On Appeal from the United States District Court for the Western District of Pennsylvania (ERIE) D.C. Civil No. 87-00063 E.
Sloviter, Stapleton, and Mansmann, Circuit Judges. Stapleton, Circuit Judge, dissenting.
This is an appeal by the individual defendants from the district court's order denying their motion for summary judgment on the grounds of qualified immunity in an action brought under 42 U.S.C. § 1983 (1982). We have jurisdiction of this appeal under 28 U.S.C. § 1291 (1982). See Mitchell v. Forsyth, 472 U.S. 511, 530, 86 L. Ed. 2d 411, 105 S. Ct. 2806 (1985); Hynson v. City of Chester, 827 F.2d 932, 933 (3d Cir. 1987), cert. denied, 484 U.S. 1007, 108 S. Ct. 702, 98 L. Ed. 2d 653 (1988). Our review of a grant or denial of summary judgment is plenary and, like the district court, we must view the facts in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); see also Hynson, 827 F.2d at 933.
In Mitchell, the Supreme Court stated that "a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery." 472 U.S. at 526. Defendants agree that in this case we need look only at the pleadings. Appellants' Brief at 5. We turn, therefore, to the allegations of the complaint.
Kathleen Stoneking, during the relevant period a student at the Bradford Area High School, brought this action against the Bradford Area School District, Frederick Smith, the principal of the Bradford Area High School, Richard Miller, the assistant principal, and Frederick Shuey, the superintendent of the Bradford Area School District.
She alleges that the School District hired Edward Wright to serve as its band director in 1976; that during Wright's tenure as band director the band won numerous competitions and Wright enjoyed strong support and backing of the School District and its officials; that a female member of the band informed Principal Smith in 1979 that Wright had attempted to rape and/or sexually assault her but that Smith failed to conduct an investigation or report the allegations to appropriate authorities and instead required the student to issue a public apology to Wright and retract her allegations; that Smith instructed Wright to have no further "one on one" contact with female band members; that plaintiff Stoneking participated in the band during her sophomore, junior and senior years until her graduation in 1983; and that beginning in October 1980 and continuing thereafter until May of 1985, Wright, through physical force, threats of reprisal, intimidation and coercion, sexually abused Stoneking, harassed her, and forced her to engage in various sexual acts with him at various places, including the high school's band room and its environs, Wright's vehicle and house, and on trips for band functions. The complaint also alleges that in March 1986 Wright resigned after a psychologist reported a complaint concerning Wright's sexual abuse of another female band member, and that he was thereafter prosecuted criminally for various sex-related crimes.
Stoneking pleads that there was a special custodial relationship between herself and the defendants, that Smith and Miller had actual notice of the allegations of Wright's sexual misconduct and that Shuey either knew or recklessly failed to discover that Wright was sexually abusing female band members. She alleges that the defendants were intentionally, recklessly and deliberately indifferent to the health, safety and welfare of the female student body in general and the plaintiff in particular in that they failed to report the various incidents of suspected sexual abuse of female band members by Wright; failed to adopt an effective policy or policies to prevent the sexual abuse of female students and to promptly report complaints of such abuse to appropriate authorities; failed to properly and vigorously investigate reports of sexual abuse by Wright of female band members; concealed from parents of female band members and public officials the various complaints and accusations that had been made against Wright since 1979; continued to permit Wright to function as band director despite actual notice that he presented a significant threat; and encouraged and perpetuated the custom and course of conduct at the high school whereby allegations of sexual abuse or mistreatment by Wright and other teachers were not investigated and reported. Stoneking alleges that as a result she suffered severe psychological trauma, including severe depression, loss of self-esteem, mental anguish, embarrassment and humiliation, and she seeks compensatory and punitive damages.
In their answer,*fn1 defendants deny most of the allegations directed to liability but admit that in 1979 Smith questioned a female band member regarding a possible relationship with Wright, allege that the student denied the relationship and said she had fabricated the story, admit that in 1984 Smith directed Wright not to place himself in a one-on-one situation with female students, admit that Superintendent Shuey was advised of the actions taken by Smith with respect to Wright, and admit that Smith had a chronological miscellaneous file with notations concerning matters raised about Wright.
Following some discovery, defendants moved for summary judgment on the ground, inter alia, of qualified immunity.*fn2 They contended that "no clearly settled law existed, either at the time of the incidents complained of in the plaintiff's Complaint or as of the present time, which would cause a reasonable person to know either of the constitutional right which allegedly has been violated or that the alleged acts or failure to act on the part of the individual defendants would lead to a violation of that constitutional right." Defendants' Motion for Summary Judgment, Rovito v. Bradford Area School Dist., No. 86-133 (W.D. Pa.) (filed April 10, 1987).*fn3
The court denied summary judgment on the qualified immunity ground. Stoneking v. Bradford Area School Dist., 667 F. Supp. 1088, 1102 (W.D. Pa. 1987). In its opinion, the court referred to evidence submitted in the cases with which this action was consolidated, see supra note 3,*fn4 including the affidavit of Dr. Chet C. Kent, Superintendent of Keystone Oaks School District, which stated that the policies adopted by the defendants for dealing with suspected cases of sexual assault or sexual harassment deviated significantly from the norm. 677 F. Supp. at 1097-98. The court held that plaintiff had alleged violation of a clearly established constitutional right and that there was evidence by which a jury could conclude that defendants were reckless in their handling of the 1979 incident which involved Judy Grove,*fn5 in their failure to investigate other reported incidents involving Wright and female students,*fn6 and in their attempts to remedy and/or rectify the problems involving Wright.*fn7 The court held that in light of the above, the issue of liability is one for the jury to decide.
Although, as we noted above, ordinarily qualified immunity can be determined on the basis of the pleadings, the Supreme Court has recognized, as do our cases, that there may be instances in which discovery may be necessary before a motion for summary judgment on qualified immunity grounds can be resolved. See Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3042, 97 L. Ed. 2d 523 n.6 (1987); see also Brown v. United States, 851 F.2d 615, 617 (1988) (record insufficiently developed on qualified immunity issue); Kovats v. Rutgers, 822 F.2d 1303, 1313 (3d Cir. 1987) (legal issues on the qualified immunity question "inextricably intertwined" with the factual issue requiring discovery before determination of qualified immunity issue).
In this case, however, defendants are content to stand on the pleadings. The basis for their claim of immunity was that Stoneking did not have a clearly established right to be free from the sexual abuse of Wright, a member of the school's staff, that they were under no clearly established duty to protect her, and that, in any event, they could not reasonably have known that their conduct might violate any of Stoneking's constitutional rights. Because this argument is premised on the assumption that the facts alleged by Stoneking in her complaint are true, we can evaluate the district court's denial of summary judgment on the qualified immunity issue without consideration of the facts adduced on summary judgment, and refer to those facts only to the extent that they amplify the allegations of the complaint.
The doctrine of qualified immunity entitles government officials performing discretionary functions to immunity from liability for civil damages when their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The question before us is whether reasonable school officials in the position of defendants and with the information then available to them should have known that their alleged actions or omissions were unlawful. See Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 3040, 97 L. Ed. 2d 523 (1987) (qualified immunity issue is ...