Lansberry v. Altoona Area School District

          MEMORANDUM OPINION ^[1]

          KIM R. GIBSON JUDGE

         I. Introduction

         This is a civil rights lawsuit arising from the suicide of W.J.L., a seventh grader at Altoona Area School District Junior High School ("Altoona Junior High School"). W.L.J.'s father, Marc Lansberry ("Lansberry"), brings this suit in his individual capacity and in his capacity as the Administrator of W.J.L.'s Estate against Altoona Area School District ("AASD"), Charles Prijatelj, AASD's Superintendent, and Don Brennan, President of AASD's Board of Directors (together "Defendants"). (See ECF No. 15).

         Pending before the Court is Defendants' Motion to Dismiss Lansberry's Amended Complaint or, in the Alternative, Motion to Strike (ECF No. 16). The Motion has been fully briefed (see ECF Nos. 17, 21) and is ripe for disposition. For the reasons that follow, the Court will GRANT Defendants' Motion to Dismiss in its entirety. However, Lansberry will be granted leave to amend as to certain claims.

         II. Jurisdiction

         The Court has jurisdiction over Lansberry's federal claims pursuant to 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Lansberry's state law claims pursuant to 28 U.S.C. § 1367. Venue is proper under 28 U.S.C. § 1391(b) because a substantial portion of the events giving rise to the claims occurred in the Western District of Pennsylvania.

         III. Background

         A. Factual History ^[2]

         W.J.L. attended Altoona Junior High School during the 2016-2017 school year as a seventh grader. (ECF No. 15 at ¶ 10.) W.J.L. was a good student and did not have disciplinary or behavioral problems. (Id.)

         During the 2016-2017 school year, W.J.L. suffered "intense, persistent, and malicious bullying" from fellow students. (Id. at ¶ 11.) The bullying involved "unwanted and unwarranted physical contact," "persistent and pervasive ridicule," "threats of violence," and statements that W.J.L. was "better off dead" and should commit suicide. (Id. at ¶ 16.) Some of the bullying that WJ.L. suffered involved his "not being perceived to be masculine enough relative to his peers and not having the ideal appearance for a male in his age group." (Id. at ¶ 33.)

         Students bullied WJ.L. "on school property during educational hours." (Id. at ¶ 11.) W.J.L. also experienced bullying off of school grounds, such as while walking back to his father's house or online through social media. (Id.)

         W.J.L. experienced bullying in the presence of Altoona Junior High staff and fellow students. (Id. at ¶ 12.) In fact, "[i]t was well known throughout the school that W.J.L. was persistently picked on by his peers." (Id.) Furthermore, it was known that the students who bullied W.J.L. were football players. (Id. at ¶ 14.) However, Altoona Junior High did not take disciplinary measures against the bullies because they were members of the football team. (Id.)

         On one occasion, ^[3] W.J.L. was being bullied in a male teacher's classroom and asked to leave the classroom and go to the guidance counselor's office. (Id. at ¶ 13.) Rather than allow W.J.L. to see the guidance counselor, the male teacher told W.J.L. that he "needed to stop being a baby." (Id.)

         Despite the fact that students and school personnel knew about the severe and persistent bullying that W.J.L. suffered, Defendants failed to take any action to address the problem. (Id. at ¶ 17.) Further, in violation of school policy, school officials never notified W.J.L.'s parents about the persistent bullying their son experienced. (Id.)

         W.J.L. killed himself on May 18, 2017. (Id. at ¶ 18.) W.J.L. took his life after a "particularly brutal day of bullying" at school. (Id.)

         The day after W.J.L. committed suicide, Lansberry received a phone call from AASD stating that W.J.L. was "absent" from school. (Id. at ¶ 19.) However, when Lansberry received this phone call, AASD had already been made aware that W.J.L. had committed suicide. (Id.)

         A special public meeting was held on May 25, 2017. (Id. at ¶ 20.) At this meeting, AASD acknowledged that AASD's bullying and harassment policy was deficient. (Id. at ¶ 21.)

         A second public event was held on April 18, 2018. (Id. at ¶ 21.) At that meeting, a member of AASD's board of directors stated that a bullying "problem" persisted at Altoona Junior High that had not adequately been addressed. (Id.) During this meting, Defendant Charles Prijatelj - the Superintendent of AASD -offered his condolences to Lansberry's counsel and his wife, mistaking them for the Lansberry family. (Id. at ¶ 22.) Also at that meeting, AASD's board of directors voted to hire outside counsel to review all AASD policies and procedures, with a "focus on student services." (Id. at ¶ 23.) However, a member of AASD's board of directors stated that the results of the attorney's work were "sitting on a shelf in the directors' room collecting dust" and that the AASD board of directors had never reviewed the recommendations.^[4] (Id. at ¶ 24.)

