United States District Court, E.D. Pennsylvania
case involves the alleged assault and battery of a fifth
grade student, D.M., in Easton Area School District.
Plaintiffs allege D.M. was punched in the chest and jabbed in
the cheek with a pencil by E.J., another fifth grade student.
(Am. Compl. ¶ ¶ 9, 11.) Plaintiffs assert four
claims against E.J.-battery, assault, outrageous conduct
causing severe emotional distress, and false imprisonment.
(See Am. Compl.) They assert a fifth cause of action
against the School District, alleging a violation of the
constitutional right to bodily integrity. (Am. Compl.
¶45-52.) The School District moves to dismiss this fifth
cause of action. (Doc. No. 3.) Plaintiffs opposed the School
District's motion. (Doc. No. 4.)
the relevant period, plaintiff D.M. and Defendant E.J. were
fifth grade students in the Easton Area School District
attending Easton Area Middle School. E.J. had a number of
psychological, emotional, and developmental issues, which
E.J.'s mother made public when she addressed the United
States Committee on Health, Education, Labor, and Pensions
during a 2012 hearing.
January 2014, E.J. punched D.M. and another fifth grade
student in their chests when they told E.J. that he should
stop teasing a younger student who suffered from
autism. A written report memorializing this
incident was submitted to school district administrative
April 1, 2014, E.J. demanded that D.M. give him a
pencil. After D.M. refused, E.J. seized D.M.'s
pencil and jabbed him in the cheek. A written report of the
incident was submitted on behalf of D.M.
filed an initial complaint in the Court of Common Pleas of
Northampton County, Civil Division on February 17,
2017. On March 27, 2017, plaintiffs filed an
amended complaint. Defendant removed this matter to the
United States District Court, Eastern District of
Pennsylvania pursuant to 28 U.S.C. §§ 1441,
1446. Removal was based on count five of the
amended complaint, alleging a violation of 42 U.S.C. §
1983.This Court has original jurisdiction over
the action under 28 U.S.C. § 1331.
April 25, 2017, defendant School District moved to dismiss
count five for failure to state a claim. On May 10,
2017, plaintiffs filed their brief in
motion to dismiss for failure to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure challenges
the legal sufficiency of the complaint. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). To sustain this
challenge, the factual allegations in the complaint must be
sufficient to make the claim for relief more than just
speculative. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007). Conclusory allegations are insufficient
to support a facially plausible claim; the facts asserted
must 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). In determining whether to grant a motion to dismiss,
a federal court must construe the complaint liberally, accept
all factual allegations as true, and draw all reasonable
inferences in favor of the plaintiff. Twombly, 550
U.S. at 555; see also D.P. Enters. v. Bucks County Cmty.
Coll., 725 F.2d 943, 944 (3d Cir. 1984).
presented with a motion to dismiss for failure to state a
claim, district courts conduct a two-part analysis. First,
the factual and legal elements of a claim should be
separated. The court must accept all of the complaint's
well-pleaded facts as true but may disregard legal
conclusions. Iqbal, 556 U.S. at 679. Second, a
district court must determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff has a
“plausible claim for relief.” Id. In
other words, a complaint must do more than allege entitlement
to relief. A complaint has to “show” such an
entitlement with its facts. Id.; see also
Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d
Cir. 2008). “Where the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not
‘show[n]' - ‘that the pleader is entitled to
relief.'” Iqbal, 556 U.S. at 679; see
also Phillips, 515 F.3d at 232-34 (holding that: (1)
factual allegations of a complaint must provide notice to the
defendant; (2) the complaint must allege facts indicative of
the proscribed conduct; and (3) the complaint's
“‘[f]actual allegations must be enough to raise a
right to relief above the speculative level.'”)
(quoting Twombly, 550 U.S. at 555) (alterations in
Federal Rule of Civil Procedure 8(a)(2), a pleading need not
contain detailed factual allegations, but must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” Twombly,
550 U.S. at 545. A pleading that offers “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.”
Id. at 555. Nor does a complaint suffice if it
tenders “naked assertion[s]” devoid of
“further factual enhancement.” Id. at
amended complaint asserts that the School District violated
D.M.'s constitutional right to bodily integrity under 42
U.S.C. §§ 1983, 1988. (Am. Compl.
¶¶45-52.) Plaintiffs allege that D.M. was a member
of a discrete class of persons, students at Easton Area
Middle School, subjected to potential harm by the School
District's actions. (Id. at ¶ 46.)
Plaintiffs submit that the School District violated the due
process clause of the Fourteenth Amendment in concealing,
tolerating, and trivializing repeated violence by students.
Plaintiffs allege the School district intentionally and/or
recklessly failed to report repeated incidents of violence
and knowingly permitted defendant to remain on school
premises. The School District moves to dismiss count five of
the amended complaint for failure to state a claim under Rule
state a claim under 42 U.S.C. §1983,  a plaintiff
must show that the defendant “acting under the color of
state law, deprived him of a right secured by the
Constitution or the laws of the United States.”
Morse v. Lower Merion School Dist., 132 F.3d 902,
907 (3d Cir. 1997) (citing Parratt v. Taylor, 451
U.S. 527, 535 (1981) (overruled on other grounds)).
