Mathews v. Abington Heights School District

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CHRISTOPHER MATHEWS and

KERRY MATHEWS, individually,

and as parents and natural

guardians of G.M., a minor,

Plaintiffs, CIVIL ACTION NO. 3:22-CV-00959

v. (SAPORITO, M.J.)

ABINGTON HEIGHTS SCHOOL

DISTRICT,

Defendant.

MEMORANDUM

This is a federal civil rights action, brought by plaintiffs

Christopher and Kerry Mathews, individually and as parents and

natural guardians of their minor child, G.M. Appearing through counsel,

the plaintiffs commenced this action by filing a complaint in state court

on May 26, 2022. (Doc. 2.) The lone named defendant, Abington Heights

School District (the “School District”), timely removed the action to this

court on June 15, 2022. (Doc. 1.)

The matter has been referred to the undersigned United States

magistrate judge on consent of the parties, pursuant to 28 U.S.C. § 636(c)

and Fed. R. Civ. P. 73. The defendant has filed a Rule 12(b)(6) motion to

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

be granted. (Doc. 5.) The motion is fully briefed and ripe for decision.

(Doc. 6; Doc. 8; Doc. 9.)

I. ALLEGATIONS OF THE COMPLAINT

In December 2021, G.M. was a 10th grade student at Abington

Heights High School. He was and continues to be an exemplary honor roll

student with no disciplinary history at Abington Heights High School.

In the early morning hours of December 20, 2021, shortly after

midnight, G.M.’s parents received a telephone call from police requesting

that they meet with officers outside their home to discuss an issue

involving G.M. and an anonymous tip that had been submitted through

the Safe2Say Something anonymous reporting system (“S2SS”).1

G.M.’s parents met with two police officers inside the garage of their

home. During that meeting, the police officers informed the parents what

the S2SS anonymous reporting system was, and they informed G.M.’s

parents that an anonymous tip about G.M. had been submitted.

1 S2SS is an anonymous reporting system established by the

Commonwealth of Pennsylvania for individuals who may be a risk to

themselves or others, and any member of a school community, including

students, can make a report anonymously via an app, through a website

at Safe2SayPA.org, or by calling 1-844-SAF2SAY (1-844-723-2729).

Specifically, the police officers informed G.M.’s parents that an

anonymous tip was submitted indicating that G.M. had made statements

that he had two firearms in his possession and that he was going to

Abington Heights High School on Monday, December 20, 2021, to “shoot

people on his list.”

At the time, G.M. had no access to any firearms. In fact, he had

been in quarantine due to COVID-19 exposure and would not be eligible

to return to school until December 22, 2021.

The police officers requested to speak to G.M., who told the officers

that he did not have access to any firearms, that he never made any

statements about shooting anyone, and that he never created a list of

people he intended to shoot at Abington Heights High School.

At that time, the police officers indicated that they believed the

anonymous tip to have been false. But the plaintiffs were also informed

that G.M. was considered suspended from the school pending the school’s

investigation. They were advised that they should await a telephone call

from the superintendent of the School District before G.M. could return

to school.

Shortly after the police officers departed, G.M.’s mother advised

him to contact his friends in an attempt to identify who made the

anonymous false tip via S2SS, and why they made that tip. G.M. spoke

with his fellow classmates, L.R. and P.M., both minors, who informed

G.M. that another classmate, S.J., had “joked” about submitting an

anonymous false tip regarding G.M. via S2SS. According to L.R. and

P.M., they had been engaged in a game of Fortnite2 together with G.M.

and S.J., which led to a plot to make an anonymous false tip about G.M.

During a game of Fortnite, the four players discussed how the high

school was “a ghost town” on the prior Friday night due to threats that

had circulated via social media regarding possible mass shootings in

schools across the nation.3 At that point in the conversation, S.J. stated

that he should submit an anonymous false tip regarding G.M. via S2SS.

2 See generally Pellegrino v. Epic Games, Inc., 451 F. Supp. 3d 373,

378 (E.D. Pa. 2020) (“Fortnite is a battle royale video game, a ‘genre that

blends the survival, exploration and scavenging elements of a survival

game with last-man-standing gameplay.’ In this format, ‘up to 100

players, alone, in pairs or in groups, compete to be the last player of group

alive’ by using weapons and other forms of violence to eliminate other

players.”) (citation omitted).

