# Humphries v. Barber

> District Court, M.D. Pennsylvania · October 2, 2020

URL: https://www.frixlaw.com/law-library/cases/10409247

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 2, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ISAIAH HUMPHRIES, No. 4:20-CV-00064

Plaintiff, (Judge Brann)

v.

THE PENNSYLVANIA STATE
UNIVERSITY; JAMES FRANKLIN;
and DAMION BARBER,

Defendants.

MEMORANDUM OPINION

OCTOBER 2, 2020
I. BACKGROUND
On January 13, 2020, Plaintiff, Isaiah Humphries, (hereinafter “Plaintiff”),
filed a 11-count complaint against The Pennsylvania State University (“Penn
State”), James Franklin (“Franklin,” and together with Penn State, the “University
Defendants”), and Damion Barber (“Barber,” and together with the University
Defendants, the “Defendants”). Although this Court has not had the opportunity to
issue a ruling on the merits of this case, it now considers Plaintiff’s second
amended complaint (the “SAC”).
On July 7, 2020, all Defendants filed motions to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim.
The motion is now ripe for disposition; for the reasons that follow, is denied
in part and granted in part. However, Plaintiff will be provided leave to amend the

complaint.
II. DISCUSSION
A. Motion to Dismiss Standard
Under Federal Rule of Civil Procedure 12(b)(6), the Court dismisses a

complaint, in whole or in part, if the plaintiff has failed to “state a claim upon
which relief can be granted.” A motion to dismiss “tests the legal sufficiency of a
pleading”1 and “streamlines litigation by dispensing with needless discovery and

factfinding.”2 “Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a
dispositive issue of law.”3 This is true of any claim, “without regard to whether it is
based on an outlandish legal theory or on a close but ultimately unavailing one.”4
Following the Roberts Court’s “civil procedure revival,”5 the landmark

decisions of Bell Atlantic Corporation v. Twombly6 and Ashcroft v. Iqbal7
tightened the standard that district courts must apply to 12(b)(6) motions.8 These

1 Richardson v. Bledsoe, 829 F.3d 273, 289 n.13 (3d Cir. 2016) (Smith, C.J.) (citing Szabo v.
Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, J.).
2 Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).
3 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
4 Neitzke, 490 U.S. at 327.
5 Howard M. Wasserman, THE ROBERTS COURT AND THE CIVIL PROCEDURE REVIVAL, 31 Rev.
Litig. 313, 316, 319-20 (2012).
6 550 U.S. 544 (2007).
7 556 U.S. 662, 678 (2009).
8 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957))
cases “retired” the lenient “no-set-of-facts test” set forth in Conley v. Gibson and
replaced it with a more exacting “plausibility” standard.9

Accordingly, after Twombly and Iqbal, “[t]o 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.’”10 “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”11 “Although the
plausibility standard does not impose a probability requirement, it does require a
pleading to show more than a sheer possibility that a defendant has acted

unlawfully.”12 Moreover, “[a]sking for plausible grounds . . . calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of
[wrongdoing].”13

The plausibility determination is “a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”14 No matter
the context, however, “[w]here a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line between possibility and

9 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that
Twombly retired the Conley no-set-of-facts test”).
10 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
11 Iqbal, 556 U.S. at 678.
12 Connelly v. Lane Const. Corp., 809 F.3d 780 (3d Cir. 2016) (Jordan, J.) (internal quotations
and citations omitted).
13 Twombly, 550 U.S. at 556.
plausibility of entitlement to relief.’”15
When disposing of a motion to dismiss, the Court “accept[s] as true all

factual allegations in the complaint and draw[s] all inferences from the facts
alleged in the light most favorable to [the plaintiff].”16 However, “the tenet that a
court must accept as true all of the allegations contained in the complaint is
inapplicable to legal conclusions.”17 “Threadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.”18
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court
reviewing the sufficiency of a complaint must take three steps. First, it
must tak[e] note of the elements [the] plaintiff must plead to state a
claim. Second, it should identify allegations that, because they are no
more than conclusions, are not entitled to the assumption of truth.
Finally, [w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly
give rise to an entitlement to relief.19
B. Facts Alleged in the SAC
The facts alleged in the SAC, which I must accept as true for the purposes of
this motion, are as follows.

