S.M. v. Tamaqua Area School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

S.M., as father and natural

guardian of A.M., a minor, et al.,

CIVIL ACTION NO. 3:22-cv-00525

Plaintiffs,

(SAPORITO, M.J.)

v.

TAMAQUA AREA SCHOOL

DISTRICT, et al.,

Defendants.

MEMORANDUM

This federal civil rights action for damages commenced when the

plaintiffs, S.M. and S.K., as fathers and natural guardians of minors A.M.

and T.K., respectively, filed their complaint on April 11, 2022. (Doc.1.)

The complaint named as defendants the Tamaqua Area School District

(the “District”); the District’s employees: Raymond Kinder,

Superintendent, Steven Toth, Assistant Superintendent, and Thomas

McCabe, principal of the high school; and school board members: Larry

Wittig, president, Nicholas Boyle, vice-president, Melanie Dillman,

member, Thomas Bartasavage, member, Bryan Miller, member, Mark

Rother, member, Thomas Rottet, member, Daniel Schoener, member,

and Trina Schellhammer, member (collectively the “individual

defendants”).

This matter is before the court on the defendants’ motion to dismiss

the complaint for failure to state a claim upon which relief can be granted

under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 23.)

The motion is fully briefed and ripe for decision. (Doc. 24; Doc. 30; Doc.

31.)

For the reasons set forth herein, we will deny the motion.

I. FACTUAL ALLEGATIONS1

This action arises out of the alleged sexual assaults of A.M. and

T.K., both of whom were enrolled in the District’s high school as freshmen

and were members of the football team. A.M. was also a member of the

wrestling team. The alleged sexual assaults took place in the Football

House, which is routinely left unsupervised, and which is a location

known to the District’s administrators, employees, and football coaches

as one where the football players have caused physical harm to each

other. Also, the plaintiffs allege that the football team maintains a

tradition of sexually assaulting certain freshman players by holding

them to the ground, beating them up, and attempting to penetrate their

1 The facts are taken from the plaintiffs’ complaint.

anus with an object. The tradition has been referred to as “school bus,”

“pineapple,” “Excalibur,” or “the Raider special.”

On November 4, 2021, A.M. and T.K. attended football practice and

the customary after-practice dinner, which was held in the high school

cafeteria.2 After dinner, the football staff directed freshmen football

players, including A.M., to carry Gatorade and other items into the

unsupervised Football House, where upperclassmen were waiting to

sexually assault them. After carrying the Gatorade into the Football

House, A.M. went to his locker on the lower level to retrieve his

belongings. As he sat on the bench in front of his locker, the lights went

out and he heard people running down the stairs. He was shoved off the

bench and held to the floor. Phone flashlights revealed that T.O., another

football player, held A.M. to the ground and attempted to turn A.M. over

onto his stomach while another football player, Z.M., approached him

holding a banana and attempting to force it into A.M.’s anus. Another

football player, P.C., was standing nearby holding a second banana.

While A.M. was able to turn over onto his back, T.O., Z.M., and L.K., a

2 Non-party, N.M., also attended practice and dinner that

evening. When N.M. was a freshman, he was sexually assaulted with a

broomstick as part of the football tradition.

third football player, punched A.M. repeatedly in the face. When the

lights were turned on, Z.M. shoved the banana in A.M.’s face, threw it at

him, and ran upstairs. A.M. left the Football House, got into his father’s

car, and reported the assault.

Having been aware of what traditionally happened in the Football

House, T.K. intentionally did not keep his belongings in his assigned

locker in the Football House. During the team dinner on November 4,

2021, football players stole T.K.’s bag from him and took it to the Football

House, to lure him there. After A.M. left the Football House, and

unaware of A.M.’s sexual assault, T.K. went to the Football House to

retrieve his bag. When he arrived there, the lights went out and several

football players rushed him. T.K. fell into the lockers and onto the bench

in front of the lockers. At that time, T.O. attempted to turn over T.K.

onto his stomach to insert an object into his anus. As T.K. resisted, the

lights turned on.

Plaintiff S.M. immediately contacted the District’s athletic director,

Mike Hromyak, and requested and received the cell phone number of

Coach Samuel Bonner. S.M. reported the assault to Coach Bonner. S.M.

then called defendant Boyle and informed him of the assault. Shortly

thereafter, defendant McCabe called S.M., who informed McCabe about

the assault. At 8:30 p.m., A.M. was interviewed by the Tamaqua Borough

Police Department in the presence of defendant Toth. One week later,

Toth contacted S.M. and asked if he and McCabe could obtain a written

statement from A.M. S.M. provided the written statement which A.M.

had given to the police.