3 See, e.g., Hannah Natanson & Laura Meckler, Threats, Hoaxes

Add to School Stressors, Wash. Post, Dec. 21, 2021, at A1 (“[I]n a

‘challenge’ last week that swept the social network TikTok, students

promoted school shootings to take place this past Friday—for many, the

last day of class before winter break. Schools from D.C. to California

closed for the day or added police.”).

S.J. then recorded and shared footage of himself via the Snapchat

application making the anonymous false tip, but the recording

disappeared once it was viewed, before the other players could record or

save it.4

At approximately 1:30 a.m. on December 20, 2021, L.R. and P.M.

repeated their statements to a police officer regarding S.J.’s plan to

submit an anonymous tip regarding G.M.

That same day, G.M.’s mother received a telephone call from the

Vice Principal at Abington Heights High School,5 who indicated that,

after having interviewed S.J., and despite S.J.’s statements in his own

defense, the Vice Principal ultimately believed the tip to be false and

G.M. to be the “victim.” Nevertheless, and despite his innocence, the Vice

Principal suggested that G.M. refrain from returning to school until after

the impending winter holiday vacation, and she indicated that she was

continuing to investigate and interview students involved.

4 See generally Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 S.

Ct. 2038, 2043 (2021) (“Snapchat [is] a social media application that

allows users to post photos and videos that disappear after a set period

of time.”).

5 The complaint does not identify the non-party vice principal, but

merely refers to her by title.

Even though police and the Vice Principal had already deemed the

tip to be false, she still chose to conduct interviews of certain students

involved in the incident, including L.M. When interviewing L.M., the Vice

Principal asked open-ended questions such as “Does G.M. make you

nervous?” and “Do you feel as though G.M. would shoot someone?” The

events of December 20, 2021, were not discussed with L.M. during this

interview; instead, the focus was on the unfounded possibility that G.M.

had a propensity for violence. Upon information and belief, the plaintiffs

allege that none of the students interviewed regarding this incident were

advised of the sensitivity of the matter and the damage it could cause to

G.M.

On December 21, 2021, G.M.’s mother was contacted by the Vice

Principal, who told her that G.M. had been “cleared of the matter” and

that School District faculty or staff felt that G.M. was “the victim.” The

Vice Principal further informed G.M.’s mother that S.J. had been

suspended and that G.M.’s suspension was being lifted and his absences

attributed to COVID-19, and she instructed G.M.’s mother to contact her

immediately if G.M. faced any negative repercussions as a result of the

incident.

Faculty and staff were not informed of G.M.’s exoneration at that

point in time.

G.M. was able to return to school on December 22, 2021. Naturally,

he was extremely nervous to return to school, as he was unsure how his

fellow students would respond to his presence considering the false tip.

G.M. was contacted by a friend and fellow student, K.B., who

informed G.M. that an unidentified student was asking other students

“Where is your blue shirt so that G.M. does not shoot you?”

G.M.’s mother immediately tried to contact the Vice Principal, who

was unavailable, and she ultimately spoke with the Principal at Abington

Heights High School.6 The Principal assured G.M.’s mother that the

comments would be investigated and addressed, and he acknowledged

that wearing blue was a detail mentioned in the false tip regarding G.M.

G.M.’s mother grew concerned that these specific details had been

shared within the high school, as she believed rumors about G.M. being

a potential school shooter could essentially destroy G.M.’s life.7 At that

6 The complaint does not identify the non-party principal, but

merely refers to him by title.

7 It is not clear from the complaint whether she expressed this

concern to the Principal during that phone call.

point, the Principal informed G.M.’s mother that he would not send an

email or text message to faculty or staff for fear of “calling more

attention” to the situation, but that faculty and staff at Abington Heights

High School would be made aware that G.M. was innocent.

When G.M. returned to school on December 22, 2021, an

unidentified student addressed him as “shooter” during first period.

During third period that same day, in a class of approximately

twenty students, G.M. was addressed by his third period teacher,

identified only as “Teacher,” who said: “I am hearing rumors. Are they

true?”8 Teacher initiated a dialogue between the students in the

classroom regarding the situation, and G.M.’s third period classmates all

began to chime in regarding what they had heard about the situation.

When G.M. attempted to defend himself, Teacher interjected and began

to lecture G.M., stating “What were you thinking?” and insinuating that

S.J.’s false tip that G.M. had made certain threats was true. Another

teacher then entered the classroom, at which point Teacher pointed to

G.M. and asked: “Did you hear what this kid did?”

8 The complaint does not identify the non-party teacher, but merely

refers to him by position title.

Teacher’s statements created a ripple effect, and during sixth

period that same day, G.M. was approached by a group of students who

asked him if the rumors were true, at which point he had to explain the

situation and reiterated that the rumors were not true. As G.M. was

leaving school that day, another student yelled at G.M. in the hallway,

calling him “shooter.”

G.M.’s mother once again tried to contact the Vice Principal, who

was unavailable, and she once again spoke with the Principal. G.M.’s

mother expressed her concern that faculty and staff continued to

perpetuate the incorrect belief that G.M. had made statements regarding

a potential school shooting. The Principal promised that faculty and staff

would be stationed in the hallways so G.M. was not harassed by his fellow

students. The Principal, however, refused to release any information to

G.M.’s mother regarding disciplinary action being taken against S.J.,

other than noting that students in this type of situation could face a

maximum of ten days of suspension, and that the School District would

need to determine if any additional action needed to be taken.

While G.M.’s mother was speaking with the Principal, the Vice

Principal left a voicemail for her apologizing for G.M.’s “experience” that

day. In that voicemail, the Vice Principal stated that she did not address

the specific statements made to G.M. that day because she was “unable

to get that kid before the day ended.” She further stated that she did not

think this was “a widespread situation” because she had only spoke with

two students about it.

G.M.’s mother than contacted the Assistant Principal at Abington

Heights High School9 and once again expressed her concerns that G.M.’s

reputation and well-being had suffered irreparable damage as a result of

the incident and the manner in which it was handled by the high school

and the School District. In light of the repeated requests by G.M.’s

mother, the Assistant Principal agreed to send an e-mail to all faculty

and staff of Abington Heights High School exonerating G.M.

The Assistant Principal subsequently sent an email to faculty and

staff on December 23, 2021, stating that the “Safe2Say report accusing

[G.M.] of possibly threatening the school” was investigated and found to

be false. Unfortunately, by that time, false rumors about G.M. had

already spread throughout the student population of Abington Heights

9 The complaint does not identify the non-party assistant principal,

but merely refers to him or her by title.

High School.

Before the impending winter holiday vacation, G.M. approached

Teacher, once again informed Teacher that he was in fact innocent, and

informed Teacher that he did not appreciate the way Teacher handled

the situation in third period that day, December 23, 2021. Teacher

admitted to mishandling the situation and apologized.

The complaint alleges that, as a result of the acts or omissions of

the School District, G.M.’s reputation has been forever tarnished by false

rumors that he plotted to initiate a school shooting. The complaint

further alleges that, since December 20, 2021, G.M. has exhibited signs

or symptoms of anxiety and depression, including fatigue, insomnia, loss

of interests, low self-esteem, and lack of concentration, and contributing

to absenteeism and tardiness at school. G.M.’s previously excellent

academic performance has suffered as well, with his grades decreasing

drastically, endangering his eligibility for participation in a “Level Up

Lackawanna” program that allows high-achieving students to earn an

early associate degree in select majors by the time they graduate from

high school through a combination of dual enrollment classes.10

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 can be 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)). 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.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

(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

10 See generally Lackawanna Coll., Level Up Program, https://www

.lackawanna.edu/offices-and-departments/admissions/level-up/ (last

visited Mar. 21, 2023).

allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (quoting

Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

documents on which the complaint relies or matters of public record of

which we may take judicial notice. In re Washington Mut. Inc., 741 Fed.

App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of Philadelphia, 246 F.

Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F.

Supp. 2d 579, 588–89 (W.D. Pa. 2008).

