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L.M. v. Pittsburgh Public School District

United States District Court, W.D. Pennsylvania

November 8, 2017

L.M., by and through her parent and natural guardian, RACHEL BARRON and RACHEL BARRON, in her own right, Plaintiffs,



         Plaintiffs, L.M., by and through her parent and natural guardian, Rachel Barron (“Barron”), and Barron in her own right, bring this federal civil rights action pursuant to 42 U.S.C. § 1983 arising out of three incidents that occurred over a six-month period while L.M. was a fourth grader at King PreK-8 School in the City of Pittsburgh. Named as Defendants are the Pittsburgh Public School District, Superintendent Anthony Hamlet, Principal Leah McCord, Assistant Principal Andrea Brown and a teacher whose identity is not yet known and is therefore identified as Jane Doe. Plaintiffs allege that Defendants: 1) refused to allow L.M. to be picked up from school by Barron's fiancé as Barron instructed when she was in the hospital and instead failed to supervise her and allowed her to walk home to an empty house; 2) insisted that L.M. remove a facial tattoo on the day after Halloween and forcibly scrubbed it from her face, causing injury to her; and 3) took no action when L.M. was assaulted in a music class, and thereafter sent L.M. to a second-grade class and accused her as being at fault during a school assembly. In addition, Plaintiffs allege in their Amended Complaint that, after the original complaint was filed in this case, Defendants refused to allow L.M. to go on a field trip.

         Presently submitted for disposition is a motion to dismiss the Amended Complaint, filed by Defendants. For the reasons that follow, the motion will be granted with respect to the federal civil rights claims and the state law claims will be dismissed pursuant to 28 U.S.C. § 1367(c)(3).


         L.M. is a nine-year old child who resides with her parent (Barron) in the Pittsburgh Public School District, which is supervised by Anthony Hamlet, the Superintendent. At the time of the facts asserted herein, L.M. was enrolled as a fourth grader at King PreK-8, where the principal is Leah McCord and the assistant principal is Andrea Brown. An unidentified teacher in the school (Jane Doe) is also a defendant. All individuals are sued in their individual and official capacities. (Am. Compl. ¶¶ 7-14.)[1]

         The Hospital Incident

         On October 20, 2016, Barron was pregnant and went into early labor. At approximately 1:00 p.m., she called the elementary school to request an early dismissal, but was told that early dismissals could not be handled over the phone. As a result, she sent her fiancé, Dwayne Sims, to the school to check out the children[2] early, but he was refused because his name was not listed in L.M.'s file. (Am. Compl. ¶¶ 20-24.)

         At approximately 2:15 p.m., Barron received a telephone call from the school police officer asking for permission for the children to leave with Sims, and she gave oral permission, but Brown, the Assistant Principal (who was also on the call), refused to accept oral permission and instead indicated that Barron would have to write a letter allowing L.M. to leave with Sims. Brown also stated that Barron could allow the children to be brought to the hospital with a guidance counselor, who would bring the appropriate paperwork for her to sign. She was told that the guidance counselor would take L.M. to the hospital, and Sims was also given this information when he was escorted to his car by a school police officer. But when the guidance counselor arrived, she brought with her only the paperwork and not L.M. and Barron was confused and panicked. She spoke to Brown and Principal McCord, neither of whom knew the whereabouts of the children. Sometime later, Barron received a phone call from her aunt, telling her that she found L.M. (and L.M.'s younger brother, who is not a party to this action) walking on a nearby street, blocks from the school. McCord stated that she would investigate the matter and viewed a video that pointed toward the entry door and initially told Barron that L.M. left with an unknown man, but later refused to allow Barron to see the video and said that the footage was unclear. (Am. Compl. ¶¶ 25-38.)

