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Logan v. Bd. of Educ. of Sch. Dist. of Pittsburgh

United States District Court, W.D. Pennsylvania

March 15, 2017

Shawn Logan, Plaintiff,
Bd. of Educ. of Sch. Dist. of Pittsburgh, et al., Defendants.


          JOY FLOWERS CONTI Chief United States District Judge

         I. Introduction

         Plaintiff Shawn Logan (“Logan”) seeks justice for sexual abuse he endured as a sixth grader from Robert Lellock (“Lellock”), a school police officer, the City of Pittsburgh Public School District (“District”), and the Board of Education of the School District of Pittsburgh (the “Board” and together with the District, the “City defendants”). On December 12, 2016, the court granted summary judgment in favor of Logan and against Lellock on liability. (ECF No. 82). Logan is seeking to file a second amended complaint to bring claims against the City defendants under 42 U.S.C. § 1983 for failing to train their employees on: (1) the proper circumstances in which District police officers may remove a child from class; and (2) detecting and reporting sexual abuse of schoolchildren. (ECF No. 59).

         The parties engaged in extensive motions practice in this case. Logan filed the instant motion for leave to amend his complaint (ECF No. 59) under Federal Rules of Civil Procedure 16(b)(4) and 15(a)(2). The City defendants filed a brief in opposition. (ECF No. 69). The motion is fully briefed (ECF Nos. 60, 69) and ripe for disposition. Because Logan's complaint does not allege facts from which the court can reasonably infer that the City defendants were deliberately indifferent to the risk that Lellock would sexually abuse him upon removing him from class, the court must deny Logan's motion.

         II. Factual Background and Procedural History

         The parties are familiar with the facts regarding the horrendous sexual abuse that Logan suffered by the conduct of Lellock, a former District police officer, at Rooney Middle School (“Rooney M.S.”) during Logan's sixth-grade school year.[1] Lellock, on numerous occasions, removed Logan from his classroom, took him to a janitor's closet, and sexually abused him. Lellock was convicted in 2013 in state court of crimes against Logan, including involuntary-deviate-sexual intercourse, endangering the welfare of children, corruption of minors, indecent assault, and criminal solicitation. (ECF No. 58-1 at 2-6).

         The City defendants became aware of inappropriate conduct by Lellock at Rooney M.S. on May 28, 1999, when Rooney M.S. principal Ronald Zangaro (“Zangaro”) discovered Lellock with a student in an otherwise unoccupied room. (ECF No. 59-20 ¶ 28). Lellock explained that he brought the student to the room to wrestle with him. (Id.).

         This motion is the third time Logan is seeking to bring claims against the District and the Board in this case. With respect to the City defendants, Logan in his original complaint and first amended complaint alleged that the City defendants implemented policies or practices (or, in the alternative, failed to do so) that directly violated Logan's constitutional rights and they failed to adequately train their employees. (ECF Nos. 1 at 11; 10 at 11). During the first round of motion practice, the court granted the City defendants' Rule 12(b)(6) motion with prejudice with respect to Logan's § 1983 supervisory and custom-based claims against the City defendants. Logan v. Bd. of Educ. of Sch. Dist. of Pittsburgh, No. 15-499, 2015 WL 5971198, at *19 (W.D. Pa. Oct. 14, 2015). The court allowed Logan to amend his complaint to include sufficient factual allegations to support his failure-to-train claims against the City defendants. Id. Logan's claims against the City defendants in his first amended complaint focused on the District's alleged failure to train its teachers on recognizing signs of child abuse and sexual grooming activities toward children. (ECF No. 42 ¶¶ 52-58). With respect to the first amended complaint, the court granted another Rule 12(b)(6) motion filed by the City defendants for failure to state a claim. Logan v. Bd. of Educ. of Sch. Dist. of Pittsburgh, No. 15-499, 2016 WL 463787, at *1 (W.D. Pa. Feb. 8, 2016) [hereinafter Logan II]. The court afforded Logan another chance to state a plausible single-incident, failure-to-train claim, provided that he moved to amend his complaint pursuant to Rules 16(b)(4) and 15(a)(2). Id. Logan so moved. (ECF No. 59).[2]

         After the second motion to dismiss was granted, Logan obtained new evidence regarding the District's alleged failure to train its staff about: (1) when District police could remove students from classrooms and (2) how to detect and report sexual abuse of children. This evidence was obtained during discovery with respect to Logan's claim against Lellock for violation of his substantive due process rights. (ECF No. 42 ¶¶ 45-50). One deposition taken in March 2016 is pertinent to the instant motion. (ECF Nos. 59-1).

