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August 29, 1988

BRADFORD AREA SCHOOL DISTRICT; FREDERICK SMITH, in his individual and official capacity as Principal of the Bradford Area High School; RICHARD MILLER, in his individual and official capacity as Assistant Principal of the Bradford Area High School; and FREDERICK SHUEY, in his individual and official capacity as Superintendent of the Bradford Area School District, Defendants

The opinion of the court was delivered by: MENCER


 This is a civil rights action brought under 42 U.S.C. § 1983 [§ 1983] by a former Bradford high school student, Judy Grove Sowers, against the Bradford Area School District ["school district"], the school district's superintendent, Frederick Shuey, and the high school's principal and assistant principal, Frederick Smith and Richard Miller. This is the third suit filed against these same defendants by former female students. This case centers on a June 16, 1979 sexual assault upon the plaintiff, then a high school student and member of the marching band by the band director, Edward Wright.

 Count I of the complaint is against the school district and alleges that there existed a pernicious practice, custom and/or policy, prior and subsequent to the assault by Wright, of reckless indifference to and/or active concealment of instances of known or suspected sexual abuse of students by teachers. It further alleges that this created a climate wherein child abusers, such as Wright, could prey upon female students with impunity. The complaint alleges that the School District's conduct was a proximate cause of a deprivation of the plaintiff's constitutional rights to freedom from sexual abuse and free access to the courts unimpeded by threats, coercion or intimidation, as well as severe mental anguish, embarrassment, humiliation and emotional distress.


 At the heart of this suit is the allegation that on June 16, 1979, Sowers, *fn1" a member of the school marching band, was sexually molested by Edward Wright, the band director. *fn2" Wright had been hired by the school district in 1976, with responsibility to supervise band activities and provide music lessons to students. Prior to 1976, Wright had been the band director in the Jasper School District, where the complaint alleges he "had attempted to sexually molest and/or harass various female students." Complaint at par. 20. The complaint alleges that the defendants had been on notice of Wright's proclivities with respect to female students prior to the June, 1979 assault, although the complaint does not detail how it was that they had been put on such notice. Complaint at par. 26(c).

 Sower's complaint asserts that Wright's assault on her was just one in a series of incidents in which the defendants, although informed by female students of sexual abuse by teachers, took no action except to conceal the problem. The complaint alleges that prior to the June 16, 1979 assault, during the 1977-78 school year, a female senior informed defendants Smith and Miller that a history teacher (and coach of the girls' tennis team) had made improper sexual advances toward her in a classroom. Complaint at par. 26(a). Smith and Miller told her not to tell her parents about the incident, and no disciplinary action was pursued against the faculty member. Id. In 1978 and periodically thereafter, Smith, Miller and school district superintendent Shuey were alleged to have received other complaints of sexually abusive language and/or improper sexual advances by a shop teacher. Complaint at par. 26(b). The defendants allegedly pursued no disciplinary action against the shop teacher. Id.

 Edward Wright's sexual assault on Judy Grove Sower's occurred on June 16, 1979. According to her deposition, she went to Wright's house to obtain a tape of marching music. Sowers was a section leader and had to learn the music for summer band practice. She was going away the next day for two weeks, therefore she had to obtain the tape so she could learn the music prior to the commencement of summer band practice. Sowers Deposition at 16. She reported the assault to Gene Dillard, a youth counselor visiting the school at the invitation of the school administration. Complaint at par. 13. Dillard informed Smith and Miller, as well as a school guidance counselor, of the sexual abuse and harassment by Wright. He told them he considered her reports to be truthful. Id. at par. 14. Soon thereafter, Sowers met with Smith and Miller and personally informed them of the sexual assault by Wright. Other meetings were held during the fall and early winter between Sowers, Smith and Miller. Id. at par. 15. The plaintiff alleges that Smith and Miller actively discouraged her from pursuing her remedies in court against Wright "through intimidation, threats and coercion," and indicated that they did not believe her. Id. at par. 16. In January 1980, Smith told Sowers that if she wanted to remain in the school marching band she would have to publicly apologize for having accused Wright of the sexual assault. Id. at par. 17. When Smith had assembled the band members, Sowers did not apologize, instead leaving the band room "in an extremely emotional state." Id. at par. 18.

