Amspacher v. Red Lion Area School District

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HOPE AMSPACHER, Administrator of : Civil No. 1:23-CV-00286

the Estate of Zachary Kirchner, and :

MATTHEW KIRCHNER, :

:

Plaintiffs, :

:

v. :

:

RED LION AREA SCHOOL :

DISTRICT, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

The life of Zachary Kirchner (“Zachary” or “Decedent”) was cut short on

April 20, 2021, when the ninth grader took his own life. While suicide sometimes

happens with no warning, that was not the case with Zachary. He gave multiple

conspicuous indications of his distress and consequent tendency towards self-harm.

Plaintiffs allege that these indications did nothing to reduce or slow the torrent of

abuse and bullying that he was subjected to by several of his classmates,

Defendants L.D., D.M., T.F., C.H., W.G., and C.A. (collectively, “Student

Defendants”). Nor did Zachary’s distress, or the abuse he faced, lead the school

district to shield him from harassment. The circumstances leading to Zachary’s

tragic death and his brother’s subsequent discovery of his lifeless body form the

basis of this legal action.

Before the court are four motions, filed by Defendants Officer Marc Greenly

(“Officer Greenly”), T.F., W.G., and L.D. (collectively with Officer Greenly, the

“Moving Defendants”), to dismiss claims in Plaintiffs’ amended complaint. (Docs.

23, 26, 29, 35.) For the reasons that follow, the court will grant in part and deny in

part the motions.

FACTUAL AND PROCEDURAL BACKGROUND1

As alleged in the amended complaint, this case arises from Student

Defendants bullying their classmate, Zachary. (Doc. 18, ¶¶ 18–25, 29.) At all

relevant times, Zachary and Student Defendants, all of whom were minors, were

students within Defendant Red Lion Area School District (the “School District”).

(Id. ¶¶ 9, 11–12, 25.) So was Zachary’s older brother, Plaintiff Matthew Kirchner

(“Matthew”). (Id. ¶¶ 6–7, 9.) Zachary attended junior high school for the 2019–

2020 term and senior high school for the 2020–2021 term. (Id. ¶¶ 12–13, 30.) He

had multiple diagnoses, including autism spectrum disorder (“autism”), attention

deficit hyperactivity disorder (“ADHD”), anxiety, oppositional defiance disorder

(“ODD”), obsessive compulsive disorder (“OCD”), and mood disorder not

otherwise specified. (Id. ¶ 31.)

1 The facts in this section are taken from the operative complaint. (Doc. 18.) For purposes of

this motion to dismiss, the court accepts these facts, per the applicable legal standard.

Some or all of these diagnoses were considered disabilities. (Id. ¶ 32.) Due

to his disabilities, Zachary was a special education student within the School

District and had an Individualized Educational Program (“IEP”). (Id. ¶¶ 32, 38.)

While in the eighth grade, Zachary came out as being gay. (Id. ¶ 39.) Soon

thereafter, Student Defendants began harassing him routinely. (Id.) They called

him “gay,” “faggot,” “gay boy,” and other “demeaning, humiliating, and

derogatory terms based on” his sexual orientation. (Id. ¶ 40.) More specifically,

while in eighth grade, W.G. approached Zachary where he made “sexual gestures”

with a lollipop and “gay jokes,” like “I got a lollipop for you.” (Id. ¶ 41.) At

unspecified times, L.D., D.M., and T.F. repeatedly called Zachary “faggot.” (Id.

¶ 42.) And L.D., D.M., T.F., and C.A. told Zachary to kill himself via text

message and social media posts both private and public. (Id. ¶ 43.)

Zachary was not private about his suicidal thoughts. In eighth grade, he told

Student Defendants that he would commit suicide and intended to do so on April

20. (Id. ¶ 44.) Student Defendants continued to publicly humiliate Zachary for his

disabilities and “how he acted differently from other children.” (Id. ¶ 45.) They

told him to kill himself and that committing suicide would be an act of charity.

(Id. ¶ 48.) This harassment regarding sexual orientation and suicide continued and

increased in the ninth grade. (Id. ¶ 49.)

