Kenneth Mann v. Palmerton Area School District

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-2821

_____________

KENNETH MANN,

as parents and co plenary guardians of

the estate of SHELDON MANN, an

incapacitated person, and in their own right;

ROSE MANN, as parents and co plenary

guardians of the estate of SHELDON MANN,

an incapacitated person, and in their own right,

Appellants

v.

PALMERTON AREA SCHOOL DISTRICT;

CHRISTOPHER WALKOWIAK, individually and in his

official capacity as a football coach

_______

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 3-14-cv-00068)

District Judge: Hon. A. Richard Caputo

______________

Argued April 27, 2017

______________

Before: MCKEE, VANASKIE, and RENDELL, Circuit

Judges

(Opinion Filed: September 21, 2017)

Howard J. Bashman, Esq. [Argued]

Law Offices of Howard J. Bashman

2300 Computer Avenue

Suite G-22

Willow Grove, PA 19090

Larry E. Bendesky, Esq.

Adam J. Pantano, Esq.

Robert W. Zimmerman, Esq.

Saltz Mongeluzzi Barrett & Bendesky

1650 Market Street

One Liberty Place, 52nd Floor

Philadelphia, PA 19103

Counsel for Appellants Kenneth Mann and Rose Mann

Thomas A. Specht, Esq. [Argued]

Robin B. Snyder, Esq.

Marshall Dennehey Warner Coleman & Goggin

P.O. Box 3118

Scranton, PA 18505

Counsel for Appellees Palmerton Area School District

and Christopher Walkowiak

________________

OPINION OF THE COURT

2

________________

VANASKIE, Circuit Judge

In November of 2011 Sheldon Mann, a football

player for the Palmerton Area School District, experienced a

hard hit during a practice session. While some players thought

that Sheldon may have been exhibiting concussion-like

symptoms, he was sent back into the practice session by his

Coach, Appellee Chris Walkowiak. After being returned to

practice, Sheldon suffered another violent collision and was

removed from the practice field. He would later be diagnosed

with a traumatic brain injury. In bringing a lawsuit against

Palmerton Area and Walkowiak, Sheldon’s parents asserted

that by requiring Sheldon to continue to practice after

sustaining the first substantial blow, Walkowiak had violated

Sheldon’s constitutional right to bodily integrity under a state-

created danger theory of liability. Also, Palmerton Area, the

Manns alleged, was accountable under Monell v. Department

of Social Services of City of New York, 436 U.S. 658 (1978).

The District Court ruled in favor of Walkowiak and Palmerton

Area on summary judgment, finding that, while there was

ample evidence to suggest that Walkowiak was culpable under

a state-created danger theory of liability, a constitutional right

to protection in the context presented here was not clearly

established in 2011. Accordingly, the District Court granted

Walkowiak qualified immunity and dismissed him from the

lawsuit on that basis. As to Palmerton Area, the District Court

found that the Manns had failed to present evidence sufficient

to warrant a jury trial on the question of whether the school

district had a custom or policy that caused a violation of

Sheldon’s constitutional rights. Accordingly, the District

Court entered judgment in favor of Palmerton Area.

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We agree with the District Court’s conclusions

pertaining to the claims against the football coach:

Walkowiak’s alleged conduct, if proven at trial, would be

sufficient to support a jury verdict in favor of Mann on his

state-created danger claim, but the right in question—to be free

from deliberate exposure to a traumatic brain injury after

exhibiting signs of a concussion in the context of a violent

contact sport—was not clearly established in 2011.

Accordingly, the District Court correctly ruled that Coach

Walkowiak was entitled to qualified immunity. We also agree

with the District Court that the Manns did not present sufficient

evidence to warrant a jury trial on the Monell claim against

Palmerton Area. We will therefore affirm the District Court’s

grant of summary judgment.

I.

Sheldon Mann was a student at Palmerton Area High

School and had participated in its football program starting in

July of 2008. Beginning in 2006, Walkowiak was a team coach

and in 2011 was promoted to Head Coach. After being named

Head Coach, Walkowiak received concussion and safety

training at DeSales University. Because of this training he was

aware of the signs and symptoms of a concussion.

