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PERONTEAU v. GROSS SCHOOL BUS SERVICE

United States District Court, E.D. Pennsylvania


May 20, 2004.

JON PERONTEAU, et al., Plaintiffs, V. GROSS SCHOOL BUS SERVICE, INC.; et al. Defendants

The opinion of the court was delivered by: CLARENCE NEWCOMER, Senior District Judge

ORDER

AND NOW, this ___ day of May, 2004, upon consideration of Plaintiffs' Motion to Amend/Correct the Complaint (Doc. 29), Plaintiffs' Motion to Exceed Page Limits (Doc. 30), Plaintiffs' Motion for Partial Summary Judgment (Doc. 31), Defendant Andrew McLaughlin's and Owen J. Roberts School District's Motion to Exceed Page Limits (Doc. 32), Defendant Andrew McLaughlin's and Owen J. Roberts School District's Motion for Summary Judgment (Doc. 33), Plaintiffs' Motion to Permit a Sur-Reply (Doc. 35), Defendant Andrew McLaughlin's and Owen J. Roberts School District's Motion to Exceed Page Limits (Doc. 39), Defendant Andrew McLaughlin's and Owen J. Roberts School District's Motion for Leave to File a Reply Memorandum (Doc. 41), Gross School Bus Service's and William Meredith's Motion for Summary Judgment (Doc. 22), and all relevant Responses and Replies, it is hereby ORDERED as follows:

1. All Motions to exceed page limits and to file replies or sur-replies (Doc. 30, 32, 35, 39, and 41) are GRANTED. 2. Plaintiffs' Motion to Amend/Correct the Complaint to add a count of false imprisonment against Defendants Gross and Meredith (Doc. 29) is GRANTED. Plaintiffs may amend the Complaint to include a count of false imprisonment. Counsel for Plaintiffs apparently signed a dismissal stipulation without reading it — a bad habit for an attorney. Counsel should have discovered and corrected his oversight earlier, but given the language in the stipulation's cover letter (which stated that the amendment was limited to the criminal component of several claims) his mistake is forgivable. There is little unfair prejudice to the Parties at this point, as the issue of false imprisonment was covered during discovery, and Defendants would not have prevailed on the count by way of summary judgment.
3. Plaintiffs' Motion for Partial Summary Judgment (Doc. 31) on the Section 504 Claims is DENIED. Defendants McLaughlin's and Owen J. Roberts School District's Motion for Summary Judgment on Section 504 Claims (Doc. 33) is DENIED. With respect to their Motion for Summary Judgment on the 29 U.S.C. § 794(a) ("Section 504") claims, Plaintiffs' Motion fails because there is a material question of fact as to whether K.P. was actually discriminated against. For the same reason, the School District's and Defendant McLaughlin's ("Roberts Defendants") Motion for Summary Judgment on this count must be denied. Plaintiffs point to statements allegedly made by K.P.'s teachers that may have been discriminatory. In response to this, Roberts Defendants claim that K.P.'s sound academic performance rebuts any possibility that K.P. was discriminated against. This argument is flawed; the mere fact that K.P. was a good student does not, as a matter of law, refute the possibility that he may have been discriminated against. Section 504 states that no qualified individual shall be subject to discrimination, denied participation in certain programs, or denied the benefits of certain programs, as a result of his or her disability. Because the record arguably contains evidence of discrimination, Plaintiffs must be allowed to proceed to trial on this count.
4. Plaintiffs' Motion for Summary Judgment on the issue of intentional infliction of emotional distress (Doc. 31) is DENIED. Plaintiffs' Counsel proposes a novel argument, that a party-prepared, unscientific internet poll, accompanied by anecdotal comments, can usurp the place of the jury entirely in a determination of whether conduct was extreme or outrageous. The Court will not, as it were, bite. The jury has long occupied a hallowed place in American jurisprudence, and the Court will not jump at the opportunity to replace it. Plaintiffs' Intentional Infliction Claims against Defendants Meredith and Gross School Bus Service, Inc., will survive summary judgment.
5. Roberts Defendants Motion for Summary Judgment (Doc. 33) is GRANTED in part and DENIED in part. Judgment is entered in favor of the School District, and against Plaintiff, with respect to Plaintiff's 42 U.S.C. § 1983 claims (Counts II and III). Plaintiff has offered no evidence that there was a policy, practice, or custom in place that deprived K.P. of his constitutional rights. In fact, in the section of his Response which purports to address their theory of custom, practice, or policy, Plaintiff merely recite the relevant law and note that the School District is a municipality for purposes of § 1983. Plaintiffs' Response at 19. Plaintiff argue that the state-created danger theory should apply, yet the record contains absolutely no evidence that the harm to K.P. was foreseeable, that anyone besides Defendant Meredith (and possibly Defendant Gross School Bus Service) acted in willful disregard of K.P.'s safety, or that the Roberts Defendants used their authority to create an opportunity for Defendant Meredith's imprisonment of K.P., all requirements of this cause of action. Morse v. Lower Merion School District, 132 F.3d 902, 908 (3d Cir. 1997). Plaintiff cites a litany of federal, state, and local regulations relating to the hiring of school bus drivers, none of which have any bearing on his actual claims. Plaintiff will not be able to prevail on his § 1983 claims; summary judgment must be entered for the School District Defendants and against Plaintiff.
6. Summary Judgment is entered in favor of Defendant McLaughlin, in his individual and official capacity, and against Plaintiff, on Plaintiff's § 1983 claims (Counts II and III). Defendant McLaughlin, in his official capacity, is an agent of the School District, and is thus legally indistinguishable from the School District. Kentucky v. Graham, 473 U.S. 159, 165 (1985). Moreover, given the record in this case, no reasonable trier of fact could regard Defendant McLaughlin's role in the imprisonment of K.P. as either deliberately indifferent to the safety of K.P. or complicit in creating a foreseeable danger to K.P. Absent a showing of willful misconduct, Defendant McLaughlin, in his individual capacity, is entitled to qualified immunity from suit for performance of discretionary functions taken as a government official. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For Defendant McLaughlin to be subject to personal liability, Plaintiff would need to show that McLaughlin knew that his conduct violated a clearly established legal standard, but chose to pursue his impermissible actions anyway. There is no evidence that McLaughlin made such a decision here. Moreover, there is no evidence that McLaughlin knew or should have known that Defendant Meredith would imprison K.P. Plaintiff cites an electronic message sent by K.P.'s mother to Defendant McLaughlin as evidence that Defendant McLaughlin should have known that K.P.'s constitutional rights were at risk (Plaintiffs' Exh. J). No reasonable trier of fact could view this message as putting Defendant McLaughlin on notice that K.P.'s constitutional rights were about to be violated. The message merely states that K.P. has been having trouble with Defendant Meredith, that Plaintiffs had not received disciplinary notices by phone or mail, and that K.P. may continue to misbehave. The message contains no plea that Defendant McLaughlin meet with Defendant Meredith, nor does it indicate that K.P. was at risk of being imprisoned, or that his rights were about to be violated.
7. Summary Judgment is entered in favor of the Roberts Defendants, and against Plaintiffs, on Plaintiffs' intentional infliction of emotional distress claims (Count XI). Although the Court does not accept Defendants' arguments regarding Jon and Jane Peronteau's presence, as a matter of law the Roberts Defendants' actions were not extreme or outrageous, given that no evidence shows that they participated in the bus incident. Moreover, Defendant McLaughlin clearly did not engage in willful misconduct with respect to the bus incident, meaning that he is shielded from liability by the Pennsylvania Tort Claims Act ("PTCA"). 42 Pa. Cons. Stat. § 8541 et seq.
8. Summary Judgment is entered for the Roberts Defendants on the issue of Pennsylvania school code violations (Count IV). Plaintiffs rely on a blanket cite to 22 Pa. Code § 12 (the "Public School Code") and 24 P.S. § 13-1318 (regarding expulsion and suspension). Plaintiff's Complaint at ¶ 42. The statutory schemes relied upon by Plaintiffs provide no recourse for the acts allegedly engaged in by the Roberts Defendants, regardless of the content of the record. See In Re: Appeal of JAP, 782 A.2d 1069, 1071 (Pa. Commw. 2001) (holding that there is no recourse from a suspension of less than ten days, and noting that matters of school discipline are deliberately left to the discretion of educators in most cases). There is no expulsion or suspension in this case; further, even if the record could support a claim cognizable by the Public School Code, the Public School Code provides no mechanism for monetary damages. See Whipple v. Warren County School Dist., 133 F. Supp.2d 381 (W.D. Pa. 2000). It is also clear to the Court that Plaintiffs failed to give the School District notice that they intended to pursue claims under the Public School Code, as required by 42 Pa. Cons. State. § 5522(a). The School District is therefore immune from Plaintiffs' claims automatically, with no further inquiry into the application of the PTCA. Lastly, as Plaintiffs have not seen fit to provide any response to the Roberts Defendants' Motion on this point, the Court assumes that they consent to dismissal of these claims.
9. By consent of the Parties, the § 504 claims (Count I) against Defendants Gross School Bus Service and Defendant Meredith ("Gross Defendants") are DISMISSED.
10. Judgment is entered for Gross Defendants, and against Plaintiff, on Plaintiff's § 1983 claims (Counts II and III). Gross Defendants are not state actors, a prerequisite to suit under § 1983. Plaintiff argues that the traditional government function exception allows for § 1983 liability. This exception has been held not to apply to private school bus companies in the Third Circuit, under cases involving similar facts. See Black v. Indiana Area School District, 985 F.2d 707 (3d Cir. 1993). The mere fact that the Gross Defendants were subject to regulation by the Commonwealth and School District is not enough to render them state actors. See American Mfrs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). Rather, Plaintiff must show that the Gross Defendants performed a function that has "traditionally been the exclusive province of the state." Black at 711. Even though Plaintiff would likely not succeed as a matter of law on this point, he has nonetheless offered no evidence whatsoever that the Commonwealth or the School District Defendants have traditionally been the exclusive providers of busing. Therefore, without reaching the issue of whether school busing can ever be a function that is traditionally the exclusive province of the state, the Court is obligated to enter judgment for the Gross Defendants on Plaintiff's § 1983 claims for failure to offer any evidence in support of them.
11. Judgment is entered for Gross Defendants, and against Plaintiffs, on Plaintiffs' claims for violations of Chapter 12 of the Pennsylvania School Code (Count IV). Plaintiffs apparently claim that Gross Defendants ran afoul of the prohibition of disproportionate punishment in 22 Pa. Code § 12.5(e). There is no allegation or evidence of corporeal punishment as defined by 22 Pa. Code § 12.5(a). Plaintiffs also seem to rely on 24 P.S. § 13-1318 as a basis for imposing liability on Gross Defendants. As this section of the Public School Code deals with suspension and expulsion of pupils, and there is no allegation or evidence of suspension or expulsion in this case, this section is clearly inapplicable.
12. The Court will not dismiss the intentional infliction of emotional distress claims against Gross Defendants.
AND IT IS SO ORDERED.
20040520

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