The opinion
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 AND ORDER
I. Introduction
This case comes before us on a motion for reconsideration filed by
the plaintiffs. (Doc. 40). The plaintiffs filed this action against the
Riverside School District (“the District”) and other defendants, alleging
claims of discrimination and retaliation under Title IX of the Education
Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681, ; violations of
the Fourteenth Amendment’s Equal Protection and Substantive Due
Process clauses under 42 U.S.C. § 1983; a 1 claim under § 1983;
1 , 436 U.S. 658
(1978).
and state law claims of negligence, negligence , breach of contract,
intentional infliction of emotional distress, and negligent infliction of
emotional distress. ( Doc. 1). These claims arose from the sexual abuse
and subsequent sexual harassment of the Jane Doe plaintiff by another
student in the District, whom the plaintiffs allege the District failed to
remove from the school setting.
We granted the Defendant’s motion to dismiss in part, dismissing
the § 1983 and state law negligence claims against the District. (Docs.
36, 37). Relevant to the instant motion to reconsider, we dismissed the
plaintiffs’ § 1983 claims alleging liability against the district,
finding that the plaintiffs had failed to allege any affirmative action by
the District, and further, that the plaintiffs had failed to plead facts from
which we could infer that the District discriminated against her based on
gender in violation of the Fourteenth Amendment. (Doc. 36 at 21-24). We
also dismissed the plaintiffs’ negligence claims against the District,
concluding that the District was shielded by immunity under the
Pennsylvania Political Subdivision Tort Claims Act (“PSTA”). ( at 24-
30).
The plaintiffs now urge us to reconsider our ruling on the motion to
dismiss, asserting that we erred in our consideration and dismissal of
these claims. (Doc. 40). After consideration, we will deny the plaintiffs’
motion.
II. Discussion
“The purpose of a motion for reconsideration . . . is to correct
manifest errors of law or fact or to present newly discovered evidence.”
, 602 F.3d 237,
251 (3d Cir. 2010) (internal citations and quotations omitted). It is not to
“rehash arguments already briefed.” ,
42 F. Supp. 2d 385, 419 (D. Del. 1999). Thus, motions for reconsideration
should be granted sparingly and only if the plaintiff can show: “(1) [an]
intervening change in controlling law, (2) availability of new evidence not
previously available, or (3) need to correct a clear error of law or prevent
manifest injustice.” , 796 F. Supp. 829, 830
(M.D. Pa. 1992); , 884
F. Supp. 937, 943 (E.D. Pa. 1995).
Here, the plaintiffs do not argue that there has been an intervening
change in the law, nor do they present new evidence in support of their
claims that was not previously available. Rather, they assert that we
erred in our consideration of the law as applied to the plaintiffs’ claims
against the District. Specifically, the plaintiffs contend that they have
adequately pleaded their § 1983 claims against the District, and further,
that the PSTCA does not bar their negligence claims against this
defendant.
With respect to the plaintiffs’ § 1983 claims against the District, the
plaintiffs assert that their complaint adequately pleads a claim against
the District for its failure to act to protect Jane Doe from the sexual
harassment of A.P. They further claim that they adequately pleaded facts
to show that the school was deliberately indifferent to the sexual
harassment in violation of the Equal Protection clause. We disagree.
As we stated in our prior Memorandum Opinion, the plaintiffs’
allegations that the District failed to prevent Jane Doe from being
harassed by a mere failure to act is insufficient to establish § 1983
liability:
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).
(Doc. 36 at 22). While the plaintiffs are correct that a municipality may
be held liable based upon a showing that it was aware of similar conduct
in the past but failed to take action to prevent future violations (Doc. 41
at 11), the plaintiffs must plead facts to that effect. Here, the complaint
falls short of alleging that the District was aware of any prior harassment
of the plaintiff by A.P. and that it failed to act. Rather, the complaint
alleges that the harassment occurred, Nied set up a meeting with
the District to inform them of what was occurring. Accordingly, the
District cannot be held liable based on their failure to act to prevent these
alleged instances of harassment where there are no allegations tending
to show that the District was “aware of similar unlawful conduct in the
past.” ( ) (quoting , 915 F.2d 845, 851 (3d Cir.
1990)).
