Cuvo v. Pocono Mountain School District

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT CUVO and LISA :

CUVO, on behalf of the minor :

Child, A.C., :

Plaintiffs, : No. 3:18-cv-01210

:

v. : (Saporito, M.J.)

:

POCONO MOUNTAIN :

SCHOOL DISTRICT, et al., :

:

Defendants. :

MEMORANDUM

This is 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.

I. Statement of Facts

The 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).

Counts 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).

II. Legal Standards

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes

a defendant to move to dismiss for Afailure to state a claim upon which

relief is granted.@ Fed. R. Civ. P. 12(b)(6). AUnder 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 Aunsupported 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 Adocuments 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, 322

(2007).

III. Discussion

The 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.

The plaintiffs have brought this federal civil rights action under

42 U.S.C. § 1983. Section 1983 provides in pertinent part:

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.

A. State-Created Danger (Count I)

1. Applicable Law

In 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).

In 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 stated a claim under the state-created danger

exception:

(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. at 281.

2. Application

The defendants argue that the plaintiffs have alleged no new facts

in the second amended complaint to support a viable claim. (Doc. 30, at

3). The plaintiffs acknowledge that they have repleaded the same facts

as in the amended complaint. We incorporate by reference our analysis

in our Memorandum of March 29, 2019 (Doc. 25), regarding the claim for

relief under the theory of a state-created danger. (Id. at 7-16). Cuvo v.

Pocono Mountain Sch. Dist., No. 3:18-cv-01210, 2019 WL 1424524 at *3

(M.D. Pa. Mar. 29, 2019). However, our inquiry does not end there as we

previously dismissed this count on the application of qualified immunity

which we discuss below.

B. Right to Bodily Integrity (Count II)

In Count II of the second amended complaint, the plaintiffs allege

that Haines and Hollar violated A.C.’s right to bodily integrity under the

Fourteenth Amendment. In their brief in opposition, the plaintiffs do not

object to the dismissal of this count. (Doc. 33, at 3). For the reasons

expressed in our prior Memorandum and because the plaintiffs do not

object to the dismissal of this count, we will dismiss Count II as

duplicative of Count I.

C. Monell Claims (Count III)

The plaintiffs seek to hold the school district, Hantz, and Hollar

liable for the alleged unconstitutional conduct of Hantz and Hollar as

policymakers for the school district. The defendants seek the dismissal

of Count III as to Hantz and Hollar because a Monell claim is only

appropriate as to governmental entities not individuals. Further the

school district seeks dismissal of this claim because it asserts that the

plaintiffs did not allege a policy or custom of using football drills to train

wrestling team members nor a plausible claim on a failure to train

theory.

“On its face, § 1983 makes liable ‘every person’ who deprives

another of civil rights under color of state law.” Burns v. Reid, 500 U.S.

478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In

Monell v. Department of Social Services, 436 U.S. 658 (1978), the

Supreme Court of the United States established that municipalities and

other local governmental units are included among those “persons”

subject to liability under § 1983. Id. at 690. A school district is such a

municipality subject to liability as a “person” under § 1983. McGreevy v.

Stroup, 413 F.3d 359, 367-69 (3d Cir. 2005).

But “[u]nder Monell, a municipality cannot be subjected to liability

solely because injuries were inflicted by its agents or employees.” Jiminez

v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007).

Rather, a municipality can be liable under § 1983 only if the conduct

alleged to be unconstitutional either “implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers” or is “visited pursuant to

governmental ‘custom’ even though such a custom has not received

formal approval through the body’s official decision-making channels.”

Monell, 436 U.S. at 690–91. “[I]t is when execution of a government’s

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983.”

Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy,

attribute it to the [municipality] itself, and show a causal link between

execution of the policy and the injury suffered.” Losch v. Borough of

Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).

