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John Doe 6 v. Pennsylvania State University

United States District Court, Third Circuit

November 7, 2013

JOHN DOE 6, Plaintiff,
v.
THE PENNSYLVANIA STATE UNIVERSITY, THE SECOND MILE, and GERALD SANDUSKY, Defendants.

MEMORANDUM

ANITA B. BRODY, J.

Plaintiff John Doe 6 (“Doe”) brings suit against Defendants Pennsylvania State University (“PSU”), The Second Mile (“Second Mile”), and Gerald Sandusky (“Sandusky”). Doe claims that Defendant Sandusky sexually abused him in showers on the PSU campus, and that Defendants PSU and Second Mile engaged in a variety of tortious conduct in connection with this abuse. Specifically, Doe sues PSU for vicarious liability, negligence, negligent supervision, premises liability, intentional infliction of emotional distress, and civil conspiracy.[1]PSU moves to dismiss Doe’s vicarious liability and civil conspiracy claims. For the reasons stated below, I will grant PSU’s motion to dismiss Doe’s vicarious liability claim and will deny PSU’s motion to dismiss Doe’s civil conspiracy claim without prejudice to PSU to raise the issue at a later stage of the litigation.[2]

I. BACKGROUND[3]

PSU is a public, state-related university in the Commonwealth of Pennsylvania. Sandusky is a former employee of PSU and worked as the defensive coordinator for the university’s Division I football program for twenty-three years. During Sandusky’s tenure, Joe Paterno served as head football coach of PSU and had “legendary status” in Pennsylvania for his record number of wins. Doe claims that Sandusky “exploited his status as an associate of Paterno and member of the PSU football staff to further his grooming and assaults on young boys.”

In 1977, Sandusky founded Second Mile, a charity dedicated to helping children with dysfunctional families. Since its inception, Second Mile has had substantial social and financial links to PSU Significantly, PSU authorized Sandusky to bring children from Second Mile to PSU’s premises and allowed Sandusky and these children to use PSU’s facilities together without supervision. Doe participated in Second Mile activities and was one of the children that PSU allowed Sandusky to bring to campus.

In April 1998, Doe, then eleven-years old, met Sandusky at a Second Mile event. On or about May 3, 1998, Sandusky called Doe’s home and invited him to exercise at a PSU athletic facility that evening. Doe accepted the invitation and Sandusky picked him up at his house around 7:00 p.m. On the drive to PSU, Sandusky “repeatedly and inappropriately” placed his hand on Doe’s leg. When they arrived at PSU, Sandusky took Doe to the Lasch Building—the main PSU football facility—which contained Sandusky’s and Paterno’s offices, as well as exercise machines, dressing rooms, and showers. Sandusky led Doe to the coaches’ locker room where Sandusky gave Doe a pair of Paterno’s socks as a souvenir and wrestled with Doe. Doe claims that “[w]restling was merely a ruse to afford Sandusky an opportunity to put his hands on and rub his body against Plaintiff’s adolescent male body for the purpose of Sandusky’s sexual gratification.” After wrestling, Sandusky and Doe worked out on exercise machines. Following the work out, Sandusky kissed Doe’s head and said, “I love you.” Doe states that Sandusky did this to groom Doe for “more advanced sexual activity.” Sandusky then led Doe to a locker room, where Sandusky took off his clothes and turned on the showers. Although Doe was reluctant to shower, Sandusky told him that “All the boys do it, ” and used “undue influence based on his stature” to entice Doe to shower. After Doe entered the shower, he went to the shower head farthest away from Sandusky, because he felt “[e]xtremely uncomfortable . . . being naked and seeing Sandusky naked.” Sandusky, however, directed Doe to a shower closer to Sandusky, claiming that he had already warmed the water for Doe.

While naked in the shower, Sandusky engaged in physical contact with Doe. Sandusky “wrapped his hands around [Doe]’s torso from behind and pressed his body, including his genitals, against Plaintiff and said, ‘I’m gonna squeeze your guts out.’” Sandusky also acted as a self-described “Tickle Monster” as a pretense for touching Doe in the shower. Finally, Sandusky lifted Doe, claiming to want to rinse the soap out of Doe’s hair. When Sandusky picked Doe up, Doe’s feet were “‘up pretty high’ near Sandusky’s waist. John Doe 6’s body contacted Sandusky’s chest and his feet touched Sandusky’s thigh. This likely brought Sandusky’s genitals into contact with the boy’s body. . . . [and] likely brought this young boy’s genitals up to Sandusky’s face.” After Sandusky lifted him, Doe cannot recall what followed, and describes the subsequent events as “just kind of black.” Following the shower, Sandusky promised Doe that he would take him to the movies and allow him to sit on the PSU bench during a football game.