The School District was aware of this bullying. (Id. ¶¶ 50–53.) Zachary

reported the harassment to “his teachers and [other] school officials but they would

not help him.” (Id. ¶ 53.) School District officials were also aware of graffiti in a

school bathroom stall, which read “Zach is a fag,” and which remained there even

after Zachary’s death. (Id. ¶ 51.)

Zachary exhibited self-harming behavior, which included cutting himself

with knives. (Id. ¶ 54.) In or around December 2020, Zachary first attempted

suicide and was consequently hospitalized for multiple days. (Id. ¶¶ 55–56.) The

School District was aware of this incident. (Id. ¶ 57.) Student Defendants

continued to bully Zachary thereafter. (Id. ¶ 58.)

Matthew was concerned about the bullying as well as Zachary’s resulting

decline in mental health. (Id. ¶ 61.) Matthew expressed his concerns to the School

District, but they did not intervene. (Id. ¶ 62.) In one instance, Matthew

approached Principal Rickard and Assistant Principal Shue of the senior high

school and told them that a group of students was calling Zachary a faggot. (Id.

¶ 64.) They told Matthew to mind his own business. (Id.)

Zachary exhibited “disruptive and distressing behavior,” which was caused

by the bullying and exacerbated by Zachary’s autism. (Id. ¶¶ 68–69.) Despite

being aware of the extensive harassment Zachary was subjected to by Student

Defendants, the School District at no time intervened. (Id. ¶ 71–72.) Rather than

protecting Zachary or disciplining Student Defendants, the School District

allegedly responded by disciplining Zachary. (Id. ¶ 70.) On one occasion, a

teacher allegedly locked Zachary in a classroom “against his will for an extended

period of time.” (Id. ¶ 75.) In another instance, a teacher had Zachary sit in a

circle of his classmates while his classmates took turn telling him “all of the things

they did not like about him.” (Id. ¶ 76.)

Plaintiffs assert that, by punishing Zachary instead of Student Defendants,

the School District “created a toxic, hostile, dangerous, and harmful school

environment” for Zachary. (Id. ¶ 79.) Plaintiffs allege that this environment

directly led to Zachary’s suicide. (Id.)

Following Zachary’s December 2020 suicide attempt, he increasingly

expressed his suicidal thoughts to classmates including Student Defendants. (Id.

¶ 91.) Sometimes, he expressed these thoughts over text message and social

media, as he did during the weeks of April 13 and 20, 2021. (Id. ¶¶ 93–94.) In

response to Zachary’s social media posts on April 19, 2021 and the morning of

April 20, 2021, Student Defendants told Zachary to kill himself. (Id. ¶¶ 94–96.)

On the morning of April 20, 2021, Hope Amspacher (“Amspacher”), the

mother of Matthew and Zachary, left for work while Zachary was home. (Id.

¶ 97.) Amspacher told Zachary via multiple texts that she was concerned about

him and that he had to go to school. (Id. ¶ 98.) At 9:20 a.m., Zachary texted

Amspacher that he was leaving for school. (Id. ¶ 99.)

Zachary never arrived at school and sent no more messages to Amspacher.

(Id. ¶¶ 100–102.) Amspacher was concerned that Zachary had harmed himself,

and she expressed that concern to the School District. (Id. ¶ 103.) At that point,

high school students were “talking openly about the fact that [Zachary] may have

harmed himself or committed suicide that morning.” (Id. ¶ 104.)

Amspacher texted Matthew to tell him to go to the school office. (Id. ¶ 105.)

Officer Greenly and Defendant Jason M. Hoffman (“Hoffman”) left the school to

check on Zachary. (Id. ¶¶ 108–09.) They took Matthew along with them. (Id.

¶ 109.) Amspacher repeatedly requested that Hoffman and Officer Greenly

conduct a welfare check and not have Matthew enter the home. (Id. ¶¶ 112–14.)

Despite Amspacher’s requests, Officer Greenly and Hoffman instructed

Matthew, then a minor, to search the house for his brother. (Id.) While Matthew

searched, Officer Greenly and Hoffman waited in the living room. (Id. ¶ 115.)

Upstairs, Matthew discovered blood on the floor and through Zachary’s bedroom.

