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October 9, 2001


The opinion of the court was delivered by: A. Richard Caputo, United States District Judge.


Plaintiff, Amanda Walker-Serrano, filed this civil rights action on May 4, 1999 against Donald Leonard, Dr. Clyde Ellsworth, Nancy Simon, and Pat Carpenter, individually and in their official capacities at Lackawanna Trail Schools, pursuant to 42 U.S.C. § 1983, alleging violation of her First Amendment rights, emotional distress, and various state law claims. (Doc. 1.) Defendants filed a motion for summary judgment on May 30, 2000. (Doc. 13.) Magistrate Judge Thomas M. Blewitt has recommended that the Court grant Defendants qualified immunity in their individual capacities, grant Defendants' motion for summary judgment with respect to all Plaintiff's federal claims, and that the state claims be dismissed without prejudice. (Report and Recommendation, Doc. 24.) Plaintiff filed a timely objection to the Magistrate Judge's report and recommendation. (Doc. 27.) After making a de novo determination of the case, I adopt that recommendation. Defendants are entitled to qualified immunity on all claims, as Plaintiff's First Amendment rights were not clearly established. Defendants` conduct did not violate any of Plaintiff's First Amendment rights. I further find that the School District cannot be held liable under Monell liability for First Amendment violation. Accordingly, as Plaintiff's federal law claims are dismissed, I agree with the Magistrate Judge that Plaintiff's state law claims are dismissed without prejudice.


At the time of the relevant facts, Plaintiff was a third-grade student at Lackawanna Trail Elementary School ("the School"), which is part of the Lackawanna Trail School District ("the School District"). (Doc. 1, ¶ 3.) Plaintiff's third-grade class planned to take a field trip to Shriner Circus on April 7, 1999. (Doc. 1, ¶ 10.)

Plaintiff, unhappy with the scheduled field trip, prepared a handwritten petition stating, "[w]e 3rd grade kids don't want to go to the circus because they hurt animals. We want a better feild [sic] trip." (Doc. 16, Exhibit 2.)

The parties dispute whether plaintiff asked permission to circulate the petition as required under school policy (Doc. 15, ¶ 16) or whether Plaintiff was told that she was prohibited from circulating the petition. (Doc. 18, ¶ 16.) Either way, Plaintiff brought her petition to school and circulated it during recess among her classmates, discussing how circuses are cruel to animals and obtaining 30 signatures on the petition on February 4, 1999. (Doc. 1, ¶ 13.) On February 5, 1999, Plaintiff again circulated her petition at recess and obtained three additional signatures. (Doc. 1, ¶ 16.) The parties dispute the events that occurred during the recess period on February 5. Defendants contend that Defendant Pat Carpenter ("Carpenter"), a teacher at the School, noticed a large group of students around Plaintiff near an icy patch on the playground and proceeded to investigate. On the way, Carpenter sent a crying child, who had fallen on the ice, to the nurse. (Doc. 16, Exhibit 17.) Carpenter told Plaintiff "you can't have that here." Defendants claim that Carpenter was speaking generally of the paper and writing utensils, out of fear that someone would get hurt on the icy playground. (Doc. 16, Exhibit 17.) Plaintiff denies there was any ice near her, that Carpenter was referring to circulating the petition, and that she was prohibited from having a petition at school. (Doc. 16, Exhibit 17.) Plaintiff spent part of the day in the nurse's office in tears and alleges that Carpenter's remarks caused extreme emotional distress. (Doc. 16, Exhibit 11.)

Another incident occurred during one of Plaintiff's classes. The details are again in dispute. Both sides agree that Mrs. Mercanti, Plaintiff's teacher, told her to put away a folder which contained the petition and other non-related material. Plaintiff alleges the incident occurred during study period, when one student stood by her desk and asked for her phone number. Defendants maintain that it occurred in reading class, when a group of students were around Plaintiff talking about the petition when they should have been reading quietly among themselves.

