Appendix — Smith v. Stoneking

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IN THE SUPREME COURT

JOSEPH F. SPANIOL, JR.

OF THE UNITED STATES CLERK*

——“

October Term, 1989

FREDERICK SMITH, in his individual and official

capacity as Principal Bradford Area High School;

RICHARD MILLER, in his individual and official

capacity as assistant principal of the Bradford

High School; and FREDERICK SHUEY, in his

individual and official capacity as Superintendent

of the Bradford Area School District

Petitioners

KATHLEEN STONEKING

Respondent

On Writ of Certiorari

to the United States Court of

Appeals for the Third Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Kenneth D. Chestek

Murphy, Taylor, Trout & Chestek, P.C.

$18 State Street

Erie, Pennsylvania 16501

(814) 459-0234

James D. McDonald, Jr.

The McDonald Group

456 West Sixth Street

Erie, Pennsylvania 16507

(814) 456-5318

Attorneys for Petitioners

TABLE OF CONTENTS

Proceedings in Smith v. Stoneking

Opinion and Order, U.S. Court of Appeals

for Third Circuit, No. 87-3637, August

16, 1989 (on remand).

Order Sur Petition for Rehearing, U.S.

Court of Appeals for Third Circuit,

No. 87-3637, September 12, 1989.

Complaint, Stoneking v. Bradford Area

Schoo! District, et al. No. 87-63

E, March 24, 1987.

Answer to Complaint, Stoneking v.

Bradford Area School District, et al.

No. 87-63 E, June 23, 1987.

Opinion and Order, U.S. District for

Western District of Pennsylvania, No.

87-63 E., August 28, 1988, reported at

667 F.Supp. 1088 (1987)

Order, Denial of Defendants’ Petition

to Appeal Issue of Statute of

Limitations, U.S. Court of Appeals for

Third Circuit, No. 87-8061, October

21, 1987. 117

Opinion of U.S. Court of Appeals for

Third Circuit, No. 87-3637, September ;

12, 1988. 121

Order of Supreme Court of the United

States, No. 88-802, March 6, 1989 151

Proceedings in Smith v. Sowers

Opinion and Order, U.S. District for

Western District of Pennsylvania, No.

88-57 E., August 29, 1988, reported at

694 F.Supp. 125 155

Order of U.S. Court of Appeals for

Third Circuit, No. 88-3640, January

31, 1989 197

Order of Supreme Court of the United

States, No. 88-1350, April 3, 1989 203

-ii-

L. Order of U.S. Court of Appeals for

Third Circuit, No. 88-3640,

September 28, 1989 207

A. Opinion and Order, U.S. Court of Appeals

for Third Circuit, No. 87-3637, August 16,

1989 (on remand)

Stoneking v. Bradford Area School District, et al.

Filed: August 16,1989

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 87-3637

KATHLEEN STONEKING

BRADFORD AREA SCHOOL DISTRICT, FREDERICK

SMITH, in his individual and official capacity as

principal of the Bradford Area High School;

RICHARD MILLER, in his individual and official

capacity as assistant principal of the Bradford Area

High School; and FREDERICK SHUEY, in his

individual and official capacity as Superintendent of

the Bradford Area School District,

Frederick Smith, Richard Miller, and Frederick

Shuey,

Appellants

On Appeal from the United States District

Court for the Western District

of Pennsylvania (ERIE)

(D.C. Civil No. 87-00063 E)

Argued February 3, 1988

Decided September 12, 1988

Certiorari Granted March 6, 1989

On Remand from the Supreme Court

of the United States March 6, 1989

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Argued on Remand from the Supreme Court

May 18, 1989

Before: SLOVITER, STAPLETON, and

MANSMANN, Circuit Judges

(Opinion filed August 16, 1989)

Kenneth D. Chestek (Argued)

Murphy, Taylor & Adams, P.C.

Erie, PA 16501

James D. McDonald, Jr.

McDonald Law Group

Erie, PA 16507

Attorneys for Appellants

Wallace J. Knox

Sean J. McLaughlin

Richard A. Lanzillo

Knox McLaughlin Gornall & Sennett, P.C.

Erie, PA 16501

Deborah W. Babcox (Argued)

Pecora Duke & Babcox

Bradford, PA 16701

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

This case is before us on remand from the United

States Supreme Court which vacated our judgment

and remanded for further consideration in light of

DeShaney v. Winnebago County Department of

Social Services, 109 S. Ct. 998 (1989). This case was

originally heard on the appeal of the individual

defendants from the denial by the district court of

their motion for summary judgment on the grounds of

qualified immunity. We affirmed, rejecting the

defendants’ contention that they were not alleged to

have violated plaintiff's clearly established right.

Stoneking v. Bradford Area School Dist., 856 F.2d

594 (3d Cir. 1988) (Stoneking I), vacated sub nom.

Smith v. Stoneking, 109 S. Ct. 1333 (1989). It is now

incumbent upon us to reconsider that decision."

Kathleen Stoneking filed suit under 42 U.S.C.

§ 1983 against the Bradford Area School District,

Frederick Smith, the principal of the Bradford Area

High School, Richard Miller, the assistant principal,

and Frederick Shuey, the superintendent of the

School District. Each of the individual defendants was

sued in both his individual and official capacity.

Stoneking prayed for relief in the form of

compensatory and punitive damages against Shuey,

Smith, Miller and the School District.

Stoneking’s complaint alleged that Edward

Wright, a School District employee who was the Band

Director at Bradford High, used physical force, threats

of reprisal, intimidation and coercion to sexually

abuse and harass her and to force her to engage in

various sexual acts beginning October 1980, when

she was a high school student, and continuing

through Stoneking’s sophomore, junior and senior

1. Appellants argue that the fact that the Supreme Court has

remanded this case for reconsideration in light of DeShaney

“strongly suggest{s!" that DeShaney is indistinguishable and

controls the outcome of this case. Appellants’ Supplemental Brief

on Remand at 8. We know of no authority for the proposition that

a direction that we give “further consideration” to a case is in

effect a direction as to the outcome. If the Supreme Court wished

to direct an outcome. we are confident that it would have so

stated.

years until her graduation in 1983 and thereafter

until 1985. Defendants concede that some of these

acts occurred in the band room at the high school and

on trips for band functions, as well as in Wright's car

and in his house while Stoneking babysat or after he

gave her a music lesson. Wright was ultimately

prosecuted for various sex-related crimes and pled

guilty.

Stoneking averred that in 1979, before Wright's

actions toward her, another female member of the

band informed Smith that Wright had attempted to

rape or sexually assault her; that Smith, in his

capacity as principal, maintained a personal file on

Wright which contained reports of complaints of

sexual misconduct by female students in the band

program; that Smith announced to Wright a “policy”

with respect to his contact with female students

under which he was to have no further “one on one”

contacts with female band members; that Smith,

Miller and Shuey “failed to take any action to protect

the health, safety and welfare of the female student

body” and Stoneking. App. at 10; that Miller and

Shuey were also on notice of the complaints of sexual

misconduct by Wright and of the policy adopted by

Smith under which Wright was to have no one-on-one

conduct with female band members, or, if Shuey was

not aware, it was because of “the defective and

deficient policies and customs” of the School District,

App. at 11; and that Wright threatened his victims

that if they reported his actions they would incur “loss

of parental support, the esteem of friends and the

dissolution of the school band which had become .. .

a significant institution to the School District and the

community in general,” App. at 12.

After discovery in this case and in cases filed by

other students who alleged they were also sexually

abused by Wright. defendants moved for surmmary

judgment in the actions against them in their

individual capacities on the basis of qualified

immunity. As we explained in our earlier opinion,

defendants contended that “no clearly settled law

existed, either at the time of the incidents complained

of in the plaintiffs Complaint or as of the present

time, which would cause a reasonable person to know

either-of the constitutional right which allegediy has

been violated or that the alleged acts or failure to act

on the part of the individual defendants would lead to

a violation of that constitutional right.” See 856 F.2d

at 596.

The district court denied the defendants’ motion

for summary judgment, holding that there was

evidence from which a jury could conclude that

defendants were reckless in their handling of an

incident of abuse which had been reported to Smith

in 1979, in their failure to investigate other reported

incidents involving Wright and other female students,

and in their attempts to rermedy and/or rectify the

problems involving Wright. Stoneking v. Bradford

Area School Dist., 667 F. Supp. 1088, 1098 (W.D. Pa.

1987).

On appeal, defendants argued that they were

entitled to qualified immunity because they had no

clearly established duty to protect Stoneking, and

therefore there was no basis upon which a violation of

42 U.S.C. § 1983 could be predicated. We rejected that

contention, holding that under the applicable state

law a special relationship arose between the school

officials and students entrusted to their care, and that

the Pennsylvania child abuse reporting and in loco

parentis statutes, coupled with the broad common

law duty of officials to students, evidenced a desire on

the part of the state to provide affirmative protection

to students. 856 F.2d at 603. Defendants now argue

that the Supreme Court's decision in DeShaney

controls our decision and mandates a holding that the

school authorities owed no constitutional duty of

protection to Stoneking.

In DeShaney, the Court heid that a minor could

not maintain an action against Winnebago County, its

Department of Social Services, and various individual

employees of the Department for injuries he received

at the hands of his father, even though the county

caseworker returned DeShaney to the father’s custody

and allegedly knew or should have known of the risk

of violence to him at his father’s hands. The Court's

analysis was straightforward: it held that “a State's

failure to protect an individual against private

violence simply does not constitute a violation of the

Due Process Clause.” 109 S. Ct. at 1004. It rejected

the analysis adopted by, inter alia, this court in

Estate of Bailey by Oare v. County of York, 768 F.2d

503, 510-11 (3d Cir. 1985), that under similar

circumstances a “special relationship” arose between

the state and the child which imposed an affirmative

constitutional duty to provide adequate protection.

The Court held that because there was no

constitutional duty on the state to provide its citizens

with particular protective services, “the State cannot

be held liable under the [Due Process] Clause for

injuries that could have been averted had it chosen to

provide them.” 109 S. Ct. 1004 (footnote omitted). It

distinguished DeShaney’s situation from those

“limited circumstances [in which] the Constitution

imposes upon the State affirmative duties of care and

protection with respect to particular individuals.” 109

S. Ct. at 1004-05. It stated that prior cases stood only

for the proposition that, “when the State takes a

person into its custody and holds him there against

his will, the Constitution imposes upon it a

corresponding duty to assume some responsibility for

his safety and general well-being,” 109 S. Ct. at

1005-06 (citing Youngberg v. Romeo, 457 U.S. 307,

317 (1982) (state must provide involuntarily

committed mental patients with services necessary to

insure their reasonable safety), and Estelle v.

Gamble, 429 U.S. 97, 103-04 (1976) (prison

authorities must treat medical needs of an inmate)).

In light of the Supreme Court's discussion in

DeShaney distinguishing between affirmative duties

of care and protection imposed by a state on its agents

and constitutional duties to protect, we can no longer

rely on the statutory and common law duties imposed

in Pennsylvania on school officials as the basis of a

duty to protect students from harm occurring as a

result of a third person.

Arguably, our earlier discussion noting that

“students are in what may be viewed as functional

custody of the school authorities” during their

presence at school because they are required to attend

under Pennsylvania law, see 856 F.2d at 601 (citing

24 Pa. Stat. Ann. § 13-1327 (Purdon Supp. 1988)), is

not inconsistent with the DeShaney opinion. In

DeShaney, the Court stated that “[hjad the State by

the affirmative exercise of its power removed Joshua

from free society and placed him in a foster home

operated by its agents, we might have a situation

sufficiently analogous to incarceration’ or

institutionalization to give rise to an affirmative duty

to protect.’ 109 S. Ct. at 1006 n.9. The Court then

explicitly referred to court of appeals cases holding, by

analogy to Estelle and Youngberg, “that the State may

be held liable under the Due Process Clause for failing

to protect children in foster homes from mistreatment

at the hands of their foster parents,” but expressed no

view on the validity of this analogy. Id. (citing Doe v.

New York City Dept. of Social Services, 649 F.2d 134,

141-42 (2d Cir. 1981); Taylor ex rel. Walker v.

Ledbetter, 818 F.2d 791, 794-97 (11th Cir. 1987) (en —

banc}, cert. denied, 109 S. Ct. 1337 (1989)). oat

The situation of school childrén, compelled by

state law te-atténd school, who are physically

- mistreated by School District employees, may not be

dissimilar to that of children in foster homes

mistreated by their foster parents. However, we prefer

not to rest our decision again on an affirmative duty

to protect such students in this situation because the

uncertainty of the law in this respect may cause

further delay. We are advised that the trial of this case

against the School District and the defendants in

their official capacities has been held up during the

pendency of the appeal by defendants on the denial of

their motion for summary judgment on the claims

against them in their individual capacities. Therefore,

we believe it is more expedient to decide whether

plaintiffs claim before us would withstand summary

judgment even if we could not rely on the special

relationship which the Supreme Court's footnote in

DeShaney may still leave as a viable basis for liability.

II.

The principal distinction between DeShaney’s

situation and that of Stoneking is that DeShaney’s

injuries resulted at the hands of a private actor,

whereas Stoneking’s resulted from the actions of a

state employee. The significance of the status of the

perpetrator as a private actor rather than as a state

official is referred to on numerous occasions in the

DeShaney opinion. Not only is the Court's statement

of the holding in terms of the identity of the actor (“a

State's failure to protect an individual against private

violence simply does not constitute a violation of the

Due Process Clause,” id. at 1004), but the analytic

steps taken by the Court to reach that holding

continuously take note of the status of the person

am “alien

‘responsible for the injuries. See, e.g., “nothing in the

language of the Due Process Clause itself requires the

state to protect the life, liberty and property of its

citizens against invasion by private actors; the Due

Process Clause “forbids the State itself to deprive

individuals of life, liberty or property without ‘due

process of law,’ but its language cannot fairly be

extended to impose an affirmative obligation on the

State to insure that those interests do not come to

harm through other means;” the purpose of the Due

Process Clause “was to protect the people fromm the

State, not to insure that the State protected them

from each other.” 109 S. Ct. at 1003 (emphasis

added).

Unlike DeShaney’s father, who was referred to

throughout the DeShaney opinion as a private third

party, Wright was a school district employee subject to

defendants’ immediate control. In fact, many of

Wright's interactions with Stoneking occurred in the

course of his performance of his official

responsibilities, such as during school-sponsored

events and trips, and sometimes on school property.

It is immaterial for this purpose whether Wright's

sexual abuse is viewed as attributable to the state.

This consideration would be relevant had Stoneking

sued Wright under section 1983, alleging that he

acted under color of state law. She did not. Instead,

the suit is against the School District and its

supervisory officials, and they were incontestably

acting under color of state law.

Defendants argue that Stoneking’s emphasis on

the fact that Wright was an agent and employee of the

school district is merely an assertion of “supervisory

liability”, or respondeat superior, which cannot be a

basis of liability. See Monell v. New York City Dep't of

Social Servs., 436 U.S. 658, 691 (1978). However,

this is not a case in which Stoneking alleges that

ahiu

defendants are vicariously liable because of Wright's

actions. Instead, she argues defendants are liable

because of their own actions in adopting and

maintaining a practice, custom or policy of reckless

indifference to instances of known or suspected

sexual abuse of students by teachers, in concealing

complaints of abuse, and in discouraging students’

complaints about such conduct. She argues that

these practices, customs or policies created a climate

which, at a minimum, facilitated sexual abuse of

students by teachers in general, and that there was a

causal relationship between these practices, customs

or policies and the repeated sexual assaults against

her by Wright. Thus, this is not respondeat superior

in another guise, but an assertion of liability against

the individual defendants based on theories

recognized in a line of Supreme Court cases.

Nothing in DeShaney suggests that state officials

may escape liability arising from their policies

maintained in deliberate indifference to actions taken

by their subordinates. As the Supreme Court recently

reconfirmed in City of Canton v. Harris, 109 S. Ct.

1197, 1205 (1989), a municipality may be liable under

section 1983 where its policymakers made “a

deliberate choice to follow a course of action . . . from

among various alternatives,” (quoting Pembauer uv.

Cincinnati, 475 U.S. 469, 483-84 (1986) (plurality

op.)), and the policy chosen “reflects deliberate

indifference to the constitutional rights of [the city’s]

inhabitants,” 109 S. Ct. at 1206. See also Monell,

436 U.S. at 690-91 (1978) (government body may be

sued for constitutional deprivations visited pursuant

to governmental “custom”, “practices” or “usage”).

This is an independent basis for liability

previously pled and preserved by Stoneking which is

unrelated to the issue decided in DeShaney. Liability

of municipal policymakers for policies or customs

chosen or recklessly maintained is not dependent

upon the existence of a “special relationship” between

the municipal officials and the individuals harmed.

See Bordonaro v. McLeod, 871 F.2d 1151 (lst Cir.

1989), petition for cert. filed, 57 U.S.L.W. 3843 (U.S.

June 18, 1989) (No. 88-2036) (liability against police

chief and mayor for unauthorized action of police

officers in forcing entry into bar and beating patrons

based on the police officials’ constructive knowledge of

custom and deficient policies in recruitment and

training).