Further, the plaintiffs assert that they have adequately pleaded
intentional discrimination by the District to sufficiently allege a claim
under the Equal Protection clause. The plaintiffs point us to
, 309 F. Supp. 3d 367 (E.D. Pa. 2018) and
, 2023 WL 8703402
(M.D. Pa. Dec. 15, 2023), arguing that this caselaw establishes that a
showing of deliberate indifference to student-on-student harassment is
sufficient to state a claim of intentional discrimination under the Equal
Protection clause. (Doc. 41 at 11-12). In , however, the plaintiffs
had alleged facts showing that school administrators had taken
affirmative steps to encourage the harassment, including suggesting that
the student-victim of the harassment switch schools after being informed
of the harassment. , 309 F. Supp. 3d at 378. Similarly, in
, the plaintiff had alleged that the school district ended a
training program that it previously had regarding racial harassment,
and that the school district told the plaintiffs it had investigated reported
incidents of harassment and acted when it had not. , 2023 WL
8703402 at *1, 7.
The plaintiffs in this case make no such allegations. Rather, the
complaint in this matter merely alleges 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, which they assert led to
A.P.’s subsequent harassment of Jane Doe. These allegations are
insufficient to establish deliberate indifference by the District to
maintain a § 1983 claim against it. Accordingly, we cannot conclude that
the plaintiffs have shown a clear error of law in our decision to dismiss
these § 1983 claims against the District.
We similarly conclude that the plaintiffs have failed to establish a
clear error of law with respect to our dismissal of the negligence claims
against the District. The plaintiffs contend that the PSTCA does not
provide immunity to the District because of the “sexual abuse” exception
to the PSTCA. They argue that the sexual abuse exception encompasses
the sexual harassment allegedly suffered by Jane Doe, and that this falls
within the PSTCA’s exception that a municipality may be liable if the
sexual abuse was a result of the action or inaction of the municipality.
(Doc. 41 at 17-18).
However, as we explained in our prior Memorandum Opinion, in
our view, the clear language of the sexual abuse exception does not
encompass the sexual harassment alleged by the plaintiff in this case.
The exception waives immunity for “Sexual abuse.--
. . . if the
injuries to the plaintiff were caused by actions or omissions of the local
agency which constitute negligence.” 42 Pa. Const. Stat. § 8542(b)(9)
(emphasis added). While the plaintiffs believe that “sexual abuse”
encompasses “sexual harassment” as alleged by the plaintiff, the
exception clearly delineates that “sexual abuse” in this context is limited
to “[c]onduct which constitutes an offense enumerated under section
5551(7).” Section 5551(7) enumerates nine offenses, one of which
encompasses the sexual assault of which A.P. was adjudicated guilty.
18 Pa. Cons. Stat. § 3124.1. It does not, however, include any reference
to sexual harassment.
As we previously explained, we agree with the statutory
interpretation set forth by one court in this district, which noted that “[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). The sexual abuse waiver in the PSTCA clearly and
unambiguously encompasses the enumerated conduct set forth and cross-
referenced in the statute, which does not include sexual harassment. The
plaintiffs have provided us with no argument to the contrary. Rather, the
plaintiffs rely on their own interpretation of the harassment as “sexual
abuse” to argue that this court committed a clear error of law in applying
the PSTCA waiver and dismissing the negligence claims against the
District. Accordingly, the plaintiffs have failed to show a clear error of
law in our decision dismissing these negligence claims against the
District.
Finally, we note that the plaintiffs have requested leave to amend
their complaint to attempt to replead the § 1983 claims against the
District.2 (Doc. 41 at 15-16). Rule 15 of the Federal Rules of Civil
Procedure permits a party to amend a pleading once as a matter of
2 The plaintiffs have not requested leave to amend the negligence claims
against the District. We note that because these claims have been
dismissed on immunity grounds, any amendment would be futile.
, , 2014 WL 4081477, at *9 (E.D. Pa.
Aug. 18, 2024) (finding that leave to amend claims dismissed on the basis
of PSTCA immunity would be futile).
course, if amended within a particular timeframe, and with either
consent of the opposing party or leave of court in all other cases. Fed. R.
Civ. P. 15(a). Leave to amend should be freely given “when justice so
requires.” However, the decision to grant a party’s request to amend
a pleading lies within the discretion of the court. , 213
F.3d 113, 115 (3d Cir. 2000). A court may deny a party’s request to amend
if amendment would result in undue delay, is motivated by bad faith, or
would be futile. , 371 U.S. 178, 182 (1962).
Here, there is no indication that granting the plaintiffs’ request for
leave to amend as to the § 1983 claims against the District would result
in undue delay, would be futile, is motivated by bad faith, or would
prejudice the defendants. Accordingly, we will grant the plaintiffs’
request and permit them leave to amend their complaint with respect to
the § 1983 claims against the District.
III. Order
Accordingly, for the foregoing reasons, the plaintiffs’ motion for
reconsideration (Doc. 40) is DENIED.
So ordered this 11th day of April 2024.
Daryl F. Bloom
United States Magistrate Judge