JANKOWSKI v. LELLOCK et al

Filing 39

MEMORANDUM OPINION AND ORDER granting 36 Motion to Dismiss for Failure to State a Claim filed by Defendants Lynn Meyers-Jeffrey and Ronald Zangaro. Signed by Judge Terrence F. McVerry on 3/17/2014. (rjw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVID JANKOWSKI,
Plaintiff,
v.
ROBERT LELLOCK, LYNN MEYERSJEFFREY, and RONALD ZANGARO,
individually and in their official capacities,
Defendants.

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MEMORANDUM OPINION AND ORDER
Pending before the Court is the MOTION TO DISMISS COUNTS II & III OF THE
SECOND AMENDED COMPLAINT (ECF No. 36), with brief in support (ECF No. 37), filed
by Defendants Lynn Meyers-Jeffrey (“Meyers-Jeffrey”) and Ronald Zangaro (“Zangaro”).
Plaintiff David Jankowski filed a BRIEF IN RESPONSE TO DEFENDANTS’ MOTION TO
DISMISS (ECF No. 38). The motion is ripe for disposition. For the reasons that follow, it will
be granted.
I. Background
The parties are familiar with the background of this case, which is fully set forth in this
Court’s Memorandum Opinion and Order of November 6, 2013. See ECF No. 30. Briefly,
Plaintiff was a student at Arthur J. Rooney Middle School during the 1998-99 school year and
alleges that he was sexually abused by Robert Lellock (“Lellock”), a school police officer.
Plaintiff claims that the abuse violated his right to bodily integrity, which is secured by the Due
Process Clause of the Fourteenth Amendment to the United States Constitution, as enforced
through 42 U.S.C § 1983. Furthermore, Plaintiff seeks to hold Meyers-Jeffrey and Zangaro

responsible for Lellock’s alleged violation of his civil rights.
Plaintiff initially named Lellock, Meyers-Jeffrey, Zangaro, 15 other individuals, and the
Pittsburgh Public School District as Defendants in this action and raised a variety of claims
against them. In its prior Memorandum Opinion, this Court granted the motion to dismiss filed
by all of the Defendants except Lellock, finding Plaintiff’s First Amended Complaint inadequate
in various respects: (1) it inadequately pled a basis for imposing municipal liability on the school
district; (2) the § 1983 claims against the individual Defendants did not allege a violation of a
federal right; and (3) the state law claims were barred by governmental immunity. At the same
time, this Court permitted Plaintiff to file a Second Amended Complaint, but cautioned him of
the high hurdle he had to overcome in order to successfully plead a claim against individual
Defendants under § 1983.
Plaintiff filed his Second Amended Complaint on December 2, 2013, naming as
defendants only Lellock, Meyers-Jeffrey, and Zangaro, in both their individual and official
capacities. During the relevant time period, Meyers-Jeffrey was a detention aide at the school.
Second Am. Compl. ¶ 38. Plaintiff alleges that Lellock “pulled” Plaintiff and 21 other male
students out of Meyers-Jeffrey’s classroom, many on more than one occasion, for private, oneon-one encounters, during which the alleged abuse occurred. Id. ¶ 40. Plaintiff alleges that
Meyers-Jeffrey requested that Lellock remove Plaitniff from her classroom on certain occasions.
Id. ¶ 42. Furthermore, he alleges that under the school’s policies, Lellock should not have been
permitted to remove students from classrooms for unsupervised encounters. Id. ¶ 44. He also
alleges that Meyers-Jeffrey “knew, suspected, and/or should have known that Defendant
Lellock’s removal of his from her classroom would result in a substantial probability that his
civil rights would be violated.” Id. ¶ 47. Zangaro was the school’s principal, and Plaintiff

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alleges that he knew that Lellock was removing students for one-on-one encounters, yet failed to
do anything to stop it and failed to properly train teachers on the school’s policy prohibiting
police officer’s from removing students from classrooms. Id. ¶¶ 50-55.
In response, Meyers-Jeffrey and Zangaro filed the instant motion to dismiss, in which
they seek to dismiss Counts II and III of the Second Amended Complaint. The Court notes that
Lellock is not a party to the pending motion. Furthermore, he is currently unrepresented in this
matter and has not filed an answer or Rule 12(b)(6) motion on his own behalf.
II. Standard of Review
A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of a
complaint, which may be dismissed for the “failure to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the Court must accept
all well-pleaded facts and allegations, and must draw all reasonable inferences therefrom in favor
of the plaintiff. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir. 2011) (citing In re
Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010)). However, as the Supreme
Court of the United States made clear in Bell Atlantic Corp. v. Twombly, such “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. 554,
555 (2007).
The Supreme Court later refined this approach in Ashcroft v. Iqbal, emphasizing the
requirement that a complaint must state a plausible claim for relief in order to survive a motion
to dismiss. 556 U.S. 662, 678 (2009). “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.”

Id. (citing Twombly, 550 U.S. at 555).

Nevertheless, “the

plausibility standard is not akin to a ‘probability requirement,’” but requires a plaintiff to show

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“more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550
U.S. at 555).
To determine the legal sufficiency of a complaint after Twombly and Iqbal, the United
States Court of Appeals for the Third Circuit instructs that a district court must take a three step
approach when presented with a motion to dismiss for failure to state a claim. Santiago v.
Warminster Twp., 629 F.3d 121, 130 n.7 (3d Cir. 2010) (noting that although Iqbal describes the
process as a “two-pronged approach,” it views the case as outlining three steps) (citing Iqbal,
556 U.S. at 675). First, “the court must “tak[e] note of the elements a plaintiff must plead to
state a claim.’” Id. at 130 (quoting Iqbal, 556 U.S. at 675) (alteration in original). Second, the
court “should identify allegations that, ‘because they are no more than conclusions, are not
entitled to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679). Third, “‘where there
are well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.’” Id. (quoting Iqbal, 556 U.S. at
679).
Accordingly, the Court must separate the factual and legal elements of the claim and
“accept the factual allegations contained in the Complaint as true, but [ ] disregard rote recitals of
the elements of a cause of action, legal conclusions, and mere conclusory statements.” James v.
City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citing Iqbal, 556 U.S. at 678-79;
Twombly, 550 U.S. at 555-57; Burtch, 662 F.3d at 220-21). The 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.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (citing Iqbal 556 U.S. at 678). The determination

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for “plausibility” will be “‘a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679).
However, nothing in Twombly or Iqbal changed the other pleading standards for a motion
to dismiss pursuant to Rule 12(b)(6) and the requirements of Rule 8 must still be met. See
Phillips v. Co. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal citations omitted). The
Supreme Court did not abolish the Rule 12(b)(6) requirement that “the facts must be taken as
true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff
can prove those facts or will ultimately prevail on those merits.” Phillips, 515 F.3d at 231 (citing
Twombly, 550 U.S. at 553). Rule 8 also still requires that a pleading contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Iqbal, 556 U.S. at 677-78
(citing Fed. R. Civ. P. 8(a)(2)).

While this standard “does not require ‘detailed factual

allegations,’ [] it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation” and a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’” Iqbal, 556 U.S. at 679 (quoting Twombly, 550 U.S.
at 544-55). Simply put, Rule 8 “does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Iqbal, 556 U.S. at 678-79.
III. Discussion
Meyers-Jeffrey and Zangaro move to dismiss the claims against them in both their
individual and official capacities.1 They argue primarily that Plaintiff fails to allege that they

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Defendants argue that a government official sued in his official capacity is not a “person” for
purposes of § 1983. Not so—the Supreme Court has expressly stated that “government officials
sued in their official capacities are ‘persons’ under § 1983.” Monell v. N.Y. Dept. of Soc. Servs.,
436 U.S. 658, 690 n.55 (1978) (emphasis added). However, an official-capacity suit is generally
viewed as just “another way of pleading an action against an entity of which an officer is an
agent”—in this case, the school district. Id. The Court previously dismissed Plaintiff’s claim
against the school district, which was essentially the same claim that he now alleges against
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were sufficiently personally involved in the alleged constitutional violation committed by
Lellock and alternatively that they are entitled to qualified immunity. The Court will assume for
the purpose of deciding this motion that Plaintiff has sufficiently made out a claim against
Lellock. The sole question before the Court, then, is whether Plaintiff has adequately pled a
basis for holding Meyers-Jeffrey and Zangaro responsible for that underlying constitutional
violation. The answer to that question is “no.”2
A. Meyers-Jeffrey
Plaintiff claims that Meyers-Jeffrey is liable because she “knew, suspected, and/or should
have known that Defendant Lellock’s removal of [Plaintiff] from her class room would result in
a substantial probability that his civil rights would be violated.” Second Am. Compl. ¶ 47.
Because Meyers-Jeffrey did not possess supervisory authority over Plaintiff, however, Plaintiff
cannot, as a matter of law, impose liability on her. See Robinson v. City of Pittsburgh, 120 F.3d
1286, 1294 (3d Cir. 1997), overruled in part on other grounds by Burlington N. & Sante Fe Ry.
Co. v. White, 548 U.S. 53 (2006) (“[E]xcept perhaps in unusual circumstances, a government
official or employee who lacks supervisory authority over the person who commits a
constitutional tort cannot be held, based on mere inaction, to have ‘acquiesced’ in the
unconstitutional conduct.”); accord Doe v. Rains Cnty. Indep. Sch. Dist., 66 F.3d 1402, 1414-15
(5th Cir. 1995) (holding that teacher who failed to report fellow teacher’s sexual abuse of student
could not be liable under § 1983 for fellow teacher’s conduct); Whitley v. Hanna, 726 F.3d 631,

Meyers-Jeffrey and Zangaro, individually. Thus, no further analysis is needed with respect to
the official capacity claims brought against these Defendants. They will be dismissed for the
same reasons stated in the Court’s prior Opinion and reiterated in this Opinion, namely, Plaintiff
has failed to adequately plead deliberate indifference.
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Because the Court concludes that Plaintiff has not adequately pled that Meyers-Jeffrey or
Zangaro can be held responsible for the underlying constitutional violation, it need not address
the Defendants’ argument as to qualified immunity.
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640 (5th Cir. 2013) (recognizing that a non-supervisory government employee may be held liable
for subordinate’s conduct only if he possesses “a state-law created right of legal control” over the
employee committing the violations). Therefore, the claim against Meyers-Jeffrey, in both her
official and individual capacities, will be DISMISSED with prejudice.
B. Zangaro
Similarly, Zangaro cannot be held liable for Lellock’s constitutional tort merely because
he was the principal of the school where Lellock was employed. Instead, Plaintiff must plead
sufficient facts to show that Zangaro actually caused—or was the moving force in—the violation
of Plaintiff’s Fourteenth Amendment rights. In that vein, the Court reads the Second Amended
Complaint as attempting to plead two related yet independent bases of recovery against Zangaro.
First, Plaintiff claims that Zangaro knew or should have known that Plaintiff was being removed
from Meyers-Jeffrey’s classroom for one-on-one encounters, yet failed to take action to stop the
sexual abuse Plaintiff was suffering (the “knowledge-and-acquiesce theory”). Second, he claims
that Zangaro failed to train teachers on the application of the school’s policy against permitting
police officers to remove students from classrooms for unsupervised, one-on-one encounters (the
“failure-to-train theory”).
With respect to the first theory of recovery, courts in this Circuit have adopted the Fifth
Circuit Court of Appeals’ test for determining whether a supervisory official can be liable when
a subordinate violates a student’s right to bodily integrity:
(1) the [supervisory] defendant learned of facts or a pattern of inappropriate
sexual behavior by a subordinate pointing plainly toward the conclusion that the
subordinate was sexually abusing the student; and
(2) the [supervisory] defendant demonstrated deliberate indifference toward the
constitutional rights of the student by failing to take action that was obviously
necessary to prevent or stop the abuse; and

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(3) such failure caused a constitutional injury to the student.
Graham v. Ambridge Area Sch. Dist., No. 07–1640, 2010 WL 2207999, at *9-10 (W.D. Pa. May
26, 2010) (citing Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443, 454 (5th Cir. 1994)); see D.C.G.
ex rel. E.M.G. v. Wilson Area Sch. Dist., No. 07–1357, 2009 WL 838548, at *10 (E.D. Pa. Mar.
27, 2009) (also adopting the Fifth Circuit’s test).3 Deliberate indifference is a high standard of
fault.4 Connick v. Thompson, --- U.S. ----, 131 S. Ct. 1350, 1359 (2011) (internal quotation
marks omitted).

Accordingly, a negligent failure to recognize the abuse committed by a

subordinate is insufficient to establish liability. Black by Black v. Indiana Area Sch. Dist., 985
F.2d 707, 713 (3d Cir. 1993) (“Under Stoneking [v. Bradford Area Sch. Dist., 882 F.3d 720 (3d
Cir. 1989)], however, a plaintiff must do more than show the defendant could have averted her
injury and failed to do so.”).
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The district courts in this Circuit that have adopted this test for supervisory liability have done
so because it is consistent with years of precedent “from the United States Court of Appeals for
the Third Circuit indicating that supervisory liability requires that the supervisor ‘had knowledge
of and acquiesced in’ the subordinate’s violations.” Graham, 2010 WL 2207999, at *9-10
(citation omitted). More recently, the Third Circuit Court of Appeals has expressed uncertainty
about the proper scope of supervisory liability after the Supreme Court’s landmark decision in
Iqbal. See Bayer v. Monroe Cnty. Children and Youth Servs., 577 F.3d 186, 190 n.5 (3d Cir.
2009) (“In light of the Supreme Court’s recent decision in [Iqbal], it is uncertain whether proof
of such personal knowledge, with nothing more, would provide a sufficient basis for holding
[defendant] liable with respect to plaintiffs’ Fourteenth Amendment claims.”). However, the
Court of Appeals has not decided whether Iqbal actually requires it to refine the test it previously
endorsed. See, e.g., Santiago v. Warminster Twp., 629 F.3d 121, 130 n.8 (3d Cir. 2010); Lawal
v. McDonald, --- Fed. Appx. ----, 2014 WL 718428, at *2 n.5 (3d Cir. Feb. 26, 2014). As a
result, this Court will proceed under the assumption that Plaintiff could make out a valid claim
for supervisory liability by showing that Zangaro had actual or constructive knowledge of the
violation of his rights and failed to take action in the face of such knowledge.
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Plaintiff’s reliance on Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001), is misplaced, as
that case involved an exploration of the meaning of deliberate indifference under the Eighth
Amendment. Plaintiff fails to recognize that there are different deliberate indifference standards
for establishing a substantive Eighth Amendment violation and for imposing supervisory or
municipal liability for another’s constitutional violation, which Plaintiff seeks to do in this case.
See Farmer v. Brennan, 511 U.S. 825, 840-41 (1994) (explaining that “the proper standard for
determining when a municipality will be liable under § 1983 for constitutional wrongs does not
turn on any underlying culpability test that determines when such wrongs have occurred”).
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The Second Amended Complaint does not allege facts that would support the conclusion
that Zangaro was aware of a “pattern of inappropriate sexual behavior” by Lellock. Nor do
Plaintiff’s conclusory allegations permit an inference that sexual abuse would be the plainly
obvious result of Lellock’s removal of students from Meyers-Jeffrey’s classroom. At most,
Plaintiff has alleged that Zangaro was negligent in failing to recognize the risk of harm posed by
Lellock’s behavior—and even that is a stretch because Plaintiff pleads nothing more than legal
conclusions. See, e.g., Second Am. Compl. ¶ 55 (“The Plaintiff believes, and therefore avers,
that Defendant Zangaro knew, suspected, and/or should have known that Lellock’s removal of
him from classrooms by Defendant Lellock would result in a substantial possibility that his civil
rights would be violated.”). Such allegations are insufficient to establish supervisory liability.
See Thomas v. Bd. of Educ. of Brandywine Sch. Dist., 759 F. Supp. 2d 477, 497 (D. Del. 2010)
(“Plaintiff must demonstrate not that Harter knew that driving students home could potentially
lead to sexual abuse, but instead that Harter knew enough to ‘point plainly’ toward ongoing
sexual abuse by Holt, or at least a ‘known’ and ‘obvious’ risk that such abuse was practically
certain to happen.”).
For similar reasons, Plaintiff fares no better with his failure-to-train theory.

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supervisory official can be held liable in his individual capacity to the same extent as a
municipality when his failure to train subordinates results in a constitutional violation. See
Sample v. Deicks, 885 F.2d 1099, 1118 (3d Cir. 1989).

Just like the knowledge-and-

acquiescence theory, however, this theory requires Plaintiff to establish deliberate indifference.
Id. Only when a relevant policymaker has “actual or constructive notice that a particular
omission in [a] training program causes [] employees to violate citizens’ constitutional rights,”
may the policymaker “be deemed deliberately indifferent if [he] choose[s] to retain that