15 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).
16 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).
17 Iqbal, 556 U.S. at 678 (internal citations omitted); see also Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.) (“After Iqbal, it is clear that conclusory or ‘bare-
bones’ allegations will no longer survive a motion to dismiss.”).
18 Iqbal, 556 U.S. at 678.
Plaintiff was a college student attending Penn State.20 He played football for
Penn State and its head coach, James Franklin, after accepting an athletic

scholarship.21 Once he arrived on campus, Plaintiff began participating in
practices and other team activities.22 Unfortunately, Plaintiff alleges that his time
at Penn State was marred by a campaign conducted by other team members
(including Damion Barber) to harass and haze other players, including Plaintiff.23

Plaintiff alleges that this campaign “served as a form of initiation into the Penn
State football program.”24 Throughout his time at Penn State, Plaintiff alleges that
he (and other teammates) were subjected to various forms of hazing and

harassment.
For example, according to Plaintiff, Barber and other players would say to
other teammates, such as Plaintiff: “I am going to Sandusky you.”25 Barber and

other players would wrestle other teammates, such as Plaintiff, to the ground and
simulate a “humping action” while on top of the other teammates.26 According to
Plaintiff, Barber and other players would wrestle other teammates, such as
Plaintiff, to the ground, while one of them would “place his genitals on the face of

20 Doc. 40 at ¶ 7.
21 Id. at ¶¶ 63; 10; 72-76.
22 Id. at ¶ 78.
23 Id. at ¶ 82.
24 Id. at ¶ 83.
25 Id. at ¶ 86.
the other teammates.”27 Plaintiff alleges that other acts of harassment and hazing
in this vein were performed throughout his time at Penn State.28 Plaintiff claims

that this hazing endangered his “mental and physical health” and therefore, he
withdrew from Penn State in December 2018 and transferred to the University of
California.29

Plaintiff alleges that before transferring, however, he reported the
harassment and hazing to members of the Penn State football team coaching
staff.30 He further alleges that members of the coaching staff personally observed
harassment and hazing in the locker room.31 Despite these and other reports of

ongoing misconduct, “no substantive action was taken by defendant James
Franklin or other members of the coaching staff to prevent it.”32
Instead, Plaintiff alleges, the coaching staff retaliated against Plaintiff for

reporting the harassment and hazing by “overly and unfairly” scrutinizing his
athletic performance.33 The coaches allegedly forced Plaintiff to participate in
drills designed for him to fail, and then used his failure to justify not giving him
playing time.34 The coaches also spoke poorly of Plaintiff to other college coaches

27 Id. at ¶ 91.
28 Id. at ¶¶ 83-96.
29 Id. at ¶¶ 97-100.
30 Id. at ¶ 103.
31 Id. at ¶ 102.
32 Id. at ¶¶ 105-106.
33 Id. at ¶ 108.
once Plaintiff made his decision to leave Penn State and transfer to a different
college.35

The SAC alleges 11 counts against the Defendants. Plaintiff alleges that:
Penn State violated Title IX of the Education Amendments of 1972 (Count 1); all
three Defendants were per se negligent, in violation of Pennsylvania anti-hazing

statutes (Counts 2-4); all three Defendants are liable for negligence under
Pennsylvania law (Counts 5-7); Barber is liable for assault and battery under
Pennsylvania law (Count 8); all three Defendants are liable for negligent infliction
of emotional distress under Pennsylvania law (Count 9); Barber is liable for

intentional infliction of emotional distress and civil conspiracy under Pennsylvania
law (Counts 10-11).
C. Analysis
1. Title IX Claim – Count 1

a. Legal Standard
Title IX states in part that “[n]o person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity receiving

Federal financial assistance.”36 The Supreme Court has recognized that Title IX

35 Id. at ¶¶ 112-14.
permits claims of a hostile educational environment based on student-on-student
harassment.37 To succeed under this theory, a plaintiff must show that:

(1) the defendant received federal funds; (2) sexual harassment
occurred; (3) the harassment took place under circumstances wherein
the funding recipient exercised substantial control over both the
harasser and the context in which the harassment occurred; (4) the
funding recipient had actual knowledge of the harassment; (5) the
funding recipient was deliberately indifferent to the harassment; and
(6) the harassment was so severe, pervasive, and objectively offensive
that it could be said to have deprived the victims of access to the
educational opportunities or benefits provided by the school.38

Penn State does not contest items (1) or (3) but argues that Plaintiff has not alleged
facts sufficient to survive a motion to dismiss as to the other prongs.39
b. Analysis
Plaintiff must first show that sexual harassment occurred – in other words,
that he was harassed because of his sex. Penn State argues that Plaintiff does not
plead any recognized theory of sexual harassment. Instead, Penn State claims that
Plaintiff explicitly and exclusively pleads that any harassment that occurred was
wholly unrelated to Plaintiff’s sex. This Court agrees.
Plaintiff alleges that the alleged “campaign to harass and haze other
members of the Penn State football team, such as the plaintiff . . . served as form of
initiation into the Penn State football program.”40 At no point does Plaintiff ever

37 Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 643; 650 (1999).
38 Dawn L. v. Greater Johnstown School Dist., 586 F.Supp.2d 332 (citing Davis, 526 U.S. at
650-52 (1999)).
39 Doc. 42 at 32-33.
allege that he was harassed because of his sex. Instead, he specifically notes that
this initiation was conducted predominantly by teammates “whom the plaintiff

viewed as upper classmen or in leadership positions.”41 While the actions taken by
those teammates, if true, are sexual in nature, Plaintiff has not alleged that he was
subject to those actions because of sex.

