# Doe v. Red Lion Area School District

> District Court, M.D. Pennsylvania · January 2, 2025

URL: https://www.frixlaw.com/law-library/cases/10773383

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 2, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10773383

## How later opinions describe it (automated extraction)

- clarifying that plaintiffs need not allege injuries were direct result of formal policy

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JANE DOE and JOHN DOE, : CIVIL ACTION NO. 1:24-CV-186
as parents and natural guardians of :
JANE ROE, a minor, : (Judge Conner)
:
Plaintiffs :
:
v. :
:
RED LION AREA SCHOOL :
DISTRICT, et al., :
:
Defendants :

MEMORANDUM

Plaintiffs Jane Roe, a minor, and her mother and father, Jane and John Doe,
assert constitutional, statutory, and state common-law claims against defendants
Red Lion Area School District and Michael Langan, principal of Clearview
Elementary School. Defendants move to dismiss Roe’s amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). We will grant the motion in
part and deny it in part.
I. Factual Background & Procedural History
Roe attended school within the Red Lion Area School District when she was
five years old. (See Doc. 16 ¶¶ 4, 41). This case arises from Roe’s allegation that she
was twice physically and sexually assaulted by a fellow minor student, who is male,
while riding the school bus. (See id. ¶¶ 1, 17-20, 27). Plaintiffs assert District staff—
including Principal Langan, a school psychologist, and the bus driver—knew Roe
was in danger of being assaulted and failed to prevent it. (See id. ¶¶ 21-25, 29, 30-37,
111). The following events are derived from plaintiffs’ amended complaint.
Plaintiffs allege that, on October 16, 2023, Roe told her mother she was
sexually assaulted by a male student on the bus. (See id. ¶ 17). The next day, Roe’s
mother called Clearview Elementary School and reported the incident to Principal

Langan. (See id. ¶ 24). The same male student then attacked Roe on the same bus
in January 2024, causing bruising and leaving handprints on Roe’s body. (See id.
¶¶ 1, 27). Roe’s parents removed her from the District following the second assault.
(See id. ¶ 41).
According to the amended complaint, defendants knew of the male student’s
propensity to engage in deviant behavior, including sexual assault. (See id. ¶¶ 18-
25). In fact, on October 17, 2023—after the first assault of Roe, but before the

second—Principal Langan called the mother of another female student to inform
her that the perpetrator had assaulted her daughter multiple times; this time he
had kissed her, touched her inappropriately, and looked down her shirt. (See id.
¶ 21). Principal Langan claimed to have learned about the assaults from school bus
camera footage, (see id. ¶ 21); however, the bus company denied that the camera
was functioning at the relevant times, (see id. ¶ 22).

Plaintiffs allege defendants did nothing to prevent the January 2024 assault,
even after receiving the foregoing reports. (See id. ¶¶ 29, 32, 111). More specifically,
defendants did not expel or suspend the assailant, physically separate him from
Roe, or staff the bus with monitors. (See id.) Principal Langan also allegedly failed
to report the attacks despite being a mandated reporter under Pennsylvania law.
(See id. ¶¶ 33-35).
Plaintiffs initiated this action on February 1, 2024. They advance two claims
under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.,
against the District for deliberate indifference to, and for placing Roe at a

heightened risk of, sexual assault and harassment, respectively (see Doc. 16 ¶¶ 12-47
(Count I), ¶¶ 48-61 (Count II)). In addition, plaintiffs bring constitutional claims
under 42 U.S.C. § 1983 against the District and Principal Langan in his individual
capacity, (see Doc. 16 ¶¶ 7, 98), based upon the Fourteenth Amendment’s Due
Process and Equal Protection Clauses, (see id. ¶¶ 62-82 (Count III), ¶¶ 83-98
(Count IV)). Plaintiffs also assert a negligence claim against both defendants under
Pennsylvania common law. (See id. ¶¶ 99-128 (Count V)). Defendants now move to

dismiss plaintiffs’ amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim. The motion is fully briefed and ripe for
disposition.
II. Legal Standards
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief may be granted.

See FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule
12(b)(6), the court must “accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine whether, under
any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker
v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).
Federal notice and pleading rules require the complaint to provide “the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.”
Phillips, 515 F.3d at 232 (alteration in original) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint, the court conducts
a three-step inquiry. See Santiago v. Warminster Township, 629 F.3d 121, 130-31
(3d Cir. 2010). In the first step, “the court must ‘tak[e] note of the elements a
plaintiff must plead to state a claim.’” Id. at 130 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal elements of a
claim must be separated; well-pleaded facts are accepted as true, while mere legal
conclusions may be disregarded. Id. at 131-32; see Fowler v. UPMC Shadyside,

578 F.3d 203, 210-11 (3d Cir. 2009). Once the court isolates the well-pleaded factual
allegations, it must determine whether they are sufficient to show a “plausible claim
for relief.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. at 556); Twombly,
550 U.S. at 556. A claim is facially plausible when the plaintiff pleads facts “that
allow[] the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.

III. Discussion
Defendants seek dismissal of each count of the amended complaint. First,
they aver the amended complaint does not plausibly state that the District was
deliberately indifferent to severe or pervasive harassment under Title IX (Counts I
and II). (See Doc. 19 at 4-7). They then contend we should dismiss the
constitutional claims (Counts III and IV) under Monell v. Department of Social
Services, 436 U.S. 658 (1978), or, alternatively, because the claims are not supported
by sufficient factual material. (See id. at 9-13). Finally, defendants argue they are
immune from negligence liability (Count V) pursuant to Pennsylvania’s Political
Subdivision Tort Claims Act (“PSTCA”), 42 PA. CONS. STAT. § 8541, et seq. We

address each argument seriatim.
A. Title IX

Title IX provides that “[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). In addition to granting substantive rights, Title IX
implies a private right of action to enforce them. See Jackson v. Birmingham Bd. of
Educ., 544 U.S. 167, 173 (2005). To state a Title IX claim against a school district for
student-on-student harassment, a plaintiff must plausibly demonstrate, among
other elements, (1) “severe or pervasive” harassment by a student; and
(2) “deliberate indifference” on the part of the district. Davis ex rel. LaShonda D.
v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999). Defendants here argue the
amended complaint does not contain sufficient factual matter to plausibly state

either element.
i. Severe or Pervasive Harassment
Actionable conduct under Title IX must be so severe or pervasive “that it can
be said to deprive the victims of access to the educational opportunities or benefits
provided by the school.” Id. at 650; see also Doe ex rel. Doe v. Boyertown Area Sch.
Dist., 897 F.3d 518, 533 n.99 (3d Cir. 2018) (citations omitted) (directing courts to
analyze Title IX claims under Title VII’s “severe or pervasive” standard for
workplace sexual harassment). A single extreme isolated incident can meet this
burden. See Castleberry v. STI Grp., 863 F.3d 259, 264-66 (3d Cir. 2017). However,
the conduct must be both subjectively offensive and objectively offensive to a

reasonable person. See Andrews v. City of Philadelphia, 895 F.2d 1469, 1482-83 (3d
Cir. 1990), superseded in part by statute on other grounds as recognized in Moody
v. Atlantic City Bd. of Educ., 870 F.3d 206, 214 (3d Cir. 2017). When assessing
conduct, we must consider the “overall scenario.” Abramson v. William Paterson
Coll. of N.J., 260 F.3d 265, 276 (3d Cir. 2001). Relevant considerations include
physical abuse, threatening behavior, and continued exposure to former harassers.
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 717 (3d Cir. 1997).

Plaintiffs have pleaded severe or pervasive harassment. To begin, plaintiffs
allege the same male student assaulted Roe twice within months. (See Doc. 16
¶¶ 17, 27). In the interim, she rode the bus daily with her alleged abuser
unsupervised. (See id. ¶¶ 29-32). The complaint also avers facts—namely, that the
abuser inappropriately touched another five-year-old in private places and attacked
Roe so violently he left bruises and handprints, (see id. ¶¶ 21, 27)—plausibly

demonstrating that the alleged conduct against Roe was so objectively offensive
that it created a hostile educational environment. The severe or pervasive element
is satisfied.
ii. Deliberate Indifference
Deliberate indifference requires a plausible showing that the recipient of
federal funds had actual knowledge of severe or pervasive harassment. See Davis,
526 U.S. at 629. Our court of appeals has held that a school district can be held
liable only if “an appropriate person”—that is, someone “with the power to take
action to correct the discrimination”—has prior notice of the relevant conduct.
Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 360 (3d Cir. 2005). A plaintiff must also

demonstrate that those with notice made “‘an official decision . . . not to remedy the
violation.’” Davis, 526 U.S. at 642 (quoting Gebser v. Lago Vista Indep. Sch. Dist.,
524 U.S. 274, 290 (1998)). In other words, a school district’s official response must be
“clearly unreasonable in light of the known circumstances.” See id. at 648.
According to plaintiffs, Principal Langan knew of the male student’s alleged
propensity for assaulting female students, including Roe on one previous occasion,
by the time the second assault occurred in January 2024. (See Doc. 16 ¶¶ 17, 21, 27).