III. DISCUSSION

The plaintiffs have filed a five-count complaint against the School

District only.11 It does not name any individual defendants. In Count I,

the plaintiffs assert a § 1983 Fourteenth Amendment equal protection

claim. In Count II, the plaintiffs assert a § 1983 Fourteenth Amendment

substantive due process claim. In Count III, the plaintiffs assert a state-

law defamation claim. In Count IV, the plaintiffs assert a Fourteenth

Amendment “stigma plus” procedural due process claim. In Count V, the

11 In the complaint, the five counts are misnumbered, with two

counts labeled “Count II” and no “Count V.” In their briefs, both sides

have renumbered the counts, referring to Counts I, II, III, IV, and V in

sequence, and we have adopted this numbering for present purposes.

plaintiffs assert a state-law false light invasion of privacy claim. For

relief, the complaint demands an award of compensatory and punitive

damages.

A. Punitive Damages

The complaint seeks an award of punitive damages against the

School District on each of its several § 1983 and state-law claims. As a

municipality, however, the School District is immune from punitive

damages under both § 1983 and state tort law. See City of Newport v. Fact

Concerts, Inc., 453 U.S. 247, 271 (1981); Marko ex rel. Marko v. City of

Philadelphia, 576 A.2d 1193, 1194 (Pa. Commw. Ct. 1990) (citing 42 Pa.

Cons. Stat. Ann. § 8553(c)); Bensalem Twp. v. Press, 501 A.2d 331, 338–

39 (Pa. Commw. Ct. 1985). (See Doc. 6, at 16.) Accordingly, the plaintiffs’

demands for punitive damages will be dismissed for failure to state a

claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure.

B. State-Law Claims

In Counts III and V, the plaintiffs assert state-law defamation and

false light invasion of privacy tort claims against the School District. But

any defamation claim against the School District is barred pursuant to

the immunity conferred by the Pennsylvania Political Subdivision Tort

Claims Act (“PPSTCA”), 42 Pa. Cons. Stat. § 8541 et seq. See Martin v.

City of Reading, 118 F. Supp. 3d 751, 779–80 (E.D. Pa. 2015); Adams v.

Luzerne Cnty., 36 F. Supp. 3d 511, 525 (M.D. Pa. 2014); Klump v.

Nazareth Area Sch. Dist., 425 F. Supp. 2d 622, 638 (E.D. Pa. 2006).

Likewise, the school district is immune to invasion of privacy by false

light claims under the PPSTCA. See Klump, 425 F. Supp. 2d at 636.

Accordingly, the plaintiffs’ state-law claims for defamation (Count III)

and false light invasion of privacy (Count V) will be dismissed for failure

to state a claim upon which relief can be granted, pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure.

C. § 1983 Substantive Due Process

In Count II of the complaint, the plaintiffs assert a § 1983

Fourteenth Amendment substantive due process claim.

“Substantive due process is a component of the Fourteenth

Amendment that protects individual liberty against certain government

actions regardless of the fairness of the procedures used to implement

them.” Nekrilov v. City of Jersey City, 45 F.4th 662, 680 (3d Cir. 2022)

(brackets and internal quotation marks omitted).

To prevail on a substantive due process claim

challenging a state actor’s conduct, a plaintiff must

establish as a threshold matter that he has a protected

property interest to which the Fourteenth

Amendment’s due process protection applies. Whether

a property interest is protected for purposes of

substantive due process is a question that is not

answered by reference to state law. Rather, for a

property interest to be protected for purposes of

substantive due process, it must be “fundamental”

under the United States Constitution.

Hill v. Borough of Kutztown, 455 F.3d 225, 234 n.12 (3d Cir. 2006)

(citation and internal quotation marks omitted); see also Newark Cab

Ass’n v. City of Newark, 901 F.3d 146, 155–56 (3d Cir. 2018).

It is well established that “there is no fundamental right to a public

education under the United States Constitution.” Fiedler v. Stroudsburg

Area Sch. Dist., 427 F. Supp. 3d 539, 555 (M.D. Pa. 2019); see also Vicky

M. v. Ne. Educ. Intermediate Unit 19, 486 F. Supp. 2d 437, 456 (M.D. Pa.

2007) (“[T]he substantive component of the Due Process Clause does not

protect educational interests.”). See generally Newark Cab Ass’n, 901

F.3d at 155 (“[T]he only protected property interests we have thus far

deemed fundamental involved ownership of real property.”). Thus, while

a state-created right to a public education may be protected by procedural

due process, it may not form the foundation of a substantive due process

claim. See Doe #1 v. Delaware Valley Sch. Dist., 572 F. Supp. 3d 38, 67–

68 (M.D. Pa. 2021).

