On Appeal from the United States District Court for the Western District of Pennsylvania (ERIE) (D.C. Civil No. 87-00063 E). Originally Argued February 3, 1988; Decided September 12, 1988; Certiorari Granted March 6, 1989; On Remand from the Supreme Court of the United States March 6, 1989.
Sloviter, Stapleton, and Mansmann, Circuit Judges
This case is before us on remand from the United States Supreme Court which vacated our judgment and remanded for further consideration in light of DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989). This case was originally heard on the appeal of the individual defendants from the denial by the district court of their motion for summary judgment on the grounds of qualified immunity. We affirmed, rejecting the defendants' contention that they were not alleged to have violated plaintiff's clearly established right. Stoneking v. Bradford Area School Dist., 856 F.2d 594 (3d Cir. 1988) (Stoneking I), vacated sub nom. Smith v. Stoneking, 489 U.S. 1062, 109 S. Ct. 1333, 103 L. Ed. 2d 804 (1989). It is now incumbent upon us to reconsider that decision.*fn1
Kathleen Stoneking filed suit under 42 U.S.C. § 1983 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 School District. Each of the individual defendants was sued in both his individual and official capacity. Stoneking prayed for relief in the form of compensatory and punitive damages against Shuey, Smith, Miller and the School District.
Stoneking's complaint alleged that Edward Wright, a School District employee who was the Band Director at Bradford High, used physical force, threats of reprisal, intimidation and coercion to sexually abuse and harass her and to force her to engage in various sexual acts beginning October 1980, when she was a high school student, and continuing through Stoneking's sophomore, junior and senior years until her graduation in 1983 and thereafter until 1985. Defendants concede that some of these acts occurred in the band room at the high school and on trips for band functions, as well as in Wright's car and in his house while Stoneking baby-sat or after he gave her a music lesson. Wright was ultimately prosecuted for various sex-related crimes and pled guilty.
Stoneking averred that in 1979, before Wright's actions toward her, another female member of the band informed Smith that Wright had attempted to rape or sexually assault her; that Smith, in his capacity as principal, maintained a personal file on Wright which contained reports of complaints of sexual misconduct by female students in the band program; that Smith announced to Wright a "policy" with respect to his contact with female students under which he was to have no further "one on one" contacts with female band members; that Smith, Miller and Shuey "failed to take any action to protect the health, safety and welfare of the female student body" and Stoneking, App. at 10; that Miller and Shuey were also on notice of the complaints of sexual misconduct by Wright and of the policy adopted by Smith under which Wright was to have no one-on-one conduct with female band members, or, if Shuey was not aware, it was because of "the defective and deficient policies and customs" of the School District, App. at 11; and that Wright threatened his victims that if they reported his actions they would incur "loss of parental support, the esteem of friends and the dissolution of the school band which had become . . . a significant institution to the School District and the community in general," App. at 12.
After discovery in this case and in cases filed by other students who alleged they were also sexually abused by Wright, defendants moved for summary judgment in the actions against them in their individual capacities on the basis of qualified immunity. As we explained in our earlier opinion, defendants 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." See 856 F.2d at 596.
The district court denied the defendants' motion for summary judgment, holding that there was evidence from which a jury could conclude that defendants were reckless in their handling of an incident of abuse which had been reported to Smith in 1979, in their failure to investigate other reported incidents involving Wright and other female students, and in their attempts to remedy and/or rectify the problems involving Wright. Stoneking v. Bradford Area School Dist., 667 F. Supp. 1088, 1098 (W.D. Pa. 1987).
On appeal, defendants argued that they were entitled to qualified immunity because they had no clearly established duty to protect Stoneking, and therefore there was no basis upon which a violation of 42 U.S.C. § 1983 could be predicated. We rejected that contention, holding that under the applicable state law a special relationship arose between the school officials and students entrusted to their care, and that the Pennsylvania child abuse reporting and in loco parentis statutes, coupled with the broad common law duty of officials to students, evidenced a desire on the part of the state to provide affirmative protection to students. 856 F.2d at 603. Defendants now argue that the Supreme Court's decision in DeShaney controls our decision and mandates a holding that the school authorities owed no constitutional duty of protection to Stoneking.