         In a deposition attached as an exhibit to the proposed second amended complaint, former District police chief Robert Fadzen Jr. (“Fadzen”) testified that the District required school police officers to have a warrant for a child's arrest before removing a child from a classroom.[3] (ECF No. 59-1 at 63). He also stated that if the District police wanted to interview a child, the child would be removed from class and brought to the principal's office. (Id.). Once there, either a parent or a school district employee would be entitled to observe the child's interview. (Id. at 64).

         After the Fadzen deposition and obtaining other evidence, Logan drafted the proposed second amended complaint. (ECF No. 59-20). Logan added the following paragraphs[4] in his proposed second amended complaint in an effort to state a claim for which relief could be granted.

24. This policy and practice [of not allowing officers to remove students from classrooms without a warrant or authorization] was confirmed by the testimony of the former Pittsburgh Public Schools Chief of Police, Robert Fa[dz]en, who stated that Pittsburgh Public Schools Police Officers were not allowed to remove students from a class room unless they had a warrant or had authorization from the building principal. Furthermore, the Pittsburgh Public Schools required a parent to be present during the interview. These interviews were required to be performed in the office of the building principal or a guidance counselor.
25. The purpose of this policy and practice was to preclude unsupervised or unmonitored encounters between students, non-instructional staff and/or visitors, in part to protect them from the risk of sexual abuse. The existence of this policy confirms that the Pittsburgh Public Schools were well aware of the risks of harm posed to students from unsupervised contact with non-instructional staff.
26. Regardless, despite the horrific facts of this case, and former Police Officer Lellock's conviction for sexual abuse, the Pittsburgh Public Schools have conducted no training on these policies and practices since before 1998 . . . until the present. One teacher who was deposed, Laura Devine, admitted as much, and further admitted that, today, she would continue to allow a school police officer to remove a child from her classroom with no authorization and no supervision. Ms. Devine was one of the teachers who, in 1998 and 1999, facilitated Lellock's sexual assault by failing to follow the policies of the Pittsburgh Public Schools.
39. The Plaintiff attaches to this Amended Complaint as Exhibit B, and incorporates by reference, the preliminary opinion of their expert, Marion McGrath, who details the national standards by which [s]chool [d]istricts should follow to avoid the sexual abuse of their students. Ms. McGrath further details her opinion that the Pittsburgh Public Schools failed to properly train their teachers about preventing the sexual abuse of students, including the need to “question and report the unauthorized removal of a child from their classrooms.” 48. Had Pittsburgh Public School District adopted appropriate policies, procedures, and training regimens regarding the prevention of sexual abuse, Lellock would not have been able to victimize [Logan] . . . on so many occasions.
59. The Pittsburgh Public School District has failed to implement appropriate policies, procedures, and training regimens on a variety of subjects, including on recognizing signs of child abuse, and/or grooming activities. The Defendants also failed to implement appropriate policies, procedures, and training regimens addressing when employees were permitted to be alone with school children.

(Id. ¶¶ 24-26, 39, 48, 59).

         In resolving this motion, the court may consider factual allegations contained in the proposed second amended complaint, authentic documents attached to or referred to in the proposed second amended complaint, and public records.[5] City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998). Logan attached to his motion a sexual-harassment-policy-training packet that was disseminated in the fall of 1992 by the City defendants. (ECF No. 59-13 at 1). The packet contained a 1986 non-discrimination and harassment policy that described how to respond to critical incidents, such as “assaults on students” or “use of poor judgement while interacting with students.” (ECF No. 59-13 at 4-6). Logan also attached an August 2000 sexual harassment memo to his motion that stated “[d]uring the 1998-99 school year we provided a comprehensive training packet to supervisors, including a video which was to be shown to all staff.” (ECF No. 59-17 at 1). The August 2000 packet contained written procedures and policies on sexual harassment with two pages dated “October 12, 1998” (Id. at 18-19). The other harassment policy pages were not dated, making it unclear whether they applied at the time Lellock sexually abused Logan. (Id. at 3-17). The court will not consider the 1986 and the 1998 harassment policies because they were not referred in or attached to the proposed amended complaint and are not within the Court of Appeals for the Third Circuit's definition of public records for the motion-to-dismiss stage. W. Penn Power Co., 147 F.3d at 259.

