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Kach v. Hose

September 12, 2008

TANYA NICOLE KACH, A/K/A NIKKI DIANE ALLEN, PLAINTIFF,
v.
THOMAS HOSE AND ON BEHALF OF BOTH ST. MORITZ SECURITY SERVICES, INC., AND MCKEESPORT SCHOOL DISTRICT; ST. MORITZ SECURITY SERVICES, INC., A PENNSYLVANIA CORPORATION, AND ON BEHALF OF THE MCKEESPORT SCHOOL DISTRICT; MCKEESPORT SCHOOL DISTRICT; MCKEESPORT SCHOOL BOARD; DR. ROBERT WEINFURTNER, SUPERINTENDENT; THE CITY OF MCKEESPORT; ELEANOR HOSE AND HOWARD HOSE, AS HUSBAND AND WIFE; E. MICHAEL ELIAS, JUVENILE LIEUTENANT MCKEESPORT POLICE; DAN PACELLA, VICE-PRINCIPAL MCKEESPORT SCHOOL DISTRICT; ANDREA ABRAMS, ACTING-PRINCIPAL MCKEESPORT SCHOOL DISTRICT; TOM CARTER, BOTH CHIEF, MCKEESPORT POLICE, AND MCKEESPORT SCHOOL BOARD MEMBER; JUDY SOKOL; AND DEBBIE BURNETTE, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Lancaster District Judge

MEMORANDUM and ORDER

This is an action in civil rights under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff, Tanya Kach, alleges that the individual and municipal defendants violated her substantive due process and equal protection rights under the Fourteenth Amendment to the United States Constitution. Plaintiff also alleges various state law claims. All claims stem from plaintiff's ten year relationship with defendant Thomas Hose, a former security guard who worked at plaintiff's school in the McKeesport School District.*fn1

St. Moritz Security Services, Inc., the McKeesport School District defendants, and the City of McKeesport defendants have filed motions for summary judgment pursuant to Fed.R.Civ.P. 56(c) [doc. nos. 117, 122, and 112]. These defendants argue, among other things, that plaintiff's claims against them are untimely and, therefore, barred by the applicable statute of limitations. For the reasons set forth below, the motions will be granted.

I. BACKGROUND

Unless otherwise indicated, the material facts set forth below are undisputed.

On February 10, 1996, plaintiff ran away from home. At the time, she was fourteen years old and a student at Cornell Middle School in the McKeesport School District. Plaintiff was troubled both at home, where she lived with her father and his girlfriend, and at school. She ran away from home on numerous prior occasions, struggled academically, missed school, skipped class repeatedly, and was often disciplined for fighting at school.

Although plaintiff had run away from home before, she had always returned. However, when plaintiff left her home on February 10, 1996, she had no intention of returning. This time, plaintiff left home to live with defendant Thomas Hose, a thirty seven year old security guard at the Cornell School. She had developed a social relationship with defendant Hose on school property beginning in the fall of 1995 that escalated to a sexual one. Plaintiff did not return to school, or tell anyone of her plan or where she was. She lived with defendant Hose, his mother, defendant Eleanor Hose, and father, defendant Howard Hose, until March 21, 2006.

Police came to the Hose home twice in 1999. On both occasions, plaintiff hid from police and made no effort to alert them to her presence. Although she was not physically restrained or locked in the house and had access to a telephone, plaintiff never tried leave, or use the telephone to notify anyone of her whereabouts.

In March of 2000, with defendant Hose's permission, plaintiff left the Hose house for the first time. She took a bus to a nearby shopping center to purchase personal items. After that, she would leave the house periodically by herself to run errands and go for walks. On those occasions, plaintiff made no attempt to return to her father's home or reveal her identity to anyone. Also in 2000, plaintiff asked defendant Hose to contact a lawyer regarding their relationship and ability to marry.

In June of 2005, plaintiff contends that she met defendant Hose's parents for the first time and assumed her alias, Nikki Diane Allen.*fn2 Defendant Hose introduced her as his girlfriend, "Nikki," who was going to be living with them. At that point, plaintiff began to freely walk about the house. Plaintiff finally revealed her identity to friends for the first time in March of 2006. One of those friends contacted the authorities and, on March 21, 2006, the police came to the Hose residence and removed her.

Thomas Hose was arrested and ultimately pled guilty to numerous state law crimes: endangering the welfare of children; sexual assault; indecent assault; interference with the custody of children; corruption of a minor; involuntary deviant sexual intercourse; and aggravated indecent assault. He is currently serving a five to fifteen year prison sentence in the custody of the Pennsylvania Department of Corrections.

On September 14, 2006, plaintiff filed this lawsuit.

Plaintiff alleges section 1983 claims against the City of McKeesport defendants, the McKeesport School District defendants, and defendant St. Moritz, all of whom plaintiff claims acted under color of state law. Specifically, plaintiff alleges that the City of McKeesport defendants violated her Fourteenth Amendment substantive due process rights by: (1) failing to adequately investigate her inappropriate relationship with defendant Hose and her disappearance; (2) failing to adequately train and supervise police officers due to a custom or policy of indifference to the necessity for adequate training and supervision in lost juvenile matters; and (3) having a policy or custom of inadequate response to, and investigation of, citizen complaints. Plaintiff further claims the City of McKeesport defendants violated her Fourteenth Amendment equal protection rights to an education free and clear of such civil rights violations.

Plaintiff alleges that the McKeesport School District defendants violated her Fourteenth Amendment substantive due process and equal protection rights by: (1) failing to detect and prevent the inappropriate relationship between her and defendant Hose; (2) by tolerating the relationship; and (3) by failing to implement required policies and train staff regarding the prevention, detection, and reporting of such inappropriate relationships. Plaintiff further claims the McKeesport School District defendants violated her Fourteenth Amendment equal protection rights to an education free and clear of such civil rights violations.

Plaintiff alleges that defendant St. Moritz violated her Fourteenth Amendment substantive due process and equal protection rights in the same manner as the McKeesport School District defendants. Plaintiff also alleges that St. Moritz acted negligently in hiring defendant Hose and in failing to train and supervise him.

Plaintiff asserts state law negligence claims against defendants Eleanor Hose, Howard Hose, and Judy Sokol, a friend of Thomas Hose.*fn3

Finally, as to defendant Thomas Hose, plaintiff alleges a section 1983 claim and state law claims of civil assault and battery. With respect to her section 1983 claim, plaintiff alleges that defendant Thomas Hose, acting under color of state law, violated her Fourteenth Amendment substantive due process and equal protection rights.*fn4

For the reasons discussed below, plaintiff's claims against the moving defendants are untimely.

II. STANDARD OF REVIEW

Fed.R.Civ.P. 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the non-moving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

The mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (internal quotation marks omitted). Similarly, summary judgment is improper so long as the dispute over the material facts is genuine. Id. In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 248-49.

To demonstrate entitlement to summary judgment, defendants, as the moving parties, are not required to refute the essential elements of the plaintiff's cause of action. Defendants need only point out the absence or insufficiency of plaintiff's evidence offered in support of those essential elements. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

Once that burden has been met, plaintiff must identify affirmative evidence of record that supports each essential element of his cause of action. If plaintiff fails to provide such evidence, then he is not entitled to a trial, and defendants are entitled to summary judgment as a matter of law.

It is on this standard that the court has reviewed the instant motions for summary judgment ...


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