The Court rejects Plaintiff’s attempt to argue – for the first time – in
opposition to the University Defendants’ motion to dismiss, that he “was targeted .
. . because his harassers sought to punish him for perceived weakness and his
failing to live up to the expectations of stereotypical toughness and masculinity.”42

This new argument is both improperly raised in briefing and lacking in support
from the pleading. Nowhere in the SAC does Plaintiff allege that he failed to
conform to any male stereotypes, or that any of the alleged harassers even thought

that Plaintiff failed to do so. Again, Plaintiff instead alleges that the treatment he
faced was a form of initiation conducted by some of the more senior leaders of the
team. Contrary to his assertion, Plaintiff is not entitled to an “inference” that he
was targeted for any gender-based stereotyping, because his own pleading says

otherwise.43 While gender-based stereotyping can establish discrimination under
Title IX, Plaintiff never pled this theory.

41 Id. at ¶ 80.
42 Doc. 50-1 at 14.
Because Plaintiff does not allege that he was harassed because of sex, his
claim under Title IX must fail. Plaintiff’s retaliation claim under Title IX is also

dismissed. The SAC does not plead facts sufficient for this Court to conclude that
Penn State retaliated against him because he reported sex discrimination; indeed,
the SAC is unclear on what exactly Plaintiff told Penn State about the harassment

and hazing his was allegedly subject to. Penn State’s motion to dismiss Count 1 is
granted.
2. Negligence Per Se – Counts 2-4
a. Legal Standard

Counts 2-4 allege that Penn State (Count 2), James Franklin (Count 3), and
Damion Barber (Count 4) are each liable under a theory of negligence per se,
applying two different Pennsylvania antihazing statutes. In the first instance, the
Court agrees with Defendants that Plaintiff has not helped matters by failing to

clearly delineate a timeline of events. The relevant statute in determining whether
Defendants owed Plaintiff a duty is the one that was in effect when the alleged
hazing took place. However, because Plaintiff provides a blanket statement that he

was harassed and hazed from January 2018 to December 2018, the Court is forced
to examine his potential claim under both the former Pennsylvania antihazing law
(24 P.S. § 5351-54) and the current Timothy J. Piazza Antihazing Law (the “Piazza
Antihazing Law”) (18 Pa.C.S.A. § 2801, et seq.).44 Accordingly, any alleged

hazing that took place before November 18, 2018 is evaluated under the old
antihazing statute, while any alleged hazing occurring after that date falls under the

Piazza Antihazing Law.45 Defendants suggest that because the SAC is silent
regarding the exact dates on which the alleged incidents occurred, that the Court
should presume that only the old antihazing statute applies. Defendants are, in

effect, asking the Court to read the complaint in the light most favorable to them.
The Court declines to do so, and instead considers both statutes to determine
whether Plaintiff has stated a claim upon which relief may be granted.
A plaintiff may satisfy the duty and breach elements of a negligence claim

by proving that a defendant violated a statute “designed to prevent a public
harm.”46 In order to succeed on this claim, there are four requirements:
(1) The purpose of the statute must be, at least in part, to protect the
interest of a group of individuals, as opposed to the public generally;
(2) The statute or regulation must clearly apply to the conduct of the
defendant;
(3) The defendant must violate the statute or regulation;
(4) The violation of the statute or regulation must be proximate cause
of the plaintiff’s injuries.47

45 The Court notes that although the former antihazing law was repealed and replaced by the
Piazza Antihazing Law, violations of the former antihazing law are still enforceable under
the Piazza Antihazing Law.
46 Schemberg v. Smicherko, 85 A.3d 1071, 1074 (Pa. Super. Ct. 2014).
If Plaintiff can satisfy these four elements, he is entitled to an evidentiary
presumption that Defendants’ violations of the pertinent statute(s) constitute

a breach of duty.48
b. Analysis
1. The Pennsylvania Antihazing Law
Until November 19, 2018, Pennsylvania law defined hazing as:

Any action or situation which recklessly or intentionally endangers
the mental or physical health or safety of a person . . . for the purpose
of initiation or admission into or affiliation with, or as a condition for
continued membership in, any organization. The term shall include,
but not be limited to, any brutality of a physical nature . . . any activity
which would subject the individual to extreme mental stress . . .
forced conduct which could result in extreme embarrassment, or any
other forced activity which could adversely affect the mental health or
dignity of the individual . . . For purposes of this definition, any
activity as described in this definition upon which the initiation or
admission into or affiliation with or continued membership in an
organization is directly or indirectly conditioned shall be presumed to
be “forced” activity, the willingness of an individual to participate in
such activity notwithstanding.49