Alternatively, “[a] municipality may be held liable under § 1983 for

failure to train, monitor, or supervise, [but] only where the plaintiff can

‘identify a failure to provide specific training that has a causal nexus with

their injuries and must demonstrate that the absence of that specific

training can reasonably be said to reflect a deliberate indifference to

whether the alleged constitutional deprivations occurred.’” Watson v.

Philadelphia Hous. Auth., 629 F. Supp. 2d 481, 487 (E.D. Pa.

2009)(quoting Gilles v. Davis, 427 F.3d 197, 207 n.7 (3d Cir. 2005)); see

also Nawuoh v. Venice Ashby Cmty. Ctr., 802 F. Supp. 2d 633, 645 (E.D.

Pa. 2011) (“While municipal liability under § 1983 originally hinged on

affirmative policies, or customs, modern jurisprudence has extended it to

a [municipality]’s failure to train, supervise and discipline its officers.”).

The second amended complaint does not identify any affirmative

policy or custom adopted or promulgated by the school district itself.

Although it does allege, in cursory fashion, that the school district failed

to adequately train defendants Haines and Hollar, as well as other

faculty, in “safe practice procedures”─specifically, training that addresses

the use of “other sports activities for which students are untrained and

unprotected . . . i.e.: you cannot play tackle football at wrestling

practice”─they have failed to allege any facts from which a factfinder

might infer actual or constructive knowledge by the school district’s board

of directors of a previous pattern at similar constitutional violations, or of

the allegedly inadequate training, which is a prerequisite to a finding of

deliberate indifference by a municipality. See Connick v. Thompson, 563

U.S. 51, 62 (2011)(“A pattern of similar constitutional violations by

untrained employees is ‘ordinarily necessary’ to demonstrate deliberate

indifference for the purposes of failure to train . . . Without notice that a

course of training is different in a particular respect, decision makers can

hardly be said to have deliberately chosen a training program that will

cause violations of constitutional rights.”); Colburn v. Upper Darby Twp.,

838 F.2d 663, 672 (3d Cir. 1988); see also Oklahoma City v. Tuttle, 471

U.S. 808, 823-24 (1985) (“[A] single incident of unconstitutional activity is

not sufficient to impose liability under Monell, unless proof of the incident

includes proof that it was caused by existing, unconstitutional municipal

policy, which policy can be attributed to a municipal policymaker.”);

Brown v. City of Pittsburgh, 586 F.3d 263, 292-93 (3d Cir.

2009)(recognizing that where no explicit policy is identified, ‘“more proof

than the single incident will be necessary’ to establish a causal connection

between the incident and some municipal policy”).

The second amended complaint alleged that the defendants were

members of the Pennsylvania Interscholastic Athletic Association

(“PIAA”) and governed by it. (Doc. 27 ¶35). It is further asserted that

the instruction of Haines and Hollar for wrestling team members to play

football without protective equipment, without training, and on the

wrong surface “violated the Constitution, bylaws, rules, regulations,

policies, procedures, and/or guidelines implemented by the PIAA.” (Id.

¶36). Moreover, the plaintiffs further alleged that the district failed to

train Haines and Hollar in the PIAA Constitution, bylaws, rules,

regulations, policies, procedures, and guidelines despite the district’s

prior knowledge that as a member of the PIAA, it was required to provide

adequate training. (Id. ¶¶61-62). However, the new PIAA allegations

are broad averments which are devoid of facts that specifically state a

policy, custom, or practice regarding the proper usage of mats, indoor

practices, or the utilization of football drills as an alternative to wrestling

training. Thus, we are not persuaded that the allegations of the second

amended complaint are enough to change our opinion on the Monell

issue.

The second amended complaint appears to further suggest that the

school district should be held liable because A.C.’s injury could have been

prevented if the school district had implemented better policies, such as

a policy prohibiting sports practices from including “other unsafe,

unprotected sporting activities” for which the student-athletes are not

trained. But policies are not deficient simply because they are not the

best. See Serafin v. City of Johnstown, 53 Fed. App’x 211, 215 (3d Cir.

2002)(“The fact that the City’s policy was not the most effective policy

possible, however, does not, without more, create an unreasonable risk to

detainees’ safety or demonstrate the City’s indifference to such a risk,

and there is no ‘more’ here.”); see also Koreny v. Smith, Civil Action No.

17-371, 2018 WL 1141513, at *16 (W.D. Pa. Mar. 2, 2018)(“An assertion

that a constitutional injury could have been avoided with more or better

training is insufficient.”).

Accordingly, the plaintiffs’ § 1983 Monell claims will be dismissed

for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure.

D. Immunity

1. PSTCA

We incorporate by reference our prior Memorandum

addressing this issue of immunity as it relates to Count IV—Negligence

and Count V—Respondeat Superior pursuant to the Political Subdivision

Tort Claims Act, (“PSTCA”), 42 Pa. C.S.A. §§ 8541 et seq. Thus, we will

deny the motion as the plaintiffs have sufficiently alleged that the school

district failed to maintain the floor by utilizing floor mats unsuitable for

tackle football drills. The defendant is free to return to this issue after a

factual record is established.

2. Qualified Immunity

The defendants have asserted that they are entitled to qualified

immunity, arguing that directing students to practice a different sport

indoors as a method of practice is not a recognized constitutional right,

and an alleged improper coaching strategy is not a “clearly established”

act of misconduct.

The doctrine of qualified immunity shields government officials

from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a

reasonable person would have known. Pearson v. Callahan, 555 U.S.

223, 231 (2009) (internal quotation marks omitted). “Qualified immunity

balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to

shield officials from harassment, distraction, and liability when they

perform their duties reasonably.” Id.

A qualified immunity determination involves a two-pronged

inquiry: (1) whether a constitutional or federal right has been violated;

and (2) whether that right was “clearly established.” Saucier v. Katz, 533

U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236

(permitting federal courts to exercise discretion in deciding which of the

two Saucier prongs should be addressed first). “It is the defendants’

burden to establish that they are entitled to such immunity.” Beers-

Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001)(citing Stoneking

v. Bradford Area Sch. Dist., 822 F.2d 720, 726 (3d Cir. 1989)).

Because qualified immunity results in “immunity from suit rather

than a mere defense to liability,” determining whether officials are

entitled to qualified immunity should be determined “at the earliest

possible stage in the litigation.” Id. at 231-32. But, as the Third Circuit

has confirmed, “it is generally unwise to venture into a qualified

immunity analysis at the pleading stage as it is necessary to develop the

factual record in the vast majority of cases.” Newland v. Reehorst, 328

Fed. App’x 788, 791 n.3 (3d Cir. 2009)(per curiam). Thus, at the pleading

stage, “qualified immunity will be upheld on a 12(b)(6) motion only when

the immunity is established on the face of the complaint.” Thomas v.

Independence Twp., 463 F.3d 285, 291 (3d Cir. 2006)(quoting Leveto v.

Lapina, 258 F.3d 156, 161 (3d Cir. 2001)).

As discussed above, we find the allegations of the second amended

complaint sufficient to plausibly state a state-created danger claim at

this, the pleadings stage. But the defendants may nevertheless prevail

on this defense under the second prong of the Saucier analysis.

“The relevant, dispositive inquiry in determining whether a right is

clearly established is whether it would be clear to a reasonable [official]

that his conduct was unlawful in the situation he confronted.” Saucier,

533 U.S. at 202. “In determining whether a right has been clearly

established, the court must define the right allegedly violated at the

appropriate level of specificity.” Sharp, 669 F.3d at 159. “When reviewing

a qualified immunity defense, courts should examine their own and other

relevant precedents.” Williams v. Bitner, 285 F. Supp. 2d 593, 604 n.15

(M.D. Pa. 2003) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994)).

