In a mixed ruling, a magistrate judge from the Middle District of Pennsylvania has ruled for a school district in a case in which it was sued by a high school wrestler after his high school coaches insisted the team play indoor tackle football during a practice, which led to a devastating injury.
While the judge granted the defendants’ motion to dismiss the plaintiff’s claim under 42 U.S.C. § 1983 as it related to the school district, it denied the motion as it pertained to the individual defendants. The primary reason the court ruled for the school district was that there was no evidence that the dangerous practice regimen was “a custom” within the district.
By way of background, plaintiff A.C. was a home-schooled student who participated as a member of the school district’s wrestling team. The team was coached by defendant Josh Haines and his assistant, defendant Michael Hollar. Fellow defendant William Hantz was the athletic director for the school district. During the course of a wrestling practice on Dec. 18, 2017, the members of the wrestling team were told by Haines and Hollar that they would not be wrestling during that practice, but rather they would be playing tackle football. The tackle football was conducted indoors without any protective equipment, with Haines and Hollar participating in the activity. Haines and Hollar instructed the team to play tackle football even though the team members had no training in the sport. It is alleged that Haines and Hollar engaged in and allowed the activity to continue for approximately 20 minutes. “Students were getting tackled violently to the ground in ways that it was obvious that injury would occur if the activity was permitted to continue,” wrote the court in citing the complaint.
At the 20-minute mark, A.C. was tackled to the ground by another student, causing A.C.’s femur to be snapped in half. This caused “excruciating pain along with required surgery and extensive physical therapy,” wrote the court. “A.C. is permanently unable to participate in activities which he enjoyed prior to this injury.”
A.C. sued on June 19, 2018. Counts I and II of the complaint assert Fourteenth Amendment claims “for a state created danger and for the right to bodily integrity.” Count III alleges a §1983 Monell liability claim. Counts IV and V allege state law claims for negligence and respondeat superior respectively.
The defendants filed a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, challenging whether the plaintiffs have failed to allege facts which support a §1983 state created danger or bodily integrity claim; whether the plaintiffs’ count III Monell claims against defendants Haines and Hollar should be dismissed; whether the plaintiffs’ second amended complaint should be dismissed on the grounds of immunity; whether the plaintiffs’ respondeat superior count should be dismissed for failure to state a claim; whether the plaintiffs are entitled to punitive damages; and whether the plaintiffs Robert Cuvo and Lisa Cuvo, have failed to state a claim upon which relief may be granted on their own behalf.
Before embarking on its discussion, the court noted that the plaintiff dismissed Count II “as duplicative of Count I.”
The plaintiffs brought the federal civil rights action under 42 U.S.C. § 1983. Section 1983 provides in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
42 U.S.C. § 1983. Section 1983 does not create substantive rights, but instead provides remedies for rights established elsewhere. City of Oklahoma v. Tuttle, 471 U.S. 808, 816, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985). To establish a § 1983 claim, the plaintiff must establish that the defendants, acting under color of state law, deprived the plaintiff of a right secured by the United States Constitution. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir. 1995). To avoid dismissal for failure to state a claim, a civil rights complaint must state the conduct, time, place, and persons responsible for the alleged civil rights violations. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).
Here, the plaintiffs advance Fourteenth Amendment claims, which the defendants maintain are not cognizable under § 1983.
In its analysis, the court first considered the state-created danger, which holds the state liable when it “acts to create or enhance a danger that deprives a plaintiff of his or her Fourteenth Amendment rights to substantive due process.” Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013)
In Bright v. Westmoreland County, 443 F.3d 276 (3d Cir. 2006), the Third Circuit articulated the following four-factor test to determine whether a plaintiff has stated a claim under the state-created danger exception:
(1) The harm ultimately caused was foreseeable and fairly direct;
(2) A state actor acted with a degree of culpability that shocks the conscience;
(3) A relationship between the state and the plaintiff existed such that the plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state’s actions, as opposed to a member of the public in general; and
(4) A state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all.
Id. at 281.
The court noted that a decision on this count is tied to whether the individual defendants were entitled to qualified immunity, which it addressed further down in the opinion.
Turning next to Count III, or the Monell Claim, the court noted that such claims stem from Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), in which the Supreme Court of the United States established that municipalities and other local governmental units are included among those “persons” subject to liability under § 1983. Id. at 690.
The school district sought dismissal of this claim, arguing that the plaintiffs did not allege a policy or custom of using football drills to train wrestling team members nor a plausible claim on a failure to train theory, as spelled out in Monell.
The magistrate judge agreed, noting that the complaint “does not identify any affirmative policy or custom adopted or promulgated by the school district itself. Although it does allege, in cursory fashion, that the school district failed to adequately train defendants Haines and Hollar, as well as other faculty, in ‘safe practice procedures’ ─ specifically, training that addresses the use of ‘other sports activities for which students are untrained and unprotected . . . i.e.: you cannot play tackle football at wrestling practice’ ─ they have failed to allege any facts from which a factfinder might infer actual or constructive knowledge by the school district’s board of directors of a previous pattern at similar constitutional violations, or of the allegedly inadequate training, which is a prerequisite to a finding of deliberate indifference by a municipality. See Connick v. Thompson, 563 U.S. 51, 62, 131 S. Ct. 1350, 179 L. Ed. 2d 417 (2011).”
More Facts Are Needed Before Court Decides Question of Immunity
Returning to the question of immunity for the individual defendants, the court wrote that “the doctrine of qualified immunity shields government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id.
The court added that a qualified immunity determination involves a two-pronged inquiry: (1) whether a constitutional or federal right has been violated; and (2) whether that right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001.
One of the challenges for the court was the relative paucity of case law that is specific to the instant case.
The plaintiffs argued that Hall v. Martin, Civ. Action No. 17-523,2017 U.S. Dist. LEXIS 121099, 2017 WL 3298316 (W.D. Pa. 2017), “is controlling as it shows that the right at issue is clearly established and provided a fair warning to the defendants. In Hall, the plaintiff, a high school student, was instructed by the gym teacher, Martin, to play floor hockey ‘like regular hockey’ as a regular gym activity. The students were provided with floor hockey sticks, goalie nets, and a hockey net. They were not provided with eye or facial protection. During the game, Hall played goalie and was hit in the left eye by the floor hockey puck causing him to be permanently legally blind. Unlike the facts of our case, in Hall, the gym teacher was aware from past incidents that students who played goalie were injured after being hit by a floor hockey puck. Some of those incidents were reported to the school nurse who then notified the school district about the injuries. Under those facts, the court found that the plaintiff pled sufficient facts to state a viable § 1983 claim against the gym teacher, thereby defeating a Rule 12(b)(6) motion to dismiss.”
In the instant case, “the plaintiffs define the constitutional right as prohibiting students from engaging in dangerous sports without protective equipment where it is foreseeable that an injury will occur. In response to the defendants’ position that Hall is distinguishable from the facts of this case because in Hall there was an awareness of prior injuries, the plaintiffs contend that the issue of prior injuries establishes the foreseeability element to the state-created danger theory. Further, the plaintiffs point out that we previously ruled that the foreseeability element was met in the first amended complaint without an allegation of prior injuries. In our discussion of the foreseeability element of the state-created danger theory in our previous ruling, we cited Third Circuit precedent that foreseeability is adequately pled in three situations where: (1) the state actor’s awareness rises to the level of actual knowledge; (2) the state actor is aware of risk that is sufficiently concrete to put the actor on notice, and (3) the state actor would be informed of the foreseeability of harm by ordinary common sense and experience. Cuvo v. Pocono Mountain Sch. Dist., No. 3:18-cv-01210, 2019 U.S. Dist. LEXIS 54840, 2019 WL 1424524 at *3 (M.D. Pa. Mar. 29, 2019)(citing Phillips v. Cty. of Allegheny, 515 F.3d 224, 238 (3d Cir. 2008), and Kniepp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996)).”
The plaintiff alleged that Haines and Hollar “knew or should have known of this due to their level of experience in teaching, coaching, and or education.
“Under these circumstances, based on the facts alleged in the second amended complaint, we find that at the pleading stage it is premature to determine whether the individual defendants are entitled to qualified immunity with respect to the plaintiffs’ § 1983 state-created damages claim.”
Regarding the other claims, the court permitted the plaintiff’s state law claims to continue, while dismissing their punitive damages claims against defendants Haines and Hollar.
Cuvo v. Pocono Mt. Sch. Dist. et al.; M.D. Pa.; 2019 U.S. Dist. LEXIS 219690, No. 3:18-cv-01210
Attorneys of Record: (for plaintiffs) Curt M. Parkins, Matthew Thomas Comerford, LEAD ATTORNEYS, Comerford Law, Scranton, PA. (for defendants) Brian J. Taylor, John E. Freund, III, King Spry Herman Freund & Faul LLC, Bethlehem, PA.