Plaintiff alleges that Defendant Nancy Simon ("Simon"), principal of the school, became aware of the petition on February 4, 1999. (Doc. 1, ¶ 14.) She instructed the teachers that if Plaintiff was observed circulating the petition, she should be told that she was prohibited from doing so on school property. Id. Principal Simon is further alleged to have instructed the teachers that students are prohibited from taking pencils onto the school playground, in order to prevent Plaintiff from obtaining signatures on her petition. (Doc. 1, ¶ 15.)

When Plaintiff returned home and told her mother what occurred at school, her mother called Principal Simon, who allegedly stated that Plaintiff could not circulate the petition at school. (Doc. 1, ¶ 19.) Plaintiff's mother denies she was informed of a school district policy that any materials a student wished to distribute must be submitted for prior review to a school district representative. Id. Unsatisfied with the response, Plaintiff's mother called Defendant Ronald Leonard ("Leonard"), the President of the School Board, about the incident. Plaintiff's parents then retained counsel, who wrote to the School District about the incident. The District's solicitor responded to Plaintiff's counsel. (Doc. 1, ¶ 19.) The letter, dated February 19, 1999, stated in relevant part:

In regard to stopping the circulation of a petition among third-graders on school property during the school day, there appears to be an erroneous assumption about the basis and motives for that action. Your letter presents interesting extracts from Tinker v. Des Moines Independent Community School District, 389 U.S. 53 (1969), however, this is not a case in which school authorities took punitive action "to avoid the discomfort and unpleasantness" of differing views on visiting a circus. On the contrary, Ms. Walker-Serrano has expressed and continues to express her personal views on the circus trip. The school has no authority and no desire to curtail her free expression of such views. However, Ms. Walker-Serrano was denied the opportunity to circulate a petition on elementary school property during the school day for signature of other third grade students. Ms. Walker-Serrano activities briefly disrupted classroom instruction and may have contributed to a situation where another child fell down during recess and was subsequently examined by the school nurse. According to information we have at this point, the petition was never taken away from Ms. Walker-Serrano. She was told to put it away. Elementary schools are not generally the environment for petition circulation, particularly where parents are totally unaware of such activities. It is incumbent upon school authorities, particularly in an elementary school setting, to preserve an appropriate environment focused on the institution's instructional objectives.

Plaintiff's counsel responded that when Plaintiff's mother brought her concerns about the planned circus field trip and petition incident to the School Board on February 22, 1999, such action constituted such a request and that, not having heard anything within two days, Plaintiff was then free to circulate her petition. (Doc. 1, ¶ 22.) Defendants' solicitor responded that the presentation at the Board meeting did not constitute "presentation" to the reviewer and that the proper procedure would be for Plaintiff to present the petition to Principal Simon for approval. Id. Plaintiff does not allege that this procedure was ever taken up with Principal Simon. Plaintiff asserts, rather, that the Solicitor only raised this policy long after Plaintiff was made to stop circulating her petition at school and that the policy was not enforced by the District.

The third-grade class attended the circus on April 7, 1999. Plaintiff did not attend and stood outside the circus with her mother to protest animal abuse. (Doc. 16, Exhibit 12.) These events received media attention; Plaintiff was on the local television news and in the local newspapers. (Doc. 16, Exhibit 11.) She was teased by her schoolmates, and older schoolboys on the bus said things like "kill the animals" and "torture the animals." Plaintiff claims that these events caused her severe emotional distress for which she sought professional help. (Doc. 16, Exhibits 11,12.)


Federal Rule of Civil Procedure 56 provides that the moving party is entitled to summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. A disputed fact is material if proof of its existence or non-existence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law.

Where, however, there is a disputed issue of material fact, summary judgment will lie only if the factual dispute is not a genuine one. An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party under the governing evidentiary standard. Id. at 248-53, 106 S.Ct. at 2510-12. The moving party has the initial burden of identifying the absence of genuine issues of material fact and establishing its entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 329, 106 S.Ct. 2548, 2554 (1986). The moving party may present its own evidence or simply point out to the court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323. Once the moving party has satisfied its initial burden, the nonmoving party must either present affirmative evidence supporting its version of the material fact or refute the moving party's contention that the fact entitles it to judgment as a matter of law. See Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514. The opposing party must "go beyond the pleadings" and set forth specific facts to show that a genuine issue exists. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). This burden may not be met with conclusory statements of speculations, but only with appropriate citations to relevant admissible evidence. "[C]onclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment." Olympic Junior, Inc. v. David Crustal, Inc., 463 F.2d 1141, 1146 (3d Cir. 1972).