Thus, to the extent that the Supreme Court's

remand of this case in light of DeShaney required us

to consider whether Stoneking still may maintain a

viable section 1983 claim if there is no predicate duty

by defendants to protect her, we hold that she may

because she has also alleged that defendants, with

deliberate indifference to the consequences,

established and maintained a policy, practice or

custom which directly caused her constitutional

harm.

If.

Defendants argue that Wright cannot be

considered to have been acting pursuant to any

School District policy and that it is outlandish and

scandalous of Stoneking to suggest “that the school

officials actually wanted and encouraged teachers to

sexually abuse their students.”’ Appellants’

Supplemental Brief on Remand at 25. Stoneking did

not, and need not, so suggest. As the Supreme Court

stated in Canton, “liJt may seem contrary to common

sense to assert that a municipality will actually have a

policy of not taking reasonable steps to train its

employees.” 109 S. Ct. at 1205. Nonetheless, it

continued, if the need for more or different training is

so obvious, and the inadequacy so likely to result in

the violation of constitutional rights, “the

policymakers of the city can reasonably be said to have

been deliberately indifferent to the need.” Id. It

continued, “[iJn that event, the failure to provide

proper training may fairly be said to represent a policy

for which the city is responsible, and for which the

city may be held liable if it actually causes injury.” Id.

In any event, appellants’ argument that there was

no policy, custom or practice is a merits issue, which

we cannot resolve on this interlocutory appeal. If there

are contested issues of material fact, they must go to

the jury. See Mitchell v. Forsyth, 472 U.S. 511, 527

(1985) (“claim of immunity is conceptually distinct

from the merits of the plaintiffs claim”); Turpin v.

Mailet, 619 F.2d 196, 201 (2d Cir.), cert. denied, 449

U.S. 1016 (1980) (“The issue of authorization,

approval or encouragement is generally one of fact,

not law.”). As we suggested in Chinchello v. Fenton,

805 F.2d 126, 130-31 (3d Cir. 1986), the denial of a

motion for summary judgment claiming qualified

immunity based on the “I didn't do it” defense will not

be immediately appealable under Mitchell.

Nonetheless, we believe that we must decide whether

Stoneking has produced evidence sufficient to create a

material issue of fact about the existence of a custom,

practice or policy of deliberate indifference to

misconduct by teachers, since that is directly related

to the ‘‘fact-specific’’ inquiry into the qualified

immunity defense asserted by defendants. Anderson,

483 U.S. at 641.

IV.

The principles applicable to defendants’ assertion

of qualified immunity have not changed to any

significant degree since our opinion in Stoneking I. It

is the defendants’ burden to establish that they are

entitled to such immunity. Ryan v. Burlington

itis

County, 860 F.2d 1199, 1204 n.9 (3d Cir. 1988), cert.

denied, 109 S. Ct. 1745 (1989). The defendants must

show that their conduct did “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).

Under the test announced in Harlow,

reasonableness is measured by an objective standard;

arguments that the defendants desired to handle or

subjectively believed that they had handled the

incidents properly are irrelevant. Anderson v.

Creighton, 483 U.S. 635, 641 (1987). The defendants

are entitled to qualified immunity if reasonable

officials in the defendants’ position at the relevant

time could have believed, in light of clearly established

law, that their conduct comported with established

legal standards. See id. at 641.

Harlow explicitly chose not to discuss the

question of how to evaluate the “‘state of the law’”

during prior periods, leaving this issue to the lower

courts. See 457 U.S. at 818 n.32 (citation omitted).

This court does not require “relatively strict factual

identity” between applicable precedent and the case at

issue. People of Three Mile Island v. Nuclear

Regulatory Comm., 747 F.2d 139, 144 (3d Cir. 1984).

“{Slome but not precise factual correspondence” to

precedent would be required. Id.; see also Anderson,

483 U.S. at 640. :

We expect officials to ‘apply general,

well-developed legal principles.” People of Three Mile

Island, 747 F.2d at 144. We have explained that we

have “adopted a broad view of what constitutes an

established right of which a reasonable person would

have known,” Sourbeer v. Robinson, 791 F.2d 1094,

1103 (3d Cir. 1986), cert. denied, 483 U.S. 1032

(1987), which requires us to undertake “an inquiry

into the general legal principles governing analogous

-]5-

factual situations, if any, and a subsequent

determination whether the official should have related

this established law to the instant situation.” Hicks v.

Feeney, 770 F.2d 375, 380 (3d Cir.. 1985).

It may seem ludicrous to be obliged to consider

whether it was “clearly established” that it was

impermissible for schoo! teachers and staff to sexually

molest students. Nonetheless, we construe the proper

inquiry as whether it was established that the

students’ rights were constitutionally based. Applying

this standard, we reiterate the conclusion we reached

in Stoneking I that the constitutional right Stoneking

alleges, to freedom from invasion of her personal

security through sexual abuse, was well-established at

the time the assaults upon her occurred. The

Supreme Court in considering the closely analogous

right implicated by corporai punishment in schools,

held that “[aJmong the historic liberties . . . protected

[by the Due Process Clause] was a right to be free from

. unjustified intrusions on personal security.”

Ingraham v. Wright, 430 U.S. 651, 673 & n.41

(1977).? See also Black v. Stephens, 662 F.2d 181,

188 (3d Cir. 1981), cert. denied, 455 U.S. 1008 (1982)

(“[a] law enforcement officer's infliction of personal

injury on a person ... may deprive a victim of a

fourteenth amendeent ‘liberty’’); Curtis v Everette,

2. By 1980, this circuit had invoked Ingraham v. Wright in

varied contexts. See, e.g., Romeo v. Youngberg, 644 F.2d 147 (3d

Cir. 1980) (in banc) (right of mentally retarded to freedom from

assault in state institution), vacated on other grounds, 457 U.S.

307, 315 (1982) (but agreeing with court's application of

Ingraham)); Halderman v. Pennhurst State School and Hospital.

612 F.2d 84, 98 (3d Cir. 1979) {in banc), rev'd, 452 U.S. 1 (1981);

United States ex. rel. Caruso v. United States Board of Parole, 570

F.2d 1150, 1157 (3d Cir.), cert. denied, 436 U.S. 911 (1978)

(considering parole revocation challenge: noting that liberty for

due process purposes extends to “[pjersonal security from physical

violence”).

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489 F.2d 516, 518-19 (3d Cir. 1973), cert. denied,

416 U.S. 995 (1974) (prisoner's liberty interest

implicated in assault by fellow prisoner).

A teacher's sexual molestation of a student is an

intrusion of the schoolchild’s bodily integrity not

substantively different for constitutional purposes

from corporal punishment by teachers. Reasonable

officials would have understood the “contours” of a

student's right to bodily integrity, under the Due

Process Clause, to encompass a student's right to be

free from sexual assaults by his or her teachers. See

Anderson, 483 U.S. at 639-40 (discussing level of

particularity required for definition of clearly

established rights).

Since a teacher's sexual molestation of a student

could not possibly be deemed an acceptable practice,

as some view teacher-inflicted corporal punishment, a

student's right to be free from such molestation may

be viewed as clearly established even before Ingraham.

See Rochin v. California, 342 U.S. 165, 172 (1952)

(substantive due process violation occurs where

conduct “shocks the conscience”); cf. Mitchell v.

Forsyth, 472 U.S. 511, 534 (1985) (right against

warrantless security wiretaps was not “clearly

established” where many successive administrations

employed the _ practice and _ considered it

constitutional).

We turn then from the issue of the clearly

established constitutional right of Stoneking to be

free from sexual abuse by school staff to an inquiry

into the objective reasonableness of defendants’

conduct from late 1980 through at least 1983 when

Stoneking was molested by Wright while still a

student. Anderson teaches us that this inquiry into

reasonableness requires examination of the

information possessed by the defendants. 483 U.S. at

641. We set forth some of the evidence in the record

because the parties now agree that we are not limited

to the allegations of the complaint on which our prior

opinion was based. But see Stoneking I, 856 F.2d at

597-98 nn.5, 6 & 7.

According to the deposition testimony of Theresa

Rodgers, her social studies teacher Richard DeMarte

sexually accosted her in late 1977 or early 1978. See

667 F. Supp. at 1100 (summarizing Rodgers

deposition). She immediately reported the incident to

Miller and Smith. They responded by warning her that

it would be her word against the teacher's and that

she should not tell her parents. Id. Although Smith

told Rodgers that he would “take care” of the problem,

DeMarte’s personnel file shows no evidence of any

disciplinary action taken against him; to the contrary,

his teaching evaluation showed a perfect score. Id.

According to the deposition testimony of Judith

Grove Sowers, she was sexually assaulted by Wright in

1979 and reported the incident to Miller and Smith.

She claims that Smith told her “it was my |Sowers’}

fault. That's why he wanted to clear up the rumors

because he wanted the band to get back on their feet

again. . . . He had told me that if the rumors were true

.. . | could find myself in front of a jury, in front of a

judge, telling exactly what happened, that being that |

had been drinking [and that I was) at his house

voluntarily ... | wouldn't look very good is what he

said.” Id. at 1101 n.24 (quoting deposition). Miller

brought Wright to the office, asked Sowers to repeat

her allegatio™ in front of him, and asked Wright if it

was true, wxich Wright denied. Supp. App. at 7

(Sowers deposition).

According to the deposition testimony of Sowers’

father, who requested a conference with Miller and

Sowers about the incident, the defendants attempted

to persuade him that no teacher would behave as his

daughter alleged. 667 F. Supp. at 1101 (citing

-18-

deposition testimony). Both Sowers and her father

testified that she was presented with the option of

recanting her story in front of the band or

withdrawing from all band activities. Id. Sowers

stated that the band was assembled and she was

called befcre it for this purpose, but fled from the

room in tears. Id.

As the district court noted, it could be inferred

that “the ‘forced apology’ served as a trump card in the

hands of Edward Wright.” who could threaten his

other victims with similar treatment if they reported

his actions, id. at 1101-02, and Stoneking in fact

testified that she did not report Wright's assaults

because “I knew about Judy Grove and what

happened.” Supp. App. at 16.

Smith's handwritten notes refer to three other

incidents in 1981-1982 with respect to sexual

harassment by DeMarte, the social studies teacher. In

1981, Lori Tsepelis complained to Miller and Smith

that DeMarte had kissed her on the back of the neck

several times while she was taking a make-up test.

See Transcript of Deposition of Smith at 70-83. Ms.

Tsepelis’ parents also complained. Id. at 84-85.

DeMarte admitted one kiss, explaining “that he had

kissed her on the cheek as a thank you for her having

brought food to him at the radio station on two

occasions in November.” Id. at 74. Smith conceded

that when a teacher kisses a student it is generally a

sexual advance, id. at 91, but Smith and Miller merely

arranged that Ms. Tsepelis would, for the remainder of

the semester, pick up her homework from DeMarte via

Miller and that she would not be scheduled for

DeMarte's class in the future. Although Smith told

DeMarte “he had not used good judgment in having

{Ms. Tsepelis} alone in the room,” id. at 93, he placed

no discipline report in DeMarte’s file.

-19-

Two months later, two female students reported

to Miller that another student, Lorie Lamberson, was

crying in the restroom and when she emerged she told

Smith and Miller that she had gone to DeMarte’s room

with a friend to get a make-up assignment, that he

sent her friend away, blindfolded her to demonstrate

the sense of touch, and after doing so was down on

his hands and Knees looking up her dress. The

student was so distraught that she was sent to the

nurse's office and then told to contact her parents. Id.

at 99-106. When she spoke to her mother, she stated

“that she had a problem like Lori Tsepelis."” Id. at

110. Although Smith testified that he subjectively

believed Ms. Tsepelis’ story, his own notes state that

““before sending [Ms. Lamberson] home | brought up

the fact that she and her mother were aware of the

incident with Mr. DeMarte and Lori Tsepelis prior to

today and hoped that she wasn't involved in framing

Mr. DeMarte.’” Id. at 112 (emphasis added). DeMarte

admitted the incident except for the complaint that he

had looked up Ms. Lamberson’'s dress. Nonetheless,

Smith's notes continue, “‘I also pointed out that it

was her word against |DeMarte’s] and that Mr. Miller

and I would have to judge from that.’” Id. at 115.

Again, the only action taken was to arrange that the

student be scheduled for a different class, id. at 119.

and no reprimand or other note was placed in

DeMarte’s file.

The next year, another parent called to complain

about DeMarte’s relationship with a stwdent because

DeMarte had asked the student to sit on his lap at a

Halloween party on a social occasion, see id. at

151-53, and again no written warning was placed in

DeMarte’s file. Id. at 160.

In sum, there is evidence in the record that

between 1978 and 1982 Smith and Miller received at

least five complaints about sexual assaults of female

-20-

students by teachers and staff members; that Shuey

was told about some of these complaints; that Smith

recorded these and other allegations in a secret file at

home rather than in the teachers’ personnel files,

which a jury could view as active concealment; that

the defendants gave such teachers excellent

performance evaluations, which a jury could view as

communication by the defendants to the teachers that

the conduct of which they were accused would not be

considered to reflect negatively on them; and that

Smith and Miller discouraged and/or intimidated

students and parents from pursuing complaints. on

one occasion by forcing a student to publicly recant

her allegation.

For this purpose, the fact that Stoneking did not

complain to the defendants about Wright's

molestation of her is not dispositive. See Ryan uv.

Burlington County, 860 F.2d at 1206-07 (prison

officials not entitled to qualified immunity because,

under the “reasonable official” standard, they should

have known their actions were unconstitutional based

on their general knowledge of the overcrowded prison

conditions). Although Stoneking’s failure to complain

may be relevant at trial to her credibility or the

causation issue, see id. at 1209, for qualified

immunity purposes it is sufficient that there is

adequate evidence that defendants were on notice of

complaints of sexual harassment of students by

teachers and staff at the school.

In their brief, defendants correctly state that “[i}n

determining whether or not a public official is entitled

to a defense of qualified immunity, one must identify

legal principles governing analogous factual situations

at the time the alleged constitutional violation

occurred, and if any existed, determine whether the

public officials should have related this established

law to the situati »n before them.” Appellants’ Supp.

Brief at 26.

After Monell had established that government

officials could be held liable for policies and practices

which they established and maintained, this court

held in two cases in 1981 that public officials in

administrative positions with notice of assaultive

behavior by their subordinates must not take actions

which communicate that they encourage or even

condone such behavior.

In Commonweath v. Porter, 659 F.2d 506, 309

(3d Cir. 1981) (in banc), cert. denied, 458 U.S. 1121

(1982), we considered the appeal of a chief of police

and mayor who had been found liable by the district

court for “engagling] in an extended pattern or

practice of conduct denying persons lawfully in [the

borough] their constitutional rights to be free from

physical violence, mistreatment, threats, harassment

.... The physical violence had been inflicted by only

one officer in the department, not by these two

defendants. Instead, the charges against the police

chief, much like those Stoneking raises against the

defendants here, were that he received complaints

about the conduct of the officer but took no steps to

suspend, transfer or otherwise limit the officer's

activities; publicly condoned the actions of the officer;

and attempted to intimidate persons who complained

about his conduct. Id. at 310. Similarly, the charges

against the mayor stemmed from the fact that he

received numerous complaints: carried out only

periunctory investigations, consisting merely “of

asking [the chief and the officer] whether there was

any basis for the complaint’’; defended the officer

publicly; and retaliated against officers who

complained. Id. at 311 (quoting Commonwealth v.

Porter, 480 F. Supp. 686, 702 (W.D. Pa. 1979)).

“£4

oil

In the opinion of the majority affirming the

district court’s findings that the pattern of support

shown by the police chief and mayor for the offending

policeman amounted “‘to a custom and usage under

42 U.S.C. § 1983 and Monell,” id. at 312 (quoting

Commonweath v. Porter, 480 F. Supp. 686, 703 (W.D.

Pa. 1979)), for which they could be held liable, we

stated that Rizzo v. Goode, 423 U.S. 362 (1976),

“requires that we focus on the degree to which [the]

Chief ... participated in a pattern of violation by

virtue of knowledge, acquiescence, support and

encouragement.” 659 F.2d at 321. A different majority

found no basis for liability as to the Borough Council

because the evidence as to it consisted primarily of

failure to investigate complaints and passage of

resolutions supporting the policemen, which was

insufficient to establish a pattern or plan. “[Njo more

than inaction and insensitivity” had been shown,

which did not establish the requisite causal link

under Rizzo v. Goode. Id. at 336-37.

Porter demonstrates clearly that by 1981 an

administrator's policy of curtailing investigation of

complaints brought to the administrator's attention,

intimidation of complainants, and/or defense of

subordinates charged with misconduct was sufficient

to constitute a custom or practice under Monell.

Again in 1981, we held that a jury was entitled to

hold a city and its chief of police liable for adopting a

policy which postponed disciplinary investigation of

an officer against whom a complaint was lodged until

after resolution of any arrest charge stemming from

the incident. Black v. Stephens, 662 F.2d 181 (3d

Cir. 1981), cert. denied, 455 U.S. 1008 (1982). We

found that this policy could be construed to encourage

officers to bring charges against citizens who accused

the police of misconduct, and that proximate

causation could be established on this basis. We also

held that the chief of police could be held liable for the

promulgation and implementation of a policy which

“encouraged the use of excessive force by the officers

within the department.” Jd. at 183, 189-91.