On November 1, 2011, Sheldon, then a 17 year-old

senior, was participating in practice and sustained a hard hit to

his upper body area while playing the outside linebacker

position as part of the “scout” team against the varsity starting

team. 1 Walkowiak claims he did not see the hit, but did

1

The role of a “scout” team in football practice is to play the

role of the opposing team for the school’s next game, with the

4

observed Sheldon “rolling” his shoulder. (JA 509.)

Walkowiak testified at his deposition that he asked Sheldon if

“he was all right,” to which Sheldon replied, “I’m fine,” and

Sheldon continued to participate in the practice session. 2 (Id.)

starting team running plays against anticipated formation of the

opposing team. In this case, Sheldon was playing against the

Palmerton Area’s starting offensive team as they prepared for

their upcoming game against Northern Lehigh High School.

2

Walkowiak indicated that the first hit may have produced

something like a shoulder “stinger,” which he acknowledged

can be “a symptom of [a concussion], depending on where you

were hit.” (JA 1592, 1599). According to the University of

Rochester Medical Center online “Health Encyclopedia:”

Stingers occur when the shoulder and head go in

opposite directions, the head is moved quickly to

one side, or the area above the collarbone is hit.

The injury occurs when a spinal nerve in the neck

is compressed as the head accelerates backward

and the neck is forced toward the affected side.

Stingers may also be caused when the head

accelerates sideways, away from the shoulder,

which overstretches the nerves in the neck and

shoulder region.

University of Rochester Medical Center, Health Encyclopedia,

Put a Stop to Nerve Injuries Called Stingers (2017),

https://www.urmc.rochester.edu/encyclopedia/content.aspx?c

ontenttypeid=1&contentid=2817 (last visited Aug. 24, 2017).

5

In multiple depositions, Sheldon’s teammates

testified that they believed Sheldon was suffering from a

concussion after this hit and were surprised that he was allowed

to continue to practice. One teammate even testified that it was

one of the “bigger hits” he had ever seen. (JA 1657.) Another

teammate testified that after the first hit, Sheldon looked as

though he was dizzy and was stumbling around the field,

symptoms that this teammate believed to be associated with a

concussion. And while not explicitly stating that they believed

that Sheldon Mann was suffering from a concussion, other

coaches testified that they were aware of the symptoms of a

concussion and that standard procedure was to remove a

student suffering from concussion-like symptoms from

practice and have him seen by a trainer.

Approximately twenty plays after Walkowiak

observed Sheldon rolling his shoulder, Sheldon sustained a

second hard hit to the upper body area. Walkowiak walked

over to Sheldon to ascertain his condition. Sheldon told

Walkowiak that “it was the hardest hit he received in playing

football.” (JA 550). After this second hit, Sheldon was

removed from the practice field. Practice ended about 10

minutes later, and Walkowiak then accompanied Sheldon to

the trainer’s room.

At the time of this incident, Palmerton Area had in

place a series of policies and procedures outlined in its 2011-

2012 Athletic Handbook. The Handbook required that any

player suffering from injury or illness be excluded from

participation in the sport until cleared by a physician, and

explicitly stated that a student suspected to be injured must be

removed from play and sent to the athletic trainer.

6

As a result of the violent hits Sheldon sustained on

November 1, 2011, he suffered a traumatic brain injury and his

parents have been appointed his guardians. The Manns

brought this lawsuit, asserting that Palmerton Area and

Walkowiak (together “Appellees”) had deprived Sheldon of

this constitutionally-protected right to bodily integrity.

Specifically, they argued that Sheldon’s constitutional rights

were violated as a result of Walkowiak’s exercise of authority

in telling Sheldon to continue participating in football practice

after sustaining a hit and exhibiting signs of a concussion.

Plaintiffs also claimed that Sheldon’s constitutional rights were

violated as a result of Palmerton Area’s failure to assure that

injured student-athletes were medically cleared to resume

participation in the sport, failure to enforce and enact proper

concussion policies, and failure to train the coaches on a safety

protocol for head injuries. The parties engaged in discovery,

and on February 1, 2016, Appellees moved for summary

judgment, arguing that there was insufficient evidence to

establish a state-created danger claim against Walkowiak and

a municipal liability claim against Palmerton Area.

Walkowiak also asserted a right to qualified immunity. On

June 2, 2016, the District Court granted summary judgment in

favor of defendants Walkowiak and Palmerton Area. This

appeal followed.

II.

