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K.S.S v. Montgomery County Board of Commissioners

May 17, 2012


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


Currently pending before the Court is the Motion of Defendant Thomas D. Diamond ("Diamond" or "Defendant") to dismiss Counts I, II, III, IV, and VIII of Plaintiff K.S.S.'s Complaint.*fn1 For the following reasons, the Motion is granted in part and denied in part.


This action stems from an unfortunate series of events related to the sexual abuse of a minor, Plaintiff K.S.S.*fn2 In the summer of 2002, the County Defendants placed K.S.S., then a thirteen-year- old minor, in the foster care of Defendant Diamond, an adult male. (Compl. ¶¶ 6, 10.) According to Plaintiff, the County Defendants never disclosed to Plaintiff or his biological grandparents that Diamond was a pedophile. (Id. ¶ 12.) For several years thereafter, Diamond sexually abused, molested, and indecently assaulted K.S.S. (Id. ¶ 13.) Diamond engaged in the sexual assault of K.S.S. both individually and in concert with others. (Id.) According to the facts set forth in the Complaint, Diamond invited strange adult men that he met on the Internet to his residence for the purpose of "gang raping" K.S.S. (Id. ¶¶ 14, 33(m).) During these encounters, Diamond forced K.S.S. to engage in lewd sexual acts with the adult men, thereby exposing him to severe physical and mental harm. (Id. ¶ 33(a--n).) Diamond's live-in companion, "Alonzo," also participated in the sexual assault of Plaintiff. (Id. ¶ 14.)

In June of 2005, Alonzo reported the victimization of K.S.S. to the Upper Merion Police Department. (Id. ¶ 15.) Diamond was arrested and criminally charged with various crimes related to the sexual assault, aggravated indecent assault, and corruption of minor K.S.S. (Id. ¶ 16.) On August 7, 2006, Diamond pleaded guilty to several of the criminal charges before the Montgomery County Court of Common Pleas, and was sentenced to five to ten years of incarceration. (Id. ¶¶ 17, 18.) Diamond remains an inmate at the State Correctional Institute in Waymart, Pennsylvania. (Id. ¶ 6.)

Plaintiff initiated the instant civil action by filing his Complaint on February 15, 2012, asserting five counts against Defendant Diamond: (1) assault (Count I); (2) battery (Count II); (3) negligence and recklessness (Count III); (4) negligent and intentional infliction of emotional distress (Count IV); and (5) a violation of Plaintiff's civil rights pursuant to 42 U.S.C. § 1983 related to Diamond's alleged "special relationship" with Plaintiff (Count VIII). On April 9, 2012, Diamond filed a Motion to Dismiss these Counts. Plaintiff filed a Response in Opposition on May 1, 2012. The Court will now consider the merits of Diamond's Motion.


Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555. It emphasized that it would not require a "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In the subsequent case of Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court enunciated two fundamental principles applicable to a court's review of a motion to dismiss for failure to state a claim. First, it noted that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Thus, although "[Federal] Rule [of Civil Procedure] 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678--79. Second, the Supreme Court emphasized that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679. "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." Id.

Notwithstanding the foregoing, nothing in Twombly or Iqbal has altered some of the fundamental underpinnings of the Rule 12(b)(6) standard of review. Arner v. PGT Trucking, Inc., No. Civ.A.09-0565, 2010 WL 1052953, at *2 (W.D. Pa. Mar. 22, 2010); Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-0626, 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). Federal Rule of Civil Procedure 8 requires only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. Fed. R. Civ. P. 8; Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Further, the court must "accept all factual allegations in the complaint as true and view them in the light most favorable to the plaintiff." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).

Similarly, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the power of a federal court to hear a claim or a case. Gould Elecs., Inc. v. United States, 200 F.3d 169, 178 (3d Cir. 2000). When presented with a Rule 12(b)(1) motion, the plaintiff "will have the burden of proof that jurisdiction does in fact exist." Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006), cert. denied, 127 S. Ct. 2098 (2007).

There are two types of Rule 12(b)(1) motions. A "facial" attack assumes that the allegations of the complaint are true, but contends that the pleadings fail to present an action within the court's jurisdiction. Mortenson v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). If the complaint is deficient as pled, the court should grant leave to amend before dismissing it with prejudice. Shane v. Fauver, 213 F.3d 113, 116--17 (3d Cir. 2000). The motion should only be granted if it appears with certainty that assertion of jurisdiction would be improper. Carpet Grp. Int'l v. Oriental Rug Imps. Ass'n, Inc., 227 F.3d 62, 69 (3d Cir. 2000).

The second form of a Rule 12(b)(1) motion is a "factual" attack, which argues that, while the pleadings themselves facially establish jurisdiction, one or more of the factual allegations is untrue thereby causing the case to fall outside the court's jurisdiction. Mortenson, 549 F.2d at 891. In such a case, the court must evaluate the merits of the disputed allegations because "the trial court's . . . very power to hear the case" is at issue. Id.; Carpet Grp., 227 F.3d at 69.

In the present matter, although Defendant does not specify which type of attack serves as the basis of its Motion, it is evident from the text of the Motion that Diamond asserts a facial challenge to the Complaint. As such, the ...

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