On November 5, 2021, T.K. went to the principal’s office to speak

with defendant McCabe about the previous day’s sexual assault. After

being told that McCabe was too busy to speak with him, later that day

T.K. and his father, S.K., returned to McCabe’s office to talk about the

incident. McCabe showed them security footage from the cafeteria where

T.K.’s bag was taken from T.K., and T.K. and McCabe were able to

identify students from the security video. Upon McCabe’s request, T.K.

provided a written statement. T.K. was not offered counselling. The

defendants took no action to further investigate T.K.’s assault, to impose

discipline upon the appropriate parties, or to reach out to T.K. and S.K.

The complaint further alleges that A.M. was routinely bullied

during school about the sexual assault. S.M. promptly reported the

bullying to defendants Toth and McCabe, neither of whom took any

investigatory or disciplinary action following S.M.’s report. The bullying

continued and resulted in a second attempted sexual assault while A.M.

was a member of the wrestling team. In this instance, a senior on the

wrestling team pinned A.M. and yelled to another wrestler to get a

banana. A.M. evaded the attack. He eventually withdrew from the

District on January 27, 2022.

The complaint consists of fourteen counts. Counts One (violation of

Title IX), Three (retaliation under Title IX), Four (retaliation under Title

IX), Five (violation of Title IX – second attempted assault), Six (violation

of Title IX), Eight (Equal Protection under § 1983), Ten (Equal Protection

under § 1983), Twelve (negligence), and Thirteen (negligence – second

assault) relate to S.M. for A.M. Counts Two (violation of Title IX), Seven

(violation of Title IX), Nine (Equal Protection under § 1983), Eleven

(Equal Protection under § 1983), and Fourteen (negligence) relate to S.K.

for T.K.

II. LEGAL STANDARD

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

defendant to move to dismiss for “failure to state a claim upon which

relief is granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 12(b)(6), a motion

to dismiss may be granted only if, accepting all well-pleaded allegations

in the complaint as true and viewing them in the light most favorable to

the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.”

Warren Gen. Hosp. v. Amgen, Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). Although

the Court must accept the fact allegations in the complaint as true, it is

not compelled to accept “unsupported conclusions and unwarranted

inferences, or a legal conclusion couched as a factual allegation.” Morrow

v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting Baraka v.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Under Rule12(b)(6), the

defendant has the burden of showing that no claim has been stated. Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991);

Johnsrud v. Carter, 620 F.2d 29, 32-33 (3d Cir. 1980); Holocheck v.

Luzerne County Head Start, Inc., 385 F. Supp. 2d 491, 495 (M.D. Pa.

2005). In deciding the motion, the court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

complaint by reference, and matters of which a court may take judicial

notice.” Tellab, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(2007).

III. DISCUSSION

The plaintiffs 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 defendant, 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).

A. Equal Protection Claim

The defendants contend that Counts Eight through Eleven do not

set forth claims under 42 U.S.C. § 1983 for violations of the plaintiffs’

Equal Protection rights under the Fourteenth Amendment. “A plaintiff

stating a claim under the Equal Protection Clause must allege that he

has been treated differently because of his membership in a suspect class

or his exercise of a fundamental right, or that he has been treated

differently from similarly-situated others and that this differential

treatment was not rationally related to a legitimate state interest.”

Young v. Sewickley Twp., 160 Fed. App’x 263, 266 (3d Cir. 2005). The

defendants assert that the plaintiffs have failed to allege specific facts

that a female student was sexually assaulted by another student and that

the defendants responded in a reasonable manner. (Doc. 24, at 11.) Here,

the plaintiffs do not allege that they are members of a protected group or

class of citizens. Rather, the plaintiffs argue that their complaint alleges

claims for both intentional discrimination and hostile educational

environment equal protection. (Doc. 30, at 14.) In their reply brief, the

defendants argue that the complaint fails to allege identified policies,

customs, and practices, and that the sexual assaults were isolated

incidents “at most.” (Doc. 31, at 4.)

1. Intentional discrimination equal protection claim

“[F]or the purposes of an Equal Protection claim, showing

‘deliberate indifference’ to harassment by a school or ‘any third party

under its control’ is sufficient to demonstrate intentional discrimination.”

Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367, 378 (E.D. Pa. 2018)

([The plaintiff] “was not required to reference a similarly-situated male,

because she alleged the harassment was sexual in nature.”) As we

explain below in our discussion of the Title IX claim, where the plaintiffs

have sufficiently alleged deliberate indifference, the plaintiffs have

sufficiently alleged an intentional equal protection claim.

2. Hostile environment equal protection claim

To state a claim for hostile educational environment in violation of

the Equal Protection Clause, a plaintiff must allege the same elements

required for Title IX liability, except he also “must show that the

harassment was the result of municipal custom, policy, or practice.”

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257-58 (2009). Here,

as discussed below, the plaintiffs have pled the elements of a Title IX

claim and that the District maintained customs or policies of failing to

recognize, investigate, and respond to reports of male-on-male sexual

assault and harassment; failing to enforce its existing policies prohibiting

sexual assault; and failing to adequately train school administrators and

employees on how to recognize, investigate, address, and prevent further

sexual assault and harassment of its students. (Doc. 1 ¶¶ 173(a-c), 185(a-

c.)) We find that the plaintiffs have adequately pled a hostile educational

environment equal protection claim.

Accordingly, we will deny the District’s motion to dismiss the

Section 1983 claims against it.

B. Municipal Liability

The District asserts that Counts Ten and Eleven of the complaint

should be dismissed because the plaintiffs have failed to plead any

specific facts of any practice or policies and there is no underlying

violation of plaintiffs’ constitutional rights. (Doc. 24, at 10-11.)

The complaint asserts § 1983 claims against the District. “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 may be liable under

Monell. 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 [school district] 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).

The complaint in this case identifies the District’s three

unconstitutional customs or policies as follows:

a. Failing to appropriately recognize, investigate

and respond to reports of male-on-male sexual

assault and harassment;

b. Failing to enforce any already existing policies

prohibiting sexual assault and harassment

when both the perpetrator and the victim are

male; and

c. Failing to adequately train school

administrators and employees on how to

recognize, investigate, address, and prevent

further sexual assault and harassment of its

students.

(Doc. 1 ¶¶ 173(a-c); 185(a-c).)

The District argues that the complaint fails to allege specific facts

of any practice or policies, and because there is no underlying violation of

the plaintiffs’ constitutional rights, the Section 1983 claims must be

dismissed. We find that the plaintiffs’ allegations recited above are

sufficient to state a municipal liability claim against the District.

Accordingly, we will deny the District’s motion to dismiss the

Section 1983 claims against it.

C. Individual Defendants

The defendants move to dismiss the claims against the individual

defendants set forth in Counts Eight and Nine of the complaint because

they contend that the plaintiffs failed to allege any personal involvement

whatsoever by the individual defendants. The plaintiffs argue that the

complaint extensively alleged personal involvement of each of the

individual defendants.

It is well established that “[c]ivil rights claims cannot be premised

on a theory of respondeat superior. Rather, each named defendant must

be shown . . . to have been personally involved in the events or

occurrences which underlie a claim.” Millbrook v. United States, 8 F.

Supp. 3d 601, 613 (M.D. Pa. 2014) (citation omitted). As previously

explained by the Third Circuit:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs . . . . [P]ersonal

involvement can be shown through allegations of

personal direction or of actual knowledge and

acquiescence. Allegations of participation or actual

knowledge and acquiescence, however, must be made

with appropriate particularity.

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Here, the complaint alleges that as Superintendent, Kinder told

S.M. and A.M. that they had no right to be present at the first disciplinary

hearing on November 16, 2021, before the school board, and they were

prohibited from knowing the outcome of the hearing. (Doc. 1 ¶¶ 6, 58-

61.) Kinder also excluded them from attending and participating in two

disciplinary hearings on November 18, 2021, and a special meeting of the

school board. (Id. ¶¶ 62-64, 66-68, 78-79.) Kinder also told A.M. that he

had no right to know the outcome of the hearings. (Id. ¶ 71.) Kinder

accused A.M. of lying. (Id. ¶ 83.)

Assistant Superintendent Toth and high school principal McCabe

received actual notice of the sexual assaults of A.M. and T.K. (Id. ¶¶ 46-

52, 98.) Despite having an obligation to contact the District’s Title IX

coordinator and Toth and McCabe having actual notice of the assaults,

neither A.M. nor T.K. were ever contacted by the Title IX coordinator.

(Id. ¶ 101.) The inaction of Toth and McCabe resulted in A.M.’s continued

bullying, which resulted in the second sexual assault upon him. (Id. ¶¶

93-94.)