Our holdings were consistent with those reached

earlier by other courts of appeals. See, e.g.,

McClelland v. Facteau, 610 F.2d 693, 697-98 (10th

Cir. 1979) (police chiefs may be held liable for failure

to correct misconduct of which they have notice);

Sims v. Adams, 537 F.2d 829, 832 (5th Cir. 1976)

(complaint stated cause of action against mayor and

chief of police for failure to control police officer's

propensity for violence); Turpin v. Mailet, 579 F.2d

152, 167-68 (2d Cir. 1978) (en banc) (city could be

liable under the Fourteenth Amendment for

encouraging animosity among police officers against

plaintiff which led them to believe that they could

violate his civil rights with impunity), vacated in light

of Monell, 439 U.S. 974 (1978), reinstated, 591 F.2d

426 (2d Cir. 1979) (per curiam) (case reinstated on

same theory but under 8 1983 in light of Monell);

judgment for plaintiff reversed, Turpin v. Mailet, 619

F.2d 196, 202 (2d Cir.) (plaintiff failed to prove official

policy where “there was no evidence of a prior pattern

or practice of harassment”), cert. denied, 449 U.S.

1016 (1980).

In sum, although the mere failure of supervisory

officials to act or investigate cannot be the basis of

liability, see Chinchello v. Fenton, 805 F.2d 126,

133-34 (3d Cir. 1986), by at least 1981 when this

court's cases in Porter and Black were decided (both

incidentally arising, as this case does, in the Western

District of Pennsylvania), it was clearly established law

that such officials may not with impunity maintain a

custom, practice or usage that communicated

condonation or authorization of assaultive behavior.

—"

If the testimony of the various complainants is

believed, Smith and Miller discouraged and

minimized reports of sexual misconduct by teachers.

A jury could construe such actions, as plaintiff's

expert did, as “encouragling] a climate to flourish

where innocent girls were victimized.” Affidavit of

Chet Kent, App. at 55. Judge Stapleton in his dissent

argues that under the law as it existed at the relevant

time, “qualified immunity could be denied only if the

circumstances were such that a reasonable school

administrator would have realized he was

communicating his approval to the offending

teacher.” Typescript dissenting op. at 3. Although

that may seem a farfetched possibility, there is

enough in this record from Smith and Miller's

suggestion to Ms. Lamberson about “framing”

DeMarte and their statement that it was “her word

against his,” as well as from the forced apology by

Judy Grove Sowers about her allegations of Wright's

sexual harassment, that a jury could reasonably

conclude that such discouragement of complaints

amounted to a communication of condonation of the

teacher's behavior. Thus, Stoneking has asserted a

sufficiently tenable theory that there was an

“affirmative link,” see Rizzo v. Goode, 423 U.S. at

371, between her injury and the policies and practices

that Smith and Miller employed and affirmative acts

they took in furtherance of them to make this a jury

issue.

We are cognizant that defendants deny many of

these allegations, and assert that they imposed an

adequate policy to deal with Stoneking’s allegations

against Wright by ordering Wright “never to get into a

‘one on one’ situation with female students again.”

Appellants’ Supplementai Brief at 4. Whether there

was an adequate policy and whether their other

defenses have merit will be up to the jury.

On the other hand, we must conclude, in light of

our precedent, that Stoneking’s claims against Shuey

amount to mere “inaction and insensitivity” on his

part. See Porter, 659 F.2d at 337. We cannot discern

from the record any affirmative acts by Shuey on

which Stoneking can base a claim of toleration,

condonation or encouragement of sexual harassment

by teachers which occurred in one of the various

schools within his district.

For the foregoing reasons, we conclude that the

district court did not err in denying the motion for

summary judgment of defendants Smith and Miller on

grounds of qualified immunity, but we conclude that

Shuey’s motion should have been granted.

As we have alluded to previously, trial of this case

has been pending in the district court for a

substantial period of time while the qualified

immunity issue has been litigated. Our conclusion

that Smith and Miller are not entitled to qualified

immunity as a matter of law in their individual

capacities is not in any way suggestive of any view on

the merits of Stoneking’s claim against them

personally or against all of the defendants in their

official capacities as to which no qualified immunity

can be asserted. Thus, we are hopeful that upon

remand this case can proceed to an expeditious

conclusion.

For the reasons set forth above, we will affirm the

district court’s denial of the motion for summary

judgment as to Smith and Miller on the grounds of

qualified immunity, and we will vacate the district

court’s order denying the motion for qualified

immunity as to Shuey in his individual capacity, and

remand with directions that his motion be granted.

a ae

Costs on appeal are to be borne by appellants

Smith and Miller.

STAPLETON, Circuit Judge, Concurring in part

and Dissenting in part: ~-

After DeShaney, Ms. Stoneking’s contention that

the defendants owed her a _ well-established

constitutionally based duty to protect her from Mr.

Wright is no longer tenable. I agree with the court,

however, that she alleges an alternative and distinct

theory of liability that is not rejected in DeShaney.

The issue for decision is whether the defendants have

qualified immunity with respect to any damage

liability that might be imposed upon them

individually on that theory. The court concludes that

Superintendent Shuey is entitled to immunity and I

agree. I dissent, however, from the court's denial of

immunity to Principal Smith and Assistant Principal

Miller. Under Anderson v. Creighton, 483 U.S. 635

(1987) and Harlow v. Fitzgerald, 457 U.S. 800 (1982)

cases, the relevant issue is whether reasonable school

officials with the knowledge allegedly possessed by the

defendants would have realized during the period

from 1980 to 1983 that they were violating a

well-established duty that they owed to Ms. Stoneking

under federal statutory or constitutional law. That

issue must be resolved by looking to the pre-1983 case

law dealing with the circumstances under which a

supervisor can be held liable for the constitutional tort

of someone he or she supervises. As I read that case

law' , the only well-established duty imposed upon a

supervisor by federal law was the duty to refrain from

affirmative encouragement of the offending conduct.

Accordingly, unless the complaint alleges such

E. The state of the law after City of Canton v. Harris, 109 S.Ct.

1197, (1989), is simply not relevant to the-issue presented by this

appeal.

encouragement and unless Ms. Stoneking, after the

filing of the motion for summary judgment, pointed to

competent evidence from which a fact finder could

find such encouragement, the defendants are entitled

to immunity.

In Commonwealth of Penn. v. Porter, 659 F.2d

306 (3d Cir. 1981), this court, ruling on Police Chief

Porter's liability, held that “encouragement” was a

prerequisite to liability. We there stated that Rizzo v.

Goode, 423 U.S. 362 (1976), “requirei{d] that we focus

on the degree to which Chief Porter participated in a

pattern of violation by virtue of knowledge,

acquiescence, support and encouragement.” 659

F.2d at 321 (emphasis added). We then cited the

Chief's “active[] support” of the constitutional

tortfeaser, and the “affirmative steps” he took to

impede legal action against the subordinate. Id. at

322. As to the Mayor, the Porter court found that he

had been “affirmatively involve[d]" with the

constitutional tortfeasor and “strongly supportied]”

him. Id.

Porter's conclusions on this matter were reiterated

in Black v. Stephens, 662 F.2d 181, 191 (3d Cir.

1981). In Black, this court stated that the evidence

supported the jury’s finding “of the encouragement

and support required to hold the [police chief] liable

under section 1983.” (emphasis added). Finally, in

Chinchello v. Fenton, 805 F.2d 126 (3d Cir. 1986), we

first acknowledged that a plaintiff might have an

easier time proving supervisory liability in other

circuits than in ours. We then reviewed Rizzo uv.

Goode, 423 U.S. 362, 96 S.Ct. 598 (1976) and its

progeny and concluded that supervisory liability could

be found only where the official had both

“contemporaneous knowledge of the offending

incident or knowledge of a prior pattern of similar

incidents” and where there were “circumstances

-28-

under which the supervisor's inaction could be found

to have communicated a message of approval to the

offending subordinate.” 805 F.2d at 133 (emphasis

added).

Under these cases, I am unable to say that a

reasonable school administrator would understand

that he would violate the well-established

constitutional rights of students by failing to pursue a

complaint of sexual abuse by a teacher with sufficient

aggressiveness or even by discouraging such

complaints. Under the law as it then existed, qualified

immunity could be denied only if the circumstances

were such that a reasonable school administrator

would have realized he was communicating his

approval to the offending teacher.

I acknowledge that in some contexts failures to

discipline teachers shown to have misbehaved and

discouragement of complaints about misbehaving

teachers might conceivably be a part of a pattern of

conduct that would communicate approval by the

administration. However, where the misconduct at

issue is sexual abuse of high school students and

where the administrator has expressly instructed the

offending teacher never again to be alone with a

female student, it would take a lot more than this

record contains to permit a fact finder to conclude

that Wright understood the administration to favor

his misdeeds.

Because Ms. Stoneking has neither alleged nor

shown evidence of affirmative encouragement of

Wright's conduct by the individual defendants, |

would hold that all three are entitled to immunity.

~ =

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

{(A.O. U.S. Courts. G.M.C. Printing. Phila.. Pa. 215-568-4264)

B. Order Sur Petition for Rehearing, U.S.

Court of Appeals for Third Circuit, No.

87-3637, September 12, 1989

Stoneking v. Bradford Area School District, et al.

=) a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-3637

KATHLEEN STONEKING

Appellee

BRADFORD AREA SCHOOL DISTRICT et al.,

Appellants

SUR PETITION FOR REHEARING

Present: GIBBONS, Chief Judge, HIGGINBOTHAM,

SLOVITER, BECKER, STAPLETON, MANSMANN,

GREENBERG, HUTCHINSON, SCIRICA, COWEN,

and NYGAARD, Circuit Judges.

The petition for rehearing filed by Appellants,

Bradford Area School District et al., in the above-entitled

case having been submitted to the judges who participated

in the decision of this court and to all the other available

circuit judges of the circuit in regular active service, and

no judge who concurred in the decision having asked for

rehearing, and a majority of the circuit judges of the circuit

in regular active service not having voted for rehearing by

the court in banc, the petition for rehearing is denied.

Judges Stapleton, Greenberg and Hutchinson would have

-33-

granted the petition for rehearing.

BY THE COURT,

/s/ Dolores K. Sloviter

Circuit Judge

September 12, 1989

34.

C. Complaint, Stoneking v. Bradford Area

School District, et al., No. 87-63 E,

June 23, 1987

« §%~

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KATHLEEN STONEKING,

Plaintiff

VS. Civil Action No. 87-63E

BRADFORD AREA SCHOOL DISTRICT,

FREDERICK SMITH, in his

individual and official capacity

as principal of the Bradford Area

High School; RICHARD MILLER, in

his individual and official

capacity as assistant principal

of the Bradford Area High School

and FREDERICK SHUEY, in his

: wividual and official capacity

as Superintendent of the Bradford

Area School District,

Defendants

COMPLAINT

Parties and Jurisdiction

1. The Plaintiff, Kathleen Stoneking (hereinafter

Plaintiff), is a citizen of the Commonwealth of Pennsylva-

nia and resides in Indiana, Pennsylvania.

2. The Defendant, Bradford Area School Dis-

trict, (hereinafter the School District), is a citizen of the

Commonwealth of Pennsylvania, is a local governmental

agency organized pursuant to the laws of the Common-

wealth of Pennsylvania with its principal offices located at

50 Congress Street, Bradford, Pennsylvania.

3. The Defendant, Frederick Smith (hereinafter

Smith), is a citizen of the Commonwealth of Pennsylvania

residing in Bradford, Pennsylvania who is and was at all

material times the Principal of the Bradford Area High

School.

4. The Defendant, Richard Miller (hereinafter

Miller) is a citizen of the Commonwealth of Pennsylvania,

residing in Bradford, Pennsylvania, who was at all material

times the Assistant Principal! of the Bradford Area High

School. .

5. The Detendant, Frederick Shuey (hereinafter

Shuey), is a citizen of the Commonwealth of Pennsylvania,

residing in Bradford, Pennsylvania, was at all material times

the Superintendent of the School District.

6. This action arises under Title 42 of the United

States Code, Section 1983 and this Court has jurisdiction

~':

of this action pursuant to Title 28 of the United States

Code, Sections 1331 and 1343.

FACTS

7. In 1976 the School District hired Edward

Wright (hereinafter Wright) to serve as Band Director.

8. In his capacity as Band Director, Wright was

vested with broad responsibility for conducting and manag-

ing the band and music programs of the School District

including the selection of student participants, and schedui-

ing and conducting of band competitions and periodic

music rehearsals throughout the school year.

9. At all material times, Wright conducted the

aforesaid activities with the knowledge, consent and ap-

proval of the Defendants.

10. During Wright’s tenure as Band Director,

the School District’s music program greatly improved and

the Bradford Area High School Band won numerous

competitions as a result of which Wright enjoyed the strong

support and backing of the School District and its officials.

11. In 1979, a female member of the Bradford

Area High School Band informed Defendant Smith, in his

capacity as Principal, that Wright had attempted to rape

and/or sexually assault her.

-39.

12. The Defendant Smith failed to conduct an

investigation into the allegations or report the same to

appropriate authorities and required the female student to

issue a public apology to Wright and retract her allegations

in front of the assembled Bradford Area High School

Band.

13. It is believed and therefore averred that

subsequent to 1979 and thereafter, the Defendant Smith,

in his capacity as Principal of Bradford Area High School

began to maintain a personal file on Wright which con-

tained, inter alia, reports of complaints and/or allegations

concerning sexual misconduct, abuse, and/or harassment by

Wright of female students participating in the band progr-

am.

14. After that time Smith, in his capacity as

Principal, met with Wright and instructed him that he was

to have no further "one on one" contact with female band

members. i

15. It is believed that therefore averred that said

policy of Smith relative to Wright’s contact with female

students was reduced to writing and placed in Wright’s file

maintained by Smith and described more fully above.

16. Despite the institution of the aforesaid policy

concerning Wright and complaints received concerning

Wright prior thereto, Smith, Miller and Shuey failed to

take any action to protect the health, safety and welfare of

the female student body in general and the Plaintiff in par-

-4()-

ticular such as further investigation, suspension or discipline

of Wright, monitoring of Wright’s activities, or the report-

ing of said allegations to appropriate officials for further

investigation.

17. It is believed and therefore averred that

Defendant Smith had actual notice of the conduct of

Wright or, in the alternative, should have known but for

the inherently defective and deficient policies and customs

promulgated, developed and encouraged by Smith discussed

more fully below.

18. During this time Miller, in his capacity as

Assistant Principal, was on actual notice of the various

allegations and complaints concerning sexual misconduct by

Wright since 1979 described more fully above and in

particular was on actual notice of the policy adopted by

Defendant Smith whereby Smith informed Wright he was

to have no further "one on one" contact with female band

members.

19. It is believed and therefore averred that

Defendant Shuey, in his capacity as Superintendent of the

School District, was on actual notice of the various allega-

tions and complaints concerning sexual misconduct by

Wright since 1979 described more fully above and, in

particular, was on actual notice of the policy adopted by

Defendant Smith whereby Smith informed Wright he was

to have no further "one on one" contact with female band

members.

20. In the alternative, in the event that Defen-

dant Shuey was not on actual notice of the aforesaid

allegations and complaints concerning Wright since 1979,

his failure to be so informed was the result of inherently

defective and deficient policies and customs of the School

District which were promulgated, developed and encourag-

ed by Defendant Shuey.

21. The Plaintiff participated in the Bradford

Area High School Band during her sophomore, junior and

senior years_and graduated in 1983, although remaining

closely invoived with the band.

22. In or about October of 1980 and continuing

thereafter periodically until May of 1985, Wright did throu-

gh physical force, threats of reprisal, intimidation and

coercion sexually abuse and harass the Plaintiff and force

her to engage in var.ous sexual acts with him.

23. The periodic sexual abuse of the Plaintiff by

Wright occurred at various places including the Bradford

Area High School band room and its environs, Wright’s

vehicle, Wright’s house and on trips and band functions.

24. Wright’s modus operandi which he employed

with the Plaintiff and it is believed and therefore averred

with various other female members of the Bradford Area

High School Band was to threaten the loss of parental

support, the esteem of friends, and the dissolution of the

-42-

Bradford Area High School Band which had become such

a significant institution of the School District and the

community in general if his actions were reported.

25. In early March of 1986, a clinical psycholo-

gist in State College, Pennsy!vania contacted the Bradford

Police Department and Defendants Shuey and Smith as a

result of a complaint of sexual abuse involving a female

band member reported to the psychologist by the student's

parents.

26. On March 14, 1986, Wright’s resignation was

unanimously accepted by the Bradford Area School Direc-

tors and he was charged by the police with numerous

criminal offenses, all sexual in nature.

27. It was at this point in time, to-wit, in or

about March, 1986, the Plaintiff first became aware of the

facts establishing the complicity of Defendants Smith,

Shuey and Miller and therefore Defendant School District,

in allowing the aforesaid sexual molestation to continue.

-43-

COUNT L.

Kathleen Stoneking vs. Frederick Smith

28. Paragraphs 1 through 27 are incorporated

herein by reference as if fully set forth.

29. At all material times, a° special custodial

relationship existed between the Plaintiff and the Defen-

dant Smith.