Accordingly, the plaintiffs’ § 1983 substantive due process claim

(Count II) will be dismissed for failure to state a claim upon which relief

can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure.

D. § 1983 “Stigma Plus” Procedural Due Process

In Count IV of the complaint, the plaintiffs assert a § 1983

Fourteenth Amendment “stigma plus” procedural due process claim.

“To state a claim under § 1983 for deprivation of procedural due

process rights, a plaintiff must allege that (1) he was deprived of an

individual interest that is encompassed within the Fourteenth

Amendment’s protection of ‘life, liberty, or property,’ and (2) the

procedures available to him did not provide ‘due process of law.’” Hill, 455

F.3d at 233–34.

In this count, the plaintiffs allege that G.M. suffered harm to his

reputation, which in turn affected his ability to perform his “job” of

attending school as a result of the School District’s mishandling of

investigation into and communication about the December 20, 2021,

incident, thus depriving him of a liberty interest protected by the due

process clause.12 But, as the Third Circuit has explained,

reputation alone is not an interest protected by the Due

Process Clause. Rather, to make out a due process

claim for deprivation of a liberty interest in reputation,

a plaintiff must show a stigma to his reputation plus

deprivation of some additional right or interest. We

have referred to this as the “stigma-plus” test.

Hill, 455 F.3d at 236 (footnote, citations, and internal quotation marks

omitted); see also D&D Assocs., Inc. v. Bd. of Educ. of N. Plainfield, 552

Fed. App’x 110, 113 (3d Cir. 2014) (“[R]eputation damage is not

actionable unless it occurs in the course or is accompanied by a change or

extinguishment of a right or status guaranteed by state law or the

Constitution.”) (internal quotation marks omitted). “[A] sine qua non of a

‘stigma-plus’ suit is that the ‘plus’ must be the result of state action

12 The plaintiffs do not allege that G.M. was actually excluded from

attending school, and thus no protected state-created property interest is

at issue. See generally Oberheim v. Bason, 565 F. Supp. 3d 607, 615–16

(M.D. Pa. 2021) (“The Supreme Court has long held that pursuant to

state law establishing a public school system and requiring children to

attend, students possess a legitimate entitlement to public education as

a property interest which is protected by the Due Process Claus.

However, . . . [s]o long as administrative policies and actions do not

exclude a student from class, they do not implicate the property interest

in public education.”) (footnotes, brackets, and internal quotation marks

omitted).

directly affecting the plaintiff’s rights or status under the law. The fact

that state action may be involved in the ‘stigma’ (i.e., defamation) is not

of itself sufficient to maintain the action.” Sullivan v. State of New Jersey,

602 F. Supp. 1216, 1222 (D.N.J. 1985).

Here, the “plus” proffered by the plaintiffs amounts to emotional

distress which then allegedly resulted, only indirectly, in G.M.’s

diminished academic performance. Such emotional distress or

psychological harm is simply “too ethereal” to satisfy the “plus” element

of the “stigma-plus” test. See Good v. City of Sunbury, 352 Fed. App’x 688,

692 (3d Cir. 2009); see also Baraka v. McGreevey, 481 F.3d 187, 209 &

n.17 (3d Cir. 2007); Kelly v. Borough of Sayreville, 107 F.3d 1073, 1076,

1078 (3d Cir. 1997). The reputational damage caused by the School

District’s allegedly mishandled investigation and communication with

respect to G.M. and the December 20, 2021, incident simply does not rise

to the level of a constitutional deprivation. See Marcolongo v. Sch. Dist.

of Philadelphia, No. Civ.A. 98-5196, 1999 WL 1011899, at *8 (E.D. Pa.

Nov. 5, 1999), aff’d, 262 F.3d 404 (3d Cir. 2001) (unpublished table

decision).