         The Tattoo Incident

         On November 1, 2016, L.M. came to school with a Halloween tattoo on her face from the night before. McCord saw L.M. and stated that she needed to take it off, but L.M. asked if she could continue to wear it and take it off that evening and McCord agreed. However, a teacher (Jane Doe) saw the tattoo and insisted that L.M. had to remove it. L.M. attempted to wash the tattoo from her face, but it was not the kind that could be removed with soap and water. Doe saw the tattoo still on L.M.'s face and walked L.M. back to the bathroom, where she forcibly removed the tattoo from L.M.'s face. Doe rubbed L.M.'s face with such force that bruising, redness and swelling resulted around L.M.'s eye area, the location of the tattoo. Barron confronted McCord about the incident and McCord said she would review the video to determine which teacher had done this. But McCord later told Barron that the video was not working that day and the teacher could not be identified. (Am. Compl. ¶¶ 39-47.) Plaintiffs allege that:

The school, nonetheless, notified the school police of this incident, wherein the school police conducted an investigation. This investigation led to a child line report being made on the parents for the abuse produced by the teacher. At no point did the Principal ever talk to the teachers on that hallway or take any other actions to hold any teacher accountable.

         (Am. Compl. ¶ 48.)

         The Music Class Incident

         On March 31, 2017, L.M. was attacked by a boy in her music class; he shoved her to the ground, causing her head to hit the floor. Plaintiffs allege that the music teacher observed the attack but did not intervene and never reported the incident to the administration or to Barron. (Am. Compl. ¶¶ 49-50.) After this occurred, the bell rang and all the students lined up to go to the next class except L.M. Plaintiffs allege that the music teacher knew or should have known that L.M. was not with the other students, but he walked the other students to their next class anyway.[3] While in the classroom by herself, L.M. was subsequently assaulted a second time by three more boys. Barron questioned the administration about the incident and McCord proceeded to blame L.M. for getting assaulted by the students. When Barron asked about video footage being available to determine which boys assaulted L.M., she was again told that there was no video available. (Am. Compl. ¶¶ 51-55.)

         Plaintiffs allege that L.M. has not been allowed back in her music class for some time thereafter and was forced to sit in a second-grade classroom instead of attending music class “to make sure she doesn't do that again, ” according to Brown. There was later an assembly “using L.M. as a scapegoat for why the children should get in line during class transitions.” (Am. Compl. ¶¶ 56-57.)

         Plaintiffs allege that, from the first incident on October 20, 2016 to the last incident on March 31, 2017, emails have been sent to the Superintendent putting the School District on notice of the incidents, including the names of the people involved and the continuous claim of the non-working video, but no response has been made. Finally, Plaintiffs allege that, after they filed this case on April 13, 2017 and an article about it appeared in a local newspaper, L.M. was told on May 2, 2017 that she would not be going on a school field trip. She was the only student in her grade not allowed to go, despite having turned in the appropriate permission forms. (Am. Compl. ¶¶ 58-59.) Plaintiffs allege that “L.M. and Rachel Barron have been psychologically traumatized by these events. L.M. cries every day and has no desire to return to school. She desires to move in with her Grandmother, so she can attend a different school.” (Am. Compl. ¶ 60.)

         Procedural History

         Plaintiffs filed this action on April 13, 2017 (ECF No. 1). On June 15, 2017, Defendants filed a motion to dismiss (ECF No. 7). In response, Plaintiff filed an Amended Complaint on July 7, 2017 (ECF No. 12) and the motion to dismiss was dismissed (ECF No. 13). Jurisdiction is based on the federal civil rights claims asserted, 28 U.S.C. §§ 1331, 1343, and supplemental jurisdiction is asserted over the state law claims, 28 U.S.C. § 1367(a). Count I alleges that the School District and Jane Doe violated L.M.'s substantive due process right to bodily integrity with respect to the tattoo incident. Count II alleges that the School District, Hamlet, McCord and Brown showed reckless indifference to L.M.'s rights in the tattoo incident. Count III alleges that the School District, Hamlet, McCord and Brown violated Barron's substantive due process right to parental care, custody and control of her children during the hospital incident. Count IV alleges the School District is liable under Monell[4] for failing to train and supervise regarding the use of force by a teacher, failing to identify and take remedial or disciplinary action against teachers and administration, failing to train teachers and staff on how to not violate the constitutional rights of others and failing to follow established policies, procedures, directives and instructions regarding appropriate teacher-student and teacher-parent interactions under these circumstances. Count V alleges that McCord and Brown are liable for subjecting Barron to intentional infliction of emotional distress (IIED). Count VI alleges that Hamlet, McCord and Brown subjected L.M. to willful misconduct with respect to the music class incident. Count VII alleges that Defendants are liable for compensatory and punitive damages with respect to both Barron and L.M. Count VIII alleges that Defendants are liable for Plaintiffs' attorney's fees.

         On July 24, 2017, Defendants filed another motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (ECF No. 14). Plaintiffs filed a response on August 15, 2017 (ECF No. 18) and on August 29, 2017, Defendants filed a reply brief (ECF No. 19).

         Defendants argue that: 1) Count I should be dismissed because Plaintiffs do not allege individual capacity claims and because they do not allege “conscience-shocking” behavior or that Defendants had a policy of employing excessive force; 2) Count II should be dismissed because helping a student remove a tattoo cannot constitute reckless indifference and, given that Plaintiffs admit that an investigation into this incident occurred, they cannot contend that Defendants were indifferent; 3) Count III should be dismissed because it does not allege an interference with parental control; 4) Count IV should be dismissed because it alleges no basis for Monell liability; 5) Count V should be dismissed because the School District is immune from IIED claims and refusing to allow a minor to leave school with a stranger can hardly be called “outrageous” behavior; 6) Count VI should be dismissed because the allegations fail to state a claim (having a faulty video camera, temporarily moving a fourth grader to a second-grade class, holding a school assembly, preventing a student from going on a field trip); 7) punitive damages may not be obtained under § 1983 against municipalities and Plaintiffs have not pleaded actual injury; and 8) Plaintiffs provide no basis for obtaining attorney's fees. In the alternative, should any claims survive, Defendants move that Plaintiffs be required to submit a more definite statement pursuant to Rule 12(e).[5]

         Plaintiffs respond that: 1) they have stated individual capacity claims and, contrary to Defendants' assertion, Count I does identify the interest protected, namely L.M.'s interest in her bodily integrity which was violated when Jane Doe forcibly rubbed the tattoo from her face, and whether such conduct shocks the conscience depends upon the amount of time defendants had to deliberate and under the circumstances deliberate indifference was demonstrated; 2) Plaintiffs do not admit that Jane Doe was “assisting” L.M. to remove the tattoo and the School District demonstrated knowledge, acquiescence and condoning of Jane Doe's conduct; 3) Defendants interfered with Barron's fundamental right as a parent to determine how and with whom L.M. would leave the school building; 4) the official policies presented here consist of allowing Jane Doe to assault L.M., allowing a principal to lose a child, allowing a principal to bully L.M. at a school assembly and allowing school officials to deny L.M. the ability to participate in a field trip; 5) Brown and McCord acted outrageously and the hospital incident demonstrated behavior that is not tolerated in a civilized society; 6) the School District demonstrated willful misconduct by keeping L.M. in a second-grade classroom and denying her the ability to go on a field trip; 7) the Amended Complaint states a basis for both compensatory and punitive damages; and 8) the request for attorney's fees is properly pleaded. In addition, Plaintiffs deny that Defendants have provided a basis for requiring them to file a more definite statement and such motions are disfavored.

         In a reply brief, Defendants argue that: 1) removing a facial tattoo that is against school policy does not constitute a violation of L.M.'s right to bodily integrity under the substantive due process clause; 2) Plaintiffs have not pointed to anything to support a claim for reckless indifference; 3) not releasing L.M. to a stranger cannot state a claim for a substantive due process violation and L.M. walked home as she did every day; 4) there is no basis for Monell liability; 5) the School District could not have intended to cause harm by refusing to release L.M. to a stranger; 6) Plaintiffs cite cases involving bullying, not willful misconduct, and refer to minor incidents; 7) the Amended Complaint states no basis for damages; and 8) there is no basis for attorney's fees. Finally, Defendants contend that there was no school assembly and thus they assert that they cannot respond to Plaintiffs' claims unless more information is provided.

         Standard of Review

         The Supreme Court has issued two decisions that pertain to the standard of review for failure to state a claim upon which relief could be granted. The Court held that a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice' but also the ‘grounds' on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679. The Court of Appeals has summarized the inquiry as follows:

To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

         Counts I-IV: Civil Rights Claims

         In Counts I-IV of the Amended Complaint, Plaintiffs allege civil rights claims pursuant to § 1983. It is provided in 42 U.S.C. § 1983 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 any 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 ...

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