The District Court possessed subject–matter

jurisdiction pursuant to 28 U.S.C. §§1331 and 1343. We

exercise jurisdiction over this appeal pursuant to 28 U.S.C.

§1291. Our review of an order granting summary judgment is

plenary. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).

Summary judgment is appropriate when “the pleadings,

depositions, answers to interrogatories, and admissions on file,

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together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Wright v.

Corning, 679 F.3d 101, 105 (3d Cir. 2012) (quoting Orsatti v.

N.J. State Police, 71 F.3d 480, 482 (3d Cir. 1995)).

III.

State actors sued in their individual capacity under

Section 1983 are entitled to qualified immunity “insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

When a qualified immunity defense is asserted, a court must

determine (1) whether the facts alleged by the plaintiff make

out a violation of a constitutional right, and (2) whether that

right was clearly established at the time of the injury. Yarris v.

Cty. of Del., 465 F.3d 129, 140-41 (3d Cir. 2006) (internal

citation omitted). In this case, the District Court determined

that the first prong of the qualified immunity inquiry was

satisfied: the Manns had presented sufficient evidence to

warrant a jury trial on the question of whether Walkowiak had

violated Sheldon’s constitutional rights. It is to this part of the

qualified immunity test that we first turn our attention.

A.

The Manns’ state-created danger claim derives from

the Fourteenth Amendment Due Process Clause, which

provides that “[n]o state shall . . . deprive any person of life,

liberty, or property without due process of law[.]” U.S. Const.

amend XIV, § 1. We have recognized a successful state-

created danger claim when a plaintiff pleads that

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(1) the harm ultimately caused [by the state

actor’s conduct] was foreseeable and fairly

direct; (2) a state actor acted with a degree of

culpability that shocks the conscience; (3) a

relationship between the state and the plaintiff

existed such that the plaintiff was a foreseeable

victim of the defendant's acts, or a member of a

discrete class of persons subjected to the

potential harm brought about by the state's

actions, as opposed to a member of the public in

general; and (4) a state actor affirmatively used

his or her authority in a way that created a danger

to the citizen or that rendered the citizen more

vulnerable to danger than had the state not acted

at all.

Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006)

(internal quotation marks and footnotes omitted).

The first element of a state-created danger claim

requires plaintiffs to establish that the harm sustained as a

result of the defendant’s conduct was “foreseeable and fairly

direct.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d

Cir. 2008). More specifically, this “require[s] a plaintiff to

allege an awareness on the part of the state actors that rises to

[the] level of actual knowledge or an awareness of risk that is

sufficiently concrete to put the actors on notice of the harm.”

Id. at 238.

In his deposition, Walkowiak testified that he was

aware of the symptoms of a concussion and had been trained

in how to identify one. Walkowiak also testified that he was

trained to err on the side of caution when it came to removing

players who may be suffering concussion-like symptoms.

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After Sheldon experienced the first hit, Walkowiak admitted

that Sheldon’s hit could have been characterized as a “stinger”

and that this could be a symptom of a concussion. (JA 1592;

1599).

The District Court held that this evidence would be

sufficient to support a jury finding that “Sheldon’s injury was

a ‘foreseeable and fairly direct’ harm” of being allowed to

continue to practice after sustaining the first big hit. Mann v.

Palmerton Area Sch. Dist., 189 F. Supp. 3d 467, 475 (M.D. Pa.

2016). We agree.

The District Court also held that the Manns had

satisfied the second element of the state-created danger test—

that Walkowiak acted with a degree of culpability that shocked

the conscience. We have observed that “[t]he exact degree of

wrongfulness necessary to reach the ‘conscience-shocking’

level depends upon the circumstances of a particular case.”

Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005)

(quoting Miller v. City of Philadelphia, 174 F.3d 368, 375 (3d

Cir. 1999)). If the circumstances are highly pressurized, it is

necessary to show intentional harm by the state actor; however,

if the state actor has the benefit of deliberation, then all the

plaintiff needs to show is deliberate indifference. Id.

Moreover, in cases “involving something less urgent than a

‘split-second’ decision but more urgent than an ‘unhurried

judgment,’” the relevant inquiry is whether the state actor

“consciously disregarded a great risk of harm,” with the

possibility that “actual knowledge of the risk may not be

necessary where the risk is ‘obvious.’” Sanford v. Stiles, 456

F.3d 298, 310 (3d Cir. 2006).

The District Court correctly concluded that there was

no indication that this was a highly pressurized environment

10

for which a showing of intent to harm would be necessary.

Instead, the Manns only needed to prove deliberate

indifference to the safety of a player in the circumstances

presented here to satisfy the conscience-shocking element of

their claim. (JA 12).

In Walkowiak’s deposition testimony, he stated that

he observed Sheldon as exhibiting the signs of a possible

“stinger,” a term that he acknowledged is associated with a

concussion. He also testified, however, that he assumed the hit

was not a substantial one because he did not actually see it.

Contradicting Walkowiak’s testimony is the testimony of an

assistant coach, who, although absent from practice the day

that Sheldon was injured, stated that Walkowiak told him that

Sheldon experienced two hard hits. Walkowiak’s boss,

Athletic Director Andrew Remsing, also testified that

Walkowiak could be considered to have failed to follow school

policy for injuries by allowing Sheldon to remain if he was

suffering concussive symptoms. Finally, the Manns presented

testimony through other players that after Sheldon was first hit,

Walkowiak instructed him to continue practicing. Although

Walkowiak disclaimed knowledge of the first big hit, the

Manns adduced sufficient evidence to call this disclaimer into

doubt. Thus, for the purposes of the summary judgment ruling,

it was appropriate to infer that that Walkowiak was aware that

Sheldon had sustained a substantial blow and exhibited signs

consistent with having sustained a concussion. Under these

circumstances, a jury could find that, by failing to remove

Sheldon from play and requiring him to continue to practice,

Walkowiak was deliberately indifferent to the risk posed by

sustaining a second substantial blow to the head.

To establish the third element of a state-created

danger claim the Manns were required to prove that “a

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relationship between the state and [Sheldon] existed such that

[Sheldon] was a foreseeable victim of the defendant’s acts.”

Sanford, 456 F.3d at 304. This element was not challenged by

Appellees. The bar for proving this element is not terribly

high, as we have previously held that a relationship can exist

where a plaintiff is a member of a group that is subject to

potential harm brought about by the state’s actions. Philips v.

Cty. of Allegheny, 515 F.3d 224, 242 (3d Cir. 2008). It is clear

that a student-athlete stands in such a relationship with the

coaching staff.

The final element of a state-created danger claim

requires a showing that Walkowiak affirmatively used his

authority in a way that created a danger to Sheldon or rendered

him more vulnerable to danger. Bright, 443 F.3d at 281. The

parties dispute whether Walkowiak took an affirmative act that

put Sheldon in danger or made him more vulnerable to risk, but

we find the District Court again to be correct in assessing that

a reasonable juror could find this element of Sheldon’s claim

was also satisfied. If a jury concluded that Walkowiak was

aware of the first blow to Sheldon’s head and observed signs

of a concussion, the jury could conclude that Walkowiak used

his authority in a way that rendered Sheldon more vulnerable

to harm by sending him back into the practice session.

In summary, we hold that there exists a relationship

between a student-athlete and coach at a state-sponsored

school such that the coach may be held liable where the coach

requires a player, showing signs of a concussion, to continue

to be exposed to violent hits. Stated otherwise, we hold that an

injured student-athlete participating in a contact sport has a

constitutional right to be protected from further harm, and that

a state actor violates this right when the injured student-athlete

is required to be exposed to a risk of harm by continuing to

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practice or compete. We now turn to the difficult question of

whether this right was clearly established in November of

2011.

B.

Clearly established law for purposes of qualified

immunity means that

[t]he contours of the right must be sufficiently

clear that a reasonable official would understand

that what he is doing violates that right. This is

not to say that an official action is protected by

qualified immunity unless the very action in

question has previously been held unlawful, but

it is to say that in the light of pre-existing law the

unlawfulness must be apparent.

Wilson v. Layne, 526 U.S. 603, 615 (1999). In addressing the

clearly established prong of the qualified immunity inquiry, we

must define the right allegedly violated at the appropriate level

of specificity. Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir.

2012) (internal quotations omitted). As we explained in Spady

v. Bethlehem Area School District, 800 F.3d 633, 638 (3d Cir.

2015), we must “frame the right at issue in a more

particularized, and hence more relevant, sense, in light of the

case’s specific context, not as a broad general proposition.”

(Internal quotations omitted.)

In Spady, a child suffered “dry drowning” after

participating in a mandatory swim class run by the gym

teacher. Id. at 635. We granted qualified immunity to the gym

teacher, concluding that a child did not have a clearly

established right to dry-drowning intervention protocols while

13

participating in gym class. Id. at 641. In arriving at this

conclusion, we observed that the dangers of dry drowning were

not so well known and obvious that a swim teacher should be

expected to take extra precautions to guard against this rare

phenomenon. Id.

In this case, the specific context is a football player

fully clothed in protective gear, including a helmet, who

experiences a violent blow, shows signs of a concussion, and

is required to continue to engage in the same activity that

caused the first substantial hit. We are aware of no appellate

case decided prior to November of 2011 that held that a coach

violates the student’s constitutional rights by requiring the

student to continue to play in these circumstances.

Our conclusion in Spady rested on the fact that

“courts that have found colorable constitutional violations in

school-athletic settings did so where state actors engaged in

patently egregious and intentional misconduct.” 800 F.3d at

641. Compare Neal ex rel. Neal v. Fulton Cty. Bd. of Educ.

229 F.3d 1069, 1076 (11th Cir. 2000) (holding that a student

athlete had made out “a violation of his right under the

Fourteenth Amendment to be free from excessive corporal

punishment,” after being hit with a blunt object by his coach)

and Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246,

252 (2d Cir. 2001) (no qualified immunity where gym teacher

picked up a student by his throat and rammed his head into

bleachers and a fuse box); with Davis v. Carter, 555 F.3d 979,

984 (11th Cir. 2009) (no constitutional violation stemming

from student-athlete's death after rigorous football practice).

No case has been called to our attention where a state-created

danger was established after a student-athlete was required to

continue to compete after sustaining a substantial hit, the

results of which were observed by the coach and could

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potentially signal a head injury, yet where the student-athlete

told the coach that he was fine to continue to play, all of which

is the evidence in this case. And while not binding, we

similarly held as recently as 2013 in a non-precedential opinion

that a cheerleader who suffered a serious injury due to a

coach’s decision to try out a new stunt without proper

protective matting in place, did not violate a clearly established

right held by the athlete. See Hinterberger v. Iroquois Sch.

Dist., 548 F. App'x 50, 54 (3d Cir. 2013).

The Manns rely heavily on L.R. v. School District of

Philadelphia, 836 F.3d 235 (3d Cir. 2016). That case

presented the question of whether a kindergarten teacher who

released a student to a stranger who then sexually abused the

child was entitled to qualified immunity. Id. at 239-240. We

reasoned that the teacher was not entitled to qualified immunity

because the right in question—“an individual’s right not to be

removed from a safe environment and placed into one in which

it is clear that harm is likely to occur, particularly when the

individual may, due to youth or other factors, be especially

vulnerable to the risk of harm”—was clearly established at the

time of the incident. Id. at 249. The Manns maintain that this

same right is at issue in the case at hand. And while L.R. dealt

with an incident that occurred in January of 2013, we relied on

precedent that predated November of 2011. Specifically, L.R.

relied heavily on our 1996 decision in Kneipp v. Tedder, 95

F.3d 1199 (3d Cir. 1996), which involved a police officer

abandoning a plainly inebriated woman on her walk home who

then passed out and suffered a serious injury. Id. at 1203.

Kneipp and L.R. are not dispositive here. L.R.

established liability based on the fact that the risk of harm to

the child would be patently obvious to any adult in that

situation. Allowing a kindergartener to leave the classroom

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with a stranger plainly exposed the vulnerable kindergartener

to a substantial risk of grievous harm. Similarly, Kneipp dealt

with a similarly vulnerable woman who was so inebriated that

she could not even stand or follow simple instructions. Not

only did the police officer detain her and send her male

companion away, but the officer himself then abandoned her

so that she had to walk home alone. Id. at 1201-03. Again, the

risk of harm in abandoning someone who is clearly exhibiting

signs of a physical impairment like severe inebriation

demonstrates such deliberate indifference to the unsafe

situation created by the state actor that imposing liability on the

state actor is appropriate.

By way of contrast, in November of 2011 it was not

so plainly obvious that that requiring a student-athlete, fully

clothed in protective gear, to continue to participate in practice

after sustaining a violent hit and exhibiting concussion

symptoms implicated the student athlete’s constitutional

rights. The touchstone of qualified immunity analysis is

whether there was “sufficient precedent at the time of action,

factually similar to the plaintiff's allegations, to put [the]

defendant on notice that his or her conduct is constitutionally

prohibited.” Mammaro v. New Jersey Div. of Child Prot. &

Permanency, 814 F.3d 164, 169 (3d Cir. 2016) (quoting

McLaughlin v. Watson, 271 F.3d 566, 572 (3d Cir. 2001)). We

look first to the Supreme Court’s cases. Even if support is

lacking there, a “robust consensus of cases of persuasive

authority in the Court[s] of Appeals could clearly establish a

right for purposes of qualified immunity.” L.R., 836 F.3d at

248 (quoting Mammaro, 814 F.3d at 169)). Here, no case from

this Court or any of our sister Courts of Appeals, let alone a

Supreme Court case, has applied the principles we elucidated

in L.R. and Kneipp to the school athletic context. We therefore

16

agree with the District Court that the right at issue here was not

clearly established in November of 2011.

“When properly applied, [qualified immunity]

protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Ashcroft v. Al-Kidd, 563 U.S.

731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341

(1986)). Given the state of the law in 2011, it cannot be said

that Walkowiak was “plainly incompetent” in sending Sheldon

in to continue to practice after he saw Sheldon rolling his

shoulder and being told by Sheldon, “I’m fine.” (JA 509). Nor

is there any basis for concluding that he knowingly violated

Sheldon’s constitutional rights. Accordingly, we will affirm

the District Court’s qualified immunity ruling.

IV.

Finally, we must address the Manns’ Monell claim

against Palmerton Area. Local governments, such as school

districts, cannot be held liable under §1983 for the acts of their

employees. Instead, local governments may be found liable

under §1983 for “their own illegal acts.” Connick v.

Thompson, 563 U.S. 51, 60 (2011). A municipality is liable

under §1983 when a plaintiff can demonstrate that the

municipality itself, through the implementation of a municipal

policy or custom, causes a constitutional violation.

The Manns argue that coaches were not adequately

trained on concussion recognition and protection, and had they

been, Sheldon may not have suffered his severe injury.

Specifically, they argue that the school's generic handbook for

dealing with injured student-athletes failed to provide a

protocol for dealing specifically with concussions. They

submit national news articles from 2011 that reported on the

17

risk of concussions in football as well as manuals from

neighboring school districts that had implemented concussion

policies as of November 2011. They also rely on Thomas v.

Cumberland County, 749 F.3d 217, 219 (3d Cir. 2014), in

which we assessed the significance of an expert’s report

establishing the need for training corrections officers to

address and avoid inmate–on–inmate violence. We held that

because the evidence showed that the municipality failed to

train its employees to handle recurring acts of violence, the

District Court should not have precluded the factual issues

from going to a jury. Id. at 225-26. Unlike Thomas, the Manns

cite no evidence that would suggest deliberate indifference to

a pattern of recurring injuries. See Berg v. County of

Al1egheny, 219 F.3d 261, 276 (3d Cir. 2000) (“Failure to . . .

train municipal employees can ordinarily be considered

deliberate indifference only where the failure has caused a

pattern of violations”). “Without notice that a course of

training is deficient in a particular respect, decisionmakers can

hardly be said to have deliberately chosen a training program

that will cause violations of constitutional rights.” Connick,

563 U.S. at 62.

In this case there is no evidence of a pattern of

recurring head injuries in the Palmerton Area football program.

Nor is there evidence that Walkowiak or any other member of

the coaching staff deliberately exposed injured players to the

continuing risk of harm that playing football poses. In the

context of the Monell claim, it is also significant that the

Pennsylvania General Assembly did not pass legislation that

mandated training for coaches to prevent concussions until

November 9, 2011, and the legislation did not even go into

effect until July of 2012. See Safety in Youth Sports Act, 24

Pa. Cons. Stat. §§ 5321–5323. Under these circumstances

18

there is no basis for concluding that a policy or custom of

Palmerton Area or its failure to provide more intense

concussion training to its coaches caused a violation of

Sheldon’s constitutional rights.

V.

For the foregoing reasons we will affirm the District

Court’s order, entered June 2, 2016, granting summary

judgment in favor of Walkowiak and Palmerton Area.

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