# Cuvo v. Pocono Mountain School District

> District Court, M.D. Pennsylvania · March 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10411511

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10411511

## How later opinions describe it (automated extraction)

- noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial
- declining to exercise supplemental jurisdiction over state-law claims after granting summary judgment on federal claims

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT CUVO and LISA CUVO
on behalf of the minor child, A.C.,

Plaintiffs, CIVIL ACTION NO. 3:18-cv-01210

v. (SAPORITO, M.J.)

POCONO MOUNTAIN SCHOOL
DISTRICT, et al.,

Defendants.

MEMORANDUM
This federal civil rights action commenced when the plaintiffs,
appearing through counsel, filed the original complaint in this matter on
June 14, 2018. Following the partial dismissal of an amended complaint,
the plaintiffs filed their second amended complaint—the currently
operative complaint—on April 22, 2019. On December 23, 2019, parts of
the second amended complaint were dismissed as well. Now, following
the completion of discovery, the defendants have moved for summary
judgment with respect to the remainder of the second amended
complaint.
I. BACKGROUND
The plaintiffs are parents to A.C., a home-schooled student who
participated as a member of the Pocono Mountain School District’s

wrestling team. The coach of the wrestling team was Josh Haines, and
Michael Hollar was an assistant coach. The school district, Haines, and
Hollar are the defendants to the plaintiffs’ remaining claims.1

At a wrestling team practice on December 18, 2017, the members
of the wrestling team, including A.C., were told by Haines and Hollar
that they would be playing a game the coaches called “flickerball” inside

the wrestling room.2 While this may not have been the first time the
wrestling team had played flickerball, it was the first time they had
played it indoors. The floor and walls of the wrestling room were covered

1 The second amended complaint also named the school district’s
athletic director, William Hantz, as a defendant, but the only claim
asserted against Hantz—a § 1983 Monell claim set forth in Count III of
the second amended complaint—has been dismissed.
2 The parties dispute the most appropriate name for the game they
played. A.C. testified at his deposition that Hollar called the game both
“smear the queer” and “flickerball”; both coaches testified that the game
they played was known as either “flickerball” or “wall ball.” A.C. testified
that the game was essentially just tackle football; the coaches expressly
denied that the wrestlers had played tackle football. The name used to
describe the game, however, is immaterial to the claims and defenses in
this case. Our use of “flickerball” in this opinion signifies nothing more
than the most common label used by the witnesses whose deposition
transcripts are present in the record on summary judgment.
in two-inch thick wrestling mats.3

Although the details of the game’s rules are disputed, the game of
flickerball—as played that day—appeared to involve a single ball and two
teams of wrestlers.4 Similar to football, ultimate frisbee, or other games,

the team in possession of the ball attempted to move the ball from one
end of the room to the other, scoring a point by touching the ball to the
wall opposite from their starting point. The ball was moved down the

room by passing the ball from one teammate to another. If the ball was
dropped or otherwise hit the ground, the defending team would take
possession of the ball and likewise attempt to score by touching it against

the opposite wall. In addition, as played by the wrestling team on this
day, the defending team could take possession by tackling the ball
carrier—or performing a wrestling takedown on him.5

3 The plaintiffs have contended that this padding—or the aged and
worn state of the mats—made the wrestling room particularly unsuitable
for an athletic activity such as this.
4 The plaintiff contends that the ball used that day was a football.
The defendants dispute this. The particular type of ball used that day, or
typically used, is immaterial.
5 The plaintiffs contend that the players were instructed to “tackle”
the ball carrier, as in tackle football. The defendants vigorously dispute
this, contending that the wrestlers were instead instructed to perform
wrestling takedowns, which they further contend are distinctly different
(continued on next page)
The plaintiffs contend that this additional rule (permitting the

players to tackle one another), coupled with the playing surface on which
the game was played (a floor covered in wrestling mats designed to
prevent slipping or sliding) and an absence of the sort of protective

equipment typically provided to tackle football players, caused the injury
to A.C. that occurred during the game that day.
After the wrestlers had been playing for about 20 minutes, with

Haines and Hollar watching and participating at times, A.C. was tackled
by another wrestler when he had received or was attempting to receive a
pass. When tackled, A.C.’s leg did not slide or otherwise give way like it

purportedly would have on another surface, causing his femur to snap.
During the 20 minutes leading up to A.C.’s injury, the plaintiffs contend
that Haines and Hollar observed “numerous” other football-like tackles.

