FG v. Jersey Shore Area School District

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

F.G., a Minor, by and through her No. 4:22-CV-01120

Parents/Natural Guardians JENNA

SWISHER AND REGINALD (Chief Judge Brann)

GALLMAN,

Plaintiff,

v.

JERSEY SHORE AREA SCHOOL

DISTRICT,

Defendant.

MEMORANDUM OPINION

OCTOBER 6, 2023

I. BACKGROUND

In June 2023, F.G. filed a three-count Second Amended Complaint through

her parents Jenna Swisher and Reginald Gallman against Defendant, Jersey Shore

Area School District (“JSASD”). Defendant subsequently filed a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim

seeking to dismiss Counts I and II of the Second Amended Complaint. Pursuant to

42 U.S.C. § 1983, Count I alleges a violation of the Equal Protection Clause of the

Fourteenth Amendment, and Count II asserts a violation of the Due Process Clause

of the Fourteenth Amendment. The motion is now ripe for disposition; for the

reasons that follow, it is granted in part and denied in part.

II. DISCUSSION

A. Motion to Dismiss Standard

Under Federal Rule of Civil Procedure 12(b)(6), courts dismiss a complaint,

in whole or in part, if the plaintiff fails to “state a claim upon which relief can be

granted.” Following the landmark decisions of Bell Atlantic Corp. v. Twombly1 and

Ashcroft v. Iqbal,2 “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’”3 The United States Court of Appeals for the Third Circuit has instructed

that “[u]nder the pleading regime established by Twombly and Iqbal, a court

reviewing the sufficiency of a complaint must take three steps”: (1) “take note of the

elements the plaintiff must plead to state a claim”; (2) “identify allegations that,

because they are no more than conclusions, are not entitled to the assumption of

truth”; and (3) “assume the[] veracity” of all “well-pleaded factual allegations” and

then “determine whether they plausibly give rise to an entitlement to relief.”4

B. Facts Alleged in the Second Amended Complaint

The facts alleged in the Second Amended Complaint, which this Court must

accept as true for the purposes of this motion, are as follows. Over the course of her

academic career at the JSASD, F.G. has been the victim of continuous racial

1 550 U.S. 544 (2007).

2 556 U.S. 662 (2009).

3 Id. at 678 (quoting Twombly, 550 U.S. at 570).

4 Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal quotations

harassment and bullying.5 She is biracial, and there are only seven to eight black

high school students in the District.6

1. Discrimination Experienced by F.G.

F.G. first experienced racial discrimination in October 2018 as a middle

school student when a fellow student asked her “when does your dad get out of

jail?”7 The student reasoned that “all black kids’ dads are in jail.”8 This student then

began to call her “Tanya” because it is “a black girl name.”9 Her parents spoke with

middle school Principal Keith Veldhuis about this behavior, but the student was not

disciplined.10

In February 2019, students sang “Baa Baa Black Sheep” at F.G., which she

“believed to be discriminatory.”11 Her mother, Jenna Swisher, called Veldhuis that

same day, but no students were disciplined.12 Swisher also emailed Veldhuis and

Assistant Middle School Principal Armbruster about this incident in March 2019 but

received no response.13 During this period, students also frequently whispered the

“n-word” while standing behind her.14

5 Doc. 21 (Second Amended Compl.) ¶¶ 2, 8, 47, 97.

6 Id.

7 Id. ¶¶ 23-24.

8 Id. ¶ 25.

9 Id. ¶ 26.

10 Id. ¶¶ 27-28.

11 Id. ¶ 29.

12 Id. ¶ 30.

13 Id. ¶ 31.

F.G.’s mother emailed then-Superintendent Wenrich about the October 2018,

February 2019, and other, ongoing episodes of racial harassment.15 Wenrich said

that she would “discuss [the] lack of diversity celebrations at the next administrative

team meeting.”16 Based on this response, F.G. avers that Wenrich failed to remedy

the situation.17

On February 20, 2020, a video of JSASD high school students chanting the

“n-word” was shown on the news.18 In response to this video, on February 24, 2020,

Swisher met with Assistant Superintendent Kenneth Dady. During this meeting, she

raised the lack of “changes in [the] curriculum, programs, safety, or discipline for

harassment or racial slurs.”19 The District ultimately took no actions to correct the

