Doe v. Riverside School District

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JANE DOE, a minor, by her mother : Civ. No. 3:23-CV-1118

and natural guardian, Jennifer Nied, :

and JENNIFER NIED, individually, :

:

Plaintiffs, :

:

v. : (Magistrate Judge Bloom)

:

RIVERSIDE SCHOOL DISTRICT, :

d/b/a Riverside Junior/Senior :

High School, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Introduction

This case comes before us for consideration of a motion to dismiss

filed by several defendants—Riverside School District (the “District”),

Riverside School District Board of Education (the “School Board”), Robert

Presley, Christopher Lazor, and Paul Brennan. (Doc. 18). Jennifer Nied

filed this action on behalf of herself and her daughter Jane Doe, a minor

student in the Riverside School District. (Doc. 1). The complaint alleges

that Jane Doe was sexually assaulted off school grounds by another

student who attended the same school, and that following that student’s

adjudication of guilt, the school failed to expel him or otherwise keep him

away from Jane Doe. ( Doc. 1). This, in turn, allegedly led

to Jane Doe’s abuser harassing her during school hours and school

functions. ( ).

The plaintiffs assert a host of claims against the School District and

the School Board, as well as Paul Brennan, the Superintendent, and

Robert Presley and Christopher Lazor, both of whom served as the

principal of the school at some time during the alleged events. The

plaintiffs bring claims of discrimination and retaliation under Title IX of

the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681,

; claims alleging violations of the Fourteenth Amendment’s Equal

Protection and Substantive Due Process clauses under 42 U.S.C. § 1983;

a 1 claim under § 1983; and state law claims of negligence,

negligence , breach of contract, intentional infliction of emotional

distress, and negligent infliction of emotional distress. ( Doc. 1). These

defendants have now moved to dismiss the claims against them, arguing

1 , 436 U.S. 658

(1978).

that the plaintiffs have failed to state claims upon which relief can be

granted. (Doc. 18).2

The motion is fully briefed and ripe for resolution. (Docs. 21, 25, 28,

32, 33). After consideration, the defendants’ motion will be granted in

part and denied in part.

II. Background

The factual background of this Memorandum Opinion is taken from

the well-pleaded facts alleged in the plaintiffs’ complaint (Doc. 1), which

we must accept as true for purposes of the instant motion to dismiss. The

minor plaintiff, Jane Doe, was enrolled as a student in the Riverside

School District at Riverside Junior/Senior High School, located in

Lackawanna County, Pennsylvania. (Doc. 1 ¶ 9). Jane Doe was a student

with a disability and had a 504 Service Agreement with the District that

outlined the accommodations she needed. ( ¶ 27).

In January of 2021, Jane Doe was sexually assaulted by A.P., a

minor who was also enrolled at Riverside Junior/Senior High School. (

¶ 28). The assault occurred outside of the school setting in Luzerne

2 The remaining defendants, Bryan and Nicole Pica, have also filed a

motion to dismiss (Doc. 20), which we will address through a separate

Memorandum Opinion.

County, Pennsylvania. ( ¶ 29). Following the assault, the Luzerne

County District Attorney’s Office filed a Petition Alleging Delinquency,

alleging that A.P. raped and/or sexually assaulted Jane Doe. (Doc. 1 ¶

30). After a hearing, the Court adjudicated A.P. delinquent of Felony 2

Sexual Assault pursuant to 18 Pa. Cons. Stat. § 3124.1. ( ¶ 31).

The complaint alleges that throughout the pendency of the juvenile

proceedings against A.P., Jane Doe’s mother, Jennifer Nied, was in direct

communication with the District regarding the proceedings. ( ¶ 33).

Specifically, Jennifer Nied alleges that she informed the District of A.P.’s

delinquency adjudication at the conclusion of the juvenile case. ( ¶ 36).

However, the complaint asserts that despite her concerns voiced to the

District regarding A.P. having contact with Jane Doe during school, the

District told Jennifer Nied that there was nothing that could be done to

protect Jane Doe from A.P. ( ¶¶ 34, 37-38).

