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Henry v. School District of Philadelphia

United States District Court, E.D. Pennsylvania

September 6, 2019

DAVID and RENEE HENRY, individually and as guardians and natural parents of S.J.K.H, a minor
v.
SCHOOL DISTRICT OF PHILADELPHIA and DANIEL J. LAZAR, in his official and individual capacities

          MEMORANDUM RE: MOTION TO DISMISS

          BAYLSON, J.

         I. Introduction

         In this case, Plaintiffs David Henry (“Mr. Henry”) and Renee Henry (“Mrs. Henry”), both individually and as guardians and parents of Plaintiff S.J.K.H., a minor, allege that Defendants, Daniel J. Lazar (“Lazar”), S.J.K.H.'s school principal, and the School District of Philadelphia (“District”) violated federal and state law by permitting S.J.K.H. to be bullied and by discriminating against her on the basis of her race, gender, and disabilities. The Complaint (ECF 1, “Compl.”) advances ten Counts:

1. Count I: Sex-based hostile educational environment in violation of Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681(a) (“Title IX”), on behalf of S.J.K.H. against Defendant District;
2. Count II: Race-based hostile educational environment in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (“Title VI”), and 42 U.S.C. § 1981 on behalf of S.J.K.H. against Defendant District;
3. Count III: Disability harassment in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“RA”), and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”), on behalf of S.J.K.H. against Defendant District;
4. Count IV: Disability discrimination by disparate treatment in violation of the RA and the ADA on behalf of S.J.K.H. against Defendant District;
5. Count V: Race discrimination by disparate treatment in violation of Title VI and § 1981 on behalf of S.J.K.H. against Defendant District;
6. Count VI: Sex discrimination by disparate treatment in violation of Title IX on behalf of S.J.K.H. against Defendant District;
7. Count VII: State-created danger in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution under 42 U.S.C. § 1983 on behalf of S.J.K.H. against both Defendants;
8. Count VIII: Violation of the Pennsylvania Safe Schools Act, 24 P.S. § 13-1301, et seq. (“PSSA”), and the Equal Protection Clause of the Fourteenth Amendment under § 1983 on behalf of S.J.K.H. against both Defendants;
9. Count IX: Willful misconduct in violation of the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541, et seq. (“PSTCA”), on behalf of S.J.K.H. against Defendant Lazar; and
10. Count X: Negligent infliction of emotional distress (“NIED”) on behalf of Mr. Henry against Defendant Lazar.

         Presently before this Court is Defendants' Motion to Dismiss all Counts of the Complaint for failure to exhaust administrative remedies under Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim upon which relief can be granted under Rule 12(b)(6). For the reasons discussed below, the Motion to Dismiss is GRANTED.

         II. Factual Background

         Taking Plaintiffs' allegations as true, the factual background is as follows. Mr. and Mrs. Henry, the parents and guardians of S.J.K.H, reside in Philadelphia, Pennsylvania. (Compl. ¶ 3.) S.J.K.H. is an eleven-year-old, African American female in the fifth-grade class at Albert M. Greenfield School (“Greenfield”), a public school in Philadelphia and a sub-unit of the District. (Id. ¶¶ 4, 8, 6a.) The District is a government agency that provides public education for Philadelphia residents. (Id. ¶ 5.) Lazar, a Caucasian man, is Greenfield's principal. (Id. ¶ 6.) S.J.K.H. has attended Greenfield since the 2017-18 school year, when she was in fourth grade. (Id. ¶ 7.)

         A. S.J.K.H.'s Medical Conditions and Individual Educational Plan (“IEP”)

         S.J.K.H. has several disabilities, including neurofibromatosis Type 1 with moyamoya; optic glioma; Attention Deficit Hyperactivity Disorder, inattentive; and carotid stenosis on the left side. (Id. ¶ 10.) These disabilities restricted S.J.K.H.'s participation in certain school activities, including those requiring headbutting or chokeholds, such as wrestling, which could cause loss of vision, stroke, or death. (Id. ¶ 11.) Mr. and Mrs. Henry conveyed these limitations “on several occasions” to Greenfield in general; the school nurse; the physical education teacher and S.J.K.H.'s IEP Coordinator, Cheryl Russ (“Russ”); the Greenfield IEP Coordinator; and Lazar. (Id. ¶¶ 12, 17, 31c.) S.J.K.H.'s IEP provides for supplemental learning support outside of the regular educational classroom as well as speech and language therapy. (Id. ¶ 16.)

         B. 2017-18 Interactions with V.M.

         Since the 2017-18 school year, S.J.K.H. suffered physical abuse and bullying by her classmate, V.M., an African American female with Caucasian adopted parents. (Id. ¶¶ 20-21.) Mr. and Mrs. Henry allege that V.M.'s mother is a Greenfield employee. (Id. ¶ 22.) V.M. physically abused, bullied, and harassed S.J.K.H. “a number of times” at school, including, but not limited to, threatening to “slit [S.J.K.H.'s] throat” on November 6, 2017 and January 3, 2018; taking S.J.K.H's sweater and lunch; punching S.J.K.H. in the stomach on January 3, 2018; destroying S.J.K.H.'s white board eraser; leaving bruises on S.J.K.H.'s body; and causing S.J.K.H. anxiety and a fear of school. (Id. ¶ 23.) S.J.K.H. reported these events to Greenfield teachers and/or administrators but was not taken seriously. (Id. ¶ 24.) No. one at Greenfield contacted Mr. or Mrs. Henry about these incidents. (Id. ¶ 25.)

         Once Mr. and Mrs. Henry learned of V.M.'s bullying and harassment, they reported these issues to S.J.K.H.'s teachers, Lazar, and “others” to no avail. (Id. ¶ 26.) Prior to V.M.'s alleged attacks on S.J.K.H., Lazar and other Greenfield administrators and faculty, including V.M.'s parents, knew of V.M.'s abusive behavior, but did “little” to stop V.M.'s aggression toward S.J.K.H. (Id. ¶ 27.)

         C. 2018-19 Interactions with N.S.

         During the 2018-19 school year, S.J.K.H. was bullied, harassed, and physically abused by a Caucasian, male classmate, N.S. (Id. ¶¶ 28-29.) N.S. had an IEP that required him to have a one-to-one aide with him at all times at school. (Id. ¶ 30.) On five separate occasions in October 2018, N.S. physically attacked S.J.K.H. at school. (Id. ¶ 31.)

         First, on October 9, 2018, when N.S.'s aide was not present, N.S. choked S.J.K.H. during homeroom. (Id. ¶ 31a.) S.J.K.H. reported the incident to the homeroom teacher but was ignored. (Id.) Neither the homeroom teacher nor Russ, who was standing in the doorway, intervened or reported the incident. (Id.)

         Then, on October 15, 2018, N.S. choked S.J.K.H. from behind during math class. (Id. ¶ 31b.) Again, N.S.'s one-to-one aide was not with him. (Id.) The math teacher did not see what had happened, and S.J.K.H. did not report the incident, but another student asked S.J.K.H. if she was okay, and she said that she was not. (Id.) After S.J.K.H. told Mr. and Mrs. Henry what had happened, Mr. Henry took S.J.K.H. to school and N.S.'s one-to-one aide apologized. (Id.) Mr. Henry reported both the October 9 and October 15 attacks to Lazar, who was unaware of what had happened but said that he would investigate. (Id.) Three days later, on October 18, S.J.K.H. went to the Children's Hospital of Philadelphia (“CHOP”) because of persistent hip pain and reported the attacks to her doctor. (Id.)

         The next day, while in music class on October 19, 2018, N.S. stated that he took a train during the summer and killed the black female train conductor, to which the music teacher responded, “[W]e are not going to talk about killing people.” (Id. ¶ 31c.) N.S. then pushed S.J.K.H. down onto the carpet, pushed on her stomach, and then sat on her stomach, but the music teacher did nothing to help. (Id.) N.S.'s aide got N.S. off of S.J.K.H. (Id.) At that time, the homeroom teacher happened to walk by and directed S.J.K.H. to go to the school nurse, who gave S.J.K.H. an icepack but did not call Mr. or Mrs. Henry. (Id.) Instead, Russ called Mrs. Henry and told her that S.J.K.H. and N.S. were “wrestling” in music class, but she did not mention that S.J.K.H. went to the nurse. (Id.) Russ stated, “You need to tell your daughter to stay away from this boy. He has really bad thoughts about her. And it goes well beyond liking her.” (Id.) During the call, Mrs. Henry learned that N.S. is autistic and that Lazar changed N.S.'s homeroom effective immediately. (Id.)

         Lazar followed up with Mr. and Mrs. Henry and assured them that he would make sure that N.S. and S.J.K.H. would not “cross paths.” (Id.) Specifically, on October 21, 2018, Lazar emailed Mr. and Mrs. Henry to inform them that “[w]e believe that [N.S.] was playing out a fantasy in his head that carried over into the real world, ” and that Greenfield “quickly moved him” to another class. (Id.)

         Then, on the morning of a fifth-grade field trip on October 22, 2018, Mr. Henry spoke to Lazar about S.J.K.H.'s physical safety because of N.S., and three teachers assured Mr. Henry that they would watch N.S. (Id. ¶ 31d.) When the students returned to school, N.S. pushed S.J.K.H. down on the schoolyard ground with his forearm firmly on her neck, causing S.J.K.H. to bang her head hard on the ground. (Id.) N.S.'s one-to-one aide was not present. (Id.) A Greenfield teacher ran to pull N.S. off of S.J.K.H., but Greenfield did not provide S.J.K.H. with medical attention. (Id.) Neither Lazar nor anyone else at Greenfield informed Mr. or Mrs. Henry or filed a report. (Id.) The next day, Lazar assured Mr. Henry that Greenfield scheduled N.S.'s arrival for fifteen minutes after school started and his departure ...


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