“racially discriminatory behavior” seen in the video.20 F.G. also observed “a student

wearing a ‘Trump 2020’ mask” in August 2020, and when confronted with this issue,

the Defendant similarly took no action.21

Later that academic year, a student swung a metal water bottle at F.G. and

threatened to “drag” her.22 This student faced no disciplinary action despite being

15 Id. ¶ 34.

16 Id. ¶ 36.

17 Id. ¶ 37.

18 Id. ¶ 40; Doc. 21, Ex. A (2020 News Clip). The same network had previously reported in 2010

that a black student received a picture of a lynching, and the JSASD’s then-superintendent

acknowledged that the district was “kind of naïve to dealing with diversity.” Doc. 21, Ex. B

(2010 News Clip).

19 Id. ¶¶ 41-43.

20 Id. ¶ 46.

21 Id. ¶ 48.

reported.23 At some point in 2021, a JSASD counselor admitted to Swisher that the

District’s staff needed to be taught how to handle discrimination.24

In the following school year, on October 29, 2021, two students “ran up to

F.G. in the hallway and said: ‘bro this school is filled up with a bunch of n***.’”25

Principal Steven Keen met with F.G. and the school officer, Mr. Fera, about this

incident. Keen and Fera asked her “how do you know [this discriminatory comment]

was intentional?”26 Fera later “discouraged” Swisher from filing a formal report and

told her that he “didn’t even have success” with the “n-word” chant video from

2020.27 Nonetheless, F.G.’s mother filed “a JSASD Complaint of

Harassment/Bullying Report Form” on October 31, 2021.28 She “also emailed

[Superintendent Brian] Ulmer about the incident, her concerns,” and the formal

complaint.29 Ulmer indicated that he would speak with Dady, but Swisher never

received any follow-up communication.30

On November 9, 2021, students pointed “infrared laser[s]” at F.G., and a

student “jumped in between [her] and another African-American student” and yelled

the “n-word” three times.31 Following these events, Swisher filed another formal

23 Id. ¶ 50.

24 Id. ¶ 51.

25 Id. ¶ 52.

26 Id. ¶¶ 54-56.

27 Id. ¶ 57.

28 Id. ¶ 59.

29 Id. ¶ 62.

30 Id.

complaint.32 Also in November 2021, two students called “another black student a

‘negro’” and asked if referring to Black Friday as “Negro Viernes” was offensive.33

On December 13, 2021, F.G.’s mother emailed Ulmer asking for an update on

her formal complaints.34 Ulmer spoke with F.G. in-person the next day.35 Because

other students saw her meeting with Ulmer, she was labeled a “snitch.”36

The next alleged incident did not occur until March 14, 2022. Two students,

B (last name unknown) and E (last name unknown), “threw a banana at an African-

American student and yelled [the] ‘n-word.’”37 E “received one day of in-school

lunch detention on March 15, 2022,” but he still “sat in the lunchroom with all the

[other] students” that day.38 E also “threw things into F.G.’s hair and whispered” the

“n-word” to her throughout class the following day.39 Despite repeatedly harassing

F.G. and other black students, E has only ever received one lunch detention.40

Due to this “ongoing racial discrimination, F.G. suffered a breakdown at home

on March 17, 2022.”41 Her parents then met with Dady on March 22, 2022.42 When

asked about the previously filed complaints, Dady said they were still reviewing the

32 Id. ¶ 65.

33 Id. ¶ 67.

34 Id. ¶ 66.

35 Id. ¶ 69.

36 Id. ¶ 70.

37 Id. ¶ 74.

38 Id. ¶¶ 74-76.

39 Id. ¶ 78.

40 Id. ¶ 79.

41 Id. ¶ 80.

information.43 Later that day, Swisher and Reginald Gallman also met with Keen

and Assistant Principal Elizabeth Seagraves.44 They “expressed fear for F.G.’s safety

and [concern] that the district [was] not taking [their] concerns seriously.”45 No

follow-up regarding the two prior complaints was provided at this meeting.46

On March 23, 2022, a student “directly involved” in the October 2021 episode

called F.G. and her black friend “monkeys.”47 The following day, Swisher emailed

Myers, a school guidance counselor, about this latest incident.48 Myers did not

respond and has not communicated with F.G.’s parents since.49

Most recently, E yelled “today is Tuesday ‘n-word’” at F.G. and another

student yelled “wait a minute I have to get this ‘n-word’ out of my way” on April