Thus, following the juvenile adjudication, A.P. was permitted to

attend the same lunch period as Jane Doe. (Doc. 1 ¶ 39). It is further

alleged that A.P. was permitted to attend the semi-formal dance in

January of 2022. ( ¶ 42). At the dance, A.P. sat at a table directly

behind Jane Doe and her friends and allegedly harassed, embarrassed,

and threatened Jane Doe, causing her to spend most of the evening crying

in the restroom. ( ¶¶ 43, 45). Some time after the semi-formal dance,

the complaint alleges that A.P. verbally harassed Jane Doe in the

hallway during school, mockingly shouting at her. ( ¶ 46). Accordingly,

Nied contacted the District, informed individuals within the District of

the ongoing issues, and requested a meeting with the principals and

guidance counselor. ( ¶ 48).

At the meeting on February 23, 2022, the District informed Nied

that it was unaware of A.P.’s juvenile adjudication or that A.P. was on

juvenile probation, although the complaint alleges that the District was

made aware not only by Nied but by A.P.’s juvenile probation officer.

(Doc. 1 ¶¶ 49, 50). The District further informed Nied that there was

nothing it could do to protect Jane Doe during school hours. ( ¶ 49).

Thus, it is alleged that school continued to be a threatening and hostile

environment for Jane Doe due to the District’s failure to protect her from

A.P. ( ¶ 54). As an example, the complaint asserts that Jane Doe was

forced to remain in a class taught by a teacher who created a hostile

environment for her, despite her request to be transferred to another

class, which was denied by the District. ( ¶ 56).

The complaint alleges that due to the District’s inaction and failure

to protect Jane Doe, Jane Doe suffered and continues to suffer from

physical and psychological harm, including self-mutilation, anxiety,

decreased appetite, engaging in dangerous sexual activity, a decline in

grades and attendance at school, post-traumatic stress disorder,

depression, and panic attacks. ( ¶ 51). Further, the plaintiffs allege

that Jane Doe’s education was substantially interfered with after the

District created a hostile educational environment by permitting A.P.

unfettered access to Jane Doe during school hours. ( ¶¶ 40, 47, 53-56).

The plaintiffs filed this complaint on July 5, 2023. (Doc. 1). The

complaint names the District, the School Board, Presley, Lazor, and

Brennan as defendants, as well as Bryan and Nicole Pica, the parents

and guardians of A.P. ( ). The plaintiffs assert claims under Title IX,

alleging discrimination and retaliation by the District and the School

Board; claims under § 1983 against the District, the School Board,

Presley, Lazor, and Brennan; state law claims of negligence, negligence

, and breach of contract against the District and the School Board;

and state law claims of intentional infliction of emotional distress and

negligent infliction of emotional distress against Presley, Lazor, and

Brennan. The complaint also asserts claims of negligence and

negligence against Bryan and Nicole Pica, A.P.’s parents.

The District, the School Board, Presley, Lazor, and Brennan have

now filed the instant motion to dismiss. (Doc. 18). In their motion, the

defendants assert that the plaintiffs have failed to state a Title IX claim,

that the § 1983 claims fail as a matter of law, and that the state law

claims are barred by the Political Subdivision Tort Claims Act (“PSTCA”).

They further contend that the plaintiffs’ state law claims fail as a matter

of law.

This motion is fully briefed and ripe for resolution. (Docs. 21, 25,

28, 32, 33). After consideration, the motion will be granted in part and

denied in part as follows: the motion will be granted with respect to the

Title IX retaliation claim, § 1983 claims, state law claims, and claim for

punitive damages against the District, as well as the request that the

School Board be dismissed as a defendant; the motion will be granted as

to the claims of intentional and negligent infliction of emotional distress

against Preslesy, Lazor, and Brennan; and the motion will be denied as

to the Title IX discrimination claim against the District.

III. Discussion

A. Motion to Dismiss - Standard of Review

The defendants have filed a motion to dismiss the complaint

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

12(b)(6) permits the court to dismiss a complaint if the complaint fails to

state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).

Under federal pleading standards, a complaint must set forth a “short

and plain statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2).

In determining whether a complaint states a claim for relief under

this pleading standard, a court must accept the factual allegations in the

complaint as true, , 550 U.S. 544, 555

(2007), and accept “all reasonable inferences that can be drawn from

them after construing them in the light most favorable to the non-

movant.” , 20 F.3d 1250,

1261 (3d Cir. 1994). However, a court is not required to accept legal

conclusions or “a formulaic recitation of the elements of a cause of action.”

; , 556 U.S. 662, 678 (2009) (“Threadbare

recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice”).

As the Third Circuit Court of Appeals has aptly summarized:

[A]fter , when presented with a motion to dismiss for

failure to state a claim, district courts should conduct a two-

part analysis. First, the factual and legal elements of a claim

should be separated. The District Court must accept all of the

complaint’s well-pleaded facts as true, but may disregard any

legal conclusions. Second, a District Court must then

determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for

relief.” at 1950. In other words, a complaint must do more

than allege the plaintiff’s entitlement to relief. A complaint

has to “show” such an entitlement with its facts. ,

515 F.3d at 234–35. As the Supreme Court instructed in ,

“[w]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint

has alleged—but it has not ‘show[n]’—‘that the pleader is

entitled to relief.’ ” , 129 S. Ct. at 1949. This “plausibility”

determination will be “a context-specific task that requires

the reviewing court to draw on its judicial experience and

common sense.”

, 578 F.3d 203, 210-11 (3d Cir. 2009).

Generally, when considering a motion to dismiss, a court relies on

the complaint and its attached exhibits, as well as matters of public

record. , 502 F.3d 263, 268 (3d Cir. 2007). A court

can also consider “undisputedly authentic document[s] that a defendant

attached as an exhibit to a motion to dismiss if the plaintiff’s claims are

based on the [attached] documents.”

, 998 F.2d 1192, 1196 (3d Cir. 1993). Additionally, if

the complaint relies on the contents of a document not physically

attached to the complaint but whose authenticity is not in dispute, the

court may consider such document in its determination.

, 288 F.3d 548, 560 (3d Cir. 2002).

However, the court may not rely on any other part of the record when

deciding a motion to dismiss. , 20 F.3d at 1261.

B. The Motion will be Granted in Part and Denied in Part.

As we have noted, the defendants have moved to dismiss all the

claims against them, arguing that the plaintiffs have failed to state a

claim upon which relief can be granted. As we will discuss below, we will

grant the defendants’ motion as to the Title IX retaliation claim, § 1983

claims, state law claims, and claim for punitive damages against the

District. Additionally, we will grant the motion as to the § 1983 claims

and intentional and negligent infliction of emotional distress claims

against Presley, Lazor, and Brennan. However, in our view, the plaintiffs

have sufficiently pleaded their Title IX discrimination claim against the

District. Accordingly, the motion will be denied as to this claim.

1. The School Board will be Dismissed as a Defendant.

At the outset, the defendants contend that any claims against the

School Board must be dismissed, as the School Board is not a separate

entity from the District. Several courts in this district have considered

whether a school board is a proper party to a suit in which the plaintiff

has also sued the school district. The consensus among these courts is

that the school board is not a proper party to a suit in which the plaintiff

has also sued the school district because the school board is not a political

subdivision separate and apart from the District. ,

, 2016 WL 3854586, at *1 (E.D. Pa. July 8, 2016);

, 2010 WL 2817201, at *4 (W.D. Pa. July 16,

2010); , 2008 WL 417739, at *10 (M.D.

Pa. Feb. 13, 2008). Accordingly, given that the plaintiffs’ rights can be

adjudicated through a suit against the District, we will dismiss the

School Board as a defendant.

2. The Plaintiffs’ Title IX Discrimination Claim Survives, but

the Retaliation Claim will be Dismissed.

The plaintiffs assert claims against the District under Title IX,

alleging discrimination and retaliation. The complaint alleges that Jane

Doe was subjected to a hostile educational environment when the District

was aware of and permitted sexual harassment against her by her

abuser, A.P. The complaint further alleges that Jane Doe was subjected

to retaliation after she complained about the harassment. After

consideration, we conclude that the plaintiff has sufficiently pleaded a

claim for Title IX discrimination against the District, but her retaliation

claim fails as currently pleaded.

Title IX prohibits entities receiving federal financial assistance

from discriminating against, excluding, or denying benefits of an

educational program or activity to individuals on the basis of sex. 20

U.S.C. § 1681(a). Under Title IX, the School District may be liable for

student-on-student sexual harassment if the District (1) had “substantial

control over both the harasser and the context in which the harassment

occurred”; (2) “had ‘actual knowledge’ of the harassment”; (3) “was

‘deliberately indifferent’ to the harassment”; and (4) the harassment was

so severe or pervasive that it effectively deprived the victim of access to

educational benefits and opportunities provided by the school.

