United States District Court, W.D. Pennsylvania
November 2, 2005.
TINA L. MAGWOOD, individually and as parent and natural guardian of minor child, ALLEN JACKSON, Plaintiff,
CHRISTINA FRENCH, individually and officially, DR. JACQUELINE WEBB, individually and officially, VAN DEREK SMITH, individually and officially, RICHARD ADAMS, individually and officially, HELEN KUHN, individually and officially, CITY OF DUQUESNE and SCHOOL DISTRICT OF DUQUESNE, Defendants.
The opinion of the court was delivered by: WILLIAM STANDISH, Senior District Judge
Plaintiffs, Tina L. Magwood (individually, "Magwood") and Allen
Jackson (individually, "Jackson"), a minor, filed this civil
action on July 8, 2005, asserting claims against defendants,
Christina French, Dr. Jacqueline Webb, Van Derek Smith
(individually, "Smith"), Richard Adams (individually, "Adams"),
Helen Kuhn, City of Duquesne (individually, "the City") and
School District of Duquesne, under 42 U.S.C. § 1983 (Counts I and
II) and under the Pennsylvania Constitution and common law (Count
III). Jackson is a student at Duquesne Elementary School, and
plaintiffs' claims arise out of assaults on Jackson by other
Duquesne Elementary School students between January or February,
2003 and March 15, 2005. On September 9, 2005, Smith, Adams and the City (collectively,
"the City defendants") moved to dismiss plaintiffs' complaint
pursuant to Fed.R.Civ.P. 12(b)(6). With respect to Count I of the
complaint, which is asserted against all defendants, the City
defendants assert that plaintiffs have failed to establish a
Section 1983 claim against them under the state-created danger
theory of liability. As to the claims asserted against Smith
(Counts I and III) and Adams (Counts I and II), the City
defendants assert that Smith and Adams are entitled to qualified
immunity. Regarding Count II of the complaint, Adams and the City
assert that plaintiffs cannot establish their claim of a failure
to train because there was no underlying violation of plaintiffs'
civil rights by these defendants. Turning to Count III of the
complaint, the City defendants join in the motion of their
co-defendants to dismiss Count III. In addition, the City
defendants assert that Smith is immune from the state law claims
asserted in Count III (to the extent the claims sound in
negligence) under the Political Subdivisions Tort Claims Act,
42 Pa.C.S.A. § 8541. In connection with plaintiffs' claim for
punitive damages, the City defendants assert that they are immune
from such damages under Section 1983. Finally, the City
defendants join in the motion of their co-defendants to dismiss
the Section 1983 claims asserted by Magwood.
On September 21, 2005, plaintiffs moved for an extension of
time in which to respond to the City defendants' motion to dismiss. The motion, which was not opposed, was
granted, and, on September 30, 2005, plaintiffs filed a motion
for leave to file an amended complaint, together with the
proposed amended complaint. In the motion, plaintiffs indicate
their desire to file an amended complaint to (a) withdraw the
Section 1983 claim against the City in Count I; (b) withdraw the
claims asserted against Adams; (c) withdraw the state law claims
asserted in Count III; (d) limit their request for punitive
damages to the individual defendants in their individual
capacities; and (e) withdraw the Section 1983 claim against the
City in Count II and add a new Count III to assert another
Section 1983 claim solely against the City. By Order dated
October 4, 2005, defendants were directed to file a response to
plaintiffs' motion for leave to file an amended complaint on or
before October 20, 2005, and the Order provided that failure to
file a response will be deemed consent to the motion.
On October 20, 2005, the City defendants filed a response to
plaintiffs' motion for leave to file an amended complaint,
indicating that they do not oppose the motion or the amended
complaint attached to the motion and will agree to withdraw their
motion to dismiss on the condition that the Court permit them to
raise some or all of the arguments set forth in their motion to
dismiss in a motion for summary judgment after the close of
discovery, which the Court finds reasonable and appropriate.
Under the circumstances, plaintiffs' motion for leave to file an amended complaint will be granted, and the
motion of the City defendants to dismiss plaintiffs' complaint
will be denied without prejudice to the right of said defendants
to raise the arguments set forth in their motion to dismiss in a
motion for summary judgment after the close of discovery.
AND NOW, this 2nd day of November, 2005, IT IS SO ORDERED.
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