26, 2022.50 Neither student faced disciplinary action for this behavior.51

F.G. faces racial discrimination to this day and “[n]o actions have been taken

by [the District] to remedy” these issues.52

43 Id. ¶ 85.

44 Id. ¶ 86.

45 Id.

46 Id. ¶ 87.

47 Id. ¶ 88.

48 Id. ¶¶ 89-90.

49 Id.

50 Id. ¶¶ 91-92.

51 Id. ¶ 93.

2. Relevant JSASD School Policies and Procedures

The JSASD has many policies and procedures concerning racial

discrimination.53 Examples include the need to maintain a discrimination-free

learning environment; to establish “[r]easonably prompt timeframes” to resolve

complaints; and to take “prompt, corrective action[s].”54

The Defendant has delegated to Superintendent Ulmer “the ultimate

administrator decision-making authority” regarding these policies and procedures.55

Assistant Superintendent Dady, Principal Keen, and Assistant Principal Seagraves

have been given the authority to take corrective actions, subject to Ulmer’s review.56

C. Analysis

Defendant argues that Count I (Equal Protection Claim) and Count II (Due

Process Claim) of the Second Amended Complaint must be dismissed. The Court

will address each claim in turn.

1. Plaintiff’s Equal Protection Claim

The District contends that Plaintiff’s equal protection claim should be

dismissed because she failed to identify any affirmative acts taken by the Defendant

that establish a constitutional violation or a specific municipal custom.57

53 Id. ¶ 11.

54 Id. ¶ 13.

55 Id. ¶ 15.

56 Id. ¶¶ 16-18.

In addressing 42 U.S.C. § 1983 suits against a municipal organization, the

plaintiff “may allege that an unconstitutional municipal policy or custom led to his

injuries or that his injuries were caused by a failure or inadequacy by the

municipality that reflects a deliberate or conscious choice.”58 Plaintiffs must also

prove an underlying constitutional violation.59

Municipal policy is made “when a decisionmaker possess[ing] final authority”

issues “a final proclamation, policy, or edict.”60 Custom, on the other hand, is an act

“that has not been formally approved by an appropriate decisionmaker” but is “so

widespread as to have the force of law.”61 In this arena, the Third Circuit requires

plaintiffs to “identify a [specific] custom or policy.”62

A plaintiff “must also allege that the policy or custom was the ‘proximate

cause’ of his injuries” to survive a motion to dismiss.63 This requires the plaintiff to

demonstrate “an affirmative link” between the policy or custom and the alleged

constitutional violation.64 To do this, a plaintiff may show that a municipal

organization “had knowledge of similar unlawful conduct in the past, failed to take

58 Rogers v. Pocono Mt. Sch. Dist., No. 3:21-CV-02072, 2023 U.S. Dist. LEXIS 116235, at *19

(M.D. Pa. July 6, 2023) (citing Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019)).

59 See e.g., Bridges ex rel. D.B. v. Scranton Sch. Dist., 66 F. Supp. 3d 570, 585-88 (M.D. Pa.

2014).

60 Natale v. Camden Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (quoting Kneipp v. Tedder,

95 F.3d 1199, 1212 (3d Cir. 1996)).

61 Id. (quoting Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 404 (1997)).

62 McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009).

63 Est. of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019).

precautions against future violations, and that its failure, at least in part, led to [the

constitutional] injury.”65

If a plaintiff instead alleges a § 1983 failure-to-train claim, different pleading

requirements apply. Rather than alleging an unconstitutional policy, the plaintiff

must demonstrate that the organization’s “failure to train its employees reflects a

deliberate or conscious choice.”66 Deliberate indifference in this context is shown

when: (1) municipal policymakers “know that employees will confront a particular

situation;” (2) the situation “involves a difficult choice or a history of employees

mishandling;” and (3) the “wrong choice by an employee will frequently cause [the]

deprivation of constitutional rights.”67

In the Second Amended Complaint, F.G. alleges an equal protection violation

based on both a municipal policy or custom and a failure to train.

