Eventually, plaintiff was transferred out of Mr. Merker's homeroom, but he remained in two of Mr. Merker's classes and continued to receive detention from him. Plaintiff alleges that, between January, 1988, and March, 1988, Mr. Merker sexually assaulted him on at least three other occasions.
Plaintiff alleges that defendants' individual and collective failures to take action with respect to Mr. Merker, despite their knowledge as outlined above, amounted to (1) a practice, custom, or policy of deliberate or reckless indifference to the physical, verbal, and sexual abuse inflicted upon him and other students by Mr. Merker, and (2) a breach of their affirmative duty to protect students from harm inflicted by teachers. Plaintiff argues that these failures rise to the level of constitutional violations redressable under 42 U.S.C. § 1983.
Defendants move for summary judgment on the grounds that both of plaintiff's theories of relief are devoid of legal merit, and that, in any event, they are qualifiedly immune from liability for the actions and omissions alleged by plaintiff.
Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." The inquiry for the court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A party opposing summary judgment must marshal sufficient facts to show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In this case, factual disputes abound. The question, however, is whether plaintiff, even if he proves his allegations to be completely true, would be entitled to redress under 42 U.S.C. § 1983.
Practice, Custom, or Policy of Deliberate or Reckless Indifference
Plaintiff's first theory of relief is that defendants established a practice, custom, or policy of deliberate or reckless indifference to Mr. Merker's conduct and to plaintiff's constitutional rights. In Monell v. Department of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), the Supreme Court held that a municipality could be held liable for constitutional deprivations if the deprivations occur pursuant to a governmental custom, policy, or usage. Here, plaintiff has offered no direct evidence that the southeast Delco School District adopted a formal policy which either condoned the type of abuse alleged here or discouraged reports of such abuse. Rather, plaintiff argues that the defendants' overall handling of Mr. Merker's behavior amounted to the adoption of a practice, custom, or policy of deliberate indifference to Mr. Merker's conduct and to plaintiff's and other students' constitutional rights.
In Stoneking v. Bradford Area School Dist., 882 F.2d 720, 725 (3d Cir. 1989), the Third Circuit held that the "liability of municipal policymakers for policies or customs chosen or recklessly maintained is not dependent upon the existence of a 'special relationship' between the municipal officials and the individuals harmed."
In that case, a female student sued a school district and some school officials for injuries she incurred as a result of sexual abuse and harassment by her high school band director. The court declined to address the question of whether the defendants had an affirmative duty to protect students from their teachers, choosing instead to rest its decision on plaintiff's allegations that the defendants had adopted and maintained a practice, custom, or policy of reckless indifference to sexual abuse by teachers, and that they had concealed complaints of abuse and discouraged students from complaining about such conduct.
The court refused to enter summary judgment in favor of defendants, finding that plaintiff had produced sufficient evidence to create a material issue of fact about the existence of such a custom, practice, or policy. The evidence in Stoneking showed the following: the defendant school officials had received at least five complaints about sexual assaults on female students by teachers and staff members; records of such complaints were kept secret; the allegedly offending teachers were given excellent performance evaluations; school officials discouraged students and parents from pursuing complaints.
In the case at bar, while plaintiff alleges only one complaint by a student, he alleges that teachers and other staff members made repeated complaints to school officials about Mr. Merker's misconduct. The information communicated in those complaints may be reasonably viewed as having conveyed to school officials the message that Mr. Merker was a depraved and dangerous man. The complaints disclosed the sexual overtones of Mr. Merker's classroom comments and actions, the physical violence in which he reportedly engaged in class, his continued giving of late detention, his driving students home, and his contact with students after school hours. Further, school officials knew that Mr. Merker taught special education students, who might not fully understand the inappropriateness of his actions, and who might be even more reluctant than mainstream students to report teacher misconduct, either because of their own insecurities, or because they might think that since only a small number of teachers taught special education students, little could be done to remove them from the offending teacher's classes. While the allegations made in this case are not identical to those made in Stoneking,3 they are just as serious, and Stoneking clearly controls the outcome of the motion currently before the court.