Furthermore, the law stated that “[a]ny person who causes or participates in hazing
commits a misdemeanor of the third degree.”50
Plaintiff’s claim under the old antihazing law fails as to Penn State and
Franklin because, simply put, he does not allege that Penn State caused or
participated in any hazing. Instead, he specifically alleges that four of his

48 See Daniel Boone Area Sch. Dist. v. Lehman Bros., 187 F.Supp.2d 400, 407 (W.D. Pa. 2002).
49 24 P.S. § 5352.
teammates harassed and hazed him. Plaintiff attempts to save this claim by
arguing that the Penn State football team is an “‘organization’ as defined by both

statutes,” and that therefore, liability attaches.51 Plaintiff’s assertion is
demonstrably incorrect; the old antihazing statute does not define the term
“organization.” Even if it did, Plaintiff offers no explanation or legal support for

the notion that Penn State or Franklin are therefore liable under this statute – nor
could Plaintiff, because again, he never alleges that Penn State or Franklin caused
or participated in any hazing (or that either “authorized” such hazing, an argument
Plaintiff raises for the first time in briefing).52 Accordingly, his claim under the old

antihazing law falters.
On the other hand, Plaintiff’s claim as to Barber survives. Plaintiff has
sufficiently alleged that Barber, along with other team members, subjected Plaintiff
to acts that fall under the statute’s definition of hazing.53 Plaintiff additionally

pleads sufficient facts for this Court to accept that those acts may have been done
“for the purpose of initiation or admission into or affiliation with, or as a condition
for continued membership”54 (whether “directly or indirectly”55) on the football

team. Whether discovery will bear this theory out remains to be seen, but Plaintiff
has pled enough to survive Barber’s motion to dismiss.

51 Doc. 50-1 at 32.
52 Doc. 50-1 at 33.
53 See Doc. 40 ¶¶ 77-100.
54 24 P.S. § 5352.
2. The Timothy J. Piazza Antihazing Law
As of November 18, 2018, Pennsylvania law states (in pertinent part) that a

person commits the offense of hazing if that person:
[I]ntentionally, knowingly, or recklessly, for the purpose of initiating,
admitting or affiliating a minor or student into or with an organization,
or for the purpose of continuing or enhancing a minor or student’s
membership or status in an organization, causes, coerces or forces a
minor or student to do any of the following . . . Endure brutality of a
physical nature . . . Endure brutality of a mental nature . . . [or]
[e]ndure brutality of a sexual nature . . .56
Similarly, under the new antihazing statute, hazing is a third degree
misdemeanor.57 The Piazza Antihazing Law also allows for findings that an
organization or institution has violated the law if it “intentionally, knowingly, or
recklessly promotes or facilitates a violation of section 2802.”58 Plaintiff again
alleges that Penn State, Franklin, and Barber all violated Piazza Antihazing Law.
Here, Plaintiff’s claim against Penn State survives the motion to dismiss.
Plaintiff has pleaded sufficient facts about Penn State’s knowledge of the alleged
incidents that, if proven, could support a theory that Penn State “facilitated” the
hazing in violation of 18 Pa. C.S. § 2805’s prohibition regarding institutional
hazing. The Court finds that at this stage, Plaintiff has done enough to withstand

the motion to dismiss as to Penn State.

56 18 Pa. C.S. § 2802.
57 Id.
Plaintiff fares worse with his claim as to Franklin. James Franklin is an
individual, and therefore cannot be held liable under the “organizational” or

“institutional” hazing provisions of the Piazza Antihazing Law. He can only be
found liable if he violated § 2802, as defined above. Plaintiff makes no allegations
that Franklin “cause[d], coerce[d] or force[d]” Plaintiff to do anything. While

Plaintiff attempts, in briefing, to argue that Franklin “created a situation” that
facilitated the alleged hazing, the law only prohibits facilitation by organizations
and institutions, not individuals. Plaintiff cannot assert a negligence per se claim
against Franklin under the Piazza Antihazing Law.

