United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION 
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).
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.
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
Factual History 
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.)
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.)
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.)
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.)
occasion,  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.)
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.
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.)
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.)
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.)
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. (Id. at ¶ 24.)
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. (Id. at ¶ 26.)
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; (3) a survival
action against all Defendants; and (4) a wrongful death claim
against all Defendants. (See ECF No. 15 at 8-19.)
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.
Standard of Review
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)).
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. 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.
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
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.)
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
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."
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
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,
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
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.
Lansberry Failed to Sufficiently Plead the Existence of
Sexual Harassment (Prong 2)
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."
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).
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