30. The Plaintiff has been deprived by Defen-

dant Smith, while acting under color of state law, of her

rights, privileges and immunities secured by the Constitu-

tion or Laws of the United States, specifically her liberty

interest to be free in her person from threats, intimidation

and sexual abuse such as that perpetration by Wright.

31. The acts and omissions of Defendant Smith

represent conduct which was intentional, willful, outra-

geous, reckless and deliberately indifferent to the health,

safety and welfare of the female student body of the

Bradford Area Hi,.. School in general and Plaintiff in

particular.

32. Said acts and omissions included:

(A) Failing to report pursuant to the require-

ments of the Child Protective Services Law, 11 P.S. Section

2201, et seq., the various incidents of suspected sexual

-44-

abuse of female band members by Wright of which Defen-

dant Smith had been on actual notice since 1979;

(B) Failing to adopt an effective policy or poli-

cies to facilitate the discovery of sexual abuse of female

students and the prompt reporting thereof to appropriate

authorities;

various reports of sexual abuse of female band members by

Wright;

(D) Concealing from the parents of the female

band members of the Bradford Area High School and

various Other public officials including the police depart-

ment, the various complaints and accusations which had

been made against Wright since 1979 and, in particular, in

failing to disclose to the appropriate officials the contents

of the private file which Defendant Smith kept on Wright

relative to said complaints;

(E) Continuing to permit Wright to function as

Band Director despite the fact that Smith was on actual

notice that Wright posed a significant threat to female

band members and would have the occasion and opportuni-

ty by virtue of his position as Band Director to sexually

abuse them;

(F) Encouraging and perpetuating the develop-

ment of a custom or course of conduct at the Bradford

-45-

Area High School whereby allegations of sexual abuse or

mistreatment by Wright and other teachers were not

investigated and reported.

33. As a proximate result of the aforesaid acts

and omissions of Defendant Smith, the Plaintiff was sub-

jected to »exual abuse, harassment, threats and intimidation

by Wright and has suffered and will continue to suffer in

the future from the effects of severe psychological trauma

including severe depression, loss of self esteem, mental

anguish, embarrassment and humiliation.

WHEREFORE, the Plaintiff, Kathleen Stone-

king, requests compensatory damages against Defendant,

Frederick Smith, in an amount in excess of $10,000.00 plus

punitive damages, costs of suit and attorney's fees pursuant

to Title 40 U.S.C. Section 1988.

COUNT I

Kathleen Stoneking v. Frederick Smith

34. The averments of paragraphs 1 through 33

are incorporated herein by reference as if fully set forth.

35. The acts and omissions of the Defendant

Smith represent malicious and willful misconduct within the

meaning of 42 C.S.A. Section 8550.

36. As a proximate result of the aforesaid acts

and omissions of Defendant Smith, the Plaintiff was sub-

jected to sexual abuse, harassment, threats and intimidation

by Wright and has suffered and will continue to suffer in

the future from sever psychological trauma including severe

depression, loss of self esteem, mental anguish, embarrass-

ment, humiliation and headaches.

WHEREFORE, the Plaintiff, Kathleen Stone-

king, requests compensatory damages against the Defen-

dant, Frederick Smith, in an amount in excess of

$10,000.00 plus punitive damages, costs and suit and such

other relief as the Court may deem appropriate.

COUNT IL.

Kathleen Stoneking vs. Richard Miller

37. Paragraphs 1 through 36 are incorporated

herein by reference as if fully set forth.

38. At all material times, a special custodial

relationship existed between the Plaintiff and the Defen-

dant Miller.

39. The Plaintiff has been deprived by Defen-

dant Miller, while acting under color of state law, of her

rights, privileges and immunities secured by the Constitu-

tion or Laws of the United States, specifically her liberty

-47-

interest to be free in her person from threats, intimidation

and sexual abuse such as that perpetrated by Wright.

40. The acts and omissions of Defendant Miller

represent conduct which was intentional, willful, outra-

gceous, reckless and deliberately indifferent to the health,

safety and welfare of the female student body of the

Bradford Area High School in general and the Plaintiff in

particular.

41. Said acts and omissions included:

(A) Failing to report pursuant to the require-

ments of the Child Protective Services Law, 11 P.S. Section

2201, et seq., the various incidents of suspected sexual

abuse of female band members by Wright of which Defen-

dant Miller had been on actual notice since 1979;

(B) Failing to adopt an effective policy or policies

to facilitate the discovery of sexual abuse of female stu-

-dents and the prompt reporting thereof to appropriate

authorities;

various reports of sexual abuse of female band members by

Wright;

(D) Concealing from the parents of the female

band members of the Bradford Area High School and

various Other officials including the police department the

-48-

various complaints and accusations which had been made

against Wright since 1979 and, in particular, in failing to

disclose to the appropriate officials the contents of the

private file which Defendant Smith kept on Wright relative

to said complaints;

(E) Continuing to permit Wright to function as

Band Director despite the fact that Miller was on actual

notice that Wright posed a significant threat to female

band members and would have the occasion and opportuni-

ty by virtue of his position as Band Director to sexually

abuse them:

(F) Encouraging and perpetuating the develop-

ment of a custom or course of conduct at the Bradford

Area High School whereby allegations of sexual abuse or

mistreatment by Wright were not vigorously investigated

and reported.2

42. As a proximate result of the aforesaid acts

and omissions of Defendant Miller, the Plaintiff was sub-

jected to sexual abuse, harassment, threats and intimidation

by Wright and has suffered and will continue to suffer in

the future from the effects of severe psychological trauma

including severe depression, loss of self esteem, mental

anguish, embarrassment and humiliation.

WHEREFORE, the Plaintiff, Kathleen Stone-

king, requests compensatory damages against the Defen-

dant, Frederick Miller, in an amount in excess of

-49-

$10,000.00 plus punitive damages, costs of suit and attor-

ney’s fees pursuant to Title 42. U.S.C. Section 1988.

COUNT IV.

Kathleen Stoneking vs. Richard Miller

43. The averments of paragraphs 1 through 42

are incorporated herein by reference as if fully set forth.

44. The acts and omissions of the Defendant

Miller represent malicious and willful misconduct within the

meaning of 42 Pa. C.S.A. Section 8550.

45. As a proximate result of the aforesaid acts

and omissions of Defendant Miller, the Plaintiff was sub-

jected to sexual abuse, harassment, threats and intimidation

by Wright and has suffered and will continue to suffer in

the future from the effects of severe psychological trauma

including severe depression, loss of self esteem, mental

anguish, embarrassment and humiliation.

WHEREFORE, the Plaintiff, Kathleen Stone-

king, requests compensatory damages against the Defen-

dant, Richard Miller, in an amount in excess of $10,000.00

plus punitive damages, costs or suit and such other relief as

the Court may deem appropriate.

-5()-

COUNT V.

Kathleen Stoneking v. Frederick Shuey

46. The averments of paragraphs 1 through 45

are incorporated herein by reference as if fully set forth.

47. At all material times, a special custodial

relationship existed between the Plaintiff and the Defen-

dant, Shuey, as Superintendent of the School District.

48. The Plaintiff has been deprived by Defen-

dant Shuey, whole acting under color of state law, of her

rights privileged and immunities secured by the Constitu-

tion or Laws of the United States, specifically her liberty

interest to be free in her person from threats, intimidation

and sexual abuse such as that perpetrated by Wright.

49. The acts and omissions of Defendant Shuey

represent conduct which was intentional, willful, outra-

geous, reckless and deliberately indifferent to the health,

safety and welfare of the female student body of the

Bradford Area High School in general and the Plaintiff in

particular.

50. Said acts and omissions included:

(A) Failing to report pursuant to the require-

ments of the Child Protective Service Law, 11 P.S. Section

2201, et seq., the various incidents of suspected sexual

Si.

abuse of female band members by Wright of which Defen-

dant Shuey had been on actual notice since 1979;

(B) Failing to adopt an effective policy or policies

to facilitate the discovery of sexual abuse of female stu-

dents and the prompt reporting thereof to appropriate

authorities;

various reports of sexual abuse of female band members by

Wright;

(D) Concealing from the parents of the female

band members of the Bradford Area High School and

various other officials including the police department the

various complaints and accusations which had been made

against Wright since 1979 and, in particular, in failing to

disclose to the appropriate officials the contents of the

private file which Defendant Smith kept on Wright relative

to said complaints;

(E) Continuing to permit Wright to function as

Band Director despite the fact that Miller was on actual

notice that Wright posed a significant threat to female

band members and would have the occasion and opportuni-

ty by virtue of his position as Band Director to sexually

abuse them;

(F) Encouraging and perpetuating the develop-

ment of a custom or course of conduct at the Bradford

Area High School whereby allegations of sexual abuse or

mistreatment by Wright were not vigorously investigated

and reported.

51. In the alternative, in the event that Defen-

dant Shuey did not have actual notice of the complaints

and allegations concerning sexual abuse of female band

members by Wright since 1979, the failure to have acquired

such information was the result of inherently defective and

deficient policies promulgated by Defendant Shuey or a

course of conduct or custom perpetuated and encouraged

by him which frustrated the efficient reporting of suspected

child abuse and prompt investigation of the same.

52. As a proximate result of the aforesaid acts

and omissions of Defendant Shuey, the Plaintiff was sub-

jected to sexual abuse, harassment, threats and intimidation

by Wright and has suffered and will continue to suffer in

the future from the effects of severe psychological trauma

including severe depression, loss of self esteem, mental

anguish, embarrassment and humiliation.

WHEREFORE, the Plaintiff, Kathleen Stone-

king, requests compensatory damages against the Defen-

dant Frederick Shuey, in an amount in excess of $10,000.00

plus punitive damages, costs of suit and attorney’s fees

pursuant to Title 42 U.S.C. Section 1988.

-53-

COUNT VI.

Kathleen Stoneking vs. Frederick Shuey

53. The averments of paragraphs 1 through 52

are incorporated herein by reference as if fully set forth.

54. The acts and omissions of the Defendant

Shuey represent malicious and willful misconduct within the

meaning of 42 C.S.A. Section 8550.

55. As a proximate result of the aforesaid acts

and omissions of Defendant Shuey, the Plaintiff was sub-

jected to sexual abuse, harassment, threats and intimidation

by Wright and has suffered and will continue to suffer in

the future from the effects of severe psychological trauma

including severe depression, loss of self esteem, mental

anguish, embarrassment, humiliation, headaches and stoma-

ch disorders.

WHEREFORE, the Plaintiff, Kathleen Stone-

king, requests compensatory damages against the Defen-

dant, Frederick Shuey, in an amount in excess of

$10,000.00 plus punitive damages, costs of suit and such

other relief as the Court may deem appropriate.

-54-

COUNT Vil.

Kathleen Stoneking vs. Bradford Area School District

56. The averments of paragraphs 1 through 55

are incorporated herein by reference as if fully set forth.

57. The Defendant School District is directly

liable to the Plaintiff by virtue of the aforesaid acts and

omissions of Defendants Smith, Miller and Shuey in their

official capacities as Principal, Assistant Principal and

Superintendent respectively, and further as a result of the

deficient and defective policies and customs promulgated,

developed and encourage bv said Defendants.

WHEREFORE, the Plaintiff, Kathleen Stone-

king, requests compensatory damages against the Bradford

Area School District in an amount in excess of $10,000.00

plus

punitive damages, costs and suit and attorney's fees pur-

suant to Title 42 U.S.C. Section 1988.

JURY tRIAL DEMANDED.

PECORA, DUKE & BABCOX

BY:

P.O. Box 548

Bradford, PA 1670)

(814) 362-3896

D. Answer to Complaint, Stoneking v.

Bradford Area School District, et al.,

No. 87-63, June 23, 1987

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KATHLEEN STONEKING,

Plaintiff

VS. Civil Action No. 87-63E

BRADFORD AREA SCHOOL DISTRICT,

FREDERICK SMITH, in his

individual and official capacity

as principal of the Bradford Area

High School; RICHARD MILLER, in

his individual and official

capacity as assistant principal

of the Bradford Area High School

and FREDERICK SHUEY, in his

individual and official capacity

as Superintendent of the Bradford

Area School District,

Defendants

ANSWER TO COMPLAINT OF KATHLEEN STONEKING

Now Come Defendants, by and through their

attorneys Murphy, Taylor & Adams, P.C. and James D.

McDonald, Jr., Esq., and answer the Complaint of the

Plaintiff, Kathleen Stoneking, setting forth as follows:

1. Admitted.

-59-

2. Admitted.

3. Admitted.

4. Admitted.

5. Admitted. In further answer, the Defendant

Frederick Shuey retired from the said position on or about

July 1, 1986.

6. Admitted that Plaintiff is attempting to ¢s-

tablish a claim pursuant to the quoted statute; denied that

any of the Defendants have violated the said statute.

Admitted that this Court has jurisdiction to resolve the

instant controversy.

7. Admitted.

8. The allegations of Paragraph 8 are admitted

in part and denied in part. It is admitted that Wright was

band director and as band director he conducted the

Bradford Area High School marching band, stage band and

concert band. If is further admitted that Wright's duties a

band director included summer band practice and conduct-

ing the Bradford Area High School bands during competi-

tions. In other respects, the allegations of Paragraph 8 are

denied.

-Hi)-

9. The allegations of Paragraph 9 are admitted

in part and denied in part. It is admitted that Wright

conducted the activities set forth in Paragraph 8 of this

Answer hereinabove with the knowledge, consent and

approval of the Defendants. However, the responsibilities

of Wright as band director set forth in Paragraph 8 of the

Complaint are inaccurate and, therefore, the allegations of

Paragraph 9 of the Plaintiff's Complaint referring thereto

are denied as stated.

10. The allegations of Paragraph 10 of the

Plaintiff's Complaint are admitted in part and denied in

part. It is admitted that the marching band was developed

during the period of time that Wright was employed by the

Defendant Bradford and that the marching band did well

in competition. It is specifically denied that the stage and

concert bands did well in competition. It is admitted that

the bands were supported by the School District and its

officials to the same extent as the support provided to all

School District activities. In all other respects, the allega-

tions of Paragraph 9 of the Plaintiff's Complaint are den-

ied.

11. The allegations of Paragraph 11 of the

Plaintiff's Complaint are specifically denied as stated. It is

admitted that Defendant Smith questioned a female mem-

ber of the Bradford Area High School band regarding a

possible relationship between her and Wright. The student

denied the relationship and advised Defendant Smith that

-61-

tae meee

she had fabricated the story. In all other respects the

allegations of Paragraph 11 are specifically denied.

12. The allegations of Paragraph 12 are specifi-

cally denied.

13. The allegations of Paragraph 13 are specifical-

ly denied. However, in further answer thereto, it is ad-

mitted that Defendant Smith did maintain a miscellaneous

file organized chronologically which contained his notions

relating to various subject matter expressed and/or raised

by various persons over the years.

14. Denied as vague; Defendants are unclear as

to what time Plaintiff is referring. In further answer, it is

admitted that on or about December 15, 1984, Defendant

Smith directed Wright not to place himself in a one-on-

one situation at any time in the future with a female

student. In other respects, the allegations of Paragraph 14

are denied.

15. In answer to Paragraph 15, it is admitted that

the directive from Smith to Wright in 1984 was noted in

writing on records maintained by Smith which records were

placed in the miscellaneous file maintained by Smith. In

other respects, the allegations of Paragraph 15 are denied.

16. The allegations of Paragraph 16 are specifi-

cally denied.

-62-

17. The allegations of Paragraph 17 are specifi-

cally denied.

18. The allegations of Paragraph 18 are specifi-

cally denied.

19. The allegations of Paragraph 19 are admitted

in part and denied in part. It is admitted that Defendant

Shuey was advised in a timely fashion of the activities

conducted by Defendant Smith with respect to Wright. In

other respects, the allegations of Paragraph 19 are denied.

20. The allegations of Paragraph 20 are specifi-

cally denied.

21. It is admitted that the Plaintiff participated

in the Bradford Area High School band during her sopho-

more, junior and senior years and that the Plaintiff gradu-

ated in 1983. Defendants are without sufficient knowledge

or information to form a belief as to the remaining allega-

tions about her involvement with the band subsequent to

graduation, and those allegations are therefore denied,

strict proof demanded at trial, if material.

22. Defendants are without sufficient knowledge

or information to form a belief as to the allegations of

Paragraph 22 of the Plaintiff's Complaint and therefore

deny same and demand strict proof thereof at trial, if

material. In further answer, Plaintiff never reported any

-63-

such incidents to Defendants while she was a student in

the high school.

23. In answer to Paragraph 23 of the Plaintiff's

Complaint, the Defendants herein are without sufficient

knowledge or information to form a belief as to the truth

of those allegations and therefore deny same and demand

strict proof thereof at trial, if material.

24. In answer to Paragraph 24 of the Plaintiff’s

Complaint, the Defendants are without sufficient knowled-

ge or information to form a belief as to the truth of said

allegations and therefore deny same and demand strict

proof thereof at trial, if material.

25. In answer to Paragraph 25 of the Plaintiff's

Complaint, it is specifically denied that clinical psychologists

contacted Defendants Shuey and Smith. In all other

respects, the allegations of Paragraph 25 are denied.