a. Equal Protection Clause Violation

Before turning to the § 1983 municipal liability analysis, Plaintiff’s

underlying constitutional violation must first be evaluated. Defendant cites several

cases to suggest that a school’s failure to address student-on-student bullying cannot

65 Id. (brackets, ellipsis, and internal quotation marks omitted).

66 Id. (internal quotation marks omitted).

67 Moore v. Solanco Sch. Dist., 471 F. Supp. 3d 640, 659 (E.D. Pa. 2020) (citing Carter v. City

lead to a constitutional violation.68 These cases are inapposite because they concern

violations of the Due Process Clause, not the Equal Protection Clause.69

Plaintiff does not assert an equal protection violation claiming she was treated

differently than members of a similarly situated class.70 Instead, she seeks to use the

deliberate indifference doctrine developed by the United States Court of Appeals for

the Second Circuit.71 As this Court previously explained when addressing

Defendant’s first motion to dismiss,72 the Third Circuit has not yet considered

whether the Fourteenth Amendment’s Equal Protection Clause “protects students

from a school’s deliberate indifference to student-on-student harassment,” but at

least two district courts in our Circuit have found the Second Circuit’s reasoning in

Gant to be persuasive.73 This doctrine has also been used by at least one district court

in the Second Circuit to evaluate how a school board of education responded to

68 Doc. 26 (Brief in Support of Motion to Dismiss Second Amended Compl.) at 10-11.

69 See Byrne v. Springfield Sch. Dist., Civ. Act. No. 21-3199, 2021 WL 4847804 (E.D. Pa. Oct.

14, 2021) (concerning a substantive due process violation based on the state created danger

exception); G.S. v. Penn-Trafford Sch. Dist., 813 F. App’x 799, 803 (3d Cir. 2020) (concerning

a due process liberty interest based on the state created danger exception); Lansberry v. Altoona

Area Sch. Dist., 356 F. Supp. 3d 486, 503 (W.D. Pa. 2018) (concerning a bodily integrity

interest under the Due Process Clause); and Bridges, 66 F. Supp. 3d at 585-88 (concerning a

substantive due process violation based on a bodily integrity liberty interest).

70 See e.g., Nabozny v. Podlesny, 92 F.3d 446, 454-58 (7th Cir. 1996).

71 Kindly note that the Second Circuit’s deliberate indifference standard is distinct from the

deliberate indifference standard used to evaluate a § 1983 municipal liability claim based on a

failure-to-train. See Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 140-41 (2d

Cir. 1999).

72 See Doc. 19 (Memorandum Opinion) at 9.

73 See Dickerson v. Wallkill Valley Reg’l High Sch. Bd. of Educ., No. 19-CV-08450KSHCLW,

2020 WL 2847757, at *4 (D.N.J. June 1, 2010); George v. Bd. of Educ. of the Twp. of Millburn,

student-on-student bullying.74 Under the Pennsylvania School Code, boards of

education govern public school districts.75 Applying this standard to Plaintiff’s equal

protection claim against the JSASD is therefore consistent with the Second Circuit’s

development of the deliberate indifference doctrine, and this Court will likewise use

the doctrine to evaluate F.G.’s equal protection claim.

To show deliberate indifference in this context, F.G. must demonstrate that:

(1) she was “in fact harassed by other students” because of her race; (2) “that such

race-based harassment was actually known” to the defendant; and (3) “that the

defendant’s response to such harassment was so clearly unreasonable in light of the

known circumstances as to give rise to a reasonable inference that the defendant

intended for the harassment to occur.”76 The first two prongs are easily established:

F.G. has suffered from racial harassment for several years, and the JSASD

superintendent had actual knowledge of this harassment.77

Finally, the Defendant’s “response to such harassment” must be shown to be

“clearly unreasonable.”78 Despite the severe harassment to which F.G. was

74 See Doe v. Torrington Bd. of Educ., 179 F. Supp. 3d 179, 193-95 (D. Conn. 2016). See also

DiStiso v. Cook, 691 F.3d 226, 240 (2d Cir. 2012) (“Since Gant, it has been clearly established

law in this circuit that claims of intentional race discrimination can be based on the ‘deliberate

indifference’ of school boards, administrators, and teachers to invidious ‘harassment, in the

school environment, of a student by other children or parents’”).

