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Ortega v. Roulhac

United States District Court, E.D. Pennsylvania

January 22, 2015

JOSUE ORTEGA, Plaintiff,


RONALD L. BUCKWALTER, Senior District Judge.

Currently pending before the Court are the Motions by Defendant Edward Roulhac and Defendants The School District of Philadelphia, William Hite, and Reginald Fisher (collectively "Defendants") to Dismiss Plaintiff Josue Ortega ("Plaintiff')'s Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Motions to Dismiss are granted.


Plaintiff is an eighteen-year-old resident of Philadelphia, Pennsylvania. (Am. Compl. ¶ I.) Plaintiff was a student at Frankford High School, part of the Philadelphia School District, from September 2012 through the date of the filing of the First Amended Complaint. (Id. ¶ 30.)

At the time of the events detailed in the Amended Complaint, Defendant Edward Roulhac ("Roulhac") was previously employed by the School District of Philadelphia and Frankford High School ("Frankford") as an assistant principal. (Id. ¶¶ 2, 29.) Defendant Roulhac was also the Safety, Climate, Culture, & Safety [sic] Administrator at Frankford. (Id. ¶ 3.) In that capacity, his duties included "keeping safe and secure the students rendered to his care, custody, control, and monitoring[;] regulating [] and coordinating school-related operations, all district and state test assessments, school-wide school transitions and hall movement, overall school safety and climate, and student activities (sport and non-sport)." (Id. ¶ 38.)

Defendant Philadelphia School District is a local education authority and political subdivision duly organized, established, and existing under the laws of the Commonwealth of Pennsylvania. (Id. ¶ 4.) The Philadelphia School District is a local education authority within the meaning of the Individuals with Disabilities Act ("IDEA"), 20 U.S.C. § 1400 et seq., and is responsible and obligated under the IDEA, the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq., to provide and implement a Free Appropriate Public Education ("FAPE") for Plaintiff. (Id.)

Defendant William R. Hite, Jr., Ed.D. ("Hite") is a competent adult individual who, at all relevant times, was employed as the Superintendent of the Philadelphia School District. (Id. ¶ 6.) In that position, Defendant Hite was a policymaker for the Philadelphia School District and was authorized by the District to perform duties and responsibilities including, but not limited to, supervising and monitoring Defendant Roulhac, supervising Frankford, and supervising the care and custody of the children being taught at Frankford. (Id.) Defendant Hite was also responsible for ensuring that Plaintiff received a FAPE in the least restrictive environment. (Id. ¶ 7.)

Defendant Reginald D. Fisher ("Fisher") was, during the 2012-2013 school year, employed by the Philadelphia School District as the Principal of Frankford High School. (Id. ¶ 8.) At all relevant times, Defendant Fisher was authorized by the Philadelphia School District to perform the duties and functions of Frankford's Principal, including, but not limited to, supervising and monitoring Defendant Roulhac, supervising Frankford, and supervising the care and custody of the children being taught at Frankford. (Id.)

On or about August 27, 2002, Defendant Philadelphia School District offered and Defendant Roulhac accepted the position of Acting Assistant Principal at the Ada H. Lewis Middle School, effective September 3, 2002. (Id. ¶ 11.) Six years later, on or about July 24, 2008, Defendant Roulhac was reassigned to Frederick Douglass Elementary School as Principal, effective July I, 2008. (Id. ¶ 12.) On or about October 29, 2009, Regional Superintendent Central Region Marilyn Perez issued a SHE-204 Unsatisfactory Incident recommending that Defendant be demoted from his position as Principal effective immediately. (Id. ¶ 13.) That decision was based on an unsatisfactory school climate and lack of implementation of the curricular programs and initiatives at Frederick Douglass Elementary School. (Id. ¶ 14.) Ms. Perez noted that there had been numerous incidents regarding violence and violent behavior, including fighting both before and after school in the schoolyard, school bathrooms, and stairwells, and also cited specific incidents witnessed on October 6, 23, and 29, 2009. (Id. ¶¶ 15-16.) On October 29, 2009, Ms. Perez described a series of incidents that spanned several hours, including a kindergarten student who left the school without being detected, children walking in the hallways without passes, students fighting, adults arguing, one adult being arrested, and other similar incidents. (Id. ¶ 17.) Ms. Perez also reported that serious incidents had not been reported, including events that occurred on October 15 and 27, 2009. (Id. ¶ 18.) In the October 29, 2009 SHE-204, Ms. Perez criticized Defendant Roulhac for not being informed and not being cognizant of obvious conditions at his school, as well as the school's unsatisfactory climate, and recommended that Defendant Roulhac be immediately demoted to Assistant Principal. (Id. ¶¶ 19-20.) On or about December 2, 2009, Defendant Roulhac retired from the Philadelphia School District, but on or about April 5, 2010, he rescinded his decision to retire. (Id. ¶¶ 21-22.) On or about July 1, 2010, Arlene C. Ackerman, then-Superintendent of the Philadelphia School District, recommended to the School Reform Commission that Defendant Roulhac be demoted to the position of Assistant Principal. (Id. ¶ 23.) On or about August 11, 2010, the Philadelphia School District reassigned Defendant Roulhac to PLA North High School as an Extra Service Assistant Principal. (Id. ¶ 24.) On or about July 8, 2011, Defendant Roulhac was reassigned to Academic Division 6 as Assistant Principal on Special Assignment. (Id. ¶ 25.) Other than the demotion to Assistant Principal, Defendant Roulhac was not subject to any other disciplinary action. (Id. ¶ 27.)

On or about June 22, 2012, Defendant Philadelphia School District offered Defendant Roulhac the position of Assistant Principal at Frankford High School, which had been identified by the Pennsylvania Board of Education as a "Persistently Dangerous School" for the years 2006 to 2013. (Id. ¶ 26.) Frankford and the Philadelphia School District were responsible for ensuring that each assistant principal, including Defendant Roulhac, was adequately trained. (Id. ¶ 35.) Defendant Roulhac was professionally certified in the Commonwealth of Pennsylvania in the area of elementary education, but not as a Principal or Assistant Principal. (Id. ¶¶ 36-37.)

On November 2, 2012, at approximately I 0:05 a.m., Plaintiff, Plaintiffs niece, and a third student named Rene, were walking in the hallway after being dismissed from class when Defendant Roulhac approached the three students and initiated an argument with them. (Id. ¶ 39.) Defendant Roulhac attempted to grab Rene, but school officers intervened and escorted Rene to a supervised classroom. (Id. ¶ 40.) Plaintiff continued to another classroom to retrieve his transportation pass from another student, but before he got there he was again confronted by Defendant Roulhac who, "in a hostile manner, " ordered Plaintiff to remove his hat. (Id. ¶ 41.) Plaintiff complied but Defendant Roulhac "unsuccessfully and violently attempted to grab Plaintiffs hat from off his head." (Id. Plaintiff attempted to leave the classroom with Rene, but Defendant Roulhac blocked the doorway so that Plaintiff and Rene were prevented from leaving. (Id. ¶ 42.) Defendant Roulhac asked them where they were going, and Plaintiff responded that they were going to class. (Id.) Defendant Roulhac replied, "(n]o you're not, " then pushed Rene with his hands, who said "[y], why you put your hands on me, you're not my father, " to which Defendant Roulhac responded "[w]hat do you want to do, son? Don't worry; we have to go behind closed doors eventually, " to which Rene replied "(t]hat's what I have a dad for." (Id.) Defendant Roulhac then approached Plaintiff and said "[g]ive me your f***ing phone, " and forcefully removed Plaintiffs phone from his bag. (Id. ¶ 43.) Plaintiff asked Defendant Roulhac to return the phone, but was refused. (Id.) Defendant Roulhac then punched Plaintiff in his face, grabbed him, and slammed him into file cabinets. (Id. ¶ 46.) Defendant Roulhac is approximately six feet three inches tall and weighs approximately 220 pounds. (Id. ¶ 44.) Plaintiff is five feet eleven inches tall and at the time of the incident weighed approximately 130 pounds. (Id. ¶ 45.) School officers intervened and removed Plaintiff from the classroom. (Id. ¶ 47.) Plaintiff overheard a school officer tell Defendant Roulhac that he had gone "overboard." (Id. ¶ 48.)

At approximately 10:15 a.m., school officers escorted Plaintiff to the school police office at Frankford, where they cleaned blood from his face and asked him to write a statement describing the incident. (Id. ¶ 49.) Defendant Roulhac entered the office and said to Plaintiff, "(w]hat do you want to do now, you little punk?" (Id. ¶ 50.) A school officer admonished Defendant Roulhac that he was not permitted to speak to Plaintiff, nor was he permitted in the school police office, because Plaintiff was in the custody of the school police. (Id.) Defendant Roulhac said "I'm not going anywhere, " but after the school officer again told him that he needed to leave so that Plaintiff could write his statement, he finally left the office. (Id.)

Without notifying Defendant Fisher or Frankford's school police sergeant, Defendant Roulhac contacted Frankford Police Headquarters and falsely alleged that he had been assaulted by two students and that he wanted them arrested. (Id. ¶ 51.) Police officers from the 15th Police District arrived at Frankford and arrested Plaintiff and Rene for disorderly conduct. (Id. ¶ 53.) Plaintiff was detained at the Police District for approximately two and a half hours, and was released with a citation to appear in court for disorderly conduct. (Id. ¶ 54.)

As a result of the incident, Plaintiff suffered bruising, a traumatic brain injury, neck sprain and spasm, facial twitching, vision disturbance, traumatic iritis to the right eye, a contusion to the orbital tissue of the right eye, cognitive deficits, and post-traumatic stress disorder, including depression. (Id. ¶ 55.) Due to his injuries, Plaintiffs doctor ordered Plaintiff to stay home from school until November 26, 2012 or November 27, 2012. (Id. ¶ 56, Ex. A.) Plaintiff ultimately did not return to school until December 2, 2012. (Id.) Due to the extensive orthopedic neurological, psychiatric, and ophthalmological nature of his injuries, Plaintiff required special accommodations upon his return to school, but received little to no assistance from Frankford's administration, staff: or teachers. (Id. ¶ 57.) During his time away from school, Frankford did not communicate with Plaintiff or prepare any plan for his missed time, curriculum, or lessons. (Id. ¶ 58.)

Upon his return to school, Plaintiff frequently visited the school nurse for various complaints related to his injuries and requested to call home, but the nurse informed him that "[t]here's nothing I can do for you" and that he could not call home because "it's not a severe or dying matter." (Id. ¶ 59.) Plaintiff experienced difficulty with the sight in his right eye as a result of his injuries, but when he expressed as much to a teacher, he was told to "[u]se your other eye." (Id. ¶ 60.) Plaintiff explained to various teachers his inability to concentrate or understand the relevant material, but they told him "[y]ou're going to have to catch up, because we're on a different level, " "[i]t's your problem, and you're not being excused, " and "I guess it's a big fat zero." (Id. ¶ 61.)

Due to the school's failure to consider or prepare any plan for Plaintiff's re-entry into school, and the fact that no plan was suggested upon his return, on December 7, 2012, Plaintiff's counsel submitted a proposed 504 plan of accommodation for Plaintiff. (Id. ¶ 62, Ex. B.) On December 19, 2012, Plaintiff's counsel re-submitted the proposed 504 plan of accommodation, endorsed by Plaintiffs doctors. (Id. ¶ 63, Ex. C.) On December 24, 2012, just prior to the winter break and with no education plan in effect to address Plaintiff's impairments, limitations, and/or needs, the Philadelphia School District submitted its own 504 plan of accommodation for Plaintiff, but without including the appropriate specificity or detail. (Id. ¶ 64.) On January 8, 2013, "all parties involved"[1] attended a meeting to discuss a proper 504 plan for Plaintiff. (Id. ¶ 65.) Specific plans for each of Plaintiff's teachers were to be prepared and reviewed, and although work was reviewed, no written plan was ever prepared by each teacher and/or for each course. (Id.) On January 9, 2013, Defendant Philadelphia School District submitted a revised 504 plan. (Id. ¶ 66, Ex. D.) That plan was deficient and failed to include any plans for Plaintiffs courses. (Id.) At Plaintiff's request, on February 6, 2013, Defendant Philadelphia School District issued a Permission to Evaluate. (Id. ¶ 68, Ex. E.) On February 12, 2013, Plaintiffs counsel submitted a revised 504 plan to reflect the academic prescriptions/prohibitions by Plaintiff's neurosurgeon that Plaintiff was not to undergo testing. (Id. ¶ 69, Ex. F.) On February 28, 2013, Plaintiffs sister signed and returned the Permission to Evaluate. (Id. ¶ 70, Ex. G.) On February 28, 2013, Plaintiff submitted a Pupil Transfer request based on the November 2, 2012 incident and the Philadelphia School District's subsequent failure to implement a satisfactory education plan that would accommodate Plaintiffs cognitive, physical, and emotional needs. (Id. ¶ 71, Ex. H.)

Despite Plaintiffs doctor's prohibition on testing, which was referenced in the Permission to Evaluate, Plaintiffs math teacher administered a test to Plaintiff on March 1, 2013. (Id. ¶ 72.) Plaintiffs math teacher took Plaintiffs test from him, and, out of frustration, tore it up in front of him. (Id. ¶ 73.) That teacher then falsely claimed that Plaintiff assaulted him, causing Plaintiff to be segregated from his classmates and causing Plaintiff to be further debilitated. (Id.)

Defendant Philadelphia School District has not provided Plaintiff with any teachers trained in traumatic brain injuries, nor has it provided Plaintiff with an educational plan or environment appropriate for a student "suffering from a traumatic brain injury and the sequelae resulting therefrom." (Id. ¶ 75.) Plaintiff continues to suffer from neurological deficits and disabilities, including post-traumatic concussion syndrome, as a result of the incident on November 2, 2012. (Id. ¶ 76.)

Plaintiff initiated the present litigation on August 2, 2013 by filing a complaint in the Philadelphia Court of Common Pleas. Defendants removed the case to federal court on August 14, 2014. Thereafter Plaintiff filed a First Amended Complaint on August 18, 2014, setting forth eighteen[2] causes of action, including: 1) vicarious liability against Defendant School District of Philadelphia; 2) breach of fiduciary duty against Defendants School District of Philadelphia, Hite, and Fisher; 3) violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution for injury to human dignity pursuant to 42 U.S.C. § 1983 against Defendants Roulhac, Hite, and Fisher; 4) violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution for injury to bodily integrity pursuant to 42 U.S.C. § 1983 against Defendants Roulhac, Hite, and Fisher; 5) violations of Article I, Section 1 of the Constitution of the Commonwealth of Pennsylvania for injury to bodily integrity against Defendants Roulhac, Hite, and Fisher; 6) violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution for injury to human dignity pursuant to 42 U.S.C. § 1983 against Defendant School District of Philadelphia; 7) violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution for injury to bodily integrity pursuant to 42 U.S.C. § 1983 against Defendant School District of Philadelphia; and 8) violations of the Due Process Clause of the Fourteenth Amendment to the United States Constitution for injury as a result of a state-created danger/special relationship pursuant to 42 U.S.C. § 1983 against Defendant School District of Philadelphia. Defendant Roulhac filed a Motion to Dismiss the Amended Complaint on October 6, 2014. Defendants Hite, Fisher, and School District of Philadelphia also filed a Motion to Dismiss the Amended Complaint on October 6, 2014. Plaintiff filed separate Responses to each Motion to Dismiss on October 23, 2014. Defendants Hite, Fisher and School District of Philadelphia submitted a Reply on October 29, 2014, and Defendant Roulhac submitted a Reply on November 3, 2014. Plaintiff subsequently filed a Sur-Reply on January 19, 2015.[3] The Motions to Dismiss are now ripe for judicial consideration.


Under Rule 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 Atlantic Coro. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court recognized that "a plaintiffs 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. Following these basic dictates, the Supreme Court, in Ashcroft v. Iqbal, 556 U.S. 662 (2009), subsequently defined a two-pronged approach to a court's review of a motion to dismiss. "First, 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 "Rule 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, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id . A complaint does not show an entitlement to relief when the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct. Id .; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 232-34 (3d Cir. 2008) (holding that: (1) factual allegations of complaint must provide notice to defendant; (2) complaint must allege facts suggestive of the proscribed conduct; and (3) the complaint's "factual allegations must be enough to raise a right to relief above the speculative level.'" (quoting Twombly, 550 U.S. at 555)).

Notwithstanding these new dictates, the basic tenets of the Rule 12(b)(6) standard of review have remained static. Spence v. Brownsville Area Sch. Dist., No. Civ.A.08-626, 2008 WL 2779079, at *2 (W.D. Pa. July 15, 2008). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief and need not contain detailed factual allegations. Phillips, 515 F.3d at 233. 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).


Defendants move to dismiss the remaining counts of Plaintiffs Amended Complaint in its entirety due to a lack of foundation under Rule 12(b)(6).[4] Having considered the Amended Complaint and the parties' briefs, the Court finds that Plaintiff has not sufficiently pied Counts Five, Six, Seven, Eight, Nine, [5] Ten, Eleven, Twelve, or Thirteen, and will grant Defendants' Motions to Dismiss those claims. As discussed below, Counts Seven, Eight, Eleven, and Twelve are being dismissed without prejudice, while Counts Five, Six, Nine, Ten, and Thirteen are being dismissed with prejudice.

A. Plaintiff's Waiver Argument

Plaintiff argues that the Defendants have waived their ability to move to dismiss the Amended Complaint pursuant to Rule 12(b)(6) for failure to state a claim for which relief can be granted because Rule 12(g) provides that "a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." (Pl.'s Resp. Opp'n Def. Roulhac's Mot. Dismiss 2-3; Pl.'s Resp. Opp'n Defs. School Dist. of Phila., Hite, and Fisher's Mot. Dismiss 2-3.) This argument misunderstands the meaning of Rule 12(g), which prohibits successive motions that raise defenses which were available but omitted from a prior motion. See Myers v. Am. Dental Ass'n, 695 F.2d 716, 720 (3d Cir. 1982) ("Rule 12(g) requires a party who raises a defense by motion prior to answer to raise all such possible defenses in a single motion. They cannot be raised in a second, pre-answer motion."). Nothing in Rule 12(g) prohibit a party from moving to dismiss an amended complaint where that party had not yet moved to dismiss the original complaint prior to its amendment.

Moreover, "[l]ike so many other rules, [Rule 12(g)] contains an exception: If a party makes a motion under this rule but omits therefrom any defense or objection then available to the party which this rule permits to be raised by the motion, the party shall not thereafter make a motion based on the defense or objection so omitted, except a motion as provided in subdivision (h)(2) hereof on any of the grounds there stated." Penn-Mont Benefit Servs., Inc. v. Crosswhite, No. Civ.A.02-1980, 2003 WL 203570, at *5 (E.D. Pa. Jan. 29, 2003) (quoting Fed.R.Civ.P. 12(g) (emphasis added)). Rule 12(h) provides that "[a] defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by motion for judgment on the pleadings, or at the trial on the merits." Fed.R.Civ.P. (12)(h)(2). Accordingly, pursuant to the Federal Rules of Civil Procedure, "the defense of failure to state a claim cannot be waived before the occurrence of a trial on the merits. The advisory committee notes confirm that the defense is preserved against waiver." Penn-Mont Benefit Servs., Inc., 2003 WL 203570, at *5 (citing Fed.R.Civ.P. 12 advisory committee's note to 1966 amendment to subdivision (h) which states that "the more substantial defense[ ] of failure to state a claim upon which relief can be granted... [is] expressly preserved against waiver by amended subdivision (h)(2) and (3).").

Plaintiff relies on Chan v. County of Lancaster in support of his argument that Defendants are unable to move to dismiss the Amended Complaint, but ignores that court's note that "[a] court, in its discretion, may excuse the requirements of Rule 12(g) and consider successive Rule 12 motions to dismiss as a means of preventing unnecessary delay.... However, defendants do not offer this argument and have not set forth in their brief any reason that this court should exercise its discretion and excuse the requirements of Rule 12(g)." Chan v. Cnty. of Lancaster, No. Civ.A.10-3424, 2012 WL 4510776, at *13 (E.D. Pa. Sept. 28, 2012) (citation omitted). In this case, all Defendants expressly argue that not considering their Motions to Dismiss would result in unnecessary delay because the Court would then have to consider the same arguments pursuant to a motion for judgment on the pleadings under Rule 12(c). (See Def. Roulhac's Reply 4; Defs. School Dist. of Phila., Hite, and Fisher's Reply 5.) As other courts within the Third Circuit have observed, "there is simply no reason to put the defendant to the time and expense of filing an answer, or both defendant and plaintiff to the ...

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