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Armando Pagan, et al. v. City of Philadelphia

May 31, 2012


The opinion of the court was delivered by: Juan R. Sanchez, J.


On March 12, 2009, Plaintiff Armando Pagan, a student at Olney High School in Philadelphia, was assaulted and battered by another student in a stairwell of the school while reentering the building following a fire drill. Pagan and his parents, Miguel Camacho and Natasha Ortega, thereafter filed this action pursuant to 42 U.S.C. § 1983 and Pennsylvania law against the City of Philadelphia, the School District of Philadelphia, School District Superintendent Arlene C. Ackerman, Olney High School Principal Newton Brown, III, Philadelphia Police Commissioner Charles H. Ramsey, and "John Doe," the student who assaulted Pagan, seeking to hold these Defendants liable for the injuries Pagan sustained as a result of the assault. Plaintiffs bring a § 1983 claim alleging a violation of Pagan's substantive due process right to personal bodily integrity against all Defendants. Plaintiffs also bring state law claims for assault and battery and harassment against Doe, and for intentional and negligent infliction of emotional distress against all Defendants.*fn1

The School District, Ackerman, and Brown (collectively, the "School District Defendants") have filed a motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), as have the City and Commissioner Ramsey (collectively, the "City Defendants"). For the reasons set forth below, the motions will be granted as to Plaintiffs' § 1983 substantive due process claim, which will be dismissed without prejudice. This Court reserves ruling on Plaintiffs' remaining state law claims pending consideration of any amended complaint filed by Plaintiffs.


Pagan is a special needs student with Attention Deficit Hyperactivity Disorder (ADHD) and other learning disabilities who attends special education classes at Olney High School (Olney). At the time of the incident at issue, Pagan was 15 years old.

On March 12, 2009, there was a fire drill at Olney.*fn3 According to the Complaint, at the time of the fire drill, the School District and City Defendants had a policy, practice, or custom of providing insufficient numbers of security and other personnel in the school's hallways and stairwells, and of failing to provide structure, guidance, direction, or supervision to students reentering the school following a fire drill. Compl. ¶¶ 19-20. Pursuant to these policies, practices, or customs, after the fire drill on March 12, students were required to re-enter the school without any adult protection or supervision. During the re-entry process, while Pagan was in a stairwell in the school surrounded by other students, Doe assaulted and battered him, causing him to sustain serious and permanent injuries, including facial contusions, a fractured jaw, neurological damage, migraine headaches, Temporomandibular Joint Disorder, Post-Traumatic Stress Disorder, and other psychological injuries.

Prior to the March 12 incident, other students-including Pagan-had been assaulted in the stairwells at Olney. According to the Complaint, the School District and City Defendants either knew or should have known that Pagan had previously been seriously injured by another student in a stairwell at Olney, and also should have known the school's safety measures were inadequate. The School District and City Defendants also knew or should have known Doe had aggressive and violent tendencies and posed a substantial risk of serious bodily and emotional harm to younger and disabled students like Pagan.

After the assault, Pagan, who was bleeding profusely, was unable to find a school employee to help him and thus had to walk by himself through the school's dangerous hallways to the office. Pagan then waited in the office for 15 to 30 minutes without medical care before proceeding unescorted to the nurse's office. Once in the nurse's office, Pagan was again forced to wait without medical care for an hour and a half until his parents arrived, while the school nurse reprimanded him for failing to catch all of the blood he was coughing up in a waste receptacle. Although Pagan told school and police personnel he would be able to identify his attacker(s), Defendants failed to conduct a proper investigation of the attack.

Based on the foregoing allegations, Plaintiffs assert Defendants violated Pagan's due process rights by placing him in a dangerous and unsupervised setting which they knew or should have known would create a substantial risk of serious bodily injury and emotional harm to him, and by failing to protect him from such serious bodily injury and emotional harm while he was in the School District and City Defendants' custody. Plaintiffs also assert a claim for assault and battery and harassment against Doe, and assert claims for intentional and negligent infliction of emotional distress against all Defendants.


To survive a motion to dismiss pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the facts pleaded "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. In evaluating a Rule 12(b)(6) motion, a district court first should separate the legal and factual elements of the plaintiff's claims. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The court "must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Id. at 210-11. The court must then "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 211 (quoting Iqbal, 556 U.S. at 679).

Plaintiffs' § 1983 claim alleges a violation of Pagan's rights under the Due Process Clause of the Fourteenth Amendment, which prohibits states from "depriv[ing] any person of life, liberty, or property, without due process of law."*fn4 U.S. Const. amend. XIV, § 1. Specifically, Plaintiffs allege Defendants' acts and omissions deprived Pagan of his liberty interest in his personal bodily integrity. The Due Process Clause "is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security." DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 195 (1989). Thus, as Plaintiffs themselves acknowledge, the Clause "generally confer[s] no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual." Id. at 196; see also Pls.' Resp. 5-6 (recognizing "the general rule 'that the state has no affirmative obligation to protect its citizens from the violent acts of private individuals'" (quoting Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997))).

This general rule that the Due Process Clause imposes no affirmative duty on states to protect citizens from the acts of private individuals is subject to two exceptions. First, under the "special relationship" exception, when a state "takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." DeShaney, 489 U.S. at 199-200. Second, under the "state-created danger" exception, the state "has a constitutional duty to protect a person against injuries inflicted by a third-party when it affirmatively places the person in a position of danger the person would not otherwise have faced." Walter v. Pike Cnty., 544 F.3d 182, 192 (3d Cir. 2008) (citation omitted); see also Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (holding a due process violation may occur "when state authority is affirmatively employed in a manner that injures a citizen or renders him 'more vulnerable to injury from another source than he or she would have been in the absence of state intervention'" (quoting Scheiber v. City of Phila., 320 F.3d 409, 416 (3d Cir. 2003))).

Insofar as Plaintiffs' due process claim is premised on the theory that Defendants (or some of them) had a duty to protect Pagan from harm because, as a public school student, Pagan had a special relationship with the state, this theory is foreclosed by Third Circuit precedent. In D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1369-72 (3d Cir. 1992) (en banc), the Third Circuit rejected the argument that a special relationship exists between public schoolchildren and the state based on Pennsylvania's statutory scheme of compulsory school attendance and laws permitting school officials to exercise in loco parentis authority over students while at school. In so holding, the court contrasted a schoolchild's situation with the situation of prisoners, involuntarily committed patients, and foster children, all groups with which the state has been held to have a special relationship giving rise to a duty to protect. The court concluded that, unlike persons in these latter three groups, a schoolchild does not have the kind of comprehensive custodial relationship with the state necessary to trigger the state's affirmative duty to protect, noting, for schoolchildren, it is the parents who decide where the child's education will take place, the restrictions on the child's freedom during the school day do not prevent the child from meeting his basic needs, and the child does not depend on the school for his basic needs. See id. The Third Circuit has continued to adhere to its holding in D.R. in more ...

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