Jennifer Enterline. Signed by Honorable Matthew W. Brann on 6/12/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
R.B., a minor, by her parent and natural
:
Guardian KYLE HICKEY, in her own right, :
:
Plaintiff,
:
:
v.
:
:
JENNIFER ENTERLINE,
:
:
Defendant.
:

No. 4:16-CV-01583

(Judge Brann)

MEMORANDUM OPINION
JUNE 12, 2017
Before the Court for disposition is Defendant Jennifer Enterline’s Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following
reasons, this Motion will be granted.
I.

BACKGROUND1
The factual scenario underlying this complaint, while not entirely

uncommon, is undeniably tragic.
In September 2014, Plaintiff R.B. (“R.B.”), a minor, was a member of a noncompetitive cheerleading squad sponsored by Danville Area High School.2 During

1

For purposes of this Motion to Dismiss, the allegations presented in Plaintiff’s Complaint
will be taken as true, and all inferences will be construed in the light most favorable to
Plaintiff.

2

Compl. (ECF No. 2-4) ¶ 8, at 2.

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that membership, R.B. was supervised and coached by Defendant Jennifer
Enterline (“Enterline”).3 Enterline had been appointed as a cheerleading coach by
the school board in March 2014.4 Prior to this appointment beginning in the fall of
2014, Enterline had never before served as a cheerleading coach.5
While under the tutelage of Enterline, R.B. suffered the three injuries to her
head which form the corpus of this suit.6 On September 10, 2014, R.B. was injured
twice during cheerleading practice. The first injury occurred when R.B. threw
another cheerleader into the air and the other cheerleader’s feet struck her in her
sternum. The impact caused R.B. to fall to the ground and hit the back of her head
on the mat.7 She suffered immediate symptoms of dizziness, fogginess, headache
pain, and being tired.8 Enterline failed to notify R.B.’s parents or have her
assessed by a trainer, and affirmatively returned R.B. to practice.9
R.B. then suffered a second head injury on September 10, 2014.
Specifically, when another cheerleader sat on top of R.B.’s head during stunting

3

Id. ¶¶ 5–6, at 2.

4

Id. ¶ 5, at 2.

5

Id. ¶ 9, at 2.

6

Id. ¶ 12, at 3.

7

Id. ¶¶ 15-16, at 3.

8

Id. ¶ 16, at 2–3.

9

Compl. (ECF No. 2-4) ¶ 17, at 4.

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practice, both she and R.B. fell to the ground.10 R.B. symptoms of dizziness,
fogginess, headache pain, and being tired stemming from her previous injury
increased.11 R.B. alleges, however, that Enterline again failed to notify R.B.’s
parents or have her assessed by a trainer.12
The following day, on September 11, 2014, R.B. suffered her third and final
injury under the supervision of Enterline when another cheerleader kicked her on
the left side of the jaw.13 The impact of this kick caused R.B.’s head to move in a
whiplash-like manner and forced her to lose consciousness.14 During both this and
her injuries of the prior day, R.B. alleges that she suffered “concussion-like
symptoms” in open view of Enterline.15 The next day, September 12, 2014, R.B.
had difficulty comprehending information and felt “as if she was going to fall
over.”16 Her mother took her to the hospital for evaluation, and she was diagnosed
with numerous serious and permanent bodily injuries stemming from her repeated
injuries on September 10 –11, 2014.17

10

Id. ¶ 19, at 4.

11

Id.

12

Id. ¶ 20, at 4.

13

Id. ¶ 21–22, at 4.

14

Compl. (ECF No. 2-4) ¶ 22, at 4.

15

Id. ¶ 24, at 4.

16

Id. ¶ 25, at 5.

17

Id. ¶ 27, at 5.

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This case was brought before the Court by Notice of Removal on July 29,
2016.18 The operative complaint contains three claims: (1) negligence, (2) a claim
for violation of R.B.’s Fourteenth Amendment substantive due process rights to
life, liberty, and bodily integrity under 42 U.S.C. § 1983 (“Section 1983”), and (3)
a Section 1983 state created danger claim pursuant to the Fourteenth
Amendment.19 Defendant Jennifer Enterline thereafter filed a Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6) which asserts that R.B.’s
claims should be dismissed based on (1) failure to state a claim upon which relief
can be granted, (2) qualified immunity, and (3) state governmental immunity.20
This matter has since been fully briefed and is ripe for disposition.21
II.

LAW
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a

motion to dismiss for “failure to state a claim upon which relief can be granted.”
Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation
by dispensing with needless discovery and factfinding.”22 “Rule 12(b)(6)

18

ECF Nos. 1 & 2.

19

ECF No. 2-4.

20

ECF No. 4.

21

ECF Nos. 5, 8, 9, 13, & 14.

