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July 14, 1995

CHARLES PICARELLA, MRS. ELIZABETH PICARELLA, XXXXX [Minor child's name excised by VersusLaw], a Minor, by her parents, Charles and Elizabeth Picarella, Plaintiffs

James F. McClure, Jr., United States District Judge

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

July 14, 1995


 On February 14, 1995, adult plaintiffs Charles Picarella and Elizabeth Picarella, and minor plaintiff XXXXX [Minor child's name excised by VersusLaw] initiated this action with the filing of a complaint pursuant to 42 U.S.C. § 1983. Plaintiffs allege, inter alia, that the investigation of an allegation of child abuse by officials and employees of the Southern Columbia Area School District violated constitutional rights.

 Upon review of the complaint, we struck certain language which we found improper. We also specified the constitutional rights alleged by plaintiffs to have been violated, as the complaint was read by the court, for purposes of clarity. An amended complaint, stating the same claims under § 1983 but properly identifying defendant Barbara Lutz as Sandra Lutz, was filed by plaintiffs on March 2, 1995. *fn1"

 Before the court is a motion by defendants to dismiss the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). Defendants move to dismiss the amended complaint based on qualified immunity for the individual defendants, and failure to allege a practice, policy or custom by which liability may be imposed upon the School District. We believe, however, that a more fundamental problem exists with the amended complaint, in that it fails to allege an injury cognizable under the Constitution. The motion to dismiss will be granted for the latter reason.



 A motion to dismiss under Fed. R. Civ. P. 12(b)(6) admits the well pleaded allegations of the complaint, but denies their legal sufficiency. Hospital Building Co. v. Trustees of the Rex Hospital, 425 U.S. 738, 740, 48 L. Ed. 2d 338, 96 S. Ct. 1848 (1976). "It is the settled rule that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Leone v Aetna Cas. & Sur. Co., 599 F.2d 566, 567 (3d Cir. 1979)(quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). The complaint must be read in a light most favorable to the plaintiff with every doubt resolved in the plaintiff's favor. In re Arthur Treacher's Franchisee Litigation, 92 F.R.D. 398, 422 (E.D. Pa. 1981).


 The following are the facts alleged in the amended complaint, which are accepted as true for purposes of the motion to dismiss. Dramatic and/or pejorative language is omitted.

 Plaintiff XXXXX [Minor child's name excised by VersusLaw] is a minor who attends school within the Southern Columbia Area School District ("SCASD"). Charles Picarella and Elizabeth Picarella (distinguished herein from the minor plaintiff by reference as "Mrs. Picarella") are her parents. Defendant Morris Terrizzi is a principal within SCASD. *fn2" Defendants Sandra Y. Lutz and Susanne Daveler are officials within SCASD. Defendant SCASD is a school district duly organized under the law of Pennsylvania.

 On February 23, 1993, XXXXX [Minor child's name excised by VersusLaw] was taken from her classes to a private office by Lutz and Daveler. She was questioned in a suggestive manner about physical abuse at home. XXXXX [Minor child's name excised by VersusLaw] repeatedly denied the allegations, cried, and requested that the questioning cease. She asked for her parents or her brother, XXXXX [Minor child's name excised by VersusLaw]. Eventually, XXXXX [Minor child's name excised by VersusLaw] ran from the office to the ladies room to regain her composure and escape the questioning. XXXXX [Minor child's name excised by VersusLaw] was escorted back to the office, where interrogation began again. Fellow students and "others" witnessed these events.

 During the interrogation, Lutz and Daveler suggested to XXXXX [Minor child's name excised by VersusLaw] that her father drank too much, and that he beat Mrs. Picarella and XXXXX [Minor child's name excised by VersusLaw].

 On the same day, employees of Children and Youth Services of Northumberland County ("CYS") visited Charles and Mrs. Picarella at their place of business to question them concerning their family. Plaintiffs believe that Terrizzi coordinated and planned the timing of both interviews to justify his personal animosity towards the Picarella family. *fn3"

 On March 9, 1993, two weeks following the interviews of XXXXX [Minor child's name excised by VersusLaw] at school and her parents at their place of business, CYS reported the allegations "unfounded or ... resolved." Plaintiffs complained to CYS concerning the "resolved" language of the notice, so that, on July 13, 1993, CYS issued a letter stating that the allegations were "unfounded."

 In spite of the finding of CYS, Terrizzi maintained a pattern of harassment and intimidation aimed at the Picarella family through the children. Information was gathered on XXXXX [Minor child's name excised by VersusLaw] and XXXXX [Minor child's name excised by VersusLaw] in violation of school procedures. Plaintiffs were unable to learn what happened during the interview of XXXXX [Minor child's name excised by VersusLaw] or why she was interviewed from Terrizzi, who stated that he was authorized in declining to cooperate by other school officials, including the Superintendent of Schools. This pattern of thwarting plaintiffs' efforts to gain information continues to the present.

 Plaintiffs directed a letter dated May 29, 1994, to the School Board President for the purpose of asking specific questions about SCASD's files regarding the Picarella family. Another, more detailed letter was forwarded on August 22, 1994. The latter correspondence related the improper collection of information on the Picarella family and the manipulation of the Picarella children by Terrizzi in an effort to embarrass Charles and Mrs. Picarella.

 In response to the letter of August 22, 1994, Terrizzi threatened to sue plaintiffs, contending that their complaints and questions were unlawful. *fn4" Plaintiffs wrote again to the School Board President demanding appropriate action, to which SCASD responded, also in letter form.


 Plaintiffs' complaint is brought pursuant to 42 U.S.C. § 1983, which reads:

 Sec. 1983.

 In order to state a claim under § 1983, plaintiff must allege a violation of rights secured by the Constitution and laws of the United States, and that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). School districts and school officials are "persons" within the meaning of § 1983. Ingraham v. Wright, 525 F.2d 909 (5th Cir. 1976), aff'd, 430 U.S. 651, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977); Kelly v. Richland School District, 463 F. Supp. 216 (D.S.C. 1978).

 Defendants do not argue that they are not state actors for purposes of § 1983. Rather, they argue that they cannot be held liable, the individual defendants because of qualified immunity and the school district because no policy, practice or custom is alleged sufficiently. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 122 L. Ed. 2d 517, 523, 113 S. Ct. 1160 (1993) (municipality not liable under § 1983 unless a municipal policy or custom caused constitutional injury, but freedom from liability does not equate to immunity from suit). Before reaching the question of whether these defendants may be held liable, we turn to the question of whether there has been a deprivation of a federally protected right, privilege or immunity.


 The Supreme Court has ruled on a number of occasions that a state or local government may not unreasonably restrict certain fundamental, clearly enumerated, constitutional rights. See, e.g., Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 266, 98 L. Ed. 2d 592, 108 S. Ct. 562 (1988) ("Students in public schools do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'"; quoting Tinker v. Des Moines Community School District, 393 U.S. 503, 506, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969)); New Jersey v. T.L.O., 469 U.S. 325, 333, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985) (Fourth Amendment prohibition against unreasonable searches and seizures applies to searches ...

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