Regarding the individual school board defendants, the complaint

alleges that “Kinder, Toth, and McCabe intentionally shared their power

to investigate and/or address the sexual assault of A.M. with” the

individual school board defendants. (Id. ¶ 155.) The complaint further

alleges that the school board defendants presided over three disciplinary

hearings and one special meeting. (Id. ¶¶ 58, 62, 66, 78.) During each

hearing and the special meeting, the school board individual defendants

physically excluded the plaintiffs from being present, while permitting

the alleged assaulters to be present (Id. ¶¶ 58-71, 78-79); provided the

alleged assaulters with an opportunity to speak on their own behalf and

denied that opportunity to the plaintiffs (Id. ¶¶ 65-66, 70-71); provided

the alleged assaulters with the opportunity to be represented by counsel

and denied that opportunity to the plaintiffs (Id. ¶ 74); and denied A.M.

his Title IX right to be informed of the outcome of the hearings, including

the sanctions imposed. (Id. ¶¶ 61, 65, 71.)

We find these allegations sufficient to defeat the motion to dismiss

at the pleadings stage. Thus, accepting the plaintiffs’ factual allegations

in the complaint as true, as we must, we find that the complaint

adequately alleges sufficient allegations of personal involvement by the

individual defendants.

Accordingly, the defendants’ motion to dismiss on the basis that the

complaint lacks sufficient factual allegations of personal involvement will

be denied.

D. Title IX Claims

The defendants argue that the plaintiffs failed to plead valid Title

IX claims. Title IX of the Education Act provides, with certain exceptions,

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.” 20 U.S.C. § 1681(a). The plaintiffs set forth

claims for student-on-student sexual harassment and retaliation.

(1) The plaintiff has sufficiently pled a valid

claim for student-on-student sexual

harassment.

The defendants maintain that the plaintiffs failed to set forth a

valid Title IX claim for student-on-student sexual harassment.

It is settled that a funding recipient’s deliberate indifference to

sexual harassment of a student by another student can constitute sex

discrimination under Title IX. Davis v. Monroe Cty. Bd. of Educ., 526

U.S. 629, 643 (1999). For a school district to be held liable for a claim of

student-on-student sexual harassment under Title IX, a plaintiff must

establish that: (1) the defendant receives federal funds; (2) sexual

harassment occurred; (3) the harassment occurred under ‘circumstances

wherein the recipient exercise[d] substantial control over both the

harasser and the context in which the known harassment occur[red], (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] deprive[d] the victims of access to the

educational opportunities or benefits provided by the school.’ Davis, 526

U.S. at 645, 650.

Here, the District only contends that the complaint fails to allege

facts to constitute deliberate indifference. The District asserts that the

plaintiffs failed to set forth sufficient facts to establish that the District’s

response to the alleged harassment is clearly unreasonable considering

the known circumstances.

A finding of deliberate indifference depends on the adequacy of a

school district’s response to the harassment. Zeno v. Pine Plains Cent.

Sch. Dist., 702 F.3d 655, 666 (2d Cir. 2012); accord Doe v. Bellefonte Area

Sch. Dist., 106 Fed. App’x 798, 799 (3d Cir. 2004) (‘The relevant inquiry

for purposes of evaluating whether [a school district] was deliberately

indifferent to known circumstances of harassment is to review its

response to reported incidents of harassment.’). To constitute deliberate

indifference, the recipient’s response to the harassment must be ‘clearly

unreasonable in light of the known circumstances.’ Davis, 526 U.S. at

648.

A review of the complaint reveals that it adequately sets forth a

factual basis to support the deliberate indifference requirement. The

District’s response, or lack thereof, to the harassment reflects the

following: (1) the plaintiffs were not contacted by the District’s Title IX

coordinator (Doc. 1 ¶¶100, 109(a), 117(a)); (2) the plaintiffs were not

informed of their respective minor child’s rights under Title IX regarding:

supportive measures (Id. ¶¶ 109(b), 117(b); segregation from their

assaulters; the right to file a Title IX complaint against their assaulters;

protection from retaliation, including retaliatory harassment; an

equitable and transparent investigation and disciplinary process; all

corrective action necessary to stop further assault and harassment; and

the right to have advisors represent their interests during the

investigation and disciplinary process (Id. ¶ 101); (3) the defendants had

actual knowledge of the assaults of A.M. and T.K. (Id. ¶¶ 107, 115); (4)

the defendants never acknowledged that the assaults were sexual in

nature or investigated the assaults as attempted sexual assault (Id.