Plaintiff’s claim against Barber, however, survives for the same reasons as
his claims under the old antihazing law. Plaintiff has pleaded facts that, if true,
could lead to a finding by a jury that Barber hazed Plaintiff, committing those acts

“for the purpose of initiating, admitting, or affiliating . . . with an organization, or
for the purpose of continuing or enhancing . . . membership or status in an
organization.”59
c. Summary of Findings

Because of the interplay between the various statutes, the Court believes it is
helpful to provide a short summary of the holdings as to the various defendants.
First, Plaintiff has stated a claim for negligence per se against Penn State under the

Piazza Antihazing Law, but not under the former antihazing statute. Second,
Plaintiff fails to state a claim for negligence per se against Franklin under either

statute. Third, Plaintiff has stated a claim for negligence per se against Barber
under both statutes.
Therefore, Penn State’s motion to dismiss Count 2 is denied, but the Court

limits the scope of the claim. Plaintiff can pursue a claim that Penn State violated
the Piazza Antihazing Law (which was enacted on November 18, 2018), but not
that it violated the previous antihazing statute. Because the Piazza Antihazing Law
does not apply retroactively, Plaintiff may only attempt to prove violations of that

statute as of the day of enactment.
James Franklin’s motion to dismiss Count 3 is granted.
Damion Barber’s motion to dismiss Count 4 is denied. Any alleged

incidents of hazing that took place before November 18, 2018, will be evaluated
under the former antihazing law. Any alleged incidents of hazing that took place
on or after November 18, 2018, will be evaluated under the Piazza Antihazing
Law.

3. Common Law Negligence – Counts 5-7
a. Legal Standard
Next, Plaintiff asserts three counts of negligence – one against each
Defendant. The four elements of a negligence claim under Pennsylvania law are as

follows: “a duty to conform to a certain standard for the protection of others
against unreasonable risks; the defendant’s failure to conform to that standard; a
causal connection between the conduct and the resulting injury; and actual loss or

damage to the plaintiff.”60
The “threshold question” for this Court is whether any of the Defendants
owed Plaintiff a duty of care.61 That is a question of law that this Court can resolve
at this stage.62 Plaintiff asserts a variety of theories under which, he argues, this

Court can find that Defendants owed him a duty of care.
b. Analysis
1. The University Defendants

First, Plaintiff contends that Penn State and Franklin owed him a statutory
duty of care.63 This argument is effectively a reprise of his negligence per se
claim, discussed above. This Court has found that Plaintiff has asserted a viable
negligence per se claim as to Penn State under the Piazza Antihazing Law.

Because that ruling only establishes a duty for any alleged hazing that occurred
after November 18, 2018 (the day the Piazza Antihazing Law was enacted), the
Court considers whether there are other avenues by which Plaintiff can establish a

duty of care for a broader claim. The Court also notes that it has already
determined that Plaintiff cannot sustain a negligence claim against Franklin based

60 Brewington for Brewington v. City of Philadelphia, 199 A.3d 348 (Pa. 2018).
61 Perez v. Great Wolf Lodge of the Poconos LLC, 200 F.Supp.3d 471, 478 (M.D. Pa. 2016).
62 Id.
on either antihazing law, and similarly considers other theories by the Plaintiff.
Likewise, the Court reiterates its previous ruling that Plaintiff has stated a claim

based on negligence per se as to Barber. Therefore, Plaintiff has established, for
the purposes of this negligence claim, that he is entitled to a presumption of duty.
Plaintiff claims that Title IX imposes a statutory duty on Penn State and

Franklin. The Court notes here that it has already told Plaintiff that he could not
add a negligence per se claim “premised on a defendant’s Title IX violations.”64
Plaintiff’s attempt to perform an end-run around this Court’s previous ruling is
poorly-received, and it is rejected. As I told Plaintiff in June of this year, Title IX

is not the answer to his negligence claim. Title IX is a “general nondiscrimination
mandate” and “does not establish any statutory standard that may substitute for the
general common law standard.”65 Therefore, “[Plaintiff’s] supposed premise – that

a violation of Title IX’s standards constitutes a violation of a duty for negligence
purposes – is misplaced.”66 Accordingly, with the exception of the limited window
for which Plaintiff has successfully stated a theory of negligence per se against
Penn State, his argument for a duty premised on statute is rejected.

Second, Plaintiff argues that Penn State and Franklin assumed a duty of care
as to Plaintiff. He alleges that Penn State’s antihazing policy, created pursuant to

64 Doc. 38 at 3-4.
65 Williams v. Pennsylvania State University, 2020 WL 5291985 (M.D. Pa. Sept. 4, 2020)
(quoting Ross v. Univ. of Tulsa, 2015 WL 4064754, at *3 (N.D. Okla. July 2, 2015)).
the old antihazing law, as well as the school’s Code of Student Conduct and its
Administrative Policies, impose an assumed duty of care on Penn State and

Franklin.67 Plaintiff cites no authority for these propositions, and the Court is not
persuaded. Instead, previous courts have found that simply enacting policies does
not create new duties for entities.68

Plaintiff’s third theory for imposing a duty of care on Penn State and
Franklin stems from his athletic scholarship. Plaintiff asserts that this created a
contractual relationship between Plaintiff, Penn State, and Franklin. Again,
Plaintiff offers no support for this argument, and the Court does not agree that this

imposes a duty under tort law.
Finally, Plaintiff argues that “a special relationship existed between [Penn
State, Franklin,] and the plaintiff in the form of a college athletic coach and

student-athlete, which imposed an implied duty of care upon [Penn State and
Franklin] to take reasonable measures to protect the plaintiff from suffering
student-on-student discrimination, harassment, and hazing,” and to “protect the
plaintiff’s physical and emotional well-being.”69 The parties appear to agree that

generally, there is no special relationship between colleges and their students.70