Sandusky brought Doe home around 9:00 p.m. Doe’s mother noticed that he was acting the way he did when he was upset. Doe told his mother he showered with Sandusky. The next morning Doe’s mother called Alycia Chambers, Ph. D., a licensed psychologist, who told Doe’s mother to report the incident to authorities. Doe’s mother called the local police, but was redirected to the PSU police department. She reported the incident to a PSU Police Department detective around 11 a.m. Around 11:30 a.m., a PSU detective interviewed Doe. Doe told the detective some of the story and also that his ten-year old friend had experienced a similar shower incident with Sandusky. On May 4, 1998, the PSU detective and a Centre County Children and Youth Services (“CYS”) case worker (who Doe claims had conflicts of interest) spoke with Doe’s friend, who described two incidents in which Sandusky took him to the Lasch building, wrestled with him, and inappropriately touched him in the shower. After the interview with Doe’s friend, the PSU detective and CYS caseworker re-interviewed Doe. Doe claims that during these interviews and on other occasions, PSU investigators intimidated him and made him feel guilty for any trouble that might befall Sandusky.

Alycia Chambers also met with Doe on the day after the shower incident, and subsequently made a report to the Pennsylvania child abuse line. She consulted with colleagues who agreed that “the incidents meet all of our definitions, based on experience and education, of a likely pedophile’s pattern of building trust and gradual introduction of physical touch, within a context of a ‘loving, ’ ‘special’ relationship.” Chambers produced a written report describing Sandusky as a likely pedophile, and provided this report to PSU’s detective on May 7, 1998. On May 8, 1998, PSU directed an unlicensed psychologist to conduct an evaluation of Doe, thus forcing Doe to relive the incident for the fourth time in less than a week.

In the meantime, Sandusky had called Doe multiple times, including twice on May 3, 1998[4] and once on May 6, 1998, when he left a voicemail asking Doe to work out with him. On May 12, 1998, Sandusky called Doe again and arranged to pick him up the following day. On May 13, 1998, PSU detectives and a local police officer hid inside Doe’s house and covertly listened to Sandusky’s conversation with Doe’s mother. Sandusky admitted that he had physical contact with Doe. Doe’s mother said she thought it was best if Sandusky left him alone. On May 19, 1998, Doe’s mother again spoke with Sandusky and asked “Sandusky about the bear hug in the shower, and whether his ‘private parts’ touched the boy while they hugged. Sandusky did not deny it. He said ‘I don’t think so…maybe.’” He also admitted to showering with other boys and telling Doe that he loved him. Sandusky asked to speak with Doe, but Doe’s mother refused and asked Sandusky not to attend Doe’s baseball games. Sandusky responded “I understand. I was wrong. I wish I could get forgiveness. I know I won’t get it from you. I wish I were dead.”

On June 1, 1998, PSU investigators interviewed Sandusky, who admitted to previously showering with other boys. The PSU detective advised Sandusky not to shower with children, and Sandusky said that he “wouldn’t.” At the end of the investigation, PSU’s investigator thought Sandusky’s actions warranted criminal charges, but this recommendation was not documented or incorporated into PSU’s investigation file. The District Attorney declined to formally charge Sandusky.

Doe alleges that from May 4, 1998 until the conclusion of the police investigation, PSU employees Schultz, Curley, Spanier, and Paterno were informed of the details of the allegations against Sandusky and received updates on the investigation. On May 5, 1998, Schultz learned from the police chief that PSU police were “going to hold off” making a crime log entry—a public record—on the incident. The report was ultimately opened as an “Administrative Information” file. In early June 1998, Schultz, Curley, and Spanier were informed that investigators “‘concluded that there was no criminal behavior and the matter was closed as an investigation.’” Doe claims that after the end of the investigation, PSU employees did not discuss the incident with Sandusky, did not limit his use of PSU facilities, did not monitor his activities, did not contact the Office of Human Resources for guidance, and did not take any personnel actions concerning the incident. Instead, in 1999, PSU offered Sandusky monetary and “retirement” incentives. PSU also openly endorsed Sandusky to the public and granted him “emeritus status.” Doe thus claims that “PSU’s response to Sandusky’s sexually abusive behavior to minor boys, including Plaintiff, was to cover it up and in effect reward him . . . .”

In June 2012, more than a decade after the incident, Sandusky was convicted of 45 counts of criminal sexual assault. With respect to Doe, he was found guilty of unlawful contact with minors, ...


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