109(c), 117(c)); (5) no one from the District ever made a Childline report

under the Pennsylvania Child Protective Services Law, 23 Pa. Cons. Stat.

Ann. § 6319 (Id. 109(d), 117(d)); (6) the defendants characterized the

assaults as “horseplay” and “hazing” (Id. ¶¶ 109(e), 117(e)); (7) the

defendants created a hostile educational environment that tolerated

male-on-male sexual assault and harassment (Id. ¶¶ 109(f), 117(f)); (8)

the defendants refused to institute the necessary corrective action to

remedy the hostile educational environment and to ensure A.M.’s

continued enrollment and T.K.’s equal access to his education (Id. ¶¶

109(g), 117(g)); and (9) the defendants failed to provide adequate training

for the District’s employees and other school officials on sexual

harassment and assault, retaliation, and mandatory reporting (Id. ¶¶

109(h), 117(h). The plaintiff has set forth a plausible showing of

entitlement to relief for sexual harassment under Title IX. Thus, the

defendants’ motion to dismiss this claim will be denied.

(2) The plaintiff has set forth a viable claim

for retaliation under Title IX.

The defendants urge us to dismiss S.M.’s (for A.M.) retaliation

count because the complaint is devoid of facts sufficient to demonstrate

retaliation. Specifically, the defendants contend that there is no

actionable conduct attributed to any defendant from which liability

against the District could arise under Title IX, and there are no

allegations sufficient to establish the causation prong of the claim. We

disagree.

Although the statute does not specifically mention retaliation, it is

settled that retaliatory conduct is within the broad prohibition of

‘discrimination’ made unlawful by Title IX. Jackson v. Birmingham Bd.

of Educ., 544 U.S. 167, 174, (2005). To establish a prima facie case of

retaliation, a plaintiff must show (1) that he or she engaged in protected

activity; (2) defendant had knowledge of the protected activity; (3)

adverse school-related action was taken against plaintiff; and (4) a causal

connection between the protected activity and the adverse action. Yan v.

Penn State Univ., 529 Fed. App’x 167, 171 (3d Cir. 2013) (citing Papelino

v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 91 (2d Cir.

2011)).

Here, the plaintiffs alleged that the individual defendants had

sufficient involvement as we outlined above. For example, Kinder told

S.M. and A.M. that they had no right to be present at the first disciplinary

hearing and they were prohibited from knowing the outcome of the

hearing. (Doc. 1 ¶¶ 58-61.) Kinder also excluded them from attending

and participating in the second disciplinary hearing and a special

meeting of the school board. (Id. ¶¶ 62-64, 78-79.) Kinder accused A.M.

of lying. (Id. ¶ 83.).

To establish the requisite causal connection, a plaintiff must allege

facts to demonstrate either: “(1) an unusually suggestive temporal

proximity between the protected activity and the allegedly retaliatory

action, or (2) a pattern of antagonism coupled with timing to establish a

causal link.” Frazer v. Temple Univ., 25 F. Supp. 3d 598, 615 (E.D. Pa.

2014) (citing Cooper v. Menges, 541 Fed. App’x 228, 232 (3d Cir.2013).

Here, the defendants argue that there are no allegations to establish that

A.M.’s conduct of reporting the alleged assault specifically caused the

District to act in a manner that caused harm to A.M. (Doc. 24, at 24.)

The complaint alleges that the defendants retaliated against A.M. by: (1)

attempting to discredit him by calling him a liar (Doc. 1 ¶ 122(a); (2)

refusing to properly investigate the assault (Id. ¶122(b); (3) refusing to

institute the necessary corrective action to remedy the hostile

educational environment A.M. faced and to ensure his continued

enrollment at school (Id. ¶122(c); and (4) making a condition of A.M.’s

education that he suffer a hostile educational environment in which the

first sexual assault was tolerated, thereby enabling the second attempted

sexual assault (Id. ¶122(d). All these acts of retaliation caused A.M. to

suffer damage, including being barred from accessing his education. (Id.

¶123.) Thus, we find that the causation element has been adequately

pled. These allegations are sufficient to defeat the defendants’ motion to

dismiss the retaliation claim.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motion to dismiss will be

denied and the action will be permitted to proceed. The defendants will

be directed to answer the complaint.

An appropriate order follows.

Dated: March 2, 2023 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge