Bonham v. Boberesky

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES & APRIL BONHAM,

individually and o/b/o J.B., their minor

NO. 3:19-CV-0709

son,

Plaintiffs, (JUDGE CAPUTO)

v.

SUSAN MARIE BOBERSKY,

individually and in her official capacity,

et al.,

Defendants.

MEMORANDUM

Presently before me are motions to dismiss filed by: (1) Jennifer Oiler (“Oiler”)

(Doc. 17); and (2) Northwest Area School District (“NASD”), Northwest Area School

District Governing Board of Education (the “Board”), James McGovern

(“McGovern”), and Adam Sorber (“Sorber”) (collectively, where appropriate, “District

Defendants”) (Doc. 16). Plaintiffs April Bonham (“Bonham”) and her husband James

allege that their son J.B., a special needs student, was abused - verbally and physically

- by his personal transportation aide Susan Marie Bobersky (“Bobersky”), an

employee of NASD and transportation contractor Barchik Bus Services, LLC

(“Barchik”). Plaintiffs also assert that J.B.’s abuse occurred even though Bonham had

previously alerted NASD officials about issues related to the treatment of J.B. during

his school transit. As a result, Plaintiffs claim violations of J.B.’s rights under federal

and state law. Oiler and District Defendants have moved to dismiss the Complaint for

failure to state a claim upon which relief can be granted. For the reasons that follow,

the motions to dismiss will be granted in part and denied in part.

I. Background

The facts as alleged in the Complaint are as follows:

J.B. is and was a student at NASD. (See Doc. 1, ¶ 1). Bobersky was employed

by Barchik, as well as by NASD in several capacities, including as a transportation

aide. (See id. at ¶ 4). Abraham Monroe (“Monroe”) was employed by Barchik as a

driver. (See id. at ¶ 5). Barchik contracted with NASD to provide student

transportation services. (See id. at ¶ 6). Oiler was employed by NASD as the Director

of Special Education. (See id. at ¶ 7). Sorber was NASD’s Director of Transportation.

(See id. at ¶ 8). McGovern was NASD’s Superintendent. (See id. at ¶ 9).

In December 2015, NASD evaluated J.B. to determine if he was a special needs

student. (See id. at ¶ 15). NASD and Oiler found that J.B. was a student with a

disability requiring full autistic support with related services to meet his needs,

including specialized transportation. (See id. at ¶ 16). J.B. has a primary diagnosis

of Autism Spectrum Disorder and secondary diagnoses of Attention-Deficit

Hyperactive Disorder, Oppositional Defiant Disorder, Intellectual Disability, and

Speech and Language Delay. (See id. at ¶ 1). To accommodate J.B.’s needs, NASD

provides specialized transportation between his home and school. (See id. at ¶ 17).

On December 15, 2015, Bonham, J.B.’s mother, emailed Oiler regarding

difficulties her son was having getting out of his specialized car harness. (See id. at

¶¶ 18-19). In particular, NASD’s employees did not know how to insert and remove

J.B. from his harness. (See id. at ¶ 19).

The following month, on January 21, 2016, Bonham emailed Sorber with

respect to an incident where an employee of Cragle Bus Service, another company that

provided transportation for NASD, slapped J.B.’s face and smacked his hands for

disruptive behavior during transit. (See id. at ¶ 20).

Bonham again emailed Oiler on February 22, 2016 about issues related to J.B.’s

transportation. (See id. at ¶ 21). Specifically, Bonham advised Oiler that the

transportation provider did not know how to get J.B. in and out of his harness, nor did

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the provider understand how to redirect J.B.’s behaviors that were caused by his

conditions. (See id.).

The following year, J.B. attended the Graham Academy, and NASD provided

both specialized transportation for J.B. and a personal transportation aide. (See id. at

¶ 22). Barchik was one of six (6) contracted transportation companies used by NASD

for the 2016-2017 school year. (See id. at ¶ 23).

In the 2016-2017 school year, Monroe was the driver of J.B.’s van. (See id. at

¶ 28). Bobersky, who also served as a substitute cafeteria worker and secretary with

NASD, was J.B.’s personal care transportation aide. (See id. at ¶ 29). Shortly after

Bobresky began in this role, Bonham observed an aggressive escalation of J.B.’s

behaviors. (See id. at ¶ 30).

On October 31, 2016, J.B. returned from school with bruising. (See id. at ¶ 31).

J.B. was kept home from school the following day and taken to the pediatrician. (See

id. at ¶¶ 32-33). Bonham asked the pediatrician if it was possible that new medication

J.B. was prescribed could cause him to bruise easier, but the pediatrician advised that

it would not have such an effect. (See id. at ¶ 33). Bonham thus contacted the Graham

Academy, and after a review of J.B.’s day on the surveillance system, Bonham

concluded that the bruising occurred while J.B. was being transported. (See id. at ¶

34).