67 See Doc. 50-1 at 39-40.
68 See Fitzpatrick v. Universal Tech. Inst., Inc., 2009 WL 2476639 (E.D. Pa. Aug. 13, 2009);
see also Millard v. Osborne, 611 A.2d 715 (Pa. Super. 1992).
69 Doc. 40 ¶¶ 189-90; 197-98.
70 See, e.g., James v. Duquesne University, 936 F.Supp.2d 618, 646 (W.D. Pa. 2013) (citing
Plaintiff points to two cases, which both found that a college or university owed its
student-athletes a duty of care, requiring the institution to have qualified medical

personnel present at intercollegiate athletic events.71 Plaintiff would have this
Court broaden the duty of care colleges owe to their student-athletes. The
Supreme Court of Pennsylvania’s discussion in Lackawanna College, however –

which was decided just last year – is instructive to this Court’s holding that
Pennsylvania law does not recognize a special relationship between colleges and
student-athletes that would impose a duty of care.
As the Supreme Court of Pennsylvania said, courts “should not enter into the

creation of new common law duties lightly because the adjudicatory process does
not translate readily into the field of broad-scale policymaking.”72 Instead, in that
case, the Supreme Court of Pennsylvania imposed a duty based on the college’s

“affirmative conduct,” which created a special relationship requiring medical
personnel on hand at athletic events in case of injury. That court considered
whether to adopt a broader rule finding that colleges in Pennsylvania owe a blanket
duty to have medical personnel available at athletic events but was not willing to

expand a college’s duty to such an extent.73 Plaintiff asks this Court to find that

71 Feleccia v. Lackawanna College, 215 A.3d 3 (Pa. 2019); Kleinknecht v. Gettysburg College,
989 F.2d 1360 (3d Cir. 1993).
72 Lackawanna College, 215 A.3d at 13 (Pa. 2019) (quotation marks omitted).
73 See Lackawanna College, 215 A.3d at 26 (Pa. 2019) (Wecht, J., concurring and dissenting).
Justice Wecht’s opinion was detailed and thoughtful. It appears, however, the majority of the
Supreme Court of Pennsylvania did not believe that case justified a broad imposition of duty
colleges owe their student-athletes a general duty to protect them and ensure their
well-being, even against the tortious or criminal acts of third parties. This Court

declines to do so.
Furthermore, to the extent Plaintiff asserts a duty based on the allegation that
Franklin promised to “use his best effort to protect the safety and welfare of the
plaintiff,”74 Plaintiff has not provided enough detail for the Court to impose a duty.

As Defendants note throughout their briefings, Plaintiff provides no real timeline.
The sequence of events is crucial to determine whether Plaintiff has stated a claim
for negligence, particularly under the theories he asserts.75 Furthermore, Plaintiff’s

failure to specify what alleged incidents of hazing he reported to coaches, or when,
hinders his ability to state a claim, particularly with regards questions of breach
and causation.

The University Defendants’ motion to dismiss is granted. Plaintiff will be
granted leave to amend and replead Counts 5 and 6. The Court notes that Plaintiff
need not, and should not, raise the issue of whether either of the antihazing laws, or
Title IX, provides a statutory basis for establishing duty.

2. Barber
Barber’s main argument in response to the negligence claim against him is
that “Plaintiff’s SAC contains zero claims directly against Defendant Barber.”76

74 Doc. 40 ¶ 73.
75 See, e.g., Restatement (Second) of Torts § 323.
This assertion finds zero support in the SAC. Barber’s effort to reinterpret the
SAC in a light more favorable to him, and quibble over wordsmithing, does not

entitle him to dismissal.
Plaintiff alleges that “Barber [and three other students] collectively
orchestrated [and] participated in . . . a campaign to harass and haze other members
of the Penn State football team, including the plaintiff.”77 The fact that Barber was

“always named as part of a group of four teammates”78 who hazed and harassed
others does not mean that there are no allegations naming Barber as a harasser.
Barber’s defenses as to the other elements of negligence are equally unconvincing.

Plaintiff has adequately pleaded Barber’s breach and causation, and sufficiently
asserts the damages he suffered as a consequence thereof. Barber’s motion to
dismiss Count 7 is denied.

