Doe

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN DOE, No. 4:22-CV-1387

Plaintiff, (Chief Judge Brann)

v.

WILLIAMSPORT AREA SCHOOL

DISTRICT,

Defendant.

MEMORANDUM OPINION

JUNE 12, 2026

I. BACKGROUND

John Doe1 was the victim of his high school baseball teammates’ indisputably

inappropriate conduct while attending a school-sponsored trip to Myrtle Beach,

South Carolina to play in an early season baseball tournament. One teammate, B.M.,

placed his genitals near or on Doe’s face as he slept in a hotel room that he shared

with other players. Another teammate, J.Z., recorded a video of the act on his cell

phone. The evidence shows that other players and students at Doe’s high school

eventually saw the video, and that Doe was bullied as a result. Doe testified that this

event caused him emotional distress necessitating his transfer to another school.

1 Doe was a minor during the events of this case and therefore proceeds by pseudonym. Several

other individuals discussed herein were also minors and are addressed by their initials. In

reviewing the summary judgment record, the Court found multiple instances in which the

parties failed to properly redact minor names, including in the body of Plaintiff’s brief in

The Court agrees that B.M.’s behavior was repugnant and culpable. But B.M.

is not—and has never been—a party to the case. The sole remaining defendant in

this matter is Doe’s high school, the Williamsport Area School District (“WASD”).

Doe seeks to recover damages from WASD on the theory that its negligence created

the circumstances that facilitated B.M.’s conduct and that it responded with

deliberate indifference after it learned what happened in Myrtle Beach.

At prior stages of this litigation, Doe’s allegations painted a concerning

picture of WASD’s actions. He claimed that WASD administrators knew that

misbehavior (and sexual assault) was the norm on the Myrtle Beach trip and other

athletic events. He alleged that WASD coaches and staff learned of B.M.’s conduct

essentially immediately. And he suggested that they responded to those reports by

hiding the evidence, ignoring additional misconduct, and doling out overly lenient

punishments. Accordingly, the Court sustained Doe’s complaint,2 and the matter

proceeded to discovery.

Now, WASD moves for summary judgment on all of Doe’s remaining counts.

The Court has carefully scrutinized the factual record and finds that the allegations

of misconduct levied against WASD are largely baseless. Doe’s most serious and

inflammatory allegations find support only in hearsay accounts that are no more

reliable than commonplace gossip and rumor. No testimony from any witness with

2 Doe v. Williamsport Area Sch. Dist., 699 F. Supp. 3d 306 (M.D. Pa. 2023).

personal knowledge of the incident and investigation nor any documentary evidence

supports the proposition that WASD engaged in a grand conspiracy to obscure the

truth. Instead, the full and undisputed record establishes a timeline showing that

WASD timely responded to the incident once it was reported and acted in a manner

that was not clearly unreasonable. Moreover, Doe has not developed evidence to

overcome WASD’s immunity to tort liability under Pennsylvania law.

“Speculation and conjecture,” no matter how specific or inflammatory, “may

not defeat a motion for summary judgment.”3 Instead, a plaintiff must come forward

with admissible evidence “that would allow a jury to rule in that party’s favor.”4 Doe

has not met this burden, so the Court grants WASD’s motion for summary judgment.

II. DISCUSSION

A. Standard of Review

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate

where “the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”5 Material facts are those “that

could alter the outcome” of the litigation, “and disputes are ‘genuine’ if evidence

exists from which a rational person could conclude that the position of the person

3 Wharton v. Danberg, 854 F.3d 234, 244-45 (3d Cir. 2017) (quoting Acumed LLC v. Adv.

Surgical Servs., Inc., 561 F.3d 199, 228 (2009)).

4 Bradley v. West Chester Univ. of Pa. State Sys. of Higher Educ., 880 F.3d 643, 650 (3d Cir.

2018) (citing Fed. R. Civ. P. 56(c)(1)); Bender v. Norfolk S. Corp., 994 F. Supp. 2d 593, 600

(M.D. Pa. 2014).

5 Fed. R. Civ. P. 56(a).

with the burden of proof on the disputed issue is correct.”6 A defendant “meets this

standard when there is an absence of evidence that rationally supports the plaintiff’s

case.”7 Conversely, to survive summary judgment, a plaintiff must “point to

admissible evidence that would be sufficient to show all elements of a prima facie

case under applicable substantive law.”8 “[A] party opposing summary judgment

must present affirmative evidence—whether direct or circumstantial—to defeat

summary judgment, and may not rely simply on the assertion that a reasonable jury

could discredit the opponent’s account.”9

In assessing “whether there is evidence upon which a jury can properly

proceed to find a verdict for the [nonmoving] party,”10 the Court “must view the

facts and evidence presented on the motion in the light most favorable to the

nonmoving party,”11 and draw “all justifiable inferences” in his favor.12 Moreover,

“[i]f a party fails to properly support an assertion of fact or fails to properly address

6 EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 262 (3d Cir. 2010).

7 Clark v. Mod. Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993).

8 Id.

9 Estate of Smith v. Marasco, 318 F.3d 497, 514 (3d Cir. 2003) (citing Williams v. Borough of

W. Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)) (emphasis in original); see Sec. & Exch.

Comm’n v. Antar, 44 F. App’x 548, 554 (3d Cir. 2002) (“If a moving party has demonstrated

the absence of a genuine issue of material fact—meaning that no reasonable jury could find in

the nonmoving party’s favor based on the record as a whole—concerns regarding the

credibility of witnesses cannot defeat summary judgment.” (quoting Schoonejongen v. Curtiss-

Wright Corp., 143 F.3d 120, 130 (3d Cir. 1998))); Wharton v. Danberg, 854 F.3d 234, 244-45

(3d Cir. 2017).

10 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (quoting Schuylkill & Dauphin Imp.

Co. v. Munson, 81 U.S. 442, 448 (1871)).

11 Razak v. Uber Techs., Inc., 951 F.3d 137, 144 (3d Cir. 2020).

12 Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)).

another party’s assertion of fact as required by Rule 56(c),” the Court may “consider

the fact undisputed for purposes of the motion.”13 Finally, although “the court need

consider only the cited materials, . . . it may consider other materials in the record.”14

B. Facts

With that standard outlining the Court’s framework for review, I now turn to

the facts. In his response to WASD’s Statement of Undisputed Material Facts

(SOUMF), Doe denies an enormous number of WASD’s assertions. Indeed, his

opposition to WASD’s motion for summary judgment relies almost exclusively on

his factual contentions. Yet Doe often fails to point to affirmative contradictory

evidence, instead preferring to question the credibility of witnesses and speculate

about the truth. At times, he asserts denials that directly contradict the only evidence

in the record. Given the importance of the factual contentions to the resolution of

this motion, as well as the volume and frequent insufficiency of Doe’s disputes, I

will address here the facts that are supported by the evidence, noting where there are

legitimate disputes. I leave review of Doe’s most important objections to the sections

of the legal analysis where they are relevant, given that I ultimately find them

insufficient and therefore dispositive of the summary judgment issue.

13 Fed. R. Civ. P. 56(e)(2); see also Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613-14 (3d

Cir. 2018).

14 Fed. R. Civ. P. 56(c)(3).

Before laying out the facts, however, Doe’s denials require me to explain

when a court can rely on deposition testimony to establish a summary judgment

record. To wit, Doe repeatedly denies WASD’s assertions of fact when the

supporting testimony includes any remotely equivocal language.15 He does not point

to any affirmative evidence—documentary or testimonial—to contradict many of

the statements he denies, and instead tends to cite the very same testimony while

putting an emphasis on the qualifying terms, seemingly in the belief that the court

must credit his speculation about what the contrary facts might be. That is not a

sufficient basis to create a “genuine” dispute of fact.16 It well established that a party

with the burden of proof at trial “may not rely simply on the assertion that a

reasonable jury could discredit the opponent’s account” to survive summary

15 See, e.g., Doc. 167 (Pl.’s SOUMF) ¶ 19 (denying that “[c]oaches and the booster club

organized the trips” because witness stated that “[t]he coach would work with the booster club

usually, because I think the booster club helped, did the coordinating, housing and stuff”

(emphasis in original)); id. ¶ 68 (denying that the coaches “tried to schedule team activities

like mini-golf and a Coastal Carolina minor league baseball game” because witness testified

“I think we went golfing one time. Miniature golfing. We would go to a Coastal Carolina minor

league baseball game. I think we did that every year.” (emphasis in original)); id. ¶ 97 (denying

that incident happened only one time because witness testified “I don’t remember it

happening more than once” and “I think just once.” (emphasis in original)).

16 See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (“When

the moving party has carried its burden under Rule 56(c), its opponent must do more than

simply show that there is some metaphysical doubt as to the material facts.”); Linda B. v. Shaw,

No. 2:21-CV-0578, 2025 WL 489666, at *7 (W.D. Pa. Feb. 13, 2025) (“Not recalling

something doesn’t create a dispute of fact.” (collecting cases)).

judgment.17 Without any affirmative evidence to support his version of these facts,

the Court cannot conclude anything but that these facts are undisputed.18

In a similar vein, Doe several times highlights a lack of evidence or the

absence of testimony from all potentially knowledgeable parties as if it helps him,

denying certain assertions of fact because he is “without information sufficient to

form a belief” about them.19 “A non-moving party cannot defeat summary judgment

simply by stating that it is not in possession of relevant evidence justifying its

opposition. If a non-moving party needs more information to refute a motion for

summary judgment, it must submit an affidavit or declaration setting forth the

specific reasons why it cannot present facts that would defeat the motion.”20 If, for

example, Doe believed that he needed to depose every single member of the WASD

17 Marasco, 318 F.3d at 514 (citing Williams, 891 F.2d at 460-61) (emphasis in original); see

Antar, 44 F. App’x at 554 (“If a moving party has demonstrated the absence of a genuine issue

of material fact—meaning that no reasonable jury could find in the nonmoving party’s favor

based on the record as a whole—concerns regarding the credibility of witnesses cannot defeat

summary judgment.” (quoting Schoonejongen, 143 F.3d at 130)); Wharton, 854 F.3d at 244-

45 (“Speculation and conjecture may not defeat a motion for summary judgment.” (quoting

Acumed LLC, 561 F.3d at 228)); Bock v. Novartis Pharms. Corp., 137 F. Supp. 3d 802, 811-

12 (W.D. Pa. 2015).

18 Marasco, 318 F.3d at 514. Indeed, Doe himself asks the Court to accept multiple instances of

his own equivocal testimony. See, e.g., Doc. 167 ¶ 41 (citing Doe’s testimony that he

“believe[s]” the preseason meeting contained certain content); id. ¶ 91 (contending that

incident took place at “approximately 10:00 p.m.” citing Doe’s testimony that it occurred at “I

want to say like 10 something” (emphasis added)).

19 Doc. 167 ¶ 142; see id. ¶ 116 (“den[ying] that no players came forward with any information

about other alleged events” in Myrtle Beach without any evidence that other incidents were

reported because “[d]epositions of all the players on the WAHS Baseball team were not

taken”).

20 Exline-Johnson v. Rosser Properties, LLC, No. 22-CV-0475, 2025 WL 1908969, at *1 (N.D.

Okla. July 10, 2025) (internal citations omitted).

baseball team to prove his claim,21 he should have done so. He did not, and has not

explained why he needs additional time to gather such evidence.22

Accordingly, the Court accepts the truth of slightly equivocal but otherwise

uncontradicted testimony as well as propositions that are supported by the record as

it exists before the Court. Based on that standard, I describe: (1) how the Myrtle

Beach trip was planned and organized; (2) the events of the trip; (3) WASD’s

response; and (4) the aftermath.

1. Pre-Trip

Each spring, WASD’s High School baseball team (the “Millionaires”)

traveled to Myrtle Beach, South Carolina, to play in a week-long early season

baseball tournament.23 In 2018, the tournament was scheduled for the end of

March.24 Accommodations were arranged and paid for by the Millionaires’ booster

club, while WASD paid the tournament entry fee.25 The team usually stayed at the

Myrtlewood Villas, and the boosters made reservations to return there in 2018.26

21 As the Plaintiff, it is Doe’s burden to prove his case. Anderson, 477 U.S. at 252 (quoting

Munson, 81 U.S. at 448).

22 See Fed. R. Civ. P. 56(d); Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015) (“An adequate

[Rule 56(d)] affidavit or declaration specifies ‘what particular information that is sought; how,

if disclosed, it would preclude summary judgment; and why it has not been previously

obtained.’” (quoting Dowling v. City of Phila., 855 F.2d 136, 139-40 (3d Cir. 1988))).

23 Doc. 158 (Def.’s SOUMF) ¶¶ 15-16. Where facts are admitted, I cite only to WASD’s

statement of undisputed material facts. Where there are purported disputes of fact, I cite to the

relevant exhibits.

24 Id. ¶¶ 15, 17; see Doc. 158-17 (Reservation Emails) at 3.

25 Doc. 158 ¶¶ 20, 22-23.

26 Id. ¶¶ 22-23.

Myrtlewood Villas overbooked.27 As a result, shortly before the trip the local

property manager moved the Millionaires to the Atlantica Resort Hotel, where the

team’s rooms were spread across several floors.28 The record indicates that this

transfer occurred at the end of February, approximately one month before the trip.29

It is unclear when WASD staff learned about the room locations within the Atlantica.

Testimony reflects that the coaches did not know about the room assignments until

they arrived in Myrtle Beach,30 but Doe asserts that the February date on the

Atlantica Guest folios must be the date when WASD learned that the rooms were

spread out.31 There is no direct evidence in the record of communications between

the Atlantica and WASD regarding the move between Myrtlewood Villas and the

Atlantica. But when booking at Myrtlewood, the boosters had clearly communicated

a desire that the reservations be “in the same area if possible.”32 Regardless, the

format of the Atlantica meant that the team was significantly more spread out than

they would have been at Myrtlewood.33

Before embarking on the trip, players on the team were given a set of “Rules

and Regulations Governing Participation in Williamsport Area School District

27 Id. ¶ 24.

28 Id. ¶¶ 25-28; see Doc. 167 ¶ 83 (stating rooms were on 1st, 4th, 5th, 7th, 8th, 10th, 12th, and

13th floors).

29 See Doc. 167-23 (Atlantica Resort Guest Folios) (listing date of travelers check as “02/28/18”)

30 Doc. 158 ¶ 27.

31 Doc. 167 ¶ 27.

32 Doc. 158-17 at 3.

33 Doc. 158 ¶¶ 29-31. Doe’s denials of some of these paragraphs lack adequate support.

Athletics” (the “Code of Conduct”).34 That document had to be signed and returned

by players and their parents,35 and establishes that “[a]ll Williamsport Area School

District coaches are responsible for the behavior, safety, and welfare of the members

of their teams during practice and games and during transportation of teams to and

from away games. Players must be supervised at all times when under a coach’s

purview,” and, further, that “[a]t athletic contests, in the absence of a principal or

athletic director, the coach is the acting authority on behalf of the school district.”36

The Code of Conduct provides, in relevant part, that “use of obscene or

profane language or gestures is not permitted . . . and will be dealt with according to

PIAA regulations and school district policy,”37 that “smoking, drinking of alcohol

or the illegal use of controlled substances is strictly forbidden and will be dealt with

according to the school district’s policy in these matters just as if the infraction had

occurred in school,”38 that “athletes” “shall not use or possess illegal alcohol,

tobacco products or controlled substances,” and “shall not indecently expose

themselves at any time during their affiliation with a district athletic team.”39

34 Id. ¶ 33; Doc. 158-19 (Athletics Code of Conduct). Doe meritlessly disputes this evidence,

denying that “the general code of conduct was in effect in 2018.” Doc. 167 ¶ 33. The Code of

Conduct is dated 11/14/17—a logical date for the 2017-2018 school year—and testimony

establishes that this document is the relevant Code of Conduct. See Doc. 158-6 (Miller Dep.

vol. I) at 75:11-76:14. Doe conflates the availability of WASD’s handbook with the veracity

of this document, which he fails to adequately dispute. Doc. 167 ¶ 33.

35 Doc. 158 ¶ 36.

36 Doc. 158-19.

37 Id.

38 Id.

39 Id.

Violation of these rules could result in “suspension” or “elimination” from the team,

“forfeiture of awards and banquet/ceremony attendance privileges,” “banishment

from any further interscholastic competition,” or “other appropriate disciplinary

action, to include suspension from school, or in the extreme, a request for expulsion

from the district.”40 Before the season began, WASD Athletic Director Sean

McCann met with the coaches to discuss these rules and their supervisory duties.41

Ryan Miller was the Millionaires’ head coach. Doe notes that, before he was

hired, Miller was twice charged with driving under the influence (“DUI”),42 and his

second sentence included up to five years of probation, which the state court

discharged at the two-and-a-half year mark at the end of 2014.43 He was hired by

WASD in approximately 2016.44 At the time, Miller brought his prior conviction to

40 Id. These rules applied to the Myrtle Beach trip. Doc. 158 ¶ 60; Doc. 167 ¶ 60.

41 Doc. 158 ¶ 39.

42 Doc. 158-6 at 112:15-120:8. Although not relevant in this opinion, Doe highlights this

evidence in support of a specific theory of negligence based on negligent hiring. It is worth

briefly noting that it is immediately apparent that this theory would fail for lack of causation:

in a negligence case, the plaintiff must establish a “causal connection between the defendant’s

wrongful act . . . and his injuries.” Reott v. Asia Trend, Inc., 55 A.3d 1088, 1103 (Pa. 2012)

(citing Hamil v. Bashline, 392 A.2d 1280, 1284 (1978)); Pearson v. Phila. Eagles, LLC, 220

A.3d 1154, 1159 (Pa. Super. Ct. 2019) (quoting Lux v. Gerald E. Ort Trucking, Inc., 887 A.2d

1281, 1286 (Pa. Super. Ct. 2005)). There is absolutely no evidence to show that Miller was

drinking or drunk during the incident, or that his prior intoxication otherwise contributed to

the incident or its aftermath in any way, Doe’s initial allegations notwithstanding. See Doc. 92

(Second Am. Compl.) ¶ 27 (alleging “upon information and belief” that Miller was “out in

Myrtle Beach” during the trip, “leaving the rest of the team alone at the hotel . . . completely

unsupervised”).

43 Doc. 158-6 at 118:1-119:18.

44 Id. at 121:2-6.

the school’s attention.45 The school approved Miller’s hiring with full knowledge of

the conviction.46

In addition to the Code of Conduct, Miller testified that he had developed a

baseball-specific set of rules.47 Under Miller’s system, serious offenses like alcohol

or drug use or hazing would result in immediate dismissal from the team, moderate

offenses like being late to practice or missing the bus could result in missing innings

or a brief suspension, and low level offenses like forgetting uniform items had a

three-strike system where multiple infractions could result in punishment.48 Players

and parents also had to sign and return the team-specific code of conduct.49

Other than these written rules, WASD did not provide any specific training or

written policies to instruct coaches on how to manage an overnight trip.50 WASD

staff generally expected that the rules set forth in the code of conduct would continue

45 Id. at 121:14-122:5.

46 Doc. 158-37 (Hiring Advice Email).

47 Doc. 158 ¶ 34; see Doc. 167 ¶ 34 (admitting fact with extensive additional commentary).

48 Doc. 158-6 at 36:19-41:11. Although Doe technically admits this fact, he provides extensive

commentary suggesting that this testimony is unreliable or should not be believed. Doc. 167 ¶

34. As WASD notes, Doe himself testified that he recalled the three-strikes rule, which was a

part of Miller’s team-specific rules but not WASD’s general code of conduct, so the existence

of these rules and aspects of their content are fully admitted through Doe’s own testimony.

Furthermore, no record evidence indicates that the rules were not as Miller described. One of

Doe’s attorneys has been sanctioned for taking positions contrary to his clients’ testimony

before. Order, Lauchle v. United Parcel Serv., No. 4:22-CV-0533 (M.D. Pa. May 19, 2025),

Doc. 71. This is just one of several examples in this case where counsel is very close to crossing

the line again.

49 Doc. 158 ¶ 36.

50 Id. ¶¶ 60, 64. WASD later asserts the coaches “were properly trained,” id. ¶ 197, but none of

the testimony on which it relies clearly supports that proposition. See, e.g., Doc. 158-13

(McCann Dep.) at 68:22-77:20 (describing various trainings and noting that coaches “would

have done . . . nothing along the harassment line”).

to apply,51 but the day-to-day process of applying and enforcing those rules was left

to the coaches and the students’ own sense of responsibility.52 Coaches were

expected to supervise players at all times,53 but WASD personnel acknowledged that

truly continuous supervision was impossible given the length of the trip, so they

endeavored to “provide as much chaperoning as you can.”54 Where breaches of the

rules occurred, coaches were to receive reports, investigate, and “take . . . appropriate

action.”55

Before the Myrtle Beach trip, the Millionaires had a meeting to discuss the

trip itinerary and “ground rules.”56 Miller specifically testified that “[t]he ground

rules essentially would be the same rules, you know, for the code of conduct” along

with additional considerations given the multi-day nature of the trip.57 Both Plaintiff

51 Doc. 158 ¶ 61.

52 Doc. 158-11 (Bowers Dep.) at 89:2-90:18.

53 Doc. 158-13 at 78:7-24.

54 Doc. 158-11 at 89:2-11. WASD describes the level of supervision as “reasonable,” Doc. 158 ¶

62, which Doe rejects, Doc. 167 ¶ 62. Whether WASD’s actions were reasonable is quite

plainly the ultimate legal question. Davis ex rel. Lashonda D. v. Monroe Cnty. Bd. of Educ.,

526 U.S. 629, 648 (1999) (holding that school is liable for student-on-student harassment under

Title IX “only where the recipient’s response to the harassment or lack thereof is clearly

unreasonable in light of the known circumstances.” (emphasis added)); Lanni v. Pa. R.R. Co.,

88 A.2d 887, 888 (Pa. 1952) (“Negligence is the absence or want of care which a reasonable

man would exercise under the circumstances.” (emphasis added)).

55 Doc. 158-11 at 89:2-7.

56 Doc. 158 ¶¶ 40-41.

57 Doc. 158-7 (Miller Dep. vol. II) at 27:14-28:3. Plaintiff complains that this information as

given as “part of a long rambling answer.” Doc. 167 ¶ 40. Miller gave that answer in response

to the question: “What, if anything, for the trip, were you involved in or in charge of, I should

say, at least as the head coach, of organizing?” Doc. 158-7 at 26:24-27:1. It is neither the

Court’s nor Defendant’s fault that this question invited a discursive response. Plaintiff’s

counsel had the responsibility to ask more specific questions or at the very least follow up to

clarify key points if they did not want to respond to lengthy answers. Failure to competently

depose a witness is not a ground for rejecting that witness’s unrebutted testimony.

John Doe58 and B.M.,59 the alleged assailant, attended this meeting. More generally,

although players could not recall receiving as student handbook with WASD’s

school rules, several could recall attending anti-bullying assemblies.60

WASD had no reports of student-on-student abuse occurring on team trips

before 2018.61 Miller did not recall any discipline issues either with players or other

coaches, physical incidents, indecent exposure, or any other inappropriate conduct.62

Although Doe admits that there is no evidence in the record to suggest that there was

a history of relevant misconduct on the Myrtle Beach (or any other) trip,63 he denies

WASD’s statement that it “had no prior reports of student-on-student abuse during

such trips.”64 Doe’s denial is not supported by any record citation; instead, he states

58 Doc. 158-1 (Doe Dep.) at 68:15-70:10. Plaintiff “denie[s] that the team meeting had anything

to do with Myrtle Beach or occurred just prior to the Myrtle Beach trip.” Doc. 167 ¶ 41.

Plaintiff’s own testimony establishes that at the meeting they discussed “[w]hat to expect out

of the season along with the trip to Myrtle Beach.” Doc. 158-1 at 69:1-3; see id. at 69:24-70:10

(“[T]hat meeting did discuss a little bit about the trip.”); id. at 172:18-173:13 (agreeing that

start-of-season meeting included “a little about the Myrtle Trip, not great details but what to

expect”). Moreover, documentary evidence indicates that this meeting occurred on March 7,

2018, Doc. 158-20 (Meeting Email), just over two weeks before the trip. Plaintiff’s speculative

denial is thus clearly refuted by the record and his own testimony. The fact is deemed admitted.

Fed. R. Civ. P. 56(e)(2).

59 Doc. 158-3 (B.M. Dep.) at 127:20-128:3 (“Q. Prior to going on the trip, you—I believe you

told Greg you believe there was some sort of meeting with the coaches about what the trip

entailed and the logistics of the trip; right? A. Yeah.”); see id. at 115:3-7. Plaintiff again denies

this point, Doc. 167 ¶ 42, but B.M.’s testimony clearly establishes that he recalls a pre-trip

meeting at which Myrtle Beach was discussed. Because Plaintiff does not point to

contradictory evidence, I deem admitted that B.M. was at the meeting. Fed. R. Civ. P. 56(e)(2).

60 Doc. 158 ¶¶ 166-67; see Doc. 167 ¶¶ 166-67 (denying implication of specific rules or handbook

but admitting assemblies).

61 Doc. 158 ¶ 43.

62 Id. ¶¶ 45-48.

63 See Doc. 167 ¶¶ 44-48.

64 Doc. 158 ¶ 43; Doc. 167 ¶ 43.

that he “is without information sufficient to form a belief or [sic] truth or falsity of

averments contained in Paragraph 43” and complains that “Defendant [was] not . . .

forthcoming in providing discovery.”65 That response is unacceptable on a motion

for summary judgment.66 As Doe’s counsel has been explicitly and unambiguously

informed:

While this may be an appropriate response prior to the close of

discovery, it is not at this late stage in the litigation. Summary judgment

is the time for facts and evidence. [Plaintiff] cannot survive a motion

for summary judgment because discovery failed to produce evidence

sufficient for [him] to form a belief as to material facts regarding [his]

claims or [WASD’s] defenses.67

Doe’s deficient response does not create a genuine dispute of fact. I therefore deem

admitted that WASD had no record of prior incidents of student-on-student

harassment on the Myrtle Beach or similar trips.68

65 Doc. 167 ¶ 43.

66 Fireman’s Ins. Co. of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (“Once the

moving party has supplied sufficient affidavits in support of its motion, the opposing party

must respond by supplementing the record in some manner—whether by its own affidavits or

otherwise—setting forth specific facts demonstrating that there is a genuinely disputed factual

issue for trial.”); Whitehurst v. 230 Fifth, Inc., 998 F. Supp. 2d 233, 248 (S.D.N.Y. 2014);

Bleistine v. Diocese of Trenton, 914 F. Supp. 2d 628, 636-37 (D.N.J. 2012); Stepheny v.

Brooklyn Hebrew Sch. for Special Child., 356 F. Supp. 2d 248, 255 n.4 (E.D.N.Y. 2005)

(“Parties are . . . prohibited from attempting to raise a material issue of fact by denying

statements which the moving party contends are undisputed for lack of ‘knowledge and

information’ because discovery allows the party opposing summary judgment to obtain the

facts necessary to determine whether it must admit or deny them.”).

67 Lauchle v. United Parcel Serv., No. 4:22-CV-0533, 2024 WL 643293, at *4 (M.D. Pa. Feb.

15, 2024). Complaints about discovery should be addressed in discovery motions or a properly

supported Fed. R. Civ. P. 56(d) affidavit.

68 Fed. R. Civ. P. 56(e)(2).

More specifically, Doe and B.M. did not have a history of conflict.69 Indeed,

“[e]veryone” on the team “got along with [Doe].”70 It is worth noting that, at the

time, both Doe and B.M. were freshman and the season had just begun.71 B.M. had

some record of minor misconduct while on the team which resulted in reprimands

from the Junior Varsity Coach, Tariq Moore, although it is not clear when these

incidents occurred.72

Coaches decided on the players’ room assignments ahead of time.73 The

record reflects that there was no specific formula that went into these selections.

Miller testified that he considered players’ friendships, seniority, and efforts to

establish team bonds, as well as avoiding conflicts between players who “don’t like

each other,” and made sure that each room had a player “that’s going to be

responsible enough to . . . adhere to the rules and make sure that . . . you can

confidently say that things are going to go okay.”74 The responsible players were

assigned as room “leaders,” and were placed on a text chain with the coaches to

69 Doc. 158 ¶¶ 49-50.

70 Id. ¶ 49.

71 See Doc. 158-7 at 24:15-22 (B.M. was a freshman in 2018); Doc. 158-1 at 155:4-6 (Doe was

a freshman in “‘17/‘18”).

72 Doc. 158 ¶ 52; see Doc. 158-7 at 17:23-19:9. Although the parties discuss B.M.’s behavioral

issues at some length, the evidence of specific conduct all postdates the Myrtle Beach incident.

See Doc. 158 ¶¶ 52-55; Doc. 167 ¶¶ 52-55 (noting that incident involving inappropriate

comments and a rude gesture toward a girl at an away game occurred several weeks after the

Myrtle Beach trip). Doe does not contend that B.M. continued to act improperly toward him

after the Myrtle Beach trip, so B.M.’s post-trip conduct is entirely irrelevant to this matter.

73 Doc. 158 ¶¶ 56-57; see Doc. 158-7 at 44:13-19.

74 Doc. 158-7 at 46:18-49:21.

communicate about tournament logistics and daily schedules.75 John Doe was in a

room with N.M., J.Z., and B.M.-2 (not the assailant).76

2. During the Trip

Once the team arrived in Myrtle Beach on March 24, 2018,77 they began a

relatively straightforward daily schedule of eating as a team, practicing, playing

games, and sleeping, with a few extra team activities peppered in when time

allowed.78 Between the team events, players, including Doe, would spend time in

each other’s rooms.79 They could also use the hotel facilities like the pool and hot

tub, or visit the beach.80 While the coaches were generally present at the hotel, they

did not constantly supervise all players.81

75 Doc. 158 ¶ 58; Doc. 158-7 at 31:11-33:8.

76 Doc. 158 ¶ 59 & n.2.

77 Doc. 158-21 (Itinerary).

78 Doc. 158-9 (Moore Dep.) at 104:3-105:18. Plaintiff denies the truth of this statement because

it is too “general” and “not necessarily based on the year 2018.” Doc. 167 ¶ 67. The questions

that led to this answer were: “Q. So like, tell me—walk me through a little bit, and if we can

be specific to 2018, great—A. Uh-huh. Q.—but like how did—how did these trips usually go?

You’re there for like a week. Right? A. Yes, sir. We—Q. So walk me through like what is [sic]

the tournament entail? You know, what does the team do when they’re not actually on the field

and stuff like that?” Doc. 158-9 at 103:22-104:5. Plaintiff’s counsel clearly intended that the

answer pertain to 2018 specifically. And Moore noted that he was talking about 2018 in his

answer: “When we get there, we check into the hotel or wherever we at. We have villas or a

hotel. The year of 2018, we was at a hotel. We wasn’t at villas.” Id. at 104:9-12. Thus, there is

no doubt that Moore’s statement applied to 2018. Moreover, Plaintiff points to no contradictory

testimony or evidence showing that this was not the daily schedule. See also Doc. 158-21. This

fact is deemed admitted. Fed. R. Civ. P. 56(e)(2).

79 Doc. 158 ¶¶ 71-72.

80 See Doc. 158-1 at 77:9-78:5.

81 Id.; see Doc. 158-7 at 75:12-77:2; Doc. 158 ¶ 86 (noting that coaches did not stay in the rooms

with the players at all times). Whether constant supervision was necessary goes to

reasonableness and is therefore a legal issue. See id. (disputing necessity and effectiveness of

constant supervision).

At night, the coaches imposed a curfew sometime between 9:00 and 11:00

p.m. and performed room checks to make sure that players were in the rooms before

curfew.82 After curfew, the coaches did not continue to check in on the players

throughout the night,83 thus, there was nothing preventing players from leaving their

rooms after curfew other than the threat of punishment if they were caught.84

Nevertheless, there is no evidence that any players left their rooms after curfew.85

At some point during the week of the trip, B.M. put his bare penis and buttocks

in the vicinity of Doe’s face and mouth while J.Z. recorded video on his cell phone.86

The incident occurred in Doe’s hotel room,87 and no adults were present at the time.88

Doe testified that he was asleep when B.M. exposed his penis,89 but that he woke up

immediately after B.M. contacted him with his buttocks.90 The two contacts were

82 Doc. 158 ¶¶ 73-74, 76.

83 Id. ¶ 82.

84 Id. ¶¶ 84-85. Plaintiff denies that the threat of punishment was effective because he contends

that punishments were not enforced. Doc. 167 ¶ 85. That is a legal issue.

85 Doc. 158 ¶¶ 80-81.

86 Id. ¶¶ 87-88, 91-93; Doc. 158-16 (Video); see Doc. 158-4 (J.Z. Dep.) at 42:12-16.

87 Doc. 158-1 at 91:18-92:2.

88 Doc. 158 ¶ 89.

89 Doc. 158-1 at 91:24-92:11 (“Q. Can you tell me what you recall happening when B.M. came

to your hotel room on one night during the trip? A. I don’t know what time it was at, but I was

sleep [sic].”); id. at 93:11-13 (“Q. You were asleep at the time? A. Yes. That first instance I

was asleep.”); id. at 174:1-6; id. at 177:12-21 (“Q. The incident itself, you were asleep, and I

believe you stated you did not wake up after what you allege occurred, which was that B. put

his genitals, you said, on your lips, right? A. I said in my—well, in between my lips, like in

my mouth. Q. Okay. You did not wake up when that happened, correct? A. I did not.”); id. at

182:18-183:3 (agreeing that he didn’t wake up after the “first incident”); see Doc. 158-4 at

40:14-41:1 (J.Z. stating that “[John Doe] was sleeping and they started. He, B. started doing

things. Like his butt—buttock in his face and his genitals.”); id. at 42:17-21.

90 Doc. 158-1 at 93:21-94:11 (noting that a second instance of contact in which B.M.’s “butt . . .

just kind of like brushed on [Doe’s] face” woke him up); see id. at 95:3-12 (“Q. You said B.

pulled his pants down, put his bare buttocks on your face. That woke you up, right? A. Yes. Q.

recorded in separate videos; only the first video is in the record, while the second

has never been located.91

The specific details of this incident are not clear. Because Doe was asleep, he

“[d]idn’t know what was going on” and only learned “what actually happened” when

he saw the video.92 Doe testified repeatedly that B.M. “put his penis in between my

lips,”93 but his testimony clearly demonstrates that that assertion is based on what he

saw on the video and not his own affirmative recollection.94 Neither of the other

witnesses who were deposed corroborated Doe’s account.95 Thus, Doe’s evidence

reduces down to the video.96 The Court has reviewed the video in detail, and finds

that it does not contain material that provides affirmative support for Doe’s specific

What happened after that, after you woke up? A. After I woke up, I was in a deep sleep, and

then I just felt something hit me. So, I kind of just sat up real fast. I didn’t understand what

was going on.”); id. at 177:22-178:20 (agreeing that he did not wake up during the supposed

penis contact but was awoken after the buttocks contact). Doe denies this point, but does not

clarify what he is denying, instead questioning WASD’s definition of the term “incident.” See

Doc. 167 ¶ 95. The Court’s factual recitation should be sufficient to clear up any ambiguity: it

is clear from Doe’s own testimony when he was asleep and when he woke up.

91 Doc. 158 ¶ 99 (noting different videos of the two contacts); see Doc. 167 ¶ 106 (describing

different videos of the two incidents).

92 Doc. 158-1 at 95:7-98:2; id. at 235:15-24 (“Q. It’s what you said today, you didn’t know—this

says had a penis on his face—but either way you didn’t know anything until they showed you

the video, right? A. Correct.”); id. at 93:2-13; id. at 98:3-99:11 (describing seeing the videos

and reacting).

93 Id. at 92:6-8, 93:3-8; id. at 177:12-18 (“[I]n between my lips, like in my mouth.”).

94 Id. at 235:15-24, 93:2-13; see id. at 95:7-99:11, 192:1-5.

95 Doc. 158-4 at 42:21-43:2; see id. at 43:3-5 (“Q. Is it possible that he put his genitals on his

face? A. Maybe. I don’t remember.”); id. at 67:21-68:20; Doc. 158 ¶¶ 102-03; Doc. 167 ¶¶

102-03 (admitting the content of B.M.’s testimony but “specifically den[ying] that that is the

truth”). The Court does not take B.M.’s testimony as true, but merely notes that it does not

provide an independent evidentiary basis for Doe’s version of events.

96 Doc. 158-16.

account of the incident, for reasons I explain at length below.97 While the Court

cannot say what actually happened that night, the evidence in the record is

insufficient for a reasonable jury to find by a preponderance of the evidence that

B.M.’s genitals touched Doe’s face or mouth.

When Doe woke up, he “was just confused as to what was going on.”98 He

“sat up real fast” and saw B.M. on the ground and J.Z. recording with his phone.99

The other players in the room “left laughing,” while he remained in the living room

area alone for the rest of the night.100 At some point during the trip, J.Z. showed Doe

the videos from that night and acted as if it had all been a joke.101 Other players also

commented on and laughed about the incident while in Myrtle Beach.102

Doe asserts that other misbehavior occurred during the Myrtle Beach trip.

Another WASD student, B.R., testified that he saw several additional videos that

were recorded on the trip: “one . . . involved a remote being—forcefully trying to be

shoved up the victim’s rectum. The two other ones kids were flashing genitalia,

slapping them on other kids’ faces while they’re trying to sleep. And the other one,

97 See infra at 60-64.

98 Doc. 158-1 at 192:1-5; id. at 95:11-12.

99 Id. at 95:7-97:8.

100 Id. at 192:1-193:18.

101 Id. at 97:13-100:12; see id. at 101:23-102:11.

102 Id. at 100:23-101:18.

just kids running around the hotel room naked.”103 None of these videos has ever

been recovered, and no witnesses provided a firsthand account of these events.

Another player on the trip was disciplined for purchasing illicit drugs.104

Volunteer Coach Nick Caringi, whose son on the team, was approached by another

parent who reported that a player had marijuana.105 Caringi immediately informed

Miller,106 and Miller brought in Brandon Pardoe, a principal at WASD who was on

the trip to watch his son play.107 Although he was on the trip for vacation, he shifted

into his administrator role “to assist in this particular thing.”108 Miller told Pardoe

that drug possession was “an immediate dismissal from [the] team based on [the]

code of conduct and [Pardoe] agreed.”109 Pardoe then discussed the issue with the

player and his father, explained the consequence that was being imposed, and

advised them that the player would not be permitted to stay with the team for the rest

of the trip or play in any games.110 Upon returning to Williamsport, Pardoe referred

the student to the “Student Assistant Program” as provided in the school’s code of

103 Doc. 167-14 (B.R. Dep.) at 13:4-11; see Doc. 158-1 at 102:12-103:9, 104:17-22 (recalling

hearing about the remote incident); but see Doc. 158-4 at 59:2-61:13 (J.Z. not recalling these

events or videos); id. at 63:12-64:6 (same).

104 Doc. 160-2 (Pardoe Dep.) at 50:17-51:9; see Doc. 158-1 at 188:16-190:8.

105 Doc. 160-1 (Caringi Dep.) at 28:9-35:1; Doc. 160-2 at 52:3-7.

106 Doc. 160-2 at 28:16-29:7; Doc. 158-6 at 57:20-65:23.

107 Doc. 158-6 at 58:7-63:13. It is worth nothing that Miller’s phone calls to volunteer coach

Randy Zangara, which Doe initially implied were evidence that “employees were aware of

Plaintiff’s assault almost immediately,” Doc. 92 ¶ 35, actually related to this incident. Doc.

158-6 at 64:22-65:23.

108 Doc. 160-2 at 50:11-51:9.

109 Doc. 158-6 at 62:7-20.

110 Id. at 62:16-63:13; Doc. 160-2 at 56:21-58:2.

conduct, but did not report the issue to law enforcement.111 Although the code of

conduct required the discovery of controlled substances to be reported to law

enforcement, Pardoe testified that he felt a report was not warranted because he

never found the actual drugs and the student and his father were cooperating with

WASD’s disciplinary process.112

Doe did not report B.M.’s conduct to the coaches while on the Myrtle Beach

trip.113 None of the other players deposed in this matter told any of the coaches

either.114 Coach Miller testified that he did not learn about the incident while he was

in Myrtle Beach, or even while he was a coach.115 The other coaches deposed in the

matter similarly testified that they did not hear anything about the incident while in

Myrtle Beach.116 Pardoe, McCann, and Dr. Timothy Bowers, WASD’s

111 Doc. 160-2 at 59:3-60:8.

112 Id. at 60:4-62:16; see id. at 64:9-66:24.

113 Doc. 158 ¶ 119; see Doc. 158-1 at 187:11-188:1; see id. at 184:20-185:1; Doc. 158-34 (Doe

Interrogatory Responses) at 2 (stating that there were no communications between Doe and

“any employee, volunteer, student, or parent of a student enrolled in Defendant WASD about

the Incident”).

114 Doc. 158-4 at 54:19-55:5 (“Q. Did you ever talk—while you were in Myrtle Beach, did you

ever talk to any of the coaches or chaperones about what happened? A. I did not.”); Doc. 158

¶¶ 128-30; Doc. 158-3 at 174:17-174:21 (B.M. stating that “[t]he only time I ever got talking

about it was when I went in with Brandon and George and my parents”); Doc. 158-5 (N.M.

Dep.) at 129:14-130:4; see id. at 78:19-79:9 (denying that there was any meeting about the

incident while the team was in Myrtle Beach).

115 Doc. 158 ¶ 121; see Doc. 167 ¶ 121 (admitting that “Coach Miller testified that he did not

know about the incident while he was in Myrtle Beach” but “den[ying] that that is the truth.”).

Miller resigned later that spring due to an unrelated incident.

