BIONDINO v. BUCKS COUNTY TECHNICAL SCHOOL AUTHORITY

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JENNA-JO BIONDINO, CIVIL ACTION

Plaintiff,

v.

BUCKS COUNTY TECHNICAL NO. 24CV1252

SCHOOL AUTHORITY, operating as

BUCKS COUNTY TECHNICAL HIGH

SCHOOL, and KIMBERLY CARON,

Defendants.

MEMORANDUM OPINION

Jenna-Jo Biondino, a former high school student, sued Defendants Bucks County

Technical School Authority (the “Authority”), operating as Bucks County Technical High

School (the “School”), and Kimberly Caron, a teacher there, for violations of 42 U.S.C. § 1983,

alleging that the School’s poor management of a program that she was enrolled in led to her

injuring her finger.1 Defendants now move to dismiss Biondino’s second Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendants’ Motion will be

granted in part and denied in part.

BACKGROUND2

According to her Complaint, at the time of the events in question, Biondino was a student

at the School, where she “was on the Emergency Medical Services vocational career pathway

1 Biondino’s first Complaint was dismissed without prejudice for failure to state a claim. See Biondino v. Bucks

County Tech. Sch. Auth., 2024 WL 2277834 (E.D. Pa. May 20, 2024). The matter now returns after Biondino filed

her second Complaint (see ECF No. 18).

2 The following facts are taken from Biondino’s second Complaint, well-pleaded allegations from which are taken as

true at this stage. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

within the Health and Human Services program” offered there.

As part of that program, she was instructed by one of her teachers, Defendant Caron, to

engage in impact weapons training, in which students would pair up and spar, one holding a

baton, and the other holding punch paddles. Such batons are classified by the Pennsylvania State

Police as “less-lethal weapon[s].” The student with the punch paddles was instructed to hit the

student holding the baton. Students holding the batons, including Biondino, were not provided

any protective equipment to cover their hands and fingers.

Neither the sparring exercise nor the baton tactics it was intended to teach were a

“necessary training relative to [Biondino’s] career pathway” as in the Emergency Medical

Services program; however, students in Biondino’s program were not given any opportunity to

opt out of participating in the training. While sparring with a classmate, Biondino was struck on

the left hand and suffered a broken left pinky finger, which required surgery and occupational

therapy to repair, and caused “sensory nerve damage with accompanying pain, a loss of grip

strength and a loss of full manual dexterity of her left hand.”

LEGAL STANDARDS

“To 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

has facial plausibility 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. “Threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id. When analyzing a motion to dismiss, the complaint must be construed “in the light

most favorable to the plaintiff,” with the question being “whether, under any reasonable reading

of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (citation omitted). Legal conclusions are disregarded, well-pleaded facts

are taken as true, and a determination is made as to whether those facts state a “plausible claim

for relief.” Id. at 210-11.

DISCUSSION

Biondino sues under 42 U.S.C. § 1983, which provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law . . . .

42 U.S.C. § 1983. In accordance with its plain text, any viable § 1983 claim requires a plaintiff

to plausibly allege that a person acting under color of law violated “a right secured by the

Constitution and laws of the United States.” West v. Atkins, 487 U.S. 42, 48 (1988).

Just as in her previous complaint, Biondino now pleads two theories of liability under §

1983, both alleging violations of her Fourteenth Amendment right to bodily autonomy. The first

theory relies on Defendants’ alleged creation of the “opportunity” for her to be injured “that

otherwise would not have existed”—the “state-created danger” theory of liability. See Mann

v. Palmerton Area Sch. Dist., 872 F.3d 165, 170 (3d Cir. 2017). The second, directed only at the

Authority, alleges that it maintained an official policy, practice, or custom that violated her

constitutional rights. See Monell v. Dep’t of Soc. Servs. of Cty. of New York, 436 U.S. 658, 690-

91, 694 (1978). Each theory will be considered in turn.

A. State-Created Danger Liability

In the Third Circuit, a plaintiff bringing a state-created danger claim under § 1983 must

prove, among other things, that “a state actor acted with a degree of culpability that shocks the

conscience . . . .” Mann, 872 F.3d at 170 (quoting Bright v. Westmoreland County, 443 F.3d

276, 281 (3d Cir. 2006)). Biondino’s state-created danger claim was previously dismissed for

failure to state a claim because the actions she alleged Defendants to have taken “d[id] not

plausibly rise to a level that would shock the conscience.” Biondino, 2024 WL 2277834, at *2-3.

