The opinion of the court was delivered by: Norma L. Shapiro, J.
Lechelle Brown was sexually assaulted by five fellow students at Frankford High School on June 15, 2006. Lechelle and her mother filed the instant action alleging a claim under 42 U.S.C. § 1983 for violations of Lechelle's rights under the Fourteenth Amendment to the United States Constitution and pendent state law claims. Before the court are two motions, both by Dr. Richard Mantell ("Dr. Mantell") and the School District of Philadelphia ("School District"): the Motion for Summary Judgment and supplemental Motion for Partial Summary Judgment, both on plaintiffs' Section 1983 claim. The court heard oral argument on May 26, 2010. For the reasons discussed below, the motions will be granted and judgment entered in favor of Dr. Mantell and the School District on Count I of plaintiffs' complaint.
Lechelle Brown was born on February 4, 1990. As a two-year old, Lechelle was diagnosed with mild mental retardation; she has also been diagnosed with Mixed Receptive-Expressive Language Disorder. Lechelle did not speak until the age of four. She has attended special-education classes under a School District Individualized Education Plan from elementary school through high school.Evaluators have described Lechelle as someone with difficulty speaking, asking for help, and answering questions, and with significantly below average communications skills.
In the spring of 2006, Lechelle was sixteen years old and in tenth grade at Frankford High School. During the spring semester, Lechelle's English teacher, Bonnie Torres, learned that a fellow special education student, T.B., made a sexual advance to Lechelle, and messed up her hair when she refused his advance.*fn1 Plaintiffs allege that after this "T.B. incident," one-on-one supervision was promised Lechelle.*fn2 Neither Ms. Torres nor Assistant Vice Principal Jeanine Hendricks recalls promising such supervision. Lechelle was not provided with one-on-one supervision.
On June 15, 2006, Lechelle went to the cafeteria for lunch; she ate alone. There, a male student approached Lechelle, and convinced her to accompany him to an auditorium balcony on the second floor of the school. In the balcony area, five Frankford students sexually assaulted her: Quinzal Powell; Akeem Watson; Kyshan Tunstall; Jeffery Chase and Todd Waddy, Jr. The assault ended when a teacher, investigating a large group of students in an area where they should not have been, approached the balcony. As the teacher approached, one of Lechelle's assailants shouted, "teacher coming," and the group fled. A psychologist hired by the Philadelphia District Attorney's Office determined that Lechelle Brown was not capable of providing legal consent to sexual relations because of her cognitive disabilities.
Students were not permitted in the balcony where the assault occurred unless there was an authorized school function in the auditorium; the doors to the balcony generally were locked. Nevertheless, students could and did manipulate the doors to gain entry to the balcony without permission. Frankford principal Dr. Mantell and other school officials were aware of the condition prior to Lechelle's assault.Dr. Mantell recognized this was a problem because of the unsupervised nature of the balcony area, and testified that "if one were of the mind to do criminal activity, that might be an attractive place to them because the room was maybe used three or four time[s] as [sic] year."*fn3
Frankford High School has been identified as a "persistently dangerous school" under the No Child Left Behind Act since the law was enacted, with the exception of one year. To be identified as persistently dangerous, each year Frankford must have had twenty or more dangerous incidents, i.e.: weapons possession; incidents resulting in arrest; homicide; kidnapping; robbery; sexual offenses; and aggravated assaults. The School District has a Student Code of Conduct applicable at each district school, including Frankford. The Code of Conduct classifies several violations as "Level 2," such as sexual assaults and weapons offenses. The prescribed punishment for a Level 2 offense is expulsion or transfer.Jack Stollsteimer, School Safety Advocate for the Commonwealth of Pennsylvania, testified that the School District under-reported violent incidents in the period leading up to the 2006-2007 school year.*fn4 Mr. Stollsteimer also testified thatthe School District had a policy not to expel students, even if they had committed a Level 2 offense.*fn5
II. PROCEDURAL BACKGROUND
On June 16, 2008, Lechelle and her mother, Rochelle Terry, filed a complaint alleging a claim under 42 U.S.C. § 1983 against Dr. Mantell and the School District, and claims under Pennsylvania law for constitutional violations, negligence, intentional and negligent infliction of emotional distress, assault and battery against Dr. Mantell, the School District, the student perpetrators and their parents and natural guardians. Default has been entered against all the student and parent defendants except Azeezah Charles. See docket entries on October 21, 2008; paper no. 25. By Order dated December 8, 2008, all state law claims were severed and stayed. On February 16, 2009, Lechelle's mother died; her grandmother, Beatrice Terry, was appointed as guardian ad litem (paper no. 48).
In deciding the first motion for summary judgment, the court determined there was a serious question as to Lechelle's competency to testify; the court appointed Dr. Eileen Bazelon to conduct a psychiatric evaluation followed by a report and recommendation. Dr. Bazelon found that, when asked a confusing question or one requiring elaboration, Lechelle often would not respond at all; the interlocutor must phrase questions to elicit yes-or-no answers or abandon the subject. According to Dr. Bazelon, previous examiners, dating back to 1994, observed the same condition. Dr. Bazelon concluded that it was impossible to determine whether Lechelle did not understand questions, was guarded in her responses, understood but could not express her thoughts, or some combination of the three. In addition, Lechelle has become even more withdrawn and uncommunicative since her mother's death. Dr. Bazelon concluded that Lechelle was not competent to testify and neither she nor her grandmother wished her to testify.
In light of Dr. Bazelon's report and recommendation; discussions during an April 6, 2010 conference with counsel, and the court's finding that testimony by Lechelle could only be elicited by the most leading of leading questions, the court ordered that testimony and statements by Lechelle would not be considered by the court on the motion for summary judgment or by the fact-finder at trial. The court permitted the parties to file a supplemental motion for summary judgment and response in light of the decision.Defendants' motion for summary judgment and supplemental motion on plaintiffs' Section 1983 claim are before the court.
Dr. Mantell and the School District have also moved to exclude the testimony of plaintiffs' expert Peter Blauvelt, and have objected to many of the exhibits submitted in support of plaintiffs' responses to the motions for summary judgment. At the hearing on April 6, 2010, this court excluded Mr. Blauvelt's conclusions regarding: (1) causation of Lechelle's attack; (2) the effect on the student defendants of the School District's failure to expel or transfer those who violate the Student Code of Conduct; (3) what might have occurred if Dr. Mantell or the School District had acted in accordance with zero tolerance policies; (4) the defendants' states of mind; and (5) legal conclusions. In addition, the court has excluded the Reports of the Office of School Safety Advocate. For purposes of oral argument and disposition of the motions for summary judgment, the court assumes without deciding that all other challenged evidence would be admissible.
When a party files a motion for summary judgment, "[t]he judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In making a summary judgment determination, all inferences must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When the non-moving party is the plaintiff, she must "make a showing sufficient to establish the existence of [every] element essential to [her] case,"as she will bear the burden of proof on each element of her claims at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In order to survive a motion for summary judgment, the non-moving party cannot rely solely on the unsupported allegations found in the pleadings. Id. at 324. Instead, the non-moving party must raise more than "some metaphysical doubt" as to a material fact. Matsushita, 475 U.S. at 586. In making a decision as to whether there is a "genuine" issue of fact, the court must determine "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Section 1983 provides, in ...