         After W.J.L.'s death, AASD removed items from his locker without notifying his family or the Altoona Police Department, which was investigating his suicide. (Id. at ¶ 25.) AASD did not produce W.J.L.'s passbook to his parents or the police.^[5] (Id. at ¶ 26.)

         B. Procedural History

         Lansberry filed a Complaint before this Court (ECF No. 1), which he subsequently amended (ECF No. 15). Lansberry's Amended Complaint asserts four claims: (1) a Title IX claim against AASD; (2) a 42 U.S.C. § 1983 claim against AASD based on a "state created danger" theory^[6]; (3) a survival action against all Defendants; and (4) a wrongful death claim against all Defendants.^[7] (See ECF No. 15 at 8-19.)

         Defendants move to dismiss Lansberry's Amended Complaint in its entirety and, in the alternative, to strike certain paragraphs in the Amended Complaint. (See ECF No. 16.)

         IV. Standard of Review

         A complaint may be dismissed under Federal Rule of Civil Rule 12(b)(6) for "failure to state a claim upon which relief can be granted." Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). But detailed pleading is not generally required. Id. The Rules demand only "a short and plain statement of the claim showing that the pleader is entitled to relief" to give the defendant fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)).

         Under the pleading regime established by Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), a court reviewing the sufficiency of a complaint must take three steps.^[8] First, the court must "tak[e] note of the elements [the] plaintiff must plead to state a claim." Iqbal, 556 U.S. at 675. Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679; see also Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011) ("Mere restatements of the elements of a claim are not entitled to the assumption of truth.") (citation omitted). Finally, "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. "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." Id.; see also Connelly, 809 F.3d at 786. Ultimately, the plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

         V. Discussion

         A. The Court Will Grant Defendants' Motion to Dismiss Lansberry's Title IX Claim Against AASD Because Lansberry Failed to Plead a Plausible Title IX Claim

         Defendants argue that Lansberry failed to state a cognizable Title IX claim for several reasons. Defendants argue that Lansberry merely alleges teasing and name-calling, not gender-based sexual harassment. (ECF No. 17 at 7.) Defendants further contend that Lansberry failed to allege sexual harassment that was sufficiently "severe, pervasive, and objectively offensive" that it deprived W.J.L. of access to educational opportunities. (Id.) Defendants further assert that Lansberry failed to allege that the Defendants knew about, or ignored, any incidents of sexual harassment. (Id. at 7-8.) Defendants also argue that AASD did not assert "substantial control" over any conduct occurring via social media, and thus cannot be liable for any harassment that took place online. (Id. at 8.) Finally, Defendants argue that the single instance of teacher bullying that Lansberry alleges neither constitutes "sexual harassment" nor rises to the level of "persistence or severity" required to state a Title IX claim, and further asserts that Lansberry did not allege that any school official had knowledge of this single incident of teacher harassment. (Id.)

         In response, Lansberry contends that "sexual harassment did occur on school grounds during school hours through both peer harassment and bullying and at least one instance of a teacher engaging in harassment and bullying of W.J.L. while in [a] classroom during class."(ECF No. 25 at 4.^[9]) Lansberry further argues that Defendants had knowledge of the harassment because "it was well-known throughout the school that W.J.L. was bullied and harassed." (Id.) Lansberry also asserts that Defendants withheld and/or destroyed items in W.J.L.'s locker-such as his hall passbook -and that this conduct violates AASD's policies and indicates that "Defendants did engage in willful and deliberate indifference to the ongoing harassment of W.J.L. by his peers and school personnel." (Id.) Lansberry states that the bullying and harassment took place "on a near daily basis" and that W.J.L. faced not merely name-calling, but also bullying that was "physical and psychological in nature." (Id.) Lansberry further contends that the harassment deprived W.J.L. of an educational benefit because "a benefit is to be educated in a safe, nurturing and fostering environment and not have to look over one's shoulder to see if the bullies are behind you." (Id.) Finally, Lansberry asserts that "Defendants cannot properly argue that an opportunity or benefit was not denied when a child chose death over life due to bullying and harassment that took place at his school." (Id.)

         Title IX provides that "[n]o person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . ." 20 U.S.C. § 1681. The Supreme Court has recognized a private right of action under Title IX. See Cannon v. Univ. of Chicago, 441 U.S. 677, 717 (1979); Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ, 526 U.S. 629, 639 (1999). The Supreme Court has also held that money damages are available in Title IX suits. See Davis, 526 U.S. at 639-40 (citing Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992)).

         It is well-established that Title IX encompasses student-on-student sexual harassment. See Davis, 526 U.S at 643; Doe v. Bellefonte Area Sch. Dist., 106 Fed.Appx. 798, 799 (3d Cir. 2004); Dawn L. v. Greater Johnstown Sch. Dist., 586 F.Supp.2d 332, 365 (W.D. Pa. 2008) (Gibson, J.); K. v. N. Allegheny Sch. Dist., 168 F.Supp.3d 786, 800 (W.D. Pa. 2016) (Cercone, J.); Brooks v. City of Philadelphia, 747 F.Supp.2d 477, 481 (E.D. Pa. 2010); Lockhart v. Willingboro High Sch., No. CV 14-3701 (JBS/AMD), 2017 WL 4364180, at *5 (D.N.J. Sept. 29, 2017).

         "To prevail in a claim of student-on-student sexual harassment under Title IX, the plaintiff must show that (1) the defendant received federal funds; (2) sexual harassment occurred; (3) the harassment took place under 'circumstances wherein the [funding] recipient exercise[d] substantial control over both the harasser and the context in which the .. . harassment occurred'; (4) the funding recipient had 'actual knowledge' of the harassment; (5) the funding recipient was 'deliberately indifferent' to the harassment; and (6) the harassment was 'so severe, pervasive, and objectively offensive that it [could] be said to [have] deprive[d] the victims of access to the educational opportunities or benefits provided by the school.'" Dawn L., 586 F.Supp.2d at 365 (quoting Davis, 526 U.S. at 650); see M.S. v. Susquehanna Twp. Sch. Dist., No. 1:13-CV-02718, 2017 WL 6397827, at *6 (M.D. Pa. Mar. 29, 2017) (citing Davis, 526 U.S. at 650) (articulating the same elements of Title IX claim for student-on-student sexual harassment).

         Defendants do not contest that AASD receives federal funds. (See ECF No. 17.) But they contend that Lansberry failed to allege several of the other elements necessary to state a Title IX claim. This Court agrees.^[10]

         1. Lansberry Failed to Sufficiently Plead the Existence of Sexual Harassment (Prong 2)

         "Sexual harassment must be both viewed subjectively as harassing by the victim and be objectively severe or pervasive enough that a reasonable person would agree that it is harassment." Butler v. Mountain View Sch. Dist, No. 3:12-CV-2038, 2013 WL 4520839, at *6 (M.D. Pa. Aug. 26, 2013) (citing Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 205 (3d Cir. 2001)); M.S., 2017 WL 6397827, at *7 (quoting Butler, 2013 WL 4520839, at *6). The Supreme Court has instructed that "[w]hether gender-oriented conduct rises to the level of actionable 'harassment'... 'depends on a constellation of surrounding circumstances, expectations, and relationships . . . ." Davis, 526 U.S. at 651 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998)). These circumstances include, but are not limited to, "the ages of the harasser and the victim and the number of individuals involved." Davis, 526 U.S. at 651. Furthermore, Courts evaluating Title IX claims "must bear in mind that schools are unlike the adult workplace and that children may regularly interact in a manner that would be unacceptable among adults." Id.

         "To survive a motion to dismiss on a Title IX claim, 'it is true that [a] plaintiff does not need to provide detailed factual support for its allegations ... [but] the plaintiff's allegations must amount to more than mere conclusory allegations.'" Colombo v. Bd. of Educ. for Clifton Sch. Dist., No. 2:ll-CV-00785, 2017 WL 4882485, at *10 (D.N.J. Oct. 29, 2017) (quoting Butler, 2013 WL 4520839, at *7).

         The Court finds that Lansberry failed to state a plausible claim of sexual harassment. Lansberry alleges that W.J.L. faced "intense, persistent, and malicious bullying" throughout the 2016-2017 school year. (ECF No. 15 at ¶ 10.) But bullying-even vicious, malicious, relentless bullying-is not sexual harassment. See Butler, 2013 WL 4520839, at *7 (noting that "sexual harassment requires a component directly related to one's gender" whereas "[b]ullying, on the other hand, is a more generic term for abuse or intimidation, but has no required relationship to one's gender.") While ...