 The plaintiff's complaint goes on to list numerous instances where female students reported subsequent episodes of sexual abuse by Wright and other male teachers at the Bradford high school to the defendants. Id. at pars. 26(d) - (1). In none of these cases did the defendants pursue disciplinary action against the molesting male teachers beyond issuing an occasional "no one-on-one" directive. For example, in late September or early of 1984, a female band member told her guidance counselor that Wright had attempted to sexually molest her in a vehicle. Id. at par. 26(i). This student also told the counselor that Wright was currently molesting another student and had molested yet another student who had graduated. Id. The accusation was relayed to defendants Smith and Shuey. On December 15, 1984, Smith met with Wright and issued another "no one-on-one" directive, but informed Wright that "no one accused him of any wrongdoing." Id. at par. 26(j). The plaintiff also alleges that Smith maintained a personal, secret file in his desk drawer at home, memorializing many of the complaints. Id. at par. 37. The school administration's alleged toleration of Wright's abuse of female students came to an end in March of 1986 when fresh allegations brought about meetings between school administrators and parents of children who had been assaulted by Wright. Wright was suspended as of March 10, 1986, and later resigned.


 I. Defendants' Motion to Strike Portions of the Complaint

 The defendants' move to strike portions of paragraphs 25 and 26 of the complaint, as well as all of paragraph 20. They assert that paragraphs 25 and 26 "contain immaterial, impertinent and scandalous matters, consisting of allegations of conduct involving teachers other than Plaintiff, students other than Plaintiff, and conduct subsequent to the alleged injury to Plaintiff, all of which has no bearing in any way on the alleged injury to this Plaintiff." Defendants Motion to Dismiss and/or Strike, p. 2. Paragraph 25 mentions no teachers or students at all, thus we do not understand the defendants' reason for striking it, and we will not do so. Paragraph 26 indeed refers to teachers other than Wright, and students other than the plaintiff (albeit these students are referred to by initials, not by name). Because the plaintiff's case depends upon establishing a policy or custom which was adhered to in response to numerous allegations of child abuse by various teachers at the school district, such allegations are relevant to her case. While we agree with the defendants that the conduct described in these allegations could be viewed as scandalous, we do not agree that they are immaterial or impertinent, and we will deny their motion to strike.

 II. Defendants' Motion to Dismiss the Complaint

 The defendants offer a number of grounds for dismissal of the Sowers' complaint against them, allegations the defendants scorn as "impertinent." *fn3" Defendants' Brief in Support at 2; see also Defendants' Motion to Dismiss and/or Strike, p. 2. Defendants argue that the complaint fails to state a claim under § 1983 and that the action is barred by the two-year statute of limitations.

 In order to properly decide the motion to dismiss, it is necessary to analyze the required elements of a cause of action under § 1983, as well as the questions surrounding the limitations period. An analysis of the most salient issues begins with the question of whether the plaintiff's complaint alleges a deprivation of a constitutional right "under color of law." In cases such as this where a plaintiff alleges that the defendants' policy or custom resulted in the failure to carry out an alleged duty to protect the plaintiff, a court must find a "special relationship" between the plaintiff and the state body or official creating a duty to protect. In addition, where a claim is based upon a failure to act by the defendants, a court must consider whether that failure to act: (1) was a substantial factor leading to a violation of a constitutionally protected liberty or property interest; and (2) displayed "deliberate indifference" or "gross negligence" with regard to that violation.

 A. Standard for Deciding a Motion to Dismiss

 A motion to dismiss tests the formal sufficiency of the statement of the claim for relief, addressing itself solely to the failure of the complaint to state a claim for relief. Wright & Miller, Federal Practice And Procedure § 1356 (1987 Supp.). To merit dismissal, the plaintiff's pleading must fail to meet the liberal requirements for pleading a claim set forth in Rule 8(a), which calls for "a short and plain statement of the claim showing that the pleader is entitled to relief." Id.; Fed. R. Civ. P. 8(b). For purposes of the motion to dismiss, the complaint is construed in the light most favorable to the plaintiff and its allegations taken as true. Id. at § 1357. In general, a court has broad discretion in ruling on a motion to dismiss, but dismissal should only be granted with care in order to avoid improperly denying plaintiff the opportunity to have her claim adjudicated on the merits. Id. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support his claims." Estate of Bailey By Oare v. County of York, 768 F.2d 503 (3d Cir. 1985) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974)).

 B. Deprivation of a Constitutional Right "Under Color of State Law "

 To state a claim under § 1983 an individual must allege facts constituting a deprivation of a constitutional right under color of state law. An official's actions are not removed from under color of state law merely because the official acted beyond the scope of the authority granted by state law. Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is taken "under color of" state law. United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941); Doe "A" v. Special School Dist. of St. Louis Co., 637 F. Supp. 1138, 1142 (E.D. Mo. 1986); accord Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). The plaintiff's complaint alleges that there existed a practice, custom and/or policy which caused the deprivation of her constitutional rights. "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 v. New York City Dept. of Soc. Serv., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed. 2d 611, 638 (1978); see also Estate of Bailey by Oare v. County of York, 768 F.2d 503, 506 (3d Cir. 1985). "In an appropriate case, even in the absence of formal agency conduct, an 'official policy' may be inferred 'from informal acts or omissions of supervisory municipal officials.'" Estate of Bailey ...

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