22

In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.)
(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook,
J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

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authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”23
This is true of any claim, “without regard to whether it is based on an outlandish
legal theory or on a close but ultimately unavailing one.”24
Beginning in 2007, the Supreme Court of the United States initiated what
some scholars have termed the Roberts Court’s “civil procedure revival” by
significantly tightening the standard that district courts must apply to 12(b)(6)
motions.25 In two landmark decisions, Bell Atlantic Corporation v. Twombly and
Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by
“signal[ing] to lower-court judges that the stricter approach some had been taking
was appropriate under the Federal Rules.”26 More specifically, the Court in these
two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v.
Gibson and replaced it with a more exacting “plausibility” standard.27
Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”28 “A claim has facial plausibility when the

23

Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

24

Neitzke, 490 U.S. at 327.

25

Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig.
313 (2012).

26

550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

27

Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that
Twombly retired the Conley no-set-of-facts test”).

28

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

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plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”29 “Although the
plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted
unlawfully.”30 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing].”31
The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”32 No
matter the context, however, “[w]here a complaint pleads facts that are ‘merely
consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’”33
When disposing of a motion to dismiss, a court must “accept as true all
factual allegations in the complaint and draw all inferences from the facts alleged
in the light most favorable to [the plaintiff].”34 However, “the tenet that a court
must accept as true all of the allegations contained in the complaint is inapplicable
29

Iqbal, 556 U.S. at 678.

30

Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (Jordan, J.) (internal
quotations and citations omitted).

31

Twombly, 550 U.S. at 556.

32

Iqbal, 556 U.S. at 679.

33

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

34

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

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to legal conclusions.”35 “After Iqbal, it is clear that conclusory or ‘bare-bones’
allegations will no longer survive a motion to dismiss.”36 “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.”37
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:
Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.38
III.

ANALYSIS
As previously noted, Plaintiff R.B.’s complaint comprises of three claims:

(1) a state law claim of negligence, (2) a Fourteenth Amendment substantive Due
Process claim for injury to bodily integrity under Section 1983, and (3) a
Fourteenth Amendment Due Process claim under the state created danger theory
pursuant to Section 1983. My analysis of the plausibility of the claims, pursuant to

35

Iqbal, 556 U.S. at 678 (internal citations omitted).

36

Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

37

Iqbal, 556 U.S. at 678.

38

Connelly, 809 F.3d at 787 (internal quotations and citations omitted).

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Twombly/Iqbal, will therefore begin with an analysis of R.B.’s negligence claim
and proceed to analyze her Fourteenth Amendment claims in tandem.
A.

Negligence

Based on the above allegations, R.B. first alleges a claim of negligence
against Enterline. Enterline, in turn, responds that she is immune under
Pennsylvania’s Political Subdivision Tort Claims Act.39 This Act specifies that
local agencies and their employees are liable only for negligent acts that fall into
one of the following categories: (i) vehicle liability; (ii) care, custody, or control of
personal property; (iii) care, custody, or control of real property; (iv) dangerous
conditions of trees, traffic controls, or street lights; (v) dangerous conditions of
utility services facilities; (vi) dangerous conditions of streets; (vii) dangerous
conditions of sidewalks; and (viii) care, custody, or control of animals.40 Courts
extending this immunity have applied it to negligence claims against coaches for
injuries resulting to student athletes.41
R.B. fails to allege facts bringing Enterline’s conduct within one of the
enumerated exceptions to the immunity statute. Rather, R.B. attempts to
circumvent this statute entirely by arguing that the Safety in Youth Sports Act
39

42 Pa.C.S.A. § 8541 et seq.

40

Id. § 8542.

41

See, e.g., M.U. v. Downington High School East, 103 F.Supp.3d 612, 626 (E.D.Pa. Apr. 27,
2015); Cortese v. W. Jefferson Hills School District, No. 53-C.D.-2008, 2008 WL 9404638,
at *2 (Pa. Commw. Ct. Dec. 9, 2008).

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(“SYSA”)42 in some way abrogates the afforded immunity.43 This argument
concerning the interplay between SYSA and the Tort Claims Act was addressed by
the Honorable Gerald J. Pappert of the United States District Court for the Eastern
District of Pennsylvania in M.U. v. Downingtown High School East.44 In that case,
Judge Pappert wrote:
M.U.’s citation to SYSA on the point of Tort Claims Act immunity is
similarly misplaced. M.U. correctly points out that SYSA sets forth
removal from play and return to play protocols for managing
concussions and specifies that “any coach acting in accordance with
[those protocols] shall be immune from civil liability.” (citation
omitted). Nevertheless, M.U.’s conclusion that because Reed
did not follow the established procedures he is not immune from civil
42

24 P.S. § 5323.

43

The SYSA specifically provides the following:
(c) REMOVAL FROM PLAY. A student who, as determined by a game official, coach from
the student’s team, certified athletic trainer, licensed physician, licensed physical
therapist or other official designated by the student’s school entity, exhibits signs or
symptoms of a concussion or traumatic brain injury while participating in an athletic
activity shall be removed by the coach from participation at that time.
(d) RETURN TO PLAY. The coach shall not return a student to participation until the
student is evaluated and cleared for return to participation in writing by an appropriate
medical professional. The governing body of a school entity may designate a specific
person or persons, who must be appropriate medical professionals, to provide written
clearance for return to participation. In order to help determine whether a student is ready
to return to participation, an appropriate medical professional may consult any other
licensed or certified medical professionals.
***
(i) Civil Liability. – (1) Except as provided under paragraph (2), nothing in this act shall be
construed to create, establish, expand, reduce, contract or eliminate any civil liability on
the part of any school entity or school employee. (2) Any coach acting in accordance with
subsections (c)[relating to removing a student from play] and (d)[relating to returning a
student to play] shall be immune from any civil liability.
24 P.S. §5323 (c), (d), (i).

