Opinion
Civil Action No. 19-1326
05-13-2020
H.B., by and through PATRICIA F., as her Parent and legal guardian, and PATRICIA F., individually, Plaintiff, v. PITTSBURGH PUBLIC SCHOOLS, DISTRICT, THE CHILDREN'S INSTITUTE of PITTSBURGH, PAUL K. BROWN INC., t/d/b/a/ PROFESSIONAL LIMOUSINE SERVICE, and LAVALLE TUCKER, Individually, Defendants.
District Judge Cercone ECF Nos. 39, 41 & 50
REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Defendant the Children's Institute of Pittsburgh (ECF No. 39) be granted. It is further recommended that the Motion to Dismiss filed by Defendant Pittsburgh Public Schools (ECF No. 41) be granted in part and denied in part. It should be granted as it relates to Plaintiff § 1983 claim and denied as to Plaintiffs' ADA claim. It is also recommended that the Motion to Dismiss filed by Defendant Paul K. Brown Inc., t/d/b/a/ Professional Limousine Service (ECF No. 50) be granted.
II. REPORT
A. Factual Allegations
Plaintiff H.B. ("Minor Plaintiff") by and through Patricia F.("Plaintiff Mother"), as her parent and legal guardian, and Patricia F., individually (collectively "Plaintiffs"), filed this civil action against Defendants Pittsburgh Public Schools ("PPS"), the Children's Institute of Pittsburgh ("Institute"), Paul K. Brown, Inc., t/d/b/a Professional Limousine Service ("PLS"), and Lavalle Tucker ("Tucker"). Amended Complaint, ECF No. 35 ¶ 2. Minor Plaintiff suffers from a rare genetic disorder and as a result, is severely disabled, both physically and intellectually. ECF No. 35 ¶ 12. Minor Plaintiff is generally unable to communicate without the use of technological assistance in the form of a specially formatted iPad. ECF No. 35 ¶ 13.
Since 2009, Minor Plaintiff has attended Defendant Institute's Day School. ECF No. 35 ¶ 14. Defendant Institute's Day School is an approved private school ("APS") that provides special education services to students with complex disabilities. Defendant Institute's students attend its programs with the knowledge of and/or assistance from their home school districts, in accordance with state and federal law. ECF No. 35 ¶ 15. As part of her curriculum at Defendant Institute, Minor Plaintiff is enrolled in an individualized education program ("IEP") designed to meet her specific needs as a disabled student. Minor Plaintiff's IEP is implemented and managed by members of Defendant Institute's staff, as well as a representative from Minor Plaintiff's home district, Defendant PPS. ECF No. 35 ¶ 16.
In accordance with Defendant PPS' statutory obligations, Minor Plaintiff was transported to and from her classes at Defendant Institute by an agent of Defendant PLS, including, but not limited to, Defendant Tucker. ECF No. 35 ¶ 17. The vehicle used to transport Minor Plaintiff was not equipped with a surveillance camera comparable to those typically found on school buses. ECF No. 35 ¶ 18. Plaintiffs believe, and therefore allege, that vehicles provided by Defendant PPS used to transport non-disabled students are, and were, equipped with surveillance cameras as a safety measure. ECF No. 35 ¶ 19.
In September 2017, Defendant Tucker was assigned as Minor Plaintiff's bus driver for the 2017-2018 school year. At that time, Defendant Tucker had been employed by Defendant PLS for approximately eighteen (18) years. ECF No. 35 ¶ 21. Defendant Tucker transported both Minor Plaintiff and one (1) other severely disabled student, J.B., to and from their classes at Defendant Institute daily. Like the Minor Plaintiff, J.B. is generally unable to communicate with others because of his disability. ECF No. 35 ¶ 22.
Pursuant to Defendant Institute's policies and procedures, after collecting Minor Plaintiff and J.B. from their respective homes at the designated pick-up times, Defendant Tucker transported Minor Plaintiff and J.B. to Defendant Institute, where they were required to remain in Defendant PLS' vehicle for approximately thirty (30) minutes until the official school day began. ECF No. 35 ¶ 23. From September 2017 to December 2017, Plaintiff Mother made several complaints to representatives of Defendant institute which included identifying safety issues created and/or compounded by Defendant Institute's drop off policy and procedure. ECF No. 35 ¶ 24. Defendant institute failed to take any action, remedial or otherwise, in response to Plaintiff Mother's complaints. ECF No. 35 ¶ 25.
On or about November 17, 2017, J.B. grabbed Minor Plaintiff's glasses and threw them towards the back of the bus. Plaintiffs aver that J.B. is prone to emotionally and/or physically violent outbursts as a direct result of his disability. ECF No. 35 ¶ 26. In addition, no aid was assigned to the school bus during the transport of the two (2) children, nor was the bus equipped with any video surveillance equipment. ECF No. 35 ¶ 27. Plaintiff Mother made several complaints to representatives of both Defendant PLS and Defendant Institute which included identifying safety issues created and/or compounded by the lack of an aid worker assigned to Minor Plaintiff's route. ECF No. 35 ¶ 28. No remedial measures were taken by any of the moving Defendants. ECF No. 35 ¶ 29.
After the conclusion of Minor Plaintiff's regular school day, Defendant Tucker normally returned Minor Plaintiff to her residence at approximately 3:15 p.m. On or about December 6, 2017, however, Defendant Tucker informed Minor Plaintiff's home aid, Elizabeth Nowell ("Nowell"), that he would be returning Minor Plaintiff to her residence later than usual the next day as the result of an additional minor passenger assigned to his route on that date. ECF No. 35 ¶¶ 31-32. The next day, at approximately 4:30 p.m., Plaintiff Mother called Nowell and informed her that she had been notified by an agent of Defendant PLS that Minor Plaintiff's bus was stopped somewhere along Washington Boulevard in Pittsburgh, allegedly as a result of actions taken by J.B. ECF No. 35 ¶ 33. Minor Plaintiff's normal bus route does not include Washington Boulevard. ECF No. 35 ¶ 34. Thereafter, Nowell travelled to Washington Boulevard to collect Minor Plaintiff. Upon arrival, Nowell observed that the bus was parked in an isolated lot, away from any residential or commercial properties; Minor Plaintiff and J.B. were the only students on the bus; the bus was equipped with only two (2) seats for passengers and was therefore unable to accommodate a third student; and Minor Plaintiff was crying hysterically, breathing erratically and exhibiting other signs of extreme emotional distress. ECF No. 35 ¶ 35.
After this incident, Defendant Tucker continued to return Minor Plaintiff to her residence after the designated 3:15 p.m. drop-off time. ECF No. 35 ¶ 37. Plaintiff Mother made several complaints to all moving Defendants about the safety issues related to Minor Plaintiff's late drop-offs. No action was taken by any of the Defendants. ECF No. 35 ¶¶ 38-39.
On December 12, 2017 Plaintiff Mother met with members of Defendant Institute's staff and a representative from PPS to discuss Minor Plaintiff's IEP. At this meeting Plaintiff Mother again complained of safety issues related to Minor Plaintiff's transportation to and from the Institute. Again, no action was taken by any of the Defendants. ECF No. 35 ¶¶ 40-42.
On the morning of December 19, 2017, Defendant Tucker transported Minor Plaintiff to the Institute for her regularly scheduled classes. At approximately 8:52 a.m., Alexis Galanter ("Galanter") observed Minor Plaintiff's bus parked on Dennis[t]on Street near the rear entry of Defendant Institute. At that time, Defendant PLS's van was not located at the designated Drop-off point for the Institute's students. As she approached the vehicle, Galanter clearly observed Defendant Tucker touching Minor Plaintiff in a sexual manner. ECF No. 35 ¶¶ 44-48. Plaintiffs further allege that this location is monitored and clearly observable by video surveillance equipment operated and maintained by the Institute, and that the Institute's staff had a duty to monitor the location to protect supervise and ensure the safety of students. ECF No. 35 ¶¶ 50-51.
Thereafter, Defendant Tucker was arrested and charged with various misdemeanors and felonies. On or about May 8, 2019, Defendant Tucker plead guilty to indent assault of a person with mental disabilities, indecent assault through forcible compulsion, corruption of minor and endangering the welfare of children, students and employees. ECF No. 35 ¶¶ 52-53.
