_ UNITED STATES DISTRICT COURT □ MIDDLE DISTRICT OF PENNSYLVANIA CHRISTOPHER MATHEWS and a ee KERRY MATHEWS, individually, □ as parents and natural _ : guardians of G.M., a minor, arr Plaintiffs, CIVIL ACTION NO. 3:22-CV-00959 gy, a (GAPORITO, MJ) “ABINGTONHEIGHTSSCHOOL DISTRICT, Defendant. So MEMORANDUM This is. a federal civil rights action, brought by plaintiffs Christopher and Kerry ‘Mathews, individually and as parents and □ natural guardiais of their minor child, G.M. Appearing through counsel, plaintiffs commenced this petion by filing a complaint in state court
on May 26, 2022. Doc. 2. The lone named defendant, Abington Heights “School District (the “School District”), timely □□ the action.to this gout on June 15, 2022. Doc. a . “The matter has been referred to the undersigned United States ‘magistrate judge on consent of the parties, pursuant to 28 U.S.C. § 636(c) □
and Fed. R. Civ. P. 73. We previously considered and granted a motion to. □
dismniss the original complaint. See Mathews v. Abington Heights Sch. Dist, No. 22-CV-00959, 2023 WL 261917 (MLD. Pa. Mar. 22, 2023), Doc. 12; see also Order of Mar. .22, 2023, Doe. 13. ini dismissing the original complaint, we granted the plaintiffs leave to file an poe ndecenmn cure the pleads deficiencies identified in our dierhieeall opinion. On April 12, 2028, the plaintiffs filed thicir amended complaint. Doc. □
The defendant has filed a Rule 12(b)(6) motion to dismiss the amended complaint for failure to state a claira cron which relief can be
granted. Doc. 16. The motion is fully briefed and ribe for decision. Doe. Doe. 18; Doc. 19. ALLEGATIONS OF THE AMENDED COMPLAINT a
For the most part, the ‘amended complaint repeats the factual allegations of the original complaint verbatim, with some. additional material pleaded:|
In December 2021, G:M. was a 10th grade student. at Abington. Heights High School. He was and continues to be an exemplary honor roll □□ □ student with no disciplinary history at Abington Heights High School. :
The newly added material consists mostly of conimentary,” argument, or legal conclusions, rather than new fact eee
In the early Taoenine hours of December 20, 2021, shortly: after
midnight, G.Ms parents received a telephone call from police réquasting ‘that they meet. with officers . outside their home to discuss an issue
involving GM. and an anonymous tip that had been submitted through» ‘thie Safe2Say Soinething anonymous reporting (“S289”).2
G.M.’s parents met with two pete officers inside the ee of their ‘home. During that meeting, the police officers informed the parents what the S2SS anoinymous-reparting system was, and they informed G.M’s parents that an- anonyrhous tip about G.M.- had’ been submitted. ‘Specifically, the “police ‘officers informed. G.M/s parents that an □ Enonymous tip was submitted indicating that G.M. had made statements that he -had two’ firearms in his possession era that /he wail going to □ Abington Heights High School on Monday, December 20, 2021, to “shoot □
people on he list.” - . oe At the time, GM. had. no access to any firearms. In fact, he had been in quaranene due to COVID-19.exposuré and would not bé eligible
2 S28 is . anonymous reporting system eranitned by the | Commonwealth of Pennsylvania for individuals who may -be.a.-risk themselves or others,. and. any member of a school community, including: _ students, can make a report anonymously via an app, through a website Safe2SayPA.org, or by calling hice eels
to return to school until December 22, 2021.
The police officers requested to speak to-G.M., who told the officers that he did not neve! access to any firearms, that he _— made any
. statemetits about shooting anyone, and that he never created a list of
people he Prenedtis shoot at Abington Heights High School.
At that time, the police officers indicated that they believed the □
anonymous tip to have been false. But the plaintiffs were also informed that G.M. was considered suspended from the school pending the Behoolie investigation. They were advised that they should await a telephone call
from the superintendent of the School District before G.M. could return school rr Shortly after the police officers departed, G.M.’s mother advised him to contact his friends in an attempt to identify who made the. anonymous false tip via S2SS, and why they made that tip. G.M. spoke □ with his fellow classmates, L.R. an P.M., both minors, who iriformed that another classmate, SJ. had “joked” about submitting an
anoviymous false tip regarding G.M. via S288. According to LR. and
P.M., they had been engaged in a game of Fortnite? together with G.M.
and S.J., which led to a plot to make an anonymous false tip about G.M._ -
During a game of Fortnite, the four players had discussed how the. high school.was “a ghost town” on the prior Friday night due to threats that had circulated: □□□ social media regarding possible mass shootings in
schools across the nation.4 At that point in the. conversation, S.J. stated that-he should submit an anonymous false tip regarding G.M. via S2SS. ©
then recorded and shared footage of himself via the Snapchat ©
application making the anonymous false tip, but the recording disappeared once it was viewed, before the other players could record or save it:5 :
3 See generally Pellegrino v. Epic Games, Inc., 451 F. Supp. 3d □□□□ _ (E.D. Pa. 2020) (“Fortnite is a battle royale video game, a‘genre that _ “blends the survival, exploration and scavenging elements of a survival - game with last-man-standing gameplay.’ In this format, ‘up to 100. _ players, alone, in pairs or in groups, compete to be the last player or group alive’ by using. weapons.and other forms of violence to eliminate other players.”).(citation omitted).
4 See, e.g., Hannah Natanson & Laura Meckler, Threats, Hoaxes” Add to School Stressors,. Wash. Post, Dec. □□□ 2021, at Al (“[I|n a ‘challenge’ last. week that swept the social network TikTok, students _ promoted school shootings to take place this past Friday—for many, the □ day of class before winter break. Schools from D.C. to California closed for the day or added ‘police.”). 5 See generally Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 141 8. (continued on next page). . : □ rR . ,
At approximately 1:30 a.m. on December 20, 2021, L.R. and P.M. □
‘repeated their statements to a police officer regarding. $.J’s plan to submit a anonymous tip regarding G.M. . □ That same day, G.M.’s mother received a telephone call from the Vice Principal at Abington Heights High School,® who indicated that, □
after having S.J., and despite S.J 2g. statements in his own defense, the Vice Principal ultimately believed the tip to be false and G.M. to be the “victim.” Nevertheless, and despite his innocence, the Vice Principal suggested that G.M. refrain from returning to school until after .
‘the impending winter holiday vacation, and she indicated that she was
continuing to investigate and interview students involved. Even though police and the Vice Principal had already deemed the
to be false, she still chose to conduct interviews of certain students
involved in the imeidents including L.M. When interviewing L.M.:, the Vice
Principal asked pronended questions such as “Does G.M. make you nervous?” and “Do. you feel as though G.M. would shoot someone?” The
Ct. 2038, 2043 (2021) (Snapchat [is] a peer media application that - allows users to post photos and videos that disappear after a set period time.”). □ 6 The amended complaint does not identify the non-party vice principal, but merely refers to her by title.
ef.
events of December 20, 2021, were not discussed with L.M. during this "interview; instead, the focus was on the unfounded possibility that G.M.
hada propensity for violence. Upon information and beliof the plaintiffs alles that none of the students interviewed regarding this incident were ‘advised of the Sener of the matter and the damage it could cause to
On December 21, 2021, G.M.’s mother a contacted by the Vice Principal, who told her that G.M. had been “cleared of the matter” and that School District fadulty’or staff felt that: G.M. was “the victim.” The "Vice Principal further informed G.M.’s mother that SJ. had been □
suspended and that G.Ms suspension was being lifted ane his absences attributed to COVID-19; porene instructed G.M’s mother to contact her immediately if G.M. faced any □□□□□□□□□□□□□□□□□□□□□□ as a result of the incident. .
Faculty and staff were not informed of G.M.’s exoneration at that point in time. . GM. was able to recarnste school on December 22, 2021. Naturally,
he was extremely nervous to return to school, as he was unsure how his fellow students would respond to his presence considering the false tip.
G.M. was contacted by a friend and fellow student, KB., who informed G:M. that an unidentified student was asking other students “Where is your blue shirt so that G.M. does not shoot you?” oe
a G.M’s mother immediately tried to contact the Vice Principal; who unavailable, and she ultinately spoke with the Principal at Abington Heights High School. The Principal dasured GM’s thother that the nmen would be investigated and addressed, and he ackhowledged that wearing blue was a detail mentioned in. the false tip regarding GM.» GMs mother ee concerned that these precine details had been ee within the high school, as she believed a about -G.M. being □
a potential acheol shooter could essentially destroy G.M.s life.8 At that
point, the Principal informed G.Ms mother that he would not send an - Jentail or text eee to’ faculty or staff for feat of “calling more
ee to the situation, but that faculty and staff at Abington Heights
High School would be made.aware that G.M. was innocent. □
a When GM. ‘returned to school . on Siecombecs 22, 2021, an
Ep err iriccesrs: identify the non-party principal, _ but merely refers to him by title. □□
§ It is not clear from the amended complaint whether she expressed this concern to the Principal during that phone call... oe _Q. a _
unidentified student addressed him as “shooter” during first marion During third period that same day, in a class of approximately twenty students, G.M. was addressed by his third ‘period teacher, identified only as “Teacher,” who said: “I am rene rumors. Are they true?”® Teacher initiated a dialogue between the students in the classroom regarding the situation, and G.M’s third period classmates all began to chime in regarding what they had heard about the situation. When G.M. attempted Peyietond himself, Tneaehen interjected and began to lecture G.M., stating “What were you thinking?” and insinuating that
SJ 'S false tip that G.M. had made certain threats was. true. Another
- teacher. then entered the classroom, at which point Teacher pointed to
_ GM. and asked: “Did you hear what this kid did?” _ oe
Teacher's statements created a ripple effect, and during sixth
~ period that same day, G.M. was approached by a group of students who □ asked him if the rumors were true, at which point he had to explain the © situation and reiternied that the rumors were not true. As GM. was leaving school that day, another student yelled at G.M. in the hallway,
--9"The amended complaint does not identity the non-party teacher, _ but merely refers to him by position title. □
‘calling him “shooter.” G.M.’s mother once again tried to contact the Vice Principal, who unavailable, and sho once again spoke en the Principal. G.Ms □
mother expressed ‘her concern that faculty and staff continued □□ perpetuate the incorrect belief that G.M. had made statements regarding □ potential school shooting. The Principal promised that faculty and staff would be stationed in the hallways so G.M. was not harassed by his fellow students. The Principal, however, refused to release any information to ~G.M.’s mother reganding disciplinary action being taken meni SJ, other than noting that students in this type of situation could face a
maximum of ten days of suspension, and that the ‘School District would
need to determine if any additional action needed to be taken.
While G.M.’s mother was speaking with the Principal, the Vice Principal left a voicemail for her apologizing for G.M’s “experience” that day. In that voicemail, the Vice Principal stated that she did not.address ‘the specific statements made to G.M. that day because she was “unable:
to get that kid before the day ended.” She further stated that she did not
think this was “a widespread situation” because she had only spoke with
two students about it. □
“an.
G.M’s mother than contacted the Assistant Principal at Abington Heights High School!° and once again expressed her concerns that G:M.’s reputation and well-being had suffered irreparable damage as aresultof □□ the incident ani. the manner in which it was handled by the high school _and the School District. In light of the repeated requests by G.M.’s mother, the Assistant Principal agreed to send an e-mail to ail faculty _ and staff of Abington Heights High School exonerating.G.M. The Assistant Principal subsequently sent an email to faculty and staff on December 23, 2021, stating that the “Safe2Say report accusing IGM] of possibly threatening the school” was investigated and found □□□□
be false. Unfortunately, ‘by that time, false rumors about G.M. had already spread throughout the student population of Abington Heights High School. : □
Before the impending winter holiday vacation, G.M. popronched Teacher, once again informed Teacher that he was in fact innocent, and informed Teacher that he did not appreciate the way Teacher handled the situation in third period that day, December 23, 2021. Teacher
10°The amended complaint does not identify the non-party assistant principal, but merely refers to him or her by title. ~
admitted to mishandling the situation and apologized. The amended complaint alleges that, as a result of the acts or
omissions of the School District, G.M.’s reputation has been forever _tarnished by false rumors that. he plotted to initiate a school shooting. The amended Pompei further alleges that, since December 20, 2021, G.M. has exhibited signs or symptoms of anxiety and depression, including fatigue, Teoria loss of interests, low self-esteem, and lack of
concentration, and contributing to absenteeism and tardiness at school: G.M.’s previously excellent academic performance has suffered as well,
with his grades deéreasing drastically, endangering his eligibility for participation in a “Level Up Lackawanna” program that allows high-
_ achieving students to earn an early associate degree in select majors by the time they graduate from high school through a combination of dual
enrollment classes.11 IL LEGAL STANDARD Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move to dismiss for “failure to state a claim upon which
11 See generally Lackawanna Coll., Level Up Program, https://www -lackawanna.edw/offices-and-departments/ admissions/level-up/ (last visited Feb. 9, 2024). 49.