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program.” Connick, 131 S. Ct. at 1360 (citation omitted). Typically, a plaintiff must point to “a
pattern of similar constitutional violations” committed in the past “by untrained employees . . . to
demonstrate deliberate indifference for purposes of failure to train.” Id. (citation omitted).
However, “in a narrow range of circumstances, a pattern of similar violations might not be
necessary to show deliberate indifference.” Id. at 1361 (internal quotation marks omitted). In
such case, a plaintiff must show that “it was ‘highly predictable’” that a failure to adopt specific
training would lead to violations of citizens’ civil rights. Id. at 1365.
In this case, Plaintiff has failed to allege that Zangaro had final policymaking authority
with regard to the training of teachers. See Santiago, 629 F.3d at 135 n.11 (While decision
whether someone “is a final policymaker is ultimately a legal rather than a factual question []
that does not relieve [Plaintiff] of the obligation to plead in some fashion that [Zangaro] had final
policy making authority, as that is a key element of a Monell claim.”). Even assuming that he
did, Plaintiff’s conclusory allegations are insufficient to establish that Zangaro was actually or
constructively aware of a pattern of constitutional violations, which would suggest the need to
alter the teachers’ training on the purported policy.5 Furthermore, this is not one of the rare
“single-incident” cases, in which the need for training was so obvious that a prior pattern of
violations need not be shown. See Connick, 131 S. Ct. at 1361 (citation omitted). The facts (as
opposed to legal conclusions) alleged in the Second Amended Complaint do not suggest that it
was “so predictable that failing to train” teachers on the policy that purportedly prohibited school
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Insofar as Plaintiff might argue that he has established a pattern of violations by alleging that
other students were being pulled out of Meyers-Jeffrey’s class room and being abused by
Lellock, this argument would fail. All of this conduct was allegedly occurring at approximately
the same time as the alleged abuse of Plaintiff was occurring, and the Supreme Court has
instructed that evidence of contemporaneous or subsequent conduct is irrelevant in failure-totrain cases because it does not “provide notice . . . and the opportunity to conform to
constitutional dictate.” Connick, 131 S. Ct. at 1360 n.7 (citing Canton v. Harris, 489 U.S. 378,
395 (1989)).
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police officers from removing students from classrooms would result in the violation of students’
constitutional rights. Id. at 1365 (emphasis in original). The Court reaffirms what it said in its
prior Memorandum Opinion:
A teacher’s decision to permit school police officers to remove students from
classrooms does not inherently threaten the students’ welfare. There may be
instances where a school police officer has a legitimate reason to take a student
out of the classroom. Thus, it cannot be said that sexual abuse of students was the
plainly obvious consequence of permitting school police officers to remove
students from classrooms upon request.
ECF No. 30 (citing Douglas v. Brookville Area Sch. Dist., 836 F. Supp. 2d 329, 364 (W.D. Pa.
2011)). Accordingly, Plaintiff has again failed to plead a plausible theory of recovery against
Zangaro. The claim against him, in his official and individual capacities, will be DISMISSED
with prejudice.
IV. Conclusion
Based on the foregoing reasons, the motion to dismiss will be GRANTED. Plaintiff has
had three opportunities to attempt to plead a valid theory of recovery against school district
employees and the school district for Lellock’s violation of Plaintiff’s Fourteenth Amendment
rights. He has failed to do so. No further amendments will be permitted, as they would be futile.
An appropriate Order follows.
McVerry, J.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID JANKOWSKI,
Plaintiff,
v.
ROBERT LELLOCK, LYNN MEYERSJEFFREY, and RONALD ZANGARO,
individually and in their official capacities,
Defendants.

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ORDER OF COURT
AND NOW, this 17th day of March 2014, in accordance with the foregoing
Memorandum Opinion, it is hereby ORDERED, ADJUDGED, and DECREED that the
MOTION TO DISMISS COUNTS II & III OF THE SECOND AMENDED COMPLAINT (ECF
No. 36), filed by the Defendants Lynn Meyers-Jeffrey and Ronald Zangaro, individually and in
their official capacities, is GRANTED.

IT IS FURTHER ORDERED that the caption of this action is hereby amended as
follows:

DAVID JANKOWSKI,
Plaintiff,
v.
ROBERT LELLOCK,

Defendant.

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Defendant Robert Lellock shall file a responsive pleading to Plaintiff’s Second Amended
Complaint on or before March 31, 2014.
BY THE COURT:
s/Terrence F. McVerry
United States District Judge

cc:

Gary M. Lang, Esquire
Email: [e-mail]
Amanda B. Kraft, Esquire
Email: [e-mail]
Justin T. Papciak, Esquire
Email: [e-mail]
Counsel for Plaintiff
Stacey F. Vernallis, Esquire
Email: [e-mail]
Ira Weiss, Esquire
Email: [e-mail]
Matthew Fergus, Esquire
Email: [e-mail]
Counsel for Defendants Meyers-Jeffrey and Zangaro