Generally, the Fourteenth Amendment's due process clause
does not impose a duty on the state to protect. DeShaney
v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189
(1989). Two exceptions to this general rule are (a) the
“special relationship” exception and (b) the
“state-created danger” exception. Morse,
132 F.3d at 907. Plaintiffs fail to demonstrate that either
exception is applicable. Plaintiffs also fail to demonstrate
municipal liability arising from a policy or custom, or lack
thereof, under Monell v. Dep't of Soc. Servs. of City
of New York, 436 U.S. 658 (1978). For the reasons
discussed below, I find that plaintiffs are not entitled to
relief under § 1983 and count five of the amended
complaint is dismissed.
The “special relationship” exception is
special relationship exception allows a plaintiff to recover
under § 1983 “when the state enters into a special
relationship with a particular citizen . . . [and] fails,
under sufficiently culpable circumstances, to protect the
health and safety of the citizen to whom it owes an
affirmative duty.” D.R. v. Middle Bucks Area
Vocational Tech. Sch., 972 F.2d 1364, 1369 (3d Cir.
1992) (en banc) cert. denied, 506 U.S. 1118 (1996).
The Supreme Court has held that the special relationship
exception applies to “incarcerated or involuntarily
committed citizens.” See Morrow v. Balaski,
719 F.3d 160, 167 (3d Cir. 2013). The state's duty to
protect arises from “the State's affirmative act of
restraining an individual's freedom to act on his own
behalf-through incarceration, institutionalization, or other
similar restraint of personal liberty, ” which triggers
due process protections. Id. at 168 (citing
DeShaney. 489 U.S. at 200).
Third Circuit has consistently held that a special
relationship does not exist between a school and its
students. D.R., 972 F.2d at 1369 (reasoning that the
state must have exclusive physical custody to establish a
special relationship with an individual); Morrow,
719 F.3d at 170 (“[P]ublic schools, as a general
matter, do not have a constitutional duty to protect students
from private actors.”); Nicini v. Morra, 212
F.3d 798, 807-08 (3d Cir. 2000); see also Veronia School
District 47J v. Acton, 515 U.S. 646 (1995) (“[W]e
do not, of course, suggest that public schools as a general
matter have such a degree of control over children as to give
rise to a constitutional duty to protect.”) (dicta)
(internal citations and quotations omitted).
compulsory school attendance does not qualify as a
“special relationship.” See D.R., 972
F.2d at 1369; Gremo v. Karlin, 363 F.Supp.2d 771,
782 (E.D. Pa. 2005). Whether plaintiffs are entitled to
relief under § 1983 therefore turns on whether the
“state-created danger” exception applies.
The “state-created danger” exception is
to the “state-created danger” exception, a state
actor may be liable under the Fourteenth Amendment's due
process clause where the state authority injures a citizen or
renders a citizen “more vulnerable to injury from
another source than he or she would have been in the absence
of state intervention.” Bright v. Westmoreland
Cty., 443 F.3d 276, 281 (3d Cir. 2006) (quoting
Schieber v. City of Philadelphia, 320 F.3d 409, 416
(3d Cir. 2003)).
plaintiff attempting to avail himself of the
“state-created danger” exception must plead four
elements to survive a motion to dismiss:
1. The harm ultimately caused was foreseeable and fairly
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, or a member of a discrete class of
persons subjected to the potential harm brought about by the
state's actions, as opposed to a member of the public in
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.
Henry v. City of Erie, 728 F.3d 275, 282 (3d Cir.
2013). The failure to plead any one of these four elements
defeats a plaintiff's state-created danger claim.
Gayeman v. Sch. Dist. of the City of Allentown, No.
14-cv-1518, 2016 WL 3014896, at *4 (E.D. Pa. May 26, 2016)
(citing Morse, 132 F.3d at 914).
The harm was not foreseeable or fairly direct.
Third Circuit jurisprudence, a harm is foreseeable when a
state actor has actual awareness, based on concrete
information, of a risk of harm to an individual or class of
individuals such that the actor is on notice that his or her
act or failure to act significantly enhances the risk of
harm.” Gremo, 363 F.Supp.2d at 784. In
Gremo, the plaintiff, a high school student, was
attacked by approximately fifteen students when they threw a
garment over his head and repeatedly punched and kicked him.
Id. at 777-78. Plaintiff argued that he was entitled
to relief under § 1983 based on the “state-created
danger” exception. The Court held that the harm was
foreseeable because “the state actors had actual
awareness based on concrete information that was sufficient
to amount to notice that the individual defendants'
omissions and commissions would enhance the risk of harm to
[plaintiff].” Id. at 786. The defendants in
Gremo were aware of “repeated actual
attacks” and “knew of violent incidents by the
same group of students that repeatedly occurred in the same
manner, and in the same locations.” Id.
contrast, in Gayemen, the court held that the risk
of harm was not foreseeable.2016 WL 3014896, at *6. The
plaintiff was a student at the high school for only a few
days when he was assaulted by four other students.
Id. at *2. Although there was some evidence that the
defendants were associated with a street gang, testimony from
several teachers/administrators demonstrated that they had no
knowledge of this fact. Id. at *6. The court held
that regardless of potential “gang involvement, ”
plaintiff's assault was not foreseeable. Id.
There was no prior contact, violence, or threats exchanged
between the plaintiff and defendants. Id. Likewise,
there was no evidence that ...