Appendix — Smith v. Sowers

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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

JUDY GROVE SOWERS

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.

518 State Street

Erie, Pennsylvania 16501

(814) 459-0234

James W. Harvey

Israel and Wood, P.C.

Suite 501 Grant Building

Pittsburgh, Pa. 15219

(412) 391-1114

Attorneys for Petitioners

TABLE OF CONTENTS

Proceedings in Smith v. Sowers

Order of U.S. Court of Appeals for

Third Circuit, No. 88-3640,

September 28, 1989.

Complaint, Sowers v. Bradford Area

School District, et al. No. 88-57 Erie,

February 17, 1988.

Motion to Dismiss, Sowers v. Bradford

Area School District, et al. No. 88-57

Erie, April 12, 1988.

Excerpts of Transcript of Judy Grove

Sowers Deposition, September 12, 1986.

Opinion and Order, U.S. District for

Western District of Pennsylvania, No.

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

694 F.Supp. 125.

Order of U.S. Court of Appeals for

Third Circuit, No. 88-3640, January

31, 1989.

Order of Supreme Court of the United

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

Proceedings in Smith v. Stoneking

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).

Opinion of U.S. Court of Appeals for

Third Circuit, No. 87-3637, September

12, 1988.

Order of Supreme Court of the United

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

Opinion and Order, U.S. Court of Appeals

for Third Circuit, No. 87-3637, August

16, 1989 (on remand).

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135

165

169

A. Order of U.S. Court of Appeals for Third

Circuit, No. 88-3640, September 28, 1989

Sowers v. Bradford Area School District, et al.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-3640

JUDY GROVE SOWERS

Appellee

Vv.

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 Remand from the

Supreme Court of the United States

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 88-00057 E)

-3-

Submitted Pursuant to Third Circuit Rule 12 (6)

September 8, 1989

BEFORE: GIBBONS, Chief Judge, and GREENBERG

and SEITZ, Circuit Judges

JUDGMENT ORDER

The within matter having been remanded to this

court by judgment of the Supreme Court of April 3, 1989,

for further consideration in light of DeShaney v. Winnebago

County Department of Social Services, 109 S.Ct. 998 (1989),

and our previous judgment having been vacated by the

Supreme Court, and we having reconsidered the matter on

the basis of the original record and the further briefing by

the parties and;

It appearing to the court that despite the less com-

pelling factual circumstances, an affirmance at this stage of

the litigation is essentially required by the panel's opinion

on remand from the Supreme Court in Stoneking v. Brad-

ford Area School District, No. 87-3637, decided August 16,

1989, and see IOP Chapter 8C, it is

ADJUDGED and ORDERED that the judgment of

the district court be and is hereby affirmed; and

It is further ORDERED that the matter is re-

manded to the district court for further proceedings.

Costs taxed against appellants.

BY THE COURT,

/s/ Morton I. Greenberg

ATTEST:

/s/ Sally Mrvos, Clerk

September 28, 1989

B. Complaint, Sowers v. Bradford Area School

District, et al., No. 88-57 Erie, February 17, 1988

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JUDY GROVE SOWERS,

Plaintiff

VS No. 88-57

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 Bradford Area High

School; and FREDERICK SHUEY, in his

individual and official capacity as

Superintendent of the Bradford Area

School District,

Defendants

COMPLAINT

Parties and Jurisdiction

1. The plaintiff, Judy Grove Sowers (hereinafter

"plaintiff"), is a citizen of the Commonwealth of Pennsylva-

nia and resides in Bradford, Pennsylvania.

2. The defendant, Bradford Area School District

(hereinafter the "Schoo! District"), is a local governmental

agency organized pursuant to the laws of the Common-

-9.

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 Pennsylva-

nia, 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,

who is and was at all material times the Assistant Principal

of the Bradford Area High School.

5. The defendant, Frederick Shuey (hereinafter

"Shuey"), is a citizen of the Commonwealth of Pennsylva-

nia, residing in Bradford, Pennsylvania, who was at all

material times the Superintendent of the School District.

6. This action arises under Title 42 of the United

States Code, $1983 and this court has jurisdiction of this

action pursuant to Tile 28 of the United States Code,

§§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-

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ing the band and music programs of the School District,

including the selection of student participants, the schedul-

ing and conducting of practice sessions, including a summer

camp, and scheduling and conducting 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 competi-

tions, as a result of which Wright enjoyed the strong

support and backing of the School District and its officials.

11. The plaintiff graduated from Bradford Area

High School in May of 1980 and was a member of the

band during her sophomore, junior and senior years.

12. On or about June 16, 1979, the piaintiff was

sexually assaulted by Wright.

13. In or about September of 1979, the plaintiff

reported the sexual assault to a visiting youth counselor,

Gene Dillard, who was lecturing in the School District at

the request of the Administration.

14. Subsequent to that conversation, Dillard,

personally met with defendants Smith and Miller and a

Guidance Counselor whose identity is presently unknown

and advised them of the reports of sexual abuse and ha-

rassment by Wright and further advised that he considered

the reports to be accurate.

15. At or about the same time, and periodically

thereafter during the fall and early winter of the school

year 1979-1980, the plaintiff met with defendants Smith

and Miller and personally informed them of the sexual

assault by Wright.

16. During these meetings with the plaintiff,

defendants Smith and Miller actively discouraged the

plaintiff from pursuing her remedies in court against

Wright through intimidation, threats and coercion, and

further indicated to the plaintiff for reasons unknown to

her at the time, that they did not believe her.

17. In or about January of 1980, defendant Smith

required the plaintiff, as a condition of her continued

participation in the band, to appear before the assembled

high school band for the purpose of issuing a public apolo-

gy for having accused Wright of the sexual assault.

18. At the band meeting, the defendant Smith

opened the floor to questions from plaintiff’s fellow stu-

dents, but the plaintiff did not issue an apology and left the

band room in an extremely emotional state.

19. Defendant Shuey was on actual! notice of

plaintiff’s allegation of sexual molestation by Wright and

was also aware of and condoned the administrative re-

sponse thereto.

20. Prior to his employment in the Bradford

School District, Wright had attempted to sexually molest

and/or harass various female students while employed as

the band director in the Jasper School District.

21. During his tenure in the Bradford School

District, Wright had sexually abused and/or harassed other

female students in the District both prior and subsequent

to assaulting plaintiff.

22. The defendants were on actual or construc-

tive notice that Wright posed a significant threat to the

health, safety and welfare of the female student body at

Bradford High School in general and the plaintiff in partic-

ular prior to June 16, 1979.

Count I

Judy Grove Sowers v. Bradford Area School District

23. Paragraphs 1 through 22 are incorporated

herein by reference as if fully set forth.

24. There existed in the Bradford School District

a widespread practice, custom and/or policy with the knowl-

edge and acquiescence of administrative personnel, includ-

23.

ing Smith, Miller, Shuey and the Bradford School Board,

of reckless indifference to and/or active concealment of

instances of known or suspected sexual abuse of students

by teachers.

25. This pernicious practice, custom and/or policy

existed prior and subsequent to the assault by Wright of

the plaintiff. However, its existence was unknown and

unknowable to the plaintiff at the time.

26. In support of the above averment, the plain-

tiff pleads with particularly the following: (Only the initials

of the victims of the sexual abuse and/or harassment are

set forth below. The full names of the victims involved will

be divulged to the court, in camera, if desired.)

(a) During the school year of 1977-78, a female

senior at the Bradford High School, T.R., com-

plained to defendants Smith and Miller that a

history teacher and girls’ tennis coach, Richard

DeMarte, had made improper sexual advances

toward her in a classroom. No disciplinary action

was taken against DeMarte and the student was

told by the defendants not to tell her parents of

the incident.;

(b) In or about 1978, and periodically thereafter,

defendants Smith, Miller and Shuey received

complaints of sexually abusive language and/or

improper sexual advances by a Shop Teacher,

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George Brady. No disciplinary action taken

against Mr. Brady and the administrative response

was to place a sign on Brady’s shop door prohibit-

ing students from congregating there;

were advised by the plaintiff and Dillard of

Wright’s sexual molestation of the plaintiff in

June of 1979 and had been on notice prior

thereto of Wright’s proclivity with respect to

female students;

(d) On or about January 12, 1981, defendants

Smith and Miller were informed by a second

female student of Bradford High School, L.T.,

that Richard DeMarte had kissed her on the neck

several times in a classroom. No disciplinary

action was taken against DeMarte and the Ad-

ministration’s response was to remove the student

from DeMarte’s class and issue to him a "no one-

on-one" directive;

(e) On or about March 10, 1981, another female

student of the Bradford High School, L.L., re-

ported to Smith and Miller that Richard DeMarte

had blindfolded her in a classroom, ostensibly to

demonstrate the sense of touch, and she observed

him on his hand and knees looking up her dress.

No disciplinary action was taken against DeMarte

and Smith actively intimidated the student from

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pursuing further action in stating that it was

"DeMarte’s word against hers" and "Mr. Miller

and he would have to judge from that." Another

"no one-on-one" directive was issued to DeMarte;

(f) In or about March of 1982, two female

students complained to the defendants that Mr.

Brady had written sexually suggestive notes and

further had asked female students to come into

his shop room alone after school. No disciplinary

action was taken against Brady;

(g) On or about November 23, 1982, yet a fourth

female student at the High School, K.L., com-

plained to defendants Smith and Miller that

Richard DeMarte had touched her inappropriate-

ly and was attempting to develop a romantic rela-

tionship. No disciplinary action was taken against

DeMarte;

(h) Commencing in or about June of 1984 and

continuing through approximately November of

1984, the defendants were advised by numerous

sources, including the parents of A.P., a female

basketball player in the High School, that her

male coach, Alex Nuzzo, was attempting to

develop a romantic relationship with her. Despite

numerous complaints, no disciplinary action was

taken and Nuzzo was simply issued a written "no

one-on-one directive" by defendant Smith with the

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knowledge and consent of Miller, Shuey and the

School Board precluding him from being along

with female students;

(i) In or about late September or early October

of 1984, a female band member, K.R., informed

a guidance counselor that Wright had attempted

to sexually molest her in a vehicle. In addition,

this student informed the counselor that Wright

was presently molesting another student and had

molested a student who graduated. This informa-

tion was relayed to defendant Smith and ultimate-

ly defendant Shuey;

(j) On or about December 15, 1984, defendant

Smith met with Wright and issued another no

one-on-one directive, but informed Wright that

"no one had accused him of any wrongdoing;"

(k) In or about October of 1985, the defendants

were informed that Richard DeMarte had at-

tempted to sexually assault R.H., a former Brad-

ford High School student, while attending a

homecoming celebration. No disciplinary action

was taken against DeMarte;

(1) In or about March of 1986, three female

Bradford High School students, M.P., J.M., and

A.F., complained to defendants that the girls

swimming coach had made improper sexual

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comments. No disciplinary action was taken

against Bell;

(m) In or about March of 1986, Wright resigned

after public disclosure of his sexual abuse of

students but a private psychologist rather than the

School District contacted the police an the Child

Hot Line..