4. Assault and Battery – Count 8
a. Legal Standard
Plaintiff alleges that Barber committed assault and battery under
Pennsylvania law. In Pennsylvania, an “[a]ssault is an intentional attempt by force

to do an injury to the person of another, and a battery is committed whenever the

77 Doc. 40 ¶ 82.
violence menaced in an assault is actually done, though in ever so small a degree,
upon the person.”79

b. Analysis
Barber moves to dismiss the claim against him for assault and battery based
on the argument that Plaintiff “does not allege that he was ever the recipient of
offensive contact of any degree and the SAC is silent as to any alleged contact by

Barber.” As discussed above, a fair reading of the SAC shows that Plaintiff has
alleged that Barber (and other students) committed assault and battery against a
group of students – and, indeed, that Plaintiff was one of those students.

Plaintiff describes a campaign to harass and haze by alleging a series of
instances in which a group of players – which always included Barber80 – did
things to their teammates that, if proven true, could be described as “harmful” or
“offensive.”81 As Plaintiff has also alleged that Barber placed Plaintiff “in fear of

imminent bodily harm,” he has satisfied the pleading requirements for assault. For
the same reasons discussed above, Barber’s argument as to battery also fails.
Plaintiff alleged that he was subject to “unwanted harmful physical conduct” by

Barber, both in the body of the SAC and in summarizing the assault and battery
claim.82 Barber’s motion to dismiss Count 8 is denied.

79 Betz v. Satteson, 715 Fed.Appx. 213, 217 (3d Cir. 2017) (quoting Renk v. City of Pittsburgh,
537 Pa. 68 (1994)).
80 Doc. 40 ¶¶ 82-96.
81 Restatement (Second) of Torts § 21 (1965).
5. Negligent Infliction of Emotional Distress – Count 9
Plaintiff asserts a claim for negligent infliction of emotional distress against

all Defendants. Under Pennsylvania law, there are four theories of liability under
which an action for negligent infliction of emotional distress will lie: (1) impact
liability where emotional distress is accompanied by physical injury or impact; (2)
zone of danger liability where emotional distress is inflicted on a plaintiff who was

in close proximity of physical impact and thereby reasonably experienced a fear of
physical injury; (3) bystander liability for emotional distress experienced by a
plaintiff who personally witnessed an impact upon a close relative; and (4) special

relationship liability premised on the breach of a preexisting contractual or
fiduciary relationship that foreseeably resulted in emotional harm so extreme that a
reasonable person should not be expected to endure the resulting distress.83
Because the Court has granted the motion to dismiss as to the negligence

claims against the University Defendants, with leave to amend, the Court does the
same as to the University Defendants here. “In all cases [alleging negligent
infliction of emotional distress], Plaintiff must establish a prima facie case of

negligence.”84 Plaintiff may replead this count in an amended complaint as to
Penn State and Franklin.

83 Doe v. Philadelphia Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 27 (Pa.
Super. 2000).
84 Deitrick v. Costa, 2015 WL 1605700 (M.D. Pa. Apr. 9, 2015); see also Brezenski v. World
Truck Transfer, Inc., 755 A.2d 36, 45 (Pa. Super. 2000) (“[A]bsent a finding of negligence,
The Court does consider whether Plaintiff has stated a claim for negligent
infliction of emotional distress as to Barber. Plaintiff has not alleged facts that

would allow this Court to consider a theory of zone of danger liability, bystander
liability, or special relationship liability. Instead, this claim appears to be premised
on a theory of impact liability. Plaintiff has sufficiently alleged that there was

some impact – as discussed in Counts 7 and 8, supra – that led to emotional
distress. Therefore, his claim survives this stage of pleading.
6. Intentional Infliction of Emotional Distress – Count 10
a. Legal Standard

Under Pennsylvania tort law, a plaintiff alleging intentional infliction of
emotional distress (“IIED”) must show the following: (1) the conduct must be
extreme and outrageous; (2) it must be intentional or reckless; (3) it must cause
emotional distress; and (4) that distress must be severe.85 Plaintiff must show that

the conduct at issue was “so outrageous in character and so extreme in degree as to
go beyond all possible grounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized society.”86 Finally, Plaintiff must show that he

suffered “some type of resulting physical harm due to the defendant’s outrageous
conduct.”87

85 Hoy v. Angelone, 456 Pa.Super. 596, 610 (1997).
86 Miller v. Comcast, 724 Fed.Appx. 181, 182 (3d Cir. 2018) (quoting Hoy v. Angelone, 554 Pa.
134, 151 (1998)).
b. Analysis
Plaintiff’s claim sufficiently pleads a cause of action for IIED. He has

alleged enough that the conduct could be described as extreme and outrageous. It
is clear from the complaint that the acts Barber engaged in, if true, must have been
intentional. Finally, Plaintiff has alleged that Barber’s actions resulted in severe
emotional distress, and that he suffered some physical manifestation as a result of

the harassment and hazing he endured.88 Barber’s argument Plaintiff must present
competent medical evidence to support his claim is premature. Plaintiff’s
“allegations are sufficient in this case to withstand a motion to dismiss. However,

to survive a motion for summary judgment, the plaintiff must still present
competent medical evidence of causation and severity of his emotional distress.”89
At this stage of the litigation, Plaintiff has done enough to advance his claim for
IIED. Barber’s motion to dismiss Count 10 is denied.