II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary

from tackles as performed in football. The precise nature of this form of
contact—and whether the defendants’ distinction is indeed a difference
at all—is a genuine dispute of material fact reserved to the jury. For
summary judgment purposes, we must accept the non-moving plaintiff’s
position that “tackle” and “takedown” are synonymous, and we will
generally use the term “tackle” in this opinion.
judgment should be granted only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the
outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A dispute of material fact is “genuine” only if the evidence “is such
that a reasonable jury could return a verdict for the non-moving party.”
Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all

inferences “should be drawn in the light most favorable to the non-
moving party, and where the non-moving party’s evidence contradicts the
movant’s, then the non-movant’s must be taken as true.” Pastore v. Bell

Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
The party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis for its motion,”

and demonstrating the absence of a genuine dispute of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts, supported

by the record, demonstrating that “the evidence presents a sufficient
disagreement to require submission to the jury.” Anderson, 477 U.S. at
251–52.
In evaluating a motion for summary judgment, the Court must first

determine if the moving party has made a prima facie showing that it is
entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S.
at 331. Only once that prima facie showing has been made does the

burden shift to the nonmoving party to demonstrate the existence of a
genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477
U.S. at 331.

Both parties may cite to “particular parts of materials in the record,
including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for the

purposes of the motion only), admissions, interrogatory answers or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used
to support or oppose a motion must be made on personal knowledge, set

out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.” Fed. R. Civ.
P. 56(c)(4). “Although evidence may be considered in a form which is

inadmissible at trial, the content of the evidence must be capable of
admission at trial.” Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 599
(M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d
378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary

judgment, to consider evidence that is not admissible at trial).
III. DISCUSSION
Some of the plaintiffs’ claims have already been dismissed at earlier
stages of this litigation. See generally Cuvo v. Pocono Mountain Sch.

Dist., No. 3:18-cv-01210, 2019 WL 7105560 (M.D. Pa. Dec. 23, 2019)
(partial dismissal of second amended complaint) (Doc. 37); Cuvo v. Pocono
Mountain Sch. Dist., No. 3:18-cv-01210, 2019 WL 1424524 (M.D. Pa. Mar.

29, 2019) (partial dismissal of first amended complaint) (Doc. 25). What
remains before us are: (1) a federal civil rights claim against Haines and

Hollar under 42 U.S.C. § 1983, asserting a violation of A.C.’s Fourteenth
Amendment substantive due process rights based on a state-created
danger theory of liability, set forth in Count I of the second amended

complaint; (2) state-law negligence claims against Haines, Hollar, and
the school district, set forth in Count IV of the second amended
complaint; and (3) and a state-law respondeat superior liability claim

against the school district, based on the allegedly negligent conduct of
Haines and Hollar, set forth in Count V of the second amended complaint.
A. State-Created Danger Claim
In their primary claim, upon which federal jurisdiction over this

case rests, the plaintiffs claim that the conduct of coaches Haines and
Hollar on December 18, 2017, violated A.C’s right to substantive due
process under the Fourteenth Amendment to the United States

Constitution, made actionable by 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 City v. Tuttle, 471 U.S. 808, 816 (1985). To establish a § 1983
claim, a plaintiff must show 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).
Here, the plaintiff’s Fourteenth Amendment claim relies on a state-

created danger theory of liability. “While states generally do not have an
obligation to protect citizens, under the state-created danger doctrine, a
public actor may be liable for harm a citizen suffers if ‘the state acts to

create or enhance a danger that deprives the plaintiff of his’ due process
rights.” K.W. ex rel. White v. Se. Pa. Transp. Auth., 760 Fed. App’x 104,
107 (3d Cir. 2019) (quoting Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir.