116 Doc. 158 ¶¶ 125-26, 131; Doc. 160-1 at 103:17-20 (no knowledge of incident while in Myrtle

Beach); id. at 107:20:23; Doc. 158-9 at 119:3-120:8.

superintendent, also testified that they were not aware of any reports made while the

team was in Myrtle Beach.117

3. WASD’s Knowledge and Response

Approximately a month after the trip, J.Z., who had recorded the video,

approached Corey Burkholder, a trusted baseball coach from a non-school league,

to report the incident.118 It is not clear how far the video traveled in the interim. J.Z.

at least showed Doe,119 but testified that he did not show the video to anyone else,

post it online, or otherwise share it until he reported the incident to Burkholder.120

But at least one student testified that he saw videos taken on the Myrtle Beach trip

in the lunchroom at WASD, and believes that they were on J.Z.’s phone.121 The

Court accepts for the purposes of summary judgment that the video was at least

shown to other students beyond Doe and J.Z. In any event, J.Z. sent the video to

Burkholder and then deleted it.122

117 Doc. 160-2 at 95:14-96:7; Doc. 158-13 at 115:15-116:7 (“Q. When did you personally become

aware that something had occurred between them on the Myrtle Beach trip? A. It was toward

the end of May when Detective Weber showed me that video.”); id. at 150:5-156:4 (discussing

information WASD had and reports).

118 Doc. 158-4 at 206:24-207:16; id. at 221:8-222:2 (four or six weeks later); see also Doc. 158-

29 (Pardoe Notes).

119 Doc. 158 ¶ 99.

120 Id. ¶¶ 113-14.

121 Doc. 167 ¶ 112; Doc. 167-14 at 13:4-14:6; see Doc. 158-29 (McCann Interview Notes)

(“Shared with others on the team—video.”); Doc. 167 ¶ 173 (noting that name-calling by

students who were not on the trip “is clear evidence that the videos of his sexual assault were

being passed around the school”).

122 Doc. 158 ¶ 115; see Doc. 158-29 (“Sent to Corey Burkholder (asked for it) Deleted Video”).

Burkholder worked for Children and Youth Services (“CYS”), and apparently

submitted the video along with a ChildLine report about the incident.123 CYS then

sent the report and video to William Weber, who was Lycoming County’s Chief

Detective,124 sometime in May.125

On May 21, 2018, Weber contacted Pardoe about the ChildLine report.126

Doe’s mother called the school the same day and asked them to check on Doe, but

she declined to explain why other than to say it involved the baseball team.127 A few

days later,128 Weber came to WASD and showed Pardoe, McCann, and Roger Freed

(who was the ninth grade principal) the video.129 It does not appear that he ever

provided WASD with the actual ChildLine report.130 Weber then set up a time for

himself, Doe, Doe’s mother, and the school administrators to meet.131 In the

meantime, Pardoe began the school’s own investigation into the incident.132

WASD’s policy in instances of indecent exposure was for a principal to investigate

and handle violations on a case-by-case basis.133

123 See Doc. 158-4 at 151:23-25.

124 Doc. 158 ¶ 13.

125 Doc. 158-14 (Weber Dep.) at 26:25-27:14.

126 Doc. 158 ¶ 135.

127 See Doc. 158-22 (Freed Interview Notes) (noting call from Doe’s mother on “5/21/2018”).

128 See Doc. 160-2 at 103:5-13; see Doc. 158-23 at 1 (recording meeting on May 24, 2018).

129 Doc. 158 ¶ 137.

130 Id. ¶ 143; see id. ¶ 142.

131 Id. ¶ 138.

132 Id. ¶ 139

133 Id. ¶¶ 140-41.

Pardoe, Weber, Freed, and McCann met with Doe and his mother on May 30,

2018.134 At the meeting, Doe and his mother expressed concern about the video

being spread around the student body.135 Pardoe, McCann, and Weber all recall that

Doe downplayed the incident in these interviews, and testified that Doe described it

as a “prank,” or “play[ing],” “messing,” or “funning” around.136 Doe testified that

he never made those statements and denied downplaying the incident.137

By May 31, 2018, B.M. had apparently learned that the incident was under

investigation. That day, his attorney, George F. Lepley, sent a letter to Pardoe and

McCann titled “Re: Misconduct Myrtle Beach,” in which he acknowledged that

B.M.’s conduct was “inappropriate,” but expressed an intent to pursue criminal or

civil liability against “any and all individuals who forwarded [the] videos and

engaged similar [sic] conduct,” with the “ultimate goal [of] mak[ing] sure that one

person is not singled out for conduct committed by a substantial number of team

members.”138 Lepley requested to be present at any meeting between the school and

B.M. and his parents.139

134 Id. ¶ 144.

135 Id. ¶ 145.

136 Id. ¶¶ 154-55. For completeness, I note that these witnesses’ testimony about Doe’s statements

does not involve hearsay. Fed. R. Evid. 801(c)(2) (statement is hearsay if it is offered to prove

the truth of the matter asserted); id. (d)(2)(A) (statement of party opponent is not hearsay).

137 Doc. 167 ¶¶ 154-55.

138 Doc. 167-32 (Lepley Letter).

139 Id.

Pardoe, Bowers, and McCann met with B.M., his parents, and Lepley, on June

5, 2018.140 Weber was not present at this meeting, nor did he ever interview B.M.,

because Lepley advised him not to do so.141 At that meeting, B.M. admitted to his

conduct as it appeared in the video.142 B.M. has always maintained that his penis did

not touch Doe’s face.143

School administrators also questioned J.Z.144 J.Z. admitted that he had

possessed the video and that he showed it to Burkholder, but denied recording it.145

By that point, J.Z. had deleted the video from his phone.146 Pardoe advised J.Z. not

to tell anyone about the video and incident “in order to stop any rumors and possible

posting,”147 and advised J.Z. and potentially others involved to delete the video.148

He testified that he did so “to mitigate the spreading of it,” and acknowledged that,

at that point, “law enforcement already had the video.”149 Weber approved this

140 Doc. 158-23 (Pardoe Interview Notes); see Doc. 158 ¶ 146.

141 Doc. 158-14 at 70:24-72:23.

142 Doc. 158 ¶ 146.

143 See id.; Doc. 167 ¶ 146 (questioning truth of testimony by noting that B.M. gave lengthy false

testimony before being confronted with the video).

144 Doc. 158 ¶¶ 147-48. Doe’s roommate N.M. was also questioned but does not appear to have

provided any relevant information. Id.

145 Id. ¶ 148; Doc. 158-23.

146 Doc. 158 ¶ 149. Doe denies “that J.Z. had deleted the video by that time” but cites no contrary

evidence, so the Court deems the fact admitted. Fed. R. Civ. P. 56(e)(2). In any event, Doe

admitted that “J.Z. deleted the video after he sent it to Corey Burkholder.” Doc. 158 ¶ 115;

Doc. 167 ¶ 115. Doe also appears to conflate the video in the record with the unrecovered

second video depicting B.M. jumping on Doe, see Doc. 167 ¶ 149, but it is clear that WASD’s

statement refers to the video in the record.

147 Doc. 158 ¶ 150; see Doc. 167 ¶ 150.

148 Doc. 158 ¶ 151; see Doc. 167 ¶ 151.

149 Doc. 160-2 at 208:8-209:11.

course of action because he “had a copy of the video” and “did not want the videos,

and neither did the school district, floating around the school, so immediately get rid

of them.”150

After interviewing Doe, B.M., J.Z., and several other students, Pardoe

concluded that, although B.M.’s actions were “inappropriate,” the incident had not

involved sexual harassment,151 or that it was at least uncertain whether the conduct

constituted hazing or harassment.152 Pardoe’s conclusion about sexual harassment

was based on the context of the incident, including the actions at “the beginning and

the end of that video and how [Doe] was made aware of it,” and the statements given

in the interviews that provided no evidence that B.M. acted for sexual

gratification.153 Pardoe did not find evidence of other, similar incidents on the Myrtle

Beach trip during his investigation.154 Ultimately, Pardoe concluded that the incident

“did not appear to meet [the] threshold” for Title IX reporting.155

150 Doc. 158-14 at 54:23-55:15.

151 Doc. 158 ¶ 153; see Doc. 160-2 at 152:1-153:15.

152 Doc. 158 ¶¶ 155-56. Doe denies this but merely restates Pardoe’s testimony without

explanation. I have stated the essence of the testimony here.

153 Id. ¶ 157; see Doc. 160-2 at 146:10-15. Doe denies this point because he does not understand

“the use of the word ‘contextually.’” Doc. 167 ¶ 157. I have no problem understanding that

“contextually” means the “setting or environment” of the incident. Context, Black’s Law

Dictionary (11th ed.); Context, Merriam-Webster Dictionary, https://www.merriam-

webster.com/dictionary/context (“The situation in which something happens”).

154 Doc. 158 ¶ 152. Doe denies “that Dr. Pardoe did not discover evidence of other students

exposing genitalia or running naked in Myrtle Beach,” but cites to deposition testimony from

the mother of a player in which she stated that her son told her that B.M. had been “parading

around naked.” Doc. 167 ¶ 152 (citing Doc. 167-15 (Morrone Dep.) at 22:10-25, 23:3-5). Not

only is this testimony hearsay, Fed. R. Evid. 801(c), it also has nothing to do with what Pardoe

knew. The fact is deemed admitted. Fed. R. Civ. P. 56(e)(2).

155 Doc. 158 ¶ 158.

Pardoe and McCann imposed discipline on B.M. and J.Z. for their

involvement in the incident.156 They suspended both players from the team

indefinitely,157 but that suspension ultimately lasted only two games because the

season ended shortly thereafter.158 B.M. was required to complete an online

hazing/bullying program before he could participate in sports again.159

4. Aftermath

After the trip, several students at the school called Doe “dick lips.”160 Doe

testified that it was about “five or six” “random kids,” none of whom were on the

baseball team.161 The name calling lasted for “a couple-week span” but “it kind of

died down” before the end of the school year.162 Doe testified that this conduct was

“hurtful,” left him feeling “embarrassed,” and was, in his mind, “bull[ying].”163 Doe

did not report the name calling to staff at WASD.164 Nor did he tell any of the

156 Id. ¶¶ 160-61, 163.

157 Id. ¶¶ 160-61.

158 See infra at 50-55. This discussion resolves Doe’s objections to these paragraphs.

159 Doc. 158 ¶ 162. WASD states that J.Z. also had to complete this course, but the evidence it

cites only clearly shows that B.M. had to complete the course. See Doc. 167 ¶ 162 (admitting

that B.M. had to complete the course but denying the same for J.Z.).

160 Doc. 158 ¶ 172.

161 Id. ¶ 173; see Doc. 158-34 at 3 (stating that “approximately five to ten people called him that

name”).

162 Doc. 158-1 at 115:5-17.

163 Id. at 114:1-16; id. at 198:4-9.

164 Doc. 158 ¶¶ 171, 182. Although he admits that he did not report the name calling, see Doc.

167 ¶ 171, Doe argues that WASD staff must have known about it because “many students

were referring to him that way and videos of his sexual assault were being shown the cafeteria.”

Id. Evidence of what several students knew is not evidence of what administrators knew, and

there is no affirmative evidence that administrators were aware of the name calling. See Doc.

158 ¶ 182 (McCann did not know); Doc. 167 ¶ 182 (“Admitted”).

coaches.165 While other students deposed in this matter did not recall this name

calling,166 one individual recalled that B.M. was called derogatory names based on

the same incident.167

It does not appear that Doe received significant emotional or other support

from WASD during the remainder of that school year. Administrators testified that,

because they recalled Doe downplaying the incident,168 they did not believe that

counseling or other support was necessary.169 He finished out the remainder of the

school year as normal.170 The following year, Doe requested and received a

homebound education,171 which he testified was at least partly due to the incident.172

The year after that, Doe transferred to St. John Neumann Regional Academy,173

where he continued to play baseball.174 At Neumann, Doe discontinued an

individualized education plan (“IEP”) he had received at WASD,175 and his grades

165 Doc. 158 ¶¶ 183-84. Doe’s denial of paragraph 183 does not contradict the proposition that

Doe did not report that he was bullied.

166 Id. ¶¶ 177-80.

167 Id. ¶ 181.

168 See supra at 25.

169 Doc. 158-11 at 219:13-222:17.

170 Doc. 158 ¶ 185.

171 Id. ¶ 170.

172 Doc. 158-1 at 128:177-130:11.

173 Doc. 158-1 at 130:23-131:4; Doc. 158 ¶ 187.

174 Doc. 158-1 at 215:24-216:10. WASD’s statement about this issue is hearsay and does not

currently appear to be admissible, so the Court will disregard it. Doc. 158 ¶ 186.

175 Doc. 158 ¶ 188.

and baseball skills improved.176 Doe was eventually admitted to college, where he

continued to play baseball.177

After the incident, Doe sought out counseling. He met with two different

counselors for a few sessions each.178 He is not currently in therapy, and has not

sought therapy for several years.179

Three years after the incident, B.M. was charged in South Carolina State Court

with assault and battery in the second degree.180 The only record evidence on the

ultimate resolution of this case is B.M.’s testimony that he never pled guilty or

served any sentence for this matter.181

C. Procedural History

Doe commenced this suit on September 6, 2022, bringing claims against

WASD, Lycoming County, McCann, Miller, Pardoe, Weber, Freed, Fred Holland

(WASD’s solicitor), and up to 20 unnamed employees of WASD and Lycoming

County.182 The various defendants moved to dismiss, and the Court granted those

176 Doc. 158-1 at 217:3-15; id. at 216:6-10.

177 Id.

178 See Doc. 158 ¶¶ 189-91; Doc. 158-1 at 157:4-164:13.

179 Doc. 158 ¶ 192; Doc. 158-1 at 226:8-228:1.

180 See Doc. 167-17 (Juvenile Complaint) at 2.

181 Doc. 158-3 at 85:21-87:5. WASD included a letter from the relevant South Carolina Solicitor’s

Office stating that “there may be information stored by our office but protected under state

law,” Doc. 158-31 (Horry County Solicitor Letter), while Doe submitted the criminal

complaint and a victim impact statement, Doc. 167-17 (Horry County Juvenile Complaint),

but neither document indicates how the case was ultimately resolved.

182 Doc. 1 (Compl.).

motions in part on April 27, 2023.183 Specifically, the Court held that Doe’s Title IX

claims could not be asserted against individual defendants,184 his federal civil rights

claims failed because he had not pled a relevant violation of his constitutional

rights,185 and his state law claims were insufficient for a variety of reasons as to

various defendants.186 Significantly, the Court held that a number of state-employee

defendants were immune from liability on Doe’s negligence-based claims pursuant

to the Pennsylvania Political Subdivision Tort Claims Act because Doe had not

alleged sufficient facts to show that any of the exceptions to that statute applied.187

Doe filed his First Amended Complaint on May 11, 2023, restating many of

his claims against the same defendants.188 The defendants again filed various

motions to dismiss, and, shortly thereafter, Doe voluntarily dismissed his claims

against all of the individual defendants.189 Given that significant change in the scope

of the case, Doe was permitted to file a Second Amended Complaint to clarify the

remaining claims and defendants.190 WASD and Lycoming County, the two

183 Doe v. Williamsport Area Sch. Dist., No. 4:22-CV-1387, 2023 WL 3136409 (M.D. Pa. Apr.

27, 2023).

184 Id. at *5.

185 Id. at *5-7.

186 Id. at *7-14.

187 Id. at *12-13.

188 Doc. 64 (First Am. Compl.).

189 See Docs. 77-82 (Notices of Voluntary Dismissal).

190 Doc. 92 (Second Am. Compl.).

enduring defendants, then filed new motions to dismiss. The Court resolved those

motions on October 19, 2023, granting them in part and denying them in part.191

In the October decision, the Court found that Doe had plausibly alleged a Title

IX claim against WASD based only on “WASD’s post-assault conduct.”192 The

Court considered Doe’s allegations regarding WASD’s pre-incident knowledge of a

pattern of similar conduct on prior trips, and found them unduly speculative and,

ultimately, implausible.193 The Court also dismissed Doe’s section 1983 claims,

finding that Doe had not pled sufficient facts from which the a jury could find that

his constitutional rights were violated.194 Finally, the Court determined that Doe had

alleged sufficient facts to plead an exception to the immunity bar of the Pennsylvania

State Tort Claims Act,195 but that many of his negligence claims nevertheless failed

on the merits;196 only the negligence, negligent infliction of emotional distress, and

negligent failure to rescue claims against WASD survived dismissal, primarily

because WASD focused its motion almost exclusively on immunity.197

Following that ruling, Doe declined the opportunity to amend his complaint

for a third time, resulting in Lycoming County’s dismissal from the case with

191 Doe v. Williamsport Area Sch. Dist., 699 F. Supp. 3d 306 (M.D. Pa. 2023).

192 Id. at 321.

193 Id. at 318-20.

194 Id. at 323-27.

195 Id. at 327-28.

196 Id. at 328-32.

197 Id. at 332.

prejudice.198 WASD answered Doe’s surviving claims,199 and discovery ensued.

Following several extensions and discovery disputes, WASD filed its motion for

summary judgment on all of Doe’s remaining claims on October 1, 2025.200 The

motion is fully briefed and ripe for disposition. For the following reasons, it is

granted.

D. Analysis

Doe’s claims against WASD are best divided into his federal Title IX claim

and his state law negligence claims. The Court takes each in turn, and finds Doe

lacks evidence from which a jury could find in his favor on any of them.

1. Title IX

A student can recover damages from his publicly funded school if he is

harmed by student-on-student harassment that resulted from the school’s deliberate

indifference to known acts of such harassment.201 Courts in this Circuit apply a six-

factor test to determine whether the school can be liable. To succeed, a plaintiff must

prove that: “(1) the defendant receives federal funds; (2) sexual harassment

occurred; (3) the harassment occurred under ‘circumstances wherein the [school]

exercised substantial control over both the harasser and the context in which the

198 See Doc. 121 (Order) ¶ 6.

199 Doc. 123 (Answer).

200 Doc. 156 (Mot.).

201 Davis ex. rel. LaShonda D. v. Monroe Cnty. Bd of Educ., 526 U.S. 629 (1999); see Doe v.

Williamsport Area Sch. Dist., 699 F. Supp. 3d 306, 320 (M.D. Pa. 2023) (quoting Davis, 526

U.S. at 632).

known harassment occurred’; (4) the [school], or an ‘appropriate person,’ had ‘actual

knowledge’ of the harassment; (5) the [school] was ‘deliberately indifferent’ to the

harassment; and (6) the harassment was ‘so severe, pervasive, and objectively

offensive that it could be said to have deprived the victims of access to the

educational opportunities or benefits provided by the school.’”202 The plaintiff must

prove each and every element; meeting this standard is a “high bar.”203

Here, elements (1), (2), and (3) are not substantially disputed.204 Doe’s theory

intertwines elements (4) and (5): he contends that appropriate personnel at WASD

learned of the incident and attendant video shortly after they were taken, such that

their failure to stop circulation of the video, investigate, and take significant

disciplinary action against B.M. and J.Z. amounts to deliberate indifference. But

there is no evidence to support Doe’s theory as to immediate knowledge, and, with

that foundation removed, his position as to deliberate indifference crumbles, too.

Accordingly, the Court need not address element (6). I also briefly discuss a point

not raised by the parties that likely provides an additional basis for granting WASD

summary judgment on the Title IX count in this matter.

202 Doe, 699 F. Supp. 3d at 320-21 (quoting Davis, 526 U.S. at 643) (original alternations omitted

and new alterations added); Hall v. Millersville Univ., 22 F.4th 397, 408 (3d Cir. 2022) (citing

Davis, 526 U.S. at 645-50); see McAvoy v. Dickinson Coll., 115 F.4th 220, 227 (3d Cir. 2024)

(quoting Davis, 526 U.S. at 650).

203 McAvoy, 115 F.4th at 227; Hall, 22 F.4th at 407.

204 See Doe, 699 F. Supp. 3d at 321 (noting at dismissal stage that “it is undisputed that WASD

receives federal funds, and Doe was sexually assaulted”); id. at 321 (reasoning that WASD

had “substantial control” over a school-sanctioned field trip and school). The Court briefly

revisits element 2 below. Infra at 56-57.

a. Actual Knowledge

To survive summary judgment on actual knowledge, Doe must provide

evidence from which a reasonable jury could conclude that “an official of the

[school] with authority to take corrective action to end the discrimination,” i.e., an

“appropriate person,” was aware of “the underlying facts, indicating sufficiently

substantial danger to students, and was therefore aware of the danger.”205 The

evidence available to the appropriate person must “indicat[e] a danger of future

abuse” that is greater “than a mere possibility of abuse.”206 A school cannot be liable

for harassment that predated its actual knowledge;207 at that point, it can only be

liable for a deficient response.208 The Court will review each stage at which Doe

offers some theory to contend that WASD had actual knowledge: (i) before the

incident; (ii) while the team was in Myrtle Beach or shortly after returning; and (iii)

in late May.

i. Pre-Incident

Some courts have approved of Title IX claims for sexual harassment that

occurred after the school knew that there was an “obvious need” for preventative

policies or under circumstances where such harassment was “highly predictable,”

205 Hall, 22 F.4th at 410 (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998)

and Bostic v. Smyrna Sch. Dist., 418 F.3d 355, 361 (3d Cir. 2005)); see Does v. Se. Delco Sch.

Dist., 272 F. Supp. 3d 656, 688 (E.D. Pa. 2017) (citing Bostic, 418 F.3d at 361).

206 B.W. v. Career Tech. Ctr. of Lackawanna Cnty., 422 F. Supp. 3d 859, 880-81 (M.D. Pa. 2019)

(citing Does, 272 F. Supp. 3d at 688-89).

207 M.S. ex. rel. Hall v. Susquehanna Twp. Sch. Dist., 969 F.3d 120, 128-29 (3d Cir. 2020).

208 See McAvoy, 115 F.4th at 233 (citing Gebser, 524 U.S. at 290).

even where there was not a specific reason to suspect the harasser or protect the

victim.209 Generally, such circumstances are shown with evidence establishing a

history of harassment in contexts similar to the harassment at issue.210 The Court

previously reviewed Doe’s allegations on this issue, and found that they were

insufficient to state a claim.211 Doe did not amend his complaint, so any claim to this

effect is dead. And, in any event, he has produced no relevant evidence of a pattern

of similar harassment in discovery.212

There is also no evidence from which a jury could conclude that WASD knew

about a particular pre-incident risk of harassment by B.M., or of Doe. On the

contrary, the record instead reflects that Doe was generally well-liked by his

teammates before and through the incident,213 and, as Doe points out in his own

statement of facts but contravenes in his brief, B.M.’s other disciplinary issues did

not arise until after the incident.214 Moreover, B.M.’s infractions (other than the

incident), though at times sexually inappropriate, were not so obviously threatening

209 Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1177-79 (10th Cir. 2007); see Karasek v.

Regents of Univ. of Cal., 956 F.3d 1093, 1112-13 (9th Cir. 2020).

210 Simpson, 500 F.3d at 1181 (noting record evidence regarding likelihood of sexual assaults

during recruiting trips); Karasek, 956 F.3d at 1112-13 (allegations that university system was

aware of high percentage of inadequately resolved Title IX complaints).

211 Doe, 699 F. Supp. 3d at 318-20.

212 Doc. 158 ¶¶ 45-48; Doc. 167 ¶¶ 44-48; supra at 14-16, 27-28.

213 Doc. 158 ¶¶ 49-50.

214 Doc. 167 ¶¶ 52-55 (noting that specific incident occurred several weeks after Myrtle Beach

trip).

as to put WASD on notice that he posed a “substantial danger” to other students.215

So even if all of the evidence of B.M.’s behavioral issues had pre-dated the incident,

the evidence would still be insufficient to establish actual knowledge. Finally, the

fact—if true—that WASD knew the players’ rooms would be spread out does not

provide notice of a specific and impending risk of sexual harassment as opposed to

general misbehavior, which is insufficient to establish actual knowledge.216

Accordingly, there is no basis for holding the school liable for pre-incident

knowledge.217

ii. Myrtle Beach

Doe contends that “WASD had actual knowledge of the assault while in

Myrtle Beach.”218 In support of that position, he cites three pieces of evidence.219

None is sufficient to create a dispute of fact on this point, and the only evidence in

215 Bostic, 418 F.3d at 361 (holding that knowledge of a “possibility” of violative conduct is

insufficient); M.S., 969 F.3d at 128-29 (citing Bostic, 418 F.3d at 361).

216 See M.S., 969 F.3d at 129 (citing Bostic, 418 F.3d at 360-61).

217 Doe’s fleeting point that WASD “knew it had hired Coach Miller in violation of 24 P.S. § 1-

111,” Doc. 168-1 at 4, is entirely irrelevant to whether WASD knew of a substantial danger of

sexual harassment.

218 Doc. 168-1 at 5; see Doc. 167 ¶¶ 116-18, 121, 124, 129, 132-34.

219 Doe also briefly cites his own testimony in which he states that the coaches had a conversation

with the team about the incident, but his statement was in response to the question: “Did anyone

tell you, whether it be on the trip or afterwards, that the coaches had a conversation with

members of the team about the assault?” Doc. 158-1 at 111:2-8. He also notes that he recalled

a conversation on the trip, but that simply focused on “anything . . . anything regarding

inappropriate behavior or a reminder about what to do, how to act, things like that[.]” Id. at

110:15-111:1. Neither of these comments supports the proposition that the coaches knew about

the incident while in Myrtle Beach. As to the second, Doe himself points out that a meeting

occurred regarding a teammate’s drug use—a different disciplinary issue. Doc. 167 ¶ 128.

the record establishes that no WASD personnel learned of the incident during the

Myrtle Beach trip or immediately thereafter.

First, and most frequently, Doe cites a note written by Chief Detective Weber

during his investigation of the ChildLine report that arose from the incident, which

states: “school district was aware in Myrtle Beach.”220 Weber testified that the

statement came from someone that he interviewed, although he could not recall who

with specificity.221 Doe agrees that the statement “would have come from someone

else.”222 The statement was made out of court and Doe seeks to use it to prove that

the school did in fact know about the incident while the team was in Myrtle Beach.223

It is therefore hearsay,224 and the court cannot see any possible path to

admissibility.225 “Hearsay statements that would be inadmissible at trial may not be

220 Doc. 167-33 (Weber Investigation Notes).

221 Doc. 158-14 at 50:10-51:2, 51:11-17 (“Q. [W]hy did you make this note in your own

handwriting? A. Because that would have come from somebody else. Q. So this is just an initial

note from someone? A. Someone, correct.”). Weber also immediately stated that he did not

believe the statement was true. Id. at 51:4-7.

222 Doc. 167 ¶ 116.

223 See e.g., id. ¶ 117 (“It is specifically denied that no one reported the incident on the trip. Willie

Weber’s notes state, ‘School District was aware in Myrtle Beach.’”).

224 Fed. R. Evid. 801(c).

225 In fact, the statement is double or possibly triple hearsay. Weber wrote the note out of court,

so he is the first declarant. His statement is arguably admissible under Fed. R. Evid.

801(d)(2)(D) as non-hearsay. But he testified that he was told this information by another,

unknown person outside of court, adding a second layer of hearsay. Because there is no

evidence about that declarant or the circumstances of the statement, there is no ground for

applying a hearsay exception. Furthermore, the only potential person Weber identified as

making the statement was neither a coach nor a player, so she likely would have had to learn

that information from yet another unknown out of court source, adding a third layer of hearsay.

considered for purposes of summary judgment.”226 Thus, Weber’s note cannot create

a dispute of fact.

