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June 13, 2005.

ASHLEY DOE, a minor, by and through her Parents and Natural Guardians, MICHAEL DOE and GAYLE DOE, Plaintiff

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 school district.

  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 present posture.


  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 ...

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