2006)). The state-created danger doctrine “embodies the principle that
the government has an obligation under the Fourteenth Amendment’s
Due Process Clause ‘to protect individuals against dangers that the

government itself creates.’” Sauers v. Borough of Nesquehoning, 905 F.3d
711, 717 (3d Cir. 2018) (quoting Haberle v. Troxell, 885 F.3d 170, 176 (3d
Cir. 2018)).

To establish a state-created danger claim, a plaintiff must show:
(1) the harm ultimately caused by the state actor’s
conduct 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.
Mann v. Palmerton Area Sch. Dist., 872 F.3d 165, 170 (3d Cir. 2017)
(quoting Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006))
(brackets omitted). All four elements must be satisfied. See Phillips v.

Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008); Sanford, 456 F.3d at
311.
“The first element of a state-created danger claim requires

plaintiffs to establish that the harm sustained as a result of the
defendant’s conduct was ‘foreseeable and fairly direct.’” Mann, 872 F.3d

at 171. Based on the evidence of record, viewed in the light most favorable
to the non-moving plaintiffs, we find that a reasonable jury could
conclude that the injury suffered by A.C. was a “foreseeable and fairly

direct” harm of his being instructed to play “flickerball” with the added
element of full-contact tackling, without any personal protective
equipment, in a padded wrestling room, particularly in light of the

defendants’ observation of numerous other tackles during the first 20
minutes of the game prior to A.C.’s injury. Cf. B.D. v. Downingtown Area
Sch. Dist., Civil Action No. 15-6375, 2016 WL 3405460, at *3 (E.D. Pa.
June 21, 2016) (finding that several “small collisions and/or near misses”

prior to plaintiff’s injury “put the Coaches on notice of the potential for a
serious collision”).
With respect to the second element, the Third Circuit has observed

that “[t]he exact degree of wrongfulness necessary to reach the
‘conscience-shocking’ level depends on the circumstances of a particular
case.” Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005). “The

level of culpability required to shock the conscience increases as the time
state actors have to deliberate decreases. . . . [I]n cases where
deliberation is possible and officials have the time to make ‘unhurried

judgments,’ deliberate indifference is sufficient.” Sanford, 456 F.3d at
309. Here, in the context of a school athletics practice, the plaintiffs need
only prove deliberate indifference. See Mann, 872 F.3d at 171. Based on

the evidence of record, viewed in the light most favorable to the non-
moving plaintiffs, we find that a reasonable jury could conclude that the
defendants acted with deliberate indifference where they were aware of

the unusually serious risk of harm, having instructed the wrestlers to
play tackle flickerball in a wrestling room covered in wrestling mats
designed to prevent slipping or sliding, without any personal protective
equipment, and having observed numerous other tackles in the 20

minutes preceding A.C.’s injury, and where they failed to address these
known, serious risks by allowing the game to continue even after
observing those other tackles. Cf. B.D., 2016 WL 3405460, at *4.

To establish the third element, a plaintiff is required to prove “a
relationship between the state and the plaintiff such that the plaintiff
was a foreseeable victim of the defendant’s acts.” Sanford, 456 F.3d at

304. As the Third Circuit has recognized, “[i]t is clear that a student-
athlete stands in such a relationship with the coaching staff.” Mann, 872
F.3d at 172.

Finally, the fourth element requires the plaintiffs to show that
Haines and Hollar affirmatively used their authority in a way that
created a danger to A.C. or rendered him more vulnerable to danger. Id.