Second, Doe points to testimony from David Scicchitano (an investigator in

Pennsylvania’s Office of the Attorney General who investigated the incident in

2020)227 which he claims demonstrates that Scicchitano “concluded based on his

investigation that the school district knew about the sexual assault while the team

was still in Myrtle Beach,”228 and thus “corroborates” Weber’s note. But that is

simply not what Scicchitano said. He stated that it was his “opinion” that the

administration was aware of the video “before Matt Wood made his call to Willie

Weber on May 18, 2018.”229 He then confirmed that, in his “opinion,” administrators

knew about the video “sometime between March and May 18th.”230

226 Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009); Philbin v. Trans Union Corp.,

101 F.3d 957, 961 n.1 (3d Cir. 1996) (“Philbin is unable to identify the person who relayed

this information to him, and he did not include any such person as a witness in the Joint Pre-

Trial Order. Thus, the hearsay statement by this unknown individual is not ‘capable of being

admissible at trial,’ and could not be considered on a motion for summary judgment.” (internal

citations omitted)).

227 See 158 ¶ 14.

228 Doc. 167 ¶ 132 (citing Doc. 167-8 (Scicchitano Dep.) at 224:9-25).

229 Doc. 167-8 at 224:9-16.

230 Id. at 224:17-25. Doe also selectively cites Scicchitano’s testimony “that somebody associated

with Williamsport Area School District would’ve known about that video being passed around

among the players in Myrtle Beach,” see Doc. 167 ¶ 134 (citing Doc. 167-8 at 142:1-21), but

Doe fails to include the immediately following question and answer: “Q. The only question

today is, we just don’t know whether that statement was made in Myrtle Beach or whether it

was made in Pennsylvania? A. Right.” Doc. 158-15 (Scicchitano Dep.) at 142:22-143:1.

There are at least two critical problems with Scicchitano’s testimony.231 First,

it is expressly his opinion, which he formed based on his ex post investigation of the

evidentiary record. But Doe has never offered or qualified Scicchitano as an expert

witness.232 As a lay witness, Scicchitano can only offer opinion testimony “when

[]he has some personal knowledge of th[e] incident.”233 Scicchitano became

involved in this matter two years after the fact, and his knowledge of the events of

this case is invariably second- or third-hand, so he cannot opine on these issues.234

And even if he could offer such an opinion, he never stated with specificity when

WASD gained knowledge of the incident within an approximately two-month

window. Speculation cannot narrow that broad timeframe to the few days of the trip

itself or the period immediately thereafter (or any other point).

Finally, Doe cites testimony that he says shows that other players knew about

the incident while on the trip, with the comment that the coaches “had to have

known. There is no way something like that doesn’t get back to them.”235 First,

N.M.’s testimony about the coaches’ knowledge was not specific to the Myrtle

231 A third is that essentially all of Scicchitano’s testimony about the actual facts of the case is

hearsay, given that he was not present for any of the relevant events.

232 Doc. 171 (Expert Disclosure) (not listing Scicchitano); see Fed. R. Evid. 702.

233 United States v. Fulton, 837 F.3d 281, 291 (3d Cir. 2016); Fed. R. Evid. 701(a).

234 Fed. R. Evid. 701; United States v. Evans, __ F.4th __, 2026 WL 1393261, at *5 (3d Cir. 2026)

(“Rule 701’s first requirement, . . . [is] that the witness ‘have firsthand knowledge of the factual

predicates that form the basis for the opinion.’” (quoting Gov’t of V.I. v. Knight, 989 F.2d 619,

629 (3d Cir. 1993))); see Fed. R. Evid. 602. If Scicchitano’s opinion is based on some

compelling evidence, that evidence is not in this Court’s record.

235 Doc. 168-1 at 5 (quoting Doc. 158-5 at 79:14-15).

Beach trip, and came in response to the question: “You’re aware that at the very least

the coaches in the school knew about it at some point during the baseball season,

right?”236 So, like Scicchitano’s comment, it does nothing to establish a specific date

for WASD’s knowledge. Second, what the players knew cannot be attributed to the

coaches in the absence of evidence showing that that information was shared.237

And, third, testimony about what the coaches “had to have known,” without any

direct or circumstantial evidence of particularized knowledge, is entirely speculative

and conclusory and cannot create a genuine dispute of fact.238 Moreover, to the

extent that rumors, comments, or jokes about the incident were exchanged by players

within earshot of coaches,239 that kind of loose talk, unaccompanied by specific

reports, is “insufficient to establish actual notice under Title IX, even assuming that

[the school] was aware of [them].”240

In contrast to Doe’s protestations, not a single witness deposed in this case

testified that the coaches had knowledge of the incident while in Myrtle Beach or

shortly thereafter. All of the players, including Doe, testified that they did not report

236 Doc. 158-5 at 79:10-13.

237 Also consider that the coaches may not even be “appropriate persons.” Swanger v. Warrior

Run Sch. Dist., 346 F. Supp. 3d 689, 706 (M.D. Pa. 2018) (citing authority that teachers or

“low-level administrative staff” are not appropriate persons).

238 See Payne v. Butts, No. 22-2210, 2022 WL 16916347, at *1 (3d Cir. Nov. 14, 2022)

(unpublished per curiam) (“A mere hypothesis about a defendant’s knowledge will not

suffice.” (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988))).

239 That this occurred is speculation, but the point is worth refuting given the nature of Doe’s

position.

240 Swanger, 346 F. Supp. 3d at 709 n.6 (discussing Johnson v. Elk Lake Sch. Dist., 283 F.3d 138,

144 n.1 (3d Cir. 2002)).

it.241 All of the coaches testified that they did not hear about it until late May.242

Notably, Doe’s primary circumstantial evidence of WASD’s knowledge from the

dismissal stage—that Pardoe “ordered the students to delete” the videos “on the

night of the incident,”243 is entirely absent from this stage of the case because it is

unsupported by the record, which instead shows that Pardoe advised students to

delete the video months later, in late May or early June.244

On this record, Doe cannot prove that WASD knew about the incident at

Myrtle Beach or shortly after the trip.

iii. Late May

WASD agrees that “appropriate people” gained knowledge of the incident on

or around May 24, 2018.245 That timing is amply supported by the evidence. Because

Doe has failed to produce evidence to show that WASD knew about the incident at

an earlier time,246 the Court accepts as true that WASD acquired actual knowledge

of the incident as of late May 2018.

241 See supra at 22-23.

242 Id.

243 Doe, 699 F. Supp. 3d at 321.

244 See supra at 26-27.

245 Doc. 160-2 at 103:5-13. Weber and Doe’s mother both contacted school personnel on May 21,

2018, Doc. 158 ¶ 135; Doc. 158-22, but there is no evidence to suggest that either

communicated the facts of the incident at that time. The difference between these dates is not

significant.

246 See Doc. 168-1 at 5-6 (following argument that WASD gained knowledge during Myrtle Beach

trip with argument that “[a]dditional school officials gained actual knowledge in May 2018”).

b. Deliberate Indifference

With the timing of WASD’s actual knowledge of the incident established, I

turn next to whether its subsequent actions constitute deliberate indifference. A

school is deliberately indifferent when it makes “an official decision not to remedy

the Title IX violation.”247 Of course, “schools should not be tasked with purging all

peer harassment, and . . . courts should not be tasked with second-guessing the

disciplinary decisions of school administrators.”248 This Court’s duty is not to

determine whether WASD proceeded in an ideal manner, or even a good one;

instead, I must determine whether a jury could conclude from the evidence in the

record that “the Title IX recipient’s response ‘[was] clearly unreasonable in light of

the known circumstances.’”249 As noted, this is a “high bar,”250 and the Supreme

Court has expressly stated that “[i]n an appropriate case, there is no reason why

courts, on a motion to dismiss, for summary judgment, or for a directed verdict,

could not identify a response as not ‘clearly unreasonable’ as a matter of law.”251

The school’s insufficient response must “cause students to undergo

harassment or make them liable or vulnerable to it,” so “harassment, or the likelihood

or vulnerability of a student to be subjected to it, must occur subsequent to an

247 See McAvoy, 115 F.4th at 233 (citing Gebser, 524 U.S. at 290).

248 See id. at 227-28 (citing Davis, 526 U.S. at 648).

249 Id. at 228 (citing Hall, 22 F.4th at 410-11).

250 Hall, 22 F.4th at 407.

251 Davis, 526 U.S. at 649.

official’s decision not to remedy a known violation.”252 Case law establishes that a

school makes a victim vulnerable to further harassment and is deliberately

indifferent if it “turn[s] a blind eye” once it “has actual knowledge of sexual

harassment that is severe, pervasive and objectively offensive enough to deprive a

student of access to the educational benefits and resources [it] offers.”253 “Under

some circumstances, a school’s motivation to minimize an incident may provide

evidence of deliberate indifference.”254 Moreover, a “delayed response [to a report

of harassment] constitutes deliberate indifference if it prejudices the plaintiff or if

the delay was a ‘deliberate attempt to sabotage [the p]laintiff’s complaint or its

orderly resolution.’”255

Before considering Doe’s arguments that WASD was deliberately indifferent,

I review the administrators’ actions after they learned of the incident. As noted

above,256 appropriate persons at WASD had actual knowledge of the incident as of

late May 2018, at which point they reviewed the video. On May 30, multiple

administrators met with Doe and his mother and listened to their account of the

252 Swanger, 346 F. Supp. 3d at 705 (quoting Davis, 526 U.S. at 644-45); see Williams v. Bd. of

Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1296 (11th Cir. 2007) (“[W]e hold that a Title IX

plaintiff at the motion to dismiss stage must allege that the Title IX recipient’s deliberate

indifference to the initial discrimination subjected the plaintiff to further discrimination.”).

253 Farmer v. Kansas State Univ., 918 F.3d 1094, 1103-04 (10th Cir. 2019) (citing Davis, 526

U.S. at 633, 641, 650-51).

254 McAvoy, 115 F.4th at 232 (citing Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257, 273 (4th Cir.

2021)).

255 Karasek, 956 F.3d at 1106 (quoting Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir.

2006)).

256 Supra at 42.

incident and heard their concerns about the video’s spread. On June 5, several of the

same administrators met with B.M. and his parents and attorney and gathered his

side of the story. Around the same time they also questioned J.Z. and N.M. During

the investigation, Brandon Pardoe told at least some of the students to delete the

video. After watching the video and interviewing the victim, perpetrator, and several

witnesses, Pardoe concluded that the incident did not constitute sexual harassment

requiring Title IX reporting. He nevertheless punished both B.M. and J.Z. by

suspending them from the team indefinitely; the season ended two games later. Both

B.M. and J.Z. were permitted to play the next season, but B.M. first had to complete

an online bullying course.

Facially, WASD’s response is not “clearly unreasonable.”257 Once it learned

of the incident, WASD conducted an investigation and imposed disciplinary

consequences. WASD administrators did not delay or ignore potential witnesses; it

appears they interviewed everyone known to be present and reached a final decision

within just a few weeks of learning of the incident. Courts considering similar

responses have consistently held that schools were not deliberately indifferent as a

matter of law.258 That is true even where the school ultimately concluded—against

257 Davis, 526 U.S. at 649.

258 McAvoy, 115 F.4th at 228-233 (affirming summary judgment for college when it “put a no-

contact directive in place, provided McAvoy with support and resources, and conducted an in-

depth investigation ultimately ending with the imposition of sanctions on TS”); Jauquet v.

Green Bay Area Catholic Educ. Inc., 996 F.3d 802, 807-09 (7th Cir. 2021); Karasek, 956 F.3d

at 1105-09; Johnson v. Ne. Sch. Corp., 972 F.3d 905, 912-15 (7th Cir. 2020); Sauls v. Pierce

the victim’s interpretation—that a complaint of harassment was unfounded or not as

severe as initially reported.259 In contrast, courts have determined that summary

judgment is inappropriate only where a school failed to investigate an incident at all,

conducted an investigation after significant delay, or declined to take additional

action in the face of multiple reports of harassment.260 That is not what happened

here.

Doe nevertheless presses an undefined jumble of actions that he argues show

that WASD was deliberately indifferent. Two of his points are clearly insufficient

and can be dealt with quickly. First, Doe contends that WASD was deliberately

indifferent when it failed to increase supervision at the Atlantica after learning of the

room layout,261 but that contention fails because the distance between the rooms was

insufficient to put WASD on notice of a serious threat of sexual harassment, as is

Cnty. Sch. Dist., 399 F.3d 1279, 1285-87 (11th Cir. 2005); Davis v. DeKalb Cnty. Sch. Dist.,

233 F.3d 1367, 1373-75 (11th Cir. 2000).

259 See Davis, 233 F.3d at 1375.

260 See Hall, 22 F.4th at 411 (finding genuine dispute of fact when school administrators did not

escalate report, contact victim, or respond to additional corroborating reports); Fairfax Cnty.,

1 F.4th at 271-73 (reasoning that jury could find deliberate indifference when administrators

learned about incident at beginning of field trip but did not address it during the five-day trip,

asked victim pointed questions during interview, made jokes about incident, did not interview

several potential witnesses, and imposed no discipline); Doe v. Sch. Dist. of Broward Cnty.,

Fla., 604 F.3d 1248, 1260-62 (11th Cir. 2010) (reasoning that lackluster investigation of first

complaint likely was not deliberate indifference but that failure to more stringently investigate

after subsequent complaint created genuine dispute of fact); Williams, 477 F.3d at 1296

(unexplained delay of more than eight months before imposition of punishment established

issue of fact on deliberate indifference).

261 Doc. 168-1 at 6.

necessary for a Title IX claim.262 And second, Doe complains that “Weber ‘put

Pardoe in charge of investigating the Child Line Report,’” and did not himself

interview the parties involved, which resulted in a “sham investigation.”263 But

nothing in the record indicates that Weber was an employee or agent of WASD, so,

as WASD points out,264 it cannot be liable for the shortcomings in his investigation,

whatever they may have been.

Doe also points to three potentially cognizable issues he contends demonstrate

WASD’s conscious decision to either cover up or not remedy the Title IX violation,

although he does not offer legal citation to support his arguments. First, he contends

that “Pardoe instructed students to delete videos—tampering with evidence rather

than protecting victims.”265 Second, he argues that “WASD threatened players to

prevent reporting.”266 Third, he takes issue with WASD’s “conclu[sion that] the

incident did not constitute harassment or meet Title IX thresholds,” which

“contradicts the ChildLine report.”267 Additionally, although he does not make the

point in this discussion, Doe also clearly believes the punishments issued to B.M.

and J.Z. were unreasonable, a point that I consider with the prior contention about

262 See supra at 35 & nn.205-06. Additionally, even if the coaches knew about the room layout

well in advance, there is no indication that that information made it to “appropriate persons”

before the trip.

