United States District Court, E.D. Pennsylvania
MEMORANDUM RE: DEFENDANTS' MOTION TO
Matthew Lichtenstein (“Plaintiff”) brings this
action against defendants Lower Merion School District
(“Lower Merion”), Pat Guinnane, the Director of
Operations for Lower Merion (“Guinnane”), Ryan
Sankey, an employee at Lower Merion High School
(“Sankey”), and Frank Agostini, also an employee
at Lower Merion High School (“Agostini, ” and
collectively, “Defendants”), alleging violations
of his rights pursuant to the Due Process Clause of the
Fourteenth Amendment of the Constitution.
Complaint (ECF 1, “Compl.”) alleges three Counts:
(1) a claim for violation of the Fourteenth Amendment under
42 U.S.C. §1983 based on the “special
relationship” exception (Compl. ¶¶ 58-62);
(2) a claim for violation of the Fourteenth Amendment under
42 U.S.C. § 1983 based on the
“state-created danger” exception (Id.
(3) a Monell claim under 42 U.S.C. §
1983 against Lower Merion. (Id. ¶¶ 71-76).
November 22, 2016, Defendants moved to dismiss the Complaint,
pursuant to Federal Rule of Civil Procedure 12(b)(6), (ECF 8,
“Defs.' Mot.”), to which Plaintiff filed an
Opposition on December 6, 2016, (ECF 9, “Pl.'s
Opp'n”). Defendants did not file a reply brief.
following reasons, Defendants' Motion will be DENIED,
except as to all claims against Guinnane, where it will be
GRANTED, without prejudice, and with leave to amend.
is a twenty-two year old man who has been multiply
handicapped since birth, and has required the use of a
wheelchair since childhood. Plaintiff grew up in Lower Merion
Township, and was attending Lower Merion High School when, on
October 16, 2014, the accident at issue in this case
occurred. (Compl. ¶ 14).
his multiple disabilities, while a student at Lower Merion,
Plaintiff was eligible for special education services
pursuant to the Individuals with Disabilities Education Act,
20 U.S.C. § 1400 et. seq.
(“IDEA”), and Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794 (“Section
504”). (Id. ¶ 15). Plaintiff's
special education was provided pursuant to Individualized
Education Programs (“IEPs”). (Id. ¶
18). During the 2014-2015 schoolyear, Plaintiff's
governing IEP provided that he take swimming lessons, and
that, while swimming, he would be assisted by two “1:1
assistants.” (Id. ¶¶ 18-19). Sankey
and Agostini were Plaintiff's 1:1 assistant and, pursuant
to the IDEA and Section 504, were required to be instructed
in caring for Plaintiff. (Id. ¶ 20).
alleges that he was “dependent on [Lower Merion] for
his most basic human needs, i.e. medical care, safety,
toileting, and the completion of the activities of daily
living.” (Id. ¶ 16). Since beginning to
swim in the Lower Merion pool during the 2013-2014 school
year, Plaintiff was transported into and out of the pool
using a chair (the “Chair”) that Defendants
referred to as a “pool chair, ” but that was
actually a “shower chair/commode chair, ” and
that was not designed to transfer special needs students.
(Id. ¶¶ 28-29). According to Plaintiff,
despite knowing that the Chair was “decrepit, ”
Sankey and Agostini frequently used the Chair to transport
Plaintiff. (Id. ¶¶ 35-36)
October 16, 2014, Sankey and Agostini transported Plaintiff
to and from the pool in the Chair. (Id. ¶¶
41-42). While wheeling Plaintiff back to the locker room
after his swimming lesson, the Chair broke. (Id.
¶ 44). Either Sankey or Agostini “grabbed
[Plaintiff] in order to keep him from falling onto the”
pool deck. (Id.). According to Plaintiff, Sankey and
Agostini were not properly trained to support Plaintiff once
the chair broke, and he “was handled roughly which
caused serious and permanent physical injury” to,
inter alia, his “back, neck, [and] upper
extremities.” (Id. ¶¶ 46-47, 50,
alleges that Defendants knew that the Chair “was not
being used for its intended purpose.” (Id.
¶ 69b). Additionally, the Chair “was in deplorable
condition” in that it (1) “had been used for
numerous years, and was long past its useful/safe
life”; (2) “had been previously broken and was
held together in numerous places by tape”; and (3)
“was unstable and was held together in numerous places
with tape.” (Id. ¶ 30). Plaintiff alleges
that Defendants “willfully and consciously ignored the
risks and dangers inherent in repeatedly placing [Plaintiff]
into” the Chair. (Id. ¶ 32). Plaintiff
asserts that his injuries were “easily avoidable”
because Defendants could have “replaced the
decrepit” Chair, “use[d] a proper lift” to
transport Plaintiff, or properly trained Sankey and Agostini
to deal with an emergency situation involving Plaintiff.
(Id. ¶ 67). Shortly after the incident,
Defendants replaced the Chair. (Id. ¶ 31).
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint must contain sufficient
factual allegations that “state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A complaint will
satisfy this threshold test for facial plausibility if
“the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. at 678. While all factual allegations must be
accepted as true, Erickson v. Pardus, 551 U.S. 89,
94 (2007), this requirement does not apply to legal
conclusions, which may be disregarded, Iqbal, 556
U.S. at 678.
presented with a motion to dismiss under Rule 12(b)(6), a
district court should conduct a two-part analysis. First, it
should separate the factual and legal elements of a claim and
accept all of the well-pleaded facts as true. Second, it
should determine whether the factual allegations are
sufficient to show that the plaintiff has a “plausible
claim for relief.” Fowler v. UPMC Shadyside,
578 F.3d 203, 210-11 (3d Cir. 2009).
establish a claim under 42 U.S.C. § 1983, a
plaintiff must demonstrate a violation of a right protected
by the Constitution or laws of the United Sates that was
committed by a person acting under the color of state
law.” Nicini v. Morra, 212 F.3d 798, 806 (3d
Cir. 2000) (en banc) (citing Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996)). “The first step in
evaluating a Section 1983 claim is to ‘identify the
exact contours of the underlying right said to have been
violated' and to determine ‘whether the plaintiff
has alleged a deprivation of a constitutional right at
all.” Id. (quoting Cty. Of Sacramento v.
Lewis, 523 U.S. 833, 841 n.5 (1998)).
“the due process clause does not impose an affirmative
duty upon the state to protect citizens from the acts of
private individuals.” Sanford v. Siles, 456
F.3d 298, 303-04 (3d Cir. 2006). However, the third circuit
has recognized two narrow exceptions to that general rule:
“[f]irst, the state has a duty to protect or care for
individuals when a ‘special relationship'
exists”; “[s]econd the state has a duty when a
‘state-created danger' is involved.”
Id. (citing Morse v. Lower Merion School
Dist., 132 F.3d 902, 907 (3d Cir. 1997)).
Motion to Dismiss characterizes Counts One and Two as
bringing “a substantive due process/state
created danger claim.” (Defs.' Mot. at 2 (emphasis
added)). Defendants' Motion does not directly contest the
adequacy of Plaintiff's allegations with respect to his
“special relationship” claim, and instead argues
that “[t]he entirety of Count I of the Complaint is
designed to establish, factually, that Plaintiff and
[D]efendants have a ‘special relationship' as
required for a state-created danger claim, ” which is
“not in dispute.” Accordingly, Defendants argue
that “Count I is duplicative of Count II.”
(Defs.' Mot. at 9). Plaintiff argues that he should be
permitted to pursue his claims because he has adequately
alleged each of the recognized exceptions.
discuss each claim in turn.
Special Relationship Exception (Count One)
“special relationship” exception allows a
plaintiff to recover when the state enters into a special
relationship with a citizen and “fails to protect the
health and safety of the citizen to whom it owes an
affirmative duty.” D.R. v. Middle Bucks Area
Vocational Technical Sch., 972 F.2d 1364, 1369 (3d Cir.
“special relationship” exception was first
recognized in Deshaney v. Winnebago County Dept. of
Social Services, 489 U.S. 189, 200 (1989), where the
Supreme Court explained that, “it is the State's
affirmative act of restraining the individual's freedom
to act on his own behalf-through incarceration,
institutionalization, or other similar restraints of
personal liberty-which is the
‘deprivation of liberty' triggering the protections
of the Due Process Clause, not its failure to act to protect
his liberty interests against harms inflicted by other
means.” Id. (emphasis added). Since
Deshaney, the Supreme Court has extended this
exception to incarcerated individuals, see Estelle v.
Gamble, 429 U.S. 97 (1976), and involuntarily committed
mental patients, see Youngberg v. Romeo, 457 U.S.
307 (1982), and the Third Circuit has extended it to foster
children, see Morra, 212 F.3d at 801.
Third Circuit took up the issue of whether the special
relationship exception should be extended in the public
school district context in Middle Bucks, 972 F.2d at
1369. There, two female students alleged that they had been
verbally and sexually molested by male students in an art
class. They argued that, under Deshaney, the special
relationship exception should apply because their
relationship with the school was a type of “restraint
of personal liberty” that was analogous to the
custodial relationships where the exception had been
court held, however, that the “type of custody referred
to by the Court in Deshaney . . . [wa]s to be
sharply contrasted with [the plaintiff's]
situation.” Id. Specifically, it explained,
“[t]he state's duty to prisoners and involuntarily
committed patients exists because of the full time severe and
continuous state restrictions of liberty in both
environments. Institutionalized persons are wholly dependent
upon the state for food, shelter, clothing and safety. It is
not within their power to provide for themselves, nor are
they given the opportunity to seek outside help to meet basic
needs. Obviously, they are not free to leave.”
Id. at 1371. The Third Circuit rejected the
plaintiff's argument that the school's authority over
the plaintiffs during the school day, or the fact that state
law compels their attendance, brings them within the
exception because “students . . . do not depend upon
the schools to provide for their basic human needs . . . even
during the school day . . . parents or others remain a
child's primary caretakers and decisionmakers.”
Id. at 1372.
in Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013),
citing dictum in VernoniaSchool
District 47J v. Acton, 515 U.S. 646 (1995),
Third Circuit officially rejected the notion that
“public schools as a general matter have such
a degree of control over children as to give rise to a
constitutional ‘duty to protect'” them from
private actors. Id. (citing DeShaney, 489
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