A court considering a summary judgment motion need not accept conclusory allegations or denials taken from the pleadings, Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) credit the evidence of the non-movant and draw all justifiable inferences in its favor. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id., 477 U.S. at 249, 106 S.Ct. at 2511. Summary judgment is mandatory when, after adequate time for discovery, a party fails 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." Hertzke v. Riley, 715 F. Supp. 117, 119 (1989). Under this standard, Magistrate Judge Blewitt has recommended that the court grant Defendants' motion for summary judgment with respect to all Plaintiff's federal claims, and that the state claims be dismissed without prejudice. (Report and Recommendation, Doc. 24.)

Plaintiff has filed objections to the Magistrate Judge's report and recommendation, (Doc. 27), arguing that the Magistrate Judge failed to properly apply the standard enunciated in Tinker v. Des Moines Independent Community School District by dismissing her First Amendment claims, and that he misapplied the facts when considering Defendant Leonard and qualified immunity for all Defendants.

Where a Magistrate Judge makes a finding or ruling on a motion or issue, his determination should generally become that of the court unless a specific objection is filed within the prescribed time. See Thomas v. Arn, 474 U.S. 140, 150-53, 106 S.Ct. 466, 472-74, 88 L.Ed.2d 435 (1985). Where, however, as here, objections are filed to the Magistrate Judge's report and recommendation, the district court is required to give plenary consideration to the matter and make a de novo determination of the contested issues, see Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989); 28 U.S.C. § 636(b)(1)(C)); Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987); Owens v. Beard, 829 F. Supp. 738, 738 (M.D.Pa. 1993), provided the objections are both timely and specific, see Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). Although the review is de novo, the statute permits the district court to rely on the recommendations of the Magistrate Judge to the extent it deems proper. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2413, 65 L.Ed.2d 424 (1980); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984); Ball v. United States Parole Commission, 849 F. Supp. 328, 330 (M.D. Pa. 1994). The district court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the Magistrate Judge. 28 U.S.C. § 636(b)(1); Owens, 829 F. Supp. at 738.

As the Court's review of the Magistrate Judge's report is de novo, the court will review the Magistrate Judge's findings and conclusions under the substantial evidence standard. Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2000). Substantial evidence is more than a mere scintilla but less than a preponderance, and has been defined as such evidence that a reasonable person would accept as adequate to support a conclusion. Id.; Gilliland v. Heckler, 786 F.2d 178, 183 (3d Cir. 1986). Further, as the Third Circuit has explained:

Our decisions make clear that determination vel non of substantial evidence is not merely a quantitative exercise. A single piece of evidence will not satisfy the substantiality test if the [agency] ignores, or fails to resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is overwhelmed by other evidence — particularly certain types of evidence (e.g., that offered by treating physicians).

Kent v. Schweiker, 710 F.2d 110, 114 (3d Cir. 1983) (citations omitted). So far as the Magistrate Judge's findings are supported by substantial evidence, those findings are binding on this court. Fargnoli, 247 F.3d at 38.


Plaintiff alleges a violation of 42 U.S.C. § 1983, her First and Fourteenth Amendment rights and Article 1, §§ 7 and 20 of the Pennsylvania Constitution. In preventing Plaintiff from circulating her petition, Defendants violated Plaintiff's right to free speech and due process (Count I); Plaintiff's right to petition for redress of grievances (Count II); Plaintiff's right to freedom of association (Count III); and intentional infliction of emotional distress (Count IV).

For the reasons set forth below, Defendants' motion for summary judgment is granted. Plaintiff's federal law claims are dismissed, and her state law claims are dismissed without ...

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