(Id. ¶ 117.) Officer Greenly and Hoffman did not accompany Matthew for that

discovery. (Id. ¶ 115–121.) Nor did they accompany Matthew when he came

downstairs, passed them in the living room, and proceeded to the basement. (Id.)

Matthew went downstairs, discovered Zachary hanging by a noose from the

basement ceiling with his arm covered in knife wounds, and began screaming.

(Id.) It was only then that Officer Greenly and Hoffman came downstairs to help.

(Id.) Since discovering Zachary’s body, Matthew has suffered extreme distress

and his mental health has severely declined. (Id. ¶ 124.)

The initial complaint in this case was filed on February 17, 2023. (Doc. 1.)

The amended complaint was filed on April 19, 2023 by Amspacher and Matthew.

(Doc. 18, ¶¶ 1, 6.) Amspacher brings her claims on behalf of Zachary and as

administratrix of his estate (the “Estate”), having been granted the necessary

approvals by the York County Register of Wills. (Id. ¶ 5.)

The claims that are subject to the instant motions to dismiss are as follows.

In Count I, Matthew brings a claim for state created danger, in violation of 42

U.S.C. § 1983, against Officer Greenly in his individual and official capacity.2

(Id. ¶¶ 133–147.) In Count V, the Estate brings a claim of gross negligence or

recklessness against the Student Defendants. (Id. ¶¶ 167–173.) In Count VI,

Mathew brings a claim of intentional infliction of emotional distress (“IIED”)

against the Student Defendants. (Id. ¶¶ 174–177.) And in Count VII, the Estate

brings an IIED claim against the Student Defendants.3 (Id. ¶¶ 178–181.)

2 Matthew also brings this claim against Hoffman. (Doc. 18, ¶¶ 14, 133–147.) Officer Greenly

is the only movant with respect to Count I. Therefore, the court includes in this memorandum

only those facts that relate to Officer Greenly and omits those facts related to Hoffman.

3 The amended complaint labels this claim as Count IX, but the court perceives that as a

numbering error and instead refers to it as Count VII.

On May 2, 2023, Officer Greenly filed a motion to dismiss the claim against

him. (Doc. 23.) T.F. and W.G. filed motions to dismiss on May 3, 2023. (Docs.

26, 27.) And then L.D. filed a motion to dismiss on May 22, 2023. (Doc. 35.)

The Moving Defendants filed briefs in support, Plaintiffs filed a consolidated brief

in opposition, and W.G. and T.F. filed reply briefs. (Docs. 24, 33, 34, 36, 41, 43,

44.) The motions to dismiss are ripe for review.

STANDARD OF REVIEW

In order “[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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012).

DISCUSSION

Officer Greenly argues that the state created danger claim raised against him

fails to state a claim for which relief may be granted under Rule 12(b)(6). In the

alternative, he argues that the claim against him should be severed. T.F., L.D., and

W.G. argue that the claims against them fail under Rule 12(b)(6). The court

addresses their arguments below.

A. The court will dismiss Matthew’s state created danger claim against

Officer Greenly because Matthew has failed to show that qualified

immunity does not apply.

Matthew raises a claim of state created danger against Officer Greenly.

Officer Greenly argues that qualified immunity bars this claim. (Doc. 24, pp. 6–8.)

Officer Greenly also argues that Matthew’s allegations do not establish the

elements of state created danger. (Id. at 4–6.) Specifically, he asserts that

Matthew fails to plead that Officer Greenly acted with the requisite culpability or

rendered Matthew more vulnerable to danger. (Id.)

The doctrine of qualified immunity protects government officials from

liability for civil damages “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Qualified

immunity balances two important interests—the need to hold public officials

accountable when they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform their duties

reasonably.” Id. Qualified immunity “provides ample protection to all but the

plainly incompetent or those who knowingly violate the law.” Malley v. Briggs,

475 U.S. 335, 341 (1986). Because qualified immunity is an “immunity from suit

rather than a mere defense to liability,” the Supreme Court has repeatedly

instructed that it should be resolved “at the earliest possible stage in litigation.”

Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations omitted).

