United States District Court, W.D. Pennsylvania
BARRY FISCHER, UNITED STATES DISTRICT JUDGE
before the Court are the respective Motions to Dismiss
(Docket Nos. 21 and 24) filed by the Borough of Plum
(“Plum”) and Mark Kost (“Kost”)
(collectively, “Defendants”) pursuant to
Federal Rule of Civil Procedure 12(b)(6). Defendants seek the
dismissal of all claims asserted by Jane Doe
(“Plaintiff”) in her Complaint (Docket No. 1) of
January 6, 2017. At Count I of said Complaint, Plaintiff
asserts claims for violation of her due process rights under
the Fourteenth Amendment to the Constitution of the United
States. At Counts III and IV, Plaintiff also asserts claims
of Intentional Infliction of Emotional Distress and
Negligence against Kost. This Court exercises subject matter
jurisdiction over Plaintiff's claims pursuant to 28
U.S.C. §§ 1331 (federal question) and 1367(a)
(supplemental), and has previously ordered that all claims
against Kost be dismissed, with prejudice, to the extent
asserted against him in his official capacity. (Docket No.
33). For the reasons that follow, the Court will GRANT
Defendants' Motions, in part, and DENY, in part.
FACTUAL & PROCEDURAL BACKGROUND
November or early December of 2014, Jason Cooper - a teacher
at Plum Borough High School - offered Plaintiff guidance and
support due to her withdrawn and depressed state of mind
following the recent deaths of her mother and grandmother.
(Docket No. 1 ¶¶ 31 - 32). Despite receiving a
previous written reprimand in 2013 for contacting students
outside of school, he offered Plaintiff his personal
telephone number, and began to speak to her after-hours.
(Id. ¶¶ 12, 33). The two would also
communicate via Twitter, going so far as to create additional
Twitter accounts after Plaintiff's phone was taken away
by her father. (Id. ¶ 34).
later in December of 2014, Plaintiff first visited Cooper at
his home. (Docket No. 1 ¶ 35). Cooper provided Plaintiff
with alcoholic beverages, and she consequently spent the
entire night at his residence. (Id. ¶ 36). On
December 28, 2014, Plaintiff first kissed Cooper.
(Id. ¶ 36). She was 17 years of age. (Docket
No. 22 at 2). Thereafter, they would sometimes kiss in the
classroom when no other students were present. (Docket No. 1
¶ 37). Cooper would also fondle Plaintiff and talk to
her in an openly sexual manner. (Id. ¶ 40). On
or about January 16, 2015, when Cooper moved to a new place
of residence, he and Plaintiff first engaged in sexual
intercourse. (Id. ¶¶ 38 - 39). Plaintiff
was 18 years of age by that time, and she and Cooper had
intercourse on five or six more occasions before February of
2015. (Id. ¶¶ 29 - 30, 41).
to - and throughout - this period of time, another Plum
Borough High School teacher, Joseph Ruggieri,  was engaging in
illicit relationships with at least two female students.
(Docket No. 1 ¶¶ 68 - 183). Ruggieri was considered
by many to be the most influential teacher at the school as
Vice President of the Plum Borough Education Association and
as a personal friend of Plum Borough High School principal,
Ryan Kociela. (Id. ¶¶ 68, 70, 72).
Ruggieri acted as a liaison between the teachers and the
school administration, and often provided instruction to his
co-workers on the topic of proper student-teacher
interaction. (Id. ¶ 69).
at least as early as 2011, rumors that Ruggieri was in a
sexual relationship with a student were circulating in the
high school. (Docket No.1 ¶¶ 77, 80 - 81). A Plum
Borough High School guidance counselor by the name of Kerry
Plesco reported the rumors to Kociela in the fall of 2011.
(Id. ¶¶ 79, 81). Kociela responded that he
needed “something factual” to pursue the matter.
(Id. ¶ 81). Plesco reported similar rumors to
Kociela on at least ten more occasions during the 2011 - 2012
school year. (Id. ¶ 82). In December of 2011,
Plum Borough High School Air Force ROTC instructor, Scott
Kolar, also reported such rumors to Kociela. (Id.
¶¶ 83 - 84). Kociela asked Kolar to simply
“slip an anonymous note under the door” the next
time. (Id. ¶ 85).
did eventually bring the rumors to the attention of
then-superintendent, Lillian Naccarati and solicitor, Lee
Price, Esquire. (Docket No. 1 ¶ 86). Plum Borough High
School's resource officer of 13 years, Kost, was also
informed of same. (Id. ¶¶ 7, 86 - 87,
101). Naccarati assigned assistant superintendent, Timothy
Glasspool, to investigate the rumors with Kociela.
(Id. ¶ 87). Kociela and Glasspool met with
Ruggieri in late December 2011, and Kociela and Plesco met
with the first of Ruggieri's victims and her parents
shortly thereafter. (Id. ¶¶ 87 - 96).
