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PAGE v. SCHOOL DISTRICT OF PHILADELPHIA

April 14, 1999

APRIL PAGE, A MINOR, BY AND THROUGH HER PARENTS AND NATURAL GUARDIANS, RAYMOND AND GEORGENE PAGE, RAYMOND PAGE, IN HIS OWN RIGHT, AND GEORGENE PAGE, IN HER OWN RIGHT, PLAINTIFFS,
v.
THE SCHOOL DISTRICT OF PHILADELPHIA, MARTY WARTEN, HARRY GAFNEY, AND R. WALDMAN, INDIVIDUALLY AND AS EMPLOYEES OF THE SCHOOL DISTRICT OF PHILADELPHIA, THE CITY OF PHILADELPHIA, AND ZULKA, POLICE OFFICER, INDIVIDUALLY AND AS AN OFFICER OF THE CITY OF PHILADELPHIA, DEFENDANTS.



The opinion of the court was delivered by: Lowell A. Reed, Jr., District Judge.

    MEMORANDUM

Before the Court are the motion to dismiss or in the alternative for summary judgment of defendants School District of Philadelphia ("the school district"), Marshall Wharton*fn1 ("Wharton"), R. Waldman ("Waldman"), and Harry Gafney ("Gafney") (collectively "the school district defendants") (Document No. 38) and the motion for summary judgment of defendants Officer Zulka and the City of Philadelphia (collectively "the city defendants") (Document No. 39) on the claims of plaintiffs April Page, a minor, by and through her parents and natural guardians, Raymond and Georgene Page, and Raymond and Georgene Page in their own right. Based on the following, the motions will be granted.

I. BACKGROUND

April Page and her parents filed a complaint in this Court, which was amended on December 12, 1995 alleging claims under 42 U.S.C. § 1981, § 1983, and § 1988 arising from an assault on April Page by a group of students on December 13, 1993 on the third floor of the Harding Middle School, where she was a student. April Page sustained injury from this attack. The defendants contend that April Page was supposed to go to the cafeteria for lunch on the first floor at that time and that she was not supposed to be on the third floor; the plaintiffs allege that she was lawfully on the third floor of the school.

The plaintiffs claim that the problems at Harding Middle School arose because of April and Raymond Page's Native American heritage. The plaintiffs claim that for a period of time prior to the date of the attack on April Page, the defendants knew or should have known of problems that she was having at school, including attacks and threats from students. Raymond and Georgene Page allege they regularly voiced concern to the defendants over the daily taunts and attacks on their daughter by students prior to the incident on December 13, 1993. The plaintiffs also claim that the school district defendants had agreed to allow April Page to arrive late to school to avoid altercations with other students on the way to school.

The plaintiffs point to the deposition testimony of Wharton, in which he testified that April told him on two separate occasions starting within the first month of school in the fall of 1993 that she was being accosted by other students on the way to school. (School District Defs.' Ex. 7 at 32-33). In addition, the plaintiffs claim that the defendants and Raymond Page reached an agreement whereby the defendants would ensure April Page's safety during, coming to, and leaving school. The plaintiffs submit the affidavit of Raymond Page, April Page's father, in which he attests that:

    In early October 1993, I discussed the difficulty
  that April was having going to and from school with
  Marshall Wharton, the School District of
  Philadelphia's Security Officer assigned to the
  Harding Middle School. Mr. Wharton suggested that I
  bring April to school a little later than the other
  school children in order to prevent future
  confrontations. Mr. Wharton and Adolphus Williams,
  the Vice-Principal assured me that April Page would
  be given a security escort while she was inside the
  school building so that she would be safe while in
  school. On a separate occasion, I discussed April's
  safety with Mr. Wharton in the presence of Officer
  Zulka. At that time, Officer Zulka told me that if
  Mr. Wharton was not available that she would see that
  April was taken care of.
    Following my discussion with Mr. Wharton and Mr.
  Williams, Mr. Wharton repeatedly promised on a nearly
  daily basis that he would make sure that April was
  walked to and from class, lunch, and in and out of
  school.

The final piece of evidence the plaintiffs present to support their claims is the deposition testimony of Gafney, the school principal, in which he testified that:

  The role of the principal is the building
  administrator, who is in charge for basically
  anything that occurs on school grounds under his
  watch or her watch. At a minimal level, it might be
  discussing students' behavior in the hallway,
  ushering kids to class who are late.

(School District Defs.' Ex. 8, Gafney dep. at 33-34).

The plaintiffs' arguments in opposition to the motions focus on the alleged agreement entered into by the defendants and Raymond Page. First, the plaintiffs claim that the agreement reached by the defendants and Raymond Page constituted a policy or custom of the defendants which supports their claim under § 1983. Second, the plaintiffs argue that the defendants subjected her to a dangerous situation in violation of her due process rights under the Fourteenth Amendment because the defendants entered into a "special relationship" with them by agreeing to escort April Page around the school and then failed to ensure her safety against the students who attacked her. The plaintiffs argue that the Court should deny the motions for summary judgment because there is a factual dispute as to the nature and existence of the defendants' duty to the plaintiff that created a special relationship.

II. STANDARD FOR SUMMARY JUDGMENT*fn2

Rule 56(c) of the Federal Rules of Civil Procedure provides that "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 a judgment as a matter of law," then a motion for summary judgment must be granted.

The moving party has the initial burden of illustrating for the court the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The movant can satisfy this burden by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case;" the movant is not required to produce affidavits or other evidence to establish that there are no genuine issues of material fact. Celotex, 477 U.S. at 323-25, 106 S.Ct. 2548.

Once the moving party has made a proper motion for summary judgment, the burden switches to the nonmoving party. Under Rule 56(e),

  [w]hen a motion for summary judgment is made and
  supported as provided in this rule, an adverse party
  may not rest upon the mere allegations or denials of
  the adverse party's pleading, but the adverse party's
  response, by affidavits or as otherwise provided in
  this rule, must set forth specific facts showing that
  there is a genuine issue for trial. If the adverse
  party does not so respond, summary judgment, if
  appropriate, shall be entered against the adverse
  party.

The court is to take all of the evidence of the nonmoving party as true and to draw all reasonable inferences in his favor in determining if there is a genuine issue of material fact. See Adickes, 398 U.S. at 158-59, 90 S.Ct. 1598. In order to establish that an issue is genuine, the nonmoving party must proffer evidence such that a reasonable jury could return a verdict in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A proper motion for summary judgment will not be defeated by merely colorable or insignificantly probative evidence. See id. at 249-50, 106 S.Ct. 2505.

III. ANALYSIS

A. Claims Under Section ...


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