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SENEWAY v. CANON MCMILLAN SCH. DIST.

June 10, 1996

MELISSA J. SENEWAY, Plaintiff,
v.
CANON McMILLAN SCHOOL DISTRICT, DONALD STRANG, in his individual and official capacity as prior Superintendent of the Canon McMillan School District, EUGENE BUCHLIETNER, in his individual and official capacity as Principal of Canon McMillan High School, and NICK BAYAT, in his individual and official capacity as former Principal of Canon McMillan High School, Defendants.



The opinion of the court was delivered by: LEE

 June 10, 1996

 Before the Court is defendants' motion for summary judgment ( Document No. 46). After careful consideration of defendants' motion, the extensive supporting material in support of and in opposition thereto, the memoranda in support of and in opposition thereto, the relevant case law, and the record as a whole, the court will grant, in part, and deny, in part, defendants' motion.

 I. BACKGROUND

 On November 2, 1994, Plaintiff, Melissa J. Seneway, brought this action pursuant to 42 U.S.C. § 1983 against the Canon McMillan School District ("School District"); Donald Strang, the prior superintendent of the Canon McMillan School District; and Eugene Buchlietner, the principal of Canon McMillan High School ("Canon McMillan"), alleging violations of the Fifth, Eighth and Fourteenth Amendments. The individual defendants were sued in both their individual and official capacities.

 On June 22, 1995, plaintiff filed a "Second Amended Complaint" (Document No. 30), wherein she added as an additional defendant, Nick Bayat, in his individual and official capacity as former principal of Canon McMillan High School, and also asserted a claim under 42 U.S.C. § 1983 against him. One week later, on June 29, 1995, plaintiff filed an "Amended Complaint" (Document No. 31), wherein a claim for liability under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 - 1688 ("Title IX"), was brought exclusively against the School District.

 The gravamen of the complaint is that defendants have deprived plaintiff of her rights, privileges and immunities secured by the constitutional laws of the United States, specifically her liberty interest to be free in her person from threats, intimidation and sexual abuse and misconduct such as that perpetrated by James Neuman ("Neuman"), a School District employee who was the head wrestling coach and a teacher/instructor when plaintiff was a student at Canon McMillan High School. *fn1"

 Plaintiff avers that from November 3, 1992, to February 7, 1993, on three separate occasions, she was subjected to sexual abuse and harassment by Neuman. First, on November 3, 1992, while plaintiff, an eleventh grader at the time, was attending a physical education class, Neuman offered to weigh her privately in the wrestling room. Once there, Neuman proceeded to "place his hands on her buttocks and lift [her] up, stating to her that this was a procedure used to make wrestlers weigh less at their weigh-ins." Complaint, P 12.

 Two days later, on November 5, 1992, plaintiff alleges that Neuman kissed her, "fondled her breasts and made inappropriate and suggestive statements to her." Complaint, P 14. The third incident occurred on or about February 7, 1993, while plaintiff was conducting an interview of Neuman on behalf of the school newspaper. Neuman placed his hand on plaintiff's thigh and started rubbing her leg. Complaint, P 16.

 Plaintiff further alleges that Neuman had engaged in "sexual conduct, abuse and/or harassment with other students prior to the incidents involving plaintiff" and that the school district and the individual defendants, all school administrators, knew or should have known about Neuman's offensive and abusive conduct with respect to these students. Complaint, P 18. Additionally, plaintiff contends that despite the actual and/or constructive notice by defendants of Neuman's improper conduct with female students, defendants "failed to take any action to protect the health, safety and welfare of the female student body in general and the plaintiff in particular." Complaint, P 20.

 Defendants have filed a motion for summary judgment. The first ground for the motion is that plaintiff's claims are barred by the statute of limitations. Next, defendants assert that plaintiff's § 1983 claims should be dismissed in their entirety.

 Lastly, defendants argue that plaintiff's Title IX claim should be dismissed as there was no intentional discrimination by the School District and the School District is not vicariously liable for Neuman's alleged misconduct. The parties have extensively briefed the issues raised by the motion and have filed evidence, including affidavits and deposition testimony, in support of their positions.

 II. SUMMARY JUDGMENT STANDARD

 Rule 56(c) of the Federal Rules of Civil Procedure reads, in pertinent part, as follows:

 
[Summary Judgment] shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
 
In interpreting Rule 56(c), the United States Supreme Court has stated:
 
The plain language . . . mandates entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

 Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 An issue of material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view the facts in a light most favorable to the non-moving party and the burden of establishing that no genuine issue of material fact exists rests with the movant. Id. at 242. The "existence of disputed issues of material fact should be ascertained by resolving 'all inferences, doubts and issues of credibility against the moving party.'" Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (quoting Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir. 1972)). Final credibility determinations on material issues cannot be made in the context of a motion for summary judgment, nor can the district court weigh the evidence. Josey v. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993); Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224 (3d Cir. 1993).

 When the non-moving party will bear the burden of proof at trial, the moving party's burden can be "discharged by 'showing' -- that is, pointing out to the District Court -- that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. If the moving party has carried this burden, the burden shifts to the non-moving party who cannot rest on the allegations of the pleadings and must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Petruzzi's IGA Supermarkets, 998 F.2d at 1230. When the non-moving party's evidence in opposition to a properly supported motion for summary judgment is "merely colorable" or "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50.

 III. DISCUSSION

 A. Statute of Limitations

 In Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985), the Supreme Court ruled that the statute of limitations for § 1983 actions is the limitations period for the relevant state's personal injury statute. Because the instant case arose within the Commonwealth of Pennsylvania, the Court must apply the two-year statute of limitations set forth in 42 Pa. C.S.A. § 5524(2).

 The Court of Appeals for the Third Circuit in Bougher v. University of Pittsburgh, 882 F.2d 74 (3d Cir. 1989), held that Pennsylvania's personal injury statute of limitations also applies to Title IX claims. Thus, plaintiff's claims under § 1983 and Title IX are governed by Pennsylvania's two-year statute of limitations.

 Because Pennsylvania's statute of limitations for personal injuries is applicable to plaintiff's federal claims in this matter, the court must also borrow Pennsylvania's tolling statute. Furthermore, operation of the tolling statute is "governed by state law." Wilson, 471 U.S. at 269.

 Defendants present a two-prong argument that plaintiff's claims are barred by the applicable statute of limitations. First, defendants contend that plaintiff is required to prove that the School District's policy of not discouraging abuse extended into the limitations period. Secondly, defendants contend that plaintiff's Title IX claim is time barred as this claim was first asserted in an amended complaint filed on June 29, 1995, more than two years after the alleged abuse occurred. The Court is unable to accept either contention.

 While a bit unclear, defendants seem to argue that the School District had a policy prohibiting sexual misconduct and that this policy was applied in the instant case, as evidenced by Neuman's suspension. Thus, defendants argue, the record is "barren of any evidence that the policy of indifference alleged by plaintiff continued into the limitations period." Defendants' brief, at 5. However, the treatment of Neuman after plaintiff's assault was not, and obviously could not have been, a cause of her assault.

 The theory of plaintiff's case is not simply that she was sexually abused, but that she was abused by a teacher because of defendants' reckless indifference in protecting plaintiff's constitutional rights. To prove this, plaintiff will attempt to show that over an approximate ten-year period, from the early to mid-1980's until, at least, the time of plaintiff's assaults in 1992/1993, defendants fostered, through their policies, procedures and/or customs, an environment of reckless indifference toward sexual abuse of female students by a teacher at the Canon McMillan High School. (Prior incidents alleging misconduct on behalf of Neuman with students, other than plaintiff, are discussed infra.)

 Accordingly, the Court finds that there is sufficient record evidence that the policy of indifference alleged by plaintiff continued into the limitations period.

 Count IV of plaintiff's complaint alleges a claim for relief against the School District under Title IX. Defendants argue that this claim is barred as it was first asserted in an amended complaint filed on June 29, 1995, more than two years after the alleged abuse occurred. Section 5533(b) of the Pennsylvania Code, however, identifies infancy as a condition which tolls the running of its personal injury and other statutes of limitations. *fn2" Plaintiff attained majority on July 11, 1994, Plaintiff's brief, at 5; thus, she has until July 11, 1996 to file any actions against defendants. Therefore, the Court concludes that plaintiff's Title IX claim was filed clearly within the applicable statute of limitations period.

 "Defendants bear a heavy burden in seeking to establish as a matter of law that the challenged claims are barred" by the applicable statute of limitations. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 498 (3d Cir. 1985). Reviewing the evidence in the light most favorable to plaintiff, the Court concludes that defendants have not satisfied that heavy burden. Therefore, the motion for summary judgment, as it pertains to the statute of limitations defense, is denied.

 B. Evaluation of § 1983 Claims

 In Counts, I, II, III and V of Plaintiff's complaint, it is alleged that defendants have deprived plaintiff of her Constitutional rights in violation of § 1983 of the Civil Rights Act, 42 U.S.C. § 1983. Defendants seek to ...


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