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Lesher v. Zimmerman

United States District Court, E.D. Pennsylvania

May 15, 2018

PAIGE E. LESHER, Plaintiff,




         Plaintiff Paige E. Lesher initiated this action pursuant to 42 U.S.C. § 1983 against Defendants Clark Zimmerman, a teacher and coach at Hamburg Area High School, and the Hamburg Area School District, after Lesher was injured by a ball hit by Zimmerman during softball practice. See Compl., ECF No. 1. Lesher alleges a state-created danger claim against each Defendant deriving from the Fourteenth Amendment Due Process Clause. Id. Defendants have each filed a Motion to Dismiss. See Mots. Dismiss, ECF Nos. 10, 12. For the reasons set forth below, this Court concludes that Lesher fails to state a constitutional claim against either Zimmerman or the School District. The Motions to Dismiss are granted, except to the extent that they seek to strike certain paragraphs, as those requests are denied as moot, and the Complaint is dismissed.

         II. Background

         The Complaint alleges as follows. In April 2016, Lesher was a high-school senior and pitcher on the Girls' Varsity Softball Team at the Hamburg Area High School. Compl. ¶ 31. On April 24, 2016, while at softball practice at the High School, she was warming up from the pitcher's mound by throwing to the catcher. Id. ¶¶ 32, 36. At the same time, the team's coach, Zimmerman, was conducting infield practice by independently hitting ground balls to infielders. Id. ¶ 36. Zimmerman approached the batter's box and instructed Lesher to pitch to him. Id. ¶ 37. Lesher assumed Zimmerman, who had never batted in this situation before, intended to continue infield practice. Id. ¶¶ 38, 42. Zimmerman did not warn her that he intended to hit away and at full-swing, nor did he have her stand behind a pitching screen. Id. ¶¶ 37, 42. Zimmerman hit a line drive directly at her, she was unable to react in time, and the ball struck her in the face. Id. ¶ 45. Lesher collapsed and suffered severe injuries, including a fractured jaw and the loss of four teeth, requiring at least eight surgical procedures and three root canals, as well as additional dental treatment. Id. ¶ 48. Although mouth guards had been purchased for the team, Zimmerman never distributed them. Id. ¶¶ 24, 81.

         Lesher asserts that Defendants were each responsible for protecting her bodily integrity and for not depriving her of that right. Compl. ¶ 54. She alleges that Defendants knew, or should have known, that injuries could occur by permitting a grown male to swing away at pitches from student athletes. Id. ¶ 55. Lesher argues Zimmerman acted with deliberate indifference and willful disregard for her safety by hitting a ball at full strength in her direction and in failing to require her use of a mouth guard and a pitching screen. Id. ¶ 71. She alleges that Defendants knew, or should have known, that mouth guards, pitching screens, and other appropriate safety equipment were available, but the School District did not have a proper policy, practice, or custom in place to train and/or supervise coaches on the proper use of safety equipment. Id. ¶¶ 24, 43, 57-58.

         The Complaint further alleges that in the years prior to the incident, Zimmerman had displayed over-aggressiveness and had been verbally abusive and harassing to female students. Compl. ¶¶ 17-19 (citing to a comment Zimmerman allegedly made to his civics class). Lesher alleges that in the months just prior to the incident, several team members were injured at practice when Zimmerman utilized a pitching machine at high velocity inside the school's gymnasium, and that Zimmerman had batted a ball directly at a team member, almost striking her in the head, to get her attention. Id. ¶¶ 22-23. Lesher alleges that complaints made to assistant coaches were passed on to the Athletic Director of the School District, a policy-making authority, but that the School District failed to take appropriate disciplinary action and failed to provide adequate training to Zimmerman. Id. ¶¶ 25- 27. She alleges that the School District's failure to address Zimmerman's conduct rose to the level of a custom or a de facto policy to disregard the safety of the softball team members. Id. ¶ 28. Lesher alleges the School District demonstrated deliberate indifference in failing to train and discipline Zimmerman when he engaged in unsafe coaching practices. Id. ¶ 63.

         Lesher further contends that the School District created and/or permitted a “win at all costs” sports culture or custom. Id. ¶ 77. To support her theory that the School District had a policy of disregarding safety and encouraging aggressiveness, Lesher refers to prior incidents that the School District was allegedly aware of and took no corrective action against: (1) in the 2008-2009 school year the basketball coach allegedly placed trash cans in the gym to collect the vomit of student athletes because of the intense work-out sessions; (2) in the fall of 2013, several weeks after a student was suspended for yanking the helmet off a teammate during a football game, the same student allegedly assaulted a teammate during football practice at the urging of the football coach; and (3) in the fall of 2015, the girls field hockey coach was verbally abusive and warmed up the goalie by personally taking shots at the student with such force that they caused bruises. Id. ¶ 78. Lesher alleges that the School District had knowledge of, and acquiesced in and/or ratified, the custom and practice of allowing unsafe practices. Id. ¶ 62.


         A. Motion to Dismiss- Rule 12(b)(6)

         In rendering a decision on a motion to dismiss, this Court must “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (internal quotation marks omitted). Only if “the ‘[f]actual allegations . . . raise a right to relief above the speculative level'” has the plaintiff stated a plausible claim. Id. at 234 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows 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). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. (explaining that determining “whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense”). The defendant bears the burden of demonstrating that a plaintiff has failed to state a claim upon which relief can be granted. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005) (citing Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991)).

         B. Motion to Strike- Rule 12(f)

         A court may strike “any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike are generally disfavored and are considered a “drastic remedy to be resorted to only when required for the purposes of justice.” DeLa Cruz v. Piccari Press, 521 F.Supp.2d 424, 428 (E.D. Pa. 2007) (quoting N. Penn Transfer, Inc. v. Victaulic Co. of Am., 859 F.Supp. 154, 158 (E.D. Pa. 1994)). Thus, the moving party generally must demonstrate that the material “has no possible relation to the controversy and may cause prejudice to one of the parties.” Id. at 428-29 (quoting River Rd. Dev. Corp. v. Carlson Corp.-Ne., No. 89-7037, 1990 WL 69085, at *3 (E.D. Pa. May 23, 1990)). “Even where the challenged material is redundant, immaterial, impertinent, or scandalous, a motion to strike should not be granted unless the presence of the surplusage will prejudice the adverse party.” Pennington v. Wells Fargo Bank, N.A., 947 F.Supp.2d 529, 534 (E.D. Pa. 2013) (quoting Xpert Universe, Inc. v. Cisco Sys., Inc., 868 F.Supp.2d 376, 379 (D. Del. 2012)).

         IV. ANALYSIS

         Defendants' two Motions to Dismiss are the subject of this Opinion.

         In the first Motion, Zimmerman asserts that he is entitled to qualified immunity because there is no clearly established constitutional right to protection in the context of school athletic activities in the absence of allegations of intentional and egregious misconduct, neither of which were pled in the Complaint. Zimmerman's Mot. Dismiss, ECF No. 10 (“Z. Mot.”). He also moves to strike paragraphs 18 to 24 and 32 to 34 from the Complaint as immaterial and prejudicial.

         In the second Motion to Dismiss, the School District argues that Lesher fails to state a constitutional claim for violation of her right to bodily integrity because there are no allegations of intentional misconduct. School District's Mot. Dismiss, ECF No. 12 (“SD Mot.”). Additionally, the School District moves to strike paragraphs 12 to 21 and 78(a)-(f) from the Complaint as immaterial, impertinent, and scandalous in the context of a Monell[1] claim.

         For the reasons discussed herein, this Court concludes that Lesher has failed to state a constitutional claim against either Zimmerman or the School District. Her injury was serious and is regrettable, but it does not rise to the level of a constitutional violation simply because it was caused by a state actor. See Cnty. of Sacramento v. Lewis, 523 U.S. 833, 848 (1998) (holding that “the due process guarantee does not entail a body of constitutional law imposing liability whenever someone cloaked with state authority causes harm”); Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 641 (3d Cir. 2015) (commenting about the “typical risks that are associated with participation in athletic activities” and finding that “even the minimal type of intentional physical contact[], while deplorable, will rarely make out a constitutional violation”), cert. denied Spady v. Rodgers, 136 S.Ct. 1162 (2016). The claims are dismissed for the reasons discussed more fully below and the requests to strike certain paragraphs from the Complaint are denied as moot.

         A. Intentional and egregious misconduct is not required for Lesher to plead a state-created danger claim deriving from the Fourteenth Amendment's Due Process Clause.

         Both Motions to Dismiss suggest[2] that Lesher does not have a constitutional claim absent intentional[3] and egregious misconduct. This is incorrect.

         To assert a state-created danger claim under the Fourteenth Amendment Due ...

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