In this civil action, Plaintiffs bring the following claims: 1) Count I against PPS and PLS for violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C.S. § 12131 by both Plaintiffs; 2) Count II against PPS and PLS by Minor Plaintiff for a Fourteenth Amendment Due Process violation pursuant to 42 U.S.C. § 1983; 3) Count III against the Institute and PLS by Minor Plaintiff for common law negligence; 4) Count IV against Tucker and PLS by Minor Plaintiff for common law assault and battery; and 5) Count V against Tucker and PLS by Minor Plaintiff for common law intentional infliction of emotional distress.
B. Legal Standard
The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff "need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element." Fowler, 578 F.3d at 213 (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir. 2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
C. Analysis
1. Motion to Dismiss by The Children's Institute (ECF No. 39)
The Children's Institute of Pittsburgh seeks dismissal of the only claim alleged against it in the Amended Complaint—a claim for common law negligence. In order to make out a claim for negligence under Pennsylvania law, Minor Plaintiff must allege the following:
(1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks;
(2) defendant's failure to conform to the standard required;
(3) a causal connection between the conduct and the resulting injury;
(4) actual loss or damage resulting to the plaintiff.R.W. & C.W . v. Manzek, 888 A.2d 740, 746 (Pa. 2005) (citing Phillips v. Cricket Lighters, 841 A.2d 1000 (2003)).
In support of its Motion to Dismiss, Defendant Institute relies heavily upon MDB v. Punxsutawney Christian School, 386 F. Supp.3d 565 (W.D. Pa. 2019). The Institute aptly summarizes the facts in MDB as follows:
In MDB, President Judge Hornak was asked to determine on a motion to dismiss, among other issues, if a private school could be liable in a claim of negligence . . . after the sexual assault of the private school's student by a classmate while riding in a van to school. In that case, the plaintiff, MDB, was transported to and from school in a van owned and operated by the defendant, Tri-County Transportation, Inc., and that the defendant, Purchase Line School District, provided this transportation in accordance with its statutory obligation under Pennsylvania law. The minor-plaintiff was sexually assaulted by the other student and then issues arose where the minor-plaintiff's father started to drive the minor-plaintiff to and from school. The minor plaintiff and his father sought various relief and damages because the private school would not assign an aid for the van rides and therefore caused the minor-[p]laintiff to have to withdraw from the private school.Brief in Support of the Institute's Motion to Dismiss, ECF No. 40 at 6.
Chief Judge Hornak explained that the relationship between the state and a student may give rise to a special duty of care, but that under Pennsylvania law, the relationship between a student and a private school is a contractual one. 386 F. Supp.3d at 591 (emphasis in MDB). The Court further noted that there are limited circumstances where a private school may owe other legal duties in tort, including where the school exercises complete custodial control over the student, "providing education, housing, food, clothing, and medical, dental and psychological care." Id. at 592 (citing Dobson v. Milton Hershey Sch., 356 F. Supp.3d 428, 437 (M.D. Pa. 2018). See also Feleccia v. Lackawanna Coll., 156 A.3d 1200, 1215-16 (Pa. Super. Ct. 2017) ("Lackawanna College owed a duty to student athletes engaging in school-sponsored and supervised intercollegiate athletic activity that required it to have qualified medical personnel present and to provide adequate treatment in case of emergency.") Chief Judge Hornak concluded that plaintiff's negligence claim in MDB was barred by the "gist of the action" doctrine because minor-plaintiff's negligence claim was really a breach of contract claim premised upon the contract that existed between the guardian of the minor plaintiff and the private school. 386 F. Supp.3d at 591.
Here, Plaintiff's negligence claim against Defendant Institute must be dismissed because the relationship between Minor Plaintiff/Plaintiff Mother and the Institute is in contract. The Court could uncover no cases where the facts as alleged by Plaintiff gave rise to a special duty over and above the contractual obligations of a private school. Plaintiffs argue that a special duty arose after Plaintiff Mother complained about various safety issues relating to her daughter's transportation to and from the institute. The various complaints included safety issues related to the Institute's drop-off policies and procedures; the lack of an aid on Minor Plaintiff's bus, especially after the disruptions caused by J.B.; and the Minor Plaintiff's late drop offs. Plaintiffs have alleged no facts, however, to suggest that any of these safety issues involved suspicions surrounding Defendant Tucker as they concerned a propensity or proclivity for molesting children.
