Shaefer v. Chorba

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JULIE SHAEFER, : CIVIL ACTION NO. 3:23-CV-19

Plaintiff, :

v. : (JUDGE MANNION)

JAMIE CHORBA, VALLEY VIEW :

SCHOOL DISTRICT and

CHRISTOPHER MENDICINO, :

Defendants. :

MEMORANDUM

Presently before the court is the Valley View School District and

Christopher Mendicino’s (“District Defendants”) motion to dismiss, (Doc. 31),

Plaintiff’s amended complaint (Doc. 29), regarding the conduct of former

Valley View High School gym teacher and convicted child predator, Jamie

Chorba. The District Defendants argue that Plaintiff has failed to state a

claim, but as pled Chorba’s sexual exploitation of Plaintiff, as well as his

history of blatantly predatory behaviors while employed at Valley View, shock

the conscious and establish a plausible violation of her constitutional rights

under 18 U.S.C. '1983. Since Plaintiff concedes that she has failed to

adequately plea the other claims in her amended complaint, the court will

GRANT IN part and DENY in part the District Defendants’ motion to dismiss.

I. BACKGROUND

The factual background in this matter is taken from the allegations in

Plaintiff’s amended complaint, which the court must accept as true for the

purposes of the District Defendants’ motion to dismiss.

Plaintiff Julie Shaefer was a student at Valley View High School from

August 2013 to June 2017. Plaintiff was a minor the entire time she attended

Valley View, graduating at age seventeen. Defendant Christopher Mendicino

was the principal of Valley View High School at all relevant times. Defendant

Jamie Chorba was the boys’ high school physical education teacher and a

health teacher at Valley View during all relevant times.

From at least 2013 through 2017, the District Defendants received

complaints about Chorba’s inappropriate behavior around female students,

including the use of his cellular telephone to take pictures of some female

students and standing inappropriately close to them while stretching in

physical education classes. Additional complaints were made to Valley View

that Chorba had been seen walking to his vehicle without a shirt on and bare

chested on Valley View’s premises while students and other faculty were still

present. Chorba was also known to walk into the women’s locker while

students were changing pretending to shield his face with papers. Many

female students found this to be extremely inappropriate and complained.

On January 6, 2021, Plaintiff was informed by Lackawanna County

Detectives that Chorba had downloaded photographs of her from social

media dating back to 2013 and had taken photos of her buttocks during her

time in high school at Valley View High School. Based on the Lackawanna

County Detectives’ investigation, Plaintiff was wearing different clothing in

several of the photographs showing that Chorba took these photographs on

more than one occasion.

Additionally, Plaintiff was shown photographs produced by Chorba that

included her face being morphed onto the nude body of a different female.

In some of those photographs, Chorba morphed his face onto the nude

bodies of other males. These photographs showed the nude male with

Chorba’s faced morphed onto it engaging in sexual acts with the nude

females with Plaintiff’s face morphed onto them. These images were found

in conjunction with numerous other photographs of students including other

minors.

Furthermore, the Lackawanna County Detectives uncovered hundreds

of photos and videos of Chorba throughout Valley View’s property. These

photos contained, but were not limited to, images of Chorba, naked, with an

erect penis, while he was in various rooms located in Valley View. There

were images of Chorba naked in the gym, locker room, library, and

classrooms throughout Valley View High School. There was also a video of

Chorba masturbating in his vehicle while looking at two minor females that

appeared to take place on Valley View property.

It is alleged that at the time of Chorba’s actions, Valley View did not

have in place a policy or procedure to protect minor students from this type

of conduct. Moreover, Valley View had a policy or custom of ignoring signs

of inappropriate actions by teachers, and of failing to investigate situations

where inappropriate conduct by a teacher was suggested, suspected, or

evident. Because no investigation had taken place of the complaints made

by students and their parents about Chorba, the inappropriate and illegal

behavior continued. Plaintiff asserts that if the District Defendants had a

policy in place to protect the constitutional rights of its minor students and

did not ignore the warning signs of inappropriate behavior, the rights of

Chorba’s victims could have been protected.

Chorba eventually pled guilty to Open Lewdness and Indecent

Exposure in the Lackawanna County Court of Common Pleas and Sexual

Exploitation of Children in the United States District Court for the Middle

District of Pennsylvania.

Based on these facts Plaintiff filed a civil complaint on January 5, 2023.

(Doc. 1). The District Defendants filed a motion to dismiss on January 25,

2023, and an accompanying brief in support on February 8, 2023. On

September 25, 2023, the court granted the motion to dismiss finding that

some of the pleaded claims were not cognizable under any set of facts while

other were cognizable generally but lacked sufficient supporting allegations.

Accordingly, the court granted Plaintiff leave to amend most of her claims

and Plaintiff filed an Amended Complaint on October 19, 2023. (Doc. 29.)

On October 26, 2023, the District Defendants filed the present motion, (Doc.

31), to dismiss Plaintiff’s Amendment Complaint.

II. LEGAL STANDARD

The District Defendants’ motion to dismiss is brought pursuant to Rule

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

the dismissal of a complaint, in whole or in part, if the complaint fails to state

a claim upon which relief can be granted. The moving party bears the burden

of showing that no claim has been stated. See Hedges v. United States, 404

F.3d 744, 750 (3d Cir. 2005). Dismissal is appropriate only if, accepting all

the facts alleged in the complaint as true, the non-moving party has failed to

plead “enough facts to state a claim to relief that is plausible on its face.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating “no set of

facts” language found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

The facts alleged must be sufficient to “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. This requirement “calls for

enough fact[s] to raise a reasonable expectation that discovery will reveal

evidence of” necessary elements of the non-moving party’s cause of action.

Id. Furthermore, to satisfy federal pleading requirements, the non-moving

party must “provide the grounds of his entitlement to relief,” which “requires

more than labels and conclusions, and a formulaic recitation of the elements

of a cause of action will not do.” Phillips v. County of Allegheny, 515 F.3d

224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (quoting

Twombly, 550 U.S. 544 at 555).

In considering a motion to dismiss, the court generally relies on the

complaint, attached exhibits, and matters of public record. See Sands v.

McCormick, 502 F.3d 263 (3d Cir. 2007). “A court may also consider ‘matters

incorporated by reference or integral to the claim, items subject to judicial

notice, matters of public record, orders, [and] items appearing in the record

of the case.’” Bisset v. Verizon Wireless, 401 F. Supp. 3d 487, 492 (M.D. Pa.

2019) (quoting Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.

2006)).

The court should generally grant leave to amend a pleading before

dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote

Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). But a district court

has three grounds on which it may deny leave to amend a complaint: “(1)

[where] the moving party has demonstrated undue delay, bad faith or dilatory

motives; (2) [where] the amendment would be futile; or (3) the amendment

would prejudice the other party.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir.

2000) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962)).

III. DISCUSSION

The District Defendants again seek dismissal of all Plaintiff’s claims

against them. The court will address the parties’ arguments in turn.

A. SECTION 1983

The District Defendants argue that Plaintiff has failed to state a claim

under Section 1983. Section 1983 is the vehicle by which private citizens

may seek redress for violations of federal constitutional rights committed by

state officials. To state a cause of action under Section 1983, a plaintiff must

allege that: (1) the conduct complained of was committed by persons acting

under color of state law; and (2) the conduct violated a right, privilege, or

immunity secured by the Constitution or laws of the United States. See

Harvey v. Plains Twp. Police Dep’t, 421 F. 3d 185, 189 (3d Cir. 2005). It is

undisputed that the Defendants, a public high school teacher, public school

district and public high school principal, are state actors for the purposes of

Section 1983. Thus, the issue here is whether the Defendants’ conduct

violated Plaintiff’s federally protected rights.

Plaintiff alleges that Chorba violated her Fourteenth Amendment

substantive due process right to bodily integrity i.e., be free from sexual

misconduct, harassment and/or abuse at the hands of school employees. In

deciding the District Defendants’ last motion to dismiss, the court found that

Plaintiff had not plausibly plead an underlying constitutional violation by

Chorba. The District Defendants claim that Plaintiff’s Amended Complaint

contains no additional allegations that would support a finding of a

constitutional violation by Chorba or, resultantly, by the District Defendants.

However, in her amended complaint Plaintiff has added the allegation

that the District Defendants knew as early as 2013 that Chorba was

photographing female students during physical education classes, invading

the girl’s locker room while students were changing, and walking around the

school’s campus partially naked but continued to employ him through at least

Plaintiff’s graduation in 2017. Consequently, Chorba was allowed to get

acquainted with Plaintiff, collect photos of her, and eventually manipulate her

photos to show him engaging in sex acts with her. The egregiousness of

these allegations, including the new fact that the District Defendants

allegedly knew about Chorba’s conduct for at least four years and did nothing

to investigate or stop it, would shocks the conscience, and compels the court

to construe Plaintiff’s amended complaint as plausibly stating a constitutional

violation, at least at this stage of the proceedings, pending further discovery.

In County of Sacramento v. Lewis, the Supreme Court explained that

where executive action is challenged on substantive due process grounds,

“the threshold question is whether the behavior of the governmental officer

is so egregious, so outrageous, that it may fairly be said to shock the

contemporary conscience.” 523 U.S. 833, 847, n. 8, 118 S.Ct. 1708, 140

L.Ed.2d 1043 (1998). If this question yields a positive answer, a reviewing

court can proceed to consider whether the liberty or property interest

infringed is sufficiently “fundamental” to be worthy of substantive due

process protection. Id.

Chorba’s alleged conduct shocks the conscience and Plaintiff’s right to

be free from sexual abuse at the hands of her teachers has been clearly

established as fundamental. See Kobrick v. Stevens, No. 3:13-CV-2865,

2017 WL 3839946, at 14 (M.D. Pa. Sept. 1, 2017), subsequently aff'd, 763

F. App'x 216 (3d Cir. 2019) (citing Stoneking v. Bradford Area Sch. Dist., 882

F.2d 720, 727 (3d Cir. 1989) (“Nearly three decades ago, the Third Circuit

affirmed that a student’s right to be free from sexual abuse at the hands of

her teacher is clearly established.”) In initially dismissing her complaint, the

court never questioned the fundamental nature of this right. It only expressed

reluctance at extending it to this particular case, where no physical touching

is alleged. The new allegations in Plaintiff’s amended complaint regarding

the length of time District Defendants knew about and failed to address

Chorba’s blatantly predatory behavior necessitates this case to proceed to

discovery. Moreover, the increasing prevalence and realism of morphed or

manipulated photos, colloquially known as deep fakes, may push the borders

of Plaintiff’s right to bodily integrity.

In our digital age where new technologies have increasingly blurred

the line between physical and virtual reality, courts must consider

constitutional violations on screen as seriously as those off. See e.g. Garnier

v. O'Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022), cert. granted, 143 S. Ct.

1779, 215 L. Ed. 2d 669 (2023) (Considering whether parents blocked by

school board members on social media stated a First Amendment violation

under Section 1983). In the specific context of teachers sexually abusing

their students, the virtual nature of a student’s abuse does not negate the

trauma the student may experience from it. Moreover, the injuries from such

virtual acts of sexual violence are grave including depression and even

suicide.

In Stoneking, the Third Circuit found that “[a] teacher’s sexual

molestation of a student is an intrusion of the schoolchild’s bodily integrity

not substantively different for constitutional purposes from corporal

punishment by teachers.” 882 F.2d at 727. By extension of this principle one

might conclude that a teacher’s virtual sexual molestation of student is an

intrusion of the schoolchild’s bodily integrity not substantively different for

constitutional purposes from physical sexual molestation by teachers. If

something looks like a constitutional violation, and causes injuries like a

constitutional violation, then it is a plausible constitutional violation. Here

Chorba produced photos, where not only is he touching Plaintiff but also is

engaged in sex acts with her. As a result, Plaintiff claims to have suffered

severe and permanent psychological damage, physical harm, and emotional

distress including but not limited to anxiety and depression. Accordingly, the

court finds that Plaintiff has barely plead a plausible constitutional violation,

at least worthy of further discovery.

Still the District Defendants assert that even if Plaintiff sufficiently

pleads a constitutional violation by Chorba, she has not stated claim as to

the District Defendants. As local government entities the District Defendants

can be held liable under Section 1983 only if Plaintiffs show that the violation

of their federally protected rights resulted from the enforcement of a “policy”

or “custom” of Defendants. See Monell v. Dep’t. of Soc. Servs., 436 U.S.

658, 694 (1978). A court may find that a municipal policy exists when a

“‘decisionmaker possess[ing] final authority to establish municipal policy with

respect to the action issues an official proclamation, policy, or edict.”

Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 481, (1986)). It is also possible

for a court to find the existence of a municipal policy in “the isolated decision

of an executive municipal policymaker.” City of St. Louis v. Praprotnik, 485

U.S. 112, 139 (1988). Still there must be a “direct causal link” between the

municipal policy or custom and the alleged constitutional violation. City of

Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).

Additionally, if the policy at issue relates to a failure to train or supervise

municipal employees, “liability under section 1983 requires a showing that

the failure amounts to ‘deliberate indifference’ to the rights of persons with

whom those employees will come into contact.” Carter v. City of Phila., 181

F.3d 339, 357 (3d Cir. 1999) (citation omitted). Such a failure [to train or

supervise municipal employees] “can ordinarily be considered deliberate

indifference only where the failure has caused a pattern of violations.” Berg

v. Cty. of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000). However, a plaintiff

may also show deliberate indifference by presenting evidence that officials

were aware of the risk of constitutional violations and the alternatives to

preventing such harm, but either “deliberately chose not to pursue these

alternatives or acquiesced in a longstanding policy or custom of inaction in

this regard.” Simmons v. City of Philadelphia, 947 F.2d 1042, 1064 (3d Cir.

1991) See also Robinson v. Fair Acres Geriatric Center, 722 Fed.Appx. 194,

199 (3d Cir. 2018) (“In order for a failure-to-train claim to support Monell

liability, a plaintiff must show ‘that in light of the duties assigned to [the

relevant employees,] the need for more or different training is so obvious,

and the inadequacy so likely to result in the violation of constitutional rights,

that the policymakers of the [municipality] can reasonably be said to have

been deliberately indifferent to the need.’”) (citation omitted).

Here Plaintiff’s argue that two prior incidents where the District

Defendants failed to prevent a school volunteer, Mark Kandel, and staff

member, Christopher Mazzino, from engaging in inappropriate sexual

behaviors with students that led to both men’s arrests and conviction for child

sex crimes demonstrate a policy or custom for the purposes of imposing

Monell liability. Conversely the District Defendant’s argue that these

incidents are factually distinguishable from the events at issue here and

without citing any authority claim they are insufficient in number to establish

a custom or policy.

As previously stated, an isolated decision of executive policy maker,

can establish Monell liability. Thus, regardless of the number of past

incidents where the District Defendants failed to prevent sex abuse of

students by volunteers/staff members, Defendant’s failure to investigate let

alone stop Chorba’s blatantly predatory behaviors may constitute a policy

under Monell. Moreover, there is a direct causal link between this policy and

Plaintiff’s alleged injuries because had the District Defendant’s removed

Chorba from the school environment he would not have had multiple years

to become acquainted with and collect photos of Plaintiff.

With regards to Plaintiff’s failure to supervise claim, she has also

sufficiently pled deliberate indifference. First by pleading multiple past

instances of sexually inappropriate behavior by Valley View volunteers and

staff Plaintiff has established a pattern of violations. Second Plaintiff has pled

that the District Defendants deliberately choose not to investigate complaints

about Chorba or remove him from the school environment. And third Plaintiff

has pled facts that make the need for more or different training so obvious

that the District Defendants can be said to have been deliberately indifferent.

Specifically, Plaintiff pleads that Chorba took pictures of female students

during gym class, invaded the girl’s locker room while students were

changing, and walked around the school campus partially naked while

students were still present. All of these actions make his lack of appropriate

supervision and training by the District Defendants painfully obvious and

clearly indicate deliberate indifference.

Plaintiff also argues that her Section 1983 claim against the District

Defendants should survive on a state created danger theory. To prevail on

this theory, a plaintiff must prove that “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 actor not acted at

all.” Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013)(quoting Bright v.

Westmoreland Cty., 443 F. 3d 276, 281 (3d Cir. 2006).

“As currently formulated” by the Third Circuit, the state-created danger

theory of liability “requires a plaintiff to plead four elements: first, foreseeable

and fairly direct harm; second, action marked by ‘a degree of culpability that

shocks the conscience’; third, a relationship with the state making the plaintiff

a foreseeable victim, rather than a member of the public in general; and

fourth, an affirmative use of state authority in a way that created a danger,

or made others more vulnerable than had the state not acted at all.” Johnson

v. City of Phila., 975 F.3d 394, 400 (3d Cir. 2020) (citing Sauers v. Borough

of Nesquehoning, 905 F.3d 711, 717 (3d Cir. 2018)).

Under the first element, Plaintiff must show the injury she suffered was

“foreseeable and fairly direct.” Bright, 443 F.3d at 281. “Under Third Circuit

jurisprudence, a harm is foreseeable when a state actor has actual

awareness, based on concrete information, of a risk of harm to an individual

or class of individuals such that the actor is on notice that his or her act or

failure to act significantly enhances that risk of harm.” Gremo v. Karlin, 363

F. Supp. 2d 771, 784 (E.D. Pa. 2005). Here Plaintiff alleges that the District

Defendants knew for at least four years that Chorba was acting

inappropriately around female students. Any one report of Chorba’s blatantly

predatory behavior would have been enough to put District Defendants on

notice that their continued employment of Chorba posed a risk to the

emotional and even physical wellbeing of female students including Plaintiff.

Here Plaintiff pleads that multiple reports were made over the course of at

least four years to the District Defendants. Accordingly, Plaintiff’s injury was

foreseeable and fairly direct.

Under the second element Plaintiff must show that the “state actor

acted with a degree of culpability that shocks the conscience.” Bright, 443 F.

3d at 281. The Third Circuit has further explained that the required mental

state for assessing culpability is either “willful disregard for” or “deliberate

indifference to” the safety of Plaintiff. Morse v. Lower Merion School Dist.,

132 F. 3d 902, 910 (3d Cir. 1997) (citing Kneipp, 95 F. 3d at 1208 n. 21). The

District Defendants continued employment of Chorba for at least four years

after learning he was invading the girl’s locker room while students were

changing, and walking around school premises partially naked also shocks

the conscience and likely evinces a willful disregard and deliberate

indifference to the safety of female students including Plaintiff. Accordingly,

the District Defendants acted with a degree of culpability that shocks the

conscience.

Under the third element, Plaintiff must prove that “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.” Bright, 443 F.3d at 281. Plaintiff pleads that she was a female

student at Valley View high school, and as such was part of a discreet class

of persons, who was subject to harm as a result of the School District’s

actions. See Gremo, 363 F. Supp. 2d at 789 (concluding the plaintiff was a

member or discrete class of persons, namely, the students who attended the

plaintiff’s high school, who were subjected to potential harm as a result of

the state’s actions). Accordingly, Plaintiff attendance at Valley View created

a relationship between her and the District Defendants such that she would

be a foreseeable victim of an alleged danger created by the District

Defendants.

Under the fourth element the Plaintiff must show that the state used its

authority in an affirmative way to place the Plaintiff in danger. See Bridges

ex rel. D.B. v. Scranton Sch. Dist., 66 F. Supp. 3d 570, 583 (M.D. Pa. 2014),

aff’d, 644 Fed. Appx. 172 (3d Cir. 2016); see also Bright, 443 F.3d at 282

(“we have never found a state-created danger claim to be meritorious without

an allegation and subsequent showing that state authority was affirmatively

exercised”). This element is the most difficult to prove because of the

“inherent difficulty in drawing a line between an affirmative act and a failure

to act.” L.R. v. Sch. Dist. of Philadelphia, 836 F. 3d 235, 242 (3d Cir. 2016).

However, the Third Circuit has been clear that merely restating a defendant’s

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

the alleged conduct. See Morrow, 719 F. 3d at 179.

Here Plaintiff alleges that the District Defendants’ failure to investigate

complaints about Chorba’s conduct, discipline Chorba, and otherwise protect

students from him constitutes an affirmative act. While such failures impose

Monell liability, under a state created danger theory they do not constitute

affirmative conduct. In fact, Plaintiff’s characterization of the Valley View

Defendant’s conduct is exactly the type of reframing the Third Circuit warned

about in Morrow and demonstrates Plaintiff’s misunderstanding of Third

Circuit case law on this issue.

Still Plaintiff analogizes her case to Kniepp v. Tedder, 95 F. 3d 1199

(3d Cir. 1996), where she claims the Third Circuit found police officers’

conscious decision to leave an intoxicated women to walk home alone on

cold night was an affirmative act for the purposes of establishing liability

under Section 1983. Plaintiff alleges that like the police officer in Kniepp the

District Defendants made the conscious decision to leave Plaintiff in a

dangerous situation i.e. proximity to Chorba. The District Defendants

disagree with this analogy claiming that it both mischaracterizes Kniepp and

again merely reframes a failure to act as affirmative conduct.

According to the District Defendants, the Third Circuit in Kniepp did not

find that defendant police officers’ conscious decision to abandon plaintiff’s

wife constituted an affirmative act, but instead found that defendants

affirmatively acted when they instructed plaintiff to leave his wife in their

custody. See Kneipp, 95 F.3d at 1203 (“By voluntarily assuming

responsibility for [his wife’s] protection when they told [the plaintiff] he could

leave, it was alleged that the officers affirmatively created a danger and

increased the risk that [Ms. Kniepp] might be injured when they later

abandoned her. It is further alleged that the police conduct made [Ms.

Kneipp] ‘more vulnerable’ [by]… ‘interfer[ing] with the efforts of [Plaintiff] to

assist his wife to safety.’”) The court agrees that is the appropriate reading

of Kniepp. Moreover, the court finds the “conscious decision” to continue to

employ Chorba is tantamount to failing to remove Chorba and is thus a failure

to act not an affirmative act. Accordingly, Plaintiff’s analogy to Kniepp still

does not show an affirmative act by the District defendants and the court

cannot find that she has plausibly pled a state created danger.

Nonetheless, Plaintiff has adequately pled that the District Defendants

may be subject to Monell Liability for failing to adequately train, supervise, or

otherwise prevent Chorba from violating her Fourteenth Amendment

Substantive Due Process right to bodily integrity. If following discovery, on

summary judgment Plaintiff is unable to show that the District Defendants

did in fact know for at least four years that Chorba was acting as pled in the

amended complaint, then this claim will fail. But at this stage of the

proceeding Plaintiff has alleged adequate facts to state a plausible claim and

proceed to discovery. Accordingly, the District Defendants’ Motion to Dismiss

will be DENIED with respect to Plaintiff’s Section 1983 claim.

B. Negligence

Plaintiff concedes she fails to state a claim for negligence. Accordingly,

the District Defendants’ Motion to Dismiss will be GRANTED with respect to

this claim.

C. Negligent Supervision

Plaintiff concedes she fails to state a claim for negligent supervision.

Accordingly, the District Defendants’ Motion to Dismiss will be GRANTED

with respect to this claim.

D. Intentional Infliction of Emotional Distress

Plaintiff concedes she fails to state a claim for emotional distress.

Accordingly, the District Defendants’ Motion to Dismiss will be GRANTED

with respect to this claim.

E. Punitive Damages

Plaintiff concedes she fails to state a claim for punitive damages.

Accordingly, the District Defendants’ Motion to Dismiss will be GRANTED

with respect to this claim.

IV. CONCLUSION

In light of the foregoing, the court finds that the plaintiff’s allegations

barely survive at this stage of the proceedings. Since there are issues of fact

that require discovery, the court will GRANT in part and DENY in the District

Defendants’ motion to dismiss, (Doc. 31), without prejudice to rearguing

those matters at Summary Judgment time, if appropriate.

S/ Malachy E. Mannion_

MALACHY E. MANNION

United States District Judge

DATE: February 9, 2024

23-19-02