Based on the evidence of record, viewed in the light most favorable to the
non-moving plaintiffs, we find that a reasonable jury could conclude that
the coaches acted affirmatively in instructing the wrestlers to play tackle

flickerball in a wrestling room covered in wrestling mats designed to
prevent slipping or sliding, without any personal protective equipment,
and this affirmative conduct rendered A.C. more vulnerable to danger.
Cf. B.D., 2016 WL 3405460, at *5.

Thus, based on the evidence of record, viewed in the light most
favorable to the non-moving plaintiffs, a reasonable jury could conclude
that the plaintiffs have satisfied all four of elements of the state-created

danger claim they have asserted in Count I of the second amended
complaint.
B. Qualified Immunity Defense
Our inquiry with respect to the plaintiffs’ state-created danger

claim does not end there. In addition to seeking summary judgment on
the merits of the plaintiffs’ § 1983 claim, the defendants have interposed

the affirmative defense of qualified immunity.
The doctrine of qualified immunity protects 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. Qualified immunity “provides

ample protection to all but the plainly incompetent or those who
knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
“Thus, so long as an official reasonably believes that his conduct complies

with the law, qualified immunity will shield that official from liability.”
Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555
U.S. at 244). Although qualified immunity is generally a question of law

that should be considered at the earliest possible stage of proceedings, a
genuine dispute of material fact may preclude summary judgment on
qualified immunity. Giles v. Kearney, 571 F.3d 318, 325–26 (3d Cir.

2009).
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). As discussed above, there
exists a genuine dispute of material fact on the merits of the plaintiffs’
state-created danger claim. But the defendants may nevertheless prevail
on summary judgment with respect to this claim 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 officer

that his conduct was unlawful in the situation he confronted.” Saucier,
533 U.S. at 202. It is the plaintiff who bears the initial burden of
demonstrating that the constitutional right at issue was clearly

established at the time of the claimed violation. See Davis v. Scherer, 468
U.S. 183, 197 (1984) (“A plaintiff who seeks damages for violation of
constitutional or statutory rights may overcome the defendant official’s

qualified immunity only by showing that those rights were clearly
established at the time of the conduct at issue.”); Sherwood v. Mulvihill,
113 F.3d 396, 399 (3d Cir. 1997) (“Where a defendant asserts a qualified

immunity defense in a motion for summary judgment, the plaintiff bears
the initial burden of showing that the defendant’s conduct violated some
clearly established statutory or constitutional right.”).

“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. If the right is defined too broadly, at
a high level of generality, it risks “convert[ing] the rule of qualified

immunity that our cases plainly establish into a rule of virtually
unqualified liability simply by alleging violation of extremely abstract
rights.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). “We are thus

required to frame the right at issue in a more particularized, and hence
more relevant, sense, in light of the case’s specific context, not as a broad
general proposition.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633,

638 (3d Cir. 2015) (citations and internal quotation marks omitted).
The contours of the right must be sufficiently clear that
a reasonable official would understand that what he is
doing violates that right. This is not to say that an
official action is protected by qualified immunity unless
the very action in question has previously been held
unlawful; but it is to say that in the light of pre-existing
law the unlawfulness must be apparent.
Anderson, 483 U.S. at 640 (citation omitted).
In this case, the specific context is a student-athlete who, while at
wrestling practice, was instructed by coaches to participate in a team
game with other student-athletes involving violent physical contact
similar to tackle football, without protective equipment, which resulted
in a gruesome injury when he was tackled by another student-athlete. As
framed by the plaintiffs, the specific constitutional right under the Due
Process Clause in this context is a right to be free from playing dangerous

sports without protective equipment where it is foreseeable that an
injury will occur.6 (See Doc. 64, at 22.)
In evaluating whether a constitutional right is clearly established,

we must first look to factually analogous Supreme Court precedent, as
well as binding Third Circuit opinions. Peroza-Benitez v. Smith, 994 F.3d
157, 165 (3d Cir. 2021). Next, we must consider whether there is a “a

robust consensus of cases of persuasive authority.” Id.; see also Ashcroft
v. al-Kidd, 563 U.S. 731, 742 (2011). This persuasive authority may
include appellate decisions from other circuits, or district court decisions,

from within the Third Circuit or elsewhere. Id.; see also Doe v. Delie, 257
F.3d 309, 321 & n.10 (3d Cir. 2001).
Here, there is no factually analogous Supreme Court precedent.

