A federal judge from the Eastern District of Pennsylvania once again dismissed the claim of a former high school soccer player, who after being rebuffed twice before by the court, failed in a third bid to hold a school district and individual defendants liable for the concussion she suffered.
The player/plaintiff, M.U., argued in the latest complaint that the defendants violated her Fourteenth Amendment due process right to bodily integrity. The court found that the defendants’ conduct does not “rise to the level of a Constitutional injury.” This time, it dismissed the claim with prejudice.
By way of background, M.U. suffered the concussion during a preseason soccer scrimmage at Downingtown High School East in Philadelphia on August 20, 2012. As an incoming freshman, plaintiff collided with another player while going for a header. M.U. claimed that she felt her neck snap back from the impact, and that she fell to the ground. M.U. alleged that she heard the opposing coach saying that M.U. should be taken out of the game. One of M.U.’s teammates allegedly told Reed that M.U. had been hit in the head and needed to come out of the game to be evaluated. Reed did not remove M.U. from the game. Rather, M.U. stayed in for the rest of the game, during which time she had collisions with other players and headed the ball several more times. M.U. began to experience headaches on the bus ride home from the scrimmage.
The next day, she was dizzy and had black spots in her field of vision. The day after that, she felt physically unable to play soccer and went to see the athletic trainer. M.U.’s mother picked her up from the trainer’s office and took her to the hospital where doctors confirmed that M.U. had a traumatic brain injury, according to the complaint.
As a result of the alleged concussions, she missed most of her freshman year and continued to suffer headaches, fatigue, anxiety, and other symptoms up until her lawsuit was filed in 2014.
M.U. and her parents filed a lawsuit, naming the following defendants — Downingtown High School East (DSHE), Downingtown Area School District (DASD), DSHE Coach Craig Reed, and Total Soccer, a private company with which the coach was affiliated.
The initial complaint contained four counts. Count One, brought pursuant to 42 U.S.C. § 1983, asserted a violation of M.U.’s due process right to bodily integrity against DASD, DHSE, and Reed. This cause of action is premised on the state-created danger theory of § 1983 liability. Count Two alleged negligence against DASD, DHSE, Reed, and Total Soccer. Count Three asserted recklessness against Reed and Total Soccer. Count Four, brought by M.U.’s parents individually, sought recovery of medical costs incurred on their daughter’s behalf against all defendants.
The defendants moved to dismiss the claim. The court granted the motion, but provided leave to file an amended complaint.
The latest missive contained new allegations, which can be divided into three categories, according to the court.
First, M.U. alleged that “Reed created a culture where the student athletes felt immense pressure to play through their injuries, especially if they wanted to make [the] varsity [soccer] team,” according to the court.
Second, M.U. added several allegations involving the actual injury, including:
“Her violent head impact took place in the center of the field in front of both team benches and coaches.
Everyone watching the game in this area, including Reed, had a clear view of the impact and M.U. falling to the ground.
Once M.U. hit the ground, she was looking around aimlessly, and she appeared shocked and seemed to be unsure of how she got to the ground, according to at least one eyewitness.
M.U. exhibited confusion as to what had just happened, according to an eyewitness.
M.U. spent a significant period on the ground.
The referee stopped play after the impact and assessed a penalty against the player who had struck M.U.
The opposing team’s coach and the players on the bench recognized that M.U. needed to be removed from the game and evaluated for a concussion.
Reed was in clear view of the impact and M.U.’s symptoms.
After ‘affirmatively deciding’ that M.U. ‘did not need an impact evaluation for concussion,’ Reed continued to yell plays and instructions to M.U. throughout the rest of the game.”
Third, M.U. added allegations “regarding the policies and customs of the defendants with respect to concussions,” namely that “DASD and DHSE had a concussion policy in place that required a medical evaluation before any student athlete displaying concussion symptoms could return to play. She alleges, however, that DASD and DHSE had a custom of not enforcing this policy and allowing coaches to ‘push players to continue to play, despite injuries, including but not limited to concussions.’”
The defendants moved to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
The court was again unpersuaded.
“M.U. still fails to allege facts to show that Reed’s behavior shocks the conscience. M.U.’s additional allegations state that play was stopped and a penalty was assessed due to the blow to her head. She also alleges that, according to at least one eyewitness, M.U. was ‘looking around aimlessly,’ ‘exhibited confusion,’ ‘appeared shocked,’ and ‘seemed to be unsure of how she got to the ground.’
“Accepted as true, these allegations fall short of the behavior exhibited in high school concussion cases that survived the motion to dismiss stage. See, e.g., Alt v. Shirey, No. 11-cv-0468, 2012 U.S. Dist. LEXIS 26882, 2012 WL 726579, (W.D. Pa. Feb. 7, 2012), report and recommendation adopted, 2012 U.S. Dist. LEXIS 27346, 2012 WL 726593 (W.D. Pa. Mar. 1, 2012) (defendants were aware that plaintiff had sustained several head injuries and not only put him back into the game, but also ordered him to deliver a substantial hit to an opposing player); Mann v. Palmerton Area Sch. Dist., 33 F. Supp. 3d 530, 539 (M.D. Pa. 2014) (defendants forced plaintiff to continue football practice after he was hit in the head, despite plaintiff exhibiting erratic behavior and telling the coaching staff that he felt numb and disoriented).
“M.U. also fails to allege that Reed took any affirmative act. The substance of her claim is that Reed failed to act by not taking her out of the game and performing concussion testing. Yet ‘it is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause.’ Bright v. Westmorland Cnty., 443 F.3d 276, 282 (3d Cir. 2006); see also Phillips, 515 F.3d at 236. Moreover, M.U.’s allegation that Reed yelled instructions to her throughout the remainder of the game is insufficient to meet the affirmative action requirement. This allegation does no more than state that Reed continued to coach the game after failing to remove M.U. from it. Yet by M.U.’s own allegations, it was Reed’s failure to remove her from the game and evaluate her for a concussion, not Reed’s continued coaching, that caused her alleged injury. M.U.’s state-created danger claim is therefore dismissed.”
In evaluating M.U.’s municipal liability claim, the court noted that the plaintiff failed “to allege facts to show that DASD and DHSE had a custom that exhibited deliberate indifference to the constitutional rights of student athletes,” making only “a bare-bones conclusory allegation without any factual support, which is insufficient to survive a motion to dismiss.”
The plaintiff’s “failure to train” argument also fell short. “While this conclusory allegation might allege a pattern of injuries, it does not show a pattern of Constitutional violations,” wrote the court. “Very few on-field injuries amount to Constitutional violations. M.U.’s vague reference to prior injuries, without additional context, fails to show a pattern of Constitutional violations supportive of a failure to train claim.”
The court concluded by noting that while the facts in the amended complaint “may detail conduct that was negligent under state tort law, ‘the Due Process Clause of the Fourteenth Amendment . . . does not transform every tort committed by a state actor into a constitutional violation.’ DeShaney v. Winnebago Cnty Dep’t of Soc. Serv., 489 U.S. 189, 202, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989).” Further, “inasmuch as the plaintiffs have had multiple attempts to state a claim and have failed, the court rules that further amendment would be futile,” dismissing the claim with prejudice.
M.U., a minor, by her parents, Theresa and Thomas Urban, et al., v. Downingtown High School East, et al.; E.D. Pa.; CIVIL ACTION NO. 14-04877, 2015 U.S. Dist. LEXIS 109713; 8/19/15
Attorneys of Record: (for plaintiffs) Aaron J. Freiwald, Lead Attorney, Layser & Freiwald PC, Philadelphia, PA; Laura E. Nowicki, Layser and Freiwald, Philadelphia, PA. (for defendants) Joseph P. Connor, Connor Weber & Oberlies, PC, Paoli, PA. Theodore M. Schaer, Zarwin Baum Devito Kaplan Schaer & Toddy, P.C., Philadelphia, PA.