The amended complaint also identifies deficiencies in defendants’ alleged response,
specifically that they did not expel or suspend the assailant, physically separate him
from Roe, or staff the bus with monitors. (See id. ¶¶ 29, 32, 111). That is sufficient at
this early procedural juncture, and we find that the amended complaint states
plausible Title IX claims against the District.1

1 We will, however, grant defendants’ motion to dismiss the claim for
emotional distress damages under Title IX. In Cummings v. Premier Kehab Keller,
P.L.L.C., 596 U.S. 212 (2022), the Supreme Court squarely held that there is no
private right of action for emotional distress damages under the Rehabilitation Act
of 1973, 29 U.S.C. § 701 et seq., or the Patient Protection and Affordable Care Act,
42 U.S.C. § 18001 et seq. See Cummings, 596 U.S. at 217, 230. Despite its narrow
formal holding, the Cummings Court aimed its discussion and analysis towards all
four “Spending Clause antidiscrimination statutes[,]” including Title IX. See id.
at 218-19, 230. Although our court of appeals has not addressed this question, we
are confident Cummings bars emotional distress damages under Title IX. See Reed
v. Mount Carmel Area Sch. Dist., 697 F. Supp. 3d 286, 292 & n.57 (M.D. Pa. 2023)
(citations omitted) (reaching the same conclusion and collecting post-Cummings
opinions in agreement). We will dismiss plaintiffs’ Title IX claim for emotional
B. Constitutional Claims Pursuant to 42 U.S.C. § 1983

Plaintiffs next advance claims under Section 1983 of Title 42 of the United
States Code. Section 1983 creates a private cause of action to redress constitutional
wrongs committed by state officials. 42 U.S.C. § 1983. The statute is not a source of
substantive rights; it serves as a mechanism for vindicating rights otherwise
protected by federal law. Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp
v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To plead Section 1983 liability, a
plaintiff must plausibly demonstrate deprivation of a “‘right secured by the
Constitution and the laws of the United States . . . by a person acting under color of
state law.’” Kneipp, 95 F.3d at 1204 (quoting Mark v. Borough of Hatboro, 51 F.3d

1137, 1141 (3d Cir. 1995)). Defendants aver plaintiffs have not done this. They first
argue plaintiffs’ constitutional claims fail under Monell. (See Doc. 19 at 7-9). They
then argue the Due Process and Equal Protection claims are not supported by
sufficient factual material. (See id. at 9-13).
i. Monell Liability

To state a claim under Monell, a plaintiff need only allege facts showing that
the relevant policy—here, turning a blind eye to reports of assault by female
students—proximately caused injury. See Est. of Roman v. City of Newark,
914 F.3d 789, 798 (3d Cir. 2019) (citing Kneipp, 95 F.3d at 1213). A plaintiff may meet
this burden by alleging facts plausibly demonstrating an “affirmative link” between

distress damages with prejudice because any attempt to state such a claim would be
futile. See Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).
the policy and the purported violation. See id. (quoting Bielevicz v. Dubinon,
915 F.2d 845, 850-51 (3d Cir. 1990)); see also Bielevicz, 915 F.2d at 851 (clarifying that
plaintiffs need not allege injuries were direct result of formal policy). Here, the

amended complaint states that the District had a policy of ignoring female victims.
(See Doc. 16 ¶¶ 68, 80-81). In addition, the January 2024 assault occurred after
Principal Langan allegedly received reports of at least two previous incidents and
failed to take appropriate action. (See id. ¶¶ 17-21, 29, 32, 111). Plaintiffs state a
plausible Monell claim.
ii. Due Process

“[T]he Fourteenth Amendment’s Due Process Clause does not generally
impose an affirmative duty on the state to protect individuals from harm caused by
private citizens.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc).
There are two exceptions to this general rule: the special relationship exception and
the state-created danger exception. See id. at 167. Plaintiffs here rely solely on the
state-created danger doctrine. (See Doc. 20 at 19-21). To prevail, they must allege
facts plausibly demonstrating, among other elements, 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 not acted
at all.’” See Morrow, 719 F.3d at 177 (emphasis added) (quoting Bright
v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006)).
Our court of appeals has recognized, however, that allegations of inaction or
failure to respond meet that standard where a school district placed a plaintiff in
danger and then did nothing to protect him from a known or obvious hazard. See
id. at 177-78 (quoting D.R. ex rel. L.R. v. Middle Bucks Area Vocational Tech. Sch.,
972 F.2d 1364, 1374 (3d Cir. 1992) (en banc)). For example, the court in J.R. ex rel.
Mr. R.R. v. Greater Latrobe School District, 688 F. Supp. 3d 243 (W.D. Pa. 2023),

rejected a motion to dismiss a substantive due process claim against a school
district for peer-on-peer sexual harassment that took place during unsupervised
high school wrestling practices. See J.R., 688 F. Supp. 3d at 256. The court
concluded that continuing a policy of requiring that wrestlers attend all practices,
despite knowing that some of the practices were unsupervised, was affirmative
action on the part of the district. See id. at 256-57. Plaintiffs here allege that
Principal Langan knew about two previous assaults of Roe, but still allowed the

same perpetrator to ride the same bus without a monitor. (See Doc. 16 ¶¶ 17-21, 29,
32, 111). The logical inference from those allegations is that placing Roe on the bus
with her assailant made her less safe than providing no bussing system at all, and
that is sufficient to state a due process claim.
Moreover, we are unconvinced by defendants’ analogy to Morrow v. Balaski,
719 F.3d 160, 165 (3d Cir. 2013) (en banc), because that case is distinguishable. The

plaintiffs in Morrow alleged that the defendant school district violated the Due
Process Clause by allowing the plaintiffs’ known harasser to ride the plaintiffs’ bus
route despite a preexisting no-contact order. See Morrow, 719 F.3d 178-79. Our
court of appeals concluded that because the harasser in Morrow was not regularly
assigned to the plaintiffs’ bus route, the school district could not have foreseen the
harasser riding that route nor could they have acted affirmatively to prevent it. See
id. Not so here, where plaintiffs allege that the assailant continued to ride his
regular bus route with his alleged victims, including Roe, daily. (See Doc. 16 ¶¶ 17-
21-25, 29, 30-37, 111). Requiring Roe to ride the bus with her abuser unsupervised,
under the circumstances described in the amended complaint, placed Roe in

obvious jeopardy. Assuming at this procedural juncture that defendants failed to
protect her from foreseeable harm, defendants violated Roe’s due process rights.
See D.R., 972 F.2d at 1374. Morrow does not foreclose plaintiffs’ due process claim.
iii. Equal Protection

To succeed on an equal protection claim, a plaintiff must plausibly plead
intentional discrimination. Hassan v. City of New York, 804 F.3d 277, 294 (3d Cir.
2015) (citing Washington v. Davis, 426 U.S. 229, 241 (1976); Pers. Adm’r of Mass.
v. Feeney, 442 U.S. 256, 276 (1979)). Our court of appeals has not yet construed this
requirement in the context of student-on-student harassment claims against a
school district. See F.G. ex rel. Swisher v. Jersey Shore Area Sch. Dist., No. 4:22-
CV-1120, 2023 WL 6543097, at *4 (M.D. Pa. Oct. 6, 2023) (citing Dickerson v. Wallkill
Valley Reg’l High Sch. Bd. of Educ., No. 19-CV-8450, 2020 WL 2847757, at *4 (D.N.J.
June 1, 2020); George v. Bd. of Educ. of the Twp. of Millburn, 34 F. Supp. 3d 442,

