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February 11, 1998

JAMES BURDEN, SR. Individually and as Administrator of the Estate of JAMES BURDEN, JR, Plaintiff,

The opinion of the court was delivered by: NEALON


 In this civil rights action whereby plaintiff alleges violations of 42 U.S.C. §§ 1983, 1985(3), and seeks costs and attorney's fees under 1986 and 1988, Defendant Wilkes-Barre Area School District filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) on October 23, 1997, and a brief in support was submitted on November 3, 1997. Plaintiff filed a brief in opposition on November 20, 1997, to which defendant replied on December 4, 1997. The Motion is ripe for determination and, for the following reasons, will be granted.


 James Burden, Jr. (decedent) was a student of Meyers High School in the Wilkes-Barre Area School District, and, on the morning of August 14, 1995, was practicing with the Meyers football team. During practice, which was being conducted in temperatures ranging from the upper eighties to the low nineties, decedent experienced leg cramps. Upon experiencing these cramps, decedent was removed from the practice field for a brief rest and later placed back into practice. Following the conclusion of the morning practice session, the decedent was instructed by a coach to drink fluids and eat bananas, but at no time did the coach tell him seek medical attention. Later that afternoon, at approximately 4:00 p.m., another session of practice was held, at which time, decedent again experienced leg cramps and, on two occasions, was again taken off the practice filed only to return to practice after a short rest. That evening, after going home, decedent collapsed and was rushed to a local hospital. He was suffering rapitory abnormalities that accompany clinical fasciolar volume depletion and subsequently died as a result of this condition.

 Plaintiff alleges that prior to August 14, 1995, defendant, through the Board of School Directors (Board), had decided against hiring a certified athletic trainer to attend to the health and safety of students participating in sports in the Wilkes-Barre Area School District. Plaintiff further asserts that the Board arrived at this decision with the knowledge that students participating in high school athletics suffered injuries throughout the year and that other area school districts had hired athletic trainers to treat their injured athletes.

 Plaintiff maintains that defendant, through the Board's decision to not hire a certified athletic trainer, denied decedent his constitutional rights to life and liberty under the Fourteenth Amendment. Specifically in Count I, plaintiff maintains that defendant, acting under color of state law, had a policy and custom of not providing an athletic trainer for school district athletic competitions, and that this policy and custom caused decedents death, therefore denying him his constitutional rights and violating 42 U.S.C. § 1983. Plaintiff further contends in Count II that the Board, in violation of 42 U.S.C. § 1985, conspired to deprive decedent of his constitutional rights and equal protection of the laws. Additionally, in Count III plaintiff seeks to receive costs and attorney's fees pursuant to 42 U.S.C. § 1988. Finally, in Counts IV-VII, plaintiff asserts pendent claims arising under Pennsylvania Law including negligence, survival and wrongful death claims, and a claim seeking punitive damages.

 Defendant, in its Motion to Dismiss, contends that plaintiff has failed to plead a valid due process claim because under no circumstances can plaintiff prove a policy or custom of deliberate indifference to decedent's constitutional rights sufficient to impose liability under Section 1983. Furthermore, defendant asserts that plaintiff has failed to properly plead a claim of conspiracy pursuant to Section 1985 insofar as the complaint does not allege any specific conduct, including the specific participation of each defendant, that violated the decedent's rights. Defendant also argues that because the Board's decision not to hire a certified trainer was a discretionary one, and because the complaint fails to identify a violation of a clearly established right, that the defendant is entitled to qualified immunity on Counts I and II. Additionally, defendant maintains that it is entitled to immunity on state law claims because they are barred by the Pennsylvania Political Subdivision Tort Immunity Act and that because the claims pursuant Sections 1983 and 1985 should be dismissed, the claim for costs and attorney's fees should likewise be dismissed.


 Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed if the complaint fails to state a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the Court must view all allegations made in the complaint as true and draw all reasonable inferences therefrom in the light most favorable to the plaintiff. Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987). Furthermore, "'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.'" Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 Defendant, in support of the Motion to Dismiss, first argues that plaintiff has failed to state a cause of action under Section 1983 insofar as the allegations of a deprivation of life and liberty fail to identify either a custom or policy of the Wilkes-Barre Area School District or an affirmative duty of care owed to the decedent. Furthermore, defendant maintains that even assuming a duty existed and a policy or custom was established, plaintiff has failed to allege, and under no circumstances can prove, that defendant acted with the requisite "deliberate indifference" to the consequences of not providing a certified trainer that is necessary to impose liability.

 In support of its argument that there was no duty to protect, and thus no constitutional violation, defendant cites cite DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989), which held that:

The Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. . . . If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot be held liable under the Clause for injuries that could have been averted had it chosen to provide them.

 DeShaney, 489 U.S. at 196-97, 103 L. Ed. 2d 249, 109 S. Ct. 998 (citations omitted) (footnote omitted). The United States Court of Appeals for the Third Circuit has held that:

[A] plaintiff must do more than show the defendant could have averted her injury and failed to do so. 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 [consequences] and that the defendant acted with deliberate indifference to [those consequences]. In order to establish deliberate indifference on the part of the defendant, ...

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