United States District Court, M.D. Pennsylvania
D. Mariani, United States District Judge.
Introduction and Procedural History
before the Court are Defendants' Motion for Summary
Judgment (Doc. 96) and Plaintiff's Motion for Partial
Summary Judgment (Doc. 93).
December 13, 2012, K.A., filed a Complaint on behalf of her
son, J.A.,  against Defendants Abington Heights School
District (“AHSD”), Michael Mahon, Ph.D., Thomas
Quinn, Ph.D., Sam Sica, Michael Elia, Eduardo Antonetti, and
Brian Kelly. (Doc. 1).
to the filing of the present action, K.A. had filed a special
education due process action against Abington Heights School
District which resulted in an appeal of the Hearing
Officer's decision to this Court by the School District,
and ultimately a settlement agreement between the parties.
(See generally, 3:12-cv-804-RDM (M.D. Pa. 2012);
Release and Settlement Agreement).
unsuccessful mediation proceedings in the present case,
Plaintiff filed a First Amended Complaint on June 21, 2013
(Doc. 21) which Defendants moved to dismiss (Doc.
23). The Court granted in part and denied in part
Defendants' motion. The Court dismissed with prejudice
Plaintiff's Fifth Amendment claim, Fourteenth Amendment
substantive due process claim, intentional infliction of
emotional distress claim, negligence claim, and civil rights
claim, and dismissed Plaintiff's Fourteenth Amendment
procedural due process claim without prejudice. The Court
also dismissed with prejudice Plaintiff's breach of
fiduciary duty and punitive damages claims as to Abington
Heights School District, dismissed these claims without
prejudice as to Defendants Mahon and Quinn, and allowed these
two claims to proceed against Defendants Antonetti, Elia, and
Kelly. Finally, the Court dismissed with prejudice
Plaintiff's Section 504 of the Federal Rehabilitation Act
claim as to Defendants Mahon, Quinn, Elia, Antonetti, and
Kelly, but dismissed this claim without prejudice as to
Abington Heights School District. (See Docs. 43,
timely filed a Second Amended Complaint (Doc. 47) and
Defendants filed a Motion to Dismiss Plaintiff's Second
Amended Complaint (Doc. 50). The Court granted in part and
denied in part Defendants' motion. Specifically, the
Court dismissed with prejudice Plaintiff's Fourteenth
Amendment procedural due process claim with respect to
violations of J.A.'s liberty interest; dismissed with
prejudice Plaintiff's claims for breach of fiduciary duty
and punitive damages against Defendant Mahon, and dismissed
Defendant Quinn in his entirety. The Court denied
Defendants' motion to dismiss Plaintiff's Fourteenth
Amendment procedural due process claim with respect to
violations of J.A.'s property interest and
Defendants' motion to dismiss Plaintiff's claim for
violations of Section 504 of the Rehabilitation Act.
(See Doc. 64).
result of the Court's rulings, the following claims
remain in this action: Violations of the Fourteenth
Amendment, specifically Plaintiff's procedural due
process claim for violations of his property interest,
against Defendant AHSD and Defendants Mahon, Elia, Antonetti,
and Kelly in their individual capacities (Count I); Breach of
Fiduciary Duty against Defendants Elia, Antonetti, and Kelly
(Count II); Punitive Damages against Defendants Elia,
Antonetti, and Kelly (Count III); and Violations of Section
504 of the Rehabilitation Act against Defendant AHSD (Count
parties have now filed cross-motions for summary judgment.
(Docs. 93, 96). Plaintiff's motion requests that the
Court grant summary judgment with respect to Count IV of the
Second Amended Complaint for violations of Section 504.
Defendants' motion requests summary judgment on all
remaining Counts of the Second Amended Complaint.
parties have fully briefed the motions, and they are ripe for
decision. For the reasons set forth below, the Court will
grant Defendants' Motion for Summary Judgment (Doc. 96)
and deny Plaintiff's Motion for Partial Summary Judgment
Statement of Undisputed Facts
plaintiff, J.A., was born on September 6, 1997 and was 13
years old at all times relevant to the issues in this action.
