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Walsh v. Krantz

August 22, 2008

RORY M. WALSH, INDIVIDUALLY AND AS NATURAL GUARDIAN OF C.R.W. AND, S.J.W., PLAINTIFFS
v.
DR. ROBERT KRANTZ, SHARI A. YOUNG, SUE A. CATHCART, JUDY KEENEY, KELLY HEISEY, UNKNOWN DALLASTOWN STAFF MEMBER, DR. STEWART WEINBERG, DALLASTOWN AREA SCHOOL DISTRICT, CATHY STONE, AND GREG ANDERSON, DEFENDANTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Presently before the court is a motion, filed by defendants, Dr. Robert Krantz ("Krantz"), Shari A. Young ("Young"), Sue A. Cathcart ("Cathcart"), Judy Keeney ("Keeney"), Kelly Heisey ("Heisey"), Dr. Stewart Weinberg ("Weinberg"), Cathy Stone ("Stone"), Greg Anderson ("Anderson"), and the Dallastown Area School District ("School District"),*fn1 to dismiss the claims of pro se plaintiff Rory M. Walsh ("Walsh") brought individually and on behalf of his sons, C.R.W. and S.J.W. For the reasons that follow, the motion will be granted in part and denied in part.

I. Statement of Facts*fn2

According to the amended complaint, this lawsuit arises from numerous incidents plaintiff and his sons have had to endure while his sons have attended Dallastown Area schools. The incidents started in 2004 when Mrs. Zarfoss, an English teacher at Dallastown Area Middle School, arrived at Walsh's residence on a Sunday without prior notification and purportedly proceeded to curse and insult Walsh. Since that time, Krantz, then-principal of Dallastown Area Middle School, and others have allegedly retaliated against Walsh for Walsh's attempts to report the abuses suffered by him and his sons. For example, Krantz and Heisey purportedly attempted to have C.R.W. removed from Walsh's custody. (Doc. 52 at 3 ¶ 9, 4-7 ¶ 12.) It is also alleged that defendants attempted to prohibit S.J.W. from entering the Dallastown Area Middle School. The School District asked Walsh for a copy of his lease, but did not require all families to provide proof of residence in the district. (Id. at 5.) In addition, Stone allegedly attempted to assign S.J.W. to a lower grade level in math, and Stone and Anderson refused to discuss this decision with Walsh.*fn3 (Id. at 6.)

On March 29, 2006, Krantz allegedly blocked the first of two telephone calls from Walsh to C.R.W.*fn4 With the assistance of an unknown Dallastown staff member, Krantz allegedly eavesdropped on a subsequent telephone conversation between Walsh at his office and C.R.W. at school. An email from Krantz to Walsh purportedly revealed the contents of the conversation between Walsh and his son and "expressed [Krantz's] fury that a parent would call his school, twice in the same day."*fn5 (Id. at 7 ¶¶ 2-3, 8 ¶ 6, 9-10 ¶¶ 12-13, 15.)

On May 19, 2008, Walsh received a request from the School District for his consent to an evaluation of C.R.W.*fn6 The request stated, in part:

[C.R.W.] is referred for a multidisciplinary evaluation to establish his levels of cognitive and academic functioning to ensure appropriate educational programming.

We request your consent to conduct an evaluation of your child. . . . Giving your consent for evaluation does not mean you give consent to special education placement or services. In the evaluation, we will review your child's educational needs and strengths (as shown by academic achievement, functional performance, a review of existing data, current classroom[] based observations and evaluations, local and state assessments, and information from you). Specific types of assessment tools, tests and procedures that will be used in the evaluation include the following:

The PSYCHOLOGICAL EVALUATION may include the following instruments: (1) intelligence, (2) achievement, (3) visual motor perception, (4) personality, (5) hemispheric performance/neuro/psychological only, (6) clinical interviews, (7) observation forms, (8) checklists and/or (9) any other materials deemed necessary by the certified public school psychologist.

The multidisciplinary team must determine whether your child is a child with a disability and will prepare recommendations regarding your child's educational programs, and whether your child is in need of, and is eligible for special education and related services. . . . (Id., Ex. B.) Walsh refused consent for the evaluation. (Id.) He alleges that no incident precipitated such a request from the School District (id. at 6) and that C.R.W. is a "stellar" performer in school (id. at 13; see also id., Ex. C). According to the amended complaint, Weinberg and Heisey ordered Lydia Schnetzka at the Special Education Office to deliver this request for evaluation of C.R.W. to Walsh each year that C.R.W. is in the Dallastown Area schools. (Id. at 6-7, 12 ¶ 21.)

Walsh commenced the instant action on April 2, 2007. (See Doc. 1.) The memorandum and order of court dated June 4, 2008 (Doc. 46) dismissed all claims except: (1) Walsh's individual claims and claims on behalf of C.R.W. pursuant to the Federal Wiretapping Act and the Pennsylvania Wiretap Act against defendants Krantz, an unknown Dallastown staff member, and the School District for the alleged eavesdropping on a telephone conversation between plaintiff and his son, and (2) Walsh's individual Fourth Amendment claim pursuant to 42 U.S.C. § 1983 against defendants Krantz and an unknown Dallastown staff member for the same incident. The court also granted Walsh leave to amend with respect to certain claims.*fn7

On June 25, 2008, Walsh filed an amended complaint. (See Doc. 52.) Along with the claims not previously dismissed, Walsh brings the following claims in the amended complaint: (1) Walsh's individual claim pursuant to 47 U.S.C. § 605 against Krantz and an unknown Dallastown staff member, (2) Walsh's individual claim and claim brought on behalf of C.R.W. under the Fourth Amendment pursuant to 42 U.S.C. § 1983 against Krantz, an unknown Dallastown staff member, and the School District, (3) claims on behalf of C.R.W. and S.J.W. for breach of fiduciary trust against Krantz, Cathcart, Weinberg, Heisey, Young, Anderson, and Stone, (4) Walsh's individual claim and claims on behalf of C.R.W. and S.J.W. for intentional infliction of emotional distress against Krantz, Cathcart, Weinberg, Heisey, Young, Anderson, Stone, and Keeney, (5) Walsh's individual claim and claims on behalf of C.R.W. and S.J.W. for negligent infliction of emotional distress against Krantz, Cathcart, Weinberg, Heisey, Young, Anderson, Stone, and Keeney, and (6) Walsh's individual claim and claim on behalf of C.R.W. pursuant to 42 U.S.C. § 1981.*fn8 (Doc. 52; see also Doc. 55.) Defendants filed a motion to dismiss these new claims.*fn9 The motion has been fully briefed and is ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice pleading rules require the complaint to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Sershen v. Cholish, No. 3:07-CV-1011, 2007 WL 3146357, at *4 (M.D. Pa. Oct. 26, 2007) (quoting Erickson v. Pardus, --- U.S. ---, 127 S.Ct. 2197, 2200 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Bell Atl. Corp. v. Twombly, ---U.S. ---, 127 S.Ct. 1955, 1965 (2007) (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). Thus, courts should not dismiss a complaint for failure to state a claim if it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Montville Twp. v. Woodmont Builders LLC, No. 05-4888, 2007 WL 2261567, at *2 (3d Cir. 2007) (quoting Twombly, --- U.S. at ---, 127 S.Ct. at 1969). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

III. Discussion

The instant motion seeks to dismiss the following claims: (1) Walsh's individual claim pursuant to 47 U.S.C. § 605, (2) the claim brought on behalf of C.R.W. under the Pennsylvania Wiretap Act, (3) Walsh's individual claim and claim brought on behalf of C.R.W. under the Pennsylvania Wiretap Act against the School District and Krantz, (4) Walsh's individual claim and claim brought on behalf of C.R.W. under the Fourth Amendment pursuant to 42 U.S.C. § 1983 against the School District, (5) the claims on behalf of C.R.W. and S.J.W. for breach of fiduciary trust, (6) Walsh's individual claim and claims on behalf of C.R.W. and S.J.W. for intentional infliction of emotional distress, (7) Walsh's individual claim and claims on behalf of C.R.W. and S.J.W. for negligent infliction of emotional distress, and (8) Walsh's individual claim and claim on behalf of C.R.W. pursuant to 42 U.S.C. § 1981. The court will address these claims seriatim.

A. 47 U.S.C. § 605

Section 605 of Title 47 of the United States Code provides:

[1] [N]o person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof . . . . [2] No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. [3] No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. [4] No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.

47 U.S.C. § 605(a) (emphasis added). In the instant matter, the amended complaint alleges that Krantz and an unknown Dallastown staff member eavesdropped on a wire communication. (See Doc. 52 at 9 ("[Walsh's] office phone[] and the phone at the school were and remain HARD-WIRED.")). Therefore, the second, third, and fourth sentences of § 605(a), which apply only to radio communications, are inapplicable in this case. See 47 U.S.C. § 605(a). The only sentence which applies-the first sentence-requires "interstate or foreign communication." Id.

The memorandum and order dated June 4, 2008 (Doc. 46) dismissed the § 605 claim from the original complaint, but granted leave to amend, because the original complaint was "devoid of any allegations that could be liberally construed to allege the 'interstate or foreign communication' required with respect to the telephone conversation at issue." (Doc. 46 at 19.) The amended complaint does not allege interstate or foreign communication. Instead, it clearly alleges an intrastate communication by citing three cases-Nardone v. United States, 302 U.S. 379 (1937), Weiss v. United States, 308 U.S. 321 (1939), and Lee v. Florida, 392 U.S. 378 (1968)-and stating that § 605 also applies to intrastate communications. (See Doc. 52 at 8 ¶¶ 7, 9; see also Doc. 66 at 7-8.)

In the instant matter, the reliance on these cases is misplaced. First, Nardone involved wiretapping of interstate communications. See Nardone, 302 U.S. at 380 (examining the applicability of § 605 to "federal agents [who] testified to the substance of petitioners' interstate communications" (emphasis added)). Second, Weiss found intrastate communications covered by the second sentence of § 605(a) which, in 1939, stated that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person." Weiss, 308 U.S. at 327 (emphasis added). As discussed supra, the second sentence of § 605(a) now applies only to radio communications, see 47 U.S.C. § 605(a) (2008), and is inapplicable in the instant case. Finally, Lee involved the same, older version of the second sentence of § 605(a) as in Weiss that now applies only to radio communications. See Lee, 392 U.S. at 379 ; see also 47 U.S.C. ...


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