44

M.U., 103 F.Supp.3d at 630–31.

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liability is a classic case of the logical fallacy of denying the
antecedent. Reed’s lack of immunity under SYSA has no bearing on
his immunity under the Tort Claims Act. This is especially evident
because SYSA specifies that, other than extending immunity to
coaches who follow the protocols, “nothing in this act shall be
construed to create, establish, expand, reduce, contract or eliminate
any civil liability on the part of any school entity or school
employee.” (citation omitted). SYSA, therefore, may extend immunity
to those who are not otherwise immune, but it cannot abrogate
immunity for those covered by the Tort Claims Act.45
I am in agreement with the sound reasoning of Judge Pappert that a proper reading
of the SYSA does not abrogate immunity under the Tort Claims Act. R.B.’s
negligence claim against Enterline will therefore be dismissed with prejudice.
In the alternative, R.B. argues that her negligence claim against Enterline
should not be dismissed to the extent Enterline is sued in her individual, rather than
official capacity. Enterline can only be held individually liable if willful
misconduct on her part caused R.B.’s injuries.46 The Pennsylvania Supreme Court
has, however, recognized that willful misconduct is “a demanding level of
fault.”47 In fact, that court has defined the term as “conduct whereby the actor
desired to bring about the result that followed or at least was aware that it was
substantially certain to follow, so that such desire can be implied.”48 In other

45

Id.

46

M.U., 103 F.Supp.3d at 630 (citing Pelzer v. City of Phila., 656 F.Supp.2d 517, 540 (E.D.Pa.
2009); Wade v. City of Pittsburgh, 765 F.2d 405, 412 (3d Cir. 1985)).

47

Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006).

48

Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 293 (1994)(citations omitted).

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words, “the term ‘willful misconduct’ is synonymous with the term ‘intentional
tort.’ ”49 Here, as in M.U., there are no facts indicating that Enterline desired to
bring about the injury suffered, and the facts of R.B.’s claim sound entirely in
negligence. However, unlike in M.U. where plaintiff’s counsel essentially
admitted amendment would be futile, there remains a possibility, albeit slight, that
R.B. may be able to allege a plausible claim of willful misconduct against
Enterline in her individual capacity. As such, while R.B.’s claim for negligence
against Enterline will be dismissed in its entirety, she will be given leave to amend
her claim to the extent she can allege willful misconduct in accord with the above
law.
B.

Fourteenth Amendment Due Process Claims

Counts II and III of R.B.’s complaint are brought pursuant to 42 U.S.C. §
1983 (“Section 1983”). Section 1983 provides a cause of action to redress
violations of federal law committed by state officials.50 Section 1983 is not a
source of substantive rights; rather, it merely provides a remedy for violations of
constitutional rights.51 To establish a claim under 42 U.S.C. § 1983, a plaintiff
must demonstrate that: (1) the conduct complained of was committed by a person

49

Id. (internal citation omitted). See also Bright v. Westmoreland Cnty., 443 F.3d 276, 287 (3d
Cir. 2006); Brown v. Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir. 2001).

50

See 42 U.S.C. § 1983.

51

See City of Oklahoma City v. Tuttle, 471 U.S. 808, 815 (1985).

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acting under color of state law; and (2) the conduct deprived the complainant of
rights secured under the Constitution or federal law.52 Here, R.B. alleges both a
violation of her right to bodily integrity and a violation based on the state created
danger doctrine in contravention of her rights under the Fourteenth Amendment.
The Fourteenth Amendment provides that no “State [shall] deprive any
person of life, liberty, or property, without due process of law.”53 In Count II of
her complaint, R.B. first alleges a violation of her Fourteenth Amendment right to
bodily integrity. While this right has indeed been recognized as a constitutional
liberty interest protected by the Fourteenth Amendment Due Process clause, the
Supreme Court of the United States held, in DeShaney v. Winnebago County
Department of Social Services, that the state has no affirmative obligation to
protect its citizens against private violence absent an indication that it “played a
role in creating or enhancing the danger.”54 This language led to the adoption of
the state created danger theory of liability, which R.B. alleges within Count II of
her complaint. Her claim for a violation of her Fourteenth Amendment right to
bodily integrity, therefore, necessarily relies upon the sufficiency of her state

52

See Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 590 (3d Cir.
1998).

53

U.S. Const. amend. XIV, § 1.