Accordingly, the plaintiffs’ § 1983 “stigma plus” procedural due

process claim (Count IV) will be dismissed for failure to state a claim

upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure.

E. § 1983 Equal Protection

In Count I of the complaint, the plaintiffs assert a § 1983

Fourteenth Amendment “class of one” equal protection claim. See

generally Village of Willowbrook v. Olech, 528 U.S. 562, 564–65 (2000)

(per curiam) (recognizing “equal protection claims brought by a ‘class of

one,’ where the plaintiff alleges that she has been intentionally treated

differently from others similarly situated and that there is no rational

basis for the difference in treatment”).13 The plaintiffs allege that the

13 “A plaintiff stating a claim under the Equal Protection Clause

must allege that [(1)] he has been treated differently because of his

membership in a suspect class or [(2)] his exercise of a fundamental right,

or [(3)] 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. New Sewickley Twp., 160 Fed. App’x

263, 266 (3d Cir. 2005). Here, the plaintiffs do not allege G.M.’s

membership in a suspect class, nor do they identify any exercise of a

fundamental right that may have given rise to his alleged treatment.

Much like we previously noted above in the context of substantive due

process, there is likewise “no fundamental right to a public education

under the United States Constitution” in the equal protection context.

Thomas v. E. Orange Bd. of Educ., 998 F. Supp. 2d 338, 352 (D.N.J. 2014).

In their brief in opposition, the plaintiffs limit their discussion of this

claim to a “class of one” theory of liability.

School District “singling out” of G.M. for investigation of the anonymous

tip, as well as the continued commentary regarding G.M.’s culpability

among unspecified faculty, staff, and students despite his exoneration,14

constituted a violation of his equal protection rights. The plaintiffs

further allege that the School District’s treatment of G.M. was unfair,

selective, and discriminatory in nature. The plaintiffs allege that the

School District’s continued investigation of the anonymous tip despite

already having determined that the tip was false, as well as the School

District’s continued communications regarding G.M.’s culpability,15 were

14 We note that, other than the comments made by G.M.’s

unidentified third period teacher, the complaint pleads no facts

whatsoever regarding such commentary by any School District

administrator, faculty, or staff.

15 We note that, other than an email by the Assistant Principal

advising faculty and staff that the S2SS report accusing G.M. of making

threats had been investigated and found to be false, the complaint pleads

no facts whatsoever regarding any such communication by the School

District or its administrators. Indeed, the gist of the facts alleged in the

plaintiffs’ complaint appears to be not that school administrators

communicated false or defamatory information about G.M., but that they

did not immediately and affirmatively communicate their finding that

the anonymous tip about G.M. was false, passively allowing unfavorable

and untrue rumors and innuendo about G.M. to circulate among

members of the school community. The plaintiffs’ argument in their

opposition brief underscores this impression. (See, e.g., Doc. 8, at 13

(“Without a fragment of poise, rationality, or professionalism, the [School

District] quickly tore down the walls secluding the situation since it took

(continued on next page)

without legal cause and thus constituted a violation of his equal

protection rights.

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

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

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

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

Supreme Court of the United States established that municipalities and

other local governmental units are included among those “persons”

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

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

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

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

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

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

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

alleged to be unconstitutional either “implements or executes a policy

no affirmative steps ensuring confidential maintenance.”) (emphasis

added); id. (arguing that the School District “neglected to ultimately quell

the issue through a simple mass text and/or e-mail to staff and faculty

elucidating [G.M’s] blamelessness”).)

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.

Municipalities are only subject to § 1983 liability for three sorts of

practices.

The first is where the appropriate officer or entity

promulgates a generally applicable statement of policy

and the subsequent act complained of is simply an

implementation of that policy. The second occurs where

no rule has been announced as policy[,] but federal law

has been violated by an act of the policymaker itself.

Finally, a policy or custom may also exist where the

policymaker has failed to act affirmatively at all,

though the need to take some action to control the

agents of the government is so obvious, and the

inadequacy of existing practice so likely to result in the

violation of constitutional rights, that the policymaker

can reasonably be said to have been deliberately

indifferent to the need.

Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003)

(citation, footnote, brackets, and internal quotation marks omitted).

With respect to the first category, “[a] plaintiff must identify the

challenged policy, attribute it to the [municipality] itself, and show a

causal link between execution of the policy and the injury suffered.”

Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984). Here,

the complaint has failed to identify any affirmative School District policy

at all, nor any facts to suggest a causal link between such a policy and

any alleged injury to G.M.16

16 Citing Leatherman v. Tarrant County Narcotic Intelligence and

Coordination Unit, 507 U.S. 163 (1993), the plaintiffs argue in their

opposition brief that they are not subject to a heightened pleading

standard, and thus they need not specify any policy, custom, or practice

to plausibly state a Monell municipal liability claim against the School

District. The plaintiffs, however, misapprehend the holding of

Leatherman and its interplay with the Supreme Court’s subsequent

decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Though Leatherman . . . makes plain that § 1983

claims are not subject to a heightened pleading

standard, Iqbal’s unambiguous extension of Twombly

to ‘all civil actions’ leaves the ordinary notice pleading

requirement intact for those claims. . . . Under this

standard, a pleading may not simply offer labels and

conclusions, and threadbare recitals of the elements of

a cause of action, supported by mere conclusory

statements, do not suffice. Rather, factual allegations

must be enough to raise a right to relief above the

speculative level. . . . Essentially, a plaintiff must

(continued on next page)

With respect to the second category, “[a] course of conduct is

considered to be a ‘custom’ when, though not authorized by law, such

practices of state officials are so permanently and well-settled as to

virtually constitute law.” McTernan v. City of York, 564 F.3d 636, 658 (3d

Cir. 2009). As with an affirmative policy, “[t]o satisfy the pleading

standard, [a plaintiff] must identify a custom . . . and specify what

exactly that custom . . . was.” Id. Here, the complaint has failed to plead

any facts to identify such a custom. Moreover, “[c]ustom requires proof of

knowledge and acquiescence by the decisionmaker.” Id. As the Supreme

Court of the United States has instructed,

[t]he fact that a particular official—even a

policymaking official—has discretion in the exercise of

particular functions does not, without more, give rise

to municipal liability based on an exercise of that

discretion. The official must also be responsible for

establishing final government policy respecting such

activity before the municipality can be held liable.

provide enough facts to raise a reasonable expectation

that discovery will reveal evidence of the necessary

element.

Washington v. City of Philadelphia, Civil Action No. 11-3275, 2012 WL

85480, at *4 (E.D. Pa. Jan. 11, 2012) (citations, brackets, and internal

quotation marks omitted). As discussed in the accompanying text and

that which follows, the plaintiffs have failed to satisfy the minimum

requirements to state a plausible Monell municipal liability claim.

Pembaur v. City of Cincinnati, 475 U.S. 469, 481–83 (1986) (emphasis

added, citation and footnotes omitted). “The final policy maker for a

school district in Pennsylvania is typically the school board or the

superintendent.” E.N. v. Susquehanna Twp. Sch. Dist., No. 1:09-CV-

1727, 2011 WL 3608544, at *8 (M.D. Pa. July 5, 2011); see also Flood v.

Sherk, 400 F. Supp. 3d 295, 307–08 (W.D. Pa. 2019) (district school board

had final policymaking authority over student behavior and discipline);

Goodwin v. Pennridge Sch. Dist., 309 F. Supp. 3d 367, 379 (E.D. Pa. 2018)

(superintendent); Dawn L. v. Greater Johnstown Sch. Dist., 614 F. Supp.

2d 555, 570–71 (W.D. Pa. 2008) (superintendent). The complaint here

fails to allege any conduct or knowledge and acquiescence by the school

board or superintendent of the School District. It alleges only the conduct

or knowledge of unnamed subordinate administrators and faculty—the

high school principal, vice principal, and assistant principal, and a

teacher—none of whom is a final policymaker whose conduct or

knowledge may be imputed to the School District for Monell purposes.

See Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 144 n.1 (3d Cir. 2002)

(guidance counselor did not have final policymaking authority that could

bind a school district for § 1983 municipal liability purposes); Moore v.

Solanco Sch. Dist., 471 F. Supp. 3d 640, 668 (E.D. Pa. 2020) (high school

football coach); Flood, 400 F. Supp. 3d at 308 (school principal); see also

id. at 311 (finding that principal’s knowledge regarding discriminatory

enforcement of sexual harassment policies could not be imputed to school

board).