The claimed violation of A.C.’s constitutional rights occurred on

December 18, 2017. We previously ruled that the plaintiffs failed to

identify a controlling case or a robust consensus of cases that could be

said to have clearly established the unconstitutionality of the defendants’

conduct. See Plumhoff v. Rickard, 572 U.S. 765, 780 (2014)(holding that

defendants were entitled to qualified immunity because the plaintiff

failed to identify a controlling case or a robust consensus of cases that

could be said to have clearly established the unconstitutionality of

defendants’ conduct); Lane v. Fraules, 573 U.S. 228, 246 (2014)(holding

that because the constitutional question at issue “was not ‘beyond

debate”’ when the defendant acted, he was entitled to qualified

immunity). Indeed, our own review of prior precedent reveals no cases

where a state-created danger was established after a student-athlete was

required to participate in tackle-football drills, or other obviously violent

contact drills, without protective equipment or on a gymnasium floor

covered with wrestling mats, which is the level of specificity that both

controlling case law and a robust consensus of cases would appear to

require us to apply in this analysis. See Mann v. Palmerton Area Sch.

Dist., 872 F.3d 165, 17274 (3d cir. 2017)(“[I]n November of 2011 it was

not so plainly obvious that requiring a student-athlete, fully clothed in

protective gear, to continue to participate in practice after sustaining a

violent hit and exhibiting concussion symptoms implicated the student

athlete’s constitutional rights.”); Spady v. Bethlehem Area Sch. Dist., 800

F.3d 633, 640 (3d Cir. 2015)(“The case law simply did not inform a

reasonable gym teacher that the failure to assess a student who briefly

goes under water for the possibility of dry drowning violated that

student’s constitutional right to bodily integrity free from unwarranted

intrusions by the state.”); Hinterberger v. Iroquois Sch. Dist., 548 Fed.

App’x 50, 54 (3d Cir. 2013)(“it was not ‘beyond debate’ as of March 2004

that [a parent-volunteer coach]’s decision to introduce a new

cheerleading stunt following a delay of several months, through the

instruction of an experienced cheerleader, with the use of multiple

spotters, but without any matting, violated [the student-athlete]’s

substantive due process rights.”); see also Mann, 872 F.3d at 174 (“The

touchstone of qualified immunity analysis is whether there was

‘sufficient precedent at the time of action, factually similar to the

plaintiff’s allegations, to put [the] defendant on notice that his or her

conduct is constitutionally prohibited.”’)(emphasis added)(brackets in

original); Spady, 800 F.3d at 640 n.7 (collecting cases); Dorley v. S.

Fayette Twp. Sch. Dist., Civil Action No. 2:15-cv-00214, 2016 WL

3102227, at *6 (W.D. Pa. June 1, 2016)(characterizing Spady as “a game

changer in the school activities/state created danger context” and

distinguishing colorable constitutional violations involving “conduct that

was both egregious and intentionally and purposefully focused on

causing physical harm to a student” from cases involving “(as pled)

grossly negligent or reckless conduct which created a real and

appreciable rise of serious harm, but lacked an intent-to-injure

component”).

Nevertheless, the plaintiffs now argue that Hall v. Martin, Civ.

Action No. 17-523, 2017 WL 3298316 (W.D. Pa. 2017), is controlling as it

shows that the right at issue is clearly established and provided a fair

warning to the defendants. (Doc. 33, at 6). In Hall, the plaintiff, a high

school student, was instructed by the gym teacher, Martin, to play floor

hockey “like regular hockey” as a regular gym activity. The students

were provided with floor hockey sticks, goalie nets, and a hockey net.

They were not provided with eye or facial protection. During the game,

Hall played goalie and was hit in the left eye by the floor hockey puck

causing him to be permanently legally blind. Unlike the facts of our case,

in Hall, the gym teacher was aware from past incidents that students

who played goalie were injured after being hit by a floor hockey puck.