54

L.R. v. School Dist. of Philadelphia, 836 F.3d 235, 242 (3d Cir. 2016)(citing DeShaney v.
Winnebago Cnty Dept. of Soc. Servs., 489 U.S. 189, 195–96 (1989)).

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created danger claim. My analysis will therefore be limited to the plausibility of
R.B.’s claim under that theory.55
The state created danger theory recognizes that a constitutional violation can
occur “when state authority is affirmatively employed in a manner that injures a
citizen or renders him ‘more vulnerable to injury from another source than he or
she would have been in the absence of state intervention.’ ”56 To proceed with a
claim under this theory, R.B. must plausibly allege four elements: (1) the harm to
her was foreseeable and fairly direct; (2) a state actor (i.e., Enterline) acted with a
degree of culpability that shocks the conscience; (3) a relationship existed such that
she was a foreseeable victim of the state’s acts, or a member of a discrete class of
persons subjected to the potential harm brought about by the state’s actions, as
opposed to a member of the public in general; and (4) a state actor affirmatively
used his or her authority in a way that created a danger to R.B. or that rendered her
more vulnerable to danger than had the state not acted at all.57
1.

R.B. Has Failed to Plausibly Allege Harm Which Was
Foreseeable and Fairly Direct.

55

Dorley v. South Fayette Tp. Sch. Dist., 129 F. Supp. 3d 220, 231 (W.D.Pa. 2015)(Hornak,
J.)(analyzing claims alleging harms to bodily integrity via the state created danger
theory)(citing Philips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008)).

56

Bright v. Westmoreland Cnty, 443 F.3d 276, 281 (3d Cir. 2006)(quoting Schieber v. City of
Philadelphia, 320 F.3d 409 (3d Cir. 2003)).

57

See Bright, 443 F.3d at 281.

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To plausibly allege a state created danger claim, R.B. must first show that
the harm ultimately caused was foreseeable and fairly direct.58 This element
requires the plaintiff to allege “an awareness on the part of the state actors that
rises to [the] level of actual knowledge or an awareness of risk that is sufficiently
concrete to put the actors on notice of the harm.”59 The Court must also inquire as
to whether the harm “is a ‘fairly direct’ result of the defendant’s acts.”60 “This
inquiry essentially asks whether the alleged misconduct and the harm caused were
‘too attenuated’ to justifiably hold the defendant liable.”61
In the instant matter, R.B.’s complaint fails to allege that her harm resulting
from repeated concussions was “foreseeable and fairly direct.” In Dorley v. South
Fayette Township School District, the Honorable Mark Hornak of the United
States District Court for the Western District of Pennsylvania held that harm
resulting from a football blocking drill was not “foreseeable and fairly direct”
where the Complaint contained no facts indicating that the drill resulted in harm
prior to plaintiff’s injury, and there was no “other indicia of foreseeable likelihood
of [p]laintiff’s injury.”62 Judge Hornak wrote specifically that “if the coaches were

58

L.R., 836 F.3d at 245.

59

Phillips, 515 F.3d at 238.

60

Id.

61

D.N. ex rel. Nelson v. Snyder, 608 F.Supp.2d 615, 625 (M.D.Pa. 2009) (quoting Phillips, 515
F.3d at 239).

62

Dorley, 129 F.Supp.3d at 233.

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not on some plausible notice of the concrete risk of a sufficiently serious injury,
their actions would not satisfy the first prong of the test.”63
Here, R.B.’s allegations similarly fail to meet this test. Specifically, while
the complaint establishes that her injuries were a “fairly direct” result of the
stunting activities, it nevertheless fails to establish foreseeability. First, as noted
throughout this Memorandum Opinion, there are no factual allegations which
establish that R.B. affirmatively informed Enterline of her injuries on September
10 and September 11, 2014, or that Enterline knew of any restrictions on R.B.’s
participation. Enterline was not therefore on plausible notice of the concrete risk
that a sufficiently serious injury would result to R.B. from repeated head injuries.
Second, to the extent R.B. premises foreseeability of injury on the stunting
activities themselves and not simply on her continued participation following
injury, as in Dorley, R.B.’s complaint fails to demonstrate that first year coach
Enterline had an awareness of prior incidents or injuries during such activities.
R.B. has therefore failed to allege that her injury was foreseeable to Enterline.
2.

R.B. Has Failed to Plausibly Allege That Enterline Acted
With A Degree of Culpability That “Shocks the
Conscience.”

In Sanford v. Stiles, the United States Court of Appeals for the Third Circuit
considered the standard of culpability required under this second element of the
63

Id. (citing Henry v. City of Erie, 728 F.3d 275, 282 (3d Cir. 2013)).

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state created danger theory.64 Specifically, the Sanford Court found that the level
of culpability required to shock the conscience “increases as the time state actors
have to deliberate decreases.”65 In “hyperpressurized situations,” a plaintiff must
prove “intent to harm.”66 As time to deliberate increases and allows for “unhurried
judgments,” the standard of culpability which must be proved decreases to
“deliberate indifference.”67 “Deliberate indifference” has, in turn, been defined as
“a conscious disregard of a substantial risk of serious harm.”68 It may, however,
still exist without “ ‘actual knowledge by a risk of harm when the risk is so
obvious that it should be known.’ ”69
Taken as true and viewed in the light most favorable to R.B., the allegations
of the complaint establish that the “deliberate indifference” standard applies as the
events encompassed do not present a “hyperpressurized situation.” R.B.
specifically alleges that the events causing her injuries occurred from September
10, 2014 through September 11, 2014—a period undoubtedly long enough for
unhurried judgment. However, even under the lessened “deliberate indifference”
standard of culpability, R.B.’s allegations at most sound in negligence, and are thus
64

See generally Sanford, 456 F.3d at 305–309.

65

Id. at 309.

66

Id.

67

Id.

68

L.R., 836 F.3d at 246 (quoting Ziccardi v. City of Philadelphia, 288 F.3d 57, 66 (3d Cir.
2002)).

69

Id. (quoting Sanford, 456 F.3d at 309).

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insufficient to “shock the conscience.”70 I again note the absence of facts
demonstrating actual knowledge by Enterline of a risk of harm from R.B.’s
continued stunting injuries on September 10 and 11, 2014. Rather, the only
allegations intimating actual knowledge are conclusory in nature and thus are not
entitled to an “assumption of truth.”71 Those allegations include:
12. In open view of the defendant, Plaintiff sustained substantial trauma to
her head and brain on three successive occasions on September 10-11, 2014
while in the custody and care of Defendant.
13. After each of Plaintiff’s three accidents, Defendant Enterline knew or
should have been aware of plaintiffs injury and symptoms, yet failed to act
reasonably and responsibly, for the reasons outlined specifically herein.72
In the absence of facts demonstrating actual knowledge of a risk of harm,
R.B. can still establish that Enterline’s conduct “shocks the conscience” if “the risk
is so obvious that it should be known.”73 The factual allegations of R.B.’s
Complaint, taken as true, fail to demonstrate such a risk. In Lavella v.
Stockhausen, the Honorable Arthur Schwab of the United States District Court for
the Western District of Pennsylvania dismissed a state created danger claim
concerning cheerleading injuries brought pursuant to Section 1983.74 In that case,

70

Shieber v. City of Philadelphia, 320 F.3d 409, 419 (3d Cir. 2003)(“[N]egligence is not
enough to shock the conscience under any circumstances”).

71

Connelly, 809 F.3d at 787.

72

Compl. (ECF No. 2-4) ¶¶ 12–13, at 3.

73

L.R., 836 F.3d at 246 (quoting Sanford, 456 F.3d at 309).

74

Civil Action No. 13-CV-0127, 2013 WL 1838387 (W.D.Pa. May 1, 2013).

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the plaintiff cheerleader had, on two separate occasions, been injured during
“stunting,” and received medical care and direction not to participate in practice.75
At a “stunting” practice a week following her second injury, plaintiff was hit a
third time in the head and suffered a concussion.76
In granting defendant cheerleading coach’s motion to dismiss, Judge
Schwab found that the allegations of plaintiff’s complaint do not demonstrate that
the defendant cheerleading coach’s affirmative actions “shocked the conscience.”77
Specifically, the Lavella court found that, following the release of plaintiff to
return to active stunting following her first injury, the only affirmative acts78 of the
defendant alleged by plaintiff were:
having cheerleaders skip ImPACT testing, asking/having Plaintiff participate
in stunting, and directing Plaintiff to serve as a back-base during a
September 15, 2010, practice (Plaintiff continued practice but was later
diagnosed with a concussion).79
The Lavella court characterized these acts as demonstrating that “[a]t most, there is
an allegation that Defendant knew of “[P]laintiff's continuing headaches,” the
seriousness of concussions and additional risks from repeat concussions, and she
75

Id. at *1.

76

Id.

77

Id. at *3.

78

I note that, in Section III.B.3 of this Memorandum Opinion below, I find that R.B. has failed
to allege affirmative acts by Enterline. For purposes of the instant analysis of this element,
however, I will assume that her allegations can be considered affirmative acts as a matter of
law.

79

Lavella, 2013 WL 1838387, at *3.

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“asked [P]laintiff to participate in stunting” in violation of verbal restriction given
by plaintiff’s mother.80 Judge Schwab concluded that “[d]efendant's actions, even
when viewed in the light most favorable to Plaintiff, do not support a claim for
state created danger in violation of 42 U.S.C. § 1983.”81
R.B.’s allegations in the instant case similarly fail to allege Enterline’s
deliberate indifference, or “conscious disregard of a substantial risk of serious
harm.” Specifically, examination of the operative complaint in the light most
favorable to R.B. reveals significantly less flagrant conduct than that presented in
Lavella. First, as noted above, R.B. fails to demonstrate (beyond conclusory
allegations) that Enterline had actual knowledge of any injury and symptoms,
denied her medical care, or thereafter affirmatively forced her into “stunting”
practice. Second, while the dangers of repeated head injuries in the context of
athletics is increasingly becoming common knowledge, Enterline had no
knowledge of those dangers because she did not attend prior requisite training.
Third and finally, R.B.’s attempt to distinguish Lavella on the basis of the
subsequently passed SYSA requirement of concussion and head training is
unpersuasive, as Section 1983 does not provide a remedy for violations of state

80

Id.

81

Id.

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laws.82 Taken as a whole, therefore, the allegations contained within R.B.’s
Complaint fall short of the behavior exhibited in high school concussion cases that
survived the motion to dismiss stage.83
3.

R.B. Has Failed to Plausibly Allege An Affirmative Use of
Authority Creating or Increasing Danger.

This fourth and final element of the state created danger theory—an
affirmative use of authority— is typically the most challenging
analytically. Because the analysis between “passive inaction” and “affirmative
action” is sometimes reminiscent of getting lost in a house of mirrors, the Third
Circuit recently provided the following guidance:
Rather than approach this inquiry as a choice between an act and an
omission, we find it useful to first evaluate the setting or the “status
quo” of the environment before the alleged act or omission occurred,
and then to ask whether the state actor’s exercise of authority resulted
in a departure from that status quo. This approach, which is not a new
rule or concept but rather a way to think about how to determine
whether this element has been satisfied, helps to clarify whether the
state actor’s conduct “created a danger” or “rendered the citizen more
vulnerable to danger than had the state not acted at all.”84
82

D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1375–76 (3d Cir.
1992) (en banc ); see also M.U., 103 F.Supp.3d at 625 (collecting cases).

83

See, e.g., Alt v. Shirey, Civil Action No. 11–CV–0468, 2012 WL 726579, at *12 (W.D.Pa.
Feb. 7, 2012), report and recommendation adopted, 2012 WL 726593 (W.D.Pa. Mar. 1,
2012) (defendants were aware that plaintiff had sustained several head injuries and not only
put him back into the game, but also ordered him to deliver a substantial hit to an opposing
player); Mann v. Palmerton Area Sch. Dist., 33 F.Supp.3d 530, 539 (M.D.Pa.
2014) (defendants forced plaintiff to continue football practice after he was hit in the head,
despite plaintiff exhibiting erratic behavior and telling the coaching staff that he felt numb
and disoriented).

84

L.R., 836 F.3d at 243.

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Here, R.B. fails to allege affirmative conduct by Enterline. Rather, R.B.’s
allegations include that Enterline (1) failed to notify her parents of her head injury,
(2) failed to have her assessed by a trainer or other medical personnel, and (3)
affirmatively returned plaintiff to practice the following day do not represent the
alteration of the status quo of cheerleading practice.85 The first two alleged acts
are, in the absence of factual allegations demonstrating Enterline’s knowledge,
simply inaction. R.B.’s third alleged affirmative use of authority by Enterline—
affirmatively returning her to practice following her first injury on September 10th
and on the following day September 11th—similarly misses the mark.
Specifically, while this allegation’s language suggests affirmative conduct, there is
a paucity of any averment establishing Enterline’s knowledge of the injury, R.B.’s
temporary lack of participation thereafter due to injury, and any indication that
Enterline “returned” R.B. to practice against her will and protest. Furthermore,
while the Complaint alleges that Enterline “returned” R.B. to practice on
September 11, 2014 following her injuries the previous day, there are no factual
allegations indicating that Enterline in some way overrode the decision of R.B. and
her parents to participate in practice and effectively forced her participation.
In Yatsko v. Berezwick, the Honorable James M. Munley of this Court
dismissed the complaint of a student athlete where the sole allegations of conduct
85

Compl. (ECF No. 2-4) ¶¶ 17, 23, at 4.

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by the defendant included failures to act, rather than affirmative acts.86
Concerning this distinction, Judge Munley wrote:
Here, however, the failures of the teachers were ones of omission; they did
not prohibit plaintiff from playing in a basketball game after she injured
herself. Such action, while inadvisable, does not constitute the sort of
egregious behavior that rises to the level of a substantive due process
violation.87
Judge Munley ultimately concluded that while “[t]he facts alleged by the plaintiff
resulted in a tragic outcome; we cannot, however, find a constitutional violation in
conduct by a state actor that, as alleged, rises only to the level of
negligence.”88 Here, like in Yatsko, the complaint is devoid of facts demonstrating
affirmative conduct by Enterline.89 Therefore, because the affirmative conduct
requirement directs courts “to distinguish cases where . . . officials might have
done more . . . [from] cases where . . . officials created or increased the risk
itself,”90 R.B.’s failure to satisfy this element of the state created danger theory is
dispositive.
4.

Defendant Enterline’s Defense of Qualified Immunity

86

Yatsko v. Berezwick, Civil Action No. 06-CV-2480, 2008 WL 244503, at *7 (M.D.Pa. June
13, 2008)(Munley, J.).