The Stoneking court held that the plaintiff's "argument that there was no policy, custom, or practice is a merits issue . . . If there are contested issues of material fact, they must go to the jury." Stoneking, 882 F.2d at 725. In light of what defendants allegedly knew about Mr. Merker's conduct, I find that a jury could reasonably conclude that the actions taken or not taken by defendants in response to reports of Mr. Merker's conduct amounted to a custom, practice, or policy of deliberate indifference to Mr. Merker's actions and to plaintiff's constitutional rights. I also find that a jury could reasonably conclude that this alleged custom, practice, or policy directly contributed to, led to, or caused plaintiff's injury, since the jury could find that, had defendants acted reasonably, plaintiff's injuries would not have occurred. See, Bielevicz v. Dubinon, 915 F.2d 845, 853-54 (3d Cir. 1990). Therefore, I shall deny defendants' motions for summary judgment on plaintiff's first theory of relief.
Defendants assert that Stoneking is no longer good law and that its applicability has been or will be severely limited. But I find that Stoneking is still the law of this circuit, and that it has not been limited. In Black by Black v. Indiana Area School Dist., 985 F.2d 707 (3d Cir. 1993), decided January 29, 1993, the Third Circuit explicitly pointed to Stoneking as controlling authority on the question of whether the plaintiff had stated a valid claim of a policy, practice, or custom of deliberate indifference on the part of the defendants. In Black, the court found that the plaintiff had not stated such a claim against a school superintendent, where the superintendent had taken immediate action against an assistant principal who had been the subject of sexual abuse complaints, contacted the parents of the alleged victims of sexual abuse by a bus driver, and launched investigations into the allegations. Further, to the extent that the superintendent's actions may have been insufficient, the court found that a rational trier of fact could not find that his conduct "contributed in some way" to the later conduct of the bus driver, who was not an employee of the school district. Black, 985 F.2d at 712-13.
The Black court held: "in order to establish liability a plaintiff must demonstrate both that the defendant's policy, practice, or custom played an affirmative role in bringing about the sexual abuse and that the defendant acted with deliberate indifference to that abuse." Id. at 712. Here, I find that plaintiff has adequately alleged that defendants acted with deliberate indifference and that their actions and omissions played an affirmative role in bringing about plaintiff's injury. In addition, I find that the facts of this case are more similar to Stoneking, where, like here, the alleged abuser was a teacher employed by the school district, than to Black, where the alleged abuser was a bus driver not in the district's employ.
Affirmative Duty to Protect
Plaintiff's other theory of relief is that defendants failed in their affirmative duties to protect him from his teachers. In DeShaney v. Winnebago County Dept. of Social Servs., 489 U.S. 189, 195, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment
is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It 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 ensure that those interests do not come to harm through other means.
In DeShaney, the court held that the defendant was not liable to the four-year-old plaintiff for injuries inflicted upon him by his father, even though the defendant agency, which had the power to remove plaintiff from the custody of his abusive father, repeatedly had been made aware that plaintiff's father was beating him. The court held that, even if a state sets up an agency for the purpose of protecting people from one another, it still cannot be held liable under the Due Process Clause for injuries which nonetheless occur, because "the Due Process Clause does not require the State to provide its citizens with particular protective services." DeShaney, 489 U.S. at 196. This is because "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197.
The Court recognized an exception to this rule where a "special relationship" exists between the state and an individual. A "special relationship" exists "when the State takes a person into its custody and holds him there against his will." Id. at 199-200. In other words, the state does assume responsibility for the safety and general well-being of individuals in its custody, such as prisoners, Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), and involuntarily committed mental patients, Youngberg v. Romeo, 457 U.S. 307, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982).
In D.R. by L.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992) (en banc), cert. denied, U.S. , 122 L. Ed. 2d 354, 113 S. Ct. 1045 (1993), the Third Circuit held that a state does not have a "special relationship" with students in public schools. The court reasoned:
By requiring D.R. to attend assigned classes at Middle Bucks as part of her high school educational program, and authorizing officials to engage in disciplinary control over the students, the school defendants did not restrict D.R.'s freedom to the extent that she was prevented from meeting her basic needs. . . . Thus, the school defendants' authority over D.R. during the school day cannot be said to create the type of physical custody necessary to bring it within the special relationship noted in DeShaney, particularly when their channels for outside communication were not totally closed.