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Valesky v. Roman Archdiocese of Greensburg

May 5, 2010

WILLIAM AND LISA VALESKY, ON BEHALF OF THEIR MINOR CHILD, AND LISA VALESKY, AN INDIVIDUAL, PLAINTIFFS,
v.
THE ROMAN ARCHDIOCESE OF GREENSBURG, AND NOURREDINE DESLAM, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: Ambrose, District Judge

OPINION AND ORDER OF THE COURT

Synopsis

Plaintiffs, the parents of a minor child, assert a claim under Title IX, 20 U.S.C. § 1681 et seq., and state law claims against the Roman Archdiocese of Greensburg (the "Diocese") and Nourredine Deslam ("Deslam") arising from Deslam's alleged sexual abuse of their minor child during the two years she attended the Aquinas Academy, a school operated by the Diocese. Defendants have moved to dismiss Plaintiffs' Third Amended Complaint in its entirety. Jurisdiction is premised upon 28 U.S.C. § 1331 with pendent jurisdiction over state law claims. For the reasons set forth below, Defendants' motion to dismiss is granted in part and denied in part.

I. Applicable Standards

In deciding a motion to dismiss under Fed R. Civ. P. 12(b)(6), all factual allegations, and all reasonable inferences therefrom, must be accepted as true and viewed in a light most favorable to the plaintiff. Haspel v. State Farm Mut. Auto. Ins. Co., 2007 WL 2030272, at *1 (3d Cir. July 16, 2007). In the last two years, "pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). After the Supreme Court's opinion in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), "it is clear that conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Fowler, 578 F.3d at 210 (quoting Iqbal, 129 S.Ct. at 1949).

"[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. . . .Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-211 (citing Iqbal, 129 S.Ct. at 1950). "As the Supreme Court instructed in Iqbal, '[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Id. at 211 (quoting Iqbal, 129 S.Ct. at 1949).

II. Factual Allegations*fn1

Plaintiffs' minor child, Jane Doe, was a student at Aquinas Academy from 2007-2009 in the school's preschool and kindergarten programs. Defendant Deslam was a maintenance worker at the school during those years.

Plaintiffs allege that beginning when their daughter was in kindergarten, Deslam took a special interest in her. In early September 2008, when William Valesky, Jane Doe's father, was at Aquinas Academy on lunch duty, he witnessed Deslam telling the kindergarten girls, including Jane Doe, to eat all of their food. He observe that his daughter and the other girls were scared. Mr. Valesky brought his concerns about the inappropriateness of Deslam's behavior to Diane Dubosky, the cafeteria monitor. Ms. Dubosky told him that Deslam was "harmless."

The following week, when Lisa Valesky, Jane Doe's mother, was on lunch duty, she observed that Deslam had left a drill on the lunch table where the children were eating. She shared her concern that this was unsafe with Paula Puschic, another parent. She asked Deslam to remove his tools, and reported the incident to Ms. Dubosky, who advised her not to say anything to Deslam because he got very upset when someone said something to him. Mrs. Valesky also noticed Deslam leaning over her daughter, touching her and her lunch. She confronted Deslam and asked him to discontinue his behavior, informing him that he was scaring her daughter and making her cry. In response, Deslam laughed. Following this confrontation, Ms. Valesky shared her concerns regarding Deslam's inappropriate behavior and her daughter's discomfort with Jane Doe's teacher, Mrs. U, and Ms. Dubosky. Mrs. U told Ms. Valesky that Deslam was "just trying to be nice."

On September 26, 2008, Ms. Valesky filed a formal written report (the "Report") with the Diocese and the Aquinas Academy detailing Deslam's inappropriate behavior. (A copy of the Report is annexed as Exhibit B to the Third Amended Complaint [See Docket No. 26-2]).*fn2

Specifically, the Report identified the following categories of behavior by Deslam: "teasing, name-calling, making critical remarks, or threatening, in person or by other means"; "demeaning and making the victim of jokes"; "making rude and/or threatening gestures"; and "intimidating (bullying), extorting, or exploiting;" and specified that Deslam was "touching [Jane Doe] and her food." The Report also contained the following description of Deslam's conduct and its effect on Jane Doe:

[Deslam] goes to [Jane Doe's] table every day at lunch. He touches her and goes through her lunch box. He tells her that she has to eat all of her food. She is terrified of him. She starts to cry as soon as he gets close to the table. My husband and I have both complained to Mrs. Dubosky and she told us that he is harmless. I have also told Mrs. [U] that he is upsetting [Jane Doe] and she said that he is just being nice. I told [Deslam] to stay away from her because he is scaring her and he laughed at me. I think it is inappropriate for a janitor to be touching and scaring my five year old daughter every day that she is in school. (Id. at 2.) Plaintiffs allege that neither Aquinas Academy or the Diocese took any action as a result of her Report.

Plaintiffs allege that Deslam sexually abused the Plaintiff beginning when she was five years old, with the first known incident occurring in October 2008. Prior to October 2008, Jane Doe was excited and happy about going to school. However, she began requesting that she be picked up earlier and earlier until she refused to go to school altogether.

Jane Doe returned to school the first week of November. She attended for only a half day and wanted to be picked up before she had to go to the cafeteria for lunch. She informed her parents that "school's a bad place." On November 7, 2008, Jane Doe expressed to her parents that she did not want to go to school and refused to go to the cafeteria, because Deslam was there. On November 13, 2008, Ms. Valesky met with Principal Rullo and Assistant Principal Dan Mahoney to discuss her concerns over Deslam, as well as ...


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