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C.M. v. SOUTHEAST DELCO SCH. DIST.

June 29, 1993

C.M., Plaintiff
v.
SOUTHEAST DELCO SCHOOL DISTRICT, WILLIAM C. DONATO, BRUCE B. MORGAN, LANCESS T. McKNIGHT, PAUL SANBORN, RALPH E. SORRELL, EUGENE DePAUL, and THOMAS SCHELLINGER, Defendants



The opinion of the court was delivered by: BY THE COURT; ROBERT S. GAWTHROP, III

 Gawthrop, J.

 June 29, 1993

 In this case, plaintiff seeks to recover under 42 U.S.C. § 1983 for damages he allegedly incurred as a result of alleged sexual, physical, and verbal abuse by one of his teachers at the Southeast Delco School District. Presently before the court are the motions for summary judgment of all defendants. Upon the following reasoning, I shall deny all the motions except that of defendant Bruce B. Morgan, whose motion I shall grant.

 BACKGROUND

 In his response to defendants' motions for summary judgment, plaintiff summarizes the deposition testimony of a number of witnesses. When examining a motion for summary judgment, the court must view the facts in the light most favorable to the non-moving party. Here, plaintiff is the non-moving party. Therefore, most of the following description is derived from the depostion testimony to which plaintiff pointed in his response. Of course, the court has verified all of plaintiff's assertions by referring directly to the cited portions of the deposition transcripts and by reviewing the depositions generally.

 One of the witnesses, Kathryn Ashbridge, was, like Mr. Merker, a special education teacher at Ashland Middle School. Ms. Ashbridge testified that she began to notice Mr. Merker's abusive and offensive behavior in January, 1986. This behavior included slapping students's heads, striking students with his fists and other objects, throwing students through his classroom doorway into the hall, slamming students into lockers, spraying students with water and Lysol, and forcing students to sit in a trash can.

 Ms. Ashbridge also testified that Marie Pennestri, Mr. Merker's aide, who is now deceased, had told her that Mr. Merker called his students names such as "worm," "faggot," "gay," "stupid," "retarded," and "asshole." Ms. Pennestri also told Ms. Ashbridge about Mr. Merker's giving of detention to students. Mr. Merker's detentions often required students to stay in his classroom beyond the time at which the last school bus departed. Mr. Merker would then drive these students home personally.

 Next, Ms. Ashbridge testified that Ms. Pennestri had told her that she had described Mr. Merker's activities to defendants Bruce B. Morgan, superintendent of the Southeast Delco School District, and Ralph E. Sorrell, principal of Ashland Middle School, and that she had requested to defendant Lancess T. McKnight, assistant superintendent, that she be transferred out of Mr. Merker's classroom because she could not stand working with him any longer.

 Ms. Ashbridge also testified that some of Mr. Merker's male students told her that they sometimes brought their belongings with them on Fridays so that they could spend part of the weekend with Mr. Merker. other students told her that they were afraid to enter Mr. Merker's classroom.

 Ms. Ashbridge further testified that she described Mr. Merker's conduct -- both that which she witnessed personally and that which Ms. Pennestri had described to her -- to Mr. Sorrell in the spring of 1986 and in the spring of 1987, and to defendant Eugene DePaul, assistant principal at Ashland, at various times during the 1986-87 school year.

 During the summer of 1987, defendant William C. Donato became superintendent at Southeast Delco, defendant Paul Sanborn became principal at Ashland, defendant Thomas Schellinger became assistant principal at Ashland, and Ms. Ashbridge became Team Leader of the Special Education Department at Ashland. Ms. Ashbridge testified that, during the summer of 1987, she described Mr. Merker's verbal, physical, and emotional abuse to Mr. Sanborn, advising him that she believed that Mr. Merker was sexually abusing his students. During the 1987-88 school year, Ms. Ashbridge continued to report Mr. Merker's conduct to Messrs. Sanborn and Schellinger.

 Finally, Ms. Manners testified that she sometimes observed Mr. Merker prohibiting students from leaving his classroom by barricading himself in the doorway, although apparently she did not bring this to the attention of the administration.