To overcome qualified immunity, a plaintiff must show “(1) that the official

violated a statutory or constitutional right and (2) that the right was ‘clearly

established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S.

731, 735 (2011). In analyzing the facts, the court has discretion to decide which of

the prongs to address first. Pearson v. Callahan, 555 U.S. 223, 236 (2009).

A right is “clearly established” for qualified immunity purposes only if “the

contours of the right” are “sufficiently clear that a reasonable official would

understand that what he is doing violates that right.” Anderson v. Creighton, 483

U.S. 635, 640 (1982). Thus, defendants are entitled to qualified immunity if

“reasonable officials in [their] position at the relevant time could have believed, in

light of what was in the decided case law, that their conduct would be lawful.” In

re City of Phila. Litig., 49 F.3d 945, 961 n.14 (3d Cir. 1995). However, for

reasonable officials to be on notice that their conduct would be unlawful, there

need not be “a previous precedent directly on point.” Acierno v. Cloutier, 40 F.3d

597, 620 (3d Cir. 1994); accord Anderson, 483 U.S. at 640 (holding that the

“clearly established” standard does not require that “the very action in question has

previously been held unlawful”). Rather, there need only be “some but not precise

factual correspondence between relevant precedents and the conduct at issue,” Pro

v. Donatucci, 81 F.3d 1283, 1292 (3d Cir. 1996) (internal citations and quotations

omitted), so that “in the light of pre-existing law the unlawfulness [would be]

apparent.” Anderson, 483 U.S. at 640.

Officer Greenly argues that qualified immunity applies to the claim against

him because Matthew has not pleaded that any constitutional violation occurred,

let alone a violation that was clearly established. (Doc. 24, pp. 6–8.) The amended

complaint only asserts that Matthew was “deprived of his constitutionally

protected right of right [sic] to be free from unjustified intrusion upon Plaintiff’s

physical and emotional well-being.” (Id. at 7 (quoting Doc. 18, ¶ 135).)

Matthew responds that he had a constitutional right under the 14th

Amendment to be free from unjustified intrusion upon his physical and emotional

well-being pursuant to L.R. v. Sch. Dist. of Phila., 836 F.3d 235 (3d Cir. 2016).

(Doc. 41, pp. 39–40.) As the Third Circuit found in L.R., “[e]xposing a young

child to an obvious danger is the quintessential example of when qualified

immunity should not shield a public official from suit.” (Id. at 40 (quoting L.R.,

836 F.3d at 250).)

In L.R., the Third Circuit found that qualified immunity did not shield the

teacher of a five-year-old child from a state-created danger claim. 836 F.3d at

239–40, 250. The teacher had released the five-year-old, “Jane,” to a stranger. Id.

The stranger took Jane from school and sexually assaulted her, which resulted in

“significant physical and emotional injuries.” Id. at 239–40 & n.1. In its opinion,

the Third Circuit noted instances where other circuits have let cases proceed

against officials for their conduct related to minors. Id. at 249–50 (citing White v.

Rochford, 592 F.2d 381, 386 (7th Cir. 1979) (“[Holding] that police officers who

‘abandon children and leave them in health-endangering situations after having

arrested their custodian and thereby deprive them of adult protection’ violate the

children’s ‘right to be free from unjustified intrusions upon physical and emotional

well-being.’”); Armijo ex rel. Chavez v. Wagon Mount Pub. Schs., 159 F.3d 1253

(10th Cir. 1998) (holding that qualified immunity did not bar claim brought against

school officials by the parents of a special education student who committed

suicide, “when school officials sent the student home after he was acting up in

school, despite knowing that he was having suicidal thoughts, he had access to

firearms in his house, and his parents were not home.”)).

Matthew points out that Armijo was decided decades prior to Zachary’s

suicide. (Doc. 41, p. 42.) He further argues that, as with these cases, Officer

Greenly unreasonably intruded upon his physical and emotional well-being. (Id.)