26. in answer to Paragraph 26 of the Plaintiff’s

Complaint, it is admitted that on March 14, 1987, Wright’s

resignation was unconditionally accepted by Defendant

Bradford.

27. The allegations of Paragraph 27 are specifi-

cally denied. It is specifically denied that any Defendant

ever allowed any sexual molestation to take place.

-64-

28. Paragraphs 1 through 27 of this Answer

hereinabove are incorporated herein by reference.

29. The allegations of Paragraph 29 are admitted

in part. It is admitted that Defendant Smith, as principal,

maintained a principal/student relationship with the stu-

dents in the school system; denied that this is recognized

legally as a "special custodial relationship." In other re-

spects, the allegations of Paragraph 29 of the Plaintiff's

Complaint are denied.

30. The allegations of Paragraph 30 are specifi-

cally denied.

31. The allegations of Paragraph 31 are specifi-

cally denied.

32. The allegations of Paragraph 32 of the

Plaintiff's Complaint, specifically including all subparts

thereof, are specifically denied.

33. The allegations of Paragraph 33 are specifi-

cally denied.

34. Paragraphs | through 33 of this Answer set

forth hereinabove are incorporated herein by reference.

35. The allegations of Paragraph 35 are specifi-

cally denied.

36. The allegations of Paragraph 36 are specifi-

cally denied.

37. Paragraphs 1 through 36 of this Answer

hereinabove are incorporated herein by reference.

38. The allegations of Paragraph 38 are admitted

in part and denied in part. It is admitted that Defendant

Miller maintained an assistant principal/student relationship

between himself and the students of the Defendant Schooi

District; denied that this is a recognized legally as a "special

custodial relationship." However, in all other respects, the

ailegations of Paragraph 38 of the Plaintiff's Complaint are

specifically denied.

39. The allegations of Paragraph 39 are specifi-

cally denied.

40. The allegations of Paragraph 40 are specifi-

cally denied.

41. The allegations of Paragraph 41 of the

Plaintiff's Complaint, specifically including all subparts

thereof, are specifically denied.

42. The allegations of Paragraph 42 are specifi-

cally denied.

43. Paragraphs 1 through 42 of this Answer

hereinabove are incorporated herein by reference.

-66-

44. The allegations of Paragraph 44 are specifi-

cally denied.

45. The allegations of Paragraph 45 are specifi-

cally denied.

46. Paragraphs 1 through 45 of this Answer

hereinabove are incorporated herein by reference.

47. The allegations of Paragraph 47 are admitted

in part and denied in part. It is admitted that Defendant

Shuey maintained a superintendent/student relationship

between himself and the students of the Defendant School

District; denied that this is recognized legally as a "special

custodial relationship." However, in all other respects, the

allegations of Paragraph 47 of the Plaintiff’s Complaint are

specifically denied.

48. The allegations of Paragraph 48 are speciti-

cally denied.

49. The allegations of Paragraph 49 are specifi-

cally denied.

50. The allegations of Paragraph 50 of the

Plaintiff's Complaint, specifically including all subparts

thereof, are specifically denied.

£7.

51. The allegations of Paragraph 51 are specifi-

cally denied.

52. The allegations of Paragraph 52 are specifi-

cally denied.

53. Paragraphs 1 through 52 of this Answer

hereinabove are incorporated herein by reference.

54. The allegations of Paragraph 54 are specifi-

cally denied.

55. The allegations of Paragraph 55 are specifical-

ly denied.

56. Paragraphs 1 through 55 of this Answer

hereinabove are incorporated herein by reference.

57. The allegations of Paragraph 57 are specifi-

cally denied.

SECOND DEFENSE

58. The claims asserted by the Plaintiff in the

within action are barred in whole or in part by the ap-

plicable statute of limitations.

THIRD DEFENSE

59. The Plaintiff has failed to state a claim upon

which relief can be granted.

FOURTH DEFENSE

60. The Defendant, Bradford Area School

District, is not vicariously liable to the Plaintiff under any

theory of respondeat superior, since 42 U.S.C. $1983 does

not support an action for vicarious liability.

FIFTH DEFENSE

61. The Defendant, Bradford Area School

District, is not liable to the Plaintiff for punitive damages,

since 42 U.S.C. $1983 does not support an action for

punitive damages against a municipal body.

SIXTH DEFENSE

62. All Defendants, acting in their official capaci-

ty, reasonably believe that all actions taken by them were

appropriate and constitutional in light of all the circumstan-

ces, and acted in good faith.

63. All Defendants are therefore immune from

suit under 42 U.S.C. $1983.

SEVENTH DEFENSE

64. The Defendant, Bradford Area School

District, is immune from suit under the Political Subdivision

Tort Claims Act, 42 Pa. C.S.A. §8541.

65. The Defendants, Frederick Shuey and Frede-

rick Smith, are immune from suit under the doctrine of

official immunity, pursuant to 42 Pa. C.S.A. $8545.

EIGHTH DEFENSE

66. Plaintiff was contributorily negligent in that

she did not report the incidents of which she complained

in a timely fashion to the appropriate officials in order to

allow them to take appropriate steps.

WHEREFORE, Defendants pray for a judgment

in their favor and against Plaintiff, with costs and attorney

fees assessed against Plaintiff.

MURPHY, TAYLOR & ADAMS, P.C.

By:

Kenneth D. Chestek, Esq.

518 State Street, Erie, PA

(814) 459-0234

-70-

McDONALD LAW OFFICES

By:

James D. McDonald, Jr., Esq.

456 West 6th Street, Erie, PA

(814) 456-5318

Attorneys for Defendants

E. Opinion and Order, U.S. District for

Western District of Pennsylvania, No. 87-63

E., August 28, 198 reported at 667 F.Supp.

1088 (1987)

Stoneking v. Bradford Area School District, et al.

Kathleen Stoneking.

Plainuff

Vv.

Bradford Area School District;

Frederick Smith, in his

individual and official capacity as principal

of Bradford Area High School; Richard Miller,

in his individual and official capacity as

assistant principal of the Bradford Area High

School and Frederick Shuey, in his individual

and official capacity as Superintendent of

the Bradford Area Schooi District,

Defendants

Civil Action No. 87-63 E

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

667 F. Supp. 1088; 1987 U.S. Dist. LEXIS 7950

August 28, 1987

COUNSEL:

Deborah W. Babcox, Esquire, Pecora Duke & Babcox,

for Plaintiff.

Kenneth D. Chestck, Esquire; James D. McDonald, Jr.

Esquire, for Defendants.

OPINION

MENCER, J.

I. INTRODUCTION

On March 24, 1987, Kathleen Stoneking filed a civil

rights action against Bradford Area School District

("School District"), Frederick Smith, the Principal of the

Bradford Area High School, Richard Miller, the Assistant

Principal of the Bradford Area High School and Frederick

Shuey, the Superintendent of the School District.' The

gravamen of the complaint is that the defendants violated

the constitutional rights of the plaintiff by failing to reme-

dy the situation that existed at the Bradford Area High

School. According to the allegations in the complaint, the

individual defendants knew or recklessly failed to discover

that Edward Wright, the band director at the High School,

was sexually assaulting female members of the band.

Additionally, it is alleged that the School District had a

practice or custom of failing to appropriately respond to

! Pursuant to an order entered May 22, 1987, this case was consolidated

for tnal with similar actions filed on behalf of Kim Harbaugh and Lisa

Rovito. Motions for summary judgment were filed in the Harbaugh and

Rovito cases on April 13, 1987. At that time, the parties provided the court

with extensive Drefs and voluminous deposition testimony. The motions,

briefs and deposition transcripts from the Harbaugh and Rovito cases have

heen adopted for the purposes of the pending summary judgment motion

Reliance on those briefs will simply be noted by reference to the “Compamion

Case.”

-16-

complaints by female students of sexual abuse or harass-

ment perpetrated by male teachers.

The defendants have filed a motion for summary judg-

ment. As set forth in their brief, the first ground for the

motion is that the plaintiff failed to file her complamt in

a timely fashion. The defendants also assert that the

plaintiff failed to identify a constitutional right which has

been violated. The defendants contend that as a matter of

law there is no § 1983 claim because there is no individu-

al liability nor is there any policy, practice or custom which

would implicate the School District. In the alternative, it

is asserted that defendants Smith, Miller and Shuey are

entitled to qualified immunity. Finally, the defendants

assert that the complaint fails to set forth state law viola-

LIONS.

After consideration of the briets, the voluminous depo-

sition testimony and the relevant case law, this Court con-

cludes that: (1) there are genuine issues of material fact

pertaining to the statute of limitations; (2) the plaintiff has

alleged a violation of a well-established constitutional right;

(3) there are genuine issues of material fact pertaining to

the liability of defendants Smith, Miller and Shuey; (4)

there are genuine issues of materia! fact regarding the

existence of an “official practice or custom;" (5) defen-

dants Smith, Miller and Shuey are not shielded from

liability by the defense of qualified immunity and (6) the

complaint does fail to set forth state law claims. There-

fore, this Court shall deny the motion for summary judg-

-]7-

ment filed on behalf of the defendants, as it pertains to

Counts I, II], V and VII*, and grant the motion as it

pertains to Counts II, 1V and VI.

Il. FACTUAL BACKGROUND

In August, 1975, Edward Wright was hired by the Brad-

ford Area School District to serve in the capacity of band

director. Mr. Wright was responsible for instructing band

activities and providing students with music lessons. Under

Mr. Wright’s direction, the high school band and individual

band members were extremely successful in both regional

and remote competitions. The band came to be the pride

and joy of the school and the community. As the band’s

acclaim grew, so too did the acclaim of Edward Wright.

Three and a half years into Mr. Wright’s tenure, a young

woman by the name of Judy Grove® came forward and in-

formed Dr. Smith, the School Principal and Mr. Miller, the

Assistant Principal, that the band director had sexually

assaulted her. At that time, Ms. Grove openly acknowl-

edged that she had been drinking prior to the assault and

that the assault had taken place at Mr. Wright’s residence.

2The final count in the complaint was mislabeled "Count V." It should,

however, be Count VII.

3Since graduating from high school Judy has gotten married and her

legal name is Judy Grove Sowers. For the purposes of this opinion, however,

the Court will use the witness’s maiden name.

-78-

The details of the events that followed Ms. Grove’s disclo-

sure are vigorously contested. All parties agree, however,

that Dr. Smith ultimately appeared before the band to

quiet the "rumors" and to encourage the band to work

together again.

Mr. Wright’s sexual abuse and harassment of Kathleen

Stoneking began in the fall of 1980. The first incident of

abuse consisted of Mr. Wright forcibly kissing Ms. Stone-

king. As time progressed, the abuse greatly accelerated

both in terms of frequency and in terms of intrusiveness.

The sexual abuse continued, on an almost weekly basis,

until Ms. Stoneking graduated from high school in the

spring of 1983. As reported by the plaintiff, there were

isolated incidences of abuse that occurred as late as May,

1985.

In early March, 1986 William Smith, Frederick Smith’s

son, informed his father that Mr. Wright was sexually

assaulting female band members. Almost immediately after

this information was conveyed to Dr. Smith, the School

District responded. The parents of other students who had

been assaulted were contacted. Several meetings followed

which were attended by various administration officials, the

parents of some of the girls who had been assaulted and

the girls themselves. Mr. Wright was suspended as of

March 10, 1986 and later resigned from his job. Subse-

-79-

quently, Edward Wright pled guilty to a ten count indict-

ment.*

Ill. STANDARD FOR SUMMARY JUDGMENT

In reviewing a motion for summary judgment, the Court

is governed by the standard set forth in Fed.R.Civ.P. 56(c).

In pertinent part the Rule provides "[t]he judgment sought

shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

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

Issue as to any material fact and that the moving part is

entitled to judgment as a matter of law."

The application of this standard requires that "[i]nfer-

ences to be drawn from the underlying facts contained in

the evidential sources submitted to the trial court must be

viewed in the light most favorable to the party opposing

4On a number of occasions, the defendants raised the issue of “con-

sent.” Accordingly, during the course of the depositions the girls who had

been assaulted by Mr. Wright were quizzed on why they failed to “kick, slap,

bite, hit, or knee” their teacher, Mr. Wright.

On November 6, 1986, Edward Wright plead guilty to criminal charges,

including four counts of indecent assault. One of the elements of indecent

assault is lack of consent. See 18 Pa. C.S.A. § 3126. By pleading guilty to

the criminal charges Mr. Wright admitted that his victims had not consented.

The fact that Kathleen Stoneking choose not to immediately report the

criminal acts of Edward Wright is, for the purpose of this proceeding,

irrelevant. Cf Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 (1986) (The

Court held that “[t}he gravamen of any sexual harassment claim is that the

alleged sexual advances were ‘unwelcome™ /d. at 2406).

-80-

the motion." Baker v. Lukens Steel Co., 793 F.2d 509, 511

(3d Cir. 1986), citing, Goodman v. Mead Johnson & Co.,

534 F.2d 566, 573 (3d Cir. 1976), cert. denied. 429 US.

1038 (1977). Therefore, this Court must resoive aii doubi,

as to the existence of a genuine issue of material fact, in

favor of the plaintiff.

IV. LEGAL DISCUSSION

A. Statute of Limitations

In its recent decision of Wilson v. Garcia, 471 U.S. 261

(1985), the Supreme Court declared that all actions

brought pursuant to 42 U.S.C. §1983 shall be charac-

terized as personal injury actions and are subject, there-

fore, to the applicable state statute of limitations. In

reaching this conclusion the Court instructed that: "[t]he

characterization of § 1983 for statute of limitations pur-

poses is derived from the elements of the cause of action,

and Congress’ purpose in providing it. These, of course

are matters of federal law. ... [However,] the length of

the limitations period, and closely related questions of

tolling and application, are to be governed by state law."

Id. at 268-69. Therefore, for claims arising in Pennsylva-

nia, federal courts must apply the two year statute of

limitations set forth in 42 Pa. C.S.A. § 5524 (2). See

Sullivan v. City of Pittsburgh, 811 F.2d 171, 180 (3d Cir.

1987); Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d

Cir.), cert. denied, 106 S. Ct. 349 (1985). Additionally,

federal courts are bound to apply state tolling rules.

-§1-

The well-established rule, regarding the tolling of the

statute of limitations, is that the statute begins to run when

the liability-creating act is committed. See Bernath v.

LeFever, 325 Pa. 43, 47, 189 A. 342, 344 (1937) ("there is

no evidence in the present record. . . which, from whatever

angel viewed, would justify a postponement of the opera-

tion of the statute beyond the time ’when the injury was

done.”). In order to prevent the harsh results that would

occur if that rule were applied in all situations, the courts

have created an exception. This exception is known as the

discovery rule. See Lewey v. H. C. Frick Coke Co., 166 Pa.

536, 547, 31 A. 261, 263 (1895).

The Pennsylvania Superior Court discussed applicability

of the discovery rule in Anthony v. Koppers Co., 284 Pa.

Super. 81, 425 A.2d 428 (1980), rev'd on other grds. 496

Pa. 119, 436 A.2d 181 (1981). In that case, the court ex-

plained that, "the discovery rule is a judicial creation, fash-

ioned to solve a specific problem, namely, whether the law

should preclude recovery for an injury that not even a

diligent party may reasonably be expected to discover."

Anthony, 284 Pa. Super. 89, 425 A.2d at 432. The court

went on to note that although the exception, as it was first

applied involved the concealment of injury, "as the rule has

developed it has become clear that its basis is not conceal-

ment by the defendant but rather the ability of the plain-

tiff to discover ... [her] injury or its cause." Anthony, 284

Pa. Super. at 95, 425 A.2d at 436 (emphasis added). Thus,

when the discovery rule is applicable the statute of limita-

tions will not start to run until the plaintiff actually discov-

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ers the injury and the cause of the injury or reasonably

should have discovered such.>

The role of the court in evaluating a plaintiff’s assertion

that the discovery rule should apply is limited.® The court

must decide whether there is sufficient evidence by which

a jury could reasonably decide that the plaintiff did not

disccver the injury or its cause until after the occurrence

of the liability-creating act. Once a court makes that

5 Although the Pennsylvania Superior Court modified the discovery rule

in Cathcart v. Keen Industrial Insulation, 324 Pa. Super. 123, 471 A.2d 493

(1984), that modification does not impact on the instant action. The court

in Cathcart concluded that “an allegation of mere difficulty in identifying

defendants . . . [is] not sufficient to toll the running of the statute of limita-

tions.” 324 Pa. Super. at 139, 471 A.2d at 501. Significantly, the court

expressly decided not to overrule, Grubb v. Albert Einstein Medical Center,

255 Pa. Super. 381, 387 A.2d 480 (1978), an earlier case where the statute

of limitations was tolled because the plaintiff had been unabie to determine

the causal relation between her injuries and the manufacturer of a medical

instrument that allegedly caused her injuries. This Court concludes that the

factual situation in the instant action is more akin to Grubb, than Cathcart.