, 170 F. Supp. 3d 722, 736 (D.N.J. 2015)

(quoting , 526 U.S. 629, 645, 650

(1999)).

We conclude that the complaint adequately pleads a claim of

discrimination under Title IX. At the outset, it is undisputed that the

District receives federal funds as required under § 1681. Further, the

plaintiffs have pleaded that Jane Doe was subjected to sexual

harassment. While the District contends that the harassment alleged by

the plaintiff does not appear to be sexual in nature, it is clear from the

complaint that the harassment of Jane Doe by A.P. is alleged to have

stemmed from the earlier sexual assault perpetrated by A.P. As one court

in this circuit has noted, “[w]hen a sexual assault triggers a course of

harassment, the total course of events can be considered sexual

harassment.” , 389 F. Supp. 3d 304, 314

(E.D. Pa. 2019) (citing , 2013 WL

2371413, at *9 (M.D. Pa. May 21, 2013)). Accordingly, we conclude that

the complaint sufficiently alleges that Jane Doe was subjected to sexual

harassment.

We further conclude that the complaint adequately pleads that the

District had knowledge of the harassment, had control over the harasser

and the context in which the harassment occurred, and was deliberately

indifferent to the harassment. Here, the complaint alleges that the

District was informed by Jennifer Nied, as well as by A.P.’s juvenile

probation officer, that A.P. was adjudicated delinquent of sexually

assaulting Jane Doe. It is further alleged that A.P. harassed Jane Doe

during school hours and at a school dance, and that Jennifer Nied

informed the District of this harassment during a meeting with the

principals and guidance counselor. The complaint asserts that even after

the District was informed of the harassment, it did nothing to prevent

A.P. from further harassing Jane Doe; in fact, it is alleged that A.P. was

permitted to attend the same lunch period as Jane Doe, and that she was

denied the opportunity to transfer out of a class in which the teacher was

creating a hostile environment for her.

Finally, the plaintiffs have alleged that Jane Doe was denied

educational benefits and opportunities due to the District’s deliberate

indifference. The complaint asserts that, in addition to the physical and

emotional harm Jane Doe suffered, she also suffered a decline in her

grades and an increase in absences from school due to A.P.’s continued

harassment and the District’s failure to stop it. She further alleges that

she requested to be transferred out of a class in which she was subjected

to a hostile environment because of the harassment, and the District

denied this request. While a decline in grades, by itself, is not sufficient

to prove a denial of educational opportunities, , 526 U.S. at 652, in

our view, the allegations taken together are sufficient at this stage to

show that Jane Doe was denied educational benefits or opportunities.

Accordingly, we find that the allegations in the complaint are sufficient

to state a claim for Title IX discrimination against the District, and this

claim will proceed forward.3

Title IX also prohibits an entity receiving federal funds from

retaliating against individuals who report or complain of sex

discrimination. , 544 U.S. 167,

171 (2005). To state a retaliation claim, a plaintiff must show: “that he or

she engaged in protected activity [under Title IX]; (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

3 The defendants have also challenged the plaintiffs’ ability to recover

punitive damages as to this Title IX claim. Although we are permitting

the discrimination claim to proceed forward, we will dismiss the claim for

punitive damages, as courts in this circuit have held that punitive

damages are not recoverable against a municipal entity such as a school

district under Title IX.

, 43 F. Supp. 3d 412, 433 (M.D. Pa. 2014);

, 614 F. Supp. 2d 555, 573 (W.D. Pa. 2008).

activity and the adverse action.”

, 422 F. Supp. 3d 859, 886 (M.D. Pa. 2019) (internal quotations and

citations omitted); , 850 F.3d 545, 564 (3d

Cir. 2017) (“Title VII’s familiar retaliation framework ‘generally governs’

Title IX retaliation claims.”). A complaint must allege “specific action

taken by the [defendants] that can be found to be ‘materially adverse’

within the meaning of Title IX’s prohibition against retaliation.”

, 168 F. Supp. 3d 786, 804 (W.D. Pa. 2016).

Here, we agree with the defendants that the plaintiffs have not

sufficiently pleaded a Title IX retaliation claim. While the complaint

alleges that Jennifer Nied made a verbal complaint of discrimination

with the District concerning A.P.’s harassment of Jane Doe, the

complaint fails to allege any intentional conduct by the District that

would constitute an adverse action. Rather, the complaint relies on the

District’s inaction, rather than any affirmative action, to show that the

District retaliated against the plaintiffs for complaining of the sexual

harassment. Courts in this district have found that a plaintiff may not

rely on a defendant’s inaction or failure to remedy discrimination as

intentional conduct to support a claim of retaliation under Title IX.

, , 422 F. Supp. 3d at 887 (“The mere possibility that defendant

intentionally failed to curb the harassment . . . falls short of the plausible

showing of intentional conduct needed to identify a form of materially

adverse action needed to state a claim for retaliation.”); , 168 F. Supp.

3d at 805 (finding that the plaintiff’s reliance on an allegation that the

district “was unable to curb the harassment and/or did not sufficiently

discipline her harassers” did not support a claim of retaliation). While

the plaintiffs couch the allegations in terms that would suggest an

affirmative action was taken, , that the District “compelled” Jane Doe

to be in the same vicinity as her abuser, these allegations are simply an

attempt to rephrase the District’s inaction as affirmative action taken by

the District to support a claim of retaliation. , 719

F.3d 160, 179 (3d Cir. 2013) (“[M]erely restating the Defendants’ inaction

as an affirmative failure to act does not alter the passive nature of the

alleged conduct.”).

In this case, the plaintiff cannot rely on her allegations that the

District failed to stop the harassment to sufficiently plead a retaliation

claim against the District. Rather, “retaliation is, by definition, an

intentional act.” , 544 U.S. at 173-74. Accordingly, this claim fails

as currently pleaded, and we will dismiss the plaintiff’s Title IX

retaliation claim against the District.

3. The Plaintiffs’ § 1983 Claims Fail as Currently Pleaded.

The plaintiffs also assert claims under § 1983, alleging violations of

the Fourteenth Amendment. The complaint alleges that the District,

along with the individual defendants, had a pattern or practice of

dissuading students from reporting sexual harassment. The plaintiffs

assert that this practice by the defendants violated Jane Doe’s

Fourteenth Amendment substantive due process rights, relying on the

state-created danger doctrine. They also allege that this practice or

custom violated the Equal Protection clause because it constituted

disparate treatment of and had a disparate impact on female students in

the District. However, after consideration, we conclude that the plaintiffs

have not set forth sufficient allegations to support these § 1983 claims.

a. State-Created Danger Claim

The plaintiffs assert that the District and the individual defendants

are liable for substantive due process violations under the state-created

danger doctrine. They claim that the defendants’ inaction permitted the

ongoing sexual harassment by A.P., which led to Jane Doe’s injuries.

Generally, the state does not have an affirmative duty to protect

citizens from the actions of private individuals.

, 489 U.S. 189, 198-200 (1989). However, an

exception exists when “the state acts to or a danger that

deprives the plaintiff of his or her Fourteenth Amendment right to

substantive due process.” , 456 F.3d 298, 304 (3d Cir.

2006) (citing , 95 F.3d 1199, 1205 (3d Cir. 1996)

(emphasis in original)).

To prevail on a state-created danger theory, a plaintiff must show:

(1) the harm ultimately caused 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

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.

, 456 F.3d at 304-04 (quoting , 443

F.3d 276, 281 (3d Cir. 2006) (internal quotation marks and footnotes

omitted) (emphasis added). The Third Circuit has noted the significance

of the affirmative act requirement, which “distinguishes cases where

officials might have done more from cases where officials created or

increased the risk itself.” , 813 F. App’x

799, 802 (3d Cir. 2020) (quoting , 719 F.3d at 179).

Thus, courts in this circuit have consistently held that a plaintiff

fails to plead a state-created danger claim when she relies on the

of the defendants, rather than alleging an affirmative act. ,

, 718 F.3d at 177-78 (school’s failure to protect a student does not

constitute an “affirmative act”); , -- F.

Supp. 3d --, 2023 WL 3513677, at *8 (M.D. Pa. May 17, 2023) (dismissing

a student’s claim based on a district’s failure to prevent bullying);

, 318 F. Supp. 3d 739, 755-56 (W.D.

Pa. 2018) (failure to prevent bullying or follow school’s own policy is not

an affirmative act); , 456 F. App’x 88, 92-93

(3d Cir. 2011) (school district’s lack of affirmative action was fatal to §

1983 claim). Accordingly, given that the plaintiffs have failed to identify

any affirmative action taken by the District or the individual school

officials, we conclude that this stated-created danger claim fails.

b. Claim

A municipal entity may be liable for a constitutional violation under

§ 1983 if the violation was a direct result of the entity’s policy, custom or

practice. , 436 U.S. at 695. However, an entity may not be held

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

, 503 F.3d 247, 249 (3d Cir.

2007). Rather, a plaintiff must demonstrate a “direct causal link”

between the alleged constitutional violation and the municipal policy or

custom. , 489 U.S. 378, 385 (1989). A

plaintiff may show that either an official policy of the municipality was

the moving force behind the violation, or that the municipality had an

informal custom such that it operated as the municipality’s policy.

, 475 U.S. 469, 481 (1986); , 436 U.S.

at 690. In either scenario, the plaintiff has the burden to show that the

policy or custom was implemented or acquiesced in by a policymaker.

, 895 F.2d 1469, 1480 (3d Cir. 1990).

Further, the plaintiff must show “that, through its deliberate

conduct, the municipality was the ‘moving force’ behind the alleged

injury.” , 520 U.S. 397,

404 (1997). The Third Circuit has held that “failures to act cannot form

the basis of a valid § 1983 claim.” , 455 F.3d

418, 433 n. 11 (3d Cir. 2006) (collecting cases);

, 813 F. App’x 799, 803 (3d Cir. 2020) (school’s failure

to respond to reports of bullying not an affirmative act for § 1983

liability); , 168 F. Supp. 3d at 815 (same);

, 2012 WL 1827194, at *6 (M.D. Pa. May 18, 2012) (dismissing

student’s claim that the school’s failure to prevent student-on-student

harassment violated her constitutional rights). This is particularly so in

cases in which the underlying violative act—the sexual harassment—is

committed by private actors rather than state actors.

, 972 F.2d 1364, 1376 (3d

Cir. 1992) (distinguishing sexual abuse by a teacher who is a state actor

from student-on-student sexual abuse perpetrated by a private actor).

Here, the plaintiffs allege that the District’s failure to act, either on

its own or through the principals and superintendent, was the moving

force behind the alleged constitutional violation. Specifically, the

plaintiffs contend that the District failed to remove A.P. from the school,

intervene in the alleged sexual harassment, or otherwise protect Jane

Doe from A.P.’s actions. Thus, the plaintiffs seek to hold the District

liable for its failure to protect Jane Doe from the underlying actions of

A.P., a private actor. These allegations are simply insufficient to state a

§ 1983 claim against the District and the individual defendants.

Accordingly, these claims will be dismissed.

Moreover, even if the plaintiffs had met their burden to plead an

affirmative act, they have not set forth sufficient factual allegations to

support an Equal Protection claim. To state a claim under the Equal

Protection clause, a plaintiff must show that she was purposefully

discriminated against by a state actor because of her sex.

, 97 F. Supp. 3d

657, 667 (W.D. Pa. 2015). Accordingly, she must plead facts showing “(1)

disparate treatment in relation to other similarly situated individuals,

and (2) that the discriminatory treatment was based on sex.”

Here, the plaintiffs assert in a conclusory fashion that the

defendants violated Jane Doe’s Equal Protection rights when they failed

to protect her from A.P.’s harassment. The complaint asserts that the

defendants had a policy of dissuading students from reporting

harassment, and that this policy or action by the defendants resulted in

the disparate treatment of female students and survivors of sexual

assault. However, notably missing from the complaint are any

allegations that the District or its employees treated other students who

reported harassment or who were victims of sexual assault differently.

In fact, the plaintiff bewilderingly asserts that non-victims of sexual

assault were not forced to confront any attackers to support her

argument that she was treated differently in violation of the Equal

Protection clause.4

These conclusory and bare allegations are not enough to support an

Equal Protection claim, and this claim will be dismissed.

4. The District and Individual Defendants are Immune from the

Plaintiffs’ State Law Tort Claims.

The plaintiffs also assert state law claims against the defendants,

alleging claims of negligence and negligence against the District,

as well as claims of intentional and negligent infliction of emotional

distress against the individual defendants. The defendants argue that

4 This analysis applies equally to the extent the plaintiffs are asserting a

class-of-one theory, as the plaintiffs “must allege facts sufficient to make

plausible the existence of . . . similarly situated parties.”

, 423 F. App’x 234, 238 (3d Cir. 2011). Here, the comparators the

plaintiffs identify—non-victims of sexual assault—cannot be said to be

similarly situated for purposes of an Equal Protection claim.

they are entitled to immunity from these state law claims under

Pennsylvania’s Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa.

Cons. Stat. § 8541.

The PSTCA provides immunity to local agencies and their

employees “for any damages on account of any injury to a person or

property” caused by the agency or its employees. § 8541. This immunity

is broad and all-encompassing, except for nine enumerated instances in

which this immunity does not apply and may subject the agency to

liability. 42 Pa. Cons. Stat. § 8542(b). The plaintiffs contend that their

negligence claims fit within the ninth exception, the sexual abuse

exception, which waives immunity for “[c]onduct which constitutes an

offense enumerated under section 5551(7) . . . if the injuries to the

plaintiff were caused by actions or omissions of the local agency which

constitute negligence.” § 8542(b)(9). “Sexual abuse” cross references

various criminal statutes, including 18 Pa. Cons. Stat. § 3124.1, of which

the minor assailant, A.P., was adjudicated guilty. 42 Pa. Cons. Stat.

§ 5551.

However, we cannot conclude that the allegations in the complaint,

which entail conduct occurring in the school setting Jane Doe was

sexually assaulted by A.P., fall within the sexual abuse exception to

constitute a waiver of immunity in this case. As one court in this district

has explained, the alleged sexual abuse “must result from the

municipality’s ‘acts or omissions.’” ,

2023 WL 6929316, at *13 (M.D. Pa. Oct. 19, 2023). Thus, courts that have

applied the sexual abuse exception have done so in cases in which the

alleged sexual abuse was perpetrated on school property, such that it can

be said that the negligent actions of the school or its employees were the

proximate cause of the plaintiff’s injuries. ,

, -- F. Supp. 3d --, 2023 WL

5510395, at *16 (W.D. Pa. Aug. 25, 2023);

, 2020 WL 4584372, at *5 (M.D. Pa. Aug. 10, 2020);

, 2023 WL 6929316, at *15 (refusing to

apply the sexual abuse exception where the agency’s duties arose after

the sexual abuse).

While the plaintiffs allege that the sexual harassment by A.P.

stemmed from the prior sexual assault, we do not believe that the waiver

encompasses sexual harassment as the plaintiff has alleged here. As one

court in this district noted when considering the statutory construction

of the sexual abuse exception, “[i]f the PSTCA’s drafters wanted the

‘sexual abuse’ waiver to sweep more broadly than the criminal statutes

they referenced, they did not say so.”

, 2023 WL 6449429, at *7 (M.D. Pa. Oct. 3, 2023). Here, had Jane

Doe’s sexual abuse, as enumerated in 18 Pa. Cons. Stat. § 3124.1,

occurred in the school setting and was a result of the school’s negligence,

we would have no trouble finding that the exception applies. However,

the instant complaint encompasses alleged conduct that occurred after

the sexual assault that is contemplated by the exception. Accordingly, we

cannot conclude that the sexual abuse exception applies here, and the

negligence claims against the District will be dismissed.

, 2023 WL 6929316, at *15.

With respect to the tort claims asserted against the individual

defendants, we find that these defendants are entitled to immunity from

these claims. Generally, employees of a local agency are entitled to the

same immunity as the agency, provided that the employees were acting

within the scope of their employment at the time of the alleged conduct.

42 Pa. Cons. Stat. § 8545. This immunity does not apply, however, “where

their conduct amounts to ‘actual malice’ or ‘willful misconduct[.]’”

, 456 F.3d 298, 315 (3d Cir. 2006) (quoting 42 Pa. Cons.

Stat. § 8550). “Willful misconduct” is defined as conduct by which “the

actor desired to bring about the result that followed or at least was aware

that it was substantially certain to follow, so that such a desire can be

implied.” , 641 A.2d 289, 293 (Pa. 1994)

(internal quotations and citations omitted).

As to the negligent infliction of emotional distress claim, our

analysis with respect to the negligence claims against the District is

equally applicable here. The negligent conduct alleged by the plaintiffs

does not fit within the sexual abuse exception to the PSTCA, and thus,

this claim will be dismissed as to the individual defendants. With respect

to the intentional infliction of emotional distress claim, we conclude that

even if the PSCTA does not provide immunity against this claim, the

plaintiffs have not stated a claim against the individual defendants.

, 28 F. Supp. 3d 356, 376

(M.D. Pa. 2014) (concluding that “the allegations of the tort of IIED are

synonymous with an allegation of willful misconduct, . . . thereby

preventing immunity from attaching[.]”).

To state a claim for intentional infliction of emotional distress, a

plaintiff must plead facts to show that the conduct of the defendants was

“intentional, outrageous, or extreme conduct” that caused the plaintiff

severe emotional distress. , 28 F. Supp. 3d at 376 (quoting

, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)). The

Pennsylvania courts have characterized outrageous or extreme conduct

as “conduct that is ‘so outrageous in character, so extreme in degree, as

to go beyond all possible bounds of decency, and to be regarded as

atrocious, and utterly intolerable in civilized society.’” , 868 A.2d

at 1230 (quoting , 866 A.2d 1115,

1122 n.5 (Pa. Super. Ct. 2004)). Thus, only the most egregious conduct

will qualify as “outrageous” for purposes of intentional infliction of

emotional distress:

Cases which have found a sufficient basis for a cause of action

of intentional infliction of emotional distress have had

presented only the most egregious conduct. ,

, 437 Pa. 373, 263 A.2d 118 (1970) (defendant,

after striking and killing plaintiff's son with automobile, and

after failing to notify authorities or seek medical assistance,

buried body in a field where discovered two months later and

returned to parents (recognizing but not adopting section 46));

, 293 Pa.Super. 122, 437 A.2d

1236 (1981) (defendants intentionally fabricated records to

suggest that plaintiff had killed a third party which led to

plaintiff being indicted for homicide);

, 595 F.2d 1265 (3d Cir. 1979)

(defendant's team physician released to press information

that plaintiff was suffering from fatal disease, when physician

knew such information was false).

, 720 A.2d 745, 754 (Pa. 1998).

Here, the plaintiffs’ complaint merely alleges inaction on the part

of the individual defendants; that is, that they should have done more to

curb the harassment perpetrated by A.P. These allegations fall woefully

short of what is needed to support a claim for extreme or outrageous

conduct resulting in intentional infliction of emotional distress.

Accordingly, this claim will be dismissed.

5. The Breach of Contract Claim Fails as a Matter of Law.

Finally, the District challenges the plaintiffs’ breach of contract

claim. The plaintiffs assert that the District breached the Riverside

Junior/Senior High School Student Handbook when it failed to inform

Jane Doe of the formal complaint procedures for reporting harassment

and failed to conduct a formal investigation into her complaints of

harassment. For its part, the District contends that the student

handbook is not an enforceable contract.

To plead the existence of a contract under Pennsylvania law, the

plaintiff must allege “(1) the existence of a contract, including its

essential terms, (2) a breach of a duty imposed by the contract, and (3)

resultant damages.” , 723 A.2d 1053,

1058 (Pa. Super. Ct. 1999). While we have not found any caselaw

speaking specifically to public high school student handbooks, courts in

Pennsylvania have “declined to construe the student handbook of a public

university as a contract between the public university and the student.”

, 2020 WL 738496, at *9 (E.D. Pa. Feb.

12, 2020) (quoting , 986 A.2d 179,

183 (Pa. Commw. Ct. 2009) (internal quotation marks and citations

omitted). Thus, courts have routinely dismissed breach of contract claims

premised on an alleged breach of a student handbook. ,

, 955 F. Supp. 2d 390, 408 (M.D. Pa. 2013);

, 2019 WL 2423268, at *8 (E.D. Pa. June 6, 2019).

We similarly conclude that the plaintiffs’ breach of contract claim

based on an alleged breach of the student handbook fails as a matter of

law. Accordingly, this claim will be dismissed.

IV. Conclusion

For the foregoing reasons, the defendants’ motion to dismiss (Doc.

18) will be GRANTED IN PART and DENIED IN PART as follows:

1. The motion will be GRANTED with respect to the Title IX

retaliation claim, § 1983 claims, state law claims, and claim

for punitive damages against the District;

2. The School Board will be DISMISSED as a defendant;

3. The motion will be GRANTED as to the § 1983 claims and

claims of intentional and negligent infliction of emotional

distress against Presley, Lazor, and Brennan; and

4. The motion will be DENIED as to the Title IX discrimination

claim against the District.

An appropriate order follows.

Daryl F. Bloom

United States Magistrate Judge