United States District Court, M.D. Pennsylvania
ROBERT CUVO and LISA CUVO, on behalf of the minor Child, A.C., Plaintiffs,
POCONO MOUNTAIN SCHOOL DISTRICT, et al., Defendants.
F. SAPORITO, Jr. United States Magistrate Judge
a civil rights action, initiated upon the filing of the
complaint in this matter on June 14, 2018. (Doc. 1). An
amended complaint was filed as a matter of right on June 19,
2018. (Doc. 4). In their amended complaint, the plaintiffs
allege violations of A.C.'s federal civil rights while he
was a member of the wrestling team of the defendant, Pocono
Mountain School District (the “school district”).
The plaintiffs also assert state law claims of negligence and
respondeat superior. The defendants moved to dismiss the
amended complaint (Doc. 14) which we granted in part and
denied in part. (Doc. 25; Doc. 26). Thereafter, the plaintiff
filed a second amended complaint. (Doc. 27). The defendants
have moved to dismiss the second amended complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
(Doc. 29). This motion has been fully briefed and is ripe for
disposition. (see Doc. 30; Doc. 33; Doc. 34). For
the reasons set forth herein, we will grant the motion in
part and deny it in part.
Statement of Facts
facts set forth in the second amended complaint (Doc. 29) are
as follows: A.C. was a home-schooled student who participated
as a member of the school district's wrestling team. The
team was coached by defendant Josh Haines and his assistant,
defendant Michael Hollar. (Doc. 4 ¶¶16-18).
Defendant William Hantz was the athletic director for the
school district. During the course of a wrestling practice on
December 18, 2017, the members of the wrestling team were
told by Haines and Hollar that they would not be wrestling
during that practice, but rather they would be playing tackle
football. (Id. ¶¶19-20). The tackle
football was conducted indoors without any protective
equipment where Haines and Hollar participated in the
activity. (Id. ¶¶21-22, 24). Haines and
Hollar instructed the team to engage in tackle football
despite that the members of the team had no training in
playing tackle football. (Id. ¶ 23). It is
alleged that Haines and Hollar engaged in and allowed the
activity to continue for approximately twenty minutes where
students were getting tackled violently to the ground in ways
that it was obvious that injury would occur if the activity
was permitted to continue. (Id. ¶25). After the
activity was conducted for approximately twenty minutes, A.C.
was tackled to the ground by another student who was acting
pursuant to the order of Haines and Hollar, and as a result,
A.C.'s femur snapped in half causing him excruciating
pain along with required surgery and extensive physical
therapy. (Id. ¶¶25-32). Also, the
plaintiffs have alleged that the tackle football was being
played on wrestling mats which are designed to create
friction and grip in order to prevent slipping and sliding.
(Id. ¶29). When A.C. was tackled, the mat
created a grip which did not permit A.C.'s leg to slide
and give way therefore causing his femur to snap.
(Id. ¶ 30). It is alleged that A.C. is
permanently unable to participate in activities which he
enjoyed prior to this injury. (Id. ¶33).
I and II of the second amended complaint assert Fourteenth
Amendment claims, “for a state created danger and for
the right to bodily integrity.” Count III alleges a
§1983 Monell liability claim. Counts IV and V
allege state law claims for negligence and respondeat
superior respectively. The defendants have filed a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The plaintiffs do not object to the dismissal of
Count II and to the dismissal of punitive damages except
against Hollar in his individual capacity. (Doc. 33, at 3-4).
12(b)(6) of the Federal Rules of Civil Procedure authorizes a
defendant to move to dismiss for ''failure to state a
claim upon which relief is granted.'' Fed.R.Civ.P.
12(b)(6). ''Under Rule 12(b)(6), a motion to dismiss
may be granted only if, accepting all well-pleaded
allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court finds the
plaintiff's claims lack facial plausibility.''
Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84
(3d Cir. 2011) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007)). Although the
Court must accept the fact allegations in the complaint as
true, it is not compelled to accept ''unsupported
conclusions and unwarranted inferences, or a legal conclusion
couched as a factual allegation.'' Morrow v.
Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting
Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir.
2007)). Under Rule12(b)(6), the defendant has the burden of
showing that no claim has been stated. Kehr Packages,
Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.
1991); Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d
Cir. 1980); Holocheck v. Luzerne County Head Start,
Inc., 385 F.Supp.2d 491, 495 (M.D. Pa. 2005). In
deciding the motion, the court may consider the facts alleged
on the face of the complaint, as well as ''documents
incorporated into the complaint by reference, and matters of
which a court may take judicial notice.'' Tellab,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308,
defendants have moved for dismissal of the plaintiffs'
claims on a variety of grounds including whether the
plaintiffs have failed to allege facts which support a
§1983 state created danger or bodily integrity claim;
whether the plaintiffs' count III Monell claims
against defendants Haines and Hollar should be dismissed;
whether the plaintiffs' second amended complaint should
be dismissed on the grounds of immunity; whether the
plaintiffs' respondeat superior count should be dismissed
for failure to state a claim; whether the plaintiffs are
entitled to punitive damages; and whether the plaintiffs
Robert Cuvo and Lisa Cuvo, have failed to state a claim upon
which relief may be granted on their own behalf.
plaintiffs have brought this federal civil rights action
under 42 U.S.C. § 1983. Section 1983 provides in
Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress .
. . .
42 U.S.C. § 1983. Section 1983 does not create
substantive rights, but instead provides remedies for rights
established elsewhere. City of Oklahoma v.
Tuttle, 471 U.S. 808, 816 (1985). To establish a §
1983 claim, the plaintiff must establish that the defendants,
acting under color of state law, deprived the plaintiff of a
right secured by the United States Constitution. Mark v.
Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995). To
avoid dismissal for failure to state a claim, a civil rights
complaint must state the conduct, time, place, and persons
responsible for the alleged civil rights violations.
Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Here, the plaintiffs advance Fourteenth Amendment claims,
based on the events of December 18, 2017, on the basis of a
state created danger theory (Count I). The defendants
maintain that the plaintiffs' Fourteenth Amendment claims
are not cognizable under § 1983.
State-Created Danger (Count I)
Kniepp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996),
the Third Circuit first adopted the state created danger
theory as a mechanism by which plaintiffs may establish
constitutional violations, under Section 1983, if an
individual incurs harm as a direct result of certain state
actions. In other words, “liability may attach where
the state acts to create or enhance a
danger that deprives a plaintiff of his or her Fourteenth
Amendment rights to substantive due process.”
Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013)
(emphasis in original).
Bright v. Westmoreland County, 443 F.3d 276 (3d Cir.
2006), the Third Circuit articulated the following
four-factor test to determine whether a plaintiff has ...