MONTANO v. TRINITY AREA SCHOOL DISTRICT

Filing 15

MEMORANDUM ORDER OF COURT GRANTING 6 Defendant's Motion to Dismiss for Lack of Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and DENYING AS MOOT Defendant's Motion to Dismiss for Failure to State a Claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The Clerk of Court shall mark this CASE CLOSED. Signed by Judge Arthur J. Schwab on 08/26/2015. (lcb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RITA MONTANO,
Plaintiff,

15cv0689
ELECTRONICALLY FILED

v.
TRINITY AREA SCHOOL DISTRICT,
Defendant.

MEMORANDUM ORDER OF COURT RE: DEFENDANT’S MOTION TO DISMISS
PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(B)(1) AND 12(B)(6)
(DOC. NOS. 6 and 9)
I. Introduction
This case centers on actions allegedly taken by Trinity Area School District
(“Defendant”) against Plaintiff, Rita Montano (“Plaintiff”), which Plaintiff contends violated her
right to free speech as provided by the First Amendment to the United States Constitution and
violated the Equal Protection Clause of the Fourteenth Amendment. Doc. No. 1. Plaintiff seeks
compensatory and punitive damages, as well as injunctive relief. Id. Jurisdiction is premised on
28 U.S.C. §§ 1331 and 1343. Id.
Defendant moves this Court to dismiss Plaintiff’s Complaint in its entirety based upon
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. No. 6.1
II. Statement of Facts
The following is the statement of this case, taken as true from Plaintiff’s Complaint
solely for the purposes of this Memorandum Order:

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Defendant’s Motion to Dismiss was originally filed at Doc. No. 6 and was re-filed at Doc. No. 9 to add
an attorney signature. Therefore, although the two documents are substantively the same, the Court will
refer to both documents when referring to the pending Motion to Dismiss. Doc. Nos. 6 and 9.

Plaintiff is the mother of four children who attend schools within the Trinity Area School
District. Doc. No. 1, ¶¶ 5, 21. One of Plaintiff’s children, a son, is a student at Trinity
Elementary School. Id. at ¶ 5. Plaintiff is divorced from her son’s father, who has remarried.
Id. at ¶ 7. Plaintiff customarily attended her son’s activities at the school and, for a time, her
son’s step-mother was also involved in the children’s school activities. Id. at ¶¶ 6-7.
On May 27, 2014, Plaintiff complained to the school that her son’s step-mother should
not be permitted to enter the school or be involved in school activities because there was a Court
Order to that effect. Id. at ¶ 8. Three days later, in retaliation for Plaintiff’s complaints, Dr.
Tully, an employee of Trinity Area School District accused Plaintiff of stealing and copying
files. Id. at ¶¶ 9, 13. Although not set forth in the Complaint itself, it appears that Plaintiff was advised
by the school’s principal that she was not allowed to enter the school because she had photographed/taken
a copy of the parent sign-in-sheet in the office without the principal’s authorization. See Doc. No. 1-2 to
1-4. Plaintiff was informed that she was not permitted to volunteer for any school activities or

enter the school, except to pick-up her children for doctor’s appointments or other medical
emergencies. Id. Plaintiff’s exclusion was reported to the PTA and has been enforced, without
any opportunity to address the ban. Id. at ¶¶ 11, 22. The ban has had a negative impact on
Plaintiff’s dealings with other parents and the wider community. Id. at ¶ 20. No other parent has
been similarly barred from attending a child’s activities. Id. at ¶ 14.
III. Standard of Review
A. Rule of Civil Procedure 12(b)(1)
A Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges this
Court’s “very power to hear the case.” See Judkins v. HT Window Fashions Corp., 514 F. Supp.
2d 753, 759 (W.D. Pa. 2007) (Lancaster, J.), quoting Mortensen v. First Fed. Sav. & Loan Ass’n,
549 F.2d 884, 891 (3d Cir. 1977)). As the party asserting jurisdiction, Plaintiff “bears the burden
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of showing that its claims are properly before the district court.” Development Finance Corp. v.
Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995). In reviewing a Motion to
Dismiss pursuant to Rule 12(b)(1), this Court must distinguish between facial attacks and factual
attacks. See Petruska v. Gannon Univ., 462 F.3d 294, 302 n. 3 (3d Cir. 2006).
A facial attack challenges the sufficiency of the pleadings, and the Court must accept the
Plaintiff's allegations as true. Id. A Defendant who attacks a complaint on its face “[asserts] that
considering the allegations of the complaint as true, and drawing all reasonable inferences in
favor of [plaintiff], the allegations of the complaint are insufficient to establish a federal cause of
action.” Mullen v. Thompson, 155 F.Supp.2d 448, 451 (W.D. Pa. 2001) (Lancaster, J.).
Dismissal is proper under Rule 12(b)(1) only when “the claim clearly appears to be immaterial
and made solely for the purpose of obtaining jurisdiction or. . . is wholly insubstantial and
frivolous.” Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991), quoting
Bell v. Hood, 327 U.S. 678, 682 (1946)).
When a Defendant launches a factual attack on subject matter jurisdiction, “no
presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material
facts will not preclude the trial court from evaluating for itself the merits of jurisdictional
claims.” Petruska, 462 F.3d at 302, quoting Mortenson, 549 F.2d at 891. In a factual attack, this
Court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits,
documents, and even limited evidentiary hearings. See United States ex rel. Atkinson v. Pa.
Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).
B. Rule of Civil Procedure 12(b)(6)
In considering a Rule 12(b)(6) motion, Federal Courts require notice pleading, as
opposed to the heightened standard of fact pleading. Fed. R. Civ. P. 8(a)(2) requires only “‘a

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short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to
‘give the defendant fair notice of what the . . . claim is and the grounds on which it rests.’” Bell
Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007), quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
Building upon the landmark United States Supreme Court decisions in Twombly and
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Court of Appeals for the Third Circuit
explained that a District Court must undertake the following three steps to determine the
sufficiency of a complaint:
First, the court must take note of the elements a plaintiff must plead to state a
claim. Second, the court should identify allegations that, because they are no more
than conclusions, are not entitled to the assumption of truth. Finally, 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.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013) (citation omitted).
The third step of the sequential evaluation requires this Court to consider the specific
nature of the claims presented and to determine whether the facts pled to substantiate the claims
are sufficient to show a “plausible claim for relief.” Covington v. Int’l Ass’n of Approved
Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013). “While legal conclusions can provide the
framework of a Complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at
664.
This Court may not dismiss a Complaint merely because it appears unlikely or
improbable that Plaintiff can prove the facts alleged or will ultimately prevail on the merits.
Twombly, 550 U.S. at 563 n.8. Instead, this Court must ask whether the facts alleged raise a
reasonable expectation that discovery will reveal evidence of the necessary elements. Id. at 556.
Generally speaking, a Complaint that provides adequate facts to establish “how, when, and

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where” will survive a Motion to Dismiss. Fowler v. UPMC Shadyside, 578 F.3d 203, 212 (3d
Cir. 2009).
In short, a Motion to Dismiss should not be granted if a party alleges facts, which could,
if established at trial, entitle him/her to relief. Twombly, 550 U.S. at 563 n.8.
IV. Discussion
Plaintiff, in her Complaint, has alleged that Defendant is liable pursuant to 42 U.S.C. §
1983 for violating: (1) the Equal Protection Clause of the Fourteenth Amendment (Count I); and
(2) her First Amendment right to free speech (Count II). Doc. No. 1. Section 1983 does not
confer substantive rights or create jurisdiction, but rather jurisdiction arises under other statutes if
there is a violation of a federal constitutional rights. This Court’s jurisdiction to hear claims
under the United States Constitution or federal laws is premised on 28 U.S.C. §§ 1331 and 1443.
Defendant moves this Court to dismiss both claims pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Doc. Nos. 6 and 9.
A claim under section 1983 requires that plaintiff assert: (1) the violation of a right
secured under the United States Constitution or laws of the United States; and (2) the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S.
42, 48 (1988). Jurisdiction is a threshold issue and, as such, the Court will first address
Defendant’s motion pursuant to Federal Rule of Civil Procedure 12(b)(1).
Defendant contends that subject matter jurisdiction is not appropriate in this forum
because Plaintiff has failed to advance a substantial federal claim against Defendant and, as such,
Plaintiff’s claims must be dismissed. The exercise of jurisdiction is limited when claims are “so
attenuated and unsubstantial as to be absolutely devoid of merit[.]” Hagans v. Lavine, 415 U.S.
528, 536 (1974), quoting Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 (1904).

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Here, the key determination is whether Plaintiff’s ban from participating in volunteer activities at
the school violated her Constitutional rights.
Defendant relies on a 1999 case from the United States Court of Appeals for the Fourth
Circuit and more recent cases from the United States District Courts for the Eastern District of
North Carolina and the Northern District of Oklahoma for the proposition that District Courts do
not have subject matter jurisdiction for claims brought by parents who were banned from school
property who allege violations of constitutional rights. Lovern v. Edwards, 190 F.3d 648 (4th
Cir. 1999); Justice v. Farley, No. 5:11-cv-99-BR, 2012 WL 83945 (E.D.N.C. Jan. 11, 2012)
(dismissing a pro se Plaintiff’s claims where the plaintiff failed to allege that he was treated
differently than other parents (Equal Protection claim) and did not identify a violation of his right
to freedom of speech where he was banned from school property unless written authorization
was given); Mayberry v. Independent Sch. Dist. No. 1 of Tulsa County, Okla., No. 08-cv-416GKF-PJC, 2008 WL 5070703 (N.D. Okla. Nov. 21, 2008) (dismissing a mother’s claims for
violation of Constitutional rights where she was banned from school property for five weeks
after she looked into a classroom to check on her friend’s child).
After a review of Plaintiff’s Complaint to determine if the minimal evidentiary
jurisdiction threshold has been met, the Court finds that Plaintiff has not demonstrated that she
has a cognizable claim for relief against Defendant because the actions that allegedly create
liability do not rise to the level of a violation of any of Plaintiff’s rights protected by the United
States Constitution. Both Courts of Appeal and District Courts within the United States Court of
Appeals for the Third Circuit have found that a school district does not violate the constitutional
rights of a parent who is banned from school property. See Cole v. Montague Board of
Education, 145 Fed.Appx. 760, 762-63 (3d. Cir. 2005)(Court upheld the District Court’s

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dismissal of a complaint by two parents where the plaintiffs alleged that their due process rights
were violated when they were “‘illegally banned’” from school property as the “contention
plainly lacks merit”), citing Lovern, 190 F.3d 648; Cunningham v. Lenape Regional High Dist.
Bd. of Educ., 492 F.Supp.2d 439 (D.N.J. Jun. 25, 2007) (Judge dismissed Plaintiff’s claim
pursuant to 42 U.S.C. § 1983 for violation of his First Amendment right to free speech based on
Plaintiff’s complaints against coaching staff and the school’s subsequent limited ban from the
high school’s property, recognizing that “school officials are well within constitutional bounds in
limiting access to school property where it is necessary to maintain tranquility.”).2
The Court agrees with the reasoning set forth in these opinions and echoes the sentiment
that United States District Courts are improper venues to resolved disputes as to the daily
operation of the nation’s schools. Cunningham, 492 F.Supp.2d at 450, citing Epperson v.
Arkansas, 393 U.S. 97, 104 (1968) (“In the education context, courts - especially federal ones are not the appropriate forum for resolving daily conflicts arising from the operation of school
systems.”). The public has a right to have its schools, which have substantial obligations to
provide for the education, safety, and socialization of each community’s children, run without
the threat of litigation and outside interference in day-to-day decisions. In this case, Plaintiff’s
displeasure with the principal’s decision to limit her access to school property because of her

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The Court recognizes that a school is able to restrict peaceful communication through reasonable
measures when it interferes with “vital governmental facilities” and notes that Plaintiff has not alleged
any restriction on her freedom of speech while at the school or any future restriction on her freedom of
speech beyond the school’s restriction on her physical presence on school property. See Cunningham,
492 F.Supp.2d at 448-49 (“The Constitution does not leave the government powerless to protect against
disruptive conduct, even speech, in public places such as schools ‘that require peace and quiet to carry out
their functions’” ), citing Carey v. Brown, 447 U.S. 455, 470-71 (1980).
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expressed displeasure as to the involvement of her children’s step-mother in school activities,
does not establish federal jurisdiction.3
As the Court has found that there is no subject matter jurisdiction over Plaintiff’s claims
in this forum, Plaintiff’s Complaint must be dismissed with prejudice.4 Defendant’s further
arguments in support of its Motion to Dismiss need not be addressed.
V. Conclusion/Order
AND NOW, this 26th day of August, 2015, IT IS HEREBY ORDERED THAT
Defendant Trinity Area School District’s Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(1) (Doc. Nos. 6 and 9) is GRANTED. Defendant’s Motion to Dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(6) is DENIED AS MOOT.
The Clerk of Court shall mark this CASE CLOSED.

s/ Arthur J. Schwab
Arthur J. Schwab
United States District Judge

cc:

All Registered ECF Counsel and Parties

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The Court’s dismissal of Plaintiff’s claims is not meant to diminish the emotional effect of the ban on
Plaintiff and her children. The Court encourages Plaintiff, Defendants, and other third-parties to attempt
to resolve their dispute for the best interests of the children involved and without further involvement of
the legal system.
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Given the state of the law on this matter, any amendment of the Complaint would be futile and thus,
Defendant’s Motion to Dismiss will be granted with prejudice. See In re Burlington Coat Factory Sec.
Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (“ . . . a district court may exercise its discretion and deny leave
to amend on the basis of . . . futility.”).
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