Matthew has not adequately pleaded that Officer Greenly violated a

constitutionally or statutorily protected right of Matthew, let alone one that was

clearly established, because the Third Circuit has not explicitly recognized a right

of children to be free from unjustified intrusions upon physical and emotional well-

being. The court in L.R. noted that the Seventh Circuit had recognized such a

right. 836 F.3d at 249 (citation omitted). But the Third Circuit did not hold that

this broadly-stated right is recognied in the Third Circuit. Rather, the holding in

L.R. was narrow and fact-specific: in 2013, the teacher-defendant was “on notice

that permitting a kindergarten student to leave his classroom with an unidentified

adult could lead to a deprivation of that student’s substantive due process rights.”

Id. at 250.

More importantly for this case, Matthew has not shown that there is a

constitutional or statutory right to be free from unjustified intrusion upon

emotional well-being absent physical harm. If such a right existed and were

clearly established, the allegations in the amended complaint would likely be

sufficient to overcome qualified immunity. The amended complaint asserts

horrific circumstances in which Amspacher pleaded with Officer Greenly to not

make Matthew enter their home to search for Zachary. (Doc. 18, ¶ 114.) Because

Officer Greenly would not go in search of Zachary, as Amspacher had requested,

Matthew was forced to search for his borther. As a result, the tenth grader was the

one to discover his younger brother’s bloody hanging body. That incident

plausibly caused substantial intrusion upon Matthew’s emotional well-being.

However, Matthew has not presented any precedent to suggest that there is a

constitutional or statutory right in the Third Circuit to be free from unjustified

intrusion upon emotional well-being absent any physical harm. Therefore, he fails

to meet the first prong of qualified immunity as set forth in al-Kidd. 563 U.S. at

735. Nor has he presented precedent showing that such a right is clearly

established, as required by the second prong of al-Kidd. Because Matthew has

failed to identify a clearly protected right, Officer Greenly is entitled to qualified

immunity. The court will dismiss Count I with respect to Officer Greenly.

B. Negligence

As the Pennsylvania Supreme Court has stated, “[t]o establish a prima facie

case of negligence, a plaintiff must plead that ‘the defendant owed a duty of care to

the plaintiff, the defendant breached that duty, the breach resulted in injury, and the

plaintiff suffered an actual loss or damage.” Walters v. UPMC Presbyterian

Shadyside, 187 A.3d 214, 221 (Pa. 2018) (citation omitted).

T.F., L.D., and W.G. argue that the Estate’s negligence claim fails because

the Estate has failed to adequately plead that Student Defendants owed a duty of

care to Zachary. (Doc. 33, p. 9; Doc. 34, p. 9–13; Doc. 36, pp. 9–13.) They point

out that the amended complaint identifies no applicable duty of care. L.D. and

W.G. go further to argue that, under the applicable standard, Pennsylvania law

would not support the finding of a new duty here. (Doc. 34, pp. 9–13; Doc. 36,

pp.11–13 (citing Althaus v. Cohen, 756 A.2d 1166 (2000)).)

W.G. also argues that the Estate’s claim fails because it does not allege facts

that demonstrate the element of causation. (Doc. 34, pp. 13–15.) Lastly, W.G.

argues that this claim must be dismissed because it is brought as a “gross

negligence and/or recklessness” claim, but these are not independent causes of

action. (Id. at 16–17.) Instead, when a cause of action exists, recklessness and

gross negligence may form the basis for punitive damages. (Id.)

The court will begin by analyzing the arguments surrounding duty. It is true

that nowhere in the amended complaint does the Estate allege that Student

Defendants owed a duty of care. Nor does the Estate specify what duty of care

would apply. In its brief in opposition, the Estate argues that the Student

Defendants owed Zachary a general duty not to expose others to reasonably

foreseeable risks of injury. (Doc. 41, pp. 24–25 (citing Roche v. Ugly Duckling

Car Sales, Inc., 879 A.2d 785 (Pa. Super. 2005)).) Also, without asking this court

to find the existence of a new duty of care, the Estate does argue that such a duty

could be established under Pennsylvania law. (Id. at 26–27 (applying Althaus).)

Because the Estate has failed to plead a duty of care in the amended

complaint, it cannot make out a prima facie claim. Therefore, the court will

dismiss Count V with respect to T.F., L.D., and W.G.4

C. The court will grant in part and deny in part the dismissal of

Plaintiffs’ IIED claims.

To bring a claim of IIED, a plaintiff must show that “(1) the defendant’s

conduct was extreme and outrageous; (2) the conduct caused the plaintiff severe

emotional distress; and (3) the defendant acted intending to cause such distress or

with knowledge that same was ‘substantially certain’ to occur.” Dobson v. Milton

Hershey Sch., 356 F. Supp. 3d 428, 439 (M.D. Pa. 2018) (citing Brown v.

Muhlenberg Twp., 269 F.3d 205, 217–18 (3d Cir. 2001)). The standard is difficult

to satisfy, and “mere insults, indignities, threats, annoyances, petty oppressions,

and other trivialities” are insufficient to sustain an IIED claim. Shumate v. Twin

Tier Hosp., LLC, 655 F. Supp. 2d 521, 542 (M.D. Pa. 2009) (quoting Bowersox v.

P.H. Glatfelter Co., 677 F. Supp. 307, 310 (M.D. Pa. 1988)).

4 Because Count V fails on the element of duty, the court will not address W.G.’s additional

arguments regarding causation and whether a “gross negligence and/or recklessness” claim can

survive when not explicitly pleaded as a negligence cause of action.

Pennsylvania courts have found that the first element is met only for “the

most egregious conduct.” Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998) (citation

omitted). The conduct “must be so outrageous in character, and so extreme in

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

atrocious, and utterly intolerable in a civilized society.” Id. (citation omitted).

T.F., L.D., and W.G. argue that Matthew cannot meet the first element.

(Doc. 33, pp. 11–15; Doc. 34, pp. 18–19; Doc. 36, pp. 14–15.) L.D. and W.G. also

argue that, as a bystander, Matthew can only recover for allegedly outrageous

conduct that occurred in his presence. (Doc. 34, pp. 17, 19; Doc. 36, p. 14.) They

argue that, because no such conduct is alleged, his claim fails. Lastly, W.G. argues

that Matthew cannot meet the third element of knowledge or substantial certainty.

(Doc. 34, pp. 19–20.) As their arguments vary by Defendant and count, the court

first addresses T.F.’s arguments and then addresses the arguments L.D. and W.G.

raise regarding Counts VI and VII.

1. The court will not dismiss the IIED claims brought against

T.F.

T.F. argues that Counts VI and VII fail because Pennsylvania courts have

held that bullying, insults, and taunting are insufficient to raise an IIED claim.

(Doc. 33, pp. 11–14.)5 T.F. argues that the present instance is similar to Price ex

5 T.F. also argues in passing that Matthew’s claim fails because he does not allege physical

manifestation as a result of the IIED. (Doc. 33, p. 15.) Despite minor typographical errors in

rel. O.P. v. Scranton Sch. Dist., Civil Action No. 11–0095, 2012 WL 37090 (M.D.

Pa. Jan. 6, 2012).

In Price, a seventh-grade girl brought claims including IIED against various

defendants, including students. 2012 WL 37090, at *1. After the girl contracted a

yeast infection, classmates found out and began to tease and taunt her. Id. at *2.

She was taunted multiple times a day, and the harassment increased to the point

that she was regularly called a “bitch, a skank, a slut, a tramp, and a whore.” Id.

(internal quotation marks omitted). As a result of the conduct, the girl suffered

from posttraumatic stress disorder and contemplated suicide on multiple occasions.

Id. at *4. The court concluded that the girl’s IIED claim against the students

failed, because the student defendants’ conduct did not reach the level of

outrageous under Pennsylvania law. Id. at *12.

T.F. argues that whether conduct qualifies as extreme and outrageous is

greatly impacted by the identity of the defendant. (Doc. 33, p. 13 (citing Price,

2012 WL 37090; DiSalvio v. Lower Merion High Sch. Dis., 158 F. Supp. 2d 553

(E.D. Pa. 2001)).) The court in Price found that distinction important. Price, 2012

WL 37090, at *12 (dismissing IIED claim because, unlike in DiSalvio where

case name and reporter number, the court construes T.F. as citing Kazatsky v. King David Mem'l

Park, Inc., 527 A.2d 988, 995 (Pa. 1987) to support this proposition. But T.F. does not develop

this argument, and Kazatsky does not support T.F.’s proposition on its face. Therefore, the court

will not address this argument further.

sexual harassment by a school employee involved differences in the parties’ age

and relative power, that dynamic was absent between classmates). T.F. argues

that, because the defendants here are students, this case is like Price and unlike

DiSalvio.

While T.F. is correct with respect to the importance of the identity of the

defendants, the court is not convinced that the present instance is altogether similar

to Price. Although the conduct of the student defendants in Price was hurtful,

offensive, and inappropriate, it does not rise to the level of conduct alleged in this

case. To being, the amended complaint alleges that T.F. repeatedly called Zachary

a “faggot.” (Doc. 18, ¶ 42.) That verbal abuse and bullying is similar to the

conduct in Price. But here, T.F. also allegedly told Zachary “to kill himself over

text message or other messaging services and made similar posts on social media

for [Zachary] and other classmates to see.” (Id. ¶ 43.) That is unlike any conduct

at issue in Price. This allegation plausibly alleges outrageous conduct, especially

considering Student Defendants’ alleged awareness of Zachary’s suicidal thoughts.

(Id. ¶ 44.) Because the amended complaint plausibly alleges that T.F. engaged in

outrageous conduct, T.F.’s arguments fail. Therefore, the court will deny T.F.’s

motion to dismiss Counts VI and VII.

Because the court is not granting dismissal of the IIED claims against T.F.,

T.F. argues that the court should require Plaintiffs to plead additional facts

sufficient to satisfy the pleading requirements of Federal Rule of Civil Procedure 8.

(Doc. 33, p. 15.) T.F. presents no authority in support of this request, and instead

relies entirely on argument. (Id.) T.F. argues that the amended complaint

generalizes the allegations against all Student Defendants without specifying the

“timing, method, manner, means or context” of T.F.’s alleged conduct. (Id.)

Plaintiffs respond that, under Rule 8(a)(2), they are only required to make “a

short and plain statement of the claim showing that the pleader is entitled to relief.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007). To do so, “[s]pecific facts are not

necessary; the statement need only give the defendant fair notice of what the . . .

claim is and the grounds upon which it rests.” Id. (internal quotation marks

omitted) (quoting Twombly, 550 U.S. at 555). Plaintiffs argue that they have done

so here. (Doc. 41, p. 31.) They have alleged that Student Defendants “each

specifically contributed to Zachary’s . . . suicide and Matthew’s anguish.” (Id.)

The court concludes that Plaintiffs have pleaded claims against T.F. with

sufficient specificity. Plaintiffs have pleaded that T.F. repeatedly called Zachary

derogatory slurs and urged him to kill himself over text message and public and

private social media posts. (Doc. 18, ¶¶ 42–43.) T.F. is on notice of Plaintiffs’

claims. Therefore, the court will not require Plaintiffs to file additional pleadings

with respect to T.F.

2. The court will dismiss Count VI with respect to W.G. and L.D.

because Matthew has not adequately pleaded that he was

present when the allegedly outrageous conduct occurred.

W.G. and L.D. argue that, under Pennsylvania law, Matthew has not

adequately pleaded an IIED claim as a bystander. (Doc. 34, pp. 17, 19–20; Doc.

35, pp. 14–15.) When the IIED plaintiff is a bystander and not the direct recipient

of the complained-of conduct, the Superior Court of Pennsylvania noted that it

“has repeatedly indicated that the individual suffering the distress must be present

when the outrageous conduct is directed at a third person.” Johnson v. Caparelli,

625 A.2d 668, 672 (Pa. Super. Ct. 1993).

W.G. and L.D. argue that this requirement for Count VI is not pleaded in the

amended complaint. (Doc. 34, p. 19; Doc. 36, p. 15.) Instead, it “fails to allege

any interactions where [Matthew] was present during the alleged tortious activity

by Defendant L.D.” (Doc. 36, p. 15.) Similarly, Matthew has not alleged that he

was present during any tortious conduct allegedly committed by W.G. (Doc. 34,

p. 19.)6 W.G. and L.D. argue that, under Johnson v. Caparelli, 625 A.2d 668 (Pa.