Bonham telephoned Oiler on November 2, 2016 to express her suspicions

regarding J.B.’s injuries, but that phone call was cut short. (See id. at ¶ 35). Oiler

subsequently emailed Bonham and expressed her appreciation for being informed of

those suspicions. (See id. at ¶ 36). Bonham also questioned Monroe about her

suspicions of abuse, but he denied that any abusive conduct took place. (See id. at ¶¶

37-38). Additionally, Bonham approached Bobersky with her concerns and provided

suggestions to utilize to help calm J.B. down. (See id. at ¶ 39). Bobersky denied that

any misconduct occurred. (See id. at ¶ 40).

On November 16, 2016, after Bonham had reported the incident involving her

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son, the Board entertained a motion to appoint Bobersky as a part-time personal care

transportation aide effective the following day and continuing yearly under the terms

of a Memorandum of Understanding between NASD and the Northwest Area

Educational Support Personnel Association. (See id. at ¶ 41). That motion was

unanimously approved by the Board. (See id. at ¶ 42).

Bobersky subsequently resigned from her role as transportation aide effective

January 27, 2017, but she nevertheless remained in her role as J.B.’s personal care

transportation aide. (See id. at ¶¶ 44-46).

During this time, Bonham observed an increase in J.B.’s aggressive behaviors.

(See id. at ¶ 48). In the spring of 2017, S.C., a 12 year old that rode in the same van

as J.B., began to come home crying. (See id. at ¶ 50). S.C. told his mother that

Bobersky was rough with J.B., including, inter alia, pulling his hair, slapping him

across the face, grabbing his face, and sitting on him. (See id. at ¶¶ 51-52). S.C.

approached Monroe with his concerns, but he was told to mind his own business and

let Bobersky do her job. (See id. at ¶ 53). In response, S.C.’s mother had him take an

iPad on the van to record Bobersky the next time she was rough with J.B. (See id. at

¶ 55).

On April 27, 2017, Bonham received a call from S.C.’s mother informing her

that S.C. had captured video of Bobersky’s treatment of J.B. (See id. at ¶ 56). The

video shows Bobersky screaming in J.B.’s face, smacking him, and taking him by his

hair and ripping his head and neck over the top of his car seat harness. (See id. at ¶¶

58-59). The video also depicts Monroe stoically driving the van while these events

occurred. (See id. at ¶ 60).

Bonham immediately reported the incident, and Bonham kept J.B. from having

contact with Monroe and Bobersky. (See id. at ¶¶ 61-62). NASD, however, continued

to allow Bobersky and Monroe to transport other special needs students. (See id. at

¶¶ 64-65). Bobersky and Monroe on one occasion questioned S.C. regarding his

motivation to videotape their actions. (See id. at ¶¶ 64-68).

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On May 17, 2017, NASD entered into a new six (6) year contract with Barchik

to provide transportation for NASD’s special needs students. (See id. at ¶ 69).

Criminal charges for simple assault, endangering the welfare of a child, and

harassment were subsequently filed against Bobersky. (See id. at ¶ 143). Bobersky

was permitted to enter into the Accelerated Rehabilitation Program, but to do so she

was required to admit to the charges filed against her. (See id. at ¶¶ 143-145). Oiler

was also criminally investigated for failure to report suspected child abuse. (See id.

at ¶ 166).

Based on the foregoing, Plaintiffs commenced this action against Bobersky,

NASD, the Board, Monroe, Barchik, Anthony Grieco, Oiler, McGovern, and Sorber

on April 26, 2019. (See Doc. 1, generally). In the Complaint, Plaintiffs assert claims

for: (1) failure to train against NASD, Oiler, McGovern, Sorber, the Board, and

Barchik; (2) state created danger under the Fourteenth Amendment against all

Defendants; (3) violation of Section 504 of the Rehabilitation Act against all

Defendants; (4) violation of 29 U.S.C. § 794 against NASD, Oiler, McGovern, and

Sorber in their official capacities, the Board, and Barchik (Count IV(a)); (5) violation

of the Americans with Disabilities Act against NASD, Oiler, McGovern, and Sorber

in their individual and official capacities, the Board, and Barchik (Count IV(b));1 (6)

assault and battery against Bobersky, NASD, and Barchik; (7) intentional infliction

of emotional distress against NASD, Bobersky, and Barchik; (8) negligence against

NASD, Barchik, Bobersky, and Monroe; (9) willful misconduct against NASD,

Barchik, and Bobersky; (10) breach of fiduciary duty against Bobersky, Monroe, and

Barchik; (11) willful misconduct against NASD and Oiler in her individual and

official capacity; and (12) willful misconduct against Barchik and Monroe. (See id.).

District Defendants and Oiler separately moved to dismiss the Complaint. (See

1 Two claims are identified as Count IV in the Complaint. Accordingly, these

claims will be referred to as Counts IV(a) and IV(b).

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Doc. 16, generally; Doc. 17, generally). Those motions have now been fully briefed,

so they are ripe for disposition.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a

complaint, in whole or in part, for failure to state a claim upon which relief can be

granted. See Fed. R. Civ. P. 12(b)(6). “Under the ‘notice pleading’ standard

embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come

forward with ‘a short and plain statement of the claim showing that the pleader is

entitled to relief.’” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d

Cir. 2014) (quoting Fed. R. Civ. P. 8(a)(2)).

