DIPIPPA et al v. UNION SCHOOL DISTRICT et al
Filing
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MEMORANDUM OPINION and ORDER denying 9 Defendants' Motion to Dismiss. Defendants are further ORDERED to file an answer to Plaintiffs' complaint on or before May 18, 2011. Signed by Judge Terrence F. McVerry on 5/4/2011. (cdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL A. DIPIPPA and MARY JANE
DIPIPPA individually and as the parents and
natural guardians of J.D., a minor
Plaintiffs,
v
UNION SCHOOL DISTRICT, LARRY
BORNAK Superintendent of the Union School
District, STEPHEN SHUTTERS
Principal of the Union High School and SCOTT
KINDEL Athletic Director of the Union High
School
Defendants.
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MEMORANDUM OPINION AND ORDER OF COURT
Pending now before the Court is the MOTION TO DISMISS filed by Defendants Union
School District, Larry Bornak, Stephen Shutters, and Scott Kindel, Doc. No 9, with brief in
support, Doc. No. 10, and PLAINTIFF‟S RESPONSE IN OPPOSITION TO DEFENDANTS‟
MOTION TO DISMISS, Doc. No. 11.
Plaintiffs Michael Dipippa and Mary Jane Dipippa, in their individual capacities, and as
parents and natural guardians of their minor daughter, J.D., initiated this action on January 4,
2011, with the filing of a three count complaint against Defendants. Counts I and II are alleged
against Defendant Union School District, with Count I alleging a civil rights violation claim
brought under section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Count II
alleging a claim under Title IX of the Civil Rights Act of 1964, 20 U.S.C. §§ 1681, et seq. See
Doc. No. 1. Count III alleges a section 1983 claim against the individual Defendants. The
claims generally stem from the period beginning during the 2009 – 2010 academic school year
and continue through September of 2010. Plaintiffs claim that throughout that period, J.D., a
minor female student at Union High School, was allegedly sexually assaulted by Alan Lynn
Pryor, a former teacher and coach at the high school. Id. Alan Lynn Pryor committed suicide on
September 4, 2010. Id.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) requires that a pleading which “states a claim for
relief must contain .... (2) a short and plain statement of the claim showing that the pleader is
entitled to relief.” The Rule further provides that “[e]ach allegation must be simple, concise, and
direct” but “[n]o technical form is required.” Fed.R.Civ.P. 8(d). “The touchstone of Rule
8(a)(2) is whether a complaint's statement of facts is adequate to suggest an entitlement to relief
under the legal theory invoked and thereby put the defendant on notice of the nature of the
plaintiff's claim.” In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 2010 U.S.App. LEXIS
17107, *45-*46, n. 18 (3d Cir. Aug.16, 2010) (“Brokerage Antitrust”), citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 565, n. 10, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
In the aftermath of Twombly and the decision in Ashcroft v. Iqbal, 556 U.S. ---, ---, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009), and the interpretation of those two cases by the United
States Court of the Appeals for the Third Circuit in a series of precedential opinions, the pleading
standards which allow a complaint to withstand a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) have taken on slightly new parameters. Beginning in Phillips v. County
of Allegheny, 515 F.3d 224 (3d Cir.2008), the Court of Appeals noted, “After Twombly, „it is no
longer sufficient to allege mere elements of a cause of action;‟ instead „a complaint must allege
facts suggestive of [the proscribed] conduct.‟” Phillips, 515 F.3d at 233, quoting Twombly, 550
U.S. at 563, n. 8 (alteration in original.) In its next important case to address the standard for
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motions to dismiss, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009) the Court of
Appeals noted that following Twombly and Iqbal, conclusory “bare-bones” allegations that “the
defendant unlawfully harmed me” no longer suffice. A civil complaint must now include
“sufficient factual matter to show that the claim is facially plausible.” Fowler, 578 F.3d at 210;
see also Twombly, 550 U.S. at 555, holding that a complaint which offers only “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” The
Fowler court further directed that:
after Iqbal, when presented with a motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis. First, the factual and legal
elements of a claim should be separated. The District Court must accept all of the
complaint's well-pleaded facts as true, but may disregard any legal conclusions.
Second, a District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a plausible claim for relief.
In other words, a complaint must do more than allege the plaintiff's entitlement to
relief. A complaint has to show such an entitlement with its facts. As the
Supreme Court instructed in Iqbal, “[w]here the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has
alleged-but it has not shown-that the pleader is entitled to relief.”
Fowler, 578 F.3d at 210-211 (quotations and citations omitted.)