 Michelle Doonan, a teacher's aide in Mr. Merker's classroom, testified that Mr. Merker often referred to his students as "gay" or "whores." She testified that she once observed Mr. Merker holding a male student's head between his legs in a "scissors hold," and that she often observed him applying what he called the "Vulcan Death Grip" to students' necks. She observed Mr. Merker touching students, including plaintiff, and punishing students, again including plaintiff, with late detention. Also, she said that some students had told her that Mr. Merker often wanted them to go places with him after school, and that she sometimes saw Mr. Merker with students outside school. She said that she reported most of these incidents to Ms. Ashbridge rather than Principal Sanborn or Vice Principal Schellinger because any discussions she had ever had with Messrs. Sanborn and Schellinger had had no effect. In previous meetings with Messrs. Sanborn and Schellinger, Ms. Manners gotten the impression that the two would never do anything about Mr. Merker.

 Another aide to Mr. Merker, Marie Galbraith, also testified about Mr. Merker's name-calling, ridiculing, physical abuse, and late detention of students, including plaintiff. She also observed Mr. Merker applying the "Vulcan Death Grip," with which he would sometimes lift students, including plaintiff, out of their chairs by holding the backs of their necks. Both Ms. Manners and Ms. Galbraith both testified that students would often cry out for help. Further, Ms. Galbraith testified that Mr. Merker frequently and openly looked up the dresses of female students, and would often ask them with whom they had slept the previous night. Once, she observed him tripping a female student and then picking her up by her breasts.

 Ms. Galbraith testified that, beginning in September, 1987, she discussed Mr. Merker's conduct with Vice Principal Schellinger approximately once a week. When nothing was done, the conversations diminished to perhaps once a month. According to Ms. Galbraith, Mr. Schellinger's only response was to occasionally visit Mr. Merker's classroom. She also said that Mr. Merker would, not surprisingly, change his behavior when Mr. Schellinger was in the room.

 In addition, Ms. Galbraith testified that Mr. Merker sometimes told her about his contact with students outside school, such as his hiring of students to help paint his house or do other chores.

 Further, Ms. Galbraith said that she had noticed that Mr. Merker seemed to pay particular attention to plaintiff. On one occasion, plaintiff came to her and told her that he refused to go into the classroom because he was afraid of Mr. Merker. On another, plaintiff refused to stay for detention, again telling Ms. Galbraith that he was afraid of Mr. Merker.

 Ms. Galbraith testified that she reported all the above-described conduct to Vice Principal Schellinger. She also testified that, in October, 1987, and at one other time later in the school term, she fully informed Principal Sanborn of Mr. Merker's conduct, and that, at some point during the 1987-88 school year, she informed Assistant Superintendent McKnight.

 Ellen Green, a ninth-grade special education teacher at Academy Park High School, testified that her students, many of whom had been in Mr. Merker's classes the previous year, often complained to her about Mr. Merker's behavior. She said that, from approximately 1977 through approximately 1990, she spoke with Assistant Superintendent McKnight approximately three to four times per school year, often raising her concerns about Mr. Merker. Ms. Green also testified that it was common knowledge within the school district that in 1986 Mr. Merker's contacts with children had been investigated by the Darby Township Police Department.

 Principal Sanborn testified that he spoke with Ms. Ashbridge in October, 1987, and several times thereafter, about Mr. Merker's use of profanity and sexually oriented language and his unauthorized touching and physical abuse of students. He also acknowledged that he spoke to Ms. Manners about Mr. Merker in November, 1987, and several times thereafter. Further, he said that he may have discussed Mr. Merker with Ms. Galbraith and Ms. Doonan. Mr. Sanborn also said that he always kept Mr. Schellinger fully informed about the reports on Mr. Merker. According to Mr. Sanborn, he and Assistant Principal Schellinger jointly decided that the appropriate way to handle the situation was to quietly observe Mr. Merker.

 Mr. Sanborn testified that, during the 1987-88 school year, he and Mr. Schellinger informed Superintendent Donato two or three times about Mr. Merker's conduct, and that he also had shared information about Mr. Merker with Assistant Superintendent McKnight.

 Finally, plaintiff brings to the court's attention one specific incident. Ms. Ashbridge testified that, in the late fall of 1987, plaintiff came to her numerous times to request that he be transferred out of Mr. Merker's classes because he was afraid of Mr. Merker. He described to Ms. Ashbridge how Mr. Merker would drive him home from school, driving past plaintiff's house to drop off all the other children first, and then taking an indirect route to plaintiff's house, sometimes parking the car in undesirable neighborhoods and leaving plaintiff alone inside for up to an hour. He told her that Mr. Merker would ...


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