27. The recklessly indifferent custom, practice

and/or policy of the School District consisted of the follow-

ing:

(a) Failing to report pursuant to the require-

ments of the Child Protective Services Law, 11

PS. $2201 et seq., various incidents of suspected

abuse or harassment of female students by Brad-

ford Area High School teachers;

(b) Permitting various teachers to remain in

charge of extracurricular student activities, such

as the band and girls tennis team, despite knowl-

edge that said teachers presented a danger to the

health, safety and welfare of the participants

thereof;

disciplinary action against various teachers, includ-

ing Wright, who the defendants knew posed a

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<<<

threat to the health, safety and welfare of the

female student population;

(d) Actively concealing reports of sexual abuse

of students by teachers and discouraging the

victims from pursuing their remedies in court

through threats, intimidation and coercion;

(e) Failing to require the monitoring of various

teachers’ activities despite actual knowledge that

they posed a threat to the female population of

the Bradford Area School District;

(f) Consistently giving the various teachers set

forth above the maximum possible score of their

yearly rating forms despite actual knowledge that

said teachers had been sexually abusing and/or

harassing female students over a several year

period;

(g) Failing to adopt, implement and/or follow a

proper policy or procedure to insure the identifi-

cation and reporting of sexual abuse of students

by teachers.

28. At all material times, a special custodial

relationship existed between the plaintiff as a student and

the defendants as administrative personnel of the School

District.

29. At all material times, each of the defendants

acted under color of state law.

30. The recklessly indifferent custom, practice

and/or policy of the School District as set forth above

created a climate wherein child abusers, such as Wright,

could prey upon female students with impunity.

31. As a proximate result of the aforesaid cus-

tom, practice and/or policy of the School District, the

plaintiff was deprived of her rights, privileges and immuni-

ties secured by the Constitution or Laws of the United

States, specifically her liberty interest to be free in her

person from sexual abuse guaranteed under the Fourteenth

Amendment and her rights under the First and Fourteenth

Amendments of free access to the courts impeded by

threats, coercion or intimidation.

32. As a further proximate result of the custom,

practice and/or policy of the School District, the plaintiff

has suffered and will continue to suffer in the future from

severe mental anguish, embarrassment, humiliation and

emotional distress.

WHEREFORE, the plaintiff, Judy Grove Sowers,

requests compensatory damages against the defendant,

Bradford School District, in an amount in excess of

$10,000.00, plus costs of suit and attorney’s fees pursuant

to Title 42, U.S.C. $1988.

Count Il

(Conspiracy to Violate Plaintiff's Civil

Rights Under $1983)

Judy Grove Sowers v. Frederick Smith,

ichard Miller and ick Shuey

33. The averments in paragraphs 1 through 32

are incorporated herein by reference as if sully set forth.

34. At all material times both prior and subse-

quent to the assault by Wright of the plaintiff, the individu-

al defendants were members of a conspiracy whose purpose

was to conceal from public instances of known and/or

suspected sexual abuse of students by various teachers in

the Bradford School District, including Wright.

35. This conspiracy was unknown and unknow-

able to the plaintiff at the time.

36. The overt acts in furtherance of said conspir-

acy included the individual defendants’ consistent failure to

respond appropriately to the various complaints of sexual

abuse or harassment by teachers, including Wright, as set

forth more fully above and in particular the recklessly

indifferent fashion in which the defendants addressed the

complaints of the plaintiff against Wright during the school

year 1979-80.

37. As further evidence of said conspiracy,

defendant Smith maintained a personal, secret file in his

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desk drawer at home memorializing many of the complaints

concerning the teachers set forth more fully above and also

the explicit or tacit agreement of each of the co-conspira-

tors to the reckless, willful and wanton administrative

response to each complaint.

38. As a proximate result of the aforesaid con-

spiracy between the individual defendants, the plaintiff was

deprived of her rights, privileges and immunities secured by

the Constitution or Laws of the United States, specifically

her liberty interest to be free in her person from sexual

abuse guaranteed under the Fourteenth Amendment and

her rights under the First and Fourteenth Amendment of

free access to the courts impeded by threats, coercion or

intimidation.

39. As a further proximate result of the custom,

practice and/or policy of the School District, the plaintiff

has suffered and will continue to suffer in the future frorn

severe mental anguish, embarrassment, humiliation and

emotional distress.

WHEREFORE, the plaintiff, Judy Grove Sowers,

request compensatory damages against the defendants,

Frederick Smith, Richard Miller and Frederick Shuey, in an

amount in excess of $10,000.00, plus punitive damages,

costs of suit and attorney’s fee pursuant to Title 42, U.S.C.

$1988.

JURY TRIAL

DEMANDED

Respectfully submitted,

KNOX GRAHAM MCLAUGHLIN

GORNALL AND SENNETT,

INC.

BY: /s/ Wallace J. Knox

/s/Sean J. McLaughlin

Attorneys for Plaintiff

Judy Grove Sowers

120 West Tenth Street

Erie, PA 16501

(814) 459-2800

C. Motion to Dismiss, Sowers v. Bradford Area

School District, et al., No. 88-57 Erie, April 12,

1988

o25-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JUDY GROVE SOWERS,

Plaintiff

VS C.A. No. 88-57

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 Bradford

Area High School; and FREDERICK

SHUEY, in his individual and

official capacity as Superintendent

of the Bradford Area School

District,

Defendants

MOTION TO DISMISS AND/OR STRIKE

NOW COME DEFENDANTS, by and through their

attorneys MURPHY, TAYLOR AND ADAMS, P.C. and

ISRAEL AND WOOD and move to dismiss the within

Complaint or, in the alternative, strike portions thereof,

setting forth as follows:

I. Motion to Dismiss Pursuant to FR.Civ.P. 12 (b) (6)

1. The Complaint fails to state a claim upon which

relief can be granted, for the following reasons:

a. It appears from the face of the Complaint

that Plaintiff’s injury occurred on June 16, 1979, and fio

plausible excuse has been pleaded as to why Plaintiff did

not bring her action within the limitations period allowed

for actions such as these; accordingly, the claim is barred

by the statute of limitations.

b. The Defendants were under no duty to

protect this Plaintiff from the injury which allegedly oc-

curred to her at the hands of a school teacher.

c. The individual defendants are immune

from this action.

d. No action of any Defendant was the

"moving force" behind this alleged injury; the Bradford

Area School District is therefore not liable.

e. Count Two does not set forth any allega-

tion of illegal conduct by any Defendant.

f. Any state law claims which might be

inferred from the allegations of this Complaint are barred

by the Pennsylvania Political Subdivision Tort Claims Act.

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Il. Motion to Strike Pursuant to ER.Civ.P. 12 (f)

2. Paragraphs 25 and 26 of the Complaint contain

immaterial, impertinent and scandalous matters, consisting

of allegations of conduct involving teachers other than Ed

Wright, students other than Plaintiff, and conduct subse-

quent to the alleged injury to Plaintiff, all of which has no

bearing in any way on the alleged injury to this Plaintiff.

3. Paragraph 20 alleges conduct of Ed Wright which

pre-dates his employment with the Defendant Bradford

Area School District, but fails to allege that the District

ever knew about the said conduct. It is thus immaterial to

any cause of action.

Respectfully Submitted,

MURPHY, TAYLOR AND ADAMS, P.C.

By:

Kenneth D. Chestek, Esq.

518 State Street

Erie, Pa. 16501

(814) 459-0234

-29..

ISRAEL AND WOOD

By:

James W. Harvey

501 Grant Building

Pittsburgh, Pa. 15222

(412) 391-1114

D. Excerpts of Transcript of Judy Grove Sowers

deposition - September 12, 1986

.3]-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KIM HARBAUGH and LISA ROVITO,

Plaintiffs

Civil Action

No. 86-132

BRADFORD AREA SCHOOL DISTRICT, Erie

FREDERICK SMITH, In his No. 86-133

)

individual and official )

capacity as principal of )

Bradford Area High School; and )

FREDERICK SHUEY, in his )

individual and official )

capacity as Superintendent of )

Bradford Area School District, )

Defencants )

Depositions of Judy Grove Sowers, Colleen mucDonalad

Beain, Kathy Rodgers and Kathy Stoneking taken at the

offices of Quinn, Gent, Buseck and Leemhuis, Ince, 1400 G.

Daniel Baldwin Building, Erie, Pennsylvania on Friday,

September 12, 1986 beginning at 9:00 a.m, before Mary F.

Hines, court reporter.

Appeared on behalf of the Plaintifts:

Sean J. McLaughlin, Esquire

Appeared on behalf of the Defendants:

James D. McDonald. Jr.. Esquire and

Kenneth DBD. Chestek,. Esquire

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HINES, MUHANNA §& FLOWERS

SOWERS

cescribing what happened. tie co need to know the facts.

MR. NCLAUGHLIN: Judy, you'll have to--I agree with tc.

NcDonald. you have an obdlication to testify. so do the

best you can.

Q. Let me ask you some preliminary guestions.

You've indicated that the first incident occurred, or an

incident occurred on June 16. 1979. You've indicated that

this was after the conclusion of school. is that right?

After school let out for the year?

A. Yes.

Q. Where did the incident occur?

A. At his house.

Q. All right. and where was his house at that time?

A. North Center Street.

Q. Was there anyone else there that you know ot

other than you and he?

A, No.

Q. Do you remember what day of the week June létn

was?

A. Saturday.

Q. Do you remember what time of the day you arrived

at his house?

A. No.

D. Do you remember whether it was morning,

afternoon or evening?

Ae Afternoon.

Ve Do you rcemembec where you nad been prior to

comina to his house. going to his house?

A. “uy sistec's wedding.

Je dad he attended the wedding, as well? "

A. NO.

QO. whose idea was it for you to go to his nouse?

Yours or his?

A. Mine.

QO. Okaye what was tne purpose of going to his home?

| A. To pick up a tape of our marching music. I was

section leader and I was to leacn the music.

Q. was there any prearcangement that you would pick

| it up, not necessarily that day. but at any time?

A. No, I waS goina away the next day taicly early

for two weeks, and the day I came back was the day band

practice was supposed to start.

Q. How do you know this was June 16, 1979?

4. Because that's the cay my sister macrciea.

Je you celate it to the wecding gate, So you're

solid on at least the day tnat it occurred?

A. Yes.

). Had you participatec in the weading ceceptlo

before 1 2

A. Yes.

Q. dad you been cGrinkinc?

Ri Yes.

Q. Okay. Wy only purpose in asking that is to fing

Out how weli you recall what went on after that. What, in

the oest of your cecollection. nappened trom the time you

went to the door until the time you left tnere?

A. I know he was preparing a tape, prepacing to

tape a tape. It was my understanding it was already made.

So I sat down and the only thing I remember was waking up

and he was more or less--.

Q. Let me ask some othec questions for a moment,

Judy. Did you tell him why you were there?

A. He knew, yes.

Q. How did he know?

A. I calied him before I left. He knew I was

coming.

Q. Before you left the wedding reception?

A. My house,

QO. Would that have beer before or after the weading

recepticn?

A. After the wedding reception.

Q. Had you adviseg him that you wanted to pick up a

tape?

A. Yes.

Q. You sala that you sat down because he was

~higiahaeae

-36-

working on a tape. or while he was working on a tape?

He said he'd have to tape it. so I sat down and

he oroceecded to tave the album of our music.

Did he have a device that pernitted him to

duplicate the tape?

QO.

you recall?

aA.

it tron

time

too

Yes.

What did you sit on? A chaic, couch?

Couch.

Would this have been in any particular room that

Living room,

Did you fall asleep?

I believe I passed out, yes.

You just didn't--to your best recollection was

much to drink?

Yes.

What do you recall atter you woke up, or tne

that you woke up?

Hie was just all over me.

Were you still on the couch?

Yes.

In what position?

I suppose I was lyina down.

Were you still clothea?

Yes.

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

District of Pennsylvania, No. 88-57 E., August 29,

1988, reported at 694 F.Supp. 125

Sowers v. Bradford Area School District, et al.

-39-

JUDY GROVE SOWERS,

Plaintiff

BRADFORD AREA SCHOOL DISTRICT;

FREDERICK SMITH, in his individuai 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

Civil Action No. 88-57 Erie

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

694 F. Supp. 125; 1988 U.S. Dist. LEXIS 9613

August 29, 1988

GLEN E. MENCER, UNITED STATES DISTRICT

JUDGE

OPINION

This is a civil rights action brought under 42 U.S.C.

§ 1983 [§ 1983] by a former Bradford high school student,

-4]-

Judy Grove Sowers, against the Bradford Area School

District ["school district"], the school district’s superinten-

dent, Frederick Shuey, and the high school’s principal and

assistant principal, Frederick Smith and Richard Miller.

This is the third suit filed against these same defendants by

former female students. This case centers on a June 16,

1979 sexual assault upon the plaintiff, then a high schocl

student and member of the marching band by the band

director, Edward Wright.

Count I of the complaint is against the school district

and alleges that there existed a pernicious practice, custom

and/or policy, prior and subsequent to the assault by

Wright, of reckless indifference to and/or active conceal-

ment of instances of known or suspected sexual abuse of

students by teachers. It further alleges that this created a

climate wherein child abusers, such as Wright, could prey

upon female students with impunity. The complaint alleges

that the School District’s conduct was a proximate cause of

a deprivation of the plaintiff's constitutional rights to

freedom from sexual abuse and free access to the courts

unimpeded by threats, coercion or intimidation, as well as

severe mental anguish, embarrassment, humiliation and

emotional distress.

Count II alleges that the individual defendants were

members of a conspiracy whose purpose was to conceal

from the public instances of known and/or suspected sexual

abuse of students by various teachers. The alleged overt

acts in furtherance of the conspiracy included, inter alia,

-42-

the alleged co-conspirators’ failure to respond appropriately

to the complaints of sexual abuse and defendant Smith’s

keeping of a personal, secret file in his desk drawer at

home memorializing many of the complaints against teach-

ers, as well as the explicit or tacit agreement of each of the

alleged co-conspirators The alleged proximate results of

the conspiracy are the same as those under Count I.

FACTS

At the heart of this suit is the allegation that on

June 16, 1979, Sowers,! a member of the school marching

band, was sexually molested by Edward Wright, the band

director.2 Wright had been hired by the schooi district in

1976, with responsibility to supervise band activities and

provide music lessons to students. Prior to 1976, Wright

had been the band director in the Jasper School District,

where the complaint alleges he "had attempted to sexually

molest and/or harass various female students." Complaint

at par. 20. The complaint alleges that the defendants had

been on notice of Wright’s proclivities with respect to

female students prior to the June, 1979 assault, although

the complaint does noi detail how it was that they had

been put on such notice. Complaint at par. 26(c).

| At the time of the assault, the plaintiff's name was Judy Grove. This

action is brought under the name Sowers, the plaintiff's married name. We

will refer to her by that name as well.

2 On November 6, 1986, Edward Wright plead guilty to a ten count

criminal indictment which included four counts of indecent assault.

-43-

Sower’s complaint asserts that Wright’s assault on

her was just one in a series of incidents in which the

defendants, although informed by female students of sexual

abuse by teachers, took no action except to conceal the

problem. The complaint alleges that prior to the June 16,

1979 assault, during the 1977-78 school year, a female

senior informed defendants Smith and Miller that a history

teacher (and coach of the girls’ tennis team) had made

improper sexual advances toward her in a classroom.

Complaint at par. 26(a). Smith and Miller told her not to

tell her parents about the incident, and no disciplinary

action was pursued against the faculty member. Jd. In 1978

and periodically thereafter, Smith, Miller and school district

superintendent Shuey were alleged to have received other

complaints of sexually abusive language and/or improper

sexual advances by a shop teacher. Complaint at par. 26(b).

The defendants allegedly pursued no disciplinary action

against the shop teacher. Jd.

Edward Wright’s sexual assault on Judy Grove

Sower’s occurred on June 16, 1979. According to her

deposition, she went to Wright’s house to obtain a tape of

marching music. Sowers was a section leader and had to

learn the music for summer band practice. She was going

away the next day for two weeks, therefore she had to

obtain the tape so she could learn the music prior to the

commencement of summer band practice. Sowers

Deposition at 16. She reported the assault to Gene Dillard,

a youth counselor visiting the school at the invitation of

the school administration. Complaint at par. 13. Dillard

-44-

informed Smith and Milier, as well as a school guidance

counselor, of the sexual abuse and harassment by Wright.

He told them he considered her reports to be truthful. /d.

at par. 14. Soon thereafter, Sowers met with Smith and

Miller and personally informed them of the sexual assault

by Wright. Other meetings were held during the fall and

early winter between Sowers, Smith and Miller. /d. at par.

15. The plaintiff alleges that Smith and Miller actively

discouraged her from pursuing her remedies in court

against Wright "through intimidation, threats and coercion,"

and indicated that they did not believe her. Jd. at par. 16.

In January 1980, Smith told Sowers that if she wanted to

remain in the school marching band she would have to

publicly apologize for having accused Wright of the sexual

assault. Jd. at par. 17. When Smith had assembled the band

members, Sowers did not apologize, instead leaving the

band room "in an extremely emotional state." Jd. at par. 18.

The plaintiff's complaint goes on to list numerous

instances where female students reported subsequent

episodes of sexual abuse by Wright and other male teach-

ers at the Bradford high school to the defendants. Jd. at

pars. 26(d) - (1). In none of these cases did the defen-

dants pursue disciplinary action against the molesting male

teachers beyond issuing an occasional "no one-on-one"

directive. For example, in late September or early of 1984,

a female band member told her guidance counselor that

Wright had attempted to sexually molest her in a vehicle.

Id. at par. 26(i). This student also told the counselor that

Wright was currently molesting another student and had

-45-

molested yet another student who had graduated. /d. The

accusation was relayed to defendants Smith and Shuey. On

December 15, 1984, Smith met with Wright and issued

another “no one-on-one" directive, but informed Wright

that no one accused him of any wrongdoing.” /d. at par.

26(j). The plaintiff also alleges that Smith maintained a

personal, secret file in his desk drawer at home, memorial-

izing many of the complaints. /d. at par. 37. The school

administration’s alleged toleration of Wright’s abuse of

female students came to an end in March of 1986 when

fresh allegations brought about meetings between school

administrators and parents of children who had been

assaulted by Wright. Wright was suspended as of March

10, 1986, and later resigned.

DISCUSSION

I. Defendants’ Motion to Strike Portions of the Complaint

The defendants’ move to strike portions of para-

graphs 25 and 26 of the complaint, as well as all of para-

graph 20. They assert that paragraphs 25 and 26 “contain

immaterial, impertinent and scandalous matters, consisting

of allegations of conduct involving teachers other than

Plaintiff, students other than Plaintiff, and conduct subse-

quent to the alleged injury to Plaintiff, all of which has no

bearing in any way on the alleged injury to this Plaintiff."

Defendants Motion to Dismiss and/or Strike, p. 2. Para-

graph 25 mentions no teachers or students at all, thus we

-46-

do not understand the defendants’ reason for striking it,

and we will not do so. Paragraph 26 indeed refers to

teachers other than Wright, and students other than the

plaintiff (albeit these students are referred to by initials,

not by name). Because the plaintiff's case depends upon

establishing a policy or custom which was adhered to in

response to numerous allegations of child abuse by various

teachers at the school district, such allegations are rele-

vant to her case. While we agree with the defendants that

the conduct described in these allegations could be viewed

as scandalous, we do not agree that they are immaterial

or impertinent, and we will deny their motion to strike.

Il. Defendants’ Moti oy

The defendants offer a number of grounds for

dismissal of the Sowers complaint against them, allegations

the defendants scorn as “impertinent Defendants’ Brief

in Support at 2; see also Defendants’ Motion to Dismiss

and/or Strike, p. 2. Defendants argue that the complaint

fails to state a claim under § 1983 and that the action is

barred by the two-year statute of limitations.

3 It ts unclear whether the defendants intend the word “ympertinent” in

the sense of “presumptuous, rude, uncivil,” or “not pertinent, irrelevant.”

See Random House Collegiate Dictionary, revised ed. 1980, p. 667. If true,

the plaintiff's allegations are anything but impertinent, in either sense of the

word.

-47-

In order to properly decide the motion to dismiss, it

is necessary to analyze the required elements of a cause

of action under § 1983, as well as the questions surround-

ing the limitations period. An analysis of the most salient

issues begins with the question of whether the plaintiff's

complaint alleges a deprivation of a constitutional right

“under color of law. In cases such as this where a plaintiff

alleges that the defendants’ policy or custom resulted in

the failure to carry out an alleged duty to protect the

plaintiff, a court must find a "special relationship" between

the plaintiff and the state body or official creating a duty

to protect. In addition, where a claim is based upon a

failure to act by the defendants, a court must consider

whether that failure to act: (I) was a substantial factor

leading to a violation of a constitutionally protected liberty

Or property interest; and (2) displayed “deliberate indiffer-

ence" or "gross negligence" with regard to that violation.

Standard for Decidi otion to

A motion to dismiss tests the formal sufficiency of

the statement of the claim for relief, addressing itself solely

to the failure of the complaint to state a claim for relief.

Wright & Miller, Federal Practice And Procedure § 1356

(1987 Supp.). To merit dismissal, the plaintiff's pleading

must fail to meet the liberal requirements for pleading a

claim set forth in Rule 8(a), which calls for “a short and

plain statement of the claim showing that the pleader is

entitled to relief." Jd.; Fed. R. Civ. P. 8(b). For purposes of

the motion to dismiss, the complaint is construed in the

-48-

light most favorable to the plaintiff and its allegations

taken as true. /d. at § 1357. In general, a court has broad

discretion in ruling on a motion to dismiss, but dismissal

should only be granted with care in order to avoid improp-

erly denying plaintiff the opportunity to have her claim

adjudicated on the merits. Jd. "The issue is not whether a

plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support his claims." Estate of

Bailey By Oare v. County of York, 768 F.2d 503 (3d Cir.

1985) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94

S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)).

B. Deprivation of a Constitutional Right “Under

Color of State Law"

To state a claim under § 1983 an individual must

allege facts constituting a deprivation of a constitutional

right under color of state law. An official's actions are not

removed from under color of state law merely because the

official acted beyond the scope of the authority granted by

state law. Misuse of power, possessed by virtue of state law

and made possible only because the wrongdoer is clothed

with the authority of state law, is taken “under color of"

state law. United States v. Classic, 313 U.S. 299, 326, 61

S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Doe "A" v. Special

School Dist. of St. Louis Co., 637 F. Supp. 1138, 1142 (E.D.

Mo. 1986); accord Monroe v. Pape, 365 U.S. 167, 81 S.Ct.

473, 5 L.Ed.2d 492 (1961). The plaintiff's complaint alleges

that there existed a practice, custom and/or policy which

-49-

caused the deprivation of her constitutional rights. "[I]t 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." Monell v. New York City Dept. of Soc. Serv.,

436 US. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611, 638

(1978); see also Estate of Bailey by Oare v. County of York,

768 F.2d 503, 506 (3d Cir. 1985). "In an appropriate case,

even in the absence of formal agency conduct, an ‘official

policy’ may be inferred ‘from informal acts or omissions of

supervisory municipal officials.” Estate of Bailey by Oare,

768 F.2d at 506 (quoting Turpin v. Mailet, 619 F.2d 196,

200 (2d Cir.), cert. denied, 449 U.S. 1016, 161 S.Ct. 577, 66

L.Ed.2d 475 (1980)). By these standards, we believe the

complaint sufficiently alleges that the defendants caused a

deprivation of her constitutional rights "under color of state

law."4

C. Special Relationship

In § 1983 actions such as this one where a plaintiff

asserts a right of protection, courts require that there exist

a "special relationship" between the plaintiff and defendant

which would create a duty to protect. See Jensen v. Con-

rad, 747 F.2d 185, 194-95 (4th Cir. 1984), cert. denied, 470

4 Public officials are liable under § 1983 if the official causes an individu-

al to be deprived of a constitutional right. Baker v. McCollon, 443 U.S. 137,

142, 99 S.Ct. 2689, 2693, 61 L.Ed.2d 433, 440 (1979).

-50-

U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985). In

Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982), the Se-

venth Circuit refused to hold the state liable for a murder

committed by a schizophrenic (with a history of criminal

violence) one year after being released from a state mental

hospital. Judge Posner stated "there is no constitutional

right to be protected by the state against being murdered

by criminals or madmen." Bowers, 686 F.2d at 618. Judge

Posner, a jurist renowned as a theorist in tort law, ac-

knowledged that where the state is responsible for placing

a person in a position of danger or potential harm, the

state would owe an affirmative duty obligating the state to

protect that person. Judge Posner wrote:

If the state puts a man in a 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 tort

feasor as if it had thrown him into a snake pit.

It is on this theory that state prison personnel

are sometimes held liable under section 1983

for the violence of one prison inmate against

another.

Bowers, 818 F.2d at 618. The Fourth Circuit later noted

that the Bowers finding that the general public has no

constitutional right to protection, and the state no duty

to protect, from criminals and madmen, was expressly

qualified by its acknowledgment that "such a right and

corollary duty may arise out of special custodial or other

Si.

relationships created or assumed by the state in respect of

particular persons." Fox v. Custis, 712 F.2d 84, 88 (4th Cir.

1983) [emphasis added]. Courts have found the "special

relationship" requirement, the nexus between a plaintiff

and the state necessary to an action under § 1983, to be

a standard that is elusive and difficult to define.

Estate of Bailey by Oare v. County of York involved

a county children’s services agency’s involvement in the °

tragic abuse and death of a five-year-old girl. 768 F.2d 503

(3d Cir. 1985). The girl lived with her mother and her

mother’s boyfriend when relatives noticed severe bruises

and other evidence of abuse on the child’s body. When

the relatives contacted the police and the child services

agency, the agency had the girl examined by a physician.

The physician advised that the boyfriend be denied access

to the child, and that the girl should be taken from the

mother if necessary to deny the boyfriend access. The next

day the county agency returned the child to the mother’s

custody, undertaking no independent investigation to

determine what access the boyfriend might have. A month

later the girl died from physical injuries inflicted on her by

the boyfriend and mother. Jd. 768 F.2d at 505. The Third

Circuit found there to be a "special relationship" between

the little girl and the childrens services agency and the

county, noting that the plaintiff alleged that the defendants

had evidence of previous abuse, was aware of the source

of abuse and inadequately investigated the danger. The

circuit court therefore vacated and remanded the district

court’s granting of the defendants’ motion to dismiss. Jd.

«$2.

at 510. "When the agency knows that a child has been

beaten, ‘[t]his strengthens the argument that some sort of

special relationship has been established.” Jd. at 510-11

(quoting Jensen v. Conrad, 747 F.2d 185, 195 n. 11 (4th Cir.

1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84

L.Ed.2d 818 (1985) (suggests special relationship where

state agency failed to intervene to prevent beatings of

children by their guardians)).

The Third Circuit’s "special relationship" analysis in

Estate of Bailey by Oare highlighted two cases as examples

of instances where a "duty of protection has been found

owing by the state and local entities to persons who were

not in custody." Jd. at 510. The first was White v. Roch-

ford, 592 F.2d 381 (7th Cir. 1979), in which the Seventh

Circuit reversed the dismissal of a complaint alleging that

police who had arrested the driver of a car subjected the

three passenger children to a health-endangering situation

by abandoning them. That court had reasoned that "the

police could not avoid knowing that, absent their assis-

tance, the three children would be subjected to cold wea-

ther and danger from traffic. This indifference in the face

of known dangers certainly must constitute gross negli-

gence." Id., 592 F.2d at 385. The second example given

was Thurman v. City of Torrington, 595 F. Supp. 1521 (D.

Conn. 1984), which involved an aliegation local police

systematically failed to adequately protect women abused

or assaulted by a spouse or boy friend. The Thurman court

stated, "City officials and police officers are under an

affirmative duty to preserve law and order, and to protect

-53-

the personal safety of persons in the community." Jd., 595

F. Supp. at 1527. This duty was held to require officials

having notice of the possibility of attacks on women in

domestic relationships "to take reasonable measures to

protect the personal safety of such persons in the commu-

nity.” Id

There is a significant, although not dispositive, dis-

tinction between the facts of Estate of Bailey by Oare,

White and Thurman on the one hand, and the present

case. In those cases, the plaintiff toward whom a special

relationship and duty existed had been individuals whose

specific need for state protection were identifiable prior to

their injury. In the present case the vulnerability to sexual

abuse due to the defendants’ customs, practices and/or

policies was shared by all the female students at the high

= school. Even if the plaintiff’s allegation that the defen-

dants had prior notice of Wright’s propensity for sexual

abuse is taken as true, the potentially endangered group

would include, at the least, all females belonging to the

marching band.»

A number of cases have found a "special relation-

ship" to exist when an identifiable group, rather than a

specific individual, was endangered. In PL.C. v. Housing

Authority of County of Warren, a tenant in a public hous-

ing project brovght a civil rights action after she was raped

5 The Court has no information regarding the number of females in the

Bradford marching band at that time.

-54-

by a county housing authority employee who entered her

apartment using a housing authority key. 588 F. Supp. 961

(W.D. Pa. 1984). Her complaint alleged that the housing

authority knew or should have known of the assailant’s

prior convictions for rape and his alcoholism when they

hired him as a maintenance man. /d., 588 F. Supp. at 962.

In PL.C., as in the case at bar, the danger posed by the

housing authority’s conduct (or lack thereof) was shared by

the plaintiff as a member of an identifiable group of poten-

tial victims, i.e., the female residents of the housing proj-

ect. Judge Weber found "that the authority and its officials

stood inn a special relationship to this particular plaintiff."

Id., 588 F. Supp. at 965.°

Similarly, in Beck v. Kansas Univ. Psychiatry Foun-

dation, 580 F. Supp. 527 (D. Kansas 1984), two individuals

were shot to death at the University of Kansas Medical

Center emergency room by a released prisoner with a

known propensity for violence against the medical center,

its staff, patients and visitors. Jd., 580 F. Supp. at 531.

Denying a motion to dismiss by the defendant Kansas

Adult Authority, the state agency which released the assail-

which a woman raped by an unknown assailant brought a § 1983 action

against the city, the mayor, the police chief and a member of the police de-

partment alleging that the defendants had deliberately suppressed informa-

tion of prior rapes in a certain area of the city to avoid adverse publicity.

The Eleventh Circuit found there to be no "special relationship" because

the defendants had not intentionally singled her out to be denied protection

from a rapist and there was no al legation that the defendants knew of the

plaintiff before the rape occurred.

-55-

ant despite knowledge of his potential for violence at the

medical center, the court found that the Adult Authority

had a duty to take into account "the best interests of

society." The court concluded that "[c]ertainly that duty

includes taking into account the special danger which the

inmate may have to an identifiable group or individual."

Id., 580 F. Supp. at 534. Thus, a special relationship was

found between the state authority and an identifiabie

group, namely the staff, patients and visitors of the medi-

cal center. Thus, the Beck court concluded that the plain-

tiffs’ complaint alleged a "special relationship" between the

Kansas Adult Authority and the plaintiffs.

In the present case, the question is whether the

defendants were in a "special relationship" with the endan-

gered "identifiable group," female students (or band mem-

bers) at the Bradford high school. We find that the defen-

dants owed a duty to protect its students from sexual abuse

by its teachers. We think this duty is at least as clear as

those owed to the tenants in PL.C., the abused women in

Thurman, or the visitors to the medical center in Beck.

The people and the legislature of Pennsylvania trust their

children to the care and supervision of school officials, and

grant those officials in loco parentis authority over those

children while they attend school.’ In addition, school

7 The Pennsylvania Public School Code states that:

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,

-56-

districts are statutorily authorized to fire teachers for

"immorality," which has been held to include uninvited

advances by teachers toward students. 24 PS. § 11-1122;

see Keating v. Bd. of School Directors of Riverside School

District, 513 A.2d 547, 99 Pa.Cmwith. 337 (1986), app.

denied, 522 A.2d 51, 514 Pa. 626 (1987). As we stated in

Stoneking v. Bradford Area School District, “abuse of this

type is not tolerated when the victim is a prison inmate or

a patient in a state hospital. Clearly then, the constitution

must offer school children similar protections." 667 F. Supp.

at 1095 [citations omitted]. We find that a "special relation-

ship,” with an accompanying duty to protect, exists between

a student and her school district, school district superinten-

dent, principal and vice principal.

The defendants raise the factual distinction that this

assault took place off school grounds at the teacher’s

home, at the beginning of summer vacation. The defend-

ants argue that "in no sense of the word could any ‘spe-

cial relationship’ exist at the time of this alleged assault."

Defendants’ Brief in Support, p. 17 n. 7. Under the facts

of this case, we do not agree. The increased threat to

female students created by the defendants’ alleged tole-

rance for sexual abuse was not the sort of danger that

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.

24 PS. § 13-1317 (1988 PP).

disappeared when those students packed up their instru-

ments and walked out of the band room. Because Wright

conducted marching band practices during the summer

months, his opportunity to abuse his female band students,

opportunity he possessed by virtue of his position as a

teacher and director of the band, did not disappear when

the school bell sounded the end of day or the beginning

of vacation-time. Presumably it would have made little

difference if the maintenance man in PRL.C. v. Housing

Authority of the County of Warren had been off-duty, or on

vacation, when he used his housing authority key to enter

the rape victim’s apartment. Similarly, it is irrelevant to

this Court in determining the existence of a "special rela-

tionship," whether Sowers was assaulted while she was

picking up a marching band tape for band practice to be

held during the school year or during the summer months.

The timing and circumstances of the assault may or may

not be relevant to the factual determination of causation

of Sowers’ injury, but, as we will discuss later in this deci-

sion, the question of proximate cause requires factual

development and is therefore inappropriate to decide on

a motion to dismiss.

D. Requirements for Liability Under § 1983 For A

Failure To Act

The defendants are alleged to have fostered a pract-

ice, custom and/or policy of reckless indifference and/or

active concealment of instances of known or suspected

-58-

sexual abuse. The complaint alleges that this practice,

custom and/or policy was the result of both overt activity

and failures to act on the part of the defendants. Gov-

ernment officials may be held liable under § 1983 for a

failure to do what is required as well as for overt activity

which is unlawful and harmful. See Estelle v. Gamble, 429

U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Doe v. New

York City Dept. of Social Services, 649 F.2d 134, 141 (2d

Cir. 1981) [Doe I]; Duchesne v. Sugarman, 566 F.2d 817,

822 (2d Cir. 1977) ("Where conduct of the supervisory

authority is directly related to a denial of a constitutional

right, it is not to be distinguished as a matter of causation,

upon “whether it was action or inaction"). For a § 1983

cause of action to arise where an official is charged with

failing to exercise an affirmative duty, the failure to act

must have been a substantial factor leading to the viola-

tion of a constitutionally protected liberty or property inter-

est. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d

561 (1976). The official having the responsibility to act

must also have displayed “deliberate indifference" or "gross

negligence." Turpin v. Mailet, 619 F.2d 196 (2d Cir.), cert.

denied sub nom. Turpin v. West Haven, 449 U.S. 1016, 101

S.Ct. 577, 66 L.Ed.2d 475 (1980) ("deliberate indifference"

standard); Doe v. New York City Dept. of Social Services,

709 F.2d 782, 789-790 (2d Cir. 1983) [Doe II], cert. denied

sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864, 104

S.Ct. 196, 78 L.Ed.2d 171 (1983) ("gross negligence"

standard) (citing Youngberg v. Romeo, 457 U.S. 307, __,

102 S.Ct. 2452, 2462, 73 L.Ed.2d 28 (1982)). As our rea-

soning below will explain, we believe that these two re-

‘i -59-

quirements, an alleged violation of a protected liberty

interest and an alleged display of "deliberate indifference"

or "gross negligence," are met in the plaintiff's complaint.

1. Violation of a Lil - Sut ,

Due Process

The first of the two requirements for a § 1983 claim

for a failure to act is that the failure to act must have

been a substantial factor \eading to the violation of a con-

stitutionally protected liberty or property interest. As to

whether the plaintiff has alleged that the defendants’

failures to act amounted to a substantial factor leading to

the constitutional violation, we believe the complaint does

so allege. Furthermore, as we will explain later in the

statute of limitations section of this opinion, the question

of causation is not amenable to determination on the basis

of pleadings alone. We will therefore move on to the

question of whether the plaintiff has properly alleged a

constitutionally protected liberty interest.

The liberty interest which the plaintiff alleges was

deprived her was a substantive due process right to be free

from sexual abuse. Substantive due process rights are

significantly different from procedural due process rights.

Procedural due process involves expectations created by

State law. As to these rights, the state may take them away

by affording pre-deprivation hearings, post-deprivation

hearings or other safeguards. Substantive due process, on

the other hand, is concerned with rights such as those

-60-

listed in the Bill of Rights and those rights held to be so

fundamental that a state may not take them away regard-

less of the fairness of the procedures used to do so. Da-

niels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 663, 88

L.Ed.2d 662, 668 (1986). Justice Frankfurter noted that

the scope of due process protection is not subject to pre-

cise definition:

Due process of law is a summarized constitu-

tional guarantee of respect for those personal

immunities which, as Mr. Justice Cardozo twice

wrote for the Court, are so rooted in the tradi-

tions and conscience of our people as to be

ranked as fundamental, Sryder v. Massachu-

setts, 291 U.S. 97, 105 [54 S.Ct. 330, 332, 78

L.Ed.2d 674], or are implicit in the concept of

ordered liberty. Palko v. Connecticut, 302 US.

319, 325 [58 S.Ct. 149, 152, 82 L.Ed.2d 288}.

Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208,

96 L.Ed.2d 183 (1952). Due process “is a rational con-

tinuum which, broadly speaking, includes a freedom from

all substantial arbitrary impositions and purposeless re-

straints." Poe v. Uliman, 367 U.S. 497, 543, 81 S.Ct. 1752,

1777, 6 L.Ed.2d 989 (1961) (Harlan, J., dissenting). "The

content of substantive due process must be determined in

each case through disinterested inquiry and by judgment

not ad hoc and episodic but duly mindful of reconciling the

needs of both continuity and of change in a progressive

society." Doe "A" v. Special School District of St. Louis

-61-

County, 637. F. Supp. 1138, 1144 (E.D. Mo. 1986) (citing

Rochin v. California, 342 U.S. at 172, 72 S.Ct. at 209.)

Courts have recognized that substantive due process

includes the right to be free from state intrusions into

personal privacy and bodily security.® Illustrative of the

substantive due process rights of students is a recent Mis-

souri case, Doe "A" v. Special School District of St. Louis

Co., 637 F. Supp. 1138 (E.D. Mo. 1986). That action

concerned nine handicapped children who had repeatedly

been beaten and sexually abused over the course of a year

and a half by a school bus driver while they were pas-

sengers aboard his bus. Claims were brought under § 1983

8 See, e.g, Ingraham v. Wright, 430 U.S. 651, 673-74, 97 S.Ct. 1401, _,

51 L.Bd.2d 711, 731-732 (1977) (corporal punishment of students by

teachers, substantive due process right to personal security); Rochin v.

Califorma, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (forcible use of

stomach pump by police); Zaylor By And Through Walker v. Ledbetter, 818

F.2d 791 (11th Cir. 1987) (foster child suit against state and county officials

for injuries received in custody of foster parents); Davis v. Forrest, 768 F.2d

257, 258 (8th Cir. 1985) (two police officers’ unnecessary beating plaintiff

with flashlights); Doe . New York City Dept. of Social Services, 649 F.2d 134,

141-145 (2d Cir. 1981) (municipality liable under § 1983 for deliberate

indifference to sexual abuse of foster child by foster parent); Hail v. Tawney,

621 F.2d 607, 613 (4th Cir. 1980) (severe corporal punishment inflicted upon

grade school student by teacher violated student's substantive due process

rights); White v. Rochford, S92 F.2d 381 (7th Cir. 1979) (police arrest driver

of car, abandoning three passenger children); Johnson v. Glick, 481 F.2d

1028 (2d Cir.), cert. denied 414 U.S. 1033, 94 S.Ct. 462, 38 L.Bd.2d 324

(1973) (unprovoked beating of pretrial detainee by guards); Jenkins v. Averitt,

424 F2d 1228, 1231-32 (4th Cir. 1970) (reckless pistol shooting of suspect

by police); Doe “A” v. Special School District of St. Louis County, 637 F.

Supp. 1138 (E.D. Mo. 1986) (handicapped children beaten and sexually

abused by school bus driver); 7/urman v. City of Torrington, 595 F. Supp.

1521 (D. Conn. 1984) (police with notice of possibility of attacks on women

in domestic relationships).

-62-

against the bus driver, the school district and twelve in-

dividual school administrators. /d. at 1141. Despite receiv-

ing complaints from parents, teachers and other school

employees, it was alleged that the school district and school

administrators: (1) failed to investigate the complaints; (2)

concealed the bus driver’s actions by discouraging investiga-

tion; (3) failed to develop a policy to provide training for

the investigation of complaints and to screen employees for

their propensity to abuse children; (4) failed to report the

bus driver’s conduct to law enforcement and child protec-

tive agencies despite their statutory obligations to do so.

Id. at 1142.

When the defendants in Doe "A" moved to dismiss

the § 1983 claims for failure to allege conduct arising

under color of state law and failure to allege actions which

rise to the level of constitutional violations, the district

court denied the motions. The court first found that the

bus driver, as a school district employee, acted under color

of state law. /d. at 1143. After examining the legal deve-

lopment of substantive due process rights, the court stated

that “this Court does not doubt that the constitutional

rights of children to be free from harm is commensurate

with the rights of adults in state custody." Jd. at 1145. The

court concluded that:

The acts of abuse alleged by plaintiffs state a

substantive due process claim. The acts intrude

upon the personal privacy and bodily integrity

of these children. The acts intrude in ways

-63-

more personal and private than a jailhouse

beating and in ways which will surely leave

psychological scars long after physical healing

is complete. . . . The alleged acts of [the bus

driver] and the alleged tolerance of these acts

by [the school district] and the individual de-

fendants pass beyond the pale of common law

torts. They shock the conscience of this

Court.

Doe "A", 637 F. Supp. at 1145.

In Hall v. Tawney, a case involving the infliction of

severe corporal punishment on grade schooi students, the

Fourth Circuit explained the substantive due process right

at issue as:

the right to be free of state intrusions into the

realms of personal privacy and bodily security

through means so brutal, demeaning, and

harmful as literally to shock the conscience of

a court. The existence of this right to ultimate

bodily security - the most fundamental aspect

of personal privacy - is unmistakably establish-

ed in our constitutional decisions as an at-

tribute of the ordered liberty that is the con-

cern of substantive due process. Numerous

cases in a variety of contexts recognize it as a

last line of defense against those literally out-

rageous abuses of official power whose very

variety makes formulation of a more precise

standard impossible.

Hall v. Tawney, 621 F.2d 607, 613 (4th Cir. 1980) (cit-

ations omitted). The court explained that it "simply do not

see how" it could fail to uphold the right in "public school

children under the disciplinary control of public school

teachers" when the right was upheld in persons charged

with or suspected of crime and in the custody of police

officers. Id.

We think it apparent that the plaintiff's complaint

alleges a deprivation of Sowers’ right to be free from state

intrusions, in this case by her teacher, into her personal

privacy and bodily security. Because such a right is em-

braced within the scope of substantive due process, this

satisfies the requirement that her complaint allege a viola-

tion of a constitutionally protected liberty interest.

2. “Deliberate Indifference" or "Gross Negli-

gence” by Defendants

The second requirement for a § 1983 claim for a

failure to act is that the official having the responsibility

to act must display "deliberate indifference” or "gross negli-

gence." The question is whether this requirement is met by

the plaintiff's al legation of "reckless indifference” by the

defendants. Traditionally the term gross negligence" has

been held equivalent to the words "reckless and wanton,"

-65-

see, e.g, Jones v. Commonwealth, 213 Ky. 356, 281 S.W.

164, 167 (1926), and the Supreme Court in Estelle v. Gam-

ble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), has

characterized deliberate indifference as "the wanton inflic-

tion of unnecessary pain.” 429 U.S. at 105, 97 S.Ct. at 291.

Furthermore, in Estate of Bailey by Oare, the Third Circuit

described the burden of proof on the plaintiffs in that §

1983 action as "[permitting] the fact finder to infer deliber-

ate or reckless indifference or unconcern or callous disre-

gard for" the deceased plaintiff’s safety. Estate of Bailey by

Oare, 768 F.2d 503, 508 (3d Cir. 1985) [emphasis added];

see also Commonwealth Bank & Trust Co., N.A. v. Russell,

825 F.2d 12, 17 (3d Cir. 1987). We therefore conclude that

the plaintiff’s allegation of "reckless indifference” properly

States a claim against the defendants under § 1983.

Because the plaintiff’s complaint properly alleges a

claim under § 1983, we will deny the defendants’ motion

to dismiss the complaint for failure to state a claim.

III. Statute of Limitations and Discovery Rule for Tolling

In Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938,

85 L.Ed.2d 254 (1985), the Supreme Court ruled that the

statute of limitations for § 1983 actions is the statute of

limitations for the relevant state’s personal injury statute.

Since this § 1983 action arose within the Commonwealth,

we must apply the two-year statute of limitations set forth

in 42 Pa.C.S.A. § 5524(2). See Sullivan v. City of Pittsburgh

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Pa., 811 F.2d 171 (3d Cir.), cert. denied, 56 U.S.L.W. 3244,

108 S.Ct. 148, 98 L.Ed.2d 104 (1987); Stoneking v. Brad-

ford Area School District, 667 F. Supp. 1088, 1091 (W.D.

Pa. 1987).

Federal courts have recognized a "discovery rule" for

setting the date from which the two-year statute of limita-

tion would begin to run. Courts distinguish between the

date when a cause of action accrues and the tolling of a

statute of limitations.? State law governs the tolling of the

statute, unless state law is inconsistent with the purposes

behind the civil rights acts. Board of Regents v. Tomanio,

446 U.S. 478, 484-86, 100 S.Ct. 1790, 1795-96, 64 L.Ed.2d

440 (1980) (§ 1983 claim).!° The accrual of a civil rights

action, however, is a question of federal law. Dreary v.

Three Un-named Police Officers, 746 F.2d 185, 197 n. 16

(3d Cir. 1984); Sandutch v. Muroski, 684 F.2d 252, 254 (3d

Cir. 1982) (per curium) (citing Cox v. Stanton, 529 F.2d 47,

50 (4th Cir. 1975)); Plain v. Flicker, 645 F. Supp. 898, 901

(D. N.J. 1986) (claims under 42 U.S.C. §§ 1983, 1985). We

consider the accrual of the cause of action to be the

9 A cause of action “accrues” when a suit may be maintained thereon,

whenever one person may sue another. Black's Law Dictionary (rev. 4th ed.,

1968) p. 37. The tolling of a statute of limitations essentially “stops the clock”

with regard to the limitation. This includes the delay of the initial running of

the limitations period, interruption of the running of the limitations period,

or timely filing of the action within the statutory limitations period.

10 See also Wilson v. Garcia, 471 U.S. 261, 269 & n. 17, 105 S.Ct. 1938,

& n. 17, 85 L.Ed.2d 254, 262 & n. 17; Johnson v. Railway Express

Agency, Inc., 421, U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975).

47-

threshold statute of limitations issue because any state

tolling doctrine would not come into play until the cause of

action had accrued. Under federal law, a § 1983 claim

accrues when the plaintiff knows or has reason to know of

the injury that constitutes the basis of her action. Jd.

Federal courts have fashioned a "discovery rule" which

requires that a cause of action accrues when the plaintiff

becomes aware, or should have become aware, of both

the fact of injury and its causal connection to the defen-

dant, although the plaintiff need not know that the defen-

dant’s conduct is tortious or unlawful.!! United States v.

Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259

(1979) (discovery rule under Federal Tort Claims Act); see

also Plain v. Flicker, 645 F. Supp. 898, 901 (D. N.J. 1986)

(applying Kubrick rule to § 1983 action); Hauptmann v.

Wilentz, 570 F. Supp. 351, 396 (D. N.J. 1983), affd 770

F.2d 1070 (3d Cir.), cert. denied 474 U.S. 1103, 106 S.Ct.

11 As this Court noted in Stoneking v. Bradford Area School District,

667 EF. Supp. 1088 (W.D. Pa. 1987), Pennsylvania courts have also recog-

nized a “discovery rule” exception to its statute of limitations. Jd. at 1092 &

n. 5. See Lewey v. H.C. Frick Coke Co., 166 Pa. 535, 547, 31 A. 261, 263

(1895); Bowser v. Guttendorf, 1988 Pa. Super. LEXIS 1424, 541 A.2d 377,

380 (1988); 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) (“as the rule has

developed it has become clear that its basis is not concealment by the

defendant but rather the ability of the plaintiff to discover . . . [her] injury or

its cause.” Id. at 95, 425 A.2d at 436); see also Burnside v. Abbot Laborato-

ries, 351 Pa. Super. 264, 292, 505 A.2d 973, 988 (1985) ("[W]here the issue

involves a factual determination regarding what is a reasonable period of time

for a plaintiff to discover [her] injury and its cause the determinaiion :s for

the jury.”).

-68-

807, 88 L.Ed.2d 922 (1986) (also applying Kubrick rule to

§ 1983 claim).!2

The Kubrick rule’s distinction between a plaintiff’s

knowledge of her injury and knowledge of the defendant’s

causal connection to the injury is illustrated by the Fifth

Circuit’s decision in Lavellee v. Listi, 611 F.2d 1129 (Sth

Cir. 1980). In Lavellee, the plaintiff alleged that on Sep-

tember 8, 1976 he had been arrested and then transport-

ed to a hospital where he was forced by several defendant

deputy sheriffs to undergo an extraction of his spinal fluid,

a procedure performed by defendant medical personnel.

He was then locked in a bare, unsanitary, padded cell

where his pleas for an examination for the pain in his back

were first met with threats of beatings, after which he was

placed in irons and locked, hands and feet, to a drain pipe,

in a fetal position. Jd. at 1130. The plaintiff alleged that he

was not allowed to see a physician until February 3, 1977,

nearly five months later, at which time he first discovered

that his back had been permanently injured. The plaintiff

filed his action for medical malpractice and civil rights

12 While it is not necessary as yet for us to decide whether the defen-

dants actively concealed their alleged unlawful conduct, as the complaint

alleges, active concealment by a defendant tolls the running of the statute

unul a plaintiff discovers the cause of action or discovers facts that reasonably

put her on notice of it. See Holmbergy. Armbrecht, 327 U.S. 392, 397, 66

S.Ct. 582, 585, 90 L-Ed.2d 743 (1946) (the equitable tolling doctrine "is read

into every federal statute of limitations."); Plain v. Flicker, 645 F. Supp. at

902 ($ 1983 claim); Cohen v. McAllister, 673 F. Supp. 733, 739-740 (W.D.

Pa. 1987). See also Redenzby Redenzv. Rosenberg,360 Pa.Super. 430, 520

A.2d 883 (1987) (if tortfeasor actively conceals, statute of limitation tolled

until injured person can overcome concealment).

-69-

(under § 1983) on January 10, 1978. Noting the one year

limitations period borrowed from Louisiana law, the dis-

trict court dismissed the plaintiff’s civil rights and medical

malpractice claims for the incidents occurring prior to

January 10, 1977. The Fifth Circuit reversed and remanded

the dismissal of the malpractice claim, arguing that:

If the plaintiff was unaware of the perma-

nence of his injury, and reasonably thought

that the pains in his back were the normal

result of a spinal tap or were caused by the

alleged assaults, he cannot be deemed to have

knowledge of the factual predicate of his claim

or its connection with possible malpractice by

the defendants. Until he suspected, or should

have suspected, that his pain was not the

result of a properly-conducted spinal tap or of

the alleged assaults, he lacked any factual basis

on which to suspect an invasion of his legal

rights.

Lavellee v. Listi, 611 F.2d at 1131-1132.

In Lavellee, as with the present case, there is a

crucial, if subtle, distinction between the plaintiffs’ know-

ledge of his or her injury and knowledge of the causal

connection between the injury and a particular defendant's

actions. The plaintiff in Lavellee certainly knew or should

have known soon after his involuntary spinal tap and

shackling that somehow he had been injured at the hands

-70-

of the deputy sheriffs, just as the plaintiff in the case at

bar knew that she had been sexually assaulted and injured

by Mr. Wright. Nonetheless, the Fifth Circuit found that

the plaintiff in Lavellee could not necessarily be expected

to know that his permanent back injury was also proxi-

mately caused by an improperly conducted spinal tap

operation by the defendant medical personnel Likewise,

the critical question this Court now faces is whether Sow-

ers knew or should have known that the school district,

superintendent, principal and assistant principal had fos-

tered an environment of deliberate indifference toward

teacher abuse of female students which was a proximate

cause of her injury.

The defendants argue that this action should be

barred by the statute of limitations because: (1) defen-

dants did not have a policy or custom of reckless indiffer-

ence; (2) their conduct was not a cause of the plaintiff's

injury; and (3) even if their conduct was found to be a

cause of her injury, the plaintiff knew or should have

known of that causal connection in late 1979 or early 1980,

when school administrators pressured her to renounce her

charges and publicly apologize to Wright.

The defendants direct this Court’s attention to the

Third Circuit’s decision in Sandutch v. Muroski, 684 F.2d

252 (3d Cir. 1984), to recast the federal discovery rule for

accrual of a cause of action as follows:

. es

that notice of improper conduct by govern-

ment officials should lead a plaintiff, by the

exercise of due diligence, to the awareness that

he has a cause of action against the govern-

ment officials based upon a conspiracy to

violate his civil rights.

Defendants’ Brief in Support, p. 7. This is an inaccurate

statement of the holding of Sandutch,'> as well as of the

!3 Sandutch was a civil rights action against state prosecutors alleging a

violanon and conspiracy to violate the plaintiff's constitutional rights by

obtaiming a false confession from an alleged co-conspirator and using it to

prosecute the plaintiff, Sandutch, for arson and murder. 684 F.2d 252. The

‘alse tesumony linking Sandutch to the crime was given during a preliminary

nearing and was introduced at his criminal trial. After the preliminary hearing

‘ul pmor to trial the alleged co-conspirator recanted, saying his statements

were made under duress. Sandutch’s attorney attempted to introduce the

aped recantation at the criminal trial, but the court excluded it. Several years

ater in September, 1980 (after Sandutch had been convicted and jailed)

Sandurtch obtained an affidavit from the alleged co-conspirator explaining the

circumstances under which the false statement was obtained. Sandutch filed

nus civil mghts action two weeks later, arguing that he neither knew nor had

reason to know of his injury until he received the September, 1980 affidavit.

The Third Circuit found that Sandutch should have known of the

alleged conspiracy because:

although at that time Sandutch may not have known all the

facts necessary to establish that the defendants conspired to

deprive him of his right, his 1976 knowledge of the alleged

falsity of [the alleged co-conspirator’s} statement obtained

under duress should have led, by the exercise of due dili-

gence, to the awareness that he had a cause of action. The

Statute began to run then.

684 F.2d at 254. Nowhere in the Sandutch decision do we find any refer-

ence to the “notice of improper conduct” discovery rule represented to this

Court by the defendants.

. 3

actual federal discovery rule. While the actual discovery

rule delays accrual of a cause of action until a plaintiff

knew or should have known of the injury and its causal

connection to the defendant, the defendants’ misstatement

of the rule would have the cause of action accrue when

the plaintiff receives "notice of improper conduct by go-

vernment officials." Jd. Defendants use this inaccurate

statement of the rule to argue that Sowers’ cause of action

accrued at the time of her September, 1979 meeting with

Smith and Miller at which she alleges the defendants

engaged in "improper conduct," by attempting to intimi-

date, threaten and coerce her into retracting her allega-

tions against Wright. Jd. at 9. The defendants assert that

"[s]urely the alleged overt and hostile conduct of Defen-

dants at this meeting was sufficient, as a matter of law, to

put [Sowers] on notice of the conspiracy." Jd. However, the

defendants’ treatment of Sowers after the assault was not,

and obviously could not have been, a cause of her assault.

There is no al legation that Sowers knew of the defen-

dants’ handling of previous sex abuse complaints against

teachers. Furthermore, there are many credible explana-

tions for why observance of the defendants’ conduct at the

1979 meetings might not be expected to lead her to the

conclusion that there was a policy of reckless indifference

(e.g., Sowers thought that the defendants simply did not

believe her allegations). Merely because the plaintiff had

witnessed some "improper conduct" by the defendants did

not necessarily give her reason to know of an ongoing

policy of reckless indifference to numerous complaints of

sexual abuse by teachers which might have been a proxi-

mate cause of her own injury.

In order for this Court to decide the statute of

limitations question, we must consider the allegations of

the plaintiff's complaint with relation to the “knew or

should have known standard. As to the question of whe-

ther the plaintiff actually knew of her injury and the causal

connection between her injury and the defendants’ con-

duct, the piainiiff insists that it was not until Edward

Wright's history of sexual abuse was revealed to the Brad-

ford community in March, 1986 that she knew of the

defendants alleged reckless indifference toward the prob-

lem. Bearing in mind our responsibility to construe the

facts in the light most favorable to the plaintiff when

ruling on a motion to dismiss, we must conclude for the

purpose of this motion that it was not until March, 1986

that Sowers actually knew how the defendants’ conduct

was proximately caused her injury.

The more difficult question is whether or not Sow-

ers should have known of the causes of her injury. The

Third Circuit has stated that "|wJhether or when a plain-

tiff knows or has reason to know of the existence and

cause of his or her injury will often turn on inferences

drawn from disputed facts." Van Buskirk v. Carey Canadi-

an Mines. Lid., 760 F.2d 481, 487 (3d Cir. 1985) (affirm-

ing jury finding that plaintiff knew or had reason to know

of cause of asbestos-related condition more than two years

prior to lawsuit). We find it significant that the plaintiff's

complaint alleges more than one incident of abuse of

female students by teachers prior to Wright’s June, 1979

assault upon the plaintiff, with school officials taking only

minimal disciplinary action in response.'* We are not sure

that these alleged prior incidents will prove a formal policy

or custom, but as the Third Circuit stated in Estate of

Bailey By Oare v. County of York, 768 F.2d 503 (3d Cir.

1985), "even in the absence of formal agency conduct, an

‘official policy’ may be inferred ‘from informal acts or

omissions of supervisory municipal officials’. . . . ‘[t]he issue

of authorization, approval or encouragement is generally

one of fact, not law.” Jd. at 506 (citations omitted) (qguot-

ing Turpin v. Mailet, 619 F.2d 196, 200, 201 (2d Cir.), cert.

denied, 449 U.S. 1016, 101 S.Ct. 577, 66 L.Ed.2d 475

(1980); see also Owen v. City of Independence, 445 U.S.

622, 633-34 & n. 13, 655 n. 39, 100 S.Ct. 1406-07 & n. 13,

1417 n. 39, 63 L.Ed.2d 673 (1980). We believe that the

plaintiff is entitled to offer evidence to support her claim

that she did not know, and should not have been expected

to know, that there existed an environment of reckless

indifference toward sexual abuse of female students by

teachers at the Bradford Area School District.

14 We view the plaintiff's allegations concerning the defendants’ handling

of sexual abuse incidents prior to the Sowers episode as relevant evidence of

policy or custom of deliberate indifference toward such behavior by teachers.

This does not mean that this Court has decided that evidence of subsequent

acts May not also tend to prove the nature of a prior conspiracy. See, ¢.g.,

Grandstaff v. City of Borger, Tex., 767 F.2d 161, 171 (Sth Cir.), cert. demied

55 U.S.L.W. 3607, 107 S.Ct. 1369, 94 L_Bd.2d 686 (1987).

. %

We think the plaintiff is also entitled to an oppor-

tunity to engage in discovery and attempt to prove that

the alleged practice, custom and/or policy of reckless indif-

ference to students’ complaints of sexual abuse of female

students by male teachers was a proximate cause of her

injury. The Third Circuit has stated that "[o]rdinarily,

proximate cause cannot be determined on the basis of

pleadings but instead requires a factual development at

trial.” Estate of Bailey By Oare v. County of York, 768 F.2d

at 511 (citing Black v. Stephens, 662 F.2d 181, 190-91 (3d

Cir. 1981), cert. denied, 445 U.S. 1008, 102 S.Ct. 1646, 7)

L.Ed.2d 876 (1982) (jury question whether policy at issue

proximately caused injury)). "Whether there is an ‘affirm-

ative link’ between ‘the adoption of any plan or policy

express or otherwise’ and the injury complained of is ordi-

narily an issue that requires a factual development.” /d. at

511 (quoting Rizzo v. Goode,423 U.S. 362, 371, 96 S.Ct.

598, 604, 46 L.Ed.2d 561, 569 (1976).

We think factual development will be necessary to

make a determination as to whether the defendants al-

leged conduct was a proximate cause of the plaintiff's

injury, and if the plaintiff knew or should have known of

that alleged causal connection between the defendants’

conduct and the sexual assault upon Sowers. We will

therefore deny the defendants’ motion to dismiss the

acuion as barred by the statute of limitations.

IV. Qualified Immunity

The individual defendants Smith, Miller and Shucy

also seek dismissal on the basis that their actions were

within the scope of those actions protected by the doc-

trine of qualified immunity.'* Qualified or "good faith” im-

munity is an affirmative defense that recognizes that gov-

ernment officials are entitled to some form of immunity

from suits for damages. The Supreme Court, in Harlow v.

Fitzgerald, held that:

|G jovernment 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 a person of which a

reasonable person would have known.

457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396,

410 (1982). The individual defendants’ eligibility for dismis-

sal of this action under the qualified immunity doctrine

turns on whether a reasonable person would have known

that their conduct violated a clearly established constitu-

tional right.

1S The defendants do not assert the qualified immunity defense on

behalf of the school district, conceding that the doctrine does not apply to

a municipal defendant. Defendants’ Bnef in Support, p. 19 n. 11 (cating Owen

v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673

(1980)).

Ti.

These same defendants previously have raised the

qualified immunity defense before this Court as a basis for

granting them summary judgment in Stoneking v. Bradford

Area School Dist., another suit brought by a female stu-

dent at the Bradford high school raising constitutional

claims stemming from sexual abuse suffered at the hands

of Edward Wright.'!© This Court held that the defendants

were not entitled to qualified immunity, concluding that a

reasonable person would have been aware that the plain-

tiff had a substantive due process right to be free from

intrusions into her "personal privacy and bodily integrity.”

Stoneking, 667 F. Supp. 1088, 1102 (W.D. Pa. 1987). We

stand by that conclusion, and deny the individual defen-

dants’ motion to dismiss on the basis of qualified im-

munity.

16 Wright’s sexual abuse and harassment of Kathieen Stoneking began

in the fall of 1980. The first incident of abuse consisted of Wright forcibly

kissing her, and as time progressed the abuse greatly accelerated both in

terms of frequency and intrusiveness. The assaults continued on an almost

weekly basis until Stoneking’s graduation in the spring of 1983. See Stonek-

ing v. Bradford Area School Dist., 667 F. Supp. 1088, 1090 - 1091 (W.D. Pa.

1987).

-78-

ORDER

AND NOW, this 29th day of August, 1988, after

careful consideration of the Defendants’ Motion to Dis-

miss, and for the reasons set forth in the accompanying

Memorandum Opinion,

IT IS HEREBY ORDERED that the Defendants’

Motion to Dismiss is DENIED.

-79-

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

Third Circuit, No. 88-3640, January 31, 1989

Sowers v. Bradford Area School District, et al.

-81-

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 88-3640

JUDY GROVE SOWERS

Vv.

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

(D.C. Civil No. 88-00057 E)

District Judge: Honorable Glenn E. Mencer

Submitted under Third Circuit Rule 12 (6)

January 26, 1989

-83-

BEFORE: GIBBONS, Chief Judge, and SEITZ

and GREENBERG, Circuit Judges

JUDGMENT ORDER

After consideration of all contentions raised by

appellants, it is

ADJUDGED and ORDERED that the order of the

district court of August 29, 1988 be and is hereby affirm-

ed.

The court notes that our jurisdiction is limited to

review of the order of the district court insofar as it denied

appellants’ motion to dismiss on the ground of qualified

immunity. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105

S.Ct. 2806, 2817-18 (1985). Thus, our judgment should not

be understood as affirming the order of the district court

to the extent that it denied appellants’ motions to dismiss

on other grounds.

The court enters this order as it believes that Stone-

king v. Bradford Area School District, 856 F.2d 594 (3d Cir.

1988), cert. petition pending, is essentially controlling here.

Costs taxed against appellants.

BY THE COURT,

/s/ Morton I. Greenberg

ATTEST:

/s/ Sally Mrvos, Clerk

January 31, 1989

G. Order of Supreme Court of the United States,

No. 88-1350, April 3, 1989

Smith v. Sowers

-87-

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

April 3, 1989

Mr. Kenneth D. Chestek

Murphy, Taylor, et al.

518 State Street

Erie, PA 16501

Re: Frederick Smith, individually, and as

Principal, Bradford Area High School,

et al., v. Judy Grove Sowers

No. 88-1350

Dear Mr. Chestek:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is granted. The

judgment is vacated and the case is remanded to the

United States Court of Appeals for the Third Circuit for

further consideration in light of DeShaney v. Winnebago

County Department of Social Services, 489 US.

(1989).

Very truly yours,

/s/ Joseph F. Spaniol, Jr.,

Clerk

H. 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)

Stoneking v. Bradford Area School District, et al.

Kathleen Stoneking,

Plaintiff

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 School 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. Chestek, Esquire; James D. McDonald, Jr.,

Esquire, for Defendants.

-93-

OPINION

MENCER, J.

ee ae

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.!7_ 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

17Pursuant to an Order entered May 22, 1987, this case was consolidated

for trial 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 briefs and voluminous deposition testimony. The motions,

briefs and deposition transcripts from the Harbaugh and Rovito cases have

been adopted for the purposes of the pending summary judgment motion.

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

Case.”

-94.

—ee

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 complaint 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-

tions.

After consideration of the briefs, 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 material 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-

-95-

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

Counts I, Ill, V and VII'®, and grant the motion as it

pertains to Counts II, [V and VI.

II. 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 assauit and

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

18The final count in the complaint was mislabeled "Count V.” It should,

however, be Count VII.

19Since 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.

-96-

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-

-97-

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

ment.”

III. 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

200n 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™ Id. at 2406).

-98-

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 resolve all doubt,

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.

-99-

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-

-100-

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

discover the injury or its cause until after the occurrence

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

21 aithough 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 cour’

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 unable 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.

22In evaluating an assertion that 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 initial 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 that injury until some date after the liability creating act occurred. Id.

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).

-101-

determination the remaining questions are for the jury.

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

Super. 264, 292, 50S 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.2> 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,

1983.74

23 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.

24The 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 Anown 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

-102-

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 ihe 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 plaiaiff would have had ‘o

have Anown thai certain events occurred, events tha; the defendants vigorous-

ty contend never did occur.

-103-

vation of any rights, privileges, or immunities

secured by the Constitution and laws, shal! 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. Al-

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:

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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 Jngraham v. Wright,

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

in Ingraham 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 law, deliber-

ately decide to punish a child for misconduct by restrain-

ing the child and inflicting appreciable physical pain, we

-105-

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-

stitutional 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

from the physical and sexual abuse inflicted by the child’s

foster 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

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

tional 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

-106-

ES ST 2

Minka a

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

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

II).

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-

ee 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

25In an opinion written by Judge Sloviter, sitting by designation on the

Second Circuit, the court reversed the granting 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 plaintiff's physical safety.

-107-

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

26 Additional support for this conclusion can be adduced from Esiate of

Bailey by Oare v. 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 hold that Aleta or her father

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

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

a state." Id. at 509 n.7 (emphasis added).

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

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

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

-108-

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).78 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.

27The issue in Withers was whether the plaintiff 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.

28The 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

plaintiff 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.

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eee eae

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.

291n 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

-110-

Pod mabe

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

444 U.S. 277 (1980) opened the door to the concepi 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 US. 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 responsible 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.

30Interestingly, 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 Huwmann v. Wilson, 696 F.2d 783, 784 (10th

-111-

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 plaintiffs’

decedent did not stand in any special relationship to the parolee from which

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

-112-

and failing to prevent the infliction of harm is

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

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

3124 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.

-113-

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

-114-

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 "reasonabie" 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-

-115-

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

presumption of correctness.°?

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.

32As the Supreme Court noted in Youngberg:

Ali members of the Court of Appeals agreed that respondents’

[plaintiff'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.

-116-

_ _

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." /d. 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

-117-

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

33The 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 handling 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.

-118-

OP net OOF

ay ese

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." Jd. 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:

aithough 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 of Oklahoma City v. Tuttle, 471

-119-

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

‘ourt concluded that "judgment against a public servant,

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

liability. In Tuttle 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

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et ee eee ee aliasing ia ad ie Pe

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.*4 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

beiween the "policy" and the constitutional

deprivation.

34The Supreme Court expressly declined to rule on the issue of whether

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

requirement of Monell. Tittle, 471 U.S. at 804 1.7.

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

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 at all possible, and then counselled her that

he would take care of it. Deposition of Theresa Rodgers

at 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.

35See Deposition of Theresa Rodgers at 108.

-123-

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 followed Judy

36s 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.

37Mr. 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.

-124-

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.*®

Although 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.2? 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

—_-

38Despite 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.

39Mr. 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.

-125-

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.”

Sometime after these initia! 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,

40Q: 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 to 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 rumors were

not correct?

A: He had told 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--I 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 1 have to go

through all of this they’re not true.”

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

-126-

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).

41 Another critical fact relates to J udy’s deliberate attempt to seek help

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

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

conclusion of all group informational sessions, Mr. Dillard 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. Dillard 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.

-127-

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

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

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

directive was left solely up to Mr. Wright.

-128-

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

immunity 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 constitu-

tional rights, of which a reasonable person would have

known." Jd. at 818. Thus, the pending question, in terms

of the qualified immunity defense, is whether the plaintiff

-129-

had a constitutional right which at the time of the alleged

violation, 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, 597 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 plaintiff had a substantive due

process right to be free from intrusions into her "personal

privacy and bodily integrity." As the court in Hail 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-

-130-

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

43Reference 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 IS judicially determined that the act of the employee caused the

-i31-

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.

-132-

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 II,

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.

I. Opinion of U.S. Court of Appeals for

Third Circuit, No. 87-3637, September 12, 1988

Stoneking v. Bradford Area School District, et al.

-135-

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 Gornalli

and Sennett, Inc.

Erie, PA 16501

Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Facts

This is an appeal 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,

Inc., 477 U.S. 242, 255 (1986); see also Hynsen, 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 physical force, threats of

reprisal, intimidation and coercion, sexually abused

Stoneking, harassed her, and forced her to engage in

various sexual aets with him at various places,

including the high school’s band room and its

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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 alleges

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.

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 constitutioral right which

allegedly has been violated or that the alleged acts or

failure to act on the part of the individual defendants

& Defendants filed their answer after the court denied t

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