460-61 (D.N.J. 2014)). However, lower courts within our circuit have followed the
Second Circuit’s reasoning in Grant ex rel. Grant v. Wallingford Board of
Education, 195 F.3d 134 (2d Cir. 1999), which recognizes a stand-alone “disparate
impact” theory of equal protection liability. See, e.g., F.G., 2023 WL 6543097, at *4
(citations omitted).
In Grant, the plaintiff kindergartener advanced equal protection claims
based upon the defendant school district’s deliberate indifference to race-based
harassment from other students and their parents. See Grant, 195 F.3d at 138. The
Second Circuit affirmed the district court’s entry of summary judgment in favor of
the district. See id. It held that the “discriminatory intent” requirement of an equal

protection claim may be satisfied by showing that a school district was deliberately
indifferent to a third party’s intentionally discriminatory conduct. See id. at 140
(citations omitted). Thus, to succeed, a plaintiff must demonstrate: (1) harassment
on account of a protected characteristic; (2) that school officials knew about the
harassment; and (3) that the school district’s response was “‘so clearly unreasonable
in light of the known circumstances’ as to give rise to a reasonable inference that
the [district itself] intended for the harassment to occur.” DiStiso v. Cook, 691 F.3d

226, 241 (2d Cir. 2012) (quoting Grant, 195 F.3d at 141). The focus of the inquiry is
whether the district itself possessed a “‘racially discriminatory purpose.’” See id.
(quoting Grant, 195 F.3d at 141). We find Grant and its progeny persuasive and will
apply its analytical framework to plaintiffs’ claims sub judice.
As previously discussed, plaintiffs plausibly pleaded deliberate indifference
to gender-based discrimination by alleging that the perpetrator only attacked

female students and that the District had a policy of covering up male-on-female
harassment and abuse. Reacting to those allegations by relying on a malfunctioning
camera is clearly unreasonable in light of known circumstances. See DiStiso,
691 F.3d at 241 (citing Grant, 195 F.3d at 141). And plaintiffs need not, as
defendants suggest, (see Doc. 19 at 12-13), identify a comparator—that is, a male
student who was similarly situated to but treated more favorably than Roe—
because under Grant’s disparate impact theory of equal protection liability
allegations of deliberate indifference are themselves sufficient to plead intentional
discrimination, and a comparator is not required. See F.G., 2023 WL 6543097, at *4
(footnotes and citations omitted) (noting that successful pleading under disparate

impact theory obviates need to identify comparators). We will deny defendants’
motion to dismiss the equal protection claim.
C. Negligence

Lastly, defendants argue the PSTCA immunizes them from negligence
liability. (See Doc. 19 at 13-15). The PSTCA shields local agencies, including school
districts and their employees, from “any damages [claim] on account of any injury
to a person or property caused by any act of the local agency or an employee thereof
or any other person.” 42 PA. CONS. STAT. § 8541. The Act also contains several
exceptions. See id. § 8542(b). The parties here dispute whether the sexual abuse
exception plausibly applies. See id. § 8542(b)(9).2
Adopted in 2019, Section 8542(b)(9) waives PSTCA immunity for negligent
conduct involving sexual abuse. See id. § 8542(b)(9). Though adopted with the
broad goal of “waiv[ing] sovereign immunity for public entities guilty of covering up

childhood sexual abuse[,]” see PA. H.R. LEGS. JOURNAL, 203RD ASSY., REG. SESS.,
at 510 (Apr. 10, 2019), Section 8542(b)(9)’s exception is a narrow one that applies

2 We examine the applicability of the PSTCA’s exceptions to the District and
to Principal Langan together because “[a]n individual employee’s immunity from
negligence claims is coextensive with the agency’s immunity and is subject to the
same exceptions.” Doe ex rel. Brown v. Harrisburg Sch. Dist., No. 1:19-CV-1027,
2020 WL 4584372, at *6 (M.D. Pa. Aug. 10, 2020) (Conner, J.) (citing 42 PA. CONS.
STAT. § 8545).
only to underlying conduct which “constitutes an offense” under nine enumerated
criminal statutes, see 42 PA. CONS. STAT. § 8542(b)(9).3 Of the six statutes plausibly
implicated by the allegations in plaintiffs’ amended complaint,4 all but one—

institutional sexual assault—require a showing of “penetration, however slight”
under Pennsylvania law. See 18 PA. CONS. STAT. § 3121 (rape); id. § 3122.1
(statutory sexual assault); id. § 3123 (involuntary deviate sexual intercourse); id.
§ 3124.1 (sexual assault); id. § 3125 (aggravated indecent assault); id. § 3124.2
(institutional sexual assault). Thus, we will begin our analysis with institutional
sexual assault before proceeding to the other pertinent offenses.
Institutional sexual assault occurs when “a person who is a volunteer or an

employee of a school or any other person who has direct contact with a student at a
school” engages in sexual intercourse, deviant sexual intercourse, or indecent
sexual contact with a student. See id. § 3124.2(a.2)(1). The question in the matter
sub judice is whether Section 3124.2(a.2) proscribes student-on-student sexual
assault, an issue Chief Judge Brann squarely addressed in Reed v. Mount Carmel
Area School District, 697 F. Supp. 3d 286 (M.D. Pa. 2023). There, a high school

student advanced state-law negligence claims based upon extreme hazing by the

3 Section 8542(b)(9) incorporates the criminal offenses by cross-referencing
42 PA. CONS. STAT. § 5551(7), which in turn lists the nine criminal statutes. The
statutes are: 18 PA. CONS. STAT. § 3311(b) (sex trafficking); id. § 3012 (sexual
servitude); id. § 3121 (rape); id. § 3122.1 (statutory sexual assault); id. § 3123
(involuntary deviate sexual intercourse); id. § 3124.1 (sexual assault); id. § 3124.2
(institutional sexual assault); id. § 3125 (aggravated indecent assault); and id. § 4302
(incest).
4 The three remaining offenses—sex trafficking, sexual servitude, and
incest—are not implicated by the amended complaint.
student captain of the football team. Reed, 697 F. Supp. 3d at 289-90. The court
concluded the team captain was not a member of the class of persons capable of
perpetrating institutional sexual assault: volunteers, employees, or “any other

person[s] who had direct contact” with students. See id. at 294-96. The court first
applied ejusdem generis, a cannon of statutory interpretation which teaches that
where a general word follows a list of two or more specific terms, the general word
usually only refers to the kind or class of things specifically enumerated. See id.
at 295. In that view, the phrase “any other person” in Section 3124.2(a.2) must refer
to a class of persons who exert similar “care, supervision, guidance or control” over
students as volunteers and employees do. See id.5 The statutes’ structure—which

specifically excepted student volunteers and employees from the definition of
potential defendants—bolstered the court’s conclusion. See id. at 295-96 (citing
18 PA. CONS. STAT. § 3124.2(a.2)(2)(ii), (iv)). Students, including student leaders,
cannot commit institutional sexual assault without exercising “care, supervision,
guidance or control” the way teachers and volunteers do. See id.
We find Reed instructive and, applying its framework, we find that the

allegations before us do not support a plausible inference that the minor assailant
exerted a level of control over Roe or any other student sufficient to trigger the
institutional sexual assault exception. Consequently, plaintiffs must look to another
exception, each of which requires a plausible showing of “penetration, however

5 The statute defines “direct contact” as “care, supervision, guidance or
control.” 18 PA. CONS. STAT. § 3124.2(a.2)(2)(i).
slight” of the complainant’s mouth, genitals, or anus. See 18 PA. CONS. STAT. § 3121
(rape); id. § 3122.1 (statutory sexual assault); id. § 3123 (involuntary deviate sexual
intercourse); id. § 3124.1 (sexual assault); id. § 3125 (aggravated indecent assault).

In interpreting that requirement, we have consistently held that the PSTCA’s
sexual assault exception applies to claims of forced penetrative contact between
students. See Doe v. Williamsport Area Sch. Dist., 699 F. Supp. 3d 306, 327-28 (M.D.
Pa. 2023) (placing assailant’s penis on plaintiff’s face); J.R., 688 F. Supp. 3d at 265
(anal penetration with a stick); L.S. v. Hanover Area Sch. Dist., No. 3:22-CV-234,
2024 WL 2393038, at *12-13 (M.D. Pa. May 23, 2024) (shoving woodchips in plaintiff’s
rectum); Brown, 2020 WL 4584372, at *5-6 (rape). The amended complaint in this

matter, by contrast, includes only general allegations of touching and bruising. (See
Doc. 16 ¶¶ 1, 27). Those allegations, though serious and compelling, do not provide
the factual specificity necessary to support the plausible inference that Roe’s
assailant engaged in “penetration, however slight,” under Pennsylvania law. No
exception to PSTCA immunity plausibly applies under the circumstances alleged.
That said, we will grant defendants’ motion to dismiss Count V without prejudice

because curative amendment stating a claim outside the PSTCA’s ambit is possible.
IV. Conclusion
We will grant defendants’ motion to dismiss the amended complaint under
Federal Rule of Civil Procedure 12(b)(6) in part and deny it in part. An appropriate

order shall issue.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania

Dated: January 2, 2025

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10773383. Public record. Not legal advice.