When resolving a Rule 12(b)(6) motion, “a court must consider no more than

whether the complaint establishes ‘enough facts to raise a reasonable expectation that

discovery will reveal evidence of the necessary elements’ of the cause of action.”

Trzaska v. L’Oreal USA, Inc., 865 F. 3d 155, 162 (3d Cir. 2017) (quoting Connelly v.

Lane Constr. Corp., 809 F.3d 780, 789 (3d Cir. 2016)). In reviewing the sufficiency

of a complaint, a court must take three steps: (1) identify the elements of the claim; (2)

identify conclusions that are not entitled to the assumption of truth; and (3) assume the

veracity of the well-pleaded factual allegations and determine whether they plausibly

give rise to an entitlement to relief. See Connelly, 809 F.3d at 787 (citations omitted).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

III. Discussion

District Defendants and Oiler have moved to dismiss the Complaint on several

grounds. (See Doc. 18, generally; Doc. 21, generally). In their brief in opposition to

the motion, Plaintiffs did not oppose the motions to dismiss with respect to the

dismissal of the Board as a Defendant, the dismissal of the Rehabilitation Act claims

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against individual Defendants, and the dismissal of the Title II of the Americans with

Disabilities Act claim against individual Defendants. (See Doc. 24, generally).

Further, Plaintiffs concede that their claims for willful misconduct should be dismissed

because that is not a distinct cause of action under Pennsylvania law. (See id. at 14).

As such, those aspects of the Complaint will be dismissed with prejudice. The

remainder of the grounds for dismissal raised by District Defendants and Oiler are

addressed below.

A. Section 1983 Claims.

In the first two Counts of the Complaint, Plaintiffs assert violations of J.B.’s

rights under the Fourth and Fourteenth Amendment to the United States Constitution

pursuant to 42 U.S.C. § 1983. The alleged violations by Defendants NASD,

McGovern, Sorber, and Oiler are premised on state created danger and failure-to-train.

The Due Process Clause of the Fourteenth Amendment provides that “[n]o state

shall . . . deprive any person of life, liberty, or property without due process of law[.]”

U.S. Const. amend XIV, § 1. The Fourteenth Amendment claim here is based on an

alleged violation of J.B.’s substantive due process rights. “The substantive component

of the Due Process Clause ‘protects individual liberty against ‘certain government

actions regardless of the fairness of the procedures used to implement them.’”

Gottlieb ex rel. Calabria v. Laurel Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir.

2001) (quoting Collins v. Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061, 1068,

117 L. Ed. 2d 261 (1992)). It is “‘violated by [state conduct] when it can properly be

characterized as arbitrary, or conscience shocking, in a constitutional sense.’” Id.

(alteration in original) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 847,

118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998)). The “Fourteenth Amendment’s shocks

the conscience standard [applies] to federal claims alleging the use of excessive force

by public school officials.” Id.

1. State-Created Danger.

Plaintiffs first contend that Defendants violated J.B.’s substantive due process

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rights under the Fourteenth Amendment pursuant to the state-created danger theory

of liability. The Third Circuit has “recognized that a state actor may be held liable

under the ‘state-created danger’ doctrine for creating danger to an individual in certain

circumstances.” Henry v. City of Erie, 728 F.3d 275, 281 (3d Cir. 2013) (citing

Morrow v. Balaski, 719 F.3d 160, 176 (3d Cir. 2013)). Liability may attach under this

doctrine “where the state acts to create or enhance a danger that deprives the plaintiff

of his or her Fourteenth Amendment right to substantive due process.” Morrow, 719

F.3d at 177 (citing Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996)). To prevail

on a state-created danger theory, Plaintiffs must prove four elements:

1) the harm ultimately caused was foreseeable and fairly

direct;

2) a state actor acted with a degree of culpability that shocks

the conscience;

3) a relationship between the state and the plaintiff existed

such that the plaintiff was a foreseeable victim of the

defendant's acts, or a member of a discrete class of persons

subjected to the potential harm brought about by the state's

actions, as opposed to a member of the public in general; and

4) a state actor affirmatively used his or her authority in a

way that created a danger to the citizen or that rendered the

citizen more vulnerable to danger than had the state not

acted at all.

Id. (quoting Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006)).

Plaintiffs are unable to satisfy the fourth element because there was no

affirmative action by NASD, McGovern, Sorber, or Oiler which made J.B. more

vulnerable than he would have been had they done nothing at all. The Third Circuit

has made clear that under the fourth element, liability “is predicated upon the states’

affirmative acts which work to the plaintiffs’ detriments in terms of exposure to

danger. It is misuse of state authority, rather than a failure to use it, that can violate

the Due Process Clause.” Bright, 443 F.3d at 282 (internal citations and quotation

omitted). Accordingly, to establish the fourth element, Plaintiffs must identify “an

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affirmative action, rather than inaction or omission.” Phillips v. Cty. of Allegheny, 515

F.3d 224, 236 (3d Cir. 2008) (citations omitted). And, while the Third Circuit has

emphasized that “the line between action and inaction is not always easily drawn,”

Morrow, 719 F.3d at 178, it has “never found a state-created danger claim to be

meritorious without an allegation and subsequent showing that state authority was

affirmatively exercised.” Bright, 443 F.3d at 282. But, the affirmative act requirement

“is not intended to turn on semantics of act and omission. Instead, the requirement

serves to distinguish cases where officials might have done more from cases where

officials created or increased the risk itself.” Morrow, 719 F.3d at 179 (alterations and

citation omitted).

Plaintiffs have not identified any action by these Defendants in this case that

caused J.B. to be more vulnerable than he would have been had they done nothing at

all. Rather, Plaintiffs contend that it was NASD’s inaction, i.e., its failure to

adequately train Barchik, Bobersky, and Monroe and/or its failure to fire Bobersky

that caused the harm to J.B. However, the Third Circuit has stressed that “failures to

act cannot form the basis of a valid § 1983 [state created danger] claim.” Kaucher v.

Cty. of Bucks, 455 F.3d 418, 433 n.11 (3d Cir. 2006); see also Morrow, 719 F.3d at

178 (suspending student for bullying but then allowing him to return to school when

the suspension ended was not an affirmative act); Bright, 443 F.3d at 284 (“mere

failure to protect an individual against private violence does not violate the Due

Process Clause.”). Thus, it is clear that these alleged failures, including the failure to

dismiss Bobersky, do not constitute affirmative acts to sustain a state-created danger

claim. Moreover, arguing that Bobersky was “promoted” by the Board in November

2016 to a part-time transportation aide (a position she was already alleged to be

serving for J.B.) and then allowed to remain in that position after she resigned in

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January 2017, (see Doc. 1, ¶¶ 29, 41, 44-46), does not amount to an affirmative act.

Indeed, “promoting” Bobersky did not “create a new danger for [J.B.] or render[ ]

[him] more vulnerable to danger than had the state not acted at all.” Morrow, 719 F.3d

at 178; see also Robischung-Walsh v. Nassau Cty. Police Dep’t, 421 F. App’x 38, 41

(2d Cir. 2011) (continued employment with and promotions by the police department

were not affirmative acts for state-created danger claim). In other words, NASD’s

“maintenance of the status quo [is] insufficient to create liability.” K.W. by and

through White v. SEPTA, 760 F. App’x 104, 108 (3d Cir. 2019). As such, the

Fourteenth Amendment substantive due process claim based on a state-created danger

theory against NASD, McGovern, Sorber, and Oiler will be dismissed.2

2. Failure-to-Train.

Plaintiffs next raise a failure-to-train claim against NASD, McGovern, Sorber,

and Oiler. I will address the claim against NASD first, before considering its viability

as to these individual Defendants.

a. NASD.

A § 1983 claim against a municipality may proceed in two ways: the plaintiff

may allege that an unconstitutional municipal policy or custom led to his injuries or

that his injuries were caused by a failure or inadequacy by the municipality that

reflects a deliberate or conscious choice. See Forrest v. Parry, 930 F.3d 93, 105 (3d

Cir. 2019) (citing Estate of Roman v. City of Newark, 914 F.3d 789, 798-99 (3d Cir.

2019)). While the parties brief both methods, (see Doc. 19, 4-7; Doc. 24, 6-7), the

2 “The Third Circuit has not squarely addressed whether, in such cases, the policy,

custom, or practice theory under Monell is a separate and distinct analysis from

state-created danger, or whether courts must conduct a layered analysis, by first

analyzing whether an individual state actor violated a plaintiff's due process rights

under the state-related danger theory and then determining the municipality's

liability for that violation under Monell.” MDB v. Punxsutawney Christian Sch.,

386 F. Supp. 3d 865, 587 (W.D. Pa. 2019) (citing Morrow, 719 F.3d at 179 &

n.21 (“ (“[W]e need not address whether . . . the School District may be held

liable as a municipal defendant.”)).

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Complaint indicates that Plaintiffs are proceeding on the latter. (See Doc. 1, Count I).

The failure or inadequacy avenue “arose in the failure-to-train context, but applies to

other failures and inadequacies by municipalities, including those related to

supervision . . . .” Forrest, 930 F.3d at 105. A plaintiff alleging that his injuries were

caused by a failure or inadequacy by the municipality must demonstrate “(1) municipal

policymakers know that employees will confront a particular situation, (2) the

situation involves a difficult choice or a history of employees mishandling, and (3) the

wrong choice by an employee will frequently cause deprivation of constitutional

rights.” Forrest, 930 F.3d at 106 (citing Estate of Roman, 914 F.3d at 798 and Carter

v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)). Of note, a failure-to-train claim

does not require a plaintiff to allege an unconstitutional policy. See Estate of Roman,

914 F.3d at 798. Thus, while a close relationship exists between policy-and-custom

claims and failure-or-inadequacy claims, “the avenues remain distinct: a plaintiff

alleging that a policy or custom led to his or her injuries must be referring to an

unconstitutional policy or custom, and a plaintiff alleging failure-to-supervise, train,

or discipline must show that said failure amounts to deliberate indifference to the

constitutional rights of those affected.” Forrest, 930 F.3d at 106. Additionally, a

failure-to-train claim against a municipality cannot succeed in the absence of an

underlying constitutional claim. See Kneipp v. Tedder, 95 F.3d 1199, 1212 n.26 (3d

Cir. 1996) (if no underlying constitutional violation, failure-to-train claim will not

stand).