Despite having doubts regarding all parties' denials of
improper conduct, at a December 20, 2011 meeting attended by
Naccarati, Glasspool, Price, Kociela, Plesco, and Kost,
Kociela and Glasspool argued that the investigation was
inconclusive. (Id. ¶¶ 98 - 100). As such,
Kost concluded that no charges were warranted, and the matter
was considered to be closed. (Id. ¶¶ 100 -
report of inappropriate conduct by Ruggieri was subsequently
received by Kociela and Kost from former Plum Borough High
School security guard, Tanya Oslowski. (Docket No. 1
¶¶ 103 - 08). Oslowski was informed that the
administration was aware of the allegations and an
investigation was being conducted. (Id. ¶¶
106 - 08). When Oslowski followed up a few days later with
Kost, she was simply told, “no victim, no crime.”
(Id. ¶¶ 109 - 10).
Plesco continued to raise concerns about rumors of
Ruggieri's relationship with his first victim during the
2012 - 2013 school year, Kociela and Plum Borough High School
assistant principal, Michael Loughren, convened a meeting
with the victim and her stepfather. (Docket No. 1
¶¶ 126 - 27). The student continued to deny any
impropriety in her contact with Ruggieri; although, she did
admit to exchanging emails with him. (Id. ¶
143). While Loughren credited her account of her relationship
with Ruggieri, he was left with an “uncomfortable
feeling, ” which he later raised with both Kociela and
Kost. (Id. ¶¶ 130 - 33). Kost informed
Loughren that the issue was an “internal matter”
that should be kept between him, Kociela, and Kost.
(Id. ¶ 132). Kost instructed Loughren not to
involve the police. (Id. ¶ 133).
about January 16, 2015, former Plum Borough High School
teacher, Dennis Swogger, reported to Kociela that he had
personal knowledge of inappropriate communications between
Cooper and Plaintiff. (Id. ¶ 15). Kociela
subsequently interviewed three teachers and five students,
and then Cooper. (Id. ¶¶ 16, 18). He also
secured copies of Twitter communications between Cooper and
Plaintiff, and while Cooper acknowledged such contact with
her, he denied any activity of a sexual nature. (Id.
¶¶ 20 - 21). Despite these denials, Kociela
reported his findings to Kost by way of “formal
complaint” on January 28 or 29, 2015. (Id.
¶ 17). In fact, Kociela told Kost that one of the
interviewed students described the true nature of Cooper and
Plaintiff's relationship. (Id. ¶ 22).
Kost did not contact outside authorities and did not assume
control of the investigation (Id. ¶¶ 17 -
22, 26), adhering to a policy to steer complaints to internal
investigation and avoid involvement of ChildLine or the
County Office of Children, Youth, and Families. (Id.
¶¶ 238 - 39). It was also Kost's practice to
shield teachers by not documenting rumors regarding victims
of inappropriate student-teacher relations. (Id.
¶¶ 185, 188 - 89, 242). Plum never educated or
trained Kost regarding mandatory reporting obligations;
documentation of meetings, warnings, and accusations of
illicit student-teacher relationships; institutional sexual
assault and corruption of minors; conducting fair and
uncompromised investigations with school administration; when
and how to take over school investigations; when to close an
investigation; student-teacher boundaries; and investigating
allegations of student-teacher sexual relations.
(Id. ¶ 258).
February 2, 2015, Kociela met with Plum Borough Police
detective, Mark Focareta. (Docket No. 1 ¶ 27). He
provided Focareta with the Twitter correspondence he
obtained. (Id. ¶ 28). Eight days later,
Plaintiff spoke with Focareta and Kost, and explained that
she was having an ongoing sexual relationship with Cooper.
(Id. ¶¶ 29 - 30). Cooper was arrested the
following day. (Id. ¶ 43). He ultimately pled
guilty to felony institutional sexual assault, misdemeanor
corruption of minors, furnishing alcohol to a minor, and
witness intimidation, resulting in an 18 - 36 month prison
sentence. (Id. ¶ 66).
filed the present Complaint on January 6, 2017. (Docket No.
1). Motions to Dismiss (Docket Nos. 21 and 24) followed on
March 10, 2017. Responses were made on March 31, 2017 (Docket
Nos. 31 and 32), and a Reply thereto was docketed on April
21, 2017 (Docket No. 39). Given the dispositive nature of the
Motions, the Court convened a hearing and held oral argument
on May 10, 2017. (Docket No. 41). The matter is ripe for
Standard of Review
Rule of Civil Procedure 8(a)(2) requires that a complaint
contain a short and plain statement of a claim, and show that
the pleader is entitled to relief. Dismissal of a complaint
or portion of a complaint is warranted under Federal Rule of
Civil Procedure 12(b)(6) when a claimant fails to
sufficiently state a claim upon which relief can be granted.
Avoiding dismissal under Rule 12(b)(6) requires a pleading
party's complaint to provide “enough factual
matter” to allow the case to move beyond the pleading
stage of litigation; the pleader must “‘nudge his
or her claims across the line from conceivable to
plausible.'” Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 234 - 35 (3d Cir. 2008)
(quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544,
556, 570 (2007)).
assessing the merits of a claim subject to a motion to
dismiss, a court must engage in a two-part analysis.
