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    IN THE UNITED STATES DISTRlCT COURT fOR THE EASTERN DlSTRlCT OF PENNSYLVANIA

    LEONARD BROOKS, et aL CIVIL ACTION v.

    NO. 09-1888CITY OF PHILADELPHIA, et aL

    MEMORANDUM AND ORDERJACOB P. K"IU October 5, 2010

    WilTED STATES MAGISTRATE JUDGE

    ThIS action arises from a Complaint filed by Plaintiffs., Leonard Brooks and MonicaRyan, husband and wife individually and a

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    I. fACTUAL AND PROCEDURAL HISTORYThis case stems from incidents which oc

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    bathroom and pulled his pants down with Leonard. And he said thai he tried tohump Leonard. He did ask Leonard to go to the bathroom with him. 1 asked llim"tat the word hump means. lIe said that he'll pull dov.'Il his pants and do it in theback. 1 asked him where did he learn this, and he said TV. 1 asked him what hewas watching and he said he didn't know. That W d ~ my conversation with Tyler.And when I saw Leonard. he told me that Tyler asked him to go into the bathroomwith him. lIe took out his ding-dong that's what he called it and put it in hisback. I Ie pointed to his back. I asked him to point to where he put it ! asked himifhe pulled down his pants and he said no. And then 1 rephrased that: So thatmeans you did not take your pants down? And he said; That's right. And thatwas my conversation with Leonard.

    Exhibit E at 12-13. In response, Ms. Taylor notified ooth sets of parents, notified the Department of HUman Services . and referred Tyler for counseling at the J, Peterson Institute, which deals wi th sexual issues. Theteacher and the a s ~ i 8 t a n t r Mrs. Brennian also prepared summaries of what happened and a"Serious Incident Report" was prepared,

    Leonard's: parents came to the school and mc,t with the principal. They also contacted thepolice ami took Loonard Jr. to Nazareth Hospital The hospital did no t find any physical injury orphysical signs of trauma, but found that he was emotionally traumatized, Plaintiffs, Leonard, Jr'sparents, requested that he be transferred to another school. (Plainti ff's Statement of UncontestcdFact, at par. 26, citing Bahn> deposition at p. 28-29; Brooks, Sr. Deposition at p. 43). Theprincipal complied with their request and took the appropriate steps to facilitate the transfer,

    No ~ h a n g e s have been made to the bathroom guidelines or policies since this incidentbecause it was an isolated incident 1ncre have been no similar i n c i d e n t ~ before or after this.involving Tyler or any other student.

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    11. STANDARDDF REYIEWFede'!al Rule of Ci vi! Procedure 56(c) states that summary judgment is proper the

    pleadings, dl.!posltions, answers 10 interrogatories, and admissions on file, together with theaffidavits, i f any, show that there is no genuine issue as to any material fact and that the movingparty is entitled to a judgment as a matter of law," Fed.R.Civ.P. 56(c); see also Celotex Com. y,Catrett, 477 U.S. 317, 322, 106 S. Ct 2548, 2552 (19K6); Williams,Y. Borough of West Chester,891 F.2d 458, 463-464 (3d Cif. 1989). A factual dispute is "material" only ifit might affect theoutcome of the case. AndersQ v. Liherty Lobbv, 111&" 477 U.S. 242, 248, 106 S. Ct. 2505, 2510(1986). For an issue to be "genuine", a :reasonable fact finder must be able to return a verdict (orrender a decision) in favor of the non-moving party, ld. On summary judgment, 11 is not thecourt's role to weigh the disputed evidence and decide which is more probative. Brt'wer v.Quak!:I State Oil Refining Co., 72 FJd 326, 331 (3d Cif. \995). Rather, the court must considerthe c v i d e n C l ~ j and all reasonable inferences which may be drawn from it. in the light mostfavorable to the non-moving party, United Sli!tcs v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct.993,994 (1962); TiGS Com, v. Dow Coming Corn" 822 F.2d 358, 361 (3d Cir, 1987); Baker v,Lukens Steel Co., 793 F.2d 509, 511 (3d Cir. 1986). I f . confl ict ll1iscs between the evidencepresented by both sides. the: conn must accept as true thc allegations of the non-moving party.fwdersQn v Liberty Lobby, Inc., 477 U.S. at 255,

    Notably, however, Rule 56(e) sets forth the burden of the nonmoving party as follows:\V"hen a motion for summary judgment is made and supported as provided in thisrule, an advcrSe party may not rest upon the mere allegations or denials of theadverse party's pleading, but the adverse party's response, by affidavits or asothervvise provided in this rule must set forth the specific facts showing thatthere is a genuine issue for trjal I f the adverse party docs not so respond,

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    summaty judgment, if appropriate, shall be entered against the adverse party.Fed.R.Civ.P. 56(e). Roo v. City of Bethl\1bem. 782 F. Stipp. 1008, 1014 (B.D. Pa. 1991)(.pmy resisting a motion for summary judgment must specifically identify evidence of recordwhich suppnrts her claim and upon which a verdict in her favor may be based.) With respect toan issue on which the n o n ~ m o v i n g party has the burden of proof, the burden on the moving partymay be discharged by "shov,.;ng" -- that is, pointing out to the district court - that there is anabsence ofevidence to support the nonmoving party's case, Celotex Corp, v. Catrett, 477 U.S. at325.

    III. DISCUSSIONIn their response to Ddtlfldants' motion, Plaintiffs have withdra\Vl1 their MoneU claim, as

    well as all claims against Defendant, Arlene Ackerman,A. Titl.IXDefendants assert that the evidence fai1s to establish a claim under Title IX as the School

    District was no t deliberately indifferent. In lheir response, Plaintiffs \'vithdraw their Title IXclaims against the individual defendants. reserving the cJaim against the School District andPrincipal Bahm in his official capacity,

    Title IX provides that "No person in the United States shall, on the hasis of sex, beexcluded n'om participation in. be denied the benefits of, or be subjected to discrimination underany education program or activity receiving federal financial assistance,,," 20 U,S.C. 168J(a),In Cannon Y, University Qf Chicago, 441 U.S, 677, 709, 99 S.C!. 1946, (1979), the SupremeCourt recognized an impl ied private cause of action under Title IX. The Court has alsorecognized that money damages are available in this type of action. F ~ n k l i n v. GWineU CQl1nty

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    Public Schouls, 503 U.s. 60, 112 S, CL 1028 (1992), In Gesber v, LagQ Vista IndependenlSchool Pi.trim, 524 U,S, 274, 283-84, 118 S, Ct. 1989 (1998), the Supreme Court held that TitlelX liability may be impo!ICd against a school district for the sexual harassment of a student by ateacher where the school was deliberately indifferent to the harassment. The Supreme Court hassince recognized that Title IX Uability may also be imposed under certain circumstances where aschool district is deliberately indifferent to s t u d c n t ~ o n - s t u d e n t sexual harassment. Davis v.Monroe County Bd, o(Educ" 526 U.s, 629, 643, 119 S, Ct. 1661 (1999),

    To prevail against the School Djstrict in their claim of student-oo-student sexualharassment under Title lX, Plaintiffs must show that (1) tbe School District received federalf u n d s ~ (2) St'xuat harassment occumxl; (3) the harassment occurred under "circumstanceswherein the [School District I exercise [d] substantial control over both the harasscr and thecontext in \\'hich the ... harassment occurred)); (4) the School District had "actual knowledge" ofthe harassment; (5) the School District was "deliberately indifferent" to the harassment; and (6)the harassment was "so severe, pervasive. and objectively offensive that it [couldJ be said to[have] depriverdJ the victims of access to the educational opportunities or benefits provided bythe school," Id, at 645, 650. The Supreme Court clarified "uw a recipient of fedenll funds maybe liable in damages under Title IX only for its 0\0\11 misconduct. The recipient itself must denypersons the benefit ot: Qr subject persons to discrimination under its programs or activities inorder to be liable under Title IX." liL at 641 (internal quotations omitted). The COUi1 inmade it clear that the Plaintiff in that case was not asking that the Court expand liability to hoidthe Board liable for the student's actions, but rather it was seeking "to hold the Board liable forits own decision to remain idle in the face ofknovffl s t u d e n l ~ O t h s t u d e n t harassment in its

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    schools." Id,When deciding Davis, The Supreme CQurt noted that in Gesber. when finding that a

    School could be liable for te-achcNostudent harassment, it had held that the school as recipientof funds "could only be liable where their own deliberate indifference effectively caused thediscrimination." The court noted that the high standard imposed in GCSbef was .Ito eliminate anyrisk that the recipient would be liable in damages not lor its ovm official decision but instead forits employees' independent actions." rd. at 643, quoting Gesber, 524 U.S. a{ 290-91, The Courtin Davi stated as follows:

    We stress that our conclusion here that recipients may be liable for theirdeliberate inditTcrence to known acts of peer sexual harassment does not meanthat recipients can avoid liability only by purging their schools of actionable peerharassment or that administrators must engage 1n particular disciplinary action .. ,School administrators !"vill continue to enjoy the flexibility they require so long asfunding recipients are deemed deliberately indifferent to acts of student-onstudent harassment only where the recipit:nt's response to the harassment or lackthc.fcof is clearly unreas:onable in light of the kno'\vn circumstances.Id. at 648.

    TIle Defendants' primary argument as to this claim is that the Plaintiffs have faile4 todemonstrate deliberate indifference. Given that Plaintiffs requested that their son be transferredalter the- second incident and that the school complied with the request by facilitating the transfer,it is the defendants' response [Q the ftrst Incident that is in question . TIle fact that the principal'sresponse did not in fact prevent the second im:ident il"Om occurring is not alone suHident to

    tIn their reply brief, Plaintiffs state that they asked for the transfer because the principaJrefused to remove Tylt:r from the class. However, there is no dlspute that the principal grantedtheir request to transfer their son to another school as they requested at this meeting, They arguethat the school district's alleged failure to respond to the first incident was unreasonable giventhat it did not prevent the second incident (Reply brief at p.8).7

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    demonstrate deliberate indifference for Title IX liability, Title IX does not require fundingrecipients to "'remedy' peer harassment and to 'ensure that" students confom) their conduct tocertain rules.)" HOn the contral),) the recipient must merely resp

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    by 6 year old boys, The school's response of contacting the parents. meeting with th

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    School Dist., survived summary judgment because after the plaintiff was stalked and hara"lsed foryears from eighth through tenth grade, including an incident where the harasser attempted to getinto the plaintiffs cur, the school did nothing more than talk to him. .lones, 397 F. Supp 2d at646, Although they knew that the conduct was continuing, the school district only began to takeadditional action after the alleged harasser kept plaintiff in the weight rOom against her will for ahalf hour until another student coone to her rescue. L4:. at 645. The court was therefore unable tofind the school districts responses from 1997 until December 2001 as "not clearly unreasonableas a matter of law," Id, at 6 4 5 ~ 4 6 . In the present case, however, after the second incident,making them aware that their initial attempts were not effective, the school district did not simplycontinU!.: the same methods. Instead, the district complied with Lhe PJaintiffs' request to transfertheir son. We find as a matter of law that the defendants' response in this matter was notdeliberate indifference. Accordingly, we grant Defendants' motion as to the Title IX claim.

    B. Section 1983"To state a claim under 1983, a plaintiff must allege the violation of a right secured by

    the Constitution and laws of the United States, and must show that the alleged deprivation wascommitted hy a person acting under color of slate law." West v. Atkins. 487 U.S. 42, 48, 108S.C!. 2250. 2254 - 2255 (1988). Section 1983 does not provide substantive rights, "but providesa vehicle for vindicating the violation of rights created by the United States Constitution orfederal law." See Graham v. C\lllIIQr, 490 U.S. 386, 39394, 109 S.O. 1865, (1989); Morse v.W e' Merion S . ~ h O Q I Vi>!" 132 F.3d 902, 907 (3d Cir.l997). Thus, in order to succeed on the 1983 daim. Plaintiffmust demonstrate that the defendant.. (1) were acting under color of statelaw, and (2) while acting as such, deprived them of a constitutiomd or federnl right. Id.

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    In this case, it is not disputed that the defendants were acting under the color of state law.As far as the federal or Constitutional right that piaintiffs a)lege was violated, plaintiffs rely uponthe "state created danger'" exception to the substantive due process clause or tile FourteenthAmendment.

    It is well established that the Due Process Clause docs not impose an afiinnative dutyupon the state to aet to protect its citi7.,enS. DeSh

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    bottom of an embankment, where she had fallen and suftcred hypothermia resulting indebilitating injuries. The Court found that a reasonable trie . of fact could conclude that utheharm likely to befall [plaintift] if separated from [her husband] while in a highly intoxicated statein cold weather was indeed foreseeable ," Id.

    However in Morse v, Lower Mo[Wo Seh, Dis!', 132 F.3d 902 (3d Cif, 1991), where theschoo] had l ~ f t a back door unlocked for contractors and a mentally il l woman entered the schoolthrough thar door and killed a teacher, the court found that the School dislrict had no reason toforesee that type of harm. The Court found that tile school's actions increased the risk of harm,but the ham:. that resulted was not directly related to the increased risk and was not foreseeable,hl.. at 914. The Third Circuit held "that defendants, as a matter of law, could not have foreseenthat allowing construction workers to use an unlocked back entrance for access to the schoolbuilding would result in the murderou, act of a menIally unstable third party, and that the ttagieharm which ultimately befell [the teacher] was 10 0 attenuated from defcndants' actions to supportliability," MorlY y, Lower Meri.9n School Dis!., 132 P,3d at 908,

    Similarly. the court did not find sufficient evidence to satisfy the first element of theKnejpg test in Bailey v, Sch, Dis!, OfPhila

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    38f.Jd 198,202 (5tllCir.1994).Tn this case, Plaintiffs have failed to present any evidence of prior incidents involving

    Tyler and Plaintiff or Tyler and any other students, They have failed to present any evidence thatthe schoo1 or anyone else was aware of prior incidents or the potential for the type of incidentthat occurred on May 3, 2007. Even considering the facts most favorable to P l a i n t i f f ~ the firstincident involving Tyler was that which occurred on May 1,2007. Although dlis fIrst incidentmay have a 1 ~ r t e d the school to aUempt to keep the two boys apart, as defendant>;: argue, we do notfind that any reasonable jury would conclude that this caused: Defendants to have reason to knowthat an incident ao:;: serious as what occurred on May 3\ was likely to occur, Furthermore, Tyler'sbehavior was not a direct result of auy actions of the defendants, We do not find the hannsuffered by plaintiff to be foreseeable or a fairly direct result of the defendants' actions.However, eveil lfthe harm could be considered foreseeable or fiUrJy direct, P1aintiffhas notpresented triable issues as to all ofthe remaining elements,

    To satisfy the second element of the tcst, the Third Circuit held in Kpeipp that the stateactor must have acted in willful disregard or dcliberate indifference for the safety of the plaintiff.Kneipp,95 F.3d at 1208 & n. 21. This element has been modified over the years and theSupreme Court held in a case involving a police high speed chase that to satisfy this clement, thestate acWr must have acted with a degree of culpabiHty that shocks the conscience, County ofSacramentov. Lewis, 523 U.S. 833, lIS $, Ct 1708 (l998). Such culpability requires more thanthe state actor acting in willful disregard for the plaintiffs safety. Rivas v, City of P a s s a i c ~ 365F.3d at 194, Following the Supreme Court'!> decision in County of Sacramento v. I"ewis. theThird Circuit suggestt.d that the "shocks the con::;ciencc" standard, rather than deliberate

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    indifference, was applicable to ali substantive due process claims. ~ l i l l e r v, City of Philadelphil;!.174 F.3d 368, 374-75 (3d Cir.1999). However, the Third Circuit "also indicated that the precisedegree of ,-vrongfulness required to reach the level of conscienco-shocking behavior depends ortthe circumstances ofa particular case and that when an official na.'i

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    failure to properly supervise the students. However, as the lbird Circuit noted in Morse,"Ialssuming their actions rose to the level of negligence! merely negligent acts cannot support aclaim under thnlale-crcalcd danger theory of 1983:' Morse, 132 F.3d at 911-912. As the(:ourt found in Morse, the plaintiff"was 'the tragic victim of random criminal conduct rather thanof schoo1 officials' deliberate, callous decisionsl j and plaintiff's complaint cannot bc read toallege otherv.'ise. jj Id.

    To :;atisi)' the third element of the Kneipp test, there must be a relationship bt:twecn theplaintiffand the state. The Third Circuit has explained that "the relationship must be sufficiently

    close to exclude 'those instances where the state actor t:reatcs only a threat to the generalpopulation', but not so restrictive a::; to limit 'the scope of 1983 to those instances where aspecific individual is placed in danger:>! Rivas v. City of Passrue, 365 F.3d 181. 197 (3d Cir.20(4) (quoting M o r s ~ , 132 F.3d at 913). III M o the Third Circuit held thar the plaintiff"mustbe a member of a discrete class of persons subJected to potential harm brought about by thestate's actions." Id. Defendants allege that the plaintiff has failed to present any evidence thatPlaintiff was a member of a discrete class or that he was subjected to potential harm any morethan any other student. However, we do not need tu decide this issue because it is cle'M thatn::maining elements of the Kneipp test cannot be satisfied in this case,

    Even irthe Plaintiff was able to satisfy othereiemcnts of the .KneiJ,'ll1 test. we find that as amatter of law, he aha cannot satisfy the final element. The fourth element of the test, is whetherthe state actor used its authority to create an opportunity which otherwise would not have existedfor the ,pecific harm to occur." MorSe. 132 F.3d at 914. The Third Ctrcoilha:s lbuod that"[lJiability under the state created danger theory is predicated upon aftinnativc acts which work

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    to the plaintiffs detriments in terms of exposure to danger," DK by L.R. y, Middle Bucks ArCllYo, Tech, SchRoI, 972 F.2d 1364, 1374 (3d Cir, 1992),

    In ~ r i g h t y, Westmoreland COImlv, 443 F.3d 276 (3d Cir. 2006), the Court found that thefourth elemtmt was not satisfied where the Complaint alleged that an Officer had assuredplaintiffs i ~ - u n H y approximately three weeks before the murder that the attacker would bearrested and in reliance upon this assurance. the plaintiffs failed to take defensive actions. sucb asleaving the area with family. hen.ce creating the opportunity for the damages ultimately sustained,Bright y, .Westmoreland County, 443 F,3d at 284. The Third Cirx;uil held that "[ijt is misu," of

    state authority, rather than a failure to use i t ~ that can yjoJate the Due Process Clause," Id. at 282,In Maxwell eX rei, Maxwell v, School Disj, ofCity o f P h i l ~ . " 53 F. Supp,2d 787, 793

    (E,D, Pa.l999), lhe Third Circuit fouod that the fourth element of the I&neipp test was satisfiedwhere the plaint1ff\ a special education student, was attacked and raped in her classroom byfellow studt:nts. The school district had locked the classroom doors 00 students eQuid not leaveand the substitute teacher told the students, who had become disruptive, she did no t care whatthey did as long as they did not bother her. lbc substitute teacher saw two students attempt torape another student. who was able to get away, but the teacher did nothing. Two students thentook plaintUno the back of the room and after moving a portable blackboard, raped her on the1100r behind the blackboard, The t"""her was aware ofthe attack, but again did nothing. Theschool district had also received prior complaints regarding the attackers being involved inassaults. 'W'hcn analyzing the fourth element of the Kneitm tcst; the Court found that the s t a t c ' ~ action of locking the doors and informing the class that they would not be disciplined placedPlaintiff in harm', way, llL at 793,

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    In t h i ~ ca$e, Plaintiffs assert thal the Principal Bahm used his authority to create anopportunity that otherwise would not ha\ 'e existed for Tylerls conduct. Defendants argue thatplaintiff at most establishes a failure to act, since in the Complaint they actually reference afailure to supervise, This is not a case where the district through the principal ignored thesituation and failed to act at alL It is clcar that Principal Bahm took steps to attempt to keep theboys apart by seeking the assistance of the kindergarten aid,

    However, a reasonable jury could not find that the principal s response placed Plaintiff ina more- dangerous situation. We find only that the principal's actions may not have been enoughto prevent the conduct, but not that the Defendants increased the danger or provided anopportunity that otherwise would not have existed for Tyler's conduct. Contrary to PlaintiffS'claims, the principal's verbal assurances did not create an opportunity that otherwise would nothave existed for the incident to occur, Plaintiffs were free to remove B r o o k s ~ Jr, from the schoolat all times. The record demonstrates only that the school may not have done enough to preventthe incident, bUl not that they increased the danger. The principal did not facilitate the attack, forc'Xample by lacking the boy, in a room together or lelling Tyler he could do whatever he wanted,See Maxwell, 53 F, Supp.2d at 793, A reasonable jury could not find that the principal'sresponse to the first incident created the harm which occurred in this case or placed plaintiff in amore dangerous situation.

    Plaintiffs have failed to ~ e t forth evidence to establish a claim for a state created dangerunder 1983. For this reason, defendants' motion will be granted as to this claim as well,

    C. Remaining ClaimsAlthough Plaintifis did nol specifically state that they were withdrawing the claim of age

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    discrimination, Plaintiffs did not set forth any argument or allY evidence whatsoever in support of::Iuch a claim. This claim must be dismissed.

    IV. CONCLlJSIONWhile the Court sympathizes with the PlaintiHs. Plaintifis have failed to set forth

    evidence to support their claims. For aU ofthe reasons set forth herein, the Court ,,,,'HI grantsummary judgment in favor of the Defendants and the matter will be dismissed in its entirety.

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