relief can be granted.” Fed. R. Civ. P. 12(b)(6). “Under Rule 120)6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in'the complatit, as true and viewing them in the light most favorable to the plaintiff, a court finds ra plaintiff 5 claims lack Fecal = _ plausibility” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. □ 2011) (iting Bell Atlantic ‘Corp. >. Twombly, 550 U.S. 54, 555-56 (2007)). In deciding the motion, the Court may consider the facts alleged on the face of the ponine as well as “documents incorporated into the’ complaint by Perera and oe of which a court may take judicial. □ ~~ notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). Although. the Court moe accept the fact allegations in the
complaint as true, it is not compelled to accept ener eered conclusions □ 7 and unwarranted inferenées, or a legal poreleeion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (8d Cir. 2013) (quoting ‘Baraka perience 481 F.3d 187, 195 (8d Cir. 2007)). Nor is it required “to credit factual allegations contradicted by indiéputably authentic documprits on which the complaint relies or on of public. er of
which we may take judicial notice. In re Washington Mut. Inc., 741 □□□□ Appx 88, 91.3 (3d Cir, 2018) Sourovelis v. City of Philadelphia, 246 □□
a ae. oe
Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty. of Allegheny, 568 F. - Supp. 24 579, 588-89 (W.D. Pa. 2008). .
TH. Discussion ~ The plaintiffs have filed a four-count amended complaint against
_ the School District only.12 It does not name any individual defendants. Count I, the plaintiffs assert a § 1983 Fourteenth‘ Amendment equal: □ protection claim. In Count II, the plaintiffs assert a § 1983 Fourteenth □
Amendment “stigma plus” procedural due process claim. In Count III, the
plaintiffs assert a traditional § 1983 Fourteenth Amendment procedural □ process ‘claim. Count IV, the plaintiffs assert § 1983 Fourteenth
Count I. of the amended complaint is largely reproduced from Count I of the original complaint, with some additional ‘allegations _ regarding School District policies and procedures. Count II of the. . -amended complaint is largely reproduced from Count III of the original complaint, with an added allegation that G.M. has been constructively excluded from meaningful attendance or participation in his high school classes or curriculum. Count III of the amended complaint. is largely _ reproduced from Count II of the original complaint, but substituting
_ references to procedural due process in place of the previously dismissed □□ _~ substantive due process claim, and with an added allegation that the _ . School District’s polices and procedures were constitutionally inadequate □ remedy the alleged deprivation of his protected state-created right to. public education. Count IV of the amended complaint is altogether new, asserting substantive due process claims under “special relationship’ □□□□ - “state-created danger theories.” The ‘original- complaint also included state-law tort claims and a claim for punitive damages, all of which have _ been omitted from the amended complaint. ar ,
Amendment “special relationship” and. “state-created danger” subitatitive pierces claims.: For relief the complaint démands an
award of compensatory damages. a ee 8 A, individual-Capacity Parent Claims oe Although the four causes of action asserted: in: the amended complaint pertain only to the federal civil rights of GM, with the minor □ □□ | student's parents asserting these claims on his behalf, inegemendedes □ complaint’s caption, its introductory paragraph, and its several demaind- □ for-relicf recitations include references to GMs ‘parents. in their” individual fenecicieet The defendant has moved “40 “diemiss any’
individual claims brought ‘by the parents for failure to state a claim upon
which relief can be granted. In their brief in opposition, the plaintiffs deneeefeneaied this point. See Br. in. Opp’n 16, Doe.: 18. The filing of a brief in opposition to.a motion to dismiss that fails to respond to a substaiitive argument to dismiss a particular claim results in the waiver or abandonment of that claim. See Dribelbis v, Scholion, 274 Fed. App’x 183, 185 (3d Cir. 2008) (affirming district court’s finding of ee as to an argument where” plaintiff had opportunity to addrées it in his opposition brief but failed to □
_ do so); Levy-Tatum v. Navient Solutions, Inc., 183 F. Supp. 3d on □□□ (ELD. Pa. 2016) (collecting cases); D’Angio v. Borough of Nesroneer 34 □□ Supp. 2d 256, 265 (M.D. Pa. 1999). (finding claims aoe where plaintiff
failed to. address defendant’s argument in his brief in ‘opposition to □□ “motion to dismiss) see also LM Gen. Ins. Co. v: LeBrun, 470 F.Supp. □□□
440, 460 @D. Pa, 2020). Celestial. Cmty. Dev. Comp. v. City. of | Philadelphia, 901 F. Supp. 2d 566, 578 (ED. Pa, 2012). Accordingly, any claims asserted on behalf of the parent-plaintiffs, □
Christopher and Kerry Mathews, in their individual capacities, will be dismissed as waived and for failure to state a claim upon which relief can □ “be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil. Procedure. . B. §.1983 Equal Protection Claim In Count I of the ‘complaint, the plaintiffs assert a § 1983 Fourteenth Amendment equal protection claim on’ behalf of G.M. The . "defendant has moved to dismiss this equal protection claim for failure to state a claim upon which relief can be granted.
_In their brief in opposition, the plaintiffs have expressly ‘conceded
point. See Br. in Opp’n 11, Doc. 18. As noted above, the filing of a°
brief in opposition to a motion to dismiss that fails to respond toa substantive argument to dismiss a particular claim results in the waiver abandonment of that claim. See Dribelbis, 274.Fed. App’x at 185; Levy-
Tatum, 183 F. Supp. 3d at 712; D’Angio, 34 F. Supp. 2d at 265; see also □ □ _LeBrun, 470 F. Supp. 3d at 460; Celestial Cmty. Dev. Corp., 901 F. Supp.
at 578.
Accordingly, the plaintiffs’ § 1983 Fourteenth Amendment equal
protection claim will be dismissed as waived and for failure to state a. claim upon.which relief can be granted, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. □
Cg 1983 Substantive Due Process Claims . . In Count IV. of the complaint, the plaintiffs assert § 1983 Fourteenth Amendment “special relationship” ‘and “state-created danger” substantive due process claims.18
13 In asserting these claims in the amended complaint, the plaintiff has referenced both procedural and substantive due process: But the .. “special. relationship” and “state-created' danger” doctrines are | _ substantive due process theories of liability, with no. application to a procedural due process claim. See, e.g., Coleman v. Cnty. of Suffolk, 174 F. Supp. 3d 747, 74 n.7 (E.D.N.Y. 2016); A.M. ex. Rel. Youngers v. N.M. . Dep’ of Health, No. CIV 13-0692, 2015 WL 13668431, at *47 n.21 (D.N.M. _. Dec. 7, 2015). See generally Estate of Massey v. City of Philadelphia, 118. _.- (continued on next page) 47
Although the amended complaint’s heading for Count IV references
a “special relationship,” the body of the amended complaint’ does not. allege any particular basis for this theory of liability: Presumably, the plaintiffs rely on the relationship between the School District and □□□ students, but it is well established that a special relationship will not arise solely from “compulsory school ‘attendance laws and the □ concomitant in loco parentis authority and discretion that schools “necessarily exercise over students, or the school’s failure to do more protect” its students in any particular situation. See Morrow v. Balaski, F.3d 160, 170 (8d Cir.2018)(enbanc), = The allegations of Count IV are more clearly directed toward a state-created danger theory: of substantive due process liability. To state
a claim under this theory, a plaintiff must plausibly allege the following four elements:.
1) the harm. ultimately catised was foreseeable and _
OF Supp. 3d 679,. 689 (E:D. Pa. 2015) (“As .an. exception to the general principle that a state does not have an affirmative duty to protect □ student from harm, a state may be held liable for injury when the. state □□ (1) entered into a ‘special relationship’ with the plaintiff, or (2).createda .danger which resulted in foreseeable injury to a discrete plaintiff.”) (citing Morrow v. Balaski, 719 F.3d 160, 167 (8d Cir. 2013) (en banc), and Kneipp v. Tedder, 95 F.3d 1199, 1205 (8d Cir. 1996)). □ : ne
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.
at 177 (quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir. 2006)). Here, the allegations of the amended complaint are insufficient to plausibly establish the first element of a state-created danger claim. In.
conclusory fashion, the plaintiffs have alleged that G.M. “suffered severe
and permanent psychological damage, emotional distress, and decreased
educational opportunities.” Am. Compl. § 141, Doc. 14. The amended complaint fails to, plausibly allege a foreseeable and fairly direct harm
_ because it alleges no facts whatsoever in support of these vague □□□□ conclusory allegations of inchoate injury. Without more, mental or
emotional distress is insufficient to constitute the requisite harm in a
19.
state-created aeneer claim. See Carey v. City of Wilkes-Barre, 410 Fed. □
App'x 479, 483 (3d Cir. 201 1) (holding that the plaintiff s allegation of □ ankiety did “not vise to the level of foreseeable and fairly direct harm,” “the emotionsil distress alleged by [the plaintiff is not a cognizable
harm’); see also Doe #1 v. Delaware Valley Sch. Dist., 572 F. Supp. 3d 38, 75 n.11 QLD: Pa. 2021); Moore v. Solanco Sch, Dist. an F. Supp. 3d □□ (E:D. Pa. 2020).
Accordingly, the plaintiffs’ § 1983 Fourteenth Amendment special
Peietonain and state-created later substantive due process claime Count IV) will be dismissed for failure to state a claim upon which relief a be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
D. Traditional § 1983 Procedural Due Process Claim □ In TY of the amended complaint, the plaintiffs. assert a traditional § 1983 Fourteenth enendenent procedural due pee erin “To mere a cen under § 1983 for deprivation of procediiral due □□□
process, feat a plaintiff must allege that (1) he was deprived. of □□□ individual interest that is encompassed within: the Fourteenth Amendment’s protection of ‘life, liberty, . a property,’ and (2) the
procedures rane to him did not provide ‘due process of law.” Hill □□ □ Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2008). i i this count, the plaintiffs have identified a state-created right to
a public education as the individual interest protected By procedural due □ process. ‘See Am. Compl. $121, They allege, in vagiie’ and conchisory “fashion, that G.M. was deprived of this right becanse the reputational’. harm caused by the School District's allegedly mishandled investigation □ □
“has significantly hinderéd his ability to perform as a. student,” id. q 92, “he has. been essentially excluded from meaningful. attendance and/or . participation in his classes and/or high school curriculum,” id. 793, □□□ has been constructively excluded from meaningful attendance and/or participation in his classes and/or high school curriculum.” 4.4 ii6. The’ ‘amended complaint further alleges that G.M. has eciibted sions or of anxiety and depression, including fatibue, insomnia, loss of interests, low self-esteem, -and lack of concentration, which has adversely. impacted his subseguent attendance record and academic peeriene See id. 74 85-91. Nevertheless, the amended complaint expressly: □ ~ acknowledges that GM. was able to return to school on December 22, □
2021, imiediately after. his COVID quararitine ee id. 4 19, 42,
and it does not allege that school officials excluded G.M. from attending
school at any time ‘due to the December 20, 2021, incident ol related investigation. |
. It is well established that, where state law has established a public school system and. required children to attend, students possess a “legitimate entitlement to a public education as a property interest which is protected by the Due Process Clause.” Goss b. Lopez, 419 U.S. 565, 574 | (197 5). But, notwithstanding the disheartening impact this incident and
its fallout may have had on G.M’s mental a emotional status, and his academic performance as an indirect result, it is also well established that, “Is]o long ‘as administrative policies and actions do not preledey a
student from class, they do not iplieste the property interest in public education.” Oberheim v. Bason, 565-F. Supp. 3d 607, 616 (M.D. Pa, 2021) □ ‘Giting Wise v. Pea Ridge Sch. Dist., 855 F.2d 560, 563 n.3 (8th Cir. 1988), Laney v. Farley, 501 F.3d 577, 582-83 (6th Cir. 2007)). The amended. complaint does not allege that school officials excluded GM. from attending school at any time—deliberately or See eee it does not allege sufficient facts to plausibly establish that the allegedly mishandled
7 investigation created such a hostile environment at schoo! for G.M. that
gg.
he was forced to leave. See Bichel v. Kennedale Indep. Sch. Dist. No. □□□□ cv-00804, 2023 WL 8628329, at *3 (N.D. Tex. Dec. 13, 2023) (plaintiff must allege sufficient details to Bineeelrademoneeents that a hostile environment created by defective eee ee encore deprived her □□□
protected property interest in public piacere) HB v. Monroe Woodbury Cent. Sch. Dist., No. 11-CV-5881, 2012 WL AAT7552, at *8 (S.D.N.Y. Sept.
27, 2012) (finding school district did not deprive student of property
“interest in public education when it did not actually prevent her from
attending the school; rather, the student's parents chose to remove her □ from public school and place her in a private school due to bullying and □ harassment); Garcia v. Clovis Mun. Schs., No. Civ 02-1101, 2003 WL 27 385436, at *4 (D.N.M. Mar. 3, 2003) (“If there is a cause of action under Section 1983 for constiuctive expulsion, a plaintiff would have to allege □ that school officials deliberately created. an intolerable environment in
order to force.a student to leave and that the conditions within the school
□□□ so objectively intolerable that the student had. no choice but to. leave.”). Thus, under the Circumstances ; described in the amended : complaint, the plaintiffs have failed to plausibly allege the deprivation of
a protected property interest in a public education.
oe
Accordingly, the plaintiffs’ traditional § 1983. Fourteenth Amendment procedural due process claim (Count IIT) will be dismissed for failure to state a claim upon which relief can be granted, pursuant □ Rule 12(b)(6) of the Federal Rules of Civil Procedure.- ms,
_E. § 1983 “Stigma Plus” Procedural Due Process Claim. □□
. In’ Count II of the complaint, the plaintiffs assert 1983
Fourteenth Amendment “stigma plus” procedural due process claim.4
this count, the plaintiffs allege that G.M. suffered harm to his
reputation, which in turn affected his ability to perform his “job” □□ attending school as a result of the School District’s mishandling: of □
investigation into and communication about the December 2021, ‘incident, thus depriving him of, a liberty interest protected by the due
14 We note’ that the defendant’s brief discusses this claim □ _ substantive due process claim. But “stigma-plus is actually ‘a species. within the phylum of procedural due process claims,’ not a variation of substantive due. process.” Miller v. Fayette. Cnty., No. 15-cv-1590, 2016 _ WL 1555526, ‘at *4 (W.D. Pa. Apr. 18, 2016) (citations omitted); accord v. Mich. Dept of State Police, 490 F.3d 491, 502 (6th Cir. 2007); _ _ Magassa v. Wolf, 545 F. Supp. 3d 898, 910 (W.D. Wash. 2021); Tahuni □□ Holder, 8 F. Supp: 3d 1253, 1272 (D. Or. 2014); Campanella v. Cnty. of Monroe, 853-F. Supp. 2d 364, 384 n.7. (W.D.N.Y. 2012); Doe v. Nebraska, _-784 F, Supp. 2d 882, 926 (D. Neb. 2010). :
process clause.15 But, as the Third Circuit has explained, ! □ wo
reputation alone is not an interest protected by the Due □ _-- Process Clause. Rather, to make out.a due process _ - _ claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus =. deprivation of some additional - right or interest. We ee have referred to this as the “stigma-plus’” test. Hill, 455 F.3d at 236 (footnote, citations, and internal quotation marks omitted); see also D&D Assocs., Inc. v. Bd. of Educ. of N. Plainfield, 552. - Fed. App’x 110, 113 (8d. Cir. 2014) (“[RJeputation damage. is not ~ actionable unless it occurs in the course or is accompanied by a change or.
extinguishment of a right or status guaranteed by ‘state law or the. Constitution.”) Gnternal quotation marks omitted). “TA sine qua non of a
‘stigma-plus’ suit is that the ‘plus’ ‘must be the result of ‘state action
directly affecting the plaintiff s rights or status under the law. The fact that state action may be involved in the ‘stigma’ (.e., defamation) isnot □ of itself sufficient to maintain the action.” Sullivan v. New Jersey, 602 F. Supp. 1216, 1222 (D.N.J. 1985). = ‘Here, the “plus” proffered: by the plaintiffs amounts to emotional
15 As noted in the preceding section, the plaintiffs donotallegethat G.M. was actually excluded from attending school, and thus no protected ___.state-created property interest is at issue. See generally Oberheim, 565 . Supp. 3d 607, 615-16 (M.D. Pa. 2021).- □
. _OR. BO
distress which then allegedly resulted, only indiréctly, | in G.M’s
diminished academic performance, which the plaintiffs’ characterize as “constructive exclusion” from “meaningful attendance or participation” in. school.16 Such emotional distress or psychological harm ‘is simply “too
ethereal” to satisfy the “plus” element of the “stigma-plus” test. See Good City of Sunbury, 352 Fed. App’x 688, 692 (3d Cir. 2009); see also Baraka v.MeGreevey, 481 F.3d 187, 209 & n.17 (3d Cir. 2007); Kelly v. Borough □ of Sayreville, 107 F.3d 1078, 1076, 1078 (3d Cir. 1997). Moreover, □□□□ impact of this emotional distress on G.M’s subsequent academic = performance is neither directly connected to state action nor does it constitute the extinguishment of G.M’s right to a public education.” See
46 ‘The amended complaint includes newly added allegations that: “The reputational harm suffered by G.M., and the emotional and mental □□□ . toll it ‘has taken, has significantly. hindered -his ability to perform □□□□ _» student.’As such, he has been essentially excluded from meaningful □ attendance and/or participation in his classes and/or high school’. eurriculum.”’Am. Compl. { 92-93. Based on this, the plaintiffs now have © newly alleged that,G.M. “has been constructively excluded from’ meaningful attendance and/or participation in his classes and/or high: ~~ school curriculum.” Id.§.116. 0 2 □□ 11. Indeed, as. we have explained in the previous section of this □□ opinion, the sparse facts alleged fail to plausibly establish a hostile environment sufficient to constitute constructive expulsion or exclusion □□ of G.M. ‘from public education. We do not doubt that this unfortunate... □□ incident has caused real. mental and emotional harm: to the student, | (continued on next page) on | bo
D&D Assocs, 552 Fed. App’x at 118: Sullivan, 602 F. Sapo at 1222. The reputational damage caused by the ‘School ‘District’s allegedly. “mishandled investigation and communication with ee to GM. and □ □ December 20, 2021, incident siniply does not rise to the level of a constitutional deprivation. See Marcolongo v. Sch. Dist. of Philadelphia, No. Civ.A. 98-5196, 1999 WL 1011899, at *8 (ED. Pa. Nov. 5, 1999), aff'd, 262 F.3d 404 (3d Cir. 2001) (unpublished Accordingly, the plaintiffs’ § 1983 “stigma plus” procedural. due reer claim (Count 1m will be dismissed for failure to state a claim upon: which velief ean be granted, pursuant to Rule 12(b)(6) of the Federal. “Rubs ofCwilProedme.
Leave f Amend: or on The Third Circuit Heap erence that if a civil rights complaint is □ vulnerable to dismissal for ee to state a claim, the district panes
“permit a curative amendment, unless = amendment would “be □□ inequitable or futile. Grayson v. Mayview State Hosp., 293 F.8d 103, 108 □ □
ender performatice and other aspects of his social and educational experience, but it simply does not rise to the level of disruption or exclusion where it .satisfies. the “plus” element of □□□ “stigma-plus” procedural. due process'claim. . a □□
(8d Cir. 2002). This instruction applies equally to pro se plaintiffs and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this‘case, based on the facts alleged in the mmended complaint, it is clear that any further amendment would be futile with respