United States District Court, W.D. Pennsylvania
DAVID A. SMITH, Plaintiff,
ALLEGHENY VALLEY SCHOOL DISTRICT, Defendant.
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE
before the Court is Defendant Allegheny Valley School
District's Motion to Dismiss the Complaint filed against
it by Plaintiff David A. Smith pursuant to Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 2.
26, 2017, Allegheny Valley School District
("Defendant" or "the District") filed a
Notice of Removal from the Court of Common Pleas of Allegheny
County related to the Complaint filed against it by David A.
Smith ("Plaintiff or "Mr. Smith") in state
court on May 3, 2017. ECF No. 1. In the Complaint, ECF No.
1-5, Mr. Smith alleges a 42 U.S.C. § 1983 First
Amendment retaliation claim against the District;
"Plaintiff alleges that his right to be free of
retaliation for the exercise of his First Amendment rights
has been violated by Defendant's actions in banning him
from school property and initiating a criminal complaint
which led to his arrest. ECF No. 10 at 6.
16, 2017, the District filed its Motion to Dismiss, ECF No.
2, and Brief in Support of Motion to Dismiss, ECF No. 3. On
August 14, 2017, Plaintiff filed his Brief in Response to
Defendant's Motion to Dismiss Pursuant to F.R.C.P.
12(b)(1) and 12(b)(6). ECF No. 10. This matter, thus, is
fully briefed and ripe for disposition. As more fully
explained below, for the following reasons, the Court
concludes that the District's Motion to Dismiss will be
granted in part as to Mr. Smith's request for punitive
damages and denied in all other respects.
STANDARDS OF REVIEW
Kehr Packages, Inc. v. Fidelcor. Inc., 926 F.2d 1406
(3d Cir. 1991), the United States Court of Appeals for the
Third Circuit explained:
A district court can grant a Rule 12(b)(1) motion to dismiss
for lack of subject matter jurisdiction based on the legal
insufficiency of a claim. But dismissal is proper only when
the claim "clearly appears to be immaterial and made
solely for the purpose of obtaining jurisdiction or ... is
wholly insubstantial and frivolous." Bell v.
Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939
(1946). See also Oneida Indian Nation v. County of
Oneida, 414 U.S. 661, 666, 94 S.Ct. 772, 776, 39 L.Ed.2d
73 (1974) (claim must be "so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise
completely devoid of merit as not to involve a federal
controversy"). Ordinarily, a court must assume
jurisdiction over a case before deciding legal issues on the
merits. Bell, 327 U.S. at 682, 66 S.Ct. at 776. A
Rule 12(b)(6) dismissal for failure to state a claim is not
subject to the same limitations. The claim need not be wholly
insubstantial to be dismissed. As this court has noted,
"[t]he threshold to withstand a motion to dismiss under
[Rule] 12(b)(1) is thus lower than that required to withstand
a Rule 12(b)(6) motion." Lunderstadt v.
Colafella, 885 F.2d 66, 70 (3d Cir. 1989).
Kehr Packages, Inc., 926 F.2d at 1408-09. Motions
brought under Rule 12(b)(1) may present either a facial or
factual challenge to the court's subject matter
jurisdiction. As explained by the appellate court in
Constitution Party of Pennsylvania v. Aichele, 757
F.3d 347 (3d Cir. 2014):
A facial attack, as the adjective indicates, is an argument
that considers a claim on its face and asserts that it is
insufficient to invoke the subject matter jurisdiction of the
court because, for example, it does not present a question of
federal law, or because there is no indication of a diversity
of citizenship among the parties, or because some other
jurisdictional defect is present. Such an attack can occur
before the moving party has filed an answer or otherwise
contested the factual allegations of the complaint. See
Mortensen, 549 F.2d at 889-92 (noting the
distinction between a facial attack and a "factual
evaluation, " which "may occur at any stage of the
proceedings, from the time the answer has been served until
after the trial has been completed." (emphasis added)
(footnote omitted)). A factual attack, on the other hand, is
an argument that there is no subject matter jurisdiction
because the facts of the case-and here the District Court may
look beyond the pleadings to ascertain the facts-do not
support the asserted jurisdiction. So, for example, while
diversity of citizenship might have been adequately pleaded
by the plaintiff, the defendant can submit proof that, in
fact, diversity is lacking. See id. at 891
("[T]he trial court is free to weigh the evidence ...
and the existence of disputed material facts will not
preclude the trial court from evaluating for itself the
merits of jurisdictional claims."). In sum, a facial
attack "contests the sufficiency of the pleadings,
" In re Schering Plough Corp., 678 F.3d at 243,
"whereas a factual attack concerns the actual failure of
a [plaintiffs] claims to comport [factually] with the
jurisdictional prerequisites." CNA v. United
States, 535 F.3d 132, 139 (3d Cir. 2008) (internal
quotation marks omitted) (alterations in original).
Constitution Party of Pennsylvania, 757 F.3d at 358.
assessing the sufficiency of a complaint pursuant to a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6),
the Court must accept as true all material allegations in the
complaint and all reasonable factual inferences must be
viewed in the light most favorable to the plaintiff. Odd
v. Malone. 538 F.3d 202, 205 (3d Cir. 2008). The Court,
however, need not accept bald assertions or inferences drawn
by the plaintiff if they are unsupported by the facts set
forth in the complaint. See Cal. Pub. Empls.' Ret.
Sys. v. The Chubb Corp.. 394 F.3d 126, 143 (3d Cir.
2004) (citing Morse v. Lower Merion Sch. Dist.. 132
F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept
legal conclusions set forth as factual allegations. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Rather, "[f]actual allegations must be enough to raise a
right to relief above the speculative level."
Id. (citing Papasan v. Allain, 478 U.S.
265, 286 (1986)). Indeed, the United States Supreme Court has
held that a complaint is properly dismissed under
Fed.R.Civ.P. 12(b)(6) where it does not allege "enough
facts to state a claim to relief that is plausible on its
face, " Id. at 570, or where the factual
content does not allow 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). See Phillips v. Ctv. of Allegheny, 515 F.3d
224, 231 (3d Cir. 2008) (finding that, under Twombly,
"labels, conclusions, and a formulaic recitation of the
elements of a cause of action" do not suffice but,
rather, the complaint "must allege facts suggestive of
[the proscribed] conduct" and that are sufficient
"to raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s] of his
Complaint, Mr. Smith makes the following factual allegations,
which this Court must accept as true for purposes of deciding
the District's Motion to Dismiss.
Smith is the parent of D.S.; D.S. used to be a student at
Springdale Junior-Senior High School in the District. ECF No.
1-5 ¶¶ 1, 3. On May 1, 2014, when D.S. was a
sophomore, D.S. was assaulted by his teammates on the high
school baseball team. Id. ¶ 4. Two boys threw
D.S. down, grabbed his cell phone, and texted rude and
explicit messages to D.S.'s mother. Id. This was
part of a pattern of bullying and harassment that D.S. had
endured while participating on the baseball team since his
freshman year of high school. Id. ¶ 5. On May
3, 2014, Mr. Smith met with the baseball coach to report the
incident. Id. ¶ 6. The coach indicated to Mr.
Smith that the bullying problem would be taken care of
following the conclusion of the baseball season. Id.
bus ride home from the baseball team's section title game
in May 2014, the coach showed or participated in the showing
of pornographic videos to members of the baseball team.
Id. ¶ 8. This incident was part of a sexualized
atmosphere perpetuated by the coach who often made sexual
comments about women during baseball practice and who
allegedly also showed pornography in the locker room.
Id. ¶ 9. On May 29, 2014, during the
end-of-the-year sports banquet, Mr. Smith again asked the
coach to do something about the May 1, 2014, assault on his
son. Id. ¶ 10.
May 29, 2014, Plaintiffs wife had been diagnosed with cancer.
Id. ¶ 11. She died on June 1, 2014.
Id. On June 2, 2014, Mr. Smith went to the high
school office to report his wife's death and to discuss
arrangements for his son to take his finals. Id.
the summer, the school guidance counselor contacted D.S. to
check on him and to tell him about the Caring Place, an
organization for individuals grieving the loss of a friend or
relative. Id. ¶ 12. During that phone call,
D.S. mentioned to the school guidance counselor the
pornography incident and the harassment because it still
upset him. Id. Nothing was done in response to this
report and the incident was not reported to Childline, which
is required by Pennsylvania's mandatory reporting law
when any professional in contact with a child suspects abuse.
Smith and D.S. began attending sessions at the Caring Place
and informed a therapist at the Caring Place of D.S.'s
issues at the school. Id. A Caring Place staff
member who was a mandated reporter made a report to Childline
regarding the baseball coach exposing the team to
pornography. Id. ¶ 13.
2014, the school principal telephoned Mr. Smith to discuss
the May 2014 incident. Id., ¶ 14. Mr. Smith was upset
because there had been no resolution of the matter.
Id. In his frustration with the lack of action on
the school's part, Mr. Smith stated that he could see how
incidents like those at Franklin Regional High School happen
(where an allegedly bullied student assaulted classmates),
stating, "when kids get bullied to the degree my son
has, now you can understand why this happens." Id., The
District's administrators all knew that Mr. Smith was
still grieving the sudden loss of his wife. Id.
thereafter, in late August 2014, Mr. Smith and D.S. had a
meeting with the school principal, head of the athletic
department, and the baseball coach to address the bullying
and pornography. Id. ¶ 17. Mr. Smith complained
about the harassment D.S. had endured while on the team, but
in particular, the text message that had been sent to his
late wife. Id. Mr. Smith reiterated his comment
about how bullied students may react in the same manner as
did the alleged perpetrator at Franklin Regional.
about September 23, 2014,  Mr. Smith called the principal at the
high school, still upset about the fact that the boys who
perpetrated the assault against his son had not yet
apologized to D.S. Id. ¶ 18. Mr. Smith
indicated to the principal that he was going to take the
issue to the media. Id.
about November 15, 2014, Mr. Smith and D.S. met with the
baseball coach and the superintendent of the District.
Id. ¶ 19. The discussion became heated,
particularly because the coach and principal deflected the
question of bullying and harassment and instead
misrepresented Mr. Smith's concerns as anger about
D.S.'s playing time. Id. ¶ 20. At some
point thereafter, Mr. Smith asked the principal whether she
had children and how she would feel if this (meaning the
bullying and lack of action) happened to her child.
Id. ¶ 21.
January 13, 2015,  while visiting the school guidance
counselor for another reason, D.S., mentioned the assault and
the fact that nothing had been done about it. Id.
¶ 22. D.S. also mentioned that the baseball coach had
showed some players pornographic videos from a cell phone.
Id. On January 16, 2015, the guidance counselor
spoke with Mr. Smith over the phone. Id. ¶ 23.
She asked his permission to relay the content of the
conversation to the administration. Id. Sometime
during the conversation, Mr. Smith asked the counselor how
she would feel if her son was exposed to pornography.
January 16, 2015, the Springdale Junior-Senior High School
Principal and the Superintendent of the District contacted
the Chief of Police of Springdale Borough and requested that
the police department investigate allegations that the
baseball coach had been showing sexually explicit pornography
to students on the baseball team. Id. ¶ 24. Mr.
Smith made several calls to the Chief of Police of Springdale
Borough regarding the investigation and D.S.'s experience
with the coach and team. Id. ¶ 25. During one
such conversation with the Chief of Police, in reference to
the administrators at Springdale Junior-Senior High School
and the District, Mr. Smith said, "I am going for the
jugular." Id. ¶ 26. Knowing it was an
issue of general concern, Mr. Smith also said, "I ...