75 See PENNSYLVANIA DEPARTMENT OF EDUCATION, SCHOOL BOARDS, DIRECTORS, AND

TRUSTEES, https://www.education.pa.gov/Schools/Governance/Pages/default.aspx (last

visited October 2, 2023).

76 DiStiso, 691 F.3d at 241 (internal citations and quotation marks omitted).

77 Doc. 21 (Second Amended Compl.) ¶¶ 23-27, 29-31, 34-36, 40-43, 52-62.

subjected, no students faced any disciplinary consequences in the five incidents

reported to the JSASD superintendent.79 In fact, the only student to face any

corrective action served a single lunchtime detention, although this incident was not

known to Ulmer.80 When this factual backdrop is construed in a light most favorable

to the Plaintiff, she has established that the District’s response to this ongoing

harassment was “clearly unreasonable” and raises a “reasonable inference that [the

District] intended for the harassment to occur.”81 Thus, Plaintiff has adequately pled

an Equal Protection Clause violation.

b. Plaintiff’s Municipal Policy or Custom § 1983 Claim

Plaintiff does not allege or identify a formal JSASD policy promoting racial

harassment. Defendant can therefore only be held liable if it implemented a custom

of inadequately addressing racial harassment.

To successfully allege that a custom exists, a plaintiff must show “that a [final]

decision-maker is responsible [for the custom] through acquiescence.”82

Determining if an individual has final policymaking authority “is a question of state

79 Doc. 21 (Second Amended Compl.) ¶¶ 34-36, 40, 62, 66, 69, 100.

80 Id. ¶¶ 74-77.

81 DiStiso, 691 F.3d at 241.

82 Kean v. Henry, 523 F. App’x 879, 881 (3d Cir. 2013) (quoting Chambers v. Sch. Dist. Of Phila.

law,” and their authority must be “final and unreviewable” as to the “particular area

of municipal business in question.”83

At this stage of the proceeding, the allegations concerning Wenrich’s, and

then Ulmer’s, delegated authority as superintendent are sufficient to conclude that

they are final policymakers. The authority given to Dady, Keen, and Seagraves is

subject to “review by the Superintendent.”84 This is fatal to any allegation that they

have final policymaking authority; any reports of racial harassment made

exclusively to Dady, Keen, and Seagraves must therefore be excluded from this

analysis.85 The incidents reported solely to Myers must also be excluded as guidance

counselors are not § 1983 final policymakers.86

Therefore, only the allegations reported to Superintendent Ulmer and former

Superintendent Wenrich are relevant to this analysis. Wenrich and Ulmer were

alerted to five incidents of racial harassment over four years, including two formal

complaints.87 There is no “minimum number” of incidents required, but the Third

Circuit has found five complaints against an officer in less than five years sufficient

83 Moore, 471 F. Supp. 3d at 659 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83

(1986)); Flood v. Sherk, 400 F. Supp. 3d 295, 306 (W.D. Pa. 2019) (quoting Hill v. Borough

of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006)).

84 Doc. 21 (Second Amended Compl.) ¶¶ 16-18.

85 See Brennan v. Norton, 350 F.3d 399, 427-28 (3d Cir. 2003) (citing City of St. Louis v.

Praprotnik, 485 U.S. 112, 127-30 (1988)).

86 See Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 144 n.1 (3d Cir. 2002) (citing Pembaur, 475

U.S. at 483).

87 The five incidents involve students asking F.G. if her father was in prison and calling her

“Tanya”; singing “Baa, Baa Black Sheep” at her; chanting the “n-word” on video; using a slang

version of the “n-word”; and pointing lasers and yelling the “n-word” at F.G. See Doc. 21

to establish a custom of tolerating excessive force.88 In a more recent school case, a

district court in our Circuit noted that “five instances of” disparate sexual misconduct

“disciplinary decisions [over three years] would [have been sufficient], particularly

at the motion to dismiss stage,” to establish a custom.89 These five unaddressed

instances of racial discrimination are therefore sufficient to establish a custom of the

JSASD inadequately responding to racial harassment at this stage of the proceeding.