6In evaluating an assertion thai a claim is time barred, it is essential to

keep in mind which party bears the applicable burden. Since the statute of

limitations defense is an affirmative one, see Fed. R. Civ. P. 8 (c), the

defendant bears the initia! burden. If the plaintiff's response to this defense

is that the statute of limitations should not run from the time the tortious

act was committed, but rather from a later date when the plaintiff discov-

ered the injury and its cause, i.e., if the plaintiff is relying on the discovery

rule, then the burden shifts to the plaintiff. Van Buskirk v. Carey Canadian

Mines, Ltd, 760 F.2d 481, 487 (3d Cir. 1985). The plaintiff must allege and

thereafter prove that she did not have knowledge of her injury or the cause

of ihat injury until some date after the liability creating act occurred. Jd.

Additionally, the plaintiff must prove that she was diligent in her efforts to

discover the injury or the cause in a reasonable period of time. Bickell v.

Stein, 291 Pa. Super. 145, 150, 435 A.2d 610, 612 (1981).

-83-

determination the remaining questions are for the jury.

As the court in Burnside v. Abbot Laboratories, 351 Pa.

Super. 264, 292, 505 A.2d 973, 988 (1985), recently point-

ed out: "{W]here the issue involves a factual determina-

tion regarding what is a reasonable period of time for a

plaintiff to discover . . . [her] injury and its cause the deter-

mination is for the jury." See also Taylor v. Tukanowicz, 290

Pa. Super. 581, 586, 435 A.2d 181, 183 (1981).

In the instant action the plaintiff asserts that she did not

discover that the individual defendants were the cause of

her injuries until the School District took affirmative action

to discipline and discharge Edward Wright.’ Those events

occurred in March, 1986. Thus, plaintiff contends that the

two year statute of limitations should not run from that

date. Defendants, on the other hand, insist that plaintiff

was aware of the requisite facts at least by the time she

graduated from Bradford Area High School, in June,

1983.8

T Technically, Mr. Wright was given an option to resign. Although he

later exercised that option, it appears as though he had little choice in the

matter.

8The defendants, Opposition to the application of the discovery rule Is

somewhat tenuous. In order to have the requisite knowledge which would

preclude the application of the discovery rule, prior to the running of the

limitation period Ms. Stoneking would have had to have known that Judy

Grove was in fact sexually assaulted by Edward Wright. Ms. Stoneking would

have had to have known that the defendants received notice of the assault.

Additionally, the plaintiff, would have had to have known that the defendants

knew that Judy’s allegations were true and that in, light of that information

they choose to disregard Judy’s complaint. Thus, in order to be precluded

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In addressing the court’s role in determining whether a

claim is time barred, the third circuit offered the advice

that "[s]ince the applicability of the statute of limitations

usually involves question of fact for the jury, defendants

bear a heavy burden in seeking to establish as a matter of

law that the challenged claims are barred.” Van Buskirk

v. Carey Canadian Mines, LTD, 760 F.2d 481, 498 (3d Cir.

1985). Reviewing the available evidence in the light most

favorable to the plaintiff, this Court concludes that the

defendants have not satisfied that heavy burden. There

are genuine issues of material fact pertaining to the tolling

of the statute of limitations. Therefore. the motion for

summary judgment, as it pertains to the statute of limita-

tions defense, is denied.

B. Evaluation of Section 1983 Claim

1. Identification of constitutional right

In pertinent part 42 U.S.C. § 1983 provides:

Every person who, under color of any statute,

ordinance, regulation, custom or usage of any

State . . . subjects, or causes to be subjected,

any citizen of the United States or other per-

son within the jurisdiction thereof to the depri-

from the application of the discovery rule, the plaintiff would have had to

have known that certain events occurred, events that the defendants vigorous-

ly contend never did occur.

-85-

vation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be

liable to the party injured in an-action at law,

suit in equity or other proper proceeding for

redress.

The crux of any section 1983 action is a violation of a

protected constitutional right. Thus, identification of the

specific right is "not a mere academic exercise and is neces-

Sary in determining whether a cause of action may be

maintained under § 1983." Metcalf v. Long, 615 F. Supp.

1108, 1113 (D.C. Del. 1985). See also Fox v. Custis, 712

F.2d 84, 87 (4th Cir. 1983).

In the complaint, plaintiff alleges that the defendants,

acting under color of state law, deprived her of her rights,

privileges and immunities as secured by the Constitution.

More specifically, the plaintiff alleges that she was de-

prived of her liberty interest which entitled her to be free

from the constant threats, intimidation, sexual abuse and

sexual harassment perpetrated by Edward Wright. Ai-

though the plaintiff does not expressly link her claim to

the substantive due process clause of the fourteenth

amendment, identification of the liberty interest serves that

purpose. The critical question is whether such a right is

cognizable under the fourteenth amendment.

In discussing the breadth of the fourteenth amendment

the district court in Metcalf pointed out:

Substantive due process is a nebulous term, the

meaning of which readily changes depending on

the context of the particular situation. Sub-

stantive due process derives from the idea that

the framers of the Constitution intended to

protect rights other than those specified. In

deciding that certain rights not specified in the

constitution are protected by the due process

clause, the Court has looked to those rights

which are "so rooted in the traditions and con-

science of our people as to be ranked as funda-

mental.”

Metcalf, 615 F. Supp. at 1120. A review of the case law

will assist in the task of determining whether the rights

asserted by the plaintiff are so rooted in tradition and

conscience to rise to the ranks of fundamental.

The Supreme Court’s decision in Ingraham v. Wright,

430 U.S. 651 (1977) is instructive in this area. The issue

in /ngraham revolved around the use of corporal punish-

ment in public schools. After deciding that the eighth

amendment offered the school students no protection, the

Court turned its attention to the fourteenth amendment

due process clause.

In a summary fashion, the Court concluded that "where

school authorities, acting under color of state iaw, deliber-

ately decide to punish a child for misconduct by restrain-

ing the child and inflicting appreciable physical pain, we

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hold that Fourteenth Amendment liberty interests are

implicated.” Ingraham, 430 U.S. at 674. Thus, the Su-

preme Court recognized the existence of a substantive

right to be free from bodily abuse.

Admittedly, the liberty interests asserted in the instant

action are not identical to those asserted and recognized

by the Supreme Court in Ingraham. However, common

sense suggests that the right to be free from sexual abuse

is at least as fundamental as the right to be free from the

less intrusive physical abuse of paddling. The Supreme

Court's view that corporal punishment implicates a con-

suitutional liberty interest is persuasive evidence that allega-

tions of sexual abuse and sexual harassment would raise to

the same level.

Ingraham does not stand alone in this area; there are

other cases that recognize a similar constitutional right. In

Doe v. New York City Department of Social Services, 649

F.2d 134 (2d Cir. 1981) (Doe J), the issue was whether a

state agency could be liable for failing to protect a child

trom the physical and sexual abuse inflicted by the child's

losier father. The court did not identify the specific con-

stitutional right that formed the basis for the § 1983 ac-

tion, but it did devote significant discussion to the liability

issuc. It must be noted that in the absence of a constitu-

uonal violation there would be no need to consider liabili-

ty. Thus, by inference alone, it can be concluded that the

court in Doe I found that there existed a constitutional

right to be free from physical and sexual abuse. See also

-SS-

Doe v. New York City Department of Social Services, 709

F.2d 782 (2d Cir.), cert. denied, 464 U.S. 864 (1983) (Doe

11).

This Court also finds PL.C. v. Housing Authority of the

County of Warren, 588 F. Supp. 961 W.D. Pa. 1984) and

Doe "A" v. Special School District of St. Louis County, 637

F. Supp. 1138 (E.D. Mo. 1986) to be persuasive. The

plaintiff in PL.C. brought a § 1983 action against the

Authority after she was raped by the defendant's employ-

ce who entered her apartment with a key provided by the

Housing Authority. In a summary fashion, Judge Weber

noted that “plaintiff's right to be free from such bodily

injury and harm is a right of constitutional magnitude.”

PL.C., 588 F. Supp. at 962.

The district court in Doe "A" reached a similar conclu-

sion. That case was instituted by nine handicapped chil-

dren who were physically beaten and sexually abused by

the individual who drove them back and forth to school.

The court's discussion, regarding the existence of a consti-

tutional right, is insightful.

The acts of abuse alleged by plaintiffs state a

substantive due process claim. The acts intrude

%in an opinion written by Judge Sloviter, sitting by designation on the

Second Circuit, the court reversed the granung of a judgment notwithstand-

ing the verdict. Accordingly, the court held that the evidence was sufficient

for a jury to conclude that the state agency, acted with deliberate indiffer-

ence in regard to the plainuff’s physical safety.

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upon the personal privacy and bodily integrity

of these children. The acts intrude in ways more

personal and private than a jailhouse beating

and in ways which will surely leave psychological

scars long after physical healing is complete.

Moreover, these acts are keenly distressing

given the helplessness and blamelessness of the

victims. . . . The alleged acts of defendant

Cerny [busdriver] and the alleged tolerance of

these acts by SSD [the School District] and the

individual defendants pass beyond the pale of

common law torts. They shock the conscience

of this Court.

Doe "A", 637 F. Supp. at 1145. Although this Court is not

bound by the holding in Doe "A" it deliberately adopts that

court’s well-reasoned rationale and conclusion.!®

(Additional support for this conclusion can be adduced from Estate of

Bailey by Oare ». County of York, 768 F.2d 503 (3d Cir. 1985). That case

was brought by a father, on behalf of himself and his deceased child, after the

brutal abuse inflicted on his daughter resulted, in her untimely death. In

reviewing the district court's Fed. R. Civ. P. 12(b)(6) dismissal, the appellate

court noted: “Significantly, the court did not hoid that Aleta or her father

Gid not have a cognizable constitutional right. There is a liberty interest in

being free from plrysical assault that can be fairly attributed to the action of

a state.” Jd. at S08 n.7 (emphasis added).

This court does not view the physical abuse that rose to a constitution-

al might in Estate of Bailey, to be qualitatively different from the infliction of

sexual abuse and harassment experienced by the plaintiff in the instant action.

-%)-

Therefore, this Court holds that the constitutional right,

to be free from state intrusions into the realm of personal

privacy and bodily security, in the ways alleged in the

complaint, is well-established in law. The acts of sexual

abuse, sexual harassment and intimidation inflicted by

Edward Wright on Kathleen Stoneking, literally shocks the

conscience of this Court. As evidenced by the case law,

abuse of this type is not tolerated when the victim is a

prison inmate or a patient in a state hospital. See, e.g.,

Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 449

U.S. 849 (1980)!''; Spence v. Staras, 507 F.2d 554 (7th Cir.

1974).'2 Clearly then, the constitution must offer school

children similar protection. Thus, the Court unequivocally

rejects the defendants, assertion that the facts of this case

fail to support a violation of a constitutional right.

\lThe issue in Withers was whether the plainuff had an eighth amend-

ment right to be free from abuse inflicted by fellow prisons. Accordingly, the

court held: “A prisoner has a constitutional right ‘to be reasonably protected

from the constant, threat of violence and sexual assault from his fellow

inmates.” Withers, 615 F.2d at 161.

12-The action in Spence was brought on behalf of a son who had been

beaten to death by fellow patients in a state mental hospital. The plaintiff

alleged that the defendants recklessly ignored the twenty odd beatings that

had previously occurred. In reviewing a dismissal of the action, the appellate

court held that, “[a]ssuming, as we must on a motion to dismiss, that the

plainuff can prove these allegations, the defendants inaction was of sufficient

magnitude to constitute a deprivation of rights under § 1983." Spence, 507

F.2d at 557.

-9|-

2. Color of State Law

a. Individual defendants

The next step in the evaluation of the plaintiff’s § 1983

claim is determining whether the individual defendants

owed a specific duty to the plaintiff. It must then be

determined whether there is evidence of a breach of that

duty.

i. Defendants’ duty

The resolution of the first part of this issue is compli-

cated by the fact that neither Defendant Smith, Defen-

dant Miller nor Defendant Shuey committed the abusive

acts that are alleged in the complaint. Therefore, in order

to establish the requisite duty, the plaintiff must show the

existence of a "special relationship" between the individual

defendants and herself.!

13{n support of their position that there is no special relationship

between themselves and the plaintiff, the defendants point out that a teacher

is not considered a "person responsible for the child’s welfare,” see 11 P.S. §

2203, and does not, therefore, fall within the purview of the Child Protec-

tive Services Law. See Pennsylvania State Educ. Assoc. v. Department of Pub-

lic Welfare, 68 Pa. Cmwith. 279, 449 A.2d 89 (1982). Thus, defendants

Smith, Miller and Shuey were under no statutory duty to report suspected

instances of sexual assault that occurred in the Bradford Area High School.

The Court is not persuaded that the failure of the State to impose a

Statutory duty, to mandatorily report suspected cases of child abuse per-

petrated by school teachers, is controlling in this case. In ruling as it did in

Pennsylvania State Education, the Commonwealth Court merely concluded

that the Child Protective Services Law as intended to focus on and remedy

abuse that occurred within the structure of a family or a family-like environ-

ment. Accordingly, the court observed that "the clear import of. . . [the

-9)-

”

The Supreme Court’s opinion in Martinez v. California,

444 U.S. 277 (1980) opened the door to the concept that

"duty" in a constitutional tort could be contingent on the

finding of a special relationship. In Martinez a civil rights

action was brought by the parents of a young woman who

was murdered by a state parolee. Although the focus of

the dismissal was on lack of causation--the murder did not

occur until five months after the parole--the Supreme

Court did imply that under a different set of circum-

stances, at least a duty might be imposed. See Martinez,

444 USS. at 285.

Courts were quick to pick up on the Supreme Court’s

implications. Thus, in certain § 1983 cases the focus be-

came the nature of the relationship between the plaintiff

and the state actor.'* See, e.g. Estate of Bailey, 768 F.2d

Statutory language] is that persons responsibie for the child’s welfare cus-

tomarily provide such matters as housing, clothing, furnishings, income and

medical care for children in their care." Pennsylvania State Education, 68 Pa.

Cmnwith., at 283, 449 A.2d at 92. Teachers do not serve those functions and

are not, therefore, covered by the Act.

Notwithstanding the court’s observation, regarding the noncustodial role

of teachers, teachers and school administrators do stand in a special relation-

ship with students. Children are required by law to attend school. See 24 PS.

§ 13-1327. And authority over children who attend their schools. See 24 PS.

§ 13-1317. Clearly, then there is a special relationship that exists among

these parties.

l4 Interestingly, some courts have identified the "special relationship” as

a relationship between the plaintiff and the third person who committed the

wrongful act. For example, in Humann v. Wilson, 696 F.2d 783, 784 (10th

-93-

at 510; (action brought by father against agency charged

with protecting child from abusive family situations); Fox

v. Curtis, 712 F.2d 84 (4th Cir. 1983); (action brought

against state corrections employees who were charged with

postrelease supervision of a parolee); Bowers v. DeVito,

686 F.2d 616 (7th Cir. 1982); Doe I, 649 F.2d 134 (action

brought against state agency charged with overseeing foster

care placements); RL.C., 568 F. Supp. 961 (action brought

by female resident against Housing Authority).

The court’s opinion in Bowers v. DeVito is worth addi-

tional consideration. That case was brought on behalf of

a woman who was murdered by a person who had been

recently released from a state mental facility. The offend-

er had a seven year record of severe mental health prob-

lems and was known by the state actors to be extremely

violent. In affirming the summary judgment order, en-

tered on behalf of the State, the appellate court announc-

ed that "there is no constitutional right to be protected by

the state against being murdered by criminals or madmen."

Bowers, 686 F.2d at 618. The court did go on to qualify

that statement, however.

We do not want to pretend that the line be-

tween action and inaction, between inflicting

Cir. 1983) it was noted: “the Court considered the fact that the plainuffs’

decedent did noi stand in any special relationship to the parolee from which

the parole officers might have inferred a special danger to her.”

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————————————————————————

and failing to prevent the infliction of harm is

clearer than it is. Jf the state puts a man ina

position of danger from private persons and then

fails to protect him, it will not be heard to say

that its role was merely passive; it is as much an

active tortfeasor as if it had thrown him into a

snake pit. It is on this theory that state prison

personnel are sometimes held liable under §

1983 for the violence of one prison inmate

against another.

Id. (emphasis added).

Returning to the instant action, it is clear that although

the plaintiff was not within the custodial care of the defen-

dants, she did spend a large part of her day in an environ-

ment where defendants had ultimate control. As principal,

assistant principal and superintendent of the Bradford Area

High School, the defendants possessed certain power and

were cloaked with certain authority.!° These defendants

were charged with the duty of ensuring that the school

environment was a safe one for students. Therefore, this

1324 PS. § 13-1317 specifically provides:

Every teacher, vice principal and principal in the public schools shall

have the right to exercise the same authority as to conduct and

behavior over the pupils attending his, school, during the time they

are in attendance, including the time required in going to and from

their homes, as the parents, guardians or persons in parental relation

to such pupils may exercise over them.

-95-

Court concludes that a special relationship exits between

the plaintiff and the individual defendants.

ii. Breach of duty

The next issue before this Court is whether the defend-

ants have breached their duty to the plaintiff. The defen-

dants assert that any professional decisions they made are

presumptively correct and that liability could not attach

under such a circumstance. Accordingly, the defendants

rely on the Supreme Court’s decision in Youngberg v.

Romeo, 457 U.S. 307 (1982).

The issue in Youngberg involved the due process rights

of an individual committed to a state institution for the

mentally retarded. After holding that the plaintiff had

certain due process rights, the Court went on to explain

that those rights were not absolute. Rather, the Court

advised, a balance must be reached between the rights of

the individual and the day-to-day demands realized by the

institution. In recognizing this balance, the Supreme Court

adopted the position set forth by Chief Judge Seitz’s in his

concurring opinion.

Accordingly, the Supreme Court held:

We think the standard articulated by Chief

Judge Seitz affords the necessary guidance and

reflects the proper balance between the legiti-

mate interests of the State and the rights of

the involuntarily committed to reasonable

-96-

LOOTING AION OM PE YLESL IL OOS OE PY BE

SE ERS OOM Nm Bett EN AMT pi SRLS

conditions of safety and freedom from unrea-

sonable restraints. He would have held that

the Constitution only requires that the courts

make certain that professional judgment in fact

was exercised. It is not appropriate for the

courts to specify which of several professional-

ly, acceptable choices should have been made.’

Youngberg, 457 U.S. at 321.

The Supreme Court went on to hold that in deciding

what is "reasonable" the courts must afford deference to

the judgment of professionals. Thus:

the decision, if made by a professional, is pre-

sumptively valid; liability may be imposed only

when the decision by the professional is such a

substantial departure from accepted profession-

al judgment, practice, or standards as to dem-

onstrate that the person responsible actually did

not base the decision on such a judgment.

Id. at 323.

The defendants in the instant action argue that since

the plaintiff's claim of liability is based on policy decisions

made by Shuey, Smith and Miller, i.e., failing to investi-

gate Wright’s background before hiring him and failing to

detect and/or investigate students, complaints of abuse,

Youngberg controls. "Neither this Court nor any jury is

permitted to substitute its judgment for that of the profes-

-97-

sionals to whom these matters are properly delegated."

See Defendants Brief Submitted in Companion Case at 24.

Therefore, according to the defendants, the policy deci-

sions are presumptively correct and the plaintiffs, basis for

liability must fail.

The flaw in defendants, argument is that it fails to take

into account the situation where a decision, though made

by a professional, is a "substantial departure from accepted

professional judgment, practice or standards." In such a

case the presumption of correctness is negated. The

plaintiff must be afforded an opportunity to rebut the

In opposition to the defendants, motion for summary

judgment, the plaintiff submitted the affidavit of Dr. Chet

C. Kent, Superintendent of Keystone Oaks School Dis-

trict, Pittsburgh, Pennsylvania. The affidavit states that

the policies adopted by the defendants, for dealing with

suspected cases of sexual assault or sexual harassment,

deviated significantly from the norm. See Affidavit of Dr.

16As the Supreme Court noted in Youngberg:

a All members of the Court of Appeals agreed that respondents’

[plainuff’s] expert testimony should have been admitted. . . . [W]e

have no reason to disagree with the view that the evidence was

admissible. It may be relevant to whether petitioners’ [defendants’]

decisions were a substantial departure from the requisite professional

judgment.

Youngberg, 457 U.S. at 323.

-98-

a ky Rn he eT ee ae es eat,

Kent at 14, 18-22. Based on the affidavit of Dr. Kent, this

Court concludes that there are genuine issues of material

fact pertaining to the question of defendants, compliance

with "accepted professional judgment, practice or stan-

dards."

iii. Applicable standard

The final inquiry pertaining to the liability of the in-

dividual defendants is the standard to be applied. In its

recent decision of Daniels v. Williams, 474 U.S. 327, 106

S. Ct. 662 (1986), the Supreme Court held that "the Due

Process Clause is simply not implicated by a negligent act

of an official causing unintended loss_ of or injury to life,

liberty or property." Jd. at 663. Thus, it has been held

that more than mere negligence is needed to establish

liability on the part of state actors.

Despite defendants, allegations that "the record is bare

of any conduct of these defendants that even begins to ap-

proach the requisite standard,” see Defendants, Brief Sub-

mitted in Companion Case at 21, this Court finds that the

plaintiff has presented sufficient evidence to suggest that

there is a genuine issue of material fact. In addition to the

affidavit of Dr. Kent, there is evidence by which a jury

could conclude that: (1) the defendants were reckless in

their handling of the 1979 incident involving Judy Grove

Sowers; (2) the defendants were reckless in their failure to

investigate other reported incidents involving Mr. Wright

and female students and (3) the defendants were reckless

-99-

in their attempts to remedy and/or rectify the problems

involving Mr. Wright. In light of this evidence this Court

holds that the issue of liability is one for the jury to de-

cide.!’

b. Liability of the School District

The pivotal case in the area of municipal liability under

§ 1983 is Monell v. Department of Social Services of City of

New York, 436 U.S. 658 (1978). Reversing its earlier deci-

sion in Monroe v. Pape, 365 U.S. 167 (1961), the Supreme

Court in Monell held that a municipal corporation is a

person for purposes of § 1983. Therefore, a municipality

may be liable for damages that arise out of a violation of

a constitutional right. As determined by the Court in

Monell, however, municipal liability is not without limits.

In addressing the exposure of municipal corporations to

§ 1983 liability, the Monell Court excluded liability based

on principles of respondent superior. The Court noted:

"Congress did not intend municipalities to be held liable

unless action pursuant to official municipal policy of some

'7 The defendants also contend that there is no evidence that their acts

were the cause of the injuries sustained by the plaintiff. Again, this Court

concludes that this issue is one best left for, the jury. The deposition

testimony suggests that the defendants i.andli:.g of the incident involving

Judy Sowers Grove provided Mr. Wright with additional ammunition with

which to coerce and/or manipulate the plaintiff. See Deposition of Kathleen

Stoneking at 225, 250-51 (September 12, 1986). See also Deposition of Kim

Harbaugh at 409-16, 432-34; Deposition of Lisa Rovito at 173, 234.

-100-

nature caused a constitutional tort. In particular, we

conclude that a municipality cannot be held liable solely

because it employs a tortfeasor." Monell, 436 U.S. at 691.

Rather, "it is when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy,

inflicts the injury that the government as an entity is

responsible under § 1983." Id. at 694.

The Court in Monell did not delve into the differences

between a "policy" and a "custom," but did point out that

municipal liability could attach if either were established.

Advisedly, the Court noted:

although the touchstone of the § 1983 action

against a government body is an allegation that

official policy is responsible for deprivation of

rights protected by the Constitution, local gov-

ernments, like every other § 1983 "person," by

the very terms of the statute, may be sued for

constitutional deprivations visited pursuant to

governmental "custom" even though such a

custom has not, received formal approval through

the body’s official decision-making channels.

Id. 690-91 (Emphasis added).

In recent cases the Supreme Court has expounded on

the issue of "municipal liability." See, e.g., Brandon v. Holt,

469 U.S. 464 (1985); City ef Oklahoma City v. Tuttle, 471

-101-

U.S. 791 (1985). The Court's holding in Brandon is par-

ticularly instructive.

Brandon was instituted by individuals who had been

"viciously assaulted” by a Memphis City police officer; the

action was filed against the director of the police depart-

ment in his official capacity. In awarding the plaintiffs

compensatory damages the district court concluded that

the director of the department, although without actual

knowledge, should have known that the police officer who

perpetrated the attack had “dangerous propensities.”

Holding that the director was shielded from liability by the

doctrine of qualified immunity, the appellate court revers-

ed the district court’s decision.

The Supreme Court was of a different opinion. The

Court concluded that "judgment against a public servant,

in his official capacity, imposes liability on the entity that

he represents provided, of course, the public entity re-

ceived notice and an opportunity to respond.” Brandon,

469 U.S. at 471-72. Thus, liability imposed on the Direc-

tor of the City Police, in his official capacity, would result

in liability on the part of the municipal entity.

Decided just a few months after Brandon, the Court's

decision in Tuttle addresses a different aspect of municipal

hability. In Title the Court was called on to decide

whether jury instructions in a “failure to adequately train”

case comported with the applicable law. In reaching its

decision that the charge did not comport with the law, the

-102-

Court expounded on the requirement of an official custom

or policy.

The Court attempted to distinguish the difference be-

tween a policy or custom that was itself unconstitutional

and one that was not.'® The Court set forth the following

parameters.

Proof of a single incident of unconstitutional

activity is not sufficient to impose liability under

Monell, unless proof of the incident includes

proof that it was caused by an existing, uncon-

stitutional municipal policy, which policy can be

attributed to a municipal policymaker. Other-

wise the existence of the unconstitutional policy,

and its origin, must be separately proved. But

where the policy relied upon is not itself uncon-

stitutional, considerably more proof than the

single incident will be necessary in every case to

establish both the requisite fault on the part of

the municipality, and the causal connection

between the “policy” and the constitutional

deprivation.

IStThe Supreme Court expressly declined to rule on the issue of whether

@ policy that was not itself unconstitutional could ever meet the policy

requirement of Monell. Tuttle, 471 U.S. at 804 n.7.

-103-

Read together, Brandon and Tuttle seem to suggest at

least two conclusions. First, if a “municipal servant” is

found to be liable, in his or her official capacity, for consti-

tutional violations, then, the municipality will also be liable.

Second, if a policy, practice or custom of a municipal entity

is not itself unconstitutional, liability will only attach if

there is proof of more than a single episode of a constitu-

tional deprivation.

In the instant action, the plaintiff alleges that the School

District, acting through Dr. Smith, Mr. Miller and Mr.

Shuey, had a practice or custom of failing to take appropri-

ate action with respect to teachers who posed a threat to

the health, safety and welfare of female students. More

specifically, the plaintiff alleges that the School District

failed to investigate reports of sexual abuse and permitted

teachers to remain in charge of extracurricular activities

despite the knowledge that these teachers presented a

danger to female participants. According to the plaintiff,

the above mentioned practice or custom of the School

District was the proximate cause of her injuries.

In order to determine whether the School District,

acting through its agents, had a practice or custom that

"caused" the plaintiff's injuries, such that municipal liability

will attach, this Court must review the allegations and

depositions. The first incident that purports to support the

-104-

~=_ ——--=

inference that the defendants had a practice or custom

occurred in late 1977 or early 1978.!?

According to the deposition testimony of Theresa

Rodgers, she was sexually accosted by her social studies

teacher, Rodgers, Richard DeMarte, in her senior year.

Ms. Rodgers testified that she immediately reported this

incident to Mr. Miller and Dr. Smith, whereupon she was

warned that it was going to be her word against Mr.

DeMarte’s and that she should not go home and tell her

parents about the assault. Ms. Rodgers further testified

that the principal suggested that she stay away from Mr.

DeMarte, if ai all possible, and then counselled her that

he would take care of it. Deposition of Theresa Rodgers

ai 113-14.

Despite Dr. Smith’s assurance that "he would take care

of it," Theresa Rodgers was never informed of any action

taken against Mr. DeMarte. Mr. DeMarte’s personnel file,

maintained by the School District, conspicuously lacks any

record of disciplinary action taken against him during the

pertinent time period. In fact, Dr. Smith gave Mr.

DeMarte a perfect score on his teaching evaluation, re-

markably, an evaluation that included assessment of "emo-

tional stability,” "social adjustment,” "judgment" and "habits

of conduct.” See Plaintiff's Exhibit 4 filed in Companion

Case.

I9See Deposition of Theresa Rodgers at 108.

-105-

Additionally, female students voiced complaints against

Mr. DeMarte in January, 1981; March, 1981; November,

1982 and October, 1985.2? Dr. Smith and Mr. Miller had

direct notice of all these complaints. Mr. Shuey was in-

formed of at least two of the above noted complaints. See

Defendants, Second Supplemental Brief Submitted in Com-

panion Case at 4. The personnel file of Mr. DeMarte is

silent as to these incidents. Furthermore, it is not clear

what, if any, disciplinary action was taken against the

teacher. Significantly, Mr. DeMarte is still coaching the

girls, tennis team.

The next critical series of events, upon which liability of

the School District is based, occurred in the fall of 1979.

At that time, Judy Grove, a high senior and member of

the band, reported to Mr. Miller and Dr. Smith that the

band director, Edward Wright, had sexually assaulted her.?!

It will fall to a jury to-ascertain the exact sequence of

events that immediately preceded and foliowed—Judy_

9 ‘ ;

20s conveyed to the administration, Mr. DeMarte attempted to molest

a young woman during Homecoming activities. Both Dr. Smith and Mr.

Miller received notice of the complaint.

2IMr. Miller testified that, prior to talking co Judy, he had received a

phone call from Mr. Wright informing him about the “rumors” involving Ms.

Grove. Apparently, Mr. Wright was seeking advise on how to quiet the ru-

mors. See Deposition of Mr. Miller at 55-56.

-106-

Grove’s disclosure. A review of the deposition testimony

of Frederick Smith, Richard Miller, Judy Grove, and her

father, Hayward Grove, demonstrates a great divergence

of views. However, for purposes of summary judgment,

the evidence must be viewed in the light most favorable

to the non-moving party. Additionally, the Court must

' consider reasonable inferences that might be drawn in

favor of the plaintiff. Since the testimony of Judy Grove

is most favorable to the plaintiff, the Court will review that

testimony in some detail.”

Aithough Ms. Grove’s recollections, regarding specific

dates and times, were somewhat vague, her deposition

testimony was rather-emphatic on other points. Judy

Grove testified that she relayed the incident of the sexual

assault to both Mr. Miller and Dr. Smith.”° According to

her testimony, Dr. Smith implied that in light of the cir-

cumstances--Judy had been drinking on the evening of the

assault--she was responsible for the assault. Dr. Smith

warned that she would not look good if the facts got out.

Judy reports that she was frightened and felt as though

tee

221Despite defendants, characterization of Ms. Grove’s testimony, as

“ridiculous,” “preposterous” and “incredible,” see Defendants Supplemental

Brief Submitted in Companion Case at 4, 9, the Court accepts the testimo-

ny as plausible.

23Mr. Shuey was apprised of the incident involving Judy Grove and

Edward Wright by both Mr. Miller and Dr. Smith. See Deposition of Mr.

Shuey at 17-22.

-107-

—

she was receiving no support from the Administrators. It

was only after being threatened with public disclosure and

personal humiliation that Judy retracted, in a rather flip-

pant fashion, that the assault had occurred.”4

Sometime after these initial meetings, Judy’s father re-

quested a conference. Prior to inviting Judy into the

conference, Mr. Miller and Dr. Smith talked with Mr.

Grove. Mr. Grove testified that an effort was made to

convince him that no teacher would behave in the fashion

alleged by Judy. See Deposition of Hayward Grove at 36,

240: He, {Dr. Smith] told you it was your fault, or is that the impression

you had?

A: No. He said it was my fault. That’s why he wanted 'o clear up

the rumors because he wanted the band to get back on their feet again.

Q: Did you tell him during that conversation that the rurmors were

not correct?

A: He had iold me that if the rumors were true I would be--I could

find myself in front of a jury, in front of a judge, telling exactly what hap-

pened, that being that I had been drinking [and that I was] at his house

voluntarily, I would look like--] wouldn't look very good, is what he said.

At that point I said, “Forget it. It’s not true.”

Q: So whatever the reason, you did tell Dr. Smith that these rumors

were not true--

A: He told me that my parents would be called; he would call my

father down and my mother right then. I said, “Forget it. I don’t want to

go through with it.” You know. “Just forget it.”....”" If I have to go

through all of this they're not true.”

Deposition of Judy Grove at 46-47 (September 12, 1986).

-108-

41. Although when Mr. Grove entered the meeting he

was confident that his daughter’s version of the facts were

true, he admitted to being less certain after conferring with

these Administrators. Id.*°

One of the topics of discussion at the above mentioned

conference was whether Judy would be able to remain in

the band. As perceived by both Judy and her father she

had a choice: recant her story in front of the assembled

band or withdraw from all band activities. See Deposition

of Judy Grove at 59-60, 68; Deposition of Hayward Grove

at 44, 47, 49. As recalled by Judy, the suggestion to ap-

pear before the band and dispel the "rumors," about Mr.

Wright, originated with Dr. Smith. See Deposition of Judy

Grove at 74 (September 12, 1986).

25 Another critical fact relates to Judy’s deliberate attempt to seek help

from Gene Dillard, an independent alcohol and drug counsellor. Mr. Dillard

spent time at the Bradford Area High Schooi in September, 1979. At the

conclusion of all group informational sessions, Mr. Diilard invited students to

talk with him individually. Judy Grove seized that opportunity and confided

in Mr. Dillard.

As set forth in his deposition testimony, Judy told Mr. Diilard that she

had been sexually assaulted by Mr. Wright. With the express consent of

Judy, this information was directly relayed to Dr. Smith and Mr. Miller. Mr.

Dillard offered his opinion that other students had probable been subject to

Wright's abuses. The Administrators assured Mr. Dillard that the matter

would be taken care of.

-109-

In early January, 1980, Dr. Smith assembled all the band

members.*° He proceeded to acknowledge that rumors

had been circulating and that a certain student would

address those rumors. The floor was turned over to Judy.

As recalled by Judy, pressed with questions by her peers,

She fled the room in tears. It is not clear whether an

apology was ever actually offered.

The episode of the forced apology has special signifi-

cance in light of the assaultive conduct that occurred

between Edward Wright and Kathleen Stoneking. Ap-

parently, the "forced apology” served as a trump card in

the hands of Edward Wright. When a student would

threaten to disclose the abuse, Wright quickly reminded

his victim about the "Judy Grove incident." His message

was clear and convincing: "No one believed Judy Grove,

why would anyone believe you." See infra Note 17. His

tactical threat proved to be quite effective at least for a

period of time.

In reviewing the above events, for the purpose of evalu-

ating the liability of the School District, this Court need

not decide whether the School District had a practice or

custom, of dealing with complaints of sexual abuse or

harassment, which "caused" the plaintiff’s injuries. Nor is

9. ; , ,

“At, or about the same time, Dr. Smith directed Mr. Wright to cease

all One-on-one contact with female students. The enforcement of this

direciive was left solely up to Mr. Wright.

-110-

it for this Court to determine whether Dr. Smith, Mr.

Miller and Mr. Shuey are liable in their official capacities,

such that liability could be imputed to the School District.

See Brandon. 469 U.S. 464. Rather, this Court is charged

with the task of evaluating the record evidence and deter-

mining whether genuine issues of material facts exist. The

ultimate issue of liability is one with which the jury must

wrestle.

For the purposes of this motion, the Court concludes

that there is sufficient evidence from which a jury could

infer the existence of a practice or custom. Additionally,

it could be inferred from the evidence that the School

District was responsible for the practice or custom and that

the practice or custom caused the plaintiff’s injuries. Thus,

the defendants, motion, as it pertains to the liability of the

School District, must be denied.

C. Qualified Immunity

The standard to be applied in resolving a qualified

immunity issue is well-settled. In Harlow v. Fitzgerald, 457

U.S. 800, (1982), the Supreme Court revised the qualified

immurii.y standard and held that "government officials

performing discretionary functions generally are shielded

from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional

rights, of which a reasonable person would have known."

Id. at 818. Thus, the pending question, in terms of the

qualified immunity defense, is whether the plaintiff had a

-111-

i ; sr

constitutional right which at the time of the alleged viola-

tion, was clearly established.

As the Court concluded in Section IV B (1) of this

opinion, the plaintiff has alleged a viable claim of a con-

Stitutional violation. According to the Court’s conclusion,

there is a special relationship that existed between the

plaintiff and the individual defendants. As a result of this

relationship defendants had a duty to provide a reasonably

safe environment for the plaintiff. There is nothing new

or novel about this constitutional right or this duty. See.

e.g., Ingraham v. Wright, 430 U.S. 651 (1977); Martinez v.

California, 444 U.S. 277 (1980); Spence v. Staras, 507 F.2d

554 (7th Cir. 1974); Withers v. Levine, 615 F.2d 158 (4th

Cir. 1980); Doe I, 649 F.2d 134 (2d Cir. 1981); Stokes v.

Delcambre, 710 F.2d 1120 (Sth Cir. 1983).

This Court concludes that a reasonable person would

have been aware that the piaintiff had a substantive due

process right to be free from intrusions into her "personal

privacy and bodily integrity." As the court in Hall v.

Tawney, 621 F.2d 607 (4th Cir. 1980) so aptly stated:

[t]he existence of this right to ultimate bodily

security--the most fundamental aspect of per-

sonal privacy--is unmistakably established in our

constitutional decisions as an attribute of the

ordered liberty that is the concern of substan-

tive due process. Numerous cases in a variety

of contexts recognize it as the last line of de-

-112-

fense against those literally outrageous abuses

of official power whose very variety makes

formulation of a more precise standard impossi-

ble. Clearly recognized in persons charged with

or suspected of crime and in the custody of

police officers, we simply do not see how we

can fail also to recognize it in public school

teachers.

Id. at 613. Thus, defendants are not entitled to qualified

immunity.

D. Pendent State Claims

Since the Court denied the defendant’s motion for sum-

mary judgment, as it pertained to the plaintiff's § 1983

claims, this Court retains subject matter jurisdiction over

the pendent state claims. See United Mine Workers v.

Gibbs, 383 U.S. 715 (1966).

The only remaining question is whether the complaint

sets forth state law claims. The plaintiff’s complaint does

not identify a specific state law cause of action;?’ the

27Reference in the complaint to 42 Pa. C.S.A. § 8550 appears to be

offered only as a means of demonstrating that the doctrine of “official

immunity” may fail to shield these defendants from suit.

In part, 42 Pa. C.S.A. § 8550 provides:

In any action against a local agency or employee thereof nor damages

on account of an injury caused by the act of the employee in which

it 1S judicially determined that the act of the employee caused the

-113-

pleadings are not sufficient to give notice of the claim

alleged. Thus, this Court concludes that the motion for

summary judgment, as it pertains to the state law claims

set forth in Counts II, IV and VI, is granted.

An appropriate order shall be issued.

injury and that such act constituted a crime, actual fraud, actual

malice or willful misconduct, the provisions of the sections 8545

(relating to official liability generally), 8546 (relating to defense of

official immunity), 8548 (relating to indemnity) and 8549 (relating to

limitation on damages) shall not apply.

-114-

ORDER

MENCER, J.

AND NOW, this 28th day of August, 1987, for the

reasons set forth in the accompanying Opinion,

: IT IS HEREBY ORDERED that:

(1) the Motion for Summary Judgment, filed on behalf

of the Defendants, Bradford Area School District, Freder-

ick Smith, Richard Miller and Frederick Shuey, is

DENIED as the Motion relates to Counts I, III, V and

VII of the Complaint;

(2) the Motion for Summary Judgment, filed on behalf

of the defendants, is GRANTED as it pertains to Counts

II, 1V and VI of the Complaint.

Judgment is entered in favor of the Defendants and

against the Plaintiff, Kathleen Stoneking, on Count I],

Count IV and Count VI of the Complaint.

IT IS FURTHER ORDERED that the Defendants shall

file a Pretrial Narrative Statement by September 18, 1987.

The trial, scheduled for September 8, 1987, is continued.

A Pretrial Conference shall be held on Wednesday, Octo-

ber 7, 1987, at 4:00 pm in Room 310, United States Court-

house, Erie, Pennsylvania.

-115-

————

F. Order, Denial of Defendants’ Petition

to Appeal Issue and Statute of Limitations,

U.S. Court of Appeals for Third Circuit,

No. 87-8061, October 21, 1987

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-8061

KATHLEEN STONEKING, Appellee

Vv.

BRADFORD AREA SCHOOL DISTRICT, etc., et al.,

(W.D. D.C. Civil No. 87-63 E)

Present: SLOVITER and BECKER, Circuit Judges.

Petition for permission to appeal,

Brief in Opposition to appellants’ petition for per-

mission to appeal,

's/ Martha Sanchez

Deputy Clerk 7-3080

Detendants’ petition for permission to appeal the

district court's ruling on the statute of limitations question

is denied,

For the Court,

s/ Dolores K. Sloviter

Dated: October 21. 1987

-] 19.

G. Opinion of U.S. Court of Appeals for

Third Circuit, No. 87-3637, September 12, 1988

Stoneking v. Bradford Area School District, et al.

-121-

—_— - as eats a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 87-3637

KATHLEEN STONEKING

BRADFORD AREA SCHOOL DISTRICT, FREDERICK

SMITH, in his individual and official capacity as

principal of the Bradford Area High School;

RICHARD MILLER, in his individual and official

capacity as assistant principal of the Bradford Area

High School; and FREDERICK SHUEY, in his

individual and official capacity as Superintendent of

the Bradford Area School District,

Frederick Smith, Richard Miller

and Frederick Shuey,

Appellants

On Appeal from the United States District

Court for the Western District

of Pennsylvania (ERIE)

(D.C. Civil No. 87-00063 E)

Argued February 3, 1988

Before: SLOVITER, STAPLETON, and MANSMANN,

Circuit Judges

(Filed September 12, 1988)

Kenneth D. Chestek (Argued)

Murphy, Taylor & Adams, P.C.

Erie, PA 16501

James D. McDonald

McDonald Law Group

Erie, PA 16507

Attorneys for Appellants

Deborah W. Babcox (Argued)

Pecora, Duke & Babcox

Bradford, PA 16701

Wallace J. Knox

Sean J. McLaughlin

Knox Graham McLaughlin Gornall

and Sennett, Inc.

Erie, PA 16501

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge. —

Facts

This is an appeai by the individual defendants

from the district court's order denying their motion for

Summary judgment on the grounds of qualified

immunity in an action brought under 42 U.S.C. § 1983

(1982). We have jurisdiction of this appeal under 28

U.S.C. § 1291 (1982). See Mitchell v. Forsyth, 472 U.S

511, 530 (1985); Hynson v. City of Chester, 827 F.2d

932, 933 (3d Cir. 1987), cert. denied, 108 S. Ct. 702

(1988). Our review of a grant or denial of summary

judgment is plenary and, like the district court, we

must view the facts in the light most favorable to the

non-moving party. See Anderson v. Liberty Lobby,

-124-~

ee ee

i ian nes Asati it alba

win gies

s. A cidiahtal

Inc., 477 U.S. 242, 255 (1986); see aiso Hynson, 827

F.2d at 933.

In Mitchell, the Supreme Court stated that “a

defendant pleading qualified immunity is entitled to

dismissal before the commencement of discovery.” 472

U.S. at 526. Defendants agree that in this case we need

look only at the pleadings. Appellants’ Brief at 5. We

turn, therefore, to the allegations of the complaint.

Kathleen Stoneking, during the relevant period a

student at the Bradford Area High School, brought this

action against the Bradford Area School District,

Frederick Smith, the principal of the Bradford Area

High School, Richard Miller, the assistant principal,

and Frederick Shuey, the superintendent of the

Bradford Area School District.

She alleges that the School District hired Edward

Wright to serve as its band director in 1976; that

during Wright's tenure as band director the band won

numerous competitions and Wright enjoyed strong

support and backing of the School District and its

officials; that a female member of the band informed

Principal Smith in 1979 that Wright had attempted to

rape and/or sexually assault her but that Smith failed

to conduct an investigation or report the allegations to

appropriate authorities and instead required the

student to issue a public apology to Wright and retract

her allegations; that Smith instructed Wright to have

no further “one on one” contact with female band

members; that plaintiff Stoneking participated in the

band during her sophomore, junior and senior years

until her graduation in 1983; and that beginning in

October 1980 and continuing thereafter until May of

1985, Wright, through physica! force, threats of

reprisal, intimidation and coercion, sexually abused

Stoneking, harassed her, and forced her to engage in

various sexual acts with him at various places,

including the high school’s band room and its

-125-

environs, Wright’s vehicle and house, and on trips for

band functions. The complaint also alleges that in

March 1986 Wright resigned after a psychologist

reported a complaint concerning Wright's sexual abuse

of another female band member, and that he was

thereafter prosecuted criminally for various sex-related

crimes.

Stoneking pleads that there was a special custodial

relationship between herself and the defendants, that

Smith and Miller had actual notice of the allegations of

Wright’s sexual misconduct and that Shuey either

knew or recklessly failed to discover that Wright was

sexually abusing female band members. She alieges

that the defendants were intentionally, recklessly and

deliberately indifferent to the health, safety and welfare

of the female student body in general and the plaintiff

in particular in that they failed to report the various

incidents of suspected sexual abuse of female band

members by Wright; failed to adopt an effective policy

or policies to prevent the sexual abuse of female

students and to promptly report complaints of such

abuse to appropriate authorities; failed to properly and

vigorously investigate reports of sexual abuse by

Wright of female band members; concealed from

parents of female band members and public officials

the various complaints and accusations that had been

made against Wright since 1979; continued to permit

Wright to function as band director despite actual

notice that he presented a significant threat; and

encouraged and perpetuated the custom and course of

conduct at the high school whereby allegations of

sexual abuse or mistreatment by Wright and other

teachers were not investigated and reported.

Stoneking alleges that as a result she suffered severe

psychological trauma, including severe depression,

loss of self-esteem, mental anguish, embarrassment

and humiliation, and she seeks compensatory and

punitive damages.

-126-

ae ee re

In their answer,' defendants deny most of the

allegations directed to liability but admit that in 1979

Smith questioned a female band member regarding a

possible relationship with Wright, allege that the

student denied the relationship and said she had

fabricated the story, admit that in 1984 Smith directed

Wright not to place himself in a one-on-one situation

with female students, admit that Superintendent

Shuey was advised of the actions taken by Smith with

respect to Wright, and admit that Smith had a

chronological miscellaneous file with notations

concerning matters raised about Wright.

Following some discovery, defendants moved for

summary judgment on the ground, inter alia, of

qualified immunity.* They contended that “no clearly

settled law existed, either at the time of the incidents

complained of in the plaintiffs Complaint or as of the

present time, which would cause a reasonable person

to know either of the constitutional right which

allegedly has been violated or that the alleged acts or

failure to act on the part of the individual defendants

ei Defendants filed their answer after the court denied their

motion to dismiss raising, inter alia, qualified immunity as a

defense.

2. The defendants also asserted that Stoneking’s federal claim

was barred by the applicable statute of limitations, that Stoneking

had not established a violation of her constitutional rights, and

that she had failed to state a cause of action under either section

1983 or state law. The district court denied the motion as it

pertained to the federal claim, but granted it as to the state law

claim, stating that “the pleadings are not sufficient to give notice of

the claim alleged.” Stoneking v. Bradford Area School Dist.. 667 F.

Supp. 1088, 1103 (W.D. Pa. 1987). The district court later certified

its orcer as it related to the statute of limitations issue for

interlocutory appeal and continued the trial of the case pending

appeal. By an order dated October 13, 1987, this court denied

defendants’ petition for permission to appeal the district court's

ruling on the statute of limitations issue. Stoneking v. Bradford

Area School Dist., No. 87-8061 (3d Cir. Oct. 13, 1987).

-127-

would lead to a violation of that constitutional right.”

Defendants’ Motion for Summary Judgment, Rovito v.

Bradford Area School Dist., No. 86-133 (W.D. Pa.)

(filed April 10, 1987).°

The court denied summary judgment on the

qualified immunity ground. Stoneking v. Bradford

Area School Dist., 667 F. Supp. 1088, 1102 (W.D. Pa.

1987). In its opinion, the court referred to evidence

submitted in the cases with which this action was

consolidated, see supra note 3,* including the affidavit

of Dr. Chet C. Kent, Superintendent of Keystone Oaks

School District, which stated that the policies adopted

by the defendants for dealing with suspected cases of

sexual assault or sexual harassment deviated

significantly from the norm. 677 F. Supp. at 1097-98.

The court held that plaintiff had alleged violation of a

clearly established constitutional right and that there

was evidence by which a jury could conclude that

defendants were reckless in their handling of the i979

incident which involved Judy Grove,” in their failure to

3. Defendants’ motions incorporated by reference their

comparable motions filed in similar actions filed by two other

Bradford Area High School students, Kim Harbaugh and Lisa

Rovito, who allege that they were sexually abused by Wright and

assert liability on the same basis as does Stoneking. Prior to ruling

on the summary judgment motion, the district court consolidated

Stoneking’s actions for trial with those of Harbaugh and Rovito.

See 667 F. Supp. at 1089 n.1.

4. In response to an order entered by this court on June 20,

1988, the district court entered an order on July 7, 1988

supplementing the Stoneking record with the materials submitted

in the Harbaugh and Rovito cases.

5. There is evidence that in the fall of 1979, Judy Grove, a

female band member, complained to Smith and Miller that Wright

had sexually assaulted her, that Grove’s complaint was confirmed

to Smith and Miller both by Grove'’s father and by an independent

student counselor and that Smith and Miller responded by

presenting Grove with the choice of either withdrawing from the

-126-

Se i ie eae oe en er ea

pid issn

investigate other reported incidents involving Wright

and female students,° and in their attempts to remedy

and/or rectify the problems involving Wright.’ The

court held that in light of the above, the issue of

liability is one for the jury to decide.

band or publicly recanting her story. Grove testified that in 1979,

Smith instituted a policy whereby Wright was forbidden from

having one-on-one contact with any female student. Defendants’

answer admits that Shuey had knowledge of the 1979 Grove

incident. Dr. Chet C. Kent opines that the handling of the Grove

incident was “so far below the minimum accepted and generally

prevailing administrative standard that [it] constituted deliberate

or recklessly indifferent conduct ... .” Affidavit of Chet C. Kent,

submitted by Kim Harbaugh in response to Defendants’ Motion for

Summary Judgment (hereinafter Kent Affidavit) at 17.

6. There is evidence that, for example, in 1984, the year

following Stoneking’s graduation from the Bradford Area High

School, another female band member complained to Smith that she

was being sexually abused by Wright. In response, Smith reiterated

the no one-on-one policy between Wright and female students that

he had instituted in connection with the Grove incident, and told

Wright not to discuss the incident with anyone. Smith also

informed Shuey of the student’s complaint and of the actions that

he had taken in response. Kent concludes that in view of the fact

that neither Smith nor Shuey investigated the complaint, informed

the student's parents, called the child abuse hot line, or disciplined

Wright in any way, “their behavior demonstrates deliberate or

reckless indifference and callous disregard for [the student's]

safety.” Kent Affidavit at 18.

The factual nature of the evidence before the court. see also

supra note 5 and in

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