By Michael A. Ross, MS
On January 13, 2020 Isaiah Humphries (Plaintiff) filed an 11-count complaint against The Pennsylvania State University (Penn State), James Franklin, also referred to as Franklin (combined with Penn State to be referred to as University Defendants) and Damion Barber, referred to as Barber (combined together with aforementioned University Defendants to be referred to as Defendants). The Court examines the Plaintiff’s second amended complaint (SAC). On July 7, 2020 all Defendants filed a motion of dismissal in pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. This aforementioned motion is denied in part and granted in part based on the following analysis and reasoning. It should also be noted that the Plaintiff will be provided leave to amend the complaint.
FACTUAL BACKGROUND
Federal Rule of Civil Procedure 12(b)(6) allows the Court to dismiss a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. Following the verdicts issued in both Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal a plausibility standard was implemented into this standard which states “to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’” (Iqbal, 556 U.S. at 678). To act on the grounds of the plausible standard calls for sufficient factual evidence to raise enough reasonable expectation that discovery of additional evidence proving one’s wrongdoing will be found as a result. The determination of the plausibility standard is left to the discretion of the court in which they are entrusted to use their judicial experience and common sense to reach a sound conclusion on the basis of this standard. Based upon this framework the United States Court of Appeals for the Third Circuit has instructed that the following occur:
Under the pleading regime established by Twombly and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must take note of the elements the plaintiff must plead to state a claim. Second, it should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, when there are well-pleaded factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
FACTS ALLEGED in the SAC
Plaintiff was a student athlete at Penn State in which he accepted an athletic scholarship to play football under head coach James Franklin. Plaintiff began practicing and participating in team activities once he arrived on campus. Plaintiff claims that his time at Penn State was impaired by teammates, including Barber, to haze and harass other teammates including the Plaintiff. Plaintiff claims this behavior served as a form of initiation into the Penn State football program. Plaintiff claims this behavior continued throughout his time at Penn State and he and fellow teammates were consistently subjected to various forms of harassment and hazing. Examples of such treatment were provided by the Plaintiff in which he stated Barber and other players would make comments towards teammates, including the Plaintiff, such as “I am going to Sandusky you.” Barber and other teammates were also cited as to wrestle other teammates, including the Plaintiff, to the ground and proceed to simulate a humping action while on top of the aforementioned teammates. The Plaintiff also made claim that Barber and other teammates would wrestle teammates to the ground and restrain them while another teammate would place their genitals on the face of the teammates being restrained on the ground. Additional examples and claims of hazing and harassment were illustrated by the Plaintiff and were said to have continued throughout his time at Penn State. Plaintiff also states that these forms of hazing and harassment endangered his overall mental and physical wellbeing to such an extent that he withdrew from Penn State in December 2018, in which he transferred to the University of California. Plaintiff states that before transferring he reported the forms of hazing and harassment to the coaching staff. It is also stated within his complaint that the aforementioned staff members personally observed such actions occur within the locker room. Furthermore, it is noted that despite these claims among additional reports of ongoing misconduct, no significant action or deterrent was implemented by Head Coach, and Defendant, James Franklin, or members of the coaching staff to help prevent such actions from continually occurring. The Plaintiff states that as a response to his reporting of such actions, he received unfair and increased criticism towards his athletic performance and was strategically placed in situational drills designed for him to fail, thus serving as a justification for his reduction and lack of playing time. He states that his coaches also spoke poorly of his character and athletic performance to other coaches while the Plaintiff was attempting to transfer to another program.
The SAC contains 11 counts against the Defendants including the following:
Penn State violated Title IX of the Education Amendments of 1972 (Count 1); all three Defendants were per se negligent, in violation of Pennsylvania anti-hazing statutes (Counts 2-4); all three Defendants are liable for negligence under Pennsylvania law (Counts 5-7); Barber is liable for assault and battery under Pennsylvania law (Count 8); all three Defendants are liable for negligent infliction of emotional distress under Pennsylvania law (Count 9); Barber is liable for intentional inflection of emotional distress and civil conspiracy under Pennsylvania law (Counts 10-11).
CASE ANALYSIS AND KEY FACTORS
In regard to the Plaintiff’s claim based on Title IX, the Supreme Court recognized that Title IX permits claims of a hostile educational environment based upon student-on-student harassment. To succeed under this claim, the Plaintiff must prove six prongs specific to Title IX. Penn State does not deny two of the six aforementioned prongs but insists the Plaintiff has not provided facts sufficient enough to survive a dismissal motion pertaining to the remaining prongs which are 2) sexual harassment occurred, 4) the funding recipient had actual knowledge of the harassment, 5) the funding recipient was deliberately indifferent to the harassment and 6) the harassment was so severe, persuasive, and objectively offensive that it could be said to have deprived the victims of access to the educational opportunities or benefits provided by the school. Regarding prong number 2, Penn State argues that the Plaintiff’s complaint insists that any harassment experienced was wholly unrelated to the Plaintiff’s sex in which the Court agrees. The Plaintiff then attempted to make the claim that because the nature of the harassment was experienced through an initiation-based setting Title IX was applicable but again failed to make a valid claim that any harassment experienced was based on his sex. The Court rejects the Plaintiff’s retaliation claim under Title IX as well, resulting in the granting of Penn State’s motion to dismiss Count 1.
Regarding the negligence per se claims (Counts 2-4), the Court is forced to examine said claims through the lens of both the former Pennsylvania antihazing law and the current Timothy J. Piazza Antihazing Law. The reason the Court deemed it necessary to review these counts through both frameworks was due to the Plaintiff’s inability to provide specific dates and timelines of when the hazing occurred. His statement insists hazing occurred during his time spent at Penn State beginning in January of 2018 until his time of transfer during December of 2018. The former and current frameworks used to evaluate matters such as these effectively changed on November 18, 2018, which means evaluating said occurrences must be done based on the date in which they occurred. A plaintiff can satisfy a negligence claim by proving the defendant violated a statute designed with the intent to prevent a public harm. To accomplish this four prerequisites must be met; 1) the purpose of the statue must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally, 2) the statue or regulation must clearly apply to the conduct of the defendant, 3) the defendant must violate the statue or regulation and 4) the violation of the statue or regulation must be proximate cause of the plaintiff’s injuries. The main difference between these two frameworks and their application pertaining to these specific claims presented by the Plaintiff exists within the definition of hazing itself. Under the former framework the Plaintiff’s claim fails in regard to Penn State and Franklin because the complaint does not specifically claim they caused or participated in any hazing. Because of this the Plaintiff’s claim does not hold value. In regard to the claims brought against Barber under the scope of the former anti-hazing law, the Plaintiff was found to have provided sufficient evidence to survive Barber’s motion to dismiss based on the SAC provided.
Under the Piazza Antihazing Law, the terminology and definition utilized now allows for organizations and institutions to be subjected to findings that indicate they have violated the law similar to the claims provided by the Plaintiff. Under this framework, the Plaintiff has provided sufficient facts regarding Penn State’s knowledge of the alleged incidents that, if proven, could support a theory that Penn State facilitated the hazing events resulting in a direct violation of Pennsylvania law on their behalf. Based on this framework the Court determines that the Plaintiff has provided enough evidence to survive Penn State’s motion to dismiss.
This framework views Franklin as an individual and does not allow said claim to pair him with Penn State as an additional party within the organization or institution consideration previously mentioned. Because of this reasoning and justification, the Plaintiff cannot make a negligence per se claim against Franklin. The new framework does not change the Court’s position regarding the claim as it applies toward Barber and for the same reasoning provided in the former framework, the Plaintiff’s claim against Barber survives the dismissal motion.
The court finds that because of the unspecified timeline provided by the Plaintiff, additional evidence only pertaining to the dates established by the enactment of the Piazza Antihazing Law, thus denying Penn State’s motion to dismiss Count 2 while also limiting the scope of the claim simultaneously. Count 3 against Franklin is granted. Count 4 against Barber is upheld, and incidents will be evaluated based on the time of the occurrence and through the respective framework specific to those times.
Counts 5-7 are brought forth by the Plaintiff in which negligence is asserted; one count for each of the Defendants identified. The key question considered by the Court and based on negligence as defined by Pennsylvania State Law is if any of the Defendants owed the Plaintiff a duty of care. The Plaintiff attempted to establish a relevant duty of care by means of Title IX, the institution’s Code of Student Conduct and its Administrative Policies, the agreement established through his athletic scholarship and claiming a special relationship was established simply by means of the student-athlete and college coach dynamic that naturally applies in such a scenario. In each of these scenarios, the Plaintiff failed to establish sufficient evidence to such a relationship, or the law does not recognize some of the relationship insisted by the Plaintiff. Based on these findings, the Court grants the University Defendants motion to dismiss while allowing the Plaintiff leave to amend and replead both Counts 5 and 6. Count 7 in regard to Barber and the claim of negligence, was upheld based on the sufficient evidence specifically against the Defendant illustrating the damages suffered by the Plaintiff. The dismissal motion proposed by Barber is denied.
Count 8 establishes the Plaintiff’s claim that Barber committed assault and battery as it is defined by Pennsylvania law. The Court found sufficient evidence within the SAC insisting multiple student-athletes, including the Plaintiff, that if proven true could be considered as harmful or offensive. The Plaintiff’s additional claims of the Defendant placing him and his teammates in fear of immediate bodily harm also helped establish satisfaction toward the pleading requirements for assault. The Plaintiff’s allegation of experiencing unwanted harmful physical contact by Barber and others listed in the SAC and in summary of the assault and battery claim led to the Defendant’s motion to dismiss being denied.
Count 9 applies to all of the Defendants in the form of the Plaintiff claiming negligent infliction of emotional distress. Pennsylvania law provides four theories in which a claim of negligent infliction of emotional distress can be established. Regarding this claim against the University Defendants further extends their findings established in the negligence claims to apply to this claim as well. The Plaintiff is left to establish a prima facie case of negligence and may replead this count in their amended complaint as it applies to the University Defendants. The Court considers the impact liability theory in regard to Barber which establishes that emotional distress is accompanied by physical injury or impact. Because the Plaintiff sufficiently alleged there was impact that could have led to emotional distress, the Plaintiff’s claim survives the current stage of the pleading.
Pennsylvania tort law describes and asserts that a plaintiff alleging intentional infliction of emotional distress (IIED) must prove four criteria. The criteria listed are as follows: 1) the conduct must be extreme and outrageous, 2) it must be intentional and reckless, 3) it must cause emotional distress and 4) that distress must be severe. The Court deemed the evidence of this claim provided by the Plaintiff was sufficient to withstand a motion to dismiss at this point in the pleading but to survive summary judgement in later stages, the Plaintiff would need to provide competent medical evidence of causation and severity of the emotional distress in which he experienced.
The final Count (11) asserted by the Plaintiff claims civil conspiracy towards Barber and three additional Penn State teammates. Barber suggests that this claim cannot be upheld because he was the only person listed among the group to be presented at trial. This reasoning suggests that failure of the plaintiff to prove the conspiracy towards one defendant should provide a similar domino effect as a result to the other defendants listed in this claim. The Court fails to find validation in the aforementioned reasoning resulting in Barber’s motion to dismiss the count being denied without prejudice to his ability to raise the issue again at the summary judgement stage of this pleading.
CONCLUSION
The Defendants’ motions to dismiss through the lens of Rule 12(b)(6) is granted in part and denied in part. Dismissal is granted as to the following Counts: 1, 3, 5, 6 and 9 (as to the University Defendants). Dismissal is denied as to the following Counts: 2 (subjected to the Court’s narrowing of the claim as previously detailed), 4, 7, 8, 9 (as to Barber), 10 and 11. The Plaintiff was granted leave to amend Counts 1, 5, 6 and 9 (as to the University defendants). The Plaintiff was granted fourteen days to file an amended complaint from October 16, 2020 in which failure to provide the amended claim will result in summary dismissal of the previously applicable Counts.
References
Humphries v. Pa. State Univ., No. 4:20-CV-00064, 2020 U.S. Dist. 182838, at * (M.D. Pa. Oct. 2, 2020)
Michael A. Ross is an Assistant Professor of Sport Management at Shorter University and a PhD student at Troy University specializing in research related to youth sport studies, leadership, social media policies and procedures within athletics and participation motivations in sport and recreation.