As explained in the previous memorandum, a defendant’s deliberate indifference to a substantial

risk of serious harm can “shock the conscious” in situations, like this one, where a defendant has

the luxury of time to contemplate its choices and act mindfully. Id. at *2 (citing Estate of Smith

v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005)). However, because “the risk of harm inherent in

[the sparring] exercise—broken bones and other injuries along the lines of what Biondino

suffered—was not ‘serious’ enough to plausibly show that Defendants, as a matter of law, were

deliberately indifferent,” Biondino’s allegations failed to state a claim for relief under a state-

created danger theory.

In her second Complaint, Biondino has pleaded several new facts, including that she was

never provided with protective gear for her hands and that Caron announced to the class that “the

administration doesn’t like me doing this because some of you are not yet 18,” as well as several

descriptions of the severity and financial impact of Biondino’s hand injury. These additional

facts better illustrate the severity of the harms that could flow from the sparring exercise and, in

doing so, bring that risk of harm closer “to a level that would shock the conscience.” Id. at *2.

Closer, though, is not enough here; the same Third Circuit cases that Biondino cites in

support of her argument demonstrate that this Circuit requires a risk of harm more serious than

the “broken bones and other injuries along the lines of what Biondino suffered” in order to

ground deliberate indifference in the state-created danger context. Id. at *3. For example, in

Kedra v. Schroeter, the Third Circuit found deliberate indifference where a firearms instructor

“acted with actual knowledge of a substantial risk of lethal harm” by pointing a loaded gun at a

person, failing to conduct the required inspection to see if the gun was loaded, and then pulling

the trigger while aimed at the victim’s chest, killing him. 876 F.3d 424, 447-48 (3d Cir. 2017).

Similarly, in Mann, the Third Circuit determined that a high school football coach acted with

deliberate indifference when he sent a player who was exhibiting concussion-like symptoms

from a hard hit back into practice, and the player experienced a second hard hit, which

collectively resulted in a traumatic brain injury rendering the player incompetent. 872 F.3d at

168-69, 171-72 (“[The coach] was deliberately indifferent to the risk posed by sustaining a

second substantial blow to the head.”) (emphasis added). Finally, consider L.R. v. School

District of Philadelphia, where the Third Circuit found deliberate indifference after a teacher

allowed an unknown adult to sign a kindergartener out of school without asking the adult “to

produce identification and verification that [the student] had permission to leave,” and the

student was later sexually assaulted by the adult. 836 F.3d 235, 239-240, 246-47 (3d Cir. 2016).

Although these cases do not lay down a bright-line rule establishing which kinds of

injuries qualify as sufficiently serious to show deliberate indifference, the kinds of injuries they

discuss serve as useful benchmarks—and though Biondino cites to these cases for their

statements of the law, she does not explain how the risk of harm associated with the sparring

exercise is sufficiently similar to the risks of death, traumatic brain injury, or sexual assault

discussed therein. Since Biondino has not demonstrated that the underlying risk of harm

associated with the sparring exercise is, as a matter of law, sufficiently serious to ground a

finding of deliberate indifference, Biondino’s second attempt at pleading liability under the state-

created danger theory fails, and those claims will be dismissed once more. This time, however,

dismissal will be with prejudice.3

B. Monell Liability

Next is Biondino’s claim against the Authority under Monell, 436 U.S. at 690-91, which

is premised on the allegation that the Authority was a “final policy maker” and used that power

to approve the inclusion of the sparring exercise in the School’s curriculum and to authorize the

purchase of the batons and punch paddles utilized therein.

“Local governments, such as school districts, cannot be held liable under § 1983 for the

acts of their employees. Instead, local governments may be found liable under § 1983 for ‘their

own illegal acts.’” Mann, 872 F.3d at 174-75 (quoting Connick v. Thompson, 563 U.S. 51, 60

(2011)); see also Monell, 436 U.S. at 691. Specifically, “a municipality may be held liable only

if its policy or custom is the ‘moving force’ behind a constitutional violation.” Sanford, 456

F.3d at 314 (citations omitted).

