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FENTON v. STEAR

November 29, 1976

Jeffrey Lynn FENTON, Plaintiff,
v.
Donald STEAR et al., Defendants



The opinion of the court was delivered by: MARSH

 In this civil rights action brought under 42 U.S.C. § 1983 the plaintiff Jeffrey Lynn Fenton, a former high school student, sues the defendants individually and as officials of the Marion Center Area School District in Indiana County, seeking injunctive relief, compensatory and punitive damages, an apology from the defendants, expunction of his disciplinary record, recovery of costs and a reasonable attorney's fee. He also invokes pendent jurisdiction to consider claims arising under the laws of Pennsylvania and demands a jury trial.

 The defendants, Donald Stear, a teacher at the Marion Center High School; Everett Dembosky, the Vice Principal; Robert Stewart, the Principal; John Mallino, the Superintendent of the Marion Center Area School District and Theodore Banks, the President of the School Board, filed motions to dismiss.

 It is axiomatic that a complaint should not be dismissed unless it appears without doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief, Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 31 L. Ed. 2d 263; Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80; Frederick Hart & Co., Inc. v. Recordgraph Corporation, 169 F.2d 580, 581 (3rd Cir. 1948); and the allegations of the complaint and the inferences to be drawn therefrom must be taken most strongly in favor of the plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969); Valle v. Stengel, 176 F.2d 697, 701 (3rd Cir. 1949). With these principles in mind, it is our opinion that the motions to dismiss should be granted and the complaint dismissed for failure to state a claim upon which relief can be granted.

 The complaint in 49 paragraphs alleges highly specific facts which are required in an action for damages under the Civil Rights Acts. Pugliano v. Staziak, 231 F. Supp. 347, 349 (W.D.Pa.1964), aff'd 345 F.2d 797 (3rd Cir. 1965); United States, ex rel. Hoge v. Bolsinger, 211 F. Supp. 199, 201 (W.D.Pa.), aff'd 311 F.2d 215 (3rd Cir. 1962).

 The plaintiff states the facts and inferences to be drawn therefrom most strongly in his favor in his brief from which we quote.

 "On Sunday evening, May 16, 1976, the Plaintiff was sitting in a car with some friends at North Plaza, a shopping center situated in Indiana, Pennsylvania, a community several miles from the Marion Center High School where the Plaintiff attended school and the Defendant, Donald Stear, is employed as a teacher. During the time that the Plaintiff was sitting in the car, the Defendant, Stear, passed him by in an automobile. One of the Plaintiff's friends stated, 'There's Stear.' The Plaintiff replied, obviously loud enough for the Defendant, Stear, to hear. 'He's a prick.'

 "At or about 8:00 A.M. on May 17, 1976, the Plaintiff reported to Marion Center High School at the usual time, whereupon he was confronted by the Defendant, Viceprincipal Everett Dembosky, with the facts of the occurrence of the previous evening. These facts had been reported to the Defendant, Principal Robert Stewart, by the Defendant, Stear. Stewart in turn related the facts to Dembosky. The Plaintiff did acknowledge that he in fact referred to the Defendant, Stear, by the above stated name. The Defendant, Dembosky, informed the Plaintiff that as of that moment he was under a three-day in-school suspension, which required that the Plaintiff attend school, but not participate in classroom activities or in any other extra-curricular activities. In other words, the Plaintiff was forced to sit alone in a small classroom, nicknamed 'the jail,' for the entire length of a school day for the duration of his suspension without receiving any instruction. He was supervised or 'guarded' by different teachers who happened to be assigned for that duty." *fn1"

 "The Plaintiff was further informed at that time that he would not be allowed to participate in the senior class trip, for which all of the seniors had been planning for the entire year, and which was to take place on the following day, May 18, 1976, to the Downingtown Inn near Philadelphia, where the students would be given the opportunity to visit historic sites in this, the Bicentennial year. The Defendant, Dembosky, informed the Plaintiff that this would be the full extent of punitive action taken against him.

 "On that same morning, May 17, 1976, at 8:30 A.M. the Defendant, Dembosky, telephoned the Plaintiff's home and spoke to the Plaintiff's father, James Fenton. He informed him of his son's actions and the disciplinary action taken against him.

 "At 4:00 P.M. on the same day, the Defendant, Dembosky, again called the Plaintiff's home and spoke to the Plaintiff's mother, Janice Fenton, and explained to her that the Plaintiff would receive a three-day in-school suspension and that the Plaintiff's senior class trip would be denied him. This, he informed her would be the total of the disciplinary action taken against the Plaintiff.

 "At or about 5:30 P.M. of that same day, the Plaintiff's mother telephoned the Defendant, John Mallino, Superintendent of the Marion Center Area School District, to question him about the disciplinary action taken against the Plaintiff and the right of the Defendant, Stewart, to take the action that he did. The Plaintiff's mother was informed by Mallino that the action of the Plaintiff was covered by school policy, and that he would not reverse the disciplinary action taken by the Defendant, Stewart.

 "At or about 7:30 P.M. that same evening, Banks returned the call and after discussing the problem stated that the matter of the discipline taken against the Plaintiff would be discussed at the School Board meeting in terms of an offer of apology by the Plaintiff to the Defendant, Stear, in return for the senior class trip. During the course of the telephone conversation, Banks stated that after the matter had been discussed at the School Board meeting the Plaintiff and his parents would be called for the purpose of informing them of the decision of the School Board Directors.

 "By 1:30 A.M. on May 18, 1976, the Plaintiff and his parents had heard nothing from the School Board Directors, so the Plaintiff's father went to the School Board meeting. When he arrived at the meeting, he was informed that the matter of the discipline taken against the Plaintiff had been discussed for a period of more than an hour, and that because the Plaintiff had admitted to referring to the Defendant, Stear, by the name so stated, it was within the ...


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