The plaintiff points to a single binding Third Circuit decision—

6 We note that the plaintiffs appear to suggest a second right—a
constitutional right to have coaches abide by Pennsylvania
Interscholastic Athletic Association (“PIAA”) guidelines, which happen to
prohibit playing tackle football without appropriate protective
equipment. But while PIAA guidelines may inform a factfinder’s
determination whether an injury was foreseeable based on a failure to
abide by such guidelines, they do not themselves create a federal
constitutional right. See B.D., 2016 WL 3405460, at *4 n.4.
Mann v. Palmerton Area School District, 872 F.3d 165 (3d Cir. 2017). In

that case, the Third Circuit held that:
[T]here exists a relationship between a student-athlete
and coach at a state-sponsored school such that the
coach may be held liable where the coach requires a
player, showing signs of a concussion, to continue to be
exposed to violent hits. Stated otherwise, we hold that
an injured student-athlete participating in a contact
sport has a constitutional right to be protected from
further harm, and that a state actor violates this right
when the injured student-athlete is required to be
exposed to a risk of harm by continuing to practice or
compete.
Mann, 872 F.3d at 172. The decision in Mann established that a coach
who requires an injured student-athlete to continue to practice or
compete after showing signs of injury may have violated the substantive
due process rights of the injured student-athlete. This case, however,
does not involve a coach compelling an injured student-athlete to
continue after being injured, but rather an initial instruction to an
entirely un-injured student-athlete to participate in contact sport
activity. We cannot say that a reasonable official would understand
Mann to prohibit him or her from instructing a student-athlete
participating in wrestling, itself a physical contact sport, from
participating in other potentially dangerous contact sports activity
without protective equipment while at practice.

The plaintiffs cite no other binding Third Circuit decisions, and we
find none.
Turning to persuasive authority, the plaintiffs cite an unpublished

Third Circuit decision, Hinterberger v. Iroquois School District, 548 Fed.
App’x 50 (3d Cir. 2013), and a district court decision cited therein, Sciotto
v. Marple Newton School District, 81 F. Supp. 2d 559 (E.D. Pa. 1999).

Hinterberger did not affirmatively establish the contours of a substantive
due process right. Rather, it was limited to consideration of a qualified
immunity defense, finding that:

It was not “beyond debate” as of March 2004 that [a
coach’s] decision to introduce a new cheerleading stunt
following a delay of several months, through
instruction of an experienced cheerleader, with the use
of multiple spotters, but without any matting, violated
[the student-athlete’s] substantive due process rights.
Id. at 54; see also id. (“[Plaintiff] does not cite, and we have not found,
any precedential circuit court decisions finding a state-created danger in
the context of a school athletic practice.”).
But the plaintiff appears to cite Hinterberger not for any holding by
the Third Circuit, but in an effort to reference the Sciotto decision cited
therein, in support of an argument that failure to abide by PIAA
guidelines can result in liability under a state-created danger theory. The

Hinterberger court did not cite Sciotto approvingly, but only to note that
the plaintiff had relied on Sciotto in support of her contention that the
right she asserted was clearly established. See Hinterberger, 548 Fed.

App’x at 53. Ultimately, however, the Hinterberger court found Sciotto
did not place the cheerleading coach on notice that her actions amounted
to a constitutional violation. Id. at 54.