263 Doc. 168-1 at 6.

264 Doc. 170 at 8.

265 Doc. 168-1 at 6.

266 Id.

267 Id. at 7

WASD’s conclusion. Doe seemingly contends that harassment continued based on

other students calling him rude names after the trip.268 These points are all either

factually unsupported or lose significance based on the timeline of events established

by the undisputed record and fail to raise a question of fact that WASD was

deliberately indifferent. I take each in turn, and then consider the cumulative effect

of all of the issues.

i. Video Deletion

Pardoe did not tell players to delete the video in a context that indicates he

intended to destroy evidence or cover up the incident. It is true that Pardoe told

players that they should delete the video, but he did so after Weber reported the

incident to the school, and with full knowledge that law enforcement already

possessed a copy of the video.269 Pardoe explained that he advised students to delete

the video in order to stop its spread within the school.270 It is unreasonable to

conclude that Pardoe was attempting to destroy evidence or hide the truth under such

circumstances.271 Instead, the only fair inference is that Pardoe attempted to remove

the video from devices he could not control with the knowledge that a copy was

268 Doc. 168-1 at 8.

269 Supra at 26-27 & nn.149-50. In his Complaint, Doe alleged that Pardoe made the deletion

comments shortly after the incident and well before the ChildLine report and Weber’s

investigation. See Doe, 699 F. Supp. 3d at 315, 321-22. The facts adduced in discovery show

a very different timeline.

270 Supra at 26-27 & n.149.

271 Cf. GenOn Mid-Atlantic, LLC v. Stone & Webster, Inc., 282 F.R.D. 346, 359 (S.D.N.Y. 2012)

(citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) and Orbit One

Comm’ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 442 (S.D.N.Y. 2010)).

being preserved by law enforcement. That act is far from “clearly unreasonable” in

light of the relevant circumstances, which include the fact that Doe and his mother

both expressed concern to Pardoe about the video circulating.272 To the extent Doe

is suggesting that Pardoe wanted to destroy any evidence of other, similar

misbehavior in Myrtle Beach,273 there is no evidence in the record to suggest that

Pardoe was aware of any videos other than the one that was submitted with the

ChildLine report, nor that he knew of any other sexual misconduct.274 Accordingly,

this point does not support a finding of deliberate indifference.

ii. Threatening Students

It is similarly factually untrue that Pardoe threatened students to discourage

reporting. Doe’s only evidence in support of that contention is J.Z.’s agreement with

the question that “the only threat that you were really concerned about as it related

to this incident and the investigation, so called of it, was the threat that you might

not play again on team [sic]. Correct?”275 J.Z. responded “that’s basically it, yeah.”276

But, on J.Z.’s own testimony, that “threat” was not made to discourage reporting or

anything of the sort. Instead, J.Z. stated that he was concerned about being suspended

from the team as punishment for recording the video.277 It is true that J.Z. recalled

272 Doc. 158 ¶ 145; Doc. 167 ¶ 145.

273 See Doc. 168-1 at 6 (referring to deletion of “videos” (emphasis added)); Doc. 167 ¶¶ 149, 152

(referring to second video).

274 Supra at 27-28.

275 Doc. 158-4 at 222:8-13.

276 Id. at 228:14

277 Doc. 158-4 at 115:7-118:3.

Pardoe telling him not to talk about the incident, but J.Z. explicitly stated that he

“wouldn’t say [he] felt threatened” by that comment,278 and the comment was made

after J.Z. had already reported the incident to Burkholder, significantly undermining

the likelihood Pardoe was attempting to discourage reporting. Moreover, the Court

does not agree with Doe that Pardoe’s statements that J.Z. should not talk about the

incident, that the issue “[wa]sn’t going to go any[where],” and that J.Z. “ha[d]

nothing to worry about” are sufficient evidence to demonstrate that the entire

investigation was a sham or cover up,279 given that there is no other evidence of

inadequate investigation by WASD in the record.

iii. Investigatory Conclusion and Punishments

Doe’s disagreement with WASD’s ultimate conclusion and the punishments

issued to B.M. and J.Z. is not a sufficient basis for finding deliberate indifference.

The Supreme Court has directed that courts should “refrain from second guessing

the disciplinary decisions made by school administrators” in Title IX cases.280

Accordingly, “Davis makes clear that Title IX liability does not give victims license

to demand particular remedial actions from the school.”281 Of course, “a ‘minimalist

response is not within the contemplation of a reasonable response,’” but the

possibility that the school could have “taken more aggressive action” does not

278 Id. at 114:15-115:12.

279 See Doc. 168-1 at 7.

280 Davis, 526 U.S. at 648-49.

281 Jauquet, 996 F.3d at 809 (citing Davis, 526 U.S. at 648).

establish deliberate indifference.282 So “even if [the school] could have done more,”

as long as its response “was not clearly unreasonable under the known circumstances

. . . [it] was not deliberately indifferent.”283 Here, the undisputed record establishes

that WASD’s response was not clearly unreasonable.

Although it did not find that B.M.’s conduct violated Title IX, WASD did

conclude that B.M. and J.Z. had acted improperly and punished both of them. The

parties cast the punishments in starkly different terms. WASD states that “B.M. [and

J.Z.] w[ere] suspended/dismissed from the team and all sports indefinitely.”284 Doe

states that “B.M. was suspended for just two games and required to attend a hazing

program,” and asserts that both players “w[ere] allowed to continue playing after the

Myrtle Beach trip” and received a medal for the team’s district championship “after

being involved in the sexual abuse of John Doe.”285

Both statements are true and entirely compatible, and Doe’s framing

suggesting otherwise is disingenuous for two reasons. First, there is no insidious

element to the fact that B.M. and J.Z. remained on the team for a time after the Myrtle

Beach trip because WASD and the coaches did not know about the incident until

approximately two months later.286 Second, the record reflects, and no one disputes,

282 Escue v. Northern OK College, 450 F.3d 1146, 1155 (10th Cir. 2006) (quoting Vance v.

Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir. 2000)).

283 McAvoy, 115 F.4th at 233-34 (citing Davis, 526 U.S. at 648).

284 Doc. 158 ¶¶ 160-61.

285 Doc. 167 ¶¶ 160-61.

286 See supra at 23-25.

that the punishments were imposed at the end of May/beginning of June,287 a day or

two after the administrators’ meeting with Doe. As Pardoe explained in his

deposition, the district championship Doe complains about was played on “the 29th

or 28th” of May, several days before the administrators spoke with Doe, and also

before B.M. and J.Z. were suspended.288 After B.M.’s suspension was imposed, he

remained suspended until he and his parents met with administrators, “and then he

was done for the year.”289 But, by that point, B.M.’s suspension had only lasted for

one game, and the Millionaires lost their next playoff game two days later, ending

their season.290 So both things are true: B.M. and J.Z. were permitted to participate

in the district championship and receive a medal, and they were suspended after that

game for the rest of the season, which lasted only two more games.

287 Doc. 158-23 at 3 (“June 1, 2018 @10:45AM – Met with Z. in my office to inform him that he

is suspended from the baseball team until investigation is complete,” “June 1, 2018

@11:00AM – Called B.M.’s mother . . . I informed her that the he [sic] was suspended from

the team.”); Doc. 158-35 (Discipline Report) (reflecting “loss of privilege” imposed on B.M.

on “May 31, 2018”); Doc. 158-36 (Discipline Report) (reflecting “loss of privilege” imposed

on J.Z. on “May 31, 2018”); Doc. 158-3 at 82:17-83:7 (B.M. stating that he was suspended for

“two or three” games “during the playoff time”); Doc. 158-4 at 93:25-96:17 (J.Z. stating that

he was suspended for several games during the playoffs including “the playoff game . . . at the

end where we lost”); Doc. 160-2 at 166:4-168:10.

288 Doc. 160-2 at 166:1-167:3 (discussing district playoff game); see Doc. 92 ¶ 75 (noting that

district championship occurred on May 28, 2018).

289 Doc. 160-2 at 169:19-175:13; see Doc. 158-23 at 4 (notes of June 5 meeting with B.M.: “I

extended the suspension for the remainder of the year”); cf. Doc. 158-1 at 125:16-18 (“Q. Did

they play in any games after that meeting you had with the school? A. That, I’m not sure.”).

290 See 2018 PIAA Baseball Championships Information and Results, Pa. Interscholastic Ath.

Ass’n, http://www.piaa.org/news/details.aspx?ID=3662 (select “6A Championship” under

“Championship Brackets” heading) (showing that Williamsport defeated Downingtown East

in a first round game on Monday, June 4, 2018, and lost to Bensalem in a quarterfinal game

played on Thursday, June 7, 2018); Fed. R. Evid. 201(b)(1), (2).

That those suspensions were brief because of the end of the season does not

render them obviously deficient. “What is appropriate remedial action will

necessarily depend on the particular facts of the case—the severity and persistence

of the harassment and the effectiveness of any initial remedial steps.”291 And, as

stated, the remedy is forward looking: it must be sufficiently tailored to “end the

harassment.”292 Here, the record is devoid of evidence showing that B.M.

persistently harassed Doe. Nor is there anything to show that B.M. posed a

continuing threat to Doe. Indeed, Doe stated that “the dynamic of the team was pretty

much the same” after the incident.293 By the time Doe discussed the incident with

administrators, two months had passed during which B.M. and Doe remained

teammates, yet Doe did not report any additional incidents of harassment.294 Under

those circumstances, there is nothing to suggest that drastic intervention was

necessary to “end the harassment.” Doe may believe that a permanent suspension

from athletics would have been a more appropriate sanction, but that is not his call

to make.295

291 Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660-61 (5th Cir. 1997) (quoting

Waltman v. Int’l Paper Co., 875 F.2d 468, 479 (5th Cir. 1989)).

292 Escue, 450 F.3d at 1155 (quoting Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir. 1999)).

293 Doc. 158-1 at 188:2-15.

294 Based on the record, there were no additional incidents to report.

295 Jauquet, 996 F.3d at 809-10 (acknowledging that Plaintiffs wanted assailant to be expelled and

were unsatisfied by “‘coached’ . . . apology” but holding that such punishment was not clearly

unreasonable).

Doe’s argument that he was called “dick lips” after the incident cannot

contribute to the deliberate indifference analysis for three reasons. First, “[d]amages

are not available for simple acts of teasing and name-calling among school

children.”296 Second, Doe admitted in deposition that he never reported the name

calling to WASD, and no WASD personnel testified that they learned of the name

calling, so WASD never had actual knowledge of that harassment; thus, its failure

to respond to it cannot be deliberately indifferent as a matter of law.297 Doe’s

speculation that administrators must have known about the name calling because it

was happening with regularity is insufficient to establish actual knowledge, as

previously noted.298 Third, all of the name calling occurred within a few weeks

following the trip, and was over before the end of the school year,299 so by the time

WASD had actual knowledge of the initial incident, this follow-on harassment had

essentially ceased.

The cumulative effect of Doe’s contentions does not show deliberate

indifference. Instead, the record reflects that WASD administrators promptly

investigated a report of sexual harassment, concluded that it was not particularly

severe, and issued punishments to the perpetrators. That Pardoe at times appeared

interested in tamping down the spread of information about the incident between

296 Davis, 526 U.S. at 652.

297 See supra at 28-29 & n.164; B.W., 422 F. Supp. 3d at 881 (internal citations omitted).

298 Supra 41 & n.240; see Swanger, 346 F. Supp. 3d at 709 n.6.

299 Supra at 28-29.

students and parents is not insidious; it is instead an appropriate response to control

potentially inflammatory and damaging rumors and gossip.300 Accordingly, the

Court finds that Doe has failed to adduce evidence from which a jury could find that

WASD’s response to the incident was clearly unreasonable under the circumstances,

and summary judgment is appropriate on this issue.

iv. Additional Title IX Problem

Doe’s Title IX claim likely also fails for an additional reason that the parties

have not clearly addressed. As it stands now, there is no evidence in the record from

which a jury could find that B.M. targeted Doe because of his sex. As I have

explained in a case involving strikingly similar conduct, a Title IX plaintiff bringing

claims regarding same-sex harassment must show that “the harasser was motivated

by sexual desire, the harasser was expressing a general hostility to the presence of

one sex in the workplace, or the harasser was acting to punish the victim’s

noncompliance with gender stereotypes.”301 Importantly, the Supreme Court “[has]

never held that . . . harassment . . . is automatically discrimination because of sex

merely because [it involves] sexual content or sexual connotations.”302 In cases

where the harasser and victim are of opposite sexes, sexual desire is easily inferred

300 Cf. Johnson, 283 F.3d at 144 n.1 (noting that “the high school setting . . . is notoriously rife

with adolescent gossip”).

301 Humphries v. Pa. State Univ., 2021 WL 4355352, at *24 (M.D. Pa. Sept. 24, 2021) (quoting

Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir. 2000)), aff’d 2026 WL

1021527 (3d Cir. Mar. 16, 2026).

302 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998).

from sexual content because of the prevalence of heterosexuality.303 But in same-sex

incidents, the plaintiff must provide “credible evidence that the harasser was

homosexual” or other incident-specific evidence of sexual desire (or some version

of the other Bibby examples).304 The mere fact that “the conduct at issue was . . .

tinged with offensive sexual connotations” is not enough.305 Doe has adduced no

evidence to show that B.M. has any sexual interest in men or was otherwise

motivated by sexual desire during the incident. Nor is either of the other Bibby paths

remotely implicated. Accordingly, although Doe experienced harassment, that

harassment did not constitute “discrimination” “on the basis of sex,” as is necessary

for a Title IX claim.306

2. Negligence Claims

WASD also moves for summary judgment on Doe’s remaining negligence

claims under Pennsylvania state law.307 Having determined that summary judgment

is appropriate on Doe’s only federal claim, I may decline to exercise supplemental

303 Id. at 80 (noting that “the inference of discrimination [is] easy to draw in most male-female

sexual harassment situations, because the challenged conduct typically involves explicit or

implicit proposals of sexual activity”); see also Jeffrey M. Jones, LGBTQ+ Identification in

U.S. Now at 7.6%, Gallup (Mar. 13, 2024) (noting that 85.6% of survey respondents identified

as heterosexual).