In DeShaney, the Court held that a minor could not maintain an action against Winnebago County, its Department of Social Services, and various individual employees of the Department for injuries he received at the hands of his father, even though the county caseworker returned DeShaney to the father's custody and allegedly knew or should have known of the risk of violence to him at his father's hands. The Court's analysis was straightforward: it held that "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." 109 S. Ct. at 1004. It rejected the analysis adopted by, inter alia, this court in Estate of Bailey by Oare v. County of York, 768 F.2d 503, 510-11 (3d Cir. 1985), that under similar circumstances a "special relationship" arose between the state and the child which imposed an affirmative constitutional duty to provide adequate protection.
The Court held that because there was no constitutional duty on the state to provide its citizens with particular protective services, "the State cannot be held liable under the [Due Process] Clause for injuries that could have been averted had it chosen to provide them." 109 S. Ct. 1004 (footnote omitted). It distinguished DeShaney's situation from those "limited circumstances [in which ] the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals." 109 S. Ct. at 1004-05. It stated that prior cases stood only for the proposition that, "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being," 109 S. Ct. at 1005-06 (citing Youngberg v. Romeo, 457 U.S. 307, 317, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) (state must provide involuntarily committed mental patients with services necessary to insure their reasonable safety), and Estelle v. Gamble, 429 U.S. 97, 103-04, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976) (prison authorities must treat medical needs of an inmate)).
In light of the Supreme Court's discussion in DeShaney distinguishing between affirmative duties of care and protection imposed by a state on its agents and constitutional duties to protect, we can no longer rely on the statutory and common law duties imposed in Pennsylvania on school officials as the basis of a duty to protect students from harm occurring as a result of a third person.
Arguably, our earlier discussion noting that "students are in what may be viewed as functional custody of the school authorities" during their presence at school because they are required to attend under Pennsylvania law, see 856 F.2d at 601 (citing 24 Pa. Stat. Ann. § 13-1327 (Purdon Supp. 1988)), is not inconsistent with the DeShaney opinion. In DeShaney, the Court stated that "[h]ad the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect." 109 S. Ct. at 1006 n.9. The Court then explicitly referred to court of appeals cases holding, by analogy to Estelle and Youngberg, "that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents," but expressed no view on the validity of this analogy. Id. (citing Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141-42 (2d Cir. 1981); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-97 (11th Cir. 1987) (en banc), cert. denied, 489 U.S. 1065, 109 S. Ct. 1337, 103 L. Ed. 2d 808 (1989)).
The situation of school children, compelled by state law to attend school, who are physically mistreated by School District employees, may not be dissimilar to that of children in foster homes mistreated by their foster parents. However, we prefer not to rest our decision again on an affirmative duty to protect such students in this situation because the uncertainty of the law in this respect may cause further delay. We are advised that the trial of this case against the School District and the defendants in their official capacities has been held up during the pendency of the appeal by defendants on the denial of their motion for summary judgment on the claims against them in their individual capacities. Therefore, we believe it is more expedient to decide whether plaintiff's claim before us would withstand summary judgment even if we could not rely on the special relationship which the Supreme Court's footnote in DeShaney may still leave as a viable basis for liability.
The principal distinction between DeShaney's situation and that of Stoneking is that DeShaney's injuries resulted at the hands of a private actor, whereas Stoneking's resulted from the actions of a state employee. The significance of the status of the perpetrator as a private actor rather than as a state official is referred to on numerous occasions in the DeShaney opinion. Not only is the Court's statement of the holding in terms of the identity of the actor ("a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause," id. at 1004), but the analytic steps taken by the Court to reach that holding continuously take note of the status of the person responsible for the injuries. See, e.g., "nothing in the language of the Due Process Clause itself requires the state to protect the life, liberty and property of its citizens against invasion by private actors ;" the Due Process Clause "forbids the State itself to deprive individuals of life, liberty or property without 'due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to insure that those interests do not come to harm through other means ;" the purpose of the Due Process Clause "was to protect the people from the State, not to insure that the State protected them from each other." 109 S. Ct. at 1003 (emphasis added).
Unlike DeShaney's father, who was referred to throughout the DeShaney opinion as a private third party, Wright was a school district employee subject to defendants' immediate control. In fact, many of Wright's interactions with Stoneking occurred in the course of his performance of his official responsibilities, ...