Plaintiffs plead a plausible failure-to-train/failure-to-supervise claim against

NASD. With respect to the underlying constitutional claim, Plaintiffs clearly assert

a violation of J.B.’s substantive due process rights. Indeed, the facts as alleged by

Plaintiffs adequately state a claim for the use of excessive force by a public school

official in violation of the Fourteenth Amendment. See Gottlieb ex rel. Calabria, 272

F.3d at 172-174 (setting forth elements to analyze such a Fourteenth Amendment

claim); see also Tucker v. Sch. Dist. of Philadelphia, No. 19-889, 2019 WL 3802066,

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at *2 (E.D. Pa. Aug. 13, 2019) (analyzing student’s excessive force allegations against

special education teacher and school district as a substantive due process claim).

Next, Plaintiffs identify sufficient facts to proceed on an inadequate training

theory. First, Plaintiffs adequately allege that municipal policymakers had knowledge

that its employees would confront a particular situation, namely, J.B.’s specialized

needs arising from his medical diagnoses. In particular, Plaintiffs allege that: (1)

NASD completed an evaluation of J.B. to determine if he had special needs; (2) that

evaluation revealed he required full autistic support with related services; (3) J.B.

required specialized transportation; (4) Oiler was informed of difficulties involving

J.B.’s transportation, including deficiencies with respect to the handling of his

behaviors, as well as abusive action towards him; and (5) Sorber had knowledge of

abusive behavior towards J.B. in response to his behavior during transit. (See Doc. 1,

¶¶ 15-18, 20-21, 35). These allegations are sufficient to conclude at this stage in the

litigation that municipal policymakers, i.e., the Director of Transportation and the

Director of Special Education, were aware that NASD employees (or employees of its

contractors) would encounter difficult and tense situations during transportation

involving special needs students.

Second, Plaintiffs sufficiently plead that such circumstances entail a difficult

choice or a history of mishandling. Plaintiffs point to a prior incident with J.B. where

force was used against him during transit by an employee of a NASD transportation

contractor. (See Doc. 1, ¶ 20). The Complaint plausibly sets forth that NASD

employees responsible for the transportation and needs of special education students

would be presented with difficult situations.

Finally, as stated, the use of force against a student by a school official can

violate the Fourteenth Amendment if it shocks the conscience. In short, the

unwarranted use of force against a special needs student in the manner pled here meets

this standard. Specifically, the allegations in the Complaint and the inferences drawn

therefrom plausibly show conscience shocking behavior by NASD’s officials because

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they failed to ensure that transportation officials were adequately trained with respect

to the care and supervision required for handling behaviors of students with special

needs despite knowledge that such training was called for.

In sum, Plaintiffs allege in the Complaint that NASD made a conscious or

deliberate choice not to provide training to drivers and transportation aides in the

proper handling of the behaviors of autistic children. NASD was aware that these

employees would encounter tense and stressful situations transporting special needs

students, that such situations would involve difficult decisions, and wrong choices in

such circumstances could well result in constitutional violations. Restated, the

Complaint sufficiently states that the failure-to-train amounted to deliberate

indifference on the part of NASD. Plaintiffs may therefore proceed with their failure-

to-train claim against NASD.

b. Defendants McGovern, Sorber, and Oiler.

Plaintiffs also allege that McGovern, Sorber, and Oiler violated J.B.’s

substantive due process rights. Of course, Plaintiffs claim is not that these Defendants

personally used force against J.B. in violation of the Fourteenth Amendment. Instead,

the claim is that they either established and maintained a practice of not providing

transportation providers with proper training for the transportation of special needs

students or that they had knowledge of and acquiesced in the violations of J.B.’s

constitutional rights.

Individual liability can be imposed under § 1983 only if the state actor played

an “affirmative part” in the alleged misconduct and “cannot be predicated solely on

the operation of respondeat superior.” Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.

2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)); Sutton v.

Rasheed, 323 F.3d 236, 249-50 (3d Cir. 2003). The personal involvement of a

defendant in a § 1983 action may be shown “through allegations of personal direction

or of actual knowledge and acquiescence.” Argueta v. U.S. ICE, 643 F.3d 60, 72 (3d

Cir. 2011) (quoting Rode, 845 F.2d at 1207). Such allegations, however, must be

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made with appropriate particularity in that a complaint must allege the particulars of

“conduct, time, place, and persons responsible.” Evancho, 423 F.3d at 354; Rode, 845

F.2d at 1207-08. Alleging a mere hypothesis that an individual defendant had

personal knowledge or involvement in depriving the plaintiff of his rights is

insufficient to establish personal involvement. Rode, 845 F.2d at 1208. Moreover, a

defendant “cannot be held responsible for a constitutional violation which he or she

neither participated in nor approved.” C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198,

201-202 (3d Cir. 2000). Allegations that a supervisor “had constructive knowledge

of a subordinate's unconstitutional conduct simply because of his role as a supervisor”

do not suffice. Broadwater v. Fow, 945 F. Supp. 2d 574, 588 (M.D. Pa. 2013) (citing

C.H. ex rel. Z.H., 226 F.3d at 202). The Third Circuit has recognized that “there are

two theories of supervisory liability, one under which supervisors can be liable if they

established and maintained a policy, practice or custom which directly caused the

constitutional harm, and another under which they can be liable if they participated in

violating plaintiff's rights, directed others to violate them, or, as the persons in charge,

had knowledge of and acquiesced in their subordinates' violations.” Parkell v.

Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp.,

629 F.3d 121, 129 n.5 (3d Cir. 2010)) (internal quotations omitted); see also

Laurensau v. Romarowics, 528 F. App'x 136, 140 n.2 (3d Cir. 2013) (“A supervisor

can be held individually liable if his failure to properly train or supervise a subordinate

caused a deprivation of the plaintiffs constitutional rights. However, a plaintiff must

demonstrate that the supervisor's failure to train amounted to ‘deliberate indifference’

and that the failure to train was closely related to the plaintiff's injury.”). Accordingly,

a viable failure-to-train claim against a supervisory official requires an underlying

constitutional violation. See, e.g., Santiago, 629 F.3d at 130 (reasoning that a claim

for supervisory liability “necessarily includes as an element an actual violation at the

hands of subordinates”); see also Crawford v. Lappin, 446 F. App’x 413, 416 (3d Cir.

2011) (““[T]he absence of an underlying constitutional violation precludes any

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supervisory liability on a 'knowledge or acquiescence' or 'failure to train theory.’”).

Plaintiffs have adequately stated a claim against both Sorber and Oiler for the

alleged violation of J.B.’s substantive due process rights. Sorber, as Director of

Transportation, and Oiler, as Director of Special Education, are both alleged to have

been informed of physical abuse suffered by J.B. at the hands of his transportation

providers and aides, i.e., their subordinates. Yet, despite knowledge of this

wrongdoing, it is claimed that Sorber and Oiler did nothing, permitted the abuse to

continue, and failed to ensure that NASD’s transportation personnel were adequately

trained on dealing with autistic students. Further, Sorber and Oiler’s failure-to-train

their subordinates in dealing with the needs of autistic students in light of the

allegations presented here are sufficient to permit plausible findings of deliberate

indifference and a causal nexus between the failure-to-train and the constitutional

deprivation at issue. At this stage, Plaintiffs allegations are sufficient to proceed as

against Sorber and Oiler on this claim.3

3 In her motion to dismiss, Oiler contends that she is entitled to qualified immunity

on Plaintiffs’ § 1983 claims. (See Doc. 21, 7-10). “Qualified immunity shields

government officials from civil damages liability unless the official violated a

statutory or constitutional right that was clearly established at the time of the

challenged conduct.” Taylor v. Barkes, - - - U.S. - - -, 135 S. Ct. 2042, 2044, 192

L. Ed. 2d (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S. Ct.

2088, 182 L. Ed. 2d 985 (2012)). “In considering the applicability of qualified

immunity, courts engage in a two-pronged examination.” Spady v. Bethlehem

Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015). “First, a court must decide

‘whether the facts that a plaintiff has shown make out a violation of a

constitutional right.’ And second, the court must determine ‘whether the right at

issue was ‘clearly established’ at the time of defendant's alleged misconduct.’

Courts may begin their consideration with either prong.” Id. (alteration omitted)

(quoting Pearson v. Callahan, 555 U.S. 223, 232, 236, 129 S. Ct. 808, 172 L. Ed.

2d 565 (2009)). “Qualified immunity will be upheld on a 12(b)(6) motion only

when the immunity is established on the face of the complaint.” Leveto v. Lapina,

258 F.3d 156, 161 (3d Cir. 2001) (citation and quotation omitted). Oiler’s

qualified immunity argument is premised entirely on the first prong, i.e., that the

Complaint fails to allege any facts that she violated J.B.’s constitutional rights.

(See Doc. 21, 9). But, as stated in the text, Plaintiffs have stated a plausible

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The allegations against McGovern, however, are different. Unlike Sorber and

Oiler, the Complaint is devoid of allegations that McGovern established and

maintained a policy or custom or that he had knowledge of and acquiesced in his

subordinates’ violations of J.B.’s rights. More particularly, the Complaint does not

include any substantive factual averments involving McGovern. He is not claimed to

have been informed of the alleged abuse, nor is it alleged that he adopted a policy or

practice of refusing to provide training to transportation officials in the handling of

special needs students. The Fourteenth Amendment claim against McGovern, as

presently constructed, seeks to hold him responsible on a respondeat superior theory.

They cannot do so, so the failure-to-train claim against McGovern will be dismissed.

B. Rehabilitation Act Claims.

In Counts III and IV(a) of the Complaint, Plaintiffs assert that Defendants

violated J.B.’s rights under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.

As stated before, Plaintiffs do not seriously contest that the Rehabilitation Act claims

are not viable against individual Defendants. See A.W. v. Jersey City Pub. Schs., 486

F.3d 791, 804 (3d Cir. 2007) (“Suits may be brought pursuant to Section 504 against

recipients of federal financial assistance, but not against individuals.”). That leaves

the question of whether Plaintiffs have pled plausible Rehabilitation Act claims

against NASD.

Section 504 of the Rehabilitation Act bars federally funded entities from

discriminating on the basis of disability, providing in relevant part, as follows:

No otherwise qualified individual with a disability in the

United States . . . shall, solely by reason of her or his

disability, be excluded from the participation in, be denied

the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.

failure-to-train claim against Oiler. And because Oiler does not advance any

argument as to the clearly established prong of the qualified immunity analysis, I

do not consider that unbriefed issue here. If this issue is raised at a later stage in

this litigation, I will address it at that time.

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29 U.S.C. § 794(a). To establish a claim pursuant to Section 504, a plaintiff must

demonstrate that (1) he is “disabled” as defined by the Act; (2) he is “otherwise

qualified” to participate in school activities; (3) the school or board of education

receives federal financial assistance; and (4) he was excluded from participation in,

denied the benefits of, or subject to discrimination at the school. Ridgewood Bd. of

Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 253 (3d Cir. 1999) (citation omitted),

superseded by statute on other grounds. Where, like here, a plaintiff seeks

compensatory damages on a Section 504 claim, the plaintiff must also prove that the

discrimination or denial of benefits at issue was intentional, or at least that the

defendant exhibited deliberate indifference to the underlying discrimination. See

Shadie v. Hazleton Area Sch. Dist., 580 F. App’x 67, 70 (3d Cir. 2014). NASD argues

that Plaintiffs have failed to allege intentional discrimination, deliberate indifference,

and/or a denial of benefits. I disagree.

“The ‘intentional discrimination’ standard demands proof that, at a minimum,

the school district exhibited ‘deliberate indifference’ to the underlying act of

discrimination.” Shadie, 580 F. App’x at 70 (quoting S.H. ex rel. Durrell v. Lower

Merion Sch. Dist., 729 F.3d 248, 263 (3d Cir. 2013)). “To show deliberate

indifference, the plaintiff must establish ‘(1) knowledge that a federally protected right

is substantially likely to be violated . . . and (2) failure to act despite that knowledge.’”

Id. (quoting Lower Merion, 729 F.3d at 265). “Deliberate indifference ‘does not

require a showing of personal ill will or animosity toward the disabled person,’ but

‘must be a deliberate choice, rather than negligence or bureaucratic inaction.’” Id.

(quoting Lower Merion, 729 F.3d at 263).

The allegations in the Complaint satisfy this standard. Plaintiffs allege that J.B.

was subjected to inappropriate verbal and physical abuse stemming from a

transportation aide’s inability to properly accommodate his disability. Cf. Shadie, 580

F. App’x at 67. It is claimed that Sorber and Oiler were advised of issues relating to

the inability of NASD’s transportation personnel to deal with J.B.’s behaviors caused

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by his medical diagnoses during the 2015-2016 school year. Oiler was also informed

that Bobersky was suspected of abusing J.B. early in the 2016-2017 school year.

Nonetheless, despite this, NASD hired Bobersky to a full-time position two weeks

after the abuse was reported. Bobersky remained in her position as J.B.’s aide for

months, until another student reported the ongoing abuse being suffered by J.B., which

he ultimately captured on video. Yet, even after being informed of the content of the

video, Bobersky and Monroe were permitted by NASD to transport other special needs

students. These facts are sufficiently reflective of deliberate indifference on behalf of

NASD and its employees, so Plaintiffs’ Rehabilitation Act claim and the demand for

compensatory damages thereunder will not be dismissed.

C. Americans with Disabilities Act Claim.

Next, Plaintiffs contend that NASD violated Title II of the Americans with

Disabilities Act, 42 U.S.C. § 12131 et seq. Because Section 504 and ADA claims are

subject to the same analysis and thus may be addressed at the same time, for the above

reasons, Plaintiffs' ADA claim against NASD will not be dismissed. See Furgess v.

Pennsylvania Dep’t of Corr., 933 F.3d 285, 288 (3d Cir. 2019) (Title II and Section

504 claims are considered together because “the substantive standards for determining

liability are the same.”); Lower Merion, 729 F.3d at 260; Ridley Sch. Dist. v. M.R., 680

F.3d 260, 282-83 (3d Cir. 2012).

D. Assault and Battery Claims.

Count V of the Complaint asserts claims for assault and battery against, inter

alia, NASD. Those claims against NASD will be dismissed. The Pennsylvania

Political Subdivision Tort Claims Act provides that “no local agency shall be liable

for any damages on account of any injury to a person or property caused by any act of

the local agency or an employee thereof or any other person.” 42 Pa. C.S.A. § 8541;

see also Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (“local agencies such as

school districts are given broad tort immunity” under the Political Subdivision Tort

Claims Act). Bobersky’s alleged conduct does not fall within any of the exceptions

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to the statute.4 Accordingly, the assault and battery claims against NASD will be

dismissed with prejudice. See, e.g., C.T. by Smith v. Delaplaine Middle Sch., No. 17-

4463, 2018 WL 1072385, at *4 (E.D. Pa. Feb. 26, 2018); Pascocciello v. Interboro

Sch. Dist., No. 05-5039, 2006 WL 1284964, at *8 (E.D. Pa. May 8, 2006).

E. Intentional Infliction of Emotional Distress Claim.

Plaintiffs purport to assert an intentional infliction of emotional distress claim

against NASD in Count VI of the Complaint. But, just as with the assault and battery

claims, NASD has immunity from liability for an intentional infliction of emotional

distress claim under the Political Subdivision Tort Claims Act. See, e.g., Tucker v.

Sch. Dist. of Philadelphia, No. 19-889, 2019 WL 3802066, at *5 (E.D. Pa. Aug. 13,

2019); K.A. ex rel. J.A. v. Abington Heights Sch. Dist., 28 F. Supp. 3d 356, 375-76

(M.D. Pa. 2014). This claim against NASD will also be dismissed with prejudice.

F. Negligence Claim.

Count VIII of the Complaint asserts a negligence claim against NASD (as well

as Barchik, Bobersky, and Monroe). NASD argues that it is immune from the

negligence claim in the matter sub judice under the Political Subdivision Tort Claims

Act because the Complaint fails to include any facts which would render one of the

exceptions under 42 Pa. C.S.A. § 8542(b) applicable. I agree that none of these

exceptions fit in this case, so the negligence claim against NASD will also be

dismissed with prejudice. See, e.g., L.H. v. Pittston Area Sch. Dist., 130 F. Supp. 3d

918, 930 (M.D. Pa. 2015); M.U. v. Downingtown High Sch. East, 103 F. Supp. 3d 612,

629-630 (E.D. Pa. 2015).

G. Punitive Damages.

Defendants also seeks dismissal of Plaintiffs’ claim for punitive damages

4 The exceptions to immunity provided by statute are: (1) vehicle liability, (2) care,

custody or control of personal property, (3) real property, (4) trees, traffic controls

and street lighting, (5) utility service facilities, (6) streets, (7) sidewalks and (8)

care, custody or control of animals. 42 Pa. C.S.A. § 8542(b).

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against individual Defendants on the surviving § 1983 claims.

“[A] jury may be permitted to assess punitive damages in an action under §

1983 when the defendant's conduct is shown to be motivated by evil motive or intent,

or when it involves reckless or callous indifference to the federally protected rights of

others.” Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983).

Whether an award of punitive damages is warranted involves “a fact-intensive issue

inappropriate for resolution at the motion to dismiss stage, where no factual record has

yet been developed.” Miller v. Helm, No. 17-1590, 2017 WL 6405738, at *7 (M.D.

Pa. Dec. 15, 2017). Indeed, “this Court has consistently held that it is premature to

dismiss demands for punitive damages prior to discovery.” Campbell v. Balon, No.

16-779, 2017 WL 2880856, at *19 (M.D. Pa. July 6, 2017); Bobrick Washroom

Equip., Inc. v. Scranton Prods., Inc., No. 14-853, 2017 WL 2126320, at *11 n.15

(M.D. Pa. May 16, 2017).

The challenge to the demand for punitive damages fails. The allegations against

Sorber and Oiler regarding their alleged failure-to-train provides sufficient factual

matter at this stage in the litigation to support a plausible finding of reckless or callous

indifference to J.B.’s constitutional rights. Given this, Plaintiffs may proceed to

discovery with their request for punitive damages against Sorber and Oiler.5

H. Leave to Amend.

Third Circuit “precedent supports the notion that in civil rights cases district

courts must offer amendment - irrespective of whether it is requested - when

dismissing a case for failure to state a claim unless doing so would be inequitable or

futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251

(3d Cir. 2007); Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

5 Of course, punitive damages are not available against NASD under § 1983. See,

e.g., Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-267, 101 S. Ct. 2748, 69

L. Ed. 2d 616 (1981) (“a municipality is immune from punitive damages under 42

U.S.C. § 1983”).

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Amendment is futile “if the amended complaint would not survive a motion to

dismiss.” Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014).

Plaintiffs will be granted leave to amend. For one, it is possible that Plaintiffs

could present a failure-to-train claim against McGovern that would withstand a

12(b)(6) motion. Moreover, while not entirely clear, it appears that Plaintiffs intended

to file state law claims against Defendants Sorber, McGovern, and Oiler, but failed to

properly indicate as such in the Complaint. Thus, they will be given leave to amend

to the extent they wish to plead such causes of actions.6 Accordingly, Plaintiffs will

be given twenty-one (21) days to file an amended complaint.

IV. Conclusion

For the above stated reasons, the motions to dismiss filed by District Defendants

and Oiler will be granted in part and denied in part.

An appropriate order follows.

November 13, 2019 /s/ A. Richard Caputo

Date A. Richard Caputo

United States District Judge

6 This does not mean that had Plaintiffs included such claims in the Complaint that

they would have been able to withstand a motion to dismiss. I do not pass on that

issue at present.

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