As stated above, Biondino’s claim is premised on a “policy” theory of liability. For

Monell purposes, a policy “is made when a decisionmaker possess[ing] final authority to

establish municipal policy with respect to the action issues an official proclamation, policy, or

edict,” Berg v. County of Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (internal quotation marks

and citation omitted), or “if an official with authority has ratified the unconstitutional actions of a

subordinate, rendering such behavior official for liability purposes,” McGreevy v. Stroup, 413

F.3d 359, 367 (3d Cir. 2005) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)).

3 Although leave to amend should be freely granted “when justice so requires . . . a court may deny leave to amend

when such amendment would be futile.” Budhun v. Reading Hosp. and Medical Ctr., 765 F.3d 245, 259 (3d Cir.

2014) (internal quotations omitted). “Amendment would be futile if the amended complaint would not survive a

motion to dismiss for failure to state a claim.” Id. As explained above, Biondino cannot plead any facts to plausibly

support the inference that the risk of injury inherent in the sparring exercise was serious enough that ignoring that

risk could constitute deliberate indifference. Accordingly, a second opportunity to amend her pleadings would be

futile.

“[M]unicipal liability may be imposed for a single decision by municipal policymakers . . .

where the decisionmaker possesses final authority to establish municipal policy with respect to

the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986). Based on

these principles, school officials can be considered final policymakers for purposes of Monell

liability. McGreevy, 413 F.3d at 368; see also Hilsenrath ex rel. C.H. v. Sch. Dist. of Chathams,

500 F. Supp.3d 272, 287 (D.N.J. 2020), vacated on other grounds, 2022 WL 2913754 (3d Cir.

July 20, 2022) (“Policy can be shown if an official with final policymaking authority for the

Board approved or ratified the curriculum and materials.” (citation omitted)). Whether a given

school official is a final policymaker is a function of state law. See McGreevy, 413 F.3d at 368.

Biondino’s first attempt at pleading Monell liability against the Authority was dismissed

for failure to state a claim because, although Biondino did “identify a cognizable ‘official

proclamation, policy, or edict’ that [could] serve as a hook for the Authority’s liability” under

Monell—namely, curriculum approval—she failed to “identify any ‘official with final

policymaking authority’ under state law who approved that curriculum.” Biondino, 2024 WL

2277834, at *4.

In her second Complaint, Biondino has corrected that shortcoming by pleading that the

Authority, acting through its “Joint Board Committee and/or [its] then acting Administrative

Director,” was the “decision-maker[] possessing final unreviewable authority to establish policy,

adopt curriculum, and to purchase equipment for classroom instruction.” Biondino further

pleads, with citations to Pennsylvania law, that “nothing is to be taught” or “purchased . . . that

has not been pre-approved by the board of directors” of a school district. See 24 P.S. § 15-1512

(prescribing that the “board of school directors in every school district . . . shall arrange a course

or courses of study” for its students); id. at § 8-801 (same with regard to procuring

“equipment . . . for the use of the public schools”).4 Finally, Biondino pleads that the

Authority’s decisions to approve the sparring exercise; to purchase punch paddles and batons

without also purchasing protective equipment; and, to withhold an opt-out from students not

interested in sparring “directly caused [her] constitutional harm.” These allegations, which must

be taken as true, are sufficient to allow her claim to proceed.5 See, e.g., Pembaur, 475 U.S. at

480 (“[I]t is plain that municipal liability may be imposed for a single decision by municipal

policymakers under appropriate circumstances.”); McGreevy, 413 F.3d at 368 (“[A]n official

with policymaking authority can create official policy, even by rendering a single decision.”);

Hilsenrath, 500 F. Supp.3d at 287 (“Policy can be shown if an official with final policymaking

authority for the Board approved or ratified the curriculum and materials.”).

An appropriate order follows.

BY THE COURT:

S/ WENDY BEETLESTONE

___________________________

WENDY BEETLESTONE, J.

4 The Authority does not now challenge Biondino’s characterizations of these Pennsylvania statutes or its own

governance structure.

5 The Authority argues that Biondino’s Monell claim must be dismissed because it is protected by qualified

immunity, but this is incorrect; the Authority is a municipal entity, and as such is not entitled to qualified immunity.

See Barna v. Bd. of Sch. Dirs. of Panther Valley Sch. Dist., 877 F.3d 136, 145 (3d Cir. 2017) (explaining that

municipal entities are not eligible for qualified immunity).