Thus, the current formulation of the standard of review for a motion to dismiss under
Rule 12(b)(6) requires the court to determine if the plaintiff's claims are “plausible.” “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at
1949; see also Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009);
Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.2010); and Bob v. Kuo, No. 10-1615, 2010
U.S.App. LEXIS 14965, *4 (3d Cir. July 20, 2010). “[W]hat suffices to withstand a motion to
dismiss necessarily depends on substantive law and the elements of the specific claim asserted.”
Brokerage Antitrust, 2010 U.S.App. LEXIS 17107 at *46, n. 18. “Determining whether a
complaint states a plausible claim for relief will ... be a context-specific task that requires the
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reviewing court to draw on its judicial experience and common sense.” Brokerage Antitrust, id.
at *177, quoting Iqbal, 129 S.Ct. at 1950.
The Third Circuit's latest summation of the standard is that “[w]e must accept as true the
factual allegations in the complaint and all reasonable inferences that can be drawn therefrom,
but we require more than mere assertions devoid of further factual enhancement.” Dawson v.
Frias, CA No. 10-2200, 2010 U.S.App. LEXIS 21278, *2 (3d Cir. Oct. 14, 2010) (internal
citations and quotations omitted.) “The assumption of truth does not apply, however, to legal
conclusions couched as factual allegations or to „[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements.‟” Bamigbade v. State Farm Mut. Auto. Ins.
Co., Nos. 09-3868 and 09-4229, 2010 U.S.App. LEXIS 17033, *3-*4, 2010 WL 3096035 (3d
Cir. Aug. 9, 2010), quoting Iqbal, 129 S.Ct. at 1949. “A complaint may not be dismissed merely
because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on
the merits. The Supreme Court's formulation of the pleading standard in Twombly does not
impose a probability requirement at the pleading stage, but instead simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary element.”
McTernan v. City of York, 564 F.3d 636, 646 (3d Cir.2009) (internal quotations omitted.)
II. LEGAL ANALYSIS
Defendants present various arguments with respect to each count of Plaintiffs‟ complaint,
the combination of which, if granted, would result in the dismissal of the complaint in its
entirety. See generally Doc. No. 9. In view of the fact that Defendants advance two somewhat
overlapping arguments directly challenging Count I, the 1983 action against Defendant School
District, and three relatively distinct arguments seeking dismissal of other aspects of the
complaint, the Court will address each argument in sequence.
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1. Defendant School District’s Motion to Dismiss Count I, the 1983 action.
The Court begins with two arguments of Defendant School District, the sole party against
which Count I is brought, that essentially move to dismiss Count I for the failure to state a claim
upon which relief can be granted. As noted above, Counts I and III are brought under 42 U.S.C.
§ 1983, which provides a cause of action to:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State ... subjects, or causes to be subjected, any citizen of the United
States ... to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws ...
42 U.S.C. § 1983. To prevail under 42 U.S.C. § 1983, a plaintiff must prove a deprivation of a
constitutional or federal rights by a person acting under color of state law. Mark v. Borough of
Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995). As it is undisputed that any of the named
Defendants are state actors for the purpose of § 1983, the focus turns to whether the allegations
support the existence of constitutional torts.
In Count I, Plaintiffs allege that Defendant School District violated their rights to
substantive due process under the Fourteenth Amendment to the U.S. Constitution. Similarly,
Count III of the complaint asserts a substantive due process claim against the individually named
Defendants. The Due Process Clause of the Fourteenth Amendment provides that “[n]o State
shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
Amend. XIV.
Defendant School District‟s first argument turns upon the theory of recovery pursued by
Plaintiffs for Count I. Generally, Defendant School District argues that it had no affirmative
duty to protect J.D. from the alleged harm perpetrated by Pryor. See Doc. Nos. 9 and 10
(referencing D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 136869 (3d Cir 1992) and DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189, 195
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(1989)). As Defendant School District correctly notes, under DeShaney, the Due Process Clause
does not generally impose upon the state an affirmative obligation to protect its citizens from
harm inflicted by private individuals. While there is an exception to this general rule in cases in
which a “special relationship” exists between an individual and the state, Defendant School
District also notes that such a “special relationship” is not recognized between a school district
and its students. Id. (citing D.R., 972 F.2d at 1368-73). As an alternative argument, Defendant
District moves to dismiss Count I for failing to allege that a policy, practice, or custom played an
affirmative role in causing the sexual abuse of J.D., and that Plaintiffs have failed “to allege a
factual basis to show a deliberate indifference towards the alleged abuse of J.D.” Doc. No. 10 at
17-18.
Plaintiffs oppose both bases seeking dismissal. As to Defendant‟s argument that no
“special relationship” exists between the School District and J.D., Plaintiffs contend that unlike
the circumstances of DeShaney, here Defendant School District is liable because of its own
actions, and not those taken by a third party non-state actor, specifically alleging that the District
established and maintained a practice, custom or policy with a deliberate indifference to the
consequences that resulted in a constitutional harm. See Doc. No. 11 (referencing Stoneking v.
Bradford Area School District, 882 F.2d 720, 725 (3d Cir. 1989), cert. denied, 493 U.S. 1044,
110 S.Ct. 840, 107 L.Ed.2d 835 (1990)(holding that a school district can be liable under section
1983 for the sexual abuse of a student by a teacher)). Further, as to the alternative argument,
Plaintiffs contend that the complaint sets forth a factual basis for the claim of deliberate
indifference.
Plaintiffs note the factual allegations set forth in their complaint that provide the factual
basis for the claim of deliberate indifference to J.D.‟s due process rights. See Doc. No. 11,
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referencing Doc. No. 1 at ¶ 12 (alleging, inter alia, that teacher/coach Alan Pryor was under the
direction of Defendant School District during the operative period); id. at ¶ 18 (alleging that
Defendants Bornak and/or Shutters were approached by “several teachers” during the 2009-2010
school year and informed that “Pryor was spending an inordinate amount of time with minor
J.D.”); id at ¶ 19 (alleging that Defendant Kindel was placed on notice of the close relationship
between Pryor and J.D., and that Defendant Kindel met with Pryor in either April or May of
2010 to discuss the situation); id. at ¶ 20 (that both before and after notice to officials with the
Defendant School District, in May of 2010, Pryor engaged in open, notorious and obvious
contact with J.D., such as, on one occasion, sitting on a school bus with her legs draped across
his lap while returning from an athletic event, and on another occasion, allowing J.D. to sit on his
lap during a student dance held at Union High School); id. at ¶ 21 (near the end of the 2009-2010
school year, Defendants Shutters and Bornak met with J.D. in the superintendent‟s office and
stated that she should not go to Pryor‟s classroom any more, out of concerns brought to their
attention by other teachers); id. at ¶ 22 (alleging that at the end of the 2009-2010 school year,
Defendant Shutters called Plaintiff Mary Jane Dipippa and “advised her that the school had
concerns about the relationship between Pryor and J.D., and that the school district was
investigating the matter”); id. at ¶ 26 (alleging that during the summer of 2010, Defendants
Shutters and Kindel attended weight lifting and conditioning sessions for the high school football
team that were coordinated and supervised by Pryor, at times during which J.D. was also present
at the invitation of Pryor); id. at ¶¶ 28-30 (alleging that J.D. would eat breakfast with the high
school football coaches, including Pryor, prior to morning football practice sessions that started
in August, 2010, and would then attend the practices); and id. at ¶ 31 (alleging that during
several of the summer high school practices, Pryor left the practices with J.D., and escorted her
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to his classroom inside the high school building and “engaged in an ongoing course of action of
sexually abusing and sexually assaulting her”). According to Plaintiffs, these factual averments
reflect that Defendant School District maintained a policy, practice, or custom of deliberate
indifference regarding Alan Pryor‟s interaction with J.D. that caused, in part, Pryor‟s abuse of
J.D. Id.
It is well established that a municipality may be held liable under section 1983 for
violations of constitutional rights caused by an official policy or custom of the municipality. See
Monell v. Dep't of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Such liability, however, requires more than a simple employment relationship between a
municipality and the individual responsible for the rights violation. Liability does not attach
simply because the school district employed the wrongdoer. Monell, 436 U.S. at 691.
In order for a school district to be liable pursuant to § 1983 for the sexual abuse of a
student by one of its teachers, a plaintiff must show that the school district: (1) had a policy,
practice, or custom which played an affirmative role in bringing about the sexual abuse, and (2)
that the school district acted with deliberate indifference to that abuse. Black by Black v. Indiana
Area School Dist., 985 F.2d 707, 712 (3d Cir. 1993). In Stoneking, the United States Court of
Appeals for the Third Circuit set forth the standard for determining whether a school district
establishes a policy, practice, or custom that results in the kind of constitutional violation at issue
here. “[A]lthough the mere failure of supervisory officials to act or investigate cannot be the
basis of liability,” school officials may not “maintain a custom, practice or usage that
communicate[s] condonation or authorization of assaultive behavior.” Stoneking, 882 F.2d at
730.
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Additionally, a plaintiff must establish that a supervisory official or final policy maker of
the school district, with actual knowledge of similar conduct in the past, acted with deliberate
indifference in response thereto. See Gottlieb v. Laurel Highlands Sch. Dist., 272 F.3d 168, 176
(3d Cir.2001). The courts have noted three scenarios in which a government employee's actions,
or in this case, school district employee's, actions may be deemed to be the result of a policy or
custom of the entity that subjects the school district to § 1983 liability: (1) when an appropriate
officer or entity promulgates a statement of policy and the employee's act is an implementation
of that policy; (2) when the act of the policymaker violates federal law; and (3) when a
policymaker fails to act affirmatively despite the obvious need for action to control agents of the
government. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir.2003).
As the complaint does not identify a specific statement of policy by the District,
Plaintiffs‟ 1983 claim against Defendant School District appears to implicate the third scenario.
Plaintiffs allege a number of occurrences and interactions involving faculty members, the
individually named Defendants acting on behalf of the School District, minor J.D., Alan Pryor,
and Plaintiff mother that, at a minimum, clearly and explicitly allege a degree of notice on the
part of school officials of some kind of relationship between Pryor and J.D. that raised official
concern, all of which preceded the sexual abuse alleged to have occurred at the beginning of the
2010-2011 school year. Additionally, Plaintiffs allege acts of open and obvious physical contact
between Pryor and J.D. at school functions. Plaintiffs allege that Defendant Kindel met with
Pryor to discuss the concerns raised by other faculty members regarding Pryor and J.D.
Plaintiffs allege that Defendants Shutters and Bornak met with J.D. toward the end of the 20092010 school year to specifically discuss the situation and to direct J.D. not to go to Pryor‟s
classroom anymore. Plaintiffs allege that Defendant Shutters called Plaintiff mother and
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informed her of the concerns toward the end of the 2009-2010 school year, and further advised
her that the Defendant School District is investigating the matter. In spite of these occurrences,
Plaintiffs allege that the contact between Pryor and J.D. continued throughout the summer and
was known by School District officials. Plaintiffs have sufficiently pled a custom, practice, or
policy of deliberate indifference that may have played a part in bringing about the constitutional
deprivation suffered by minor J.D.
The Court‟s analysis does not stop there, however. Liability under § 1983 must stem
from policy making authority. Only an individual with final decision-making authority can make
official policy on behalf of the school district. See Pembauer v. City of Cincinnati, 475 U.S. 469,
483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). “[I]n order to ascertain who is a policy maker a
court must determine which official has final, unreviewable discretion to make a decision or take
action.” Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir.1996). Whether a person has final
decision-making authority is a question of state law. McGreevy v. Stroup, 413 F.3d 359, 368 (3d
Cir.2005); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598
(1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). A
single decision by an individual with policy making authority may be sufficient to impose
liability on the school district. See Pembaur, 475 U.S. at 480 (stating that “it is plain that
municipal liability may be imposed for a single decision by municipal policymakers under
appropriate circumstances”); McGreevy, 413 F.3d at 367-68. At the same time, however, not
every decision by an officer subjects a school district to liability. “[School district] liability
under § 1983 attaches where - and only where - a deliberate choice to follow a course of action is
made from among various alternatives by the official or officials responsible for establishing
final policy with respect to the subject matter in question.” Pembaur, 475 U.S. at 483. If an
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employee's action is subject to discretionary review, the employee is not a final policymaker
under § 1983. Brennan v. Norton, 350 F.3d 399, 428 (3d Cir.2003).
The final policy maker for a school district in Pennsylvania is typically the school board
or the superintendent. See 24 Pa. Cons.Stat. Ann. §§ 5-508, 5-510, 5-514, 101081(superintendent duties); McGreevy, 413 F.3d at 369. In this case, Plaintiff attributes to
Defendant School District a “custom, practice, and/or policy of deliberate indifference to and/or
concealment of instances of known improper contacts and relationship by Pryor with J.D. and
known sexual assaults upon and abuse of J.D. by Pryor” by way of specific actions, or inactions,
taken by the District superintendent (Defendant Bornak), the high school principal (Defendant
Shutters), and the athletic director for the high school (Defendant Kindel). Doc. No. 1 at ¶¶ 4142. In view of the facts as pled, the complaint provides sufficient notice to Defendant School
District for the purpose of its motion to dismiss. See Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)
(holding that notice pleading is sufficient for suits against local governments pursuant to § 1983);
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (holding that
notice pleading is the standard under the Federal Rules of Civil Procedure unless a specific
statutory provision compelling heightened pleadings). Along those same lines, the Court makes
clear that it is not making a finding at this stage of the proceeding that the facts actually rise to
the level of deliberate indifference; only that Plaintiff has sufficiently stated a claim and will be
allowed to proceed with discovery.
At this juncture, the Court agrees with Plaintiffs that it has stated a cause of action against
Defendant School District in Count I. Furthermore, the Court finds that Count I does not aver a
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“special relationship” theory of liability under DeShaney. Count I is clearly analogous to that of
Stoneking, wherein the Court of Appeals for the Third Circuit held:
Nothing in DeShaney suggests that state officials may escape liability arising
from their policies maintained in deliberate indifference to actions taken by their
subordinates. As the Supreme Court recently reconfirmed in City of Canton v.
Harris, 489 U.S. 378, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989), a
municipality may be liable under section 1983 where its policymakers made “a
deliberate choice to follow a course of action ... from among various alternatives,”
(quoting Pembauer v. Cincinnati, 475 U.S. 469, 483-84, 106 S.Ct. 1292, 1300-01,
89 L.Ed.2d 452 (1986) (plurality op.)), and the policy chosen “reflects deliberate
indifference to the constitutional rights of [the city's] inhabitants,” 109 S.Ct. at
1206. See also Monell, 436 U.S. at 690-91, 98 S.Ct. at 2036-37 (government body
may be sued for constitutional deprivations visited pursuant to governmental
“custom”, “practices” or “usage”).
This is an independent basis for liability previously pled and preserved by
Stoneking which is unrelated to the issue decided in DeShaney. Liability of
municipal policymakers for policies or customs chosen or recklessly maintained is
not dependent upon the existence of a “special relationship” between the
municipal officials and the individuals harmed. (citation omitted).
882 F.2d at 725. The Court has little difficulty in finding that Plaintiffs have adequately pled an
independent basis for liability attributable to Defendant School District. Accordingly,
Defendants‟ motion to dismiss in this regard will be denied.
2. Claims brought by Plaintiff parents in their individual capacities
Defendants move to dismiss the claims for damages of Plaintiff parents individually.
According to the complaint, “As a direct and proximate result of the customs, practices and/or
policies of the Union School District, Michael A. Dipippa and Mary Jane DiPippa have been
required to provide medical treatment and counseling for J.D. and have been required to pay fees
associated with such treatment and counseling.” Doc. No. 1 at ¶¶ 51 & 74. Defendants argue
that the claims brought by Plaintiff parents in their individual capacities should be dismissed
because the harm alleged is not a deprivation of a constitutionally or federally recognized right.
Doc. Nos. 9 & 10. More specifically, Defendants contend that the individual claims brought by
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Plaintiffs are essentially impermissible attempts to recover for the deprivation of the civil rights
of a third party, namely their daughter. See Doc. No. 12 at § V.B. (citing Gomez v. Toledo, 446
U.S. 635, 640 (1980) for the general proposition that, to successfully assert a cause of action
under § 1983, “the plaintiff must allege some person has deprived him of a federal right.”)
Although styled as a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim upon which relief may be granted, Defendants‟ challenge that
Plaintiffs have suffered no remediable harm is technically an attack on this Court's subject matter
jurisdiction and would more properly be brought pursuant to Federal Rule of Civil Procedure
12(b) (1). See Ballentine v. United States, 486 F.3d 806, 810 (3d Cir.2007). Because
Defendants have raised the issue, the Court will treat it as one raised pursuant to Federal Rule of
Civil Procedure 12(b)(1). See Garcia v. Richard Stockton Coll. of N.J., 210 F.Supp.2d 545, 548
(D.N.J.2002) (treating defendant's motion to dismiss as one brought pursuant to Federal Rule of
Civil Procedure 12(b)(1), despite defendant's description of motion as one being brought
pursuant to Federal Rule of Civil Procedure 12(b)(6)).
Pursuant to Rule 12(b)(1), the Court must accept as true all material allegations set forth
in the complaint, and must construe those facts in favor of the nonmoving party. See Warth v.
Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Storino v. Borough of Point
Pleasant Beach, 322 F.3d 293, 296 (3d Cir.2003). On a motion to dismiss for lack of standing, a
plaintiff “„bears the burden of establishing‟ the elements of standing, and „each element must be
supported in the same way as any other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the successive stages of the litigation.‟”
FOCUS v. Allegheny County Court of Common Pleas, 75 F.3d 834, 838 (3d Cir.1996) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).
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However, “general factual allegations of injury resulting from the defendant's conduct may
suffice.” Lujan, 504 U.S. at 561.
Federal Rule of Civil Procedure 17(c) permits a guardian, as a representative, to sue on
behalf of a minor. Defendants do not dispute Plaintiffs‟ ability to bring the action on behalf of
their minor daughter, J.D. Instead, Defendants challenge Plaintiffs‟ ability to recover fees and
expenses allegedly incurred by them on behalf of J.D. as part of J.D.‟s medical treatment and
counseling. The question, therefore, is one of damages, and the nature of recompense, if any, is
recoverable under § 1983 for injuries caused to a plaintiff by the deprivation of her constitutional
rights. The Supreme Court has previously addressed this question:
Rights, constitutional and otherwise, do not exist in a vacuum. Their purpose is to
protect persons from injuries to particular interests, and their contours are shaped
by the interests they protect.
Our legal system's concept of damages reflects this view of legal rights. “The
cardinal principle of damages in Anglo-American law is that of compensation for
the injury caused to plaintiff by defendant's breach of duty.” 2 F. Harper & F.
James, Law of Torts § 25.1, p. 1299 (1956) (emphasis in original)… The Court
implicitly has recognized the applicability of this principle to actions under §
1983 by stating that damages are available under that section for actions “found
… to have been violative of … CONSTITUTIONAL RIGHTS AND TO HAVE
CAUSED COMPENSABLE INJURY … .” Wood v. Strickland, 420 U.S., at 319,
95 S.Ct., at 999 (emphasis supplied); see Codd v. Velger, 429 U.S. 624, 630-631,
97 S.Ct. 882, 885-886, 51 L.Ed.2d 92 (1977) (Brennan, J., dissenting); Adickes v.
S. H. Kress & Co., 398 U.S. 144, 232, 90 S.Ct. 1598, 1641, 26 L.Ed.2d 142
(1970) (Brennan, J., concurring and dissenting); see also Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619
(1971) (action for damages directly under Fourth Amendment); id., at 408-409, 91
S.Ct., at 2010-2011 (Harlan, J., concurring in judgment). The lower federal
courts appear generally to agree that damages awards under § 1983 should be
determined by the compensation principle….
The Members of the Congress that enacted § 1983 did not address directly the
question of damages, but the principle that damages are designed to compensate
persons for injuries caused by the deprivation of rights hardly could have been
foreign to the many lawyers in Congress in 1871. … Two other sections of the
Civil Rights Act of 1871 appear to incorporate this principle, and no reason
suggests itself for reading § 1983 differently. … To the extent that Congress
intended that awards under § 1983 should deter the deprivation of constitutional
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rights, there is no evidence that it meant to establish a deterrent more formidable
than that inherent in the award of compensatory damages. See Imbler v.
Pachtman, 424 U.S., at 442, 96 S.Ct., at 1000-1001 (White, J., concurring in
judgment). …
Carey v. Piphus, 435 U.S. 247, 254-255, 98 S.Ct. 1042, 1047-48, 55 L.Ed.2d 252
(1978)(footnotes 7, 8, 9, and 10 omitted). The Supreme Court further noted “[i]n order to further
the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of
constitutional rights should be tailored to the interests protected by the particular right in
question[.]” Id. at 259, 98 S.Ct. at 1050. In that regard, the ability to pursue a claim for past and
future medical expenses incurred or to be incurred by parents in the care of their minor child is
well-settled law. See, e.g., Brough v. Strathmann Supply Co., 358 F.2d 374, 378 (3d Cir. 1968);
Fields v. Graff, 784 F.Supp. 224 (E.D. Pa. 1992); Olivieri v. Adams, 280 F.Supp. 428 (E.D.
Pa.1968); see also, Meisel v. Little, 407 Pa. 546, 180 A.2d 772 (1962); Brower by Brower v. City
of Philadelphia, 124 Pa.Cmwlth. 586, 557 A.2d 48 (Pa. Cmwlth. 1989).
At the same time, however, Defendants‟ concern is not wholly without application here.
A parent‟s ability to seek compensation for past and future medical expenses incurred in the care
of a minor child does not further provide an independent cause of action for the parents‟ own
claims of injuries given the facts as pled within the complaint. Defendants note that a parent‟s
ability to recover damages with their own independently pled section 1983 claim stemming from
constitutional deprivations suffered by minor children is limited to those situations involving the
death of a child or the termination of parental rights. Doc. No. 10 (referencing Tilson v. Sch.
Dist. Of Philadelphia, No. 89-1923, 1989 WL 127510 (E.D. Pa 1989)); see also, Estate of Bailey
v. County of York, 768 F.2d 503, 509 (3d Cir 1985). The Third Circuit has cautioned against
extending the right to recover beyond those parameters, see McCurdy v. Dodd, 352 F.3d 820,
829 (3d Cir 2003)(refusing to extend a right of action under section 1983 to a parent whose adult
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son was killed by police officers and “hestitat[ing] to extend the Due Process Clause to cover
official actions that were not deliberately directed at the parent-child relationship.”), and that
such a right has not been extended to a parent whose child had been molested by a public school
employee as the facts were pled here. Cf., H.T. by S.T. v. East Windsor Regional School District,
No. 04-1633, 2006 WL 3246543 (D.N.J. 2006). The Court notes that Plaintiffs do not make any
demand for such damages, and, had they done so, the outcome of the motion in this particular
regard may well be different. Nevertheless, the Court finds that Plaintiffs have averred general
factual allegations sufficient to have standing to pursue their claims against Defendant School
District in their individual capacities for reimbursement of medical treatment expenses for their
daughter‟s injuries, and Defendants‟ motion to dismiss in this regard will be denied.
At this juncture, the Court finds the same reasoning to hold in terms of Plaintiffs‟ demand
for damages under Count II, the claim brought under Title IX. Generally speaking, parents of a
student whose rights were violated do not have standing to assert personal claims under Title IX,
but do have standing to assert claims on the student‟s behalf. Accord., Haines v. Metropolitan
Government of Davidson County, Tenn., 32 F.Supp.2d 991 (M.D. Tenn. 1998); Doe v.
Londonderry School Dist., 970 F.Supp. 64 (D.N.H. 1997); Franks v. Kentucky School for the
Deaf, 956 F.Supp. 741 (E.D. Ky. 1996); Burrow By and Through Burrow v. Postville Community
School Dist., 929 F.Supp. 1193 (N.D. Iowa, 1996). On its face, the statutory language of Title
IX, 20 U.S.C. § 1681 et seq., applies only to students and participants in educational programs.
Plaintiffs do not allege that they are either in this case, and therefore, they do not have standing
to pursue personal claims. The Court finds, however, that Plaintiff parents do have standing to
pursue the reimbursement for expenses of medical treatment and counseling of J.D. as a result of
the alleged deprivation of rights under Title IX.
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3.
Count II against Defendant School District brought under Title IX
Title IX of the Education Act of 1972 proscribes discrimination, exclusion, or denial of
benefits on the basis of sex in educational institutions or programs which receive federal funding.
20 U.S.C. § 1681 (“No person in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any education
program or activity receiving Federal financial assistance[.]”). Defendant School District does
not dispute that it is the recipient of federal funding.
Title IX encompasses sexual harassment of a student by a teacher and is enforceable
through an implied private right of action for damages against a school district. Franklin v.
Gwinnett County Pub. Sch., 503 U.S. 60, 75-76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); see
also, Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979).
Similar to 1983 claims, the Supreme Court has rejected a respondeat superior basis for liability.
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285, 118 S.Ct. 1989, 141 L.Ed.2d 277
(1998). To succeed on a Title IX sexual harassment claim, a student must show: (1) quid pro
quo sexual harassment, or a sexually hostile educational environment; (2) actual notice by an
“appropriate person” who has the authority to take corrective measures; and, (3) a response to the
harassment that amounts to deliberate indifference. Bennett v. Pa. Hosp. Sch. of Nurse
Anesthesia, No. Civ.A. 01-CV-4098, 2002 WL 32341792 at *3 (E.D.Pa.Oct.29, 2002) (citing
Gebser, 524 U.S. at 291-92). An “appropriate person” is “an official who at a minimum has
authority to address the alleged discrimination and to institute corrective measures on the ...
[district's] behalf.” Id. at 290, 118 S.Ct. 1989. “Actual notice” must amount to “actual
knowledge of discrimination in the recipient's programs.” Id. It is important to note that
knowledge of the mere possibility of harassment is insufficient to constitute awareness, but an
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appropriate person need not be absolutely certain that harassment has occurred in order to satisfy
the knowledge requirement. See Dawn L. v. Greater Johnstown Sch. Dist., 586 F.Supp.2d 332,
367 (W.D. Pa. 2008) (citing Bostic v. Smyra Sch. Dist., 418 F.3d 355, 360 (3d Cir. 2005)). “An
educational institution has „actual knowledge‟ if it knows the underlying facts, indicating
sufficiently substantial danger to students, and was therefore aware of the danger.” Bostic, 418
F.3d at 361 (quoting 3C Fed. Jury Prac. & Instr. § 177.36 (5th ed.2001)). Further, “the response
must amount to deliberate indifference to discrimination.... The premise, in other words, is an
official decision by the recipient not to remedy the violation.” Id.
Based upon the factual averments alleged within the complaint, the Court finds that
Plaintiffs have sufficiently pled a Title IX cause of action against Defendant School District.
Plaintiffs have sufficiently averred that numerous officials, namely the superintendent, the high
school principal, and the athletic director, had actual notice of Pryor‟s inappropriate interactions
with J.D., and that the interactions continued after such notification. Whether the facts rise to the
level of deliberate indifference on the part of these officials cannot be decided at this stage of the
action. Nevertheless, the allegations are sufficient to allow Plaintiffs to proceed to discovery.
Whether they will prove true, or legally sufficient based on the facts as they are discovered, is a
question for another day. Defendant School District‟s motion to dismiss Count II, the Title IX
count, will be denied.
4.
Count III against Individual Defendants
Defendants move to dismiss Count III, the 1983 action against the individual Defendants,
on the basis that it is duplicative of Count I, the section 1983 action against the District.
Defendants contend that a claim against a government employee in an official capacity is
tantamount to a claim against the governmental entity that employs the employee. In opposition,
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Plaintiffs claim that the alleged conduct is sufficient to state a claim against the individual
Defendants in their individual capacities. Doc. No. 11.
Personal-capacity suits seek to impose personal liability upon a government official for
actions he/she takes under color of state law. See, e.g., Kentucky v. Graham, 473 U.S. 159, 16566, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Scheuer v. Rhodes, 416 U.S. 232, 237-238, 94 S.Ct.
1683, 1686-1687, 40 L.Ed.2d 90 (1974). Official-capacity suits, in contrast, “generally represent
only another way of pleading an action against an entity of which an officer is an agent.”
Monell, infra, 436 U.S. at 690, n. 55, 98 S.Ct. 2018, 2035, n. 55, 56 L.Ed.2d 611. On the merits,
to establish personal liability in a § 1983 action, it is enough to show that the official, acting
under color of state law, caused the deprivation of a federal right. See, e.g., Graham, 473 U.S. at
166. More is required, however, in an official-capacity action in order for a governmental
official to be liable under § 1983. Liability attaches only when the entity itself is a “„moving
force‟” behind the deprivation. Id. (quotations omitted). In other words, in an official-capacity
suit, the entity's “policy or custom” must have played a part in the violation of federal law.
Monell, supra; Oklahoma City v. Tuttle, 471 U.S. 808, 817-818, 105 S.Ct. 2427, 2433, 85
L.Ed.2d 791 (1985); id., at 827-828, 105 S.Ct., at 2437, 2438 (Brennan, J., concurring in
judgment). “[A] local government may not be sued under § 1983 for an injury inflicted solely by
its employees or agents. Instead, it is when execution of a government's policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an entity is responsible under § 1983”.
Monell, supra., at 694.
In terms of the availability of defenses to liability, an official in a personal-capacity
action may, depending on his position, be able to assert personal immunity defenses, such as
19
objectively reasonable reliance on existing law. See, e.g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct.
1213, 18 L.Ed.2d 288 (1967) (absolute immunity); Harlow v. Fitzgerald, 457 U.S. 800, 102
S.Ct. 2727, 73 L.Ed.2d 396 (1982) (qualified immunity); Wood v. Strickland, 420 U.S. 308, 95
S.Ct. 992, 43 L.Ed.2d 214 (1975) (same). In an official-capacity action, however, these defenses
are not available. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673
(1980); see also Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985).
Additionally, punitive damages are not available under § 1983 from a municipality, Newport v.
Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), but are available in a
suit against an official personally, see Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d
632 (1983).
Plaintiffs‟ complaint does not explicitly assert the capacity in which the causes of actions
are brought against the individual Defendants, but that, in and of itself, does not impose a
limitation on Plaintiffs‟ claims. As the Supreme Court has recognized, that is not dispositive. In
many cases, the complaint will not clearly specify whether officials are sued personally, in their
official capacity, or both. Graham, 473 U.S. at FN 14. “The course of proceedings” in such
cases typically will indicate the nature of the liability sought to be imposed. Id. (quoting
Brandon v. Holt, 469 U.S. 464, 469, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985)). Given the
early stage of these proceedings, particularly in light of the fact that Defendants have yet to
answer, the Court will deny Defendants‟ motion to dismiss in this regard. However, the Court
notes that this denial will be without prejudice.
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CONCLUSION
For the reasons hereinabove set forth, Defendants‟ Motion to Dismiss, Doc. No. 9, will
be denied. An appropriate order follows.
McVerry, J.
21
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL A. DIPIPPA and MARY JANE
DIPIPPA individually and as the parents and
natural guardians of J.D., a minor
Plaintiffs,
v
UNION SCHOOL DISTRICT, LARRY
BORNAK Superintendent of the Union School
District, STEPHEN SHUTTERS
Principal of the Union High School and SCOTT
KINDEL Athletic Director of the Union High
School
Defendants.
)
)
)
) 2:11-cv-7
)
)
)
)
)
)
)
)
)
)
)
)
ORDER OF COURT
AND NOW, this 4th day of May, 2011, upon consideration of Defendants‟ MOTION TO
DISMISS, (Doc. No. 9), and the response in opposition thereto filed by Plaintiff (Doc. No. 11),
and in accordance with the foregoing Memorandum Opinion, it is hereby ORDERED,
ADJUDGED, and DECREED that Defendants‟ Motion to Dismiss is DENIED. Defendants
are further ORDERED to file an answer to Plaintiffs‟ complaint on or before May 18, 2011.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge
cc:
James J. Ross, Esquire
Email: jross@brf-law.com
Michael K. English, Esquire
Email: menglish@dmkcg-law.com
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