87

Id. at *6.

88

Id.

89

See also M.U., 103 F.Supp.3d at 625 (concluding that soccer coach’s actions were of
“omission in that he failed to take her out of the game, failed to evaluate her for a concussion,
and failed to send her for a medical evaluation”).

90

Morrow v. Balaski, 719 F.3d 160, 179 (3d Cir. 2013).

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Enterline claims that, even if R.B. were successful in alleging her Fourteenth
Amendment claims, she would nevertheless be entitled to their dismissal on the
basis of qualified immunity. The purpose of qualified immunity is to protect
government officials “from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.”91 In Mullenix v. Luna, the Supreme Court
of the United States emphasized the wide breath of qualified immunity’s
protection.92 The Mullenix Court specifically stated that “qualified immunity
protects ‘all but the plainly incompetent or those who knowingly violate the
law.’”93 Furthermore, qualified immunity is intended to be an immunity from suit,
rather than simply a defense to liability.94 This means that its protection is
effectively lost if a defendant is required to go to trial.95
Courts employ a two-part test to determine whether a defendant is entitled to
the protections of qualified immunity. First, the court must consider whether the
facts that the plaintiff has demonstrated make out a violation of a constitutional
right.96 If the plaintiff has satisfied that inquiry, the court must next decide
91

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

92

Mullenix v. Luna, 136 S.Ct. 305, 306 (2015).

93

Id.

94

See Saucier v. Katz, 533 U.S. 194, 200–01 (2001).

95

Id.

96

See id., 533 U.S. at 201.

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whether the constitutional right at issue was “clearly established” at the time of the
defendant’s alleged misconduct.97 The Supreme Court has stressed that there is no
mandatory order in which to consider the two prongs of this qualified immunity
analysis.98
In determining whether a constitutional right was clearly established, a broad
and generalized declaration that a clearly established federal right was violated is
insufficient.99 Rather, in order for a constitutional right to be ‘clearly established,’
“[t]he contours of the right must be sufficiently clear that a reasonable official
would understand what he is doing violates that right.”100 Put another way, for the
purposes of the qualified immunity analysis, a right is considered clearly
established if “it would be clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.”101

97

See id.

98

See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (“On reconsidering the procedure
required in Saucier, we conclude that, while the sequence set forth there is often appropriate,
it should no longer be regarded as mandatory. The judges of the district courts and the courts
of appeals should be permitted to exercise their sound discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.”).

99

See Anderson v. Creighton, 483 U.S. 632, 640 (1987) (holding that the mere assertion that
the Fourth Amendment prohibits warrantless searches without probable cause and exigent
circumstances was not enough to demonstrate that the right was clearly established).

100

Id. at 640–41.

101

Saucier, 533 U.S. at 202.

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In L.R. v. School Dist. of Philadelphia, the Third Circuit discussed the
necessary interplay between the determination of qualified immunity and
sufficiency of facts within a complaint.102 Specifically, the L.R. Court stated:
[W]hether a particular complaint sufficiently alleges a clearly established
violation of law cannot be decided in isolation from the facts pleaded.”
(citation omitted). Thus the sufficiency of L.R.'s pleading is both
“inextricably intertwined with” and “directly implicated by” Littlejohn's
qualified immunity defense. (citation omitted)103
As explained above, R.B. has in the instant matter failed to allege a plausible
federal claim under Section 1983. Therefore, in recognition of the Third Circuit’s
directive that the determination of qualified immunity necessarily requires
definition of the precise contours of the right alleged to have been violated,104 I will
defer deciding this issue until a sufficiently pled constitutional claim is established
in an amended pleading.105 This procedure will allow the Court to examine the
issue “in light of the specific context of the case, not as a broad general
proposition.”106
102

L.R., 836 F.3d at 241.

103

Id.

104

In Zaloga v. Borough of Moosic, the Third Circuit made explicit that “it is not sufficient to
conclude” that a generalized right against government interference with a protected right
exists. Rather, the district court “must attend to context” and “consider . . . the circumstances
confronting [the state actor]” at that particular moment in time. 841 F.3d 170, 175 (3d Cir.
2016).

105

See Dorley, 129 F.Supp.3d at 229 ("The Court concludes that application of that doctrine will
be far better measured against more precisely articulated claims after any potential
amendment of the Complaint.").

106

Mullenix, 136 S.Ct. at 308.

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C.