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 - 11 (3d
Cir. 2009). First, factual and legal elements of a claim must
be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim
for relief.” Id. In making the latter
determination, the court must be mindful that the matter
pleaded need not include “detailed factual allegations,
” Phillips, 515 F.3d at 231 (quoting
Twombly, 550 U.S. at 555), and the court must
construe all alleged facts, and draw all inferences gleaned
therefrom, in the light most favorable to the non-moving
party. Id. at 228 (citing Worldcom, Inc. v.
Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)).
Moreover, a pleading party need only “put forth
allegations that ‘raise a reasonable expectation that
discovery will reveal evidence of the necessary
element[s].'” Fowler, 578 F.3d at 213
(quoting Graff v. Subbiah Cardiology Assoc., Ltd.,
2008 WL 2312671 (W.D. Pa. June 4, 2008)). A well-pleaded
complaint, even when “it strikes a savvy judge that
actual proof of…facts is improbable, ” will not
be dismissed as long as the pleader demonstrates that his or
her claim is plausible. Phillips, 515 F.3d at 234
(quoting Twombly, 550 U.S. at 555 - 56).
the facts provided do need to raise the expectation of relief
above a purely speculative level, and must include more than
“labels and conclusions, and a formulaic recitation of
the elements of a cause of action.” Phillips,
515 F.3d at 231 - 32 (quoting Twombly, 550 U.S. at
554 - 56). Rule 8(a)(2) “requires a ‘showing'
rather than a blanket assertion of an entitlement to
relief.” Id. at 232. “[T]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Fowler, 578 F.3d at 211 (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)).
Complaint, Plaintiff asserts claims under 42 U.S.C. §
1983 against both Plum and Kost. (Docket No. 1 at 27 - 34).
Specifically, Plaintiff argues that - under the Fourteenth
Amendment - she has a liberty interest in her bodily
integrity and the right to be free from sexual assault, that
her rights were clearly defined at the time of the events at
issue, and that she was denied due process when her rights
were violated as a direct result of the deliberate
indifference of Plum and Kost. (Id. at 27).
Plaintiff's claims are grounded in the state-created
danger and failure to investigate theories of liability, as
well as the holding in Monell v. Dep't of Soc. Servs.
of City of N.Y., 436 U.S. 658 (1978). (Id. at
27 - 34). In defense, Plum and Kost deny that Plaintiff has
pled facts sufficient to sustain her Fourteenth Amendment
claim under these theories.
U.S.C. § 1983 provides that:
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 Constitution
and laws, shall be liable to the party injured in an action
1983 serves as a means of vindicating violations of federal
constitutional and statutory rights. Groman v. Twp. of
Manalapan, 47 F.3d 628, 633 (3d Cir. 1995). In order to
properly state a valid § 1983 claim, a plaintiff must
demonstrate that a person acting under color of law violated
enumerated constitutional or statutory rights. Berg v.
Cnty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000).
“‘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.'” Dorley v. South Fayette Twp. Sch.
Dist., 129 F.Supp.3d 220, 226 (W.D. Pa. 2015) (quoting
Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000)).
Substantive Due Process
extent that Plaintiff is alleging due process violations,
Court notes that the Fourteenth Amendment “provides
procedural and substantive protections to citizens by
ensuring that states shall not ‘deprive any person of
life, liberty, or property, without due process of
law.'” Dorley, 129 F.Supp.3d at 226
(quoting U.S. Const. amend. XIV, § 1). However, it has
generally been held that the Fourteenth Amendment imposes no
obligation upon government or government officials to
intervene to protect citizens from private violence.
Fetterman v. Westmoreland Cnty. Childrens Bureau,
___ F.App'x ___, 2017 WL 888216, at *3 (3d Cir. 2017)
(citing DeShaney v. Winnebago Cnty. Dep't of Soc.
Servs., 486 U.S. 189, 196 - 97 (1989)). Deprivation of
bodily integrity “does not have distinct legal standing
on its own.” Dorley, 129 F.Supp.3d at 231
(citing Phillips v. Cnty. of Allegheny, 515 F.3d
224, 235 (3d Cir. 2008)). Thus, the state-created danger
theory was conceived as a narrow exception to address
situations in which “‘the state acts in a way
that makes a person substantially more vulnerable to injury
from another source than he or she would have been in the
absence of the state intervention.'”
Fetterman, 2017 WL 888216, at *3 (quoting
Schieber v. City of Phila., 320 F.3d 409, 416 (3d
order for Plaintiff to state a substantive due process claim
under the state-created danger theory of liability, the
following must be shown:
(1) the harm ultimately caused was foreseeable and fairly
direct; (2) a state actor acted with a degree of culpability
that shocks the conscience; (3) a relationship between the
state and the plaintiff existed such that the plaintiff was a
foreseeable victim of the defendant's acts… and
(4) a state actor affirmatively used his or her authority in
a way that created a danger to the citizen or that rendered
the citizen more vulnerable to danger than had the state not
acted at all.
Dorley, 129 F.Supp.3d at 232 (quoting Bright v.
Westmoreland Cnty., 443 F.3d 276, 281 (3d ...