An example of such a contract includes the student handbook. See MDB, 386 F. Supp.3d at 590.
"The existence of a duty is a question of law for the court to decide." Id. In deciding whether courts will impose a duty, the Pennsylvania Supreme Court has adopted a five-factor test that focuses on the following:
(1) the relationship between the parties;Id. at 747 (citing Bilt-Rite Contractors, Inc v. The Architectural Studio, 866 A.2d 270, 281 (Pa. 2005)). Here, the Court considers the fact of the contractual relationship between the Plaintiffs and the Institute, a private school. The Court further takes note of the utility of the Institute's conduct in meeting the complex needs of its students. The Court also acknowledges the burden placed on the Institute if it is charged with a duty relating to the transportation of students where it is the school district's statutory duty to provide for transportation. The Court further considers that in taking all of Plaintiffs' allegations as true, they have alleged no facts to suggest that the tragic events that befell Minor Plaintiff were foreseeable. In light of these factors, and in the absence of established precedent concerning the existence of a special duty in tort under the facts alleged, the Court cannot impose a duty here.
(2) the utility of the defendant's conduct;
(3) the nature and foreseeability of the risk in question;
(4) the consequences of imposing the duty; and
(5) the overall public interest in the proposed solution.
The Court does not know the terms of the contractual relationship because Plaintiffs have not alleged a claim for breach of contract against the Institute, no contract terms were alleged in the Amended Complaint and no contract attached.
Plaintiffs also argue that the Institute was negligent in not providing an aid on Minor Plaintiff's van. Plaintiff has alleged, however, that PPS bore the responsibility for transporting Plaintiff. This duty did not lie with the Institute.
Finally, Plaintiffs argue that because it installed surveillance cameras, it had a duty to monitor them. As noted by Defendant Institute, the assault did not take place on its property and would not have been prevented even if the cameras had been monitored at that moment.
Therefore, it is respectfully recommended that the Motion to Dismiss filed by Defendant the Children's Institute of Pittsburgh be granted on Minor Plaintiff's negligence claim.
2. Motion to Dismiss filed by Defendant Pittsburgh Public Schools District (ECF No. 41)
a. ADA
Title II of the ADA provides as follows:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C. § 12132. To make out a claim for relief under the ADA, a plaintiff must allege that he or she is "handicapped or disabled as defined under the statutes"; "that they are otherwise qualified to participate in the program at issue"; and that "they were precluded from participating in a program or receiving a service or benefit because of their disability." CG v. Pa. Dep't of Educ., 734 F.3d 229, 235 (3d Cir. 2013). To prove causation, a plaintiff must show that he or she was treated differently because of their disability in order to assure that handicapped persons receive the same benefits as those who are not handicapped. Id. at 236. "[T]he ADA covers discrimination on the basis of disability, even if there is another cause as well." Id. That is, an alternative cause of discrimination will not necessarily be fatal to an ADA claim as long as disability "played a role in the . . . decisionmaking process and . . . had a determinative effect on the outcome of that process." Id. at 236 n.11 (quoting New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 300 n.4 (3d Cir. 2007). Therefore, ADA "Plaintiffs must show that they have been deprived of a benefit or opportunity provided to non-disabled students because of their disability." Id. at 236.
Relatedly, the ADA provides for associational discrimination claims for those who have a logical and significant association with a disabled individual. Schneider v. Cnty of Will, 190 F. Supp.2d 1082, 1091 (N.D. Ill. 2002), cited in, S.K. v. North Allegheny Sch. Dist., 146 F. Supp.3d 700, 717 (W.D. Pa. 2015). A plaintiff must allege that association; that a public entity knew of that association; that the public entity discriminated against the associated individual because of that association; and that the associated individual suffered a direct injury as a result of the discrimination. Id.
