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Michael A. Dipippa and Mary Jane Dipippa Individually and As v. Union School District

May 4, 2011


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


Pending now before the Court is the MOTION TO DISMISS filed by Defendants Union School District, Larry Bornak, Stephen Shutters, and Scott Kindel, Doc. No 9, with brief in support, Doc. No. 10, and PLAINTIFF‟S RESPONSE IN OPPOSITION TO DEFENDANTS‟ MOTION TO DISMISS, Doc. No. 11.

Plaintiffs Michael Dipippa and Mary Jane Dipippa, in their individual capacities, and as parents and natural guardians of their minor daughter, J.D., initiated this action on January 4, 2011, with the filing of a three count complaint against Defendants. Counts I and II are alleged against Defendant Union School District, with Count I alleging a civil rights violation claim brought under section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, and Count II alleging a claim under Title IX of the Civil Rights Act of 1964, 20 U.S.C. §§ 1681, et seq. See Doc. No. 1. Count III alleges a section 1983 claim against the individual Defendants. The claims generally stem from the period beginning during the 2009 -- 2010 academic school year and continue through September of 2010. Plaintiffs claim that throughout that period, J.D., a minor female student at Union High School, was allegedly sexually assaulted by Alan Lynn Pryor, a former teacher and coach at the high school. Id. Alan Lynn Pryor committed suicide on September 4, 2010. Id.


Federal Rule of Civil Procedure 8(a) requires that a pleading which "states a claim for relief must contain .... (2) a short and plain statement of the claim showing that the pleader is entitled to relief." The Rule further provides that "[e]ach allegation must be simple, concise, and direct" but "[n]o technical form is required." Fed.R.Civ.P. 8(d). "The touchstone of Rule 8(a)(2) is whether a complaint's statement of facts is adequate to suggest an entitlement to relief under the legal theory invoked and thereby put the defendant on notice of the nature of the plaintiff's claim." In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 2010 U.S.App. LEXIS 17107, *45-*46, n. 18 (3d Cir. Aug.16, 2010) ("Brokerage Antitrust"), citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 565, n. 10, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

In the aftermath of Twombly and the decision in Ashcroft v. Iqbal, 556 U.S. ---, ---, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and the interpretation of those two cases by the United States Court of the Appeals for the Third Circuit in a series of precedential opinions, the pleading standards which allow a complaint to withstand a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) have taken on slightly new parameters. Beginning in Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir.2008), the Court of Appeals noted, "After Twombly, "it is no longer sufficient to allege mere elements of a cause of action;‟ instead "a complaint must allege facts suggestive of [the proscribed] conduct.‟" Phillips, 515 F.3d at 233, quoting Twombly, 550 U.S. at 563, n. 8 (alteration in original.) In its next important case to address the standard for motions to dismiss, Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir.2009) the Court of Appeals noted that following Twombly and Iqbal, conclusory "bare-bones" allegations that "the defendant unlawfully harmed me" no longer suffice. A civil complaint must now include "sufficient factual matter to show that the claim is facially plausible." Fowler, 578 F.3d at 210; see also Twombly, 550 U.S. at 555, holding that a complaint which offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." The Fowler court further directed that: after 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. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. 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.

In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. 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 shown-that the pleader is entitled to relief."

Fowler, 578 F.3d at 210-211 (quotations and citations omitted.)

Thus, the current formulation of the standard of review for a motion to dismiss under Rule 12(b)(6) requires the court to determine if the plaintiff's claims are "plausible." "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949; see also Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir.2009); Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir.2010); and Bob v. Kuo, No. 10-1615, 2010 U.S.App. LEXIS 14965, *4 (3d Cir. July 20, 2010). "[W]hat suffices to withstand a motion to dismiss necessarily depends on substantive law and the elements of the specific claim asserted." Brokerage Antitrust, 2010 U.S.App. LEXIS 17107 at *46, n. 18. "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Brokerage Antitrust, id. at *177, quoting Iqbal, 129 S.Ct. at 1950.

The Third Circuit's latest summation of the standard is that "[w]e must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom, but we require more than mere assertions devoid of further factual enhancement." Dawson v. Frias, CA No. 10-2200, 2010 U.S.App. LEXIS 21278, *2 (3d Cir. Oct. 14, 2010) (internal citations and quotations omitted.) "The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.‟" Bamigbade v. State Farm Mut. Auto. Ins. Co., Nos. 09-3868 and 09-4229, 2010 U.S.App. LEXIS 17033, *3-*4, 2010 WL 3096035 (3d Cir. Aug. 9, 2010), quoting Iqbal, 129 S.Ct. at 1949. "A complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits. The Supreme Court's formulation of the pleading standard in Twombly does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." McTernan v. City of York, 564 F.3d 636, 646 (3d Cir.2009) (internal quotations omitted.)


Defendants present various arguments with respect to each count of Plaintiffs‟ complaint, the combination of which, if granted, would result in the dismissal of the complaint in its entirety. See generally Doc. No. 9. In view of the fact that Defendants advance two somewhat overlapping arguments directly challenging Count I, the 1983 action against Defendant School District, and three relatively distinct arguments seeking dismissal of other aspects of the complaint, the Court will address each argument in sequence.

1.Defendant School District's Motion to Dismiss Count I, the 1983 action.

The Court begins with two arguments of Defendant School District, the sole party against which Count I is brought, that essentially move to dismiss Count I for the failure to state a claim upon which relief can be granted. As noted above, Counts I and III are brought under 42 U.S.C. § 1983, which provides a cause of action to:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... 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 ...

42 U.S.C. § 1983. To prevail under 42 U.S.C. § 1983, a plaintiff must prove a deprivation of a constitutional or federal rights by a person acting under color of state law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995). As it is undisputed that any of the named Defendants are state actors for the purpose of § 1983, the focus turns to whether the allegations support the existence of constitutional torts.

In Count I, Plaintiffs allege that Defendant School District violated their rights to substantive due process under the Fourteenth Amendment to the U.S. Constitution. Similarly, Count III of the complaint asserts a substantive due process claim against the individually named Defendants. The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall ... deprive any person of life, liberty, or property, without due process of law." U.S. Const. Amend. XIV.

Defendant School District‟s first argument turns upon the theory of recovery pursued by Plaintiffs for Count I. Generally, Defendant School District argues that it had no affirmative duty to protect J.D. from the alleged harm perpetrated by Pryor. See Doc. Nos. 9 and 10 (referencing D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1368-69 (3d Cir 1992) and DeShaney v. Winnebago County Dept. of Soc. Services, 489 U.S. 189, 195 (1989)). As Defendant School District correctly notes, under DeShaney, the Due Process Clause does not generally impose upon the state an affirmative obligation to protect its citizens from harm inflicted by private individuals. While there is an exception to this general rule in cases in which a "special relationship" exists between an individual and the state, Defendant School District also notes that such a "special relationship" is not recognized between a school district and its students. Id. (citing D.R., 972 F.2d at 1368-73). As an alternative argument, Defendant District moves to dismiss Count I ...

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