         The court may evaluate, as a public record, a Pennsylvania Superior Court decision, Board of Public Education of the School District of Pittsburgh v. National Union Fire Insurance Co., 709 A.2d 910, 911 (Pa. Super. Ct. 1998), that recounted the sexual abuse of a child by a District parent teacher organization member. See Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). These harassment policies and the superior court decision do not address the removal of students from class by school police officers.

         Attached to Logan's motion, but not to the proposed amended complaint, is District correspondence involving Lellock or referring generally to sexual harassment allegations or investigations. The correspondence included a 1991 letter mentioning Lellock's inability “to deal with the dynamics of a public school setting” (ECF No. 59-7); a 1995 memo seeking a sexual-harassment-complaint investigator (ECF No. 59-14); an October 1999 letter discussing that Lellock “stopped by Rooney Middle School” and should “refrain from making any visits there” because of “last year's incident” as well as not immediately transporting a truant student to the truancy center (ECF No. 59-10 at 1); and a November 1999 letter from the Pennsylvania Department of Education to District superintendent Dale Frederick describing a District teacher “soliciting students for sex” (ECF No. 59-16). The above correspondence was not attached to or described in the complaint; the court may not consider this evidence at the motion-to-dismiss stage. W. Penn Power Co., 147 F.3d at 259. Some of these documents are dated after May 28, 1999, thus not implicating notice to the City defendants or the City defendants' knowledge that Lellock was engaging in conduct raising concerns of possible sexual abuse before the May 28, 1999 incident. The other documents predating May 28, 1999, do not describe circumstances which would have given the City defendants notice that Lellock or any other school police officer was engaging in sexually questionable conduct with a student.

         Many allegations of strange behavior and sexual improprieties against students and District-affiliated individuals referred to by Fadzen in his deposition cannot be considered by the court because the court cannot infer that they occurred prior to May 28, 1999. These allegations include Fadzen discovering District principal Bernard J. Komoroski in a dumpster at night looking through windows with binoculars to see kids using drugs or behaving inappropriately (ECF No. 59-1 at 20:16-21:15); a teacher at Sunnyside School “engaged in very heavy child pornography” (Id. at 56:10-16); a fifteen-year-old student, Brian Fouch, having sexual relations with a five-year-old child he was babysitting (Id. at 44:14-23); a sexual predator entering a District school during community time (similar to a school open house) (Id. at 40:6-42:8); District police recovering a disc marked “Kitty Porn” with child pornography on it at Minadeo school (Id. at 73:5-75:19); and a male student raping a female student at the Martin Luther King school (Id. at 98:3-99:5).

         Finally, Fadzen mentioned two incidents in his deposition that occurred after the May 28, 1999 incident in which Lellock was discovered alone with a student. He noted that former Board member Ron Suber raped a child (Id. at 18:7-22); Logan's brief indicates that the rape occurred in 2001-two years after the May 28, 1999 incident. (ECF No. 60 at 10). The rape Suber committed, which did not entail removing a child from a classroom and occurred after his Board tenure ended (ECF No. 59-1 at 112:9-11), could not have given the City defendants notice that Lellock sexually abused Logan or any other student before May 28, 1999. Fadzen's testimony regarding the timing of the second incident, which allegedly occurred at the CAPA school, is confusing:

A guard named Alfonso Roberts . . . unbeknownst to me had said that a teacher, and this would been within the last-the last four years, there's a guy in the school, he's taking kids in weird areas of the school. Plus, Lellock is taking them into the closet up on the second floor.

(Id. at 42:13-21). It is unclear whether the above excerpt means that Lellock took children into a closet at the CAPA school within the four years prior to Fadzen's deposition (March 28, 2012 through March 28, 2016) (Id. at 1) or if Alfonso Roberts learned within the four years prior to Fadzen's deposition that Lellock took children into a closet at CAPA at an even earlier time. Either way, this evidence does not show that the City defendants had notice about Lellock or any other school police officer taking students into a closet before the May 28, 1999 incident. The ...

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