(Doc. 94, at ¶ 8).
Heights School District is a school district duly organized,
established and existing under the laws of the Commonwealth
of Pennsylvania with administrative offices located in
Lackawanna County, Pennsylvania. Michael Mahon, Ph.D., and
Thomas Quinn, Ph.D., were employed as the superintendent and
assistant superintendent respectively of AHSD at all times
relevant to this matter. Michael Elia and Eduardo Antonetti
were employed respectively as the principal and
vice-principal of the Abington Heights Middle School at all
times relevant to this matter. Brian Kelly was employed as
the school counselor of the Abington Heights Middle School at
all times relevant to this matter. (Doc. 94, at ¶¶
has been diagnosed with two neurological disorders: Attention
Deficit Disorder (“ADD”), specifically Attention
Deficit Hyperactivity Disorder (“ADHD”), and
Dysthymia. (Id. at ¶ 9). As a result of his
diagnosis of ADHD, which is a recognized disability under the
Rehabilitation Act of 1973, J.A. was provided an
instructional support plan by AHSD pursuant to Section 504 of
the Rehabilitation Act. (Id. at ¶ 10). J.A. has
never had an IEP. (See Dep. of J.A., at 11-12
(stipulation by attorneys for the parties)).
February 24, 2011, J.A. reported late to school and had to
serve detention for late arrival to school. (Doc. 94, at
¶ 12). J.A. admits that on that day he brought a small
amount of "spice" to school and that he gave the
“spice” to a friend, A.W., in exchange for a
debt. (Doc. 97, at ¶¶ 6, 7; see also, Dep.
of J.A., at 22-23, 95-96). A.W., a non-disabled student,
served detention with J.A. on February 24, 2011, and was
removed from detention that day by vice-principal Antonetti.
(Doc. 94, at ¶ 13). When A.W. briefly returned to
detention, he whispered to J.A. that he would tell him later
what happened. (Dep. of J.A., at 28-29). Later that day, A.W.
told J.A. that a third student, W.F., who is non-disabled,
reported A.W. to school administrators for possessing
“spice” and providing the “spice” to
W.F. As a result, A.W. was searched by school administrators,
who found “spice” on him. (Doc. 94, at ¶
14). Upon discovering the “spice” on A.W., he
informed the school administrators that he received it from
J.A. (Id. at ¶ 15).
remained in detention until 4:00 p.m. on February 24, 2011,
at which time he was permitted to go home. J.A. had no
further contact with school administrators that day and
J.A.'s mother, K.A., was never contacted by the
Defendants, administrators, or teachers regarding J.A.'s
possession of “spice”. (Doc. 94, at ¶ 16;
see also, Doc. 97, at ¶ 59). After J.A.
finished detention, he contacted A.W., who advised J.A. he
was in trouble as a result of his possession of
“spice” and that A.W.'s father was called to
the school to meet with administrators that same day. (Doc.
94, at ¶ 17; see also, Doc. 97, at ¶ 73).
February 25, 2011, J.A. arrived to school by bus at 7:45 a.m.
and was approached by his counselor, Brian Kelly, who
escorted him with his belongings to vice-principal
Antonetti's office. (Doc. 94, at ¶ 20). During his
deposition, J.A. testified that in Antonetti's office,
the vice-principal asked him a few questions and searched his
things. (Doc. 97, at ¶ 75; see also, Dep. of
J.A., at 42). At that time, he was informed that another
student had told the District that he had received a
substance from J.A. (Doc. 97, at ¶ 76). This initial
questioning lasted for ten to fifteen minutes, after which
J.A. was moved to the in-school suspension room.
(Id. at ¶¶ 78, 79). J.A. was given lunch
in the in-school suspension room. (Id. at ¶
80). J.A. was then asked questions about other students and
people in the community who were drug users. (Id. at
¶ 82). According to J.A., Principal Elia dropped in once
but did not say anything. (Doc. 97, at ¶ 83; see
also, Doc. 94, at ¶ 22 (Plaintiff's undisputed
statement of fact that Principal Elia was not initially in
the room, but later joined in the questioning of J.A. in
Antonetti's office regarding his source of the
“spice”, the cost, and whether he distributed it
to any other students)). J.A. testified that Antonetti asked
him about abuse and showed concern for him. (Doc. 97, at
¶ 85). J.A. informed Antonetti that his parents had
marijuana in the home. (Id. at ¶ 86). J.A. was
then given another break in the in-school suspension room.
(Id. at ¶ 87). J.A. was subsequently
interviewed a third time by Elia and Antonetti. During this
interview, Antonetti asked the questions, and J.A. was again
asked about his home environment. (Id. at
stated in her deposition that J.A. did not return home on the
school bus as he was supposed to that day, prompting her to
call the school at 2:30 p.m. and being told by Antonetti that
she needed to come to the school at 3:30 p.m. (Dep. of K.A.,
at 22; see also, Doc. 97, at ¶¶ 60, 61).
Upon K.A.'s arrival at school she was informed that her
son had been accused of distributing drugs at school. (Doc.
94, at ¶ 27).
was released to his mother and her fiancé, J.R. and
provided a brief explanation of the school's charges
against him. (Id. at ¶ 28).
letter dated February 28, 2011, Principal Elia informed K.A.
of the reported incident involving J.A. on February 24, 2011,
and that her son had been suspended from school for 10 days.
(Id. at ¶ 29). In a subsequent letter, dated
March 3, 2011, Principal Elia summarized a telephone
conversation on March 2, 2011, with K.A. regarding the events
of February 25, 2011, her declining a meeting at the middle
school, and that further notice would be sent by March 11,
2011, if a formal hearing would be scheduled. (Id.
at ¶ 30). Superintendent Mahon then informed K.A. in a
letter dated March 11, 2011, of a formal hearing scheduled
for March 14, 2011, regarding charges that J.A. had violated
Abington Heights School District Policy No. 227.
(Id. at ¶ 31). According to the letter, J.A.
“[was] charged with possession of drugs on school
district property. He [was] charged with providing drugs to
another student. He [was] charged with selling drugs to other
middle school students during the 2010-2011 school year.
Jacob [was] also charged with making a hostile threat of
violence in a text message against a fellow student in an
effort to cover up Jacob's drug related
activities.” (Letter to K.A. from Michael Mahon, March
March 14, 2011, J.A. appeared before the AHSD Board of
Directors for an expulsion hearing. (Doc. 94, at ¶ 32).
J.A., K.A., and J.R., attended the expulsion hearing without
counsel. (Id. at ¶ 33). K.A., Elia, and
Antonetti testified at the hearing. (Doc. 97, at ¶¶
64, 110, 119). After hearing the facts and evidence presented
during this hearing, the School Board found J.A. guilty of
possession of contraband on school property and therefore in
violation of the school's policies. (Doc. 94, at ¶
34). As a result, the School Board voted to expel J.A. for
the remainder of the 2010-2011 school year and for the
entirety of the 2011-2012 school year with instructions to
reapply for the 2012-2013 school year. (Id. at
manifestation determination hearing took place regarding
J.A.'s disabilities prior to his expulsion hearing,
except Superintendent Mahon's review of J.A.'s
behavior and 504 plan. (Id. at ¶
Mahon acknowledged that in the case of expulsion it must be
considered whether the underlying cause or trigger for the
Section 504 plan was the cause of the behavior that occurred.
(Id. at ¶ 38). Mahon stated that with respect
to J.A., he determined after conferring with the special
education director that J.A.'s “ADHD was not
manifested in the selling of the drugs . . . and all the
things that he had been accused of.” (Id. at
record reflects that by letter to Mahon dated November 29,
2011, Plaintiff's legal counsel, attorney Harry P.
McGrath, requested “a special educational due process
hearing under the Individual with Disabilities Education Act,
Section 504 of the Rehabilitation Act of Chapters 14 and 15
of the Pennsylvania School Code.” (Letter from Attorney
McGrath to Dr. Mahon, Nov. 29, 2011). A hearing was
thereafter held on March 1, 2012, before Special Education
Hearing Officer Anne L. Carroll, Esq. On March 31, 2012, the
Hearing Officer issued a Decision wherein she summarized J.A.
and K.A.'s due process complaint as follows:
Parent filed a due process complaint in November 2011
alleging violations of § 504 and IDEA due to the
District's failure to conduct a full psycho-educational
evaluation, provide adequate and appropriate services to
assure that Student received a free, appropriate public
education (FAPE) and to properly consider Student's
disability before imposing a disciplinary change of
(Pennsylvania Special Education Hearing Officer Decision,
March 31, 2012, at 2). The Hearing Officer's Decision
found that the District engaged in “a myriad of
procedural and substantive violations” of
Plaintiff's rights. (Id.). Of note, the parties
agree that the Defendant's failure to conduct a
manifestation hearing and/or Section 504 hearing was fully
adjudicated during the initial due process hearing before the
Pennsylvania Special Education Hearing Officer. (Doc. 94, at
¶ 41; Doc. 101, at ¶ 41).
District appealed the Hearing Officer's decision to the
Middle District of Pennsylvania. (See generally,
3:12-cv-804-RDM (M.D. Pa. 2012)). On August 15, 2012, the
parties executed a Release and Settlement Agreement, thereby
settling the District's appeal and closing the federal
Release and Settlement Agreement provides:
Releasors acknowledge and agree that by accepting the terms
of this Agreement that they are waiving rights, release, and
forever discharge on their own behalf, and on behalf of the
Student, Releasee, and its present and past officers,
directors, professional staff employees, agents, attorneys,
and insurers from any claim or demand of any kind,
administrative or judicial, concerning the education of the
Student (from the beginning of time until the effective date
of this Agreement) whether or not known, including but not
limited to claims for compensatory education, denial of a
Free Appropriate Public Education, extended school year,
related services, assistive technology, tuition
reimbursement, transportation, attorney fees and costs, any
and all expert witness fees and costs, evaluations of any
kind, whether associated with a due process hearing request,
federal lawsuit or litigation or otherwise, any other costs,
charges, or liabilities, including claims for compensatory
damages, including but not limited to claims pursuant to the
IDEA and its implementing regulation, 34 C.F.R. Part 300 et
seq.; Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. Section 794, (“Section 504”) and its
implementing regulation, 34 C.F.R. Part 104; the Americans
with Disabilities Act of 1990, 42 U.S.C. Sections 12101-12213
(“ADA”); The Pennsylvania School Code of 1949, 24
P.S. 1-101, et seq.; Chapters 14, 15 and 16 of the
regulations of the State Board of Education, 22 Pa. Code
Chapters. 14, 15, and 16; former Chapter 342 of the standards
of the Pennsylvania Department of Education, former 22 Pa.
Code Chapter 342; or any other applicable state or federal
law for any claim that may arise or has arisen regarding
Student's educational programming and/or placement from
the beginning of time until the effective date of this
(Release and Settlement Agreement, at ¶ 17).
Furthermore, the Agreement recognizes that
the Releasee's agreement to pay the amount stated is
intended to provide Releasors with consideration for a
settlement and compromise of all claims regarding the
Student's educational programming and/or placement, that
they may not have or which may in the future arise relative
to the above disputes through the date of the Releasors'
execution of this release and settlement agreement, including
claims for compensatory education or compensatory damages
that they and/or the Student may otherwise have arising under
the IDEA, Section 504 of the Rehabilitation Act, or the ADA.
However, the Agreement specifically
does not settle claims that are non-educational in nature
which may arise from the investigation which took place on
February 24 and 25, 2011, including a claim pursuant to
Section 504 of the Rehabilitation Act or 42 U.S.C. Sections
12101-12213 (“ADA”) based upon the investigation
of February 24 and 25, 2011, but does settle all claims under
Section 504 of the Rehabilitation Act and 42 U.S.C. Sections
12101-12213 (“ADA”) based upon, related to, or
arising out of the Student's 504 plans, educational
programming, and/or educational placement.
Standard of Review
summary adjudication, the court may dispose of those claims
that do not present a “genuine dispute as to any
material fact.” Fed.R.Civ.P. 56(a). “As to
materiality, . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once such a showing has been made, the non-moving party must
offer specific facts contradicting those averred by the
movant to establish a genuine issue of material fact.
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871,
888 (1990). Therefore, the non-moving party may not oppose
summary judgment simply on the basis of the pleadings, or on
conclusory statements that a factual issue exists.
Anderson, 477 U.S. at 248. “A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by citing to particular parts of materials in
the record . . . or showing that the materials cited do not
establish the absence or presence of a genuine dispute, or
that an adverse party cannot produce admissible evidence to
support the fact.” Fed.R.Civ.P. 56(c)(1)(A)-(B). In
evaluating whether summary judgment should be granted,
“[t]he court need consider only the cited materials,
but it may consider other materials in the record.”
Fed.R.Civ.P. 56(c)(3). “Inferences should be drawn in
the light most favorable to the non-moving party, and where
the non-moving party's evidence contradicts the
movant's, then the non-movant's must be taken as
true.” Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert.
denied 507 U.S. 912 (1993).
“facts must be viewed in the light most favorable to
the nonmoving party only if there is a ‘genuine'
dispute as to those facts.” Scott v. Harris,
550 U.S. 372, 380 (2007). If a party has carried its burden
under the summary judgment rule,
its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts. Where the record
taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for
trial. The mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material
fact. When opposing parties tell two different stories, one
of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt
that version of the facts for purposes of ruling on a motion
for summary judgment.
Id. (internal quotations, citations, and alterations
case, the parties have filed cross-motions for summary
judgment. According to the Third Circuit:
Cross-motions are no more than a claim by each side that it
alone is entitled to summary judgment, and the making of such
inherently contradictory claims does not constitute an
agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial
consideration and determination whether genuine issues of
material fact exist.
Lawrence v. City of Philadelphia, 527 F.3d 299, 310
(3d Cir. 2008). Each movant must show that no genuine issue
of material fact exists; if both parties fail to carry their
respective burdens, the Court must deny the motions. See
Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d
Cir. 2008). When reviewing each cross-motion, the Court is
still bound to view the evidence in the light most favorable
to the non-movant. Fed.R.Civ.P. 56; United
States v. Hall, 730 F.Supp. 646, 648 (M.D. Pa.
Count I - Violations of the Fourteenth Amendment
assert that they are entitled to summary judgment on
Plaintiff's procedural due process claim (Count I)
against AHSD and Mahon, Elia, Antonetti, and Kelly in their
individual capacities. (Doc. 96, at ¶¶ 14-39).
Because Plaintiff “does not contest the Defendants'
request for summary judgment relative to Count I of the
Plaintiff's Second Amended Complaint” (Doc. 103, at
2), the Court will enter summary judgment in favor of the
defendants and against the plaintiff on Count I without
Count IV - Violation of Section 504 of the Federal
and AHSD both move for summary judgment with respect to Count
IV of the Second Amended Complaint, “Violation of
Section 504 of the Federal Rehabilitation Act.”
Defendant argues that Plaintiff has failed to present
evidence to establish a Section 504 claim and that Plaintiff
cannot recover compensatory damages pursuant to Section 504
because there is no evidence of intentional conduct. (Doc.
96, at ¶¶ 46-49). Defendant further contends that
Plaintiff cannot prevail on his Section 504 claim because it
is based upon issues which were previously decided by the
special education hearing officer and were released in the
Release and Settlement Agreement. (Id. at
¶¶ 40-45). In contrast, Plaintiff asserts that he
is entitled to summary judgment on the basis that the record
evidence establishes that he was not provided with a
pre-expulsion hearing, a manifestation determination hearing,
or hearing similar to a manifestation determination hearing
as necessary under Section 504. (Doc. 93).
Whether a Material Factual Dispute Exists as to
Plaintiff's Section 504 Claim.
504 provides in relevant part:
No otherwise qualified individual with a disability in the
United States, . . . shall, solely by reason of his or her
disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance. .
29 U.S.C. § 794(a). To establish a violation of Section
504, a plaintiff must show that “(1) he is
‘disabled' as defined by the Act; (2) he is
‘otherwise qualified' to participate in school
activities; (3) the school or the board of education receives
federal financial assistance; and (4) he was excluded from
participation in, denied the benefits of, or subject to
discrimination at, the school.” Andrew M. v.
Delaware Cty. Office of Mental Health & Mental
Retardation, 490 F.3d 337, 350 (3d Cir. 2007)
(quoting Ridgewood Bd. of Educ. v. N.E., 172 F.3d
238, 253 (3d Cir.1999), superseded by statute on other
grounds as recognized by D.F. v. Collingswood Borough Bd. of
Educ., 694 F.3d 488 (3d Cir. 2012)).
“[t]he state must have failed to provide the service
for the sole reason that the child is disabled.”
Andrew M., 490 F.3d at 350. In other words, a
“plaintiff cannot establish a Rehabilitation Act claim
simply by demonstrating a disability and denial of some
service. Instead, the plaintiff must show that the service
was not provided solely because the plaintiff is
disabled.” D.G. v. Somerset Hills Sch. Dist.,
559 F.Supp.2d 484, 497 (D.N.J. 2008) (citing Andrew
M., 490 F.3d at 350).
does not dispute that Plaintiff can establish the first three
elements to succeed on his Section 504 claim, namely, that
J.A. was disabled as defined by the Act due to his ADD/ADHD,
that he was qualified to participate in school activities,
and that Abington Heights receives federal financial
assistance. (See generally, Doc. 98, at 22-23). Nor
does AHSD assert that Plaintiff was not excluded from
participation in, or denied the benefits of, the school.
Rather, Defendant's motion for summary judgment on this
issue only contends that “Plaintiff has failed to
present any evidence to establish that Plaintiff was treated
differently because of his disability, or that the decision
to expel him was due to his disability.” (Doc. 98, at
plaintiff need not establish that there has been an intent to
discriminate in order to prevail under § 504.”
Nathanson v. Med. Coll. of Pennsylvania, 926 F.2d
1368, 1384 (3d Cir. 1991). Thus, Plaintiff did not have to
present evidence demonstrating an intent on the part of AHSD
to discriminate against J.A., but simply evidence that
Defendant's actions or inactions resulted in the
exclusion of J.A. from participation in, the denial of
benefits of, or that he was subjected to discrimination at,
school, due to his disability.
regulations regarding the implementation of Section 504 in
the context of educational institutions appear at 34 C.F.R.
Part 104. Although the Rehabilitation Act does not
provide any express procedural protections that must be
afforded to a student who is disabled under Section 504, the
regulations implementing Section 504 dictate that the student
be afforded certain due process protections. Pursuant to 34
C.F.R. § 104.36:
A recipient that operates a public elementary or secondary
education program or activity shall establish and implement,
with respect to actions regarding the identification,
evaluation, or educational placement of persons who, because
of handicap, need or are believed to need special instruction
or related services, a system of procedural safeguards that
includes notice, an opportunity for the parents or guardian
of the person to examine relevant records, an impartial
hearing with opportunity for participation by the
person's parents or guardian and representation by
counsel, and a review procedure. Compliance with the
procedural safeguards of section 615 of the Education of the
Handicapped Act [now “IDEA”] is one means of
meeting this requirement.
34 C.F.R. § 104.36. Thus, although one method of
satisfying the requisite due process requirements is a
manifestation hearing, at minimum, a school must provide, in
some form, the student with “notice, an opportunity for
the parents or guardian of the person to examine relevant
records, an impartial hearing with opportunity for
participation by the person's ...