Moreover, Sciotto itself is of limited persuasive weight in this
context. In Sciotto, a federal district court denied qualified immunity,
broadly defining the constitutional right at issue as “a student’s right, in

a school setting, to freedom from school officials’ deliberate indifference
to, or acts that increase the risk of serious injury from unjustified
invasions of bodily integrity perpetrated by third parties.” Sciotto, 81 F.

Supp. 2d at 570. In a later, unrelated appellate case, where the appellant
echoed Sciotto’s broadly defined right, the Third Circuit rejected this
construction of the right at issue as overbroad. See Spady, 800 F.3d at

638–39. Nevertheless, as a district court decision, the Third Circuit has
twice considered Sciotto as persuasive authority in evaluating qualified
immunity in the context of school athletics, both times finding that
Sciotto did not itself constitute clearly established law. See Spady, 800 F.

3d at 639–50; Hinterberger, 548 Fed. App’x at 53–54. This court has
reached the same conclusion before as well. See Mann v. Palmerton Area
Sch. Dist., 189 F. Supp. 3d 467, 479 (M.D. Pa. 2016), aff’d, 872 F.3d 165

(3d Cir. 2017). As the Third Circuit noted in the margin in Spady,
when faced with factual scenarios analogous to
Sciotto—i.e., injuries sustained during school
activities—several district courts in this circuit have
reached decidedly different conclusions and declined to
find a constitutional violation. These cases
demonstrate that there is no vigorous consensus of
authority to support Sciotto’s broad holding.
Spady, 800 F.3d at 640 n.7 (collecting cases, citations omitted).
The plaintiffs primarily rely on a district court opinion in Hall v.
Martin, Civil Action No. 17-523, 2017 WL 3298316 (W.D. Pa. Aug. 2,
2017), which was issued four months before the incident in which A.C.
was injured. Hall involved a § 1983 claim based on an injury to a student
during gym class and a defendant’s motion to dismiss the complaint for
failure to state a claim. The complaint alleged that the defendant gym

teacher had regularly instructed his class, including Hall, to play floor
hockey as a gym activity. Hall was selected, by other students, to play
goalie on the day of his injury. Students were provided with floor hockey
sticks, goalie nets, and a hockey puck, but not eye or facial protection. On

the day in question, the gym teacher instructed the class to play floor
hockey “like regular hockey.” During the game, Hall was hit in the eye
with the puck, causing permanent injury and legal blindness. The

complaint further alleged that students had previously been injured after
being hit with a hockey puck while playing goalie in the teacher’s gym
classes, and the teacher was aware of these prior incidents. Based on

these factual allegations, the Hall court found that the plaintiff had
pleaded sufficient facts to state a plausible Fourteenth Amendment
state-created danger claim. See id. at *3–*4. Qualified immunity was not

at issue.
The defendants point to one primary distinction between Hall and
this case. In Hall, there were “numerous” prior occasions in which

students were injured after being hit by a floor hockey puck. See id. at
*3. In this case, however, the wrestlers had never played this version of
flickerball indoors, and there were no prior injuries.7 But irrespective of

7 The plaintiffs dispute the defendants’ factual statement that there
were no prior injuries, but the deposition testimony they cite does not
support their position. At his deposition, A.C. testified that other tackles
had occurred in the 20 minutes prior to his injury, and that “tackling
(continued on next page)
this factual distinction, this single district court decision, ruling on a

motion to dismiss based on factual pleadings rather than actual evidence,
does not constitute “clearly established law” with respect to a student-
athlete’s constitutional right to be free from playing dangerous sports

without protective equipment where it is foreseeable that an injury will
occur.8 Even coupled with Sciotto, the only other case cited by the
plaintiff that found a constitutional violation to have occurred, these two

decisions fall well short of the “robust consensus of cases of persuasive
authority” necessary to place it “beyond debate” as of December 2017 that
such a right was clearly established law, particularly in light of the