F.G. must finally demonstrate an “affirmative link between” the custom and

the constitutional violation she suffered.90 Critically, there is no indication that the

Defendant took any actions to prevent future occurrences of student-on-student

racial harassment.91 This failure directly led to the District’s deliberate indifference

to the ongoing harassment and the alleged constitutional violation.92 Defendant’s

motion to dismiss the § 1983 Equal Protection Clause claim in Count I based on a

municipal custom is consequently denied.

c. Section 1983 Failure to Train Claim

To successfully assert a failure to train claim, Plaintiff must show deliberate

indifference on the part of the Defendant.93 Here, it can be inferred that municipal

88 Flood, 400 F. Supp. 3d at 312 (citing Beck v. City of Pittsburgh, 89 F.3d 966, 972-76 (3d Cir.

1996)).

89 Id.

90 Est. of Roman, 914 F.3d at 798.

91 Doc. 21 (Second Amended Compl.) ¶¶ 94-100.

92 Cf. Flood, 400 F. Supp. 3d at 311 (“The assertion that T.F.’s psychological and physical harms

are being exacerbated by ‘enduring the injustice’ of knowing that his accusers have not been

punished is too attenuated from any School District action to demonstrate proximate

causation”).

policymakers were aware that district employees would confront student-on-student

racial harassment under the facts alleged.94

As previously explained by the Court, the choice facing school faculty when

confronted with racial harassment is not difficult.95 Instead, a history of the District

mishandling instances of racial harassment and bullying must be shown. Seven

incidents of racial harassment were reported to the Defendant over four years, but

only one student received a lunch detention.96 These factual allegations sufficiently

support a history of employees mishandling racial harassment and bullying at this

juncture. The lack of any response to the two formal complaints reinforces this

conclusion.97

It must finally be determined whether the “wrong choice by” District

employees “will frequently cause [the] deprivation of constitutional rights.”98

Plaintiff avers that the District failed to provide “additional training or retraining of

students and staff;” to conduct “presentations and/or assemblies;” to disseminate

“educational materials to the staff and/or student body;” and to provide “information,

education or guidance to the public through Board meetings and announcements.”99

This lack of adequate training and the subsequent failure to properly respond to the

94 Id.

95 Doc. 19 (Memorandum Opinion) at 17.

96 Doc. 21 (Second Amended Compl.) ¶¶ 27, 29-30, 48-50, 74-75, 91-93.

97 Id. ¶ 100.

98 Moore, 471 F. Supp. 3d at 659 (citing Carter, 181 F.3d at 357).

racial harassment contributed directly to the constitutional violation at issue. By

failing to correct this inaction, Defendant effectively “communicated a message of

approval” to District personnel.100 This rendered it likely that such constitutional

violations would and will continue in the future.

2. Section 1983 Due Process Claims

Turning now to Defendant’s request to dismiss Count II, the Court will first

evaluate the alleged procedural due process violation and then turn to the substantive

due process claim.

a. Procedural Due Process Claim

To allege a procedural due process violation, plaintiffs must show that they

were “deprived of an individual interest that is encompassed within the Fourteenth

Amendment’s protection of life, liberty, or property and that the available

procedures did not provide due process of law.”101 The deprivation of the protected

interest “must be attributable to the [School] District, not a private actor.”102

F.G. contends that the District’s “actions and failures and refusals to act

[have] deprived [her] of access to educational opportunities or benefits.”103 Under

Pennsylvania law, students have “a legitimate claim of entitlement to a public

100 Moore, 471 F. Supp. 3d at 669.

101 Thompson v. State of Del. Dep’t of Servs. For Child., Youth & Their Fams., 44 F. 4th 188, 194

(3d Cir. 2022) (internal quotation marks omitted).

102 Monn v. Gettysburg Area Sch. Dist., 553 F. App’x. 120, 123 (3d Cir. 2014) (citing Phila. Police

& Fire Ass’n for Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 169 (3d

Cir. 1989)).

education.”104 This is a protected individual interest under the Fourteenth

Amendment.105

F.G. asserts that the JSASD failed to properly follow its procedures to address

the ongoing racial harassment.106 Despite this allegation, “what process is ‘due’ is

not” a statutory issue but instead “is a question of federal constitutional law.”107 In

another student-on-student harassment case, a district court in the Third Circuit

concluded that it would “make no sense” to give a student victim “notice and [an]

opportunity to be heard before” students bullied him “to the extent that his education

was interfered with.”108 F.G. instead alleges that the District has “failed to investigate

or discipline the offenders” and did not “follow [its own] established procedures.”109

However, the allegations demonstrate that F.G. and her parents repeatedly

“complained [through various avenues] about [the] bullying, even if [the JSASD]

did nothing” in response.110 In short, the allegations establish that the JSASD

provided, and F.G. availed herself of, procedures to address the ongoing harassment.