7. Civil Conspiracy – Count 11
a. Legal Standard
Plaintiff’s final claim is against Barber for civil conspiracy. In order to state
a claim for civil conspiracy, Plaintiff must show: “(1) a combination of two or

more persons acting with a common purpose to do an unlawful act or to do a

88 Doc. 40 ¶¶ 227-230.
89 Silver v. Mendel, 894 F.2d 598, 607 n. 19 (3d Cir. 1990); see also McCracken v. R.J.
Reynolds Tobacco, 2020 WL 4364181 (3d Cir. 2020) (affirming decision that defendants
were entitled to summary judgment on plaintiff’s IIED claim, because the record contained
lawful act by unlawful means or for an unlawful purpose, (2) an overt act done in
pursuance of the common purpose, and (3) actual legal damage.”

b. Analysis
Plaintiff alleges that Barber engaged in a conspiracy with three other Penn
State football players (Micah Parsons, Yetur Gross-Matos, and Jess Luketa) with
the common purpose to haze him. Plaintiff further alleges that those individuals

did just that, establishing an underlying tort upon which a conspiracy allegation
may rest (see Count 8). Finally, Plaintiff claims he suffered harm as a result of the
“outrageous, malicious, willful” actions of Barber and his alleged coconspirators.

Barber asserts that Plaintiff cannot maintain a conspiracy claim because “only
Barber is before the court.” The only case Barber cites for this proposition is
inapposite, however, because: (1) that proceeding was resolved at summary
judgment, rather than the motion to dismiss stage; (2) that court found that the

remaining defendants (an entity and its sole stockholder) could not conspire as a
matter of law; (3) all alleged conspirators had been joined in the suit, so the failure
of the plaintiff to prove the conspiracy as to one defendant lent itself to the same

result as to the other defendants. There does not appear to be a requirement that all
conspirators be sued in the first instance to state a claim for civil conspiracy, and in
the absence of such authority, the Court declines to impose this requirement.
Barber’s motion to dismiss Count 11 is denied, without prejudice to his ability to

raise the issue again at the summary judgment stage.
III. CONCLUSION
Defendants’ Motions to Dismiss pursuant to Rule 12(b)(6) is granted in part

and denied in part. Dismissal is granted as to the following Counts: 1, 3, 5, 6, and
9 (as to the University Defendants). Dismissal is denied as to the following
Counts: 2 (subject to the Court’s narrowing of the claim as discussed above), 4, 7,

8, 9 (as to Barber), 10, and 11.
Plaintiff is granted leave to amend Counts 1, 5, 6, and 9 (as to the University
Defendants). “The Federal Rules of Civil Procedure do not address the situation in
which a deficiency in a complaint could be cured by amendment but leave to

amend is not sought.”90 “Circuit case law, however, holds that leave to amend
must be given in this situation as well.”91 It is well settled in this circuit that leave
to amend should be “freely granted.”

Leave to amend is denied as to Count 3. “Among the grounds that could
justify a denial of leave to amend are undue delay, bad faith, dilatory motive,
prejudice, and futility.”92 “Futility” means that the complaint, as amended, would
fail to state a claim upon which relief could be granted.93 Although there is a

“liberal pleading philosophy of the federal rules” a court will dismiss counts from

90 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) (“Burlington”);
91 Id.
92 Lorenz v. CSX Corp., 1 F.3d 1406, 1413–14 (3d Cir.1993).
93 Burlington, at 1434. In assessing “futility,” the District Court applies the same standard of
legal sufficiency as applies under Rule 12(b)(6). Id.; 3 Moore’s Federal Practice, supra §
the amended complaint with prejudice because another opportunity for amendment
would be futile.94 “Futility” means that the complaint, as amended, would fail to

state a claim upon which relief could be granted.95 “Accordingly, if a claim is
vulnerable to dismissal under Rule 12(b)(6), but the plaintiff moves to amend,
leave to amend generally must be granted unless the amendment would not cure
the deficiency.”96 The Court finds that Count 3 could not be cured by amendment

because Franklin owes no duty under either antihazing statute.
As such, Plaintiff will be given fourteen days from today’s date to file an
amended complaint. If no amended complaint is filed, the action will be

summarily dismissed pursuant as to the aforementioned Counts, pursuant to
Federal Rule of Civil Procedure 41(b).
An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

94 See Bjorgung v. Whitetail Resort, LP, 550 F.3d 263, 266 (3d Cir. 2008).
95 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409247. Public record. Not legal advice.