Finally, when seeking compensatory damages, an ADA Plaintiff must plead intentional discrimination. S.H. v. Lower Merion Sch. Dist., 729 F.3d 248, 261-63 (3d Cir. 2013). "[D]eliberate indifference satisfies the requisite showing of intentional discrimination." Id. at 263. A showing of deliberate indifference requires "knowledge that a harm to a federally protected right is substantially likely," and "a failure to act upon that likelihood." Id. (quoting Duvall v. Cnty. of Kitsapk, 260 F.3d 1124, 1139 (9th Cir. 2001)). "Deliberate indifference does not require a showing of personal ill will or animosity toward the disabled person." Id. at 263 (internal quotation marks and other citations omitted). Deliberate indifference, however, "must be a deliberate choice, rather than negligence or bureaucratic inaction." Id. (internal quotation marks and other citations omitted).
Here, Plaintiffs have sufficiently alleged a claim pursuant to Title II of the ADA. In support of its Motion to Dismiss, PPS contends that only the third element of an ADA prima facie case is deficient: that H.B. was precluded from participating in a program or receiving a service or benefit because of her disability. Here, Plaintiff alleges that unlike school buses for non-disabled students, Minor Plaintiff's school bus was not equipped with a surveillance camera. Plaintiff further avers that the cameras provided on buses for non-disabled students are provided as a safety measure and that Minor Plaintiff was not afforded the same safety measure by PPS, even though she is severely disabled, both physically and intellectually.
As to PPS' argument that Plaintiff has failed to allege deliberate indifference, PPS conflates the deliberate indifference standard used pursuant to 42 U.S.C. § 1983 as discussed in Black v. Ind. Area Sch. Dist., 985 F.2d 707, 711-12 (3d Cir. 1993), with that standard applicable to Plaintiffs' claim under the ADA. See PPS' Brief in Support of Motion to Dismiss, ECF No. 42 at 9-10. Instead, the deliberate indifference standard applied to Plaintiffs ADA claim is that explicated in S.H. v. Lower Merion Sch. Dist., 729 F.3d at 261-63: "knowledge that a harm to a federally protected right is substantially likely," and "a failure to act upon that likelihood." Here, Minor-Plaintiff has a federally protected right to safe transportation to and from school, and in light of Plaintiff Mother's complaints regarding H.B.'s safety while being transported to and from school with J.B., Plaintiffs have sufficiently alleged that PPS failed to act when harm to that right was substantially likely.
Finally, Defendant PPS does not dispute that Plaintiff Mother has sufficiently alleged an associational discrimination claim.
Therefore, it is respectfully recommended that PPS' Motion to Dismiss Plaintiffs' ADA claim be denied.
b. Substantive Due Process pursuant to § 1983: State Created Danger Theory
Section 1983 of the Civil Rights Act provides as follows:
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 any 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. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
In response to PPS' Motion to Dismiss her § 1983 claim, Plaintiff clarifies that she is bringing a Fourteenth Amendment Due Process claim pursuant to the "state-created danger" theory. Brief in Opposition to PPS' Motion to Dismiss, ECF No. 48 at 7-11.
In DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189 (1989), the United States Supreme Court noted that generally, the Due Process Clause of the Fourteenth Amendment to the United States Constitution does not impose an affirmative duty upon the state to protect citizens from the acts of private persons. Id. at 198-200. In DeShaney, the United States Supreme Court rejected the claim of a boy and his mother that local officials, who had repeatedly attempted to ensure the boy's safety from his abusive father, were liable under the "special relationship" theory when the boy remained in his father's custody and was so badly beaten that the boy suffered severe brain damage. Id. at 195-96. In rejecting plaintiffs' claim pursuant to the "special relationship" theory, the Court stated that "when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." Id. at 199-200. The Court continued its analysis with the following dicta that provided the foundation for the "state-created danger" theory of liability:
While the State may have been aware of the dangers Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter. Under these circumstances, the State had no constitutional duty to protect Joshua.Id. at 201. The United States Supreme Court emphasized that the substantive component of the Due Process Clause is "a limitation on the State's power to act, not . . . a guarantee of certain minimal levels of safety and security." Id . at 195. The DeShaney court continued that historically, the purpose of substantive due process "was to protect the people from the State, not to ensure that the State protected them from each other." Id. at 196.
In Kneipp, the United States Court of Appeals for the Third Circuit relied on the language in DeShaney to recognize that a plaintiff alleging a substantive due process violation pursuant to 42 U.S.C. § 1983 could proceed in accordance with a "state-created danger" theory where a state does play a part in the creation of the dangers faced by a private person, or where through its actions, the state renders the individual more vulnerable to them. Kneipp, 95 F.3d at 1205, 1211. In order to prevail on a state-created danger claim, a plaintiff must prove the following:
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.Sanford v. Stiles, 456 F.3d 298, 304-05 (3d Cir. 2006) (quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006) (internal quotation marks and footnotes omitted)). A plaintiff's failure to satisfy any one of the above elements will defeat the state-created danger claim. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 914 (3d Cir. 1997).
In Phillips v. County of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008), the United States Court of Appeals for the Third Circuit discussed one of the elements of the state-created danger test that PPS contends is not sufficiently alleged by Plaintiffs. 515 F.3d 224. The court of appeals began its discussion with the fourth element regarding the requirement of an affirmative act, emphasizing the following language in Bright:
"Liability . . . is predicated upon the states' affirmative acts which work to the plaintiff's detriment in terms of exposure to danger. It is the misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause."Phillips, 515 F.3d at 235 (quoting Bright, 443 F.3d at 282) (other citation omitted) (emphasis added by Phillips court). The Phillips court continued that "[t]he line between action and inaction may not always be clear. However, we have never found a state-created danger claim to be meritorious without an allegation and subsequently showing that state authority was affirmatively exercised in some fashion." Id. at 235-36.
Here, the allegations in the Amended Complaint provide that PPS failed to act. In its Brief in Opposition to PPS' Motion to Dismiss, Plaintiff specifically states that "Defendant PPS failed to take any action whatsoever to address Plaintiff Patricia F.'s numerous complaints regarding the safety of Plaintiff H.B., thereby exposing H.B. to further danger." ECF No. 48 at 9 (emphasis added). In the absence of any affirmative conduct on the part of PPS, Plaintiff's Fourteenth Amendment substantive due process claim pursuant to the state-created danger theory must be dismissed. See Morrow v. Balaski, 719 F.3d 160, 177-79 (3d Cir. 2013) (discussing fourth element of state-created danger theory and finding no affirmative conduct).
Defendant PPS further argues that Plaintiff has failed to sufficiently allege that the harm ultimately caused was foreseeable and fairly direct. The Court agrees. As noted by PPS, the allegations of the Amended Complaint indicate that Defendant Tucker had been employed by PLS for eighteen (18) years. There are no allegations in the Amended Complaint to suggest that PLS or PPS had concerns or issues with Tucker in the past—nothing to suggest that he would harm a child. The complaints by Plaintiff Mother to the Institute, PPS and PLS regarding "safety issues" concerned the Institute's drop off procedures; the absence of an aid on the school van after J.B. grabbed Minor Plaintiff's glasses on the school van; and late drop offs. Plaintiffs' allegations suggest that these complaints did not concern issues with Tucker himself, but with the other severely disabled student, J.B. who was transported in the van with H.B. In fact, taking all of Plaintiffs' allegations as true, there are absolutely no facts alleged that would indicate that Defendant Tucker might sexually assault Minor Plaintiff.
Because Plaintiffs are unable to allege facts to establish elements one (1) and four (4) of the state-created danger theory pursuant to the Fourteenth Amendment Substantive Due Process Clause, the Court must dismiss this claim with prejudice. Any attempt to amend would be futile.
The Court of Appeals in Phillips v. County of Allegheny has ruled that if a district court is dismissing a claim pursuant to 12(b)(6) in a civil rights case, it must sua sponte permit a curative amendment unless such an amendment would be inequitable or futile. 515 F.3d 224, 245 (3d Cir. 2008).
Therefore, it is respectfully recommended that Defendant PPS' Motion to Dismiss Minor Plaintiff's state-created danger claim be granted.
3. Motion to Dismiss filed by Defendant Paul K. Brown t/d/b/a Professional Limousine Service (ECF No. 49)
a. ADA
In their responsive brief, Plaintiffs state that they withdraw their ADA claim against PLS. Brief in Opposition to PLS's Motion to Dismiss, ECF No. 54 at 1 n.1. Therefore, it is respectfully recommended that Count I against PLS be dismissed with prejudice and that PLS' Motion to Dismiss this claim be granted.
b. Section 1983
As noted above, the "under color of law" requirement means that purely private conduct, no matter how discriminatory or wrongful, does not violate § 1983. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). Private conduct, however, will satisfy the "under color" requirement if the deprivation of a federal right is "fairly attributable to the State." Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982). The United States Court of Appeals for the Third Circuit has set forth a comprehensive analysis of the various tests used to determine whether there is a sufficiently close nexus between the State and the challenged action such that the seemingly private conduct may be fairly treated as that of the State. Kach v. Hose, 589 F.3d 626, 646-49 (3d Cir. 2009). Here, the law is clear that PLS is not a state actor for purposes of § 1983. Black v. Indiana Area Sch. Dist., 985 F.2d 707, 710-11 (3d Cir. 1993) (private entity and its employee under contract with school district to provide transportation for students to and from school not state actors) (discussing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (acts of private contractors do not become acts of government because they engage in public contracts). See also Kach, 589 F.3d at 646-48 (security guard employee of private security firm under contract with school not state actor).
In an attempt to distinguish Black, Plaintiffs highlight their allegation that Plaintiff H.B. was transported to and from her classes in accordance with PPS' statutory obligations to provide that transportation. Plaintiffs' Brief in Opposition to PLS' Motion to Dismiss, ECF No. 54 at 5 (emphasis in original). In parenthetical to the Black citation, Plaintiffs quote the following language from Black: "there was no state regulation that 'compelled or even influenced' the conduct which is alleged to have violated plaintiff's constitutional rights." ECF No. 54 at 5. The language in single quotation marks (compelled or even influenced) is taken from the language of the United States Supreme Court in Rendell-Baker, 457 U.S. at 841. In Rendell-Baker, five employees of a private school brought a § 1983 action against a Massachusetts private school. In holding that the private school and its employees were not state actors even though the private school was heavily regulated by the State, the Supreme Court noted that this fact made no difference because the terminations complained of "were not compelled or even influenced by any state regulation." Rendell-Baker, 457 U.S. at 841 (emphasis added). In quoting the phrase from Rendell-Baker, the Black court was referencing the conduct "which is alleged to have violated plaintiffs' constitutional rights[,]" and not the absence of any particular state regulation in Black. Instead, as discussed in Black, Rendell-Baker made clear "that a state contractor and its employees are not state actors simply because they are carrying out a state sponsored program and the contractor is being compensated by the state." Black, 985 F.2d at 710 (discussing Rendell-Baker, 457 U.S. at 841-42). Plaintiffs' attempt to distinguish this controlling precedent must fail. Any attempt to amend would be futile.
Therefore, it is respectfully recommended that the Motion to Dismiss the § 1983 claim against Defendant PLS be granted.
c. Supplemental State Law Claims
Negligence
In support of its Motion to Dismiss the negligence claim, PLS argues that Plaintiffs have alleged no facts to support a claim of negligent retention/hiring, nor has Plaintiff alleged facts that it breached a duty of care to Minor Plaintiff in that Tucker's sexual assault was unforeseeable. Plaintiffs respond that PLS failed to protect, supervise and ensure the safety of Minor Plaintiff after Plaintiff Mother complained regarding safety issues surrounding Minor Plaintiff's transportation to and from the Institute.
The Supreme Court of Pennsylvania has adopted the Restatement (Second) of Torts, § 317 "to guide lower courts in their evaluation of negligent retention claims." Schofield v. Univ. of Pa., 894 F. Supp. 194, 196 (E.D. Pa. 1995) (citing Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 421 (Pa. 1968)). One of the essential elements of such a claim is allegations that a more thorough investigation by the employer would have revealed that the employee had a history of the conduct in question.
As disturbing as the facts before the Court are, it is constrained to follow established law. Here, Plaintiff alleges no facts to suggest that a more thorough investigation of Defendant Tucker would have rendered information that he might sexually assault H.B as required. Consequently, Plaintiff is unable to state a claim for negligent retention/hiring.
As to whether PLS beached a duty of care to Plaintiff after Plaintiff Mother complained repeatedly regarding safety issues relating to Minor Plaintiff's transportation, Plaintiffs allege no facts to suggest that any of the safety issues complained of would have placed the Institute, PPS or PLS on notice that Defendant Tucker would sexually assault Minor Plaintiff. The complaints concerned the Institute's drop off policy and procedures; the absence of an aid on the school van when J.B. grabbed H.B.'s glasses and threw them to the back of the school van; and the late drop offs, including the incident where the school van was pulled over on Washington Boulevard. None of these issues, however, would have raised a red flag with PLS that Defendant Tucker might harm H.B. See Amarhanov v. Fassel, 658 A.2d 808, 810 (1995) ("It has long been hornbook law that a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others.") Therefore, it is respectfully recommended that the PLS' Motion to Dismiss Minor Plaintiff's negligence claim be granted.
Intentional Tort Claims of Assault and Battery and Intentional Infliction of Emotional Distress
Finally, Defendant PLS argues that Minor Plaintiff's intentional tort claims be dismissed because Defendant Tucker was acting outside the scope of his employment when he sexually molested Minor Plaintiff. Plaintiff responds that PLS may still be held liable for Tucker's actions taken outside the scope of his employment if PLS was negligent or reckless.
Here, Plaintiff relies on the Restatement (Second) of Agency § 219(2) which provides as follows:
(2) A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless:
Restatement (Second) of Agency § 219(2). Plaintiff again argues that PLS, in failing to respond to the various complaints of Plaintiff Mother, was negligent. As discussed above regarding Minor Plaintiff's negligence claim against PLS, Plaintiffs allege no facts to suggest that any of the safety issues complained of would have placed the Institute, PPS or PLS on notice that Defendant Tucker would sexually assault Minor Plaintiff.(a) the master intended the conduct or the consequences, or
(b) the master was negligent or reckless, or
(c) the conduct violated a non-delegable duty of the master, or
(d) the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.
Moreover, "[w]here [] the employee commits an act encompassing the use of force which is excessive and so dangerous as to be totally without responsibility or reason, the employer is not responsible as a matter of law." Fitzgerald v. McCutcheon, 270 Pa. Super. 102, 106 (Pa. Super. Ct. 1979), quoted in Costa v. Roxborough Mem'l Hosp., 708 A.2d 490, 493 (Pa. Super. Ct. 1998). See McMaster v. Reale, 110 A.2d 831, 832 (1955) (holding that "a master is not liable for the willful misconduct of his servant, and that such willful misconduct, while it may be within the course of the employment, is not within the scope thereof."). Relatedly, pursuant to the Restatement (Second) of Agency § 228, PLS cannot be liable for the criminal conduct of its employee Tucker. Section 228 provides as follows:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpected by the master.
Restatement (Second) of Agency § 228, quoted in Fitzgerald, 410 A.2d at 1272. When applying § 228 to the allegations of the Amended Complaint, it is clear that Tucker's act of sexually assaulting Minor Plaintiff was outside the scope of his employment with PLS. His acts were motivated by reasons personal to himself and did not further the purpose of his employment as a school van driver. Tucker's act was so outrageous and so incapable of anticipation by PLS that it must be held as a matter of law to exceed the scope of his employment.
(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.
Therefore, it is respectfully recommended that PLS' Motion to Dismiss the intentional tort claims of Assault and Battery and Intentional Infliction of Emotional Distress be granted.
III. CONCLUSION
For the reasons discussed above, it is respectfully recommended that the Motion to Dismiss filed by Defendant the Children's Institute of Pittsburgh (ECF No. 39) be granted. It is further recommended that the Motion to Dismiss filed by Defendant Pittsburgh Public Schools (ECF No. 41) be granted in part and denied in part. It should be granted as it relates to Minor Plaintiff's § 1983 claim and denied as to Plaintiffs' ADA claim. It is also recommended that the Motion to Dismiss filed by Defendant Paul K. Brown Inc., t/d/b/a/ Professional Limousine Service (ECF No. 50) be granted.
In accordance with the Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights. Dated: May 13, 2020
BY THE COURT
/s/_________
LISA PUPO LENIHAN
United States Magistrate Judge Cc: Lavalle Tucker
Inmate NV5335
P.O. Box 33028
St. Petersburg, FL 33733