United States District Court, E.D. Pennsylvania
PAIGE E. LESHER, Plaintiff,
CLARK ZIMMERMAN, IN HIS INDIVIDUAL CAPACITY; and HAMBURG AREA SCHOOL DISTRICT, Defendants
OPINION, DEFENDANT CLARK ZIMMERMAN'S MOTION TO
DISMISS, ECF NO. 10 - GRANTED IN PART DEFENDANT HAMBURG AREA
SCHOOL DISTRICT'S MOTION TO DISMISS, ECF NO. 12 - GRANTED
F. LEESON, JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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.
STANDARDS OF REVIEW
Motion to Dismiss- Rule 12(b)(6)
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)).
Motion to Strike- Rule 12(f)
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)).
two Motions to Dismiss are the subject of this Opinion.
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.
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
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
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.
Motions to Dismiss suggest that Lesher does not have a
constitutional claim absent intentional and egregious
misconduct. This is incorrect.
assert a state-created danger claim under the Fourteenth
Amendment Due ...