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Shawn H. v. Wienk

United States District Court, W.D. Pennsylvania

September 23, 2014

SHAWN H. and CHRISTINE C., individually and as parents and legal guardians of S.H., a minor; and S.H., individually and in his own right, Plaintiffs,
DEANNE WIENK, in her individual and official capacity as a teacher; FRANK BERDAR, in his individual and official capacity as the principal of Cardale Elementary School; PHILIP SAVINI, JR., in his individual and official capacity as District Superintendent of BROWNSVILLE AREA SCHOOL DISTRICT; and INTERMEDIATE UNIT 1, Defendants.


MARK R. HORNAK, District Judge.

This is a § 1983 case stemming from an alleged assault on S.H., the minor Plaintiff, by a teacher, Defendant Deanne Wienk ("Wienk"). Plaintiffs allege that various officials and the school district (including the Intermediate Unit) violated S.H.'s Federal constitutional rights and committed state law torts. Pending before the Court are two motions to dismiss, the first filed by Defendants Frank Berdar, Philip Savini, Jr., and Brownsville Area School District (ECF No. 13); and the second filed by Defendant Intermediate Unit 1 (ECF No. 17).[1] Defendants seek to have all claims asserted against them dismissed. The Court has considered the Plaintiffs' Complaint, the pending motions, the briefs in support of and in opposition to these motions. (ECF Nos. 1, 13-14, 17-18, 21). The matters are ripe for disposition, and for the reasons that follow, the motions will be granted, without prejudice as explained in this Opinion.[2]


When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations in the Complaint as true and draw all reasonable inferences in Plaintiff's favor. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Therefore, for the purpose of the disposition of Defendants' Motions, the essential facts are as follows.

Shawn H. and Christine H. are the parents of S.H., the minor Plaintiff, who attended Cardale Elementary School located in the Brownsville Area School District. (ECF No. 1 at ¶¶ 6-7). Defendant Wienk was a teacher at Cardale Elementary School, and is believed to be an employee of Defendant Intermediate Unit 1. Id. at ¶ 7. Defendant Frank Berdar ("Berdar") was the principal at Cardale Elementary, and Defendant Philip Savini, Jr. ("Savini") was the Superintendent of the School District. Id. at ¶¶ 8-9.

On or about May 9, 2012, S.H. was a fifth grade student at Cardale Elementary School. Id. at ¶ 13. On that date, S.H. was waiting in line in the hallway outside of the cafeteria, having just completed his lunch period. Id. at ¶ 14. Wienk was acting as the hall supervisor, supervising the students while in the hallway and then leading them back to their respective classrooms. Id. at ¶ 15. Wienk allegedly instructed an unnamed student to be quiet and form an orderly line with the rest of the class. Id. at ¶ 16. S.H., a friend of the unnamed student, also instructed the student to form an orderly line so the class could return to their homeroom. Id. at ¶ 17. According to the Plaintiffs, "without warning or provocation, " Wienk immediately and quickly "charged" at S.H., and proceeded to "violently choke S.H. with both of her hands and violently slam[med] S.H.'s head into the brick/stone wall in the hallway." Id. at ¶ 18. Wienk choked S.H. for "a period of time, " and ultimately had to be forcibly removed from S.H. by two of S.H.'s friends and classmates. Id. at ¶ 19.

S.H. was in a state of shock after the incident, and returned to his homeroom visibly shaken with hand and/or finger marks around his neck. Id. at ¶ 20. S.H.'s homeroom teacher observed the marks on S.H.'s neck and was made aware of the incident. Id. at ¶ 22. S.H. was taken to the nurse's and principal's office by another student, but Berdar was not on the premises at that time or when the incident happened. Id. at ¶¶ 22-24. S.H. was allowed to call his parents, and he was picked up by his father, Shawn H. Id. at ¶¶ 25-26. Upon learning what happened, Shawn H. returned to the school and met with Berdar, and completed a complaint form provided by the school. Id. at ¶¶ 27-28.

S.H.'s pain continued to increase as the night wore on, and he began experiencing symptoms of a serious concussion and closed-head injury. Id. at ¶ 29. He was extremely tired and fell asleep in his parents' car, he became nauseous and vomited when field lights came on at his brother's baseball game, and his neck was stiff, sore and painful. Id. at 29. S.H. was admitted to the hospital for testing and observation that night. Id. at ¶ 30. Plaintiffs' allege that S.H. sustained physical, emotional and psychological injuries, and requires continued and prolonged medical treatment and therapy for post-concussion syndrome and cervical neck sprain. Id. at ¶¶ 31-32. S.H. also continues to suffer from depression, anxiety and nightmares as a result of the incident, requiring him to be homeschooled because Defendants failed to remove Wienk from teaching after the incident. Id. at ¶ 33.

On December 6, 2012, Plaintiffs filed suit in this Court against Defendants, alleging that their actions violated S.H.'s Fifth and Fourteenth Amendment rights, and constituted common law torts, which they have enumerated in the five (5) Counts of the Complaint. Id. at ¶¶ 36-77. Counts I and V are asserted against Wienk, and therefore are not considered here. In Counts II and III, Plaintiffs allege that Defendants' actions violated S.H.'s Fifth and Fourteenth Amendment substantive due process rights. Id. at ¶¶ 43-65[3] Count IV alleges a state law intentional infliction of emotional distress claim against Defendants Berdar and Savini. Id. at ¶


A. Standard of Review

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must allege "enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); see also Fed.R.Civ.P. 10(c) ("a copy of a written instrument that is an exhibit to a pleading is part of the pleading for all purposes"). "The District Court must accept the complaint's well-pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578 FJd 203, 210 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. In short, a motion to dismiss should be granted if a party does not allege facts that could, if established at trial, entitle him to relief. See Fowler, 578 F.3d at 211.[4]

B. Section 1983 claims

Counts II and III are brought pursuant to 42 U.S.C. § 1983, which provides a private right of action to:

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 [U.S.] Constitution and laws.

42 U.S.C. § 1983. Section 1983 does not create substantive rights but instead "provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws." Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To prevail in a claim brought via § 1983, a plaintiff must prove that he or she: (a) suffered the deprivation of a right secured by the United States Constitution or federal law (b) ...

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