By Jeff Birren, Senior Writer
Shyler Drumm was severely injured by a classmate. His parents had previously complained to the football coach about the harassment Drumm was receiving from teammates. The coach told the players to stop bullying Drumm because his mother had called to complain. Afterwards, the harassment escalated and caused multiple serious injuries to Drumm.
As a result, Drumm sued in state court, alleging Civil Rights violation for failure to investigate, creating a danger, discrimination pursuant to the Americans with Disabilities Act, failure to enforce the ADA, and breach a fiduciary duty. He sued the assailant for negligence, and all of the defendants for negligent infliction of emotional distress. The School District and coach removed the case to federal court and filed a motion to dismiss the claims. The Magistrate recommended granting the motion, subject to leave to amend two causes of action.
The Court stated that the Civil Rights Act could not be used a remedy for violations of the ADA, that no valid ADA causes of action were pled, and that the negligence claim was barred by Pennsylvania statute. The Court recommended giving Drumm an opportunity to replead his “State Created Danger” and ADA discrimination claims. Drumm v. Beaver Area Sch. Dist., Report and Recommendations, (“R&R”), 2:24-CV-00438-CB-MPK, W.D. Penn. (11-14-2024). The District Court affirmed and gave Drumm until January 10, 2025, to file an amended complaint (12-27-2024).
Background
The R&R took the following allegations from the Complaint. Drumm was enrolled in the School District and a member of the football team “when he was diagnosed with Generalized Anxiety Disorder and Attention Deficit Hyperactivity Disorder.” The District was “advised” of the diagnosis “and his need for accommodations.” Defendant Dr. Jeffrey Beltz, PhD., educational leadership, was the football coach and school principal. After joining the team, Drumm “began to suffer hazing and bullying”, including being called “Shytard.” Drumm’s parents made Beltz aware of this “on multiple occasions,” but he “dismissed the complaints a ‘kids being kids.’” After Drumm’s mother called once again to complain, Beltz told the team to stop the behavior because of the call from Drumm’s mother.
This “only exacerbated the problem.” First, Drumm experienced a broken toe during practice. Next, a teammate hit Drumm on the head with a tennis racket in gym class, resulting in a concussion. One day in the weight room, “Defendant Nicholas Collins came up behind Drumm and put him in a headlock until he lost consciousness. Collins then dropped Drumm to the floor, hitting his head. Drumm sustained severe and permanent injuries, including a concussion, post-traumatic stress disorder, a closed head injury, and cervical and lumbar spine injuries.” The family ultimately moved to a different school district.
In Court
After the Complaint arrived in federal court, Beltz and the District filed a motion to dismiss. The R&R did not go well for Drumm. The first claim was an equal protection claim for a violation of Section 1983 against Beltz as an individual and official capacity for failing to investigate the allegations of bullying and harassment. Beltz asserted that Drumm failed to state a claim. In his opposition brief, “Drumm states that he is ‘not seeking a claim against Beltz under the Equal Protection Clause and stipulates to striking” that from his Complaint. The R&R recommended dismissing this claim. The District Court agreed.
Claim II: State Created Danger
The second claim was a Civil Rights claim against Beltz and the District for a “State Created Danger.” The R&R stated that to prevail, defendants must create or increase the risk of harm. The plaintiff had to prove that the harm was both foreseeable and direct; that the state actor acted with a degree of culpability that shocks the conscience; that the relationship between the plaintiff and defendant existed such that the plaintiff was a foreseeable victim of the defendant’s acts or a member of a discrete class that was subject to harm; and that a state actor affirmatively used his or her authority in a way that created a danger to the citizen or rendered that citizen more vulnerable to the danger than had the state not acted at all.
The essence of Drumm’s argument was Beltz’s response to the call from Drumm’s mother gave rise to further bullying, which increased after Beltz told the team to stop harassing Drumm. Drumm attempted to distinguish L. R. v. School District of Philadelphia, 836 F. 3d 235, 244 (3d Cir. 2016), a case that held that there had to be a “drastic change” in the status quo. The R&R recommended that the cause of action be dismissed with leave to amend.
The District Court declined “to adopt the R&R’s indication that a ‘drastic change’ to the status quo is required for Plaintiff to state a claim.” “There is no indication” in L. R. v. School District that this “constitutes a necessary change.” “Plaintiff has identified one affirmative act: Defendant Beltz ‘told the students who were bullying him and harassing [him] to stop because his mother had called’ to complain.”
This “State Created Danger” theory “cannot be viewed as a strong one, in any event.” The “harm” must be a “foreseeable and fairly direct result…of Beltz’s mentioning, in his admonishment of the bullies,” that Drumm’s mother had called to complain. Although a “drastic change” was not required, at this point, the Court noted, the “mountains are, indeed, high” The Court has to “bear in mind the relatively lenient standards applicable at this stage.” It “cannot resolve the issues on the present record.” The cause of action could not proceed on the current record, but the Court did give leave to amend. The Court also informed Drumm that “he must also contend with Defendants’ assertion of qualified immunity.”
The Third Circuit “has acknowledged the ‘inherent tension between federal qualified immunity jurisprudence and the concept of notice pleading,’” and a Rule 12(3) “motion for a more definitive statement (a vehicle invoked by defense counsel here, albeit regarding other counts. Thomas v. Independence Twp., 436 F. 3d 285, 299-302 (3d Cir. 2006).” Drumm “must” address the relevant standards in an amended complaint and “renewed motion practice likely to follow.”
Claim III:
This claim arose solely against Collins for acting recklessly and negligently in the attack. He did not file a motion to dismiss.
Claim IV: Discrimination under the ADA
The fourth claim was against the School District. Drumm alleged that he experienced intentional discrimination prohibited by the ADA, that the District and Beltz owed him a duty to provide him with a properly supervised education and they breached this duty with deliberate indifference.
An ADA plaintiff must show that he or she has a disability; that he or she was otherwise qualified to participate in a school program; and was denied benefits of the program or was subject to discrimination because of that disability. 42 U.S.C. Section 12132, Chambers v. Sch. Disk of Phila. Bd. of Educ., 587 176, 189 (3d Cir. 2009). If damages are sought, a plaintiff must also show that the discriminatory conduct was intentional. S.H. v. Lower Merion Sch. Disk, 729 F. 3d 248, 262 (3d Cir. 2013).
This type of claim also requires showing that the defendant(s) had knowledge of the behavior. The knowledge must be “actual,” not merely that a defendant “should have known.” Furthermore, the plaintiff must prove that the defendant failed to act despite that knowledge. This means “a deliberate choice, rather than negligence or bureaucratic inaction.” S.H., 729 F. 3d at 263. Drumm had not pled facts “that establish disability discrimination under the ADA.” Beltz’s actions and inactions “may indicate a callousness towards Drumm’s needs,” but the alleged facts do not indicate that the District or Beltz “were deliberately indifferent to Drumm’s situation or knew that Drumm’s ADA rights were violated. In fact, as alleged, Beltz admonished Drumm’s bullies to stop their harassment.” The R&R recommended that the claim be dismissed, subject to leave to amend. The District Court did just that, adding “should Plaintiff wish to attempt a cure.”
Claim V: Section 1983, Enforcement of the ADA
The fifth claim was a Civil Rights action against the School District and Beltz for failure to enforce the ADA. Drumm argued that a recent Supreme Court decision “created an entirely new scheme for analyzing whether Section 1983 may be used to bring a claim.” Health & Hosp. Corp. of Marion City v. Talevski, 599 U.S. 166 (2023). The Magistrate believed that Talevski was “merely examining and illuminating its prior precedent—not establishing a new regime.” Although there may not be consensus on this point, the “statutory scheme of the ADA is clearly comprehensive” and allows various remedies. This scheme “is incompatible with individual enforcement under § 1983.” The R&R commended that Count V be dismissed with prejudice. Once again, the District Court abided by that recommendation.
Claim VI: Breach of Fiduciary Duty
The sixth claim was a breach of fiduciary duty against the School District and Beltz for failing to supervise Drumm. The defendants argued that the facts as pled did not establish such a duty. In his opposition, Drumm stipulated to the dismissal of this claim. The R&R concurred, and District Court agreed.
Claim VII: Negligent Infliction of Emotional Distress
This claim was for negligent infliction of emotional distress and was asserted against the District, Beltz and Collins. The District and Beltz argued that the claim was barred by the Pennsylvania State Tort Claims Act. Drumm again stipulated to dismissal. However, Collins did not move to dismiss this claim.
Status
The Court gave Drumm the opportunity to replead Claims II and IV, and dismissed with prejudice Claims I, V, VI, and Claim VII against the District and Beltz. Amendment “is limited to the topics contemplated herein,” and he had just fourteen days to do so, including New Year’s Day. Drumm did not file an amended complaint, so the federal law claims against Beltz, and the District are dismissed. Presumably the claims against Collins will be returned to state court.
Editorial
Awful. That word applies to the way Drumm was treated prior to the attack. Stronger words are required to describe the consequences of the attack. Yet could any deep pockets adequately compensate Drumm for the effects of his injuries? Drumm’s condition required careful legal research and thought. Filing federal law claims in state court and almost immediately stipulating to dismiss three claims is perplexing.
Beltz’s conduct is startling. Every elementary school student knows what will happen when a class is told that a mother called the school to complain about the way her child is being treated by other students. The bad behavior will intensify, and that much more so with a school football team. Dr. Beltz provided no leadership for Drumm. Can there be any doubt that he would have responded differently if his star quarterback was subject to harassment? Drumm deserved better.