Leave to Amend

Federal Rule of Civil Procedure 15 sets forth the mechanisms for amending
a pleading prior to trial. Section 15(a)(1) applies to amendments as a matter of
course. Amendment as a matter of course is inapplicable here, because Plaintiff
elected not to make such an amendment within the two time periods provided for
in that section. Section 15(a)(2), entitled “Other Amendments,” explains that “[i]n
all other cases, a party may amend its pleading only with the opposing party’s
written consent or the court’s leave. The court should freely give leave when
justice so requires.”
The Third Circuit has “previously discussed when a court may deny leave to
amend under Rule 15(a)(2).”107 In Shane v. Faver, for example, then Circuit Judge
Samuel A. Alito, Jr. stated that “[a]mong the grounds that could justify a denial of
leave to amend are undue delay, bad faith, dilatory motive, prejudice, and
futility.”108 “‘Futility’ means that the complaint, as amended, would fail to state a
claim upon which relief could be granted.”109 “In assessing futility, the District
Court applies the same standard of legal sufficiency as applies under Rule
12(b)(6).”110
107

Holst v. Oxman, 290 F. App’x 508, 510 (3d Cir. 2008).

108

213 F.3d 113, 115 (3d Cir. 2000) (quoting In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1434 (3d Cir.1997) (Alito, J.).

109

Shane, 213 F.3d at 115.

110

Id.

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“Moreover, substantial or undue prejudice to the non-moving party is a
sufficient ground for denial of leave to amend.”111 “The issue of prejudice requires
that we focus on the hardship to the defendants if the amendment were
permitted.”112 “Specifically, we have considered whether allowing an amendment
would result in additional discovery, cost, and preparation to defend against new
facts or new theories.”113
“The decision to grant or deny leave to amend a complaint is committed to
the sound discretion of the district court.”114 “Factors the trial court may
appropriately consider in denying a motion to amend include undue delay, undue
prejudice to the opposing party, and futility of amendment.”115 For instance, “if
the proposed change clearly is frivolous or advances a claim or defense that is
legally insufficient on its face, the court may deny leave to amend.”116
In the instant case, I note the perilous path R.B. must walk to allege a
plausible Fourteenth Amendment claim under the state created danger theory,

111

Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001).

112

Id.

113

Id.

114

Coventry v. U.S. Steel Corp., 856 F.2d 514, 518 (3d Cir. 1988).

115

Averbach v. Rival Mfg. Co., 879 F.2d 1196, 1203 (3d Cir. 1989) (quoting Foman, 371 U.S. at
182).

116

Ross v. Jolly, 151 F.R.D. 562, 565 (E.D. Pa. 1993) (citing 6 Wright, Miller, & Kane, Federal
Practice & Procedure: Civil 2d § 1487). See also Vosgerichian v. Commodore Int’l Ltd.,
Civil Action No. 92-CV-4867, 1998 WL 966026, at * 3 (E.D. Pa. Nov 6, 1998), aff’d sub
nom Vosgerichian v. Commodore Int’l, 191 F.3d 446 (3d Cir. 1999).

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bring any such constitutional violation outside the ambit of qualified immunity,
and allege willful conduct necessary to sustain a negligence claim against
Enterline.117 Nevertheless, other courts within this Circuit have granted leave
when faced with similar factual circumstances.118 In adopting that pattern,
however, I caution R.B. that if she cannot allege sufficient facts to state a plausible
claim for relief under prevailing law, she should refrain from filing an amended
complaint in this action.119
IV.

CONCLUSION
Based on the above reasoning, Defendant Jennifer Enterline’s Motion to

Dismiss is granted, and Plaintiff R.B.’s complaint is dismissed in its entirety.
Plaintiff R.B. is, however, granted leave to amend her complaint within twenty

117

See, e.g, Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 639 (3d Cir. 2015)(“[C]ourts that
have found colorable constitutional violations in school-athletic settings did so where state
actors engaged in patently egregious and intentional misconduct”); Hinterberger v. Iroquois
Sch. Dist., 548 F.App’x. 50, 54 (3d Cir. 2013)(holding that cheerleading coach was entitled
to qualified immunity on substantive due proves claim brought under the state created danger
theory); Vicky M. v. Ne. Educ. Intermediate Unit, 689 F.Supp.2d 721, 741 (M.D.Pa.
2009)(“[E]vidence which demonstrates deliberate indifference fails to establish the type of
willful misconduct necessary to pierce [Tort Claims Act] immunity”).

118

See, e.g., M.U., 103 F.Supp.3d at 634; Dorley, 129 F.Supp.3d at 249; Lavella, 2013 WL
1838387, at *4; Yatsko, 2008 WL 2444503, at *6.

119

See Keister v. PPL Corp., 318 F.R.D. 247, 262 (M.D. Pa. 2015) (Brann, J.) (imposing
reasonable attorney's fees under Federal Rule of Civil Procedure 11, where “the allegations
in Plaintiff's Second Amended Complaint were unsupported at the time that [counsel for
Plaintiff] wrote them, and were unlikely to ever gain factual support during the course of
discovery, because they simply were inaccurate”), aff'd, ––– Fed. Appx. ––––, 2017 WL
383366 (3d Cir. 2017) (Fisher, J.).

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one (21) days of this Memorandum Opinion pursuant to Federal Rule of Civil
Procedure 15, and in accordance with the above outlined deficiencies.
If no amended complaint is filed by that date, the action will be summarily
dismissed pursuant to Fed. R. Civ. P. 41(b).
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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