With respect to the third and final category, “[a] municipality may

be held liable under § 1983 for failure to train, monitor, or supervise [its

employees], [but] only where the plaintiff can ‘identify a failure to provide

specific training that has a causal nexus with their injuries and must

demonstrate that the absence of that specific training can reasonably be

said to reflect a deliberate indifference to whether the alleged

constitutional deprivations occurred.’” Watson v. Philadelphia Hous.

Auth., 629 F. Supp. 2d 481, 487 (E.D. Pa. 2009) (quoting Gilles v. Davis,

427 F.3d 197, 207 n.7 (3d Cir. 2005)); see also Nawuoh v. Venice Ashby

Cmty. Ctr., 802 F. Supp. 2d 633, 645 (E.D. Pa. 2011) (“While municipal

liability under § 1983 originally hinged on affirmative policies, or

customs, modern jurisprudence has extended it to a [municipality]’s

failure to train, supervise and discipline its officers.”). But here, the

plaintiffs have “neither identified the specific training the [School

District] should have offered which would have prevented the deprivation

of their constitutional rights nor established that such training was not

provided.” See Reitz v. Cnty. of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).

Beyond vague assertions that existing policies were inadequate, see

Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995) (finding

vague assertions of policy deficiencies insufficient to impose liability

under Monell and § 1983), the plaintiffs point to no prior incidents from

which we might reasonably infer that the School District and its

governing officials had actual or constructive knowledge of the purported

policy deficiencies upon which the plaintiffs’ § 1983 Monell claims might

be premised. See Connick v. Thompson, 563 U.S. 51, 62 (2011) (“A pattern

of similar constitutional violations by untrained employees is ‘ordinarily

necessary’ to demonstrate deliberate indifference for purposes of failure

to train. . . . Without notice that a course of training is deficient in a

particular respect, decisionmakers can hardly be said to have

deliberately chosen a training program that will cause violations of

constitutional rights.”); see also City of Oklahoma City v. Tuttle, 471 U.S.

808, 823–24 (1985) (“[A] single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof of the incident

includes proof that it was caused by existing, unconstitutional municipal

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

Brown v. City of Pittsburgh, 86 F.3d 263, 292–93 (3d Cir. 2009)

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

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

between the incident and some municipal policy”).

Ultimately, the complaint suggests that the School District should

be held liable because the allegedly unconstitutional conduct directed at

G.M. by the school administrators and faculty could have been prevented

if the School District had simply implemented better policies. But policies

are not deficient simply because they are not the best. See Serafin v. City

of Johnstown, 53 Fed. App’x 211, 215 (3d Cir. 2002) (“The fact that the

City’s policy was not the most effective policy possible, however, does not,

without more, create an unreasonable risk to detainees’ safety or

demonstrate the City’s indifference to such a risk, and there is no ‘more’

here.”); see also Koreny v. Smith, Civil Action No. 17-371, 2018 WL

1141513, at *16 (W.D. Pa. Mar. 2, 2018) (“An assertion that a

constitutional injury could have been avoided with more or better

training is insufficient.”).

Accordingly, the plaintiffs’ § 1983 equal protection claim (Count I)

will be dismissed for failure to state a claim upon which relief can be

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

Procedure.17

F. Leave to Amend

The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be

inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir. 2002). This instruction applies equally to pro se plaintiffs and

those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

2004). In this case, it is not clear that amendment would be futile.

Therefore, the plaintiffs will be granted leave to file an amended

complaint.

IV. CONCLUSION

For the foregoing reasons, the defendant’s motion to dismiss will be

granted and the complaint will be dismissed for failure to state a claim

17 We note that Monell imposes the same requirements regarding

identification of a relevant municipal policy, custom, or practice with

respect to the plaintiffs’ § 1983 due process claims.

upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure. The plaintiff will be permitted to attempt to

cure any pleading deficiencies and file an amended complaint. If the

plaintiff fails to file a timely amended complaint, the clerk will be

directed to mark this case as closed.

An appropriate order follows.

Dated: March 22, 2023 s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.

United States Magistrate Judge