United States District Court, M.D. Pennsylvania
June 13, 2005.
ASHLEY DOE, a minor, by and through her Parents and Natural Guardians, MICHAEL DOE and GAYLE DOE, Plaintiff
EAST STROUDSBURG AREA SCHOOL DISTRICT and BLAND RICKY ROBERTS, Defendants.
The opinion of the court was delivered by: JAMES MUNLEY, District Judge
Before the court for disposition is Defendant Bland Ricky
Roberts' (hereinafter "Roberts" or "defendant") motion to dismiss
plaintiffs' complaint. The matter has been fully briefed and
argued, rendering it ripe for disposition.
At all relevant times, Plaintiff Ashley Doe (hereinafter
"plaintiff" or "minor plaintiff") was a student at the East
Stroudsburg Area School District. Defendant Bland Ricky Roberts
(hereinafter "Roberts" or "defendant") was a coach/teacher at the
Defendant allegedly applied ointment to a rash on plaintiff's
stomach in the bathroom of the high school's suspension room.
Roberts asked the plaintiff to pull her pants down to ensure that
she did not have a rash anywhere else. After she started to pull
down her pants, he pulled them down further himself. He touched her on the pubic area. Based upon this incident,
plaintiff has suffered: embarrassment; humiliation; mental
anguish; psychological and emotional distress; severe and
continuing feelings of fear, anger and guilt; and severe and
continuing feelings of lack of self-worth and inadequacy.
Plaintiff has brought a civil rights suit pursuant to
42 U.S.C. § 1983.*fn2 She has filed a six-count complaint alleging:
Count 1: Unreasonable Search and Seizures in violation of the
Fourth and Fourteenth Amendments; Count 2: violation of
substantive due process, constitutional right to privacy; Count
3: Assault (state law); Count 4: Battery (state law); Invasion of
Privacy (state law); and Count 6: Intentional Infliction of
Emotional Distress (state law). Defendant Roberts has filed a
motion to dismiss the complaint based upon Rule 12(b)(6) of the
Federal Rules of Civil Procedure, bringing the case to its
As this case is brought for constitutional violations we have
jurisdiction under 28 U.S.C. § 1331 ("The district courts shall
have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States."). We have
supplemental jurisdiction over the plaintiff's state law claims
pursuant to 28 U.S.C. § 1367.
Standard of review
When a 12(b)(6) motion is filed, the sufficiency of a
complaint's allegations are tested. The issue is whether the
facts alleged in the complaint, if true, support a claim upon
which relief can be granted. In deciding a 12(b)(6) motion, the
court must accept as true all factual allegations in the
complaint and give the pleader the benefit of all reasonable
inferences that can fairly be drawn therefrom, and view them in
the light most favorable to the plaintiff. Morse v. Lower Merion Sch.
Dist., 132 F.3d 902, 906 (3d Cir. 1997).
Defendant raises the following issues in his motion to dismiss:
1) No search or seizure occurred, therefore, plaintiffs'
Fourth Amendment claim must be dismissed; 2) No medical treatment was
provided, therefore plaintiffs' claims must be dismissed; 3)
Plaintiffs' substantive due process and right to privacy claims
should be dismissed because in order to sustain this claim, the
defendant must engage in conduct that was so ill-conceived or
malicious that is shocks the conscience, and the plaintiffs have
not alleged such conduct; 4) Defendant is subject to qualified
immunity; 5) The suit against the defendant in his official
capacity should be dismissed as it is duplicative of the suit
against the defendant school district; 6) Common law immunity
applies; 7) The minor plaintiff's parents cannot assert a
violation of their rights based upon a violation of the
plaintiff's rights; and 8) Punitive damages are not properly
pled. We shall discuss these issues in seriatim.
I. Fourth Amendment Claim
Defendant's first argument is that plaintiff's Fourth Amendment
claim must be dismissed. The Fourth Amendment of the
United States Constitution protects individuals from unreasonable
searches and seizures.*fn3 The United States Supreme Court
has held that the Fourteenth Amendment extends this
constitutional guarantee to searches and seizures performed by
state officers, including public school officials. Vernonia
School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). Defendant
claims that no search or seizure occurred in the instant case,
therefore, plaintiff's Fourth Amendment claim should be dismissed. After a careful review, we disagree.
Plaintiff argues that according to the complaint, Defendant
Roberts pulled the minor's pants down further than she had, in
order to examine her and to determine if she had a rash there.
Such an activity is clearly a search according to the plaintiff.
In support of her position, the plaintiff cites the following
cases: Vernonia School District 47 v. Acton, 515 U.S. 646
(1995); Good v. Dauphin County Social Services for Children and
Youth, 891 F.2d 1087 (3d Cir. 1989); Cornfield v. Consolidated
High School District No. 230, 991 F.2d 1316 (7th Cir. 1993);
and Tenenbaum v. Williams, 862 F. Supp. 962 (E.D.N.Y. 1994).
Defendant contends that these cases are all distinguishable
from the instant case. In all of these cases, the search was
performed for some investigatory purpose. For example, in
Veronia, at issue was urinalysis conducted to determine whether
students were using illegal drugs or alcohol, 515 U.S. at 649-50;
Good, involved a child who was strip searched to determine if
she had been beaten by her mother to determine if child abuse had
occurred, 891 F.2d at 1090; Cornfield included allegations of a
strip search performed to determine if a student possessed drugs,
991 F.2d at 1319; and in Tenenbaum, a gynecological exam of
student was performed to determine if she had been sexually
abused 862 F. Supp. at 967. Defendant argues that these cases
illustrate the requirement that a search have an "investigatory"
nature for it to rise to a constitutional level. No investigatory
purpose is present in the instant case, therefore, no
constitutional search occurred, according to defendant.
We find that Third Circuit Court of Appeals has not limited
Fourth Amendment searches to those possessing an investigatory
purpose. In Gruenke v. Seip, for example, the Third Circuit
Court of Appeals found a Fourth Amendment search where a school
official required a student to submit to a pregnancy test.
225 F.3d 290, 300. Although, no investigatory purpose is apparent
the school was not searching for evidence of contraband or child abuse the court found that the
test "clearly" constituted a search. Id.
Likewise, in the instant case, when the defendant, a state
actor, allegedly lowered the plaintiff's pants to examine her, a
Fourth Amendment search occurred. Accordingly, we reject the
defendant's argument, and we will not dismiss the case on the
basis that a search did not occur.
II. Medical Treatment
The second count of the plaintiff's complaint asserts that her
substantive due process rights were violated because she was
subjected to unwanted medical treatment. She claims that
Defendant Roberts violated her rights by intruding into the zones
of privacy related to one's own bodily integrity and the right to
refuse medical treatment. Compl. ¶ 41. In addition, Count II
asserts that the defendant violated the minor plaintiff's right
to independent control of her own medical treatment in violation
of the Due Process Clause of the United States Constitution.
Compl. ¶ 42.
Defendant concedes that the Due Process Clause of the
Fourteenth Amendment confers a significant liberty interest in
avoiding unwanted medical treatment. He claims, however, that the
complaint fails to allege any medical treatment occurred in the
instant case. More particularly, defendant claims that ointment
was merely administered to plaintiff's rash, and the application
of ointment is not medical treatment.
The substantive due process aspect of the Fourteenth Amendment
protects certain fundamental rights, including the right to be
free from unjustified bodily intrusions, the right to refuse
unwanted medical treatment and the right to sufficient
information to intelligently exercise those rights. White v.
Napoleon, 897 F.2d 103, 111 (3d Cir. 1990). The law also
protects a plaintiff's interest in avoiding the disclosure of
personal medical matters. Gruenke v. Seip, 225 F.3d 290, 302
(3d Cir. 2000). In the instant case, the gist of the defendant's argument is
that the application of ointment to the plaintiff was not so
intrusive as to implicate any substantive due process rights. We
disagree. While the parties have cited no case directly on point
and our research has uncovered none, we find that the defendant's
interpretation of the law is unjustifiably narrow.
Defendant's argument is that in Pennsylvania the doctrine of
informed consent sets the standard for what constitutes medical
treatment and when informed consent is necessary. The defendant
argues that "informed consent" only relates to medical or
surgical procedures and does not extend to the administration of
therapeutic drugs. In the instant case, the defendant is alleged
to have merely applied a therapeutic drug to the minor plaintiff.
The minor plaintiff could have obtained the ointment
"over-the-counter" at a drugstore. Defendant, therefore, likens
this case to Parents United for Better Schools, Inc. v. School
Dist. of Phila. Bd. of Educ., 978 F. Supp. 197 (E.D. Pa. 1997),
which held that condom distribution in schools is not medical
treatment. Id. at 206. We are in disagreement with the
In Parents United, the court acknowledges that consent is
necessary in cases where medical personnel come in physical
contact with the patient. Id. In the instant case, the
defendant is not alleged to have merely distributed the ointment
to the minor plaintiff, but to have physically contacted her and
rubbed the ointment onto her abdominal region. Accordingly, we
find that the defendant did engage in a "medical treatment" and
reject his arguments with regard to the minor plaintiff's
substantive due process claim.
III. Shocks the conscience
Defendant next argues that the substantive due process claim
should be dismissed because to maintain such an action, the
alleged conduct of the defendant must "shock the conscience."
Defendant claims that the defendant's actions in the instant
matter, even if proven as true, cannot rise to the level of conscience shocking. We disagree.
"[T]he substantive component of the Due Process Clause can only
be violated by governmental employees when their conduct amounts
to an abuse of official power that `shocks the conscience.'"
Fagan v. City of Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994).
The facts as alleged in the instant case are that Defendant
Roberts, plaintiff's coach and/or teacher, applied ointment to
the minor plaintiff's stomach. He asked her to pull her pants
down, and then pulled them down further by himself. He touched
the plaintiff on the pubic area. Compl. ¶ 20-21. We cannot agree
with the defendant that as a matter of law such allegations do
not shock the conscience. Accordingly, the motion to dismiss with
respect to the substantive due process claim will be denied.
IV. Qualified Immunity
Defendant raises qualified immunity as a defense to the
plaintiff's claims. He argues that as an individual school
district employee, he is immune from suit under section 1983
pursuant to the doctrine qualified immunity.
In order to invoke the qualified immunity defense, the
defendant must prove either that the plaintiff has not alleged a
violation of constitutional right or has not alleged a violation
of a constitutional right that was clearly established at the
time in question. Saucier v. Katz, 533 U.S. 194, 202 (2001).
"The relevant, dispositive inquiry in determining whether a right
is clearly established is whether it would be clear to a
reasonable [defendant] that his conduct was unlawful in the
situation he confronted." Id.
Based upon our analysis above, we have found that the plaintiff
has pled a violation of constitutional rights. These rights are
not so newly recognized or novel for us to find that a reasonable
official would not have reasonably known of them. Accordingly, we
cannot at this time grant qualified immunity to the defendant.
V. Official Capacity
Defendant Roberts also seeks to dismiss the federal civil
rights portion of the complaint on the basis that claims against
him in his official capacity are duplicative of claims against
the school district. We must determine, therefore, whether
Defendant Roberts is being sued in his individual or his official
capacity or both.
"Personal-capacity suits seek to impose personal liability upon
a government official for actions he takes under color of state
law." Kentucky v. Graham, 473 U.S. 159, 165 (1985).
"Official-capacity suits, in contrast, generally represent only
another way of pleading an action against an entity of which an
officer is an agent." Id. (internal quotation marks omitted).
The Supreme Court has further explained: "Suits against state
officials in their official capacity therefore should be treated
as suits against the State. Indeed, when officials sued in this
capacity in federal court die or leave office, their successors
automatically assume their role in the litigation." Hafer v.
Melo, 502 U.S. 21, 25 (1991).
To discern whether plaintiff sued Roberts in his personal,
official capacity or both, we must look to the complaint and the
course of the proceedings. Melo v. Hafer, 912 F.2d 628, 635 (3d
Cir. 1990) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.
14). The complaint does not specify the capacity in which
Defendant Roberts is sued. It merely states: "Defendant, Bland
Ricky Roberts, was at all times relevant hereto an employee of
the Defendant, East Stroudsburg Area School District, acting in
the capacity of an athletic coach." Compl. ¶ 18.
A review of the allegations of the complaint reveal, however,
that Roberts is being sued in his personal capacity. The
complaint asserts that defendant touched the pubic area of the
minor plaintiff while applying ointment to her stomach. Compl. ¶ 20. The complaint is
therefore attempting to impose personal liability for actions
that defendant took under color of state law. He is not merely
being sued as the alter-ego of the school. If he were to die or
leave his position, the new school coach/teacher would not
automatically be substituted as a defendant. Accordingly, he has
been sued in his personal, or individual capacity.
Our conclusion is further supported by the fact that Defendant
Roberts has raised the issue of qualified immunity, a defense
available only to those governmental officials who are sued in
their personal, individual capacities, not those sued in their
official capacity. Melo, 912 F.2d at 636.
Accordingly, we find no merit to Defendant's argument that the
civil rights allegations against him should be dismiss on the
basis that they merely duplicate the claims against the school
VI. Common Law Immunity
Defendant Roberts also claims that he is immune from suit from
the state tort claims. Defendant's argument lacks merit.
Pennsylvania law provides a conditional immunity for torts
committed by public officers and employees, who are not "high
officials" where they act within the scope of their authority and
their negligent conduct is not intentionally malicious, wanton or
reckless. Dubree v. Pennsylvania, 303 A.2d 530, 534 (Pa.Commw.
First, we note that it is questionable whether this immunity
applies to intentional torts at all, as it is couched in terms of
"negligence" in the Dubree case, which is cited by the
defendant. Id. Second, the complaint does allege that the
defendant acted with the sufficient intent. For example, the
battery count asserts that the defendant directly contacted the
plaintiff's pubic area "with the intention of inflicting offensive contact upon the Minor Plaintiff's person. . . ."
Compl. ¶ 49.
Additionally, local agencies and employees thereof in
Pennsylvania are covered by statutory official immunity. See
42 Pa.C.S.A. § 8546. The statute does not apply, however, where the
conduct of the employee constituted a crime, actual fraud, actual
malice or willful misconduct. 42 Pa.C.S.A. § 8550. "Willful
misconduct" under this section has the same meaning as the term
"intentional tort." Delate v. Kolle, 667 A.2d 1218, 1221 (Pa.
Commw. 1995). As the plaintiff alleges that the defendant
committed intentional torts, the immunity would, by definition,
Moreover, it is too early, without discovery yet being
completed, to determine whether the defendant acted with intent,
maliciousness, wantonness or recklessness as these are factual
determinations. Accordingly, the defendant's motion to dismiss
based upon common law immunity will be denied.
VII. Parents' claims
The defendant moves to dismiss the substantive claims asserted
by the minor's parents. Plaintiff's complaint asserts that they
were deprived of their "time honored . . . parental liberties."
Compl. ¶ 7. Defendant concedes that parents can assert such a
claim, but only if they aver that the defendant acted with
deliberate indifference to a known danger. Brown v.
Pennsylvania, 318 F. 3d 473, 479 (3d Cir. 2000). Defendant then
argues that the plaintiff has not alleged that he acted in
conscious disregard of harm that could have occurred. We are
The complaint, as discussed above, asserts intentional behavior
on the part of the defendant in pulling the minor plaintiff's
pants down further than they had been lowered and touching her on
the pubic area. Such intentional behavior, if proven, could
establish a conscious disregard of the harm that could have
occurred. Accordingly, the defendant's motion to dismiss the
parents' claims will be dismissed. VIII. Punitive damages
Defendant argues that the plaintiffs' claim for punitive
damages does not state a claim as the allegations do not rise to
the level of outrageousness required for punitive damages. We
Punitive damages may be awarded where a person's action are of
such an outrageous nature as to demonstrate intentional, willful,
wanton or reckless conduct. Ruffing v. 84 Lumber Co.,
600 A.2d 545, 551 (Pa.Super.Ct. 1991). When viewed in the light most
favorable to the plaintiffs, we cannot say that they have failed
to allege outrageous behavior that was intentional, willful,
wanton or reckless. Accordingly, the punitive damages claim will
not be dismissed.
For the reasons set forth above, the motion to dismiss filed by
Defendant Bland Ricky Roberts will be denied. An appropriate
AND NOW, to wit, this 13th day of June 2005, the motion to
dismiss filed by Defendant Bland Ricky Roberts (Doc. 12) is