Super. Ct. 1993), his lack of presence bars him from recovery. (Doc. 34, pp. 17,

19–20; Doc. 36, pp. 14–15.)

6 W.G. also asserts that, during Zachary’s eight grade year, Matthew was in high school in an

entirely different building when any allegedly tortious conduct occurred. (Doc. 34, p. 19.)

Because these facts are not presented in the amended complaint, the court will not consider them

for the purposes of the instant motions to dismiss.

Plaintiffs do not address this argument. Therefore, the court infers that

Matthew has conceded this issue. In light of Johnson, Matthew has not met the

pleading standard with respect to his IIED claim against W.G. and L.D. There are

no allegations that W.G. or L.D. committed outrageous conduct in Matthew’s

presence. The amended complaint alleges that Matthew “watched his brother’s

psychological torture in real time while they were both students in the School

District.” Doc. 18, ¶ 60.) It further alleges that he “witnessed the bullying of his

brother and saw the visible decline in [Zachary’s] mental health due to the

psychological abuse.” (Id. ¶ 61.) It alleges that on a given day, Matthew reported

to School District officials that students were bullying Zachary. (Id. ¶ 64.) While

these allegations in the amended complaint are suggestive of physical presence,

they are insufficient for the claim of IIED by Matthew to be plausible.

The amended complaint does not allege any specific conduct by W.G. or

L.D in Matthew’s presence. That being the case, the amended complaint has not

presented facts sufficient to plausibly plead that W.G. or L.D. partook in extreme

or outrageous conduct in Matthew’s presence sufficient to allow Matthew to

proceed with an IIED claim against them. Therefore, the court will dismiss Count

VI with respect to W.G. and L.D.

D. The court will dismiss Count VII with respect to W.G. and L.D.

because the Estate has not pleaded that W.G. or L.D. knew that their

conduct was substantially certain to lead to Zachary’s distress.

W.G. and L.D. argue that Count VII fails for three reasons. (Doc. 34,

pp. 18–20; Doc. 36, pp. 15–16.) First, it fails to allege conduct that rises to the

level of extreme and outrageous. Second, most of the conduct it does allege is

generally attributed to Student Defendants and not specifically to any particular

defendant. And third, it fails to allege that W.G. and L.D. acted with the

knowledge that Zachary’s distress was substantially certain to occur. (Doc. 34,

pp. 18–20; Doc. 36, pp. 15–16.) W.G. also argues that there is no evidence that

W.G.’s conduct caused Zachary’s distress. (Doc. 34, p. 20.) The specific conduct

alleged against W.G. is the lollipop incident, which took place a year or more prior

to Zachary’s suicide. (Id.) Given the sparse pleadings and passage of, W.G.

argues that causation is lacking. (Id.)

The Estate responds to some of these arguments. (Doc. 41, pp. 28–31.) But

it does not respond to the argument that W.G. or L.D. are not alleged to have acted

with knowledge or substantial certainty of Zachary’s distress. (Id.) Instead, the

Estate asserts that the amended complaint has established that each Student

Defendant “specifically contributed to Zachary’s ongoing bullying and suicide, and

Matthew’s anguish, and gave examples.” (Id. at 31.) The Estate asserts that no

more is required to survive a motion to dismiss.

Knowledge or substantial certainty is a requirement of an IIED claim. W.G.

and L.D. argue that it is not pleaded in the amended complaint. Rather than

contest this point, the Estate ignores it. W.G. and L.D. are correct. Knowledge or

substantial certainty is not pleaded in the amended complaint. Therefore, the court

will dismiss Count VII with respect to W.G. and L.D.

CONCLUSION

For the reasons provided herein, the court will grant in part and deny in part

the motions to dismiss. The court will grant Officer Greenly’s motion and

therefore dismiss Count I insofar as it is brought against him. (Doc. 23.) The court

will grant in part and deny in part T.F.’s motion to dismiss, granting it with respect

to Count V and denying it with respect to Counts VI and VII. (Doc. 26.) And the

court will grant the motions to dismiss filed by W.G. and L.D. and dismiss the

claims against them. (Docs. 29, 35.) An appropriate order will follow.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: March 28, 2024