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They Tieu v. School District of Philadelphia and Arlene Ackerman

December 21, 2010


The opinion of the court was delivered by: DuBOIS, J.



This case centers on the recent violence against Asian Americans at South Philadelphia High School. Plaintiff They Tieu ("Tieu") alleges she was attacked by students in January 2009 when she came to the school to pick up her child. She asserts claims under 42 U.S.C. § 1983 against defendants School District of Philadelphia ("the District") and Superintendent Arlene Ackerman ("Ackerman"). Presently before the Court is the Motion of Defendants to Dismiss Plaintiff's Second Amended Complaint Pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, defendants' motion to dismiss is granted, and plaintiff's Second Amended Complaint is dismissed with prejudice.


Tieu alleges that "for a long period of time" before January 2009, African-American students at South Philadelphia High School "terrorized" Asian-American students at the school. (Second Am. Compl. ¶ 5.) Despite this, Ackerman and the District did nothing to protect Asian-American students. (Id. ¶ 6.) Instead, the defendants "fostered a culture" and "created an atmosphere" that rendered Asian Americans "helpless prey." (Id. ¶¶ 7, 9.) The complaint further alleges that the defendants chose not to protect Asian Americans "based upon their race or ethnicity." (Id. ¶ 8.)

On January 29, 2009, Tieu, who is Asian American, was attacked by a group of African-American students while she was at the school picking up her child. (Id. ¶ 10.) She sustained various physical injuries and other damages. (Id. ¶¶ 11-15.) Tieu alleges that defendants' actions violated her due process and equal protection rights, in contravention of 42 U.S.C. § 1983. (Id. ¶ 17.)

By Order of September 29, 2010, the Court dismissed without prejudice the claims in Tieu's First Amended Complaint that arose under § 1983 to allow her to incorporate into her complaint the findings of the U.S. Department of Justice's investigation into the racial violence at South Philadelphia High School.*fn1 The Second Amended Complaint is based solely on § 1983 and restates the same claims present in the First Amended Complaint with the phrase "[a]s set forth in the report issued by the Department of Justice" inserted before several of the allegations. (Id. ¶¶ 6-9.) The report is not attached to the Second Amended Complaint, and the Court has no idea as to its contents.

The defendants filed the pending motion to dismiss on November 23, 2010, and Tieu responded on December 16, 2010.


Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion. "To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . .'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). To satisfy the plausibility standard, a plaintiff's allegations must show that a defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

In Twombly, the Supreme Court utilized a "two-pronged approach," which it later formalized in Iqbal. Iqbal, 129 S. Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). Under this approach, a district court first identifies those factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S. Ct. at 1950. The court then assesses "the 'nub' of the plaintiff['s] complaint -- the well-pleaded, nonconclusory factual allegation[s] . . . to determine" whether it states a plausible claim for relief. Id.

IV. PLAINTIFF'S CLAIMS UNDER § 1983 42 U.S.C. § 1983 provides, in part, that

[e]very person, who, under color of any statute, ordinance, regulation, custom, or usage, of a State or Territory . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .

This statute does not create substantive rights; rather, it provides a remedy for violations of rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under ยง 1983, a plaintiff must allege that a person acting under color of state law caused a deprivation of a right secured by the ...

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