Some of those incidents were reported to the school nurse who then

notified the school district about the injuries. Under those facts, the court

found that the plaintiff pled sufficient facts to state a viable § 1983 claim

against the gym teacher, thereby defeating a Rule 12(b)(6) motion to

dismiss. The court did not address the application of qualified immunity

as the motion to dismiss did not raise it.

Here, the plaintiffs define the constitutional right as prohibiting

students from engaging in dangerous sports without protective

equipment where it is foreseeable that an injury will occur. (Id. at 7). In

response to the defendants’ position that Hall is distinguishable from the

facts of this case because in Hall there was an awareness of prior injuries,

the plaintiffs contend that the issue of prior injuries establishes the

foreseeability element to the state-created danger theory. Further, the

plaintiffs point out that we previously ruled that the foreseeability

element was met in the first amended complaint without an allegation of

prior injuries. (Id.). In our discussion of the foreseeability element of the

state-created danger theory in our previous ruling, we cited Third Circuit

precedent that foreseeability is adequately pled in three situations

where: (1) the state actor’s awareness rises to the level of actual

knowledge; (2) the state actor is aware of risk that is sufficiently concrete

to put the actor on notice, and (3) the state actor would be informed of the

foreseeability of harm by ordinary common sense and experience. Cuvo

v. Pocono Mountain Sch. Dist., No. 3:18-cv-01210, 2019 WL 1424524 at

*3 (M.D. Pa. Mar. 29, 2019)(citing Phillips v. Cty. of Allegheny, 515 F.3d

224, 238 (3d Cir. 2008), and Kniepp v. Tedder, 95 F.3d 1199, 1201 (3d Cir.

1996)).

In the second amended complaint, the plaintiffs alleged the

following:

25. Defendants Haines and Hollar engaged in

and allowed this activity (sic) continue for

approximately twenty minutes, all the while

watching students get tackled violently to the

ground in ways such that it was obvious that

injury would occur if the activity was permitted to

continue.

* * * *

39. Haines and Hollar knew or should have

known of this due to their level of experience in

teaching, coaching, and or education.

Under these circumstances, based on the facts alleged in the second

amended complaint, we find that at the pleading stage it is premature

determine whether the individual defendants are entitled to qualified

immunity with respect to the plaintiffs’ § 1983 state-created damages

claim. We further find that it is necessary to develop a factual record on

this issue.

F. Punitive Damages

The second amended complaint seeks an award of punitive

damages from defendants Haines and Hollar. It is well-established that

“a municipality is immune from punitive damages under 42 U.S.C.

§ 1983.” City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981);

see also Strickland v. Mahoning Twp., 647 F. Supp. 2d 422, 428 (M.D. Pa.

2009) (dismissing punitive damage claims against individual official-

capacity defendants). Dismissal of the plaintiffs’ punitive damages claims

against Haines and Hollar in their official capacities is appropriate. See

M.S. ex rel. Hall v. Susquehanna Twp. Sch. Dist., 43 F. Supp. 3d 412, 430

(M.D. Pa. 2014); Cooper ex rel. Transp. Workers Union Local 234 v. Se.

Pa. Transp. Auth., 474 F. Supp. 2d 720, 721 n.2 (E.D. Pa. 2007). A review

of the amended complaint reflects that only Hollar was sued in his official

and individual capacities. (Doc. 4 ¶¶ 11-12). Therefore, the motion is

granted as to Haines, and as to Hollar only in his official capacity. The

motion is denied as to Hollar in his personal capacity.1

Accordingly, the plaintiffs’ claims for punitive damages against

Haines and against Hollar in his official capacity shall be dismissed with

prejudice, pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure.

1 In their brief in opposition, the plaintiffs do not object to the dismissal

of the claim for punitive damages consistent with our prior ruling. (Doc.

33, at 3-4).

An appropriate order follows.

s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, Jr.

United States Magistrate Judge

Dated: December 23, 2019