countervailing body of case law declining to find constitutional violations
in the context of school athletic activities. See al-Kidd, 563 U.S. at 741,

hurts in general,” but he also expressly admitted that no actual injuries
had occurred to his knowledge. (See A.C. Dep. Tr. 71, 119–20, Doc. 63-1,
at 18, 30.)
8 Indeed, we note that, when presented with a subsequent motion
for summary judgment on qualified immunity grounds, the Hall court
defined the right at issue more narrowly, as “the right to affirmative
intervention by a school teacher to minimize the risk of injury to a
student who opted to play floor hockey, using a felt-covered puck, as
goalie without protective gear.” See Hall v. Martin, Civil Action No. 2:17-
cv-523, slip op. at 9 (W.D. Pa. July 19, 2019), ECF No. 56. We further
note that the Hall court granted summary judgment in favor of the gym
teacher on qualified immunity grounds. See id.
742; Peroza-Benitez, 994 F.3d at 165; Spady, 800 F.3d at 640 n.7;

Hinterberger, 548 Fed. App’x at 54.
It is beyond dispute that A.C.’s injury was gruesome and
unfortunate. There are genuine factual disputes with respect to whether

the injury was indeed foreseeable under the circumstances, and whether
it may have constituted a violation of his substantive due process rights.
But we find that the plaintiffs have failed to meet their burden of

establishing that, in December 2017, it was clearly established law that
a student-athlete had a constitutional right to be free from playing
dangerous sports without protective equipment where it is foreseeable

that an injury will occur. See Davis, 468 U.S. at 197; Sherwood, 113 F.3d
at 399.
Accordingly, we are compelled to grant the defendants’ motion for

summary judgment with respect to the plaintiffs’ § 1983 state-created
danger claim set forth in Count I of the second amended complaint.
C. State-Law Tort Claims

In addition to the § 1983 claim discussed above, the second
amended complaint has asserted state-law negligence and respondeat
superior claims against the defendants. But, where a district court has
dismissed all claims over which it had original jurisdiction, the court may

decline to exercise supplemental jurisdiction over state-law claims. See
28 U.S.C. § 1367(c)(3); see also, e.g., Lundgren v. AmeriStar Credit
Solutions, Inc., 40 F. Supp. 3d 543, 551–52 (W.D. Pa. 2014) (declining to

exercise supplemental jurisdiction over state-law claims after granting
summary judgment on federal claims); Mark v. Borough of Hatboro, 5856
F. Supp. 966, 976–77 (E.D. Pa. 1994) (same), aff’d, 51 F.3d 1137 (3d Cir.

1995); Cruz v. City of Wilmington, 814 F. Supp. 405, 414 (D. Del. 1993)
(same). Whether the court will exercise supplemental jurisdiction is
within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). That

decision should be based on “the values of judicial economy, convenience,
fairness, and comity.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988). Ordinarily, when all federal law claims have been dismissed and

only state-law claims remain, the balance of these factors indicates that
these remaining claims properly belong in state court. Cohill, 484 U.S. at
350. Finding nothing in the record to distinguish this case from the

ordinary one, the balance of factors in this case “point[s] toward declining
to exercise jurisdiction over the remaining state law claims.” See Cohill,
484 U.S. at 350 n.7. Therefore, the plaintiffs’ state-law claims will be
dismissed without prejudice pursuant to 28 U.S.C. § 1367(c)(3).

IV. CONCLUSION
For the foregoing reasons, we will grant summary judgment in
favor of the defendants and against the plaintiffs with respect to their
§ 1983 state-created danger due process claim, set forth in Count I of the

second amended complaint, and we will dismiss the plaintiffs’
supplemental state-law tort claims, set forth in Counts IV and V of the
second amended complaint, without prejudice pursuant to 28 U.S.C.

§ 1367(c)(3).
An appropriate order follows.

Dated: March 21, 2022 s/Joseph F. Saporito, Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10411511. Public record. Not legal advice.