304 Oncale, 523 U.S. at 80; see Bibby, 260 F.3d at 264.

305 Oncale, 523 U.S. at 81; see Humphries, 2021 WL 4355352, at *2-3, 23-25 (finding harassment

where sports teammates would “‘place’ or ‘smack’ [their] genitals on the victim’s face” or

“place their penises on the pinned player’s buttocks or face and ‘stroke [their] genitalia

simulating the action of ejaculation’” was not sex discrimination), aff’d, 2026 WL 1021527.

306 20 U.S.C. § 1681(a).

307 The remaining claims are for negligence (Count IV), negligent infliction of emotional distress

(Count VI), and negligent failure to rescue (Count VII). See Doc. 92; Doe, 699 F. Supp. 3d at

332.

jurisdiction over these claims.308 In most cases, this is the appropriate course of

action.309 Nevertheless, a court retains discretion to exercise supplemental

jurisdiction over state-law claims even “after dismissing every claim over which it

had original jurisdiction.”310 In exercising that discretion, the court should retain

jurisdiction only when “considerations of judicial economy, convenience, and

fairness to the parties provide an affirmative justification for doing so.”311 Here,

those factors convince me that I should continue to exercise jurisdiction: discovery

is complete and the summary judgment issues are fully briefed and ripe for

resolution. Ultimately, I grant WASD’s motion, resolving these claims in their

entirety. It is in the interest of all parties to bring this case to a full resolution now,

rather than remanding these claims for a new round of proceedings in state court and

creating further delay.

WASD’s challenge to the negligence claims takes two flavors. First, it

contends that it is entitled to immunity under Pennsylvania’s Political Subdivision

Tort Claims Act (“PSTCA”), and that all of the negligence counts must therefore

fail. Second, it challenges each negligence count on the merits. After reviewing the

record and the briefs, I conclude that WASD is entitled to immunity because Doe

308 28 U.S.C. § 1367(c)(3).

309 See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Certainly, if the federal

claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the

state claims should be dismissed as well.”).

310 Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009).

311 Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v.

Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)); Talley v. Wetzel, 15 F.4th 275, 281 (3d Cir. 2021).

has not adduced sufficient evidence from which a jury could find that a statutory

exception applies. Accordingly, I grant WASD’s motion for summary judgment on

all of the negligence counts without reaching the merits.

The PSTCA provides that “[e]xcept as otherwise provided in this subchapter,

no local agency shall be liable for any damages 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.”312 WASD—a public school—is a “local agency” protected by the Act.313

So WASD is immune from tort liability unless the statute provides an exception to

that immunity.314 One exception may apply: the PSTCA does not bar liability for

“sexual abuse,” defined as “conduct which constitutes an offense enumerated under

section 5551(7),” “if the injuries to the plaintiff were caused by actions or omissions

of the local agency which constitute negligence.”315 Section 5551(7), in turn,

enumerates a series of criminal offenses, several of which may apply here.316 The

relevant point is that application of any of the criminal offenses that would abrogate

immunity requires that “some penetration however slight” occurred.317 The

312 42 Pa. Cons. Stat. § 8541. Notably, Doe does not seek declaratory or injunctive relief on any

of the negligence counts. See Doc. 92 at 38-54.

313 Sanford v. Stiles, 456 F.2d 298, 315 (3d Cir. 2006) (“Under the PPSTCA, local agencies such

as school districts are given broad tort immunity.”); Vicky M. v. Ne. Educ. Intermediate Unit

19, 486 F. Supp. 2d 437, 459 (M.D. Pa. 2007).

314 Sanford, 456 F.2d at 315 (noting statutory exceptions).

315 42 Pa. Cons. Stat. § 8542(b)(9).

316 42 Pa. Cons. Stat. § 5551(7).

317 18 Pa. Cons. Stat. §§ 3121, 3123, 3124.1 (all requiring “sexual intercourse” or “deviate sexual

intercourse”); id. § 3101 (defining “deviate sexual intercourse” as “sexual intercourse per os

or per anus between human beings” and “sexual intercourse” as “intercourse per os or per anus,

requirement of penetration is met if there is “contact between an attacker’s genitalia

and a victim’s lips.”318

Doe contends that this exception applies because there is evidence in the

record from which a jury could conclude that B.M.’s penis touched his lips. WASD

responds that the evidence in the record is insufficient to support such a finding

under a preponderance standard. I agree with WASD.

In his deposition, Doe repeatedly testified that B.M. “put his penis in between

my lips.”319 However, Doe also affirmatively stated that he did not have firsthand

knowledge of this fact (because he was asleep), and that he instead learned it when

he saw the video of the incident.320 In his response to WASD’s SOUMF, Doe

“specifically denie[s] that [his] assertion is based only on seeing the video,” but does

not cite any contradictory evidence and instead merely states that “the video speaks

for itself.”321 Accordingly, the Court must conclude that Doe’s evidence on this point

is limited to the video.322

with some penetration however slight”); see Doe, 699 F. Supp. 3d at 327-28 (discussing

requirement of penetration).

318 See Doe, 699 F. Supp. 3d at 328 (collecting state law cases).

319 Doc. 158-1 at 92:6-8, 93:3-8, 177:12-18 (“[I]n between my lips, like in my mouth.”).

320 Id. at 235:15-24 (“Q. It’s what you said today, you didn’t know—this says had a penis on his

face—but either way you didn’t know anything until they showed you the video, right? A.

Correct.”); id. at 93:2-13; see id. at 95:7-98:2 (Doe stating that when he woke up he “[d]idn’t

know what was going on” and learned “what actually happened” when he saw that video); id.

at 192:1-5 (“After it happened, I was just confused as to what was going on.”); id. at 98:3-

99:11 (describing seeing the videos and reacting).

321 Doc. 167 ¶ 98.

322 The Court further notes that it is strongly arguable that Doe should be precluded from testifying

about this part of the incident except to the extent that he is describing the video. Federal Rule

of Evidence 602 prohibits a witness from testifying about a matter unless “evidence is

Video footage can sometimes be so clear that it can stand as its own

evidence.323 “Of course, videos are sometimes unclear, incomplete, and fairly open

to varying interpretations.”324 On summary judgment, “[a] blurry video that does not

depict much of anything cannot give rise to issues of fact about what did or did not

happen on a particular occasion.”325 In such cases, a party’s interpretation of the

video “amounts to mere speculation.”326 Of course, if there is conflicting testimony

which the video simply fails to illuminate, the court should interpret the video “in

the light most favorable to the non-moving party.”327 But a party cannot rest solely

introduced sufficient to support a finding that the witness has personal knowledge of the

matter.” To have personal knowledge of events, the witness must have “sensory perception of

them” and “comprehen[d]” that perception. 27 Charles A. Wright & Victor J. Gold, Federal

Practice & Procedure: Evidence § 6023 (2d ed. 2007). “In order to satisfy the requirement that

testimony is based on sensory perception, it is necessary to show that the witness had the ability

to perceive and in fact perceived the matters described in her testimony.” Id. Doe repeatedly

testified that he was asleep during the incident and therefore did not know what happened.

Because he did not sensorily perceive the events depicted the video, he may not directly testify

about those events. See Landon v. City of North Port, 745 F. App’x 130, 133-34 (11th Cir.

2018) (affirming exclusion of plaintiff’s testimony about his actions at a time when he stated

he was unconscious); Monroe v. Mullooley, No. 10-CV-1208, 2012 WL 4056075, at *4 (W.D.

Pa. Sept. 14, 2012) (“Fed. R. Evid. 602 requires sufficient evidence to support a finding of

personal knowledge on a matter before a witness may testify to it. . . . The request will be

granted and Plaintiff is precluded from testifying to anything that occurred while he was

unconscious.”); Huntimer v. Young, No. 4:23-CV-4005, 2025 WL 834583, at *9 (D.S.D. Mar.

17, 2025) (“[B]ecause Huntimer claims he was unconscious during the events in question, . . .

this Court cannot rely on any of his statements about these events because he lacks personal

knowledge.”); Schultz v. Johnson, No. 10-CV-581, 2012 WL 12888027, at *3 (W.D. Wis. Jan.

30, 2012) (“If plaintiff was unconscious during the relevant time, he would have no personal

knowledge of what happened to him.”); Wysong v. City of Heath, No. 2:03-CV-0269, 2005

WL 8168719, at *2 (S.D. Ohio Feb. 24, 2005).

323 Horton v. Pobjecky, 883 F.3d 941, 944 (7th Cir. 2018) (citing Scott v. Harris, 550 U.S. 372,

378-81 (2007)).

324 Id.

325 Prosper v. Martin, 989 F.3d 1242, 1252-53 (11th Cir. 2021).

326 Id. at 1252.

327 Latits v. Phillips, 878 F.3d 541, 547 (6th Cir. 2017) (citing Godawa v. Byrd, 798 F.3d 457,

462-63 (6th Cir. 2015)).

on video footage that neither “corroborates [n]or contradicts” the only admissible

testimony in the record in order to create a genuine dispute of material fact.328

Instead, the nonmovant must “point to some record evidence—inside or outside the

video—that would allow a reasonable jury to accept [his] interpretation of the

video.”329

The Court has reviewed the video and finds it inconclusive as to the issue of

penetration.330 Doe correctly describes that it “depicts Plaintiff recoiling from

something touching his face,” but it is impossible to discern what that something

is.331 It is also impossible to determine where on Doe’s face the contact occurred.332

No other testimony provides clarity on this point: J.Z. repeatedly stated that he

“d[id]n’t remember if it touched his face fully.”333 B.M. testified that his penis never

touched Doe.334

328 Ames v. City of Tempe, 665 F. Supp. 3d 1013, 1017 (D. Ariz. 2023); see Williams v. City of

York, 967 F.3d 252, 260-61 (3d Cir. 2020) (holding that plaintiff’s denial of testimony that she

did not complain of pain from handcuffs was insufficient to create a genuine dispute of fact

when “her only support for that denial was the dashcam footage” in which “she said nothing

about pain from her handcuffs”).

329 Early ex. rel. Kowalewski v. Oakwood Healthcare, Inc., No. 23-CV-12475, 2026 WL 787526,

at *7 (E.D. Mich. Mar. 20, 2026).

330 Doc. 158-16.

331 Doc. 167 ¶ 98 (emphasis added); see Doc. 158-16. Doe incorrectly states that B.M.’s hands are

“on his hips” at the moment of the apparent contact; his right hand is extended against the wall

or couch for balance, and his left hand cannot be seen. Id.

332 Doc. 158-16.

333 Doc. 158-4 at 42:21-43:2; see id. at 43:3-5 (“Q. Is it possible that he put his genitals on his

face? A. Maybe. I don’t remember.”); id. at 67:21-68:20.

334 Doc. 158 ¶¶ 102-03; Doc. 167 ¶¶ 102-03 (admitting the content of B.M.’s testimony but

“specifically den[ying] that that is the truth”). The Court does not take B.M.’s testimony as

true, but merely notes that it does not provide an independent evidentiary basis for Doe’s

version of events.

With an inconclusive video and no supporting testimony, a factfinder could

only reach Doe’s conclusion about the incident through a series of inferences. The

Court is cognizant of the requirement that it draw all “reasonable inferences” in

Doe’s favor at this stage of the litigation.335 But “[t]he line between reasonable

inferences and impermissible speculation is often ‘thin,’” and properly drawing it

“is critical because ‘an inference based upon a speculation or conjecture does not

create a material factual dispute sufficient to defeat summary judgment.’”336

Reasonable inferences are those that “flow directly from admissible evidence.”337

Based on the video, it would be reasonable to infer that something in the area of

B.M.’s genitals touched some part of Doe’s face. But there is simply no evidence in

the record to reasonably support any secondary and more specific inference about

what either point of contact was.338 One could easily infer that B.M.’s shirt or pants

touched Doe, and it is similarly possible that Doe’s nose or cheek or chin was

touched. Nothing in the record tips the scale in Doe’s direction on either of those

points other than his own testimony, which recursively derives from the video.

335 Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir. 2014) (citing Burton v. Teleflex Inc., 707 F.3d

417, 425 (3d Cir. 2013)).

336 Id. (quoting Fragale & Sons Beverage Co. v. Dill, 760 F.2d 469, 474 (3d Cir. 1985) and

Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 n.12 (3d Cir. 1990)).

337 Id. (citing Anderson, 477 U.S. at 255) (emphasis added).

338 See In re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 860 (3d Cir. 1990) (“[T]he court must ask

whether, on the summary judgment record, reasonable jurors could find facts that

demonstrated, by a preponderance of the evidence, that the nonmoving party is entitled to a

verdict.”); see Carter v. City of Phila., 417 F. Supp. 3d 639, 644 (E.D. Pa. 2019) (quoting

Anderson, 477 U.S. at 248).

“The mere possibility that something occurred in a particular way is not

enough, as a matter of law, for a jury to find it probably happened that way,”339 and

the Court must conclude that any finding as to the particulars of the contact between

B.M. and Doe could only be the result of impermissible speculation. Ultimately, “the

evidence is merely colorable,” and that is not enough to survive summary

judgment.340

Doe has not adduced sufficient evidence to show that the sexual abuse

exception to the PSTCA could apply. Accordingly, WASD is immune from tort

liability, and its motion for summary judgment is granted.

III. CONCLUSION

The Court reiterates its sympathy for Doe. B.M.’s conduct in Myrtle Beach

was wholly inappropriate, and the Court does not doubt that Doe was emotionally

distressed as a result. But the record as developed by Doe’s counsel does not contain

evidence from which a reasonable jury could impose liability for that harm against

a more attenuated party—WASD. Accordingly, WASD’s motion for summary

judgment is granted, and judgment is entered in its favor on all remaining counts.

339 Saldana v. Kmart Corp., 260 F.3d 228, 234-35 (3d Cir. 2001).

340 Anderson, 477 U.S. at 249-50.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge