The opinion of the court was delivered by: David Stewart Cercone United States District Judge
Jane Doe, a minor, by John Doe and Susan Doe, her parents and natural guardians ("Plaintiffs"), filed a four (4) count complaint against the North Allegheny School District (the "District"), Dr. Patricia P. Green ("Dr. Green"), Superintendent of Schools, Dr. Lawrence A. Butterini ("Dr. Butterini"), Principal, Walter E. Sieminski ("Sieminski"), Assistant Principal, William H, Young ("Young"), Assistant Principal, and Bill Stoops ("Stoops"), Head of Security (the "Individual Defendants")(collectively with the School District "Defendants"). Plaintiffs allege the following: (1) a claim under 42 U.S.C. § 1983 for violation of Jane Doe‟s rights under the Fourteenth Amendment to the Constitution of the United States; (2) a claim under Article 1, section 1 of the Pennsylvania Constitution; (3) a claim that the School District and the Individual Defendants violated Jane Doe‟s rights under 20 U.S.C. § 1681, Title IX; and (4) a claim that the School District violated Jane Doe‟s rights under Title IX. By Order dated September 28, 2010, the Court the Court dismissed Plaintiffs‟ Title IX claims against the Individual Defendants and the punitive damage claim against the School District. Defendants have filed a motion for summary judgment, Plaintiffs have responded and the motion is now before the Court.
II. STATEMENT OF THE CASE
Jane Doe attended ninth and tenth gradeat the North Allegheny Intermediate High School ("NAI") where she met a male student identified for the purpose of this litigation as James Roe ("Roe"). Defendants‟ Concise Statement of Material Facts ("Def. CSMF") ¶¶ 6 & 8. It is admitted that at some point during her attendance at NAI, Jane Doe had a consensual sexual encounter with James Roe on or near the NAI school grounds. Def. CSMF ¶¶ 9 & 10. Jane Doe admitted to a second consensual sexual encounter with Roe while they attended NAI as well. Def. CSMF ¶ 11.
For eleventh and twelfth grades, Jane Doe attended North Allegheny High School ("NAH"). Def. CSMF ¶ 6. During the 2005-2006 school year, Jane Doe and James Roe were enrolled in the District‟s smoking cessation class. Def. CSMF ¶¶ 13 & 18. Following their enrollment into the smoking cessation class, Jane Doe testified that she and Roe skipped class together four or five times in order to go outside and have a cigarette. Def. CSMF ¶ 19. Jane Doe was aware that smoking on school grounds and cutting class were violations of the North Allegheny School District Code of Student Conduct and that she could be suspended for such violations. Def. CSMF ¶¶ 20, 21, 24 & 25. Further, the 2005-2006 Student Handbook stated that NAH was a "closed campus" and that students were restricted from unauthorized areas, including the school‟s parking lot, during the school day. Def. CSMF ¶ 22.
On the occasions that Jane Doe and Roe skipped classes to smoke, Roe began asking Jane Doe to give him oral sex. Def. CSMF ¶ 26. On the third or fourth time Jane Doe and Roe had skipped class that school year, Jane Doe consensually performed oral sex on Roe in a car in the parking lot of NAH. Def. CSMF ¶ 22.
On Friday, April 28, 2006, between 12:30 p.m. and 1:00 p.m., Jane Doe and Roe went out the front door of NAH along with several other groups of students who were leaving the building for legitimate approved purposes. Def. CSMF ¶¶ 31, 32 & 33. Roe and Jane Doe walked to the upper parking lot of NAH and smoked a cigarette. Def. CSMF ¶¶ 35 & 36. As he had done on previous occasions, Roe asked Jane Doe to perform oral sex on him. Def. CSMF ¶ 37. Jane Doe consented and willingly began to perform oral sex on Roe in the NAH parking lot. Def. CSMF ¶ 38. During his sexual encounter, Roe told Jane Doe that they were going to "have sex." Def. CSMF ¶ 39. Jane Doe told Roe "no", but despite her protests, she alleges that Roe had sexual intercourse with her against her will. Def. CSMF ¶¶ 40 & 41.
Jane Doe and Roe returned to the school building and Doe went to a bathroom. Def. CSMF ¶¶ 43 & 44. Erica Armstrong ("Armstrong"), a friend of Jane Doe, found her in the bathroom, saw that she was upset, and took her to Jeff Longo, the District‟s Student Assistance Coordinator*fn1 . Def. CSMF ¶¶ 14, 44 & 45. Armstrong told Longo and Howell that Jane Doe had been raped. Def. CSMF ¶ 46. Longo and Doe went to his office and NAH Principal Dr. Larry Butterini ("Dr. Butterini") was summoned. Def. CSMF ¶ 47. Dr. Butterini went to Longo‟s office and asked Doe to tell him what happened. Def. CSMF ¶ 48. Jane Doe declined to identify her assailant. Def. CSMF ¶ 50. Jane Doe‟s mother and the McCandless Township Police Department were called, and Doe was taken to Passavant Hospital to be treated and examined. Def. CSMF ¶¶ 49 & 50.
The NAH administrative staff reviewed surveillance camera footage which showed Jane Doe leaving the building with Roe during the relevant time period. Def. CSMF ¶ 51. James Roe was interviewed by the District on Monday, May 1, 2006, and he admitted that he had sexual intercourse with Jane Doe on school property, but contended that the encounter was consensual. Def. CSMF ¶¶ 52 & 53. Dr. Butterini immediately issued an out-of-school suspension to James Roe, and informed that Roe he would be brought before the School Board for expulsion. Def. CSMF ¶ 54. Under an Expulsion Agreement, Roe and his family agreed that Roe would be voluntarily expelled. Def. CSMF ¶ 55.
Juvenile charges were filed against Roe, charging him with sexual assault, rape, involuntary deviate sexual intercourse, and indecent assault. Def. CSMF ¶¶ 56 & 57. On December 1, 2006, a hearing was held in Juvenile Court before the Honorable Kathleen Mulligan, and Roe was adjudicated delinquent on the sexual assault charge, and found not guilty of rape, involuntary deviate sexual intercourse, and indecent assault. Def. CSMF ¶¶ 58, 59 & 60.
III. LEGAL STANDARD FOR SUMMARY JUDGMENT
Pursuant to FED. R. CIV. P 56(c), summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court‟s consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond Aby pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial.@ Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F. 3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).
Plaintiffs allege a substantive due process claim against the Individual Defendants arising out of James Roe‟s interference with Jane Doe‟s right to bodily integrity in violation of 42 U.S.C. § 1983.
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof 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, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. . .
42 U.S.C. § 1983. Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Baker v. McCollan, 443 U.S. 137 144 n.3 (1979).
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 § 2. In DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189 (1989), the United States Supreme Court rejected a substantive due process claim holding that in the absence ...