“Thus, the facts of this case simply do not state a claim under the procedural due

process clause.”111

104 Shuman ex rel. v. Penn Manor Sch. Dist., 422 F.3d 141, 149 (3d Cir. 2005).

105 Id.

106 Doc. 29 (Brief in Opposition to Motion to Dismiss Second Amended Compl.) at 19.

107 Alderette v. Lawrence Cty. Career & Techniucal Ctr., No. 18-958, 2018 WL 6680576, at *18

(W.D. Pa. Dec. 19, 2018) (quoting McDaniels v. Flick, 59 F.3d 446, 458 (3d Cir. 1995)).

108 Id. at *13.

109 Id.

110 Id.

b. Substantive Due Process Claim

Generally, “a State’s failure to protect an individual against private violence

simply does not constitute a violation of the Due Process Clause.”112 This typically

prevents school districts from being held liable for student-on-student harassment;

but there are two exceptions to this framework.113 First, when a “special relationship”

exists between the school and the individual student, a school may be required to

prevent harm from private third parties.114 Second, the “state created danger”

exception applies if, and only if, the “state’s own actions” create the danger that

caused the plaintiff’s injury.115

F.G. contends that a special relationship exists between herself and the JSASD

solely because of Pennsylvania’s compulsory school attendance laws.116 The Third

Circuit has repeatedly rejected this argument.117 Therefore, F.G. has failed to plead

a substantive due process clause violation through the special relationship exception.

F.G. is also unable to use the state created danger exception. This exception

requires a plaintiff to demonstrate that:

112 Morrow v. Balaski, 719 F.3d 160, 166 (3d Cir. 2013) (quoting DeShaney v. Winnebago Cnty.

Dep’t. of Social. Servs., 489 U.S. 189, 197 (1989)).

113 Id. at 166-67.

114 Id.

115 Id.

116 Doc. 29 (Brief in Opposition to Motion to Dismiss Second Amended Compl.) at 20.

117 See e.g., Bridges ex rel. D.B. v. Scranton Sch. Dist., 644 F. App’x. 172, 177 (3d Cir. 2016)

(1) 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.118

Even if F.G. could satisfy the first three prongs, she fails to identify any

affirmative acts taken by the JSASD that have “created a danger” or “rendered [her]

more vulnerable to danger.”119 There are numerous allegations that the district failed

to adequately address the ongoing harassment.120 Despite the assertion that Plaintiff

“has identified affirmative acts, or the inference of affirmative acts, taken by

Defendant,” the Second Amended Complaint merely attempts to “redefine clearly

passive inaction as affirmative acts.”121 It is rather telling that the bulk of the Due

Process Clause allegations involve the District’s failure or refusal to take certain

actions.122

118 Moore, 471 F. Supp. 3d at 659 (citing Mann v. Palmerton Area Sch. Dist., 872 F.3d 165, 170-

71 (3d Cir. 2017)).

119 Id.

120 Doc. 21 (Second Amended Compl.) ¶ 96.

121 Doc. 29 (Brief in Opposition to Motion to Dismiss Second Amended Compl.) at 21; Morrow,

719 F.3d at 178.

As has been found in similar cases in the Third Circuit, “inaction does not

give rise to an affirmative act” for Due Process violations, and the Defendant’s

failure to adequately respond to the bullying cannot satisfy this fourth prong.123

Therefore, Count II of the Second Amended Complaint is dismissed. Given that this

is now F.G.’s second amended complaint, dismissal of this claim is with prejudice.

III. CONCLUSION

Defendant’s motion to dismiss pursuant to Rule 12(b)(6) is granted in part and

denied in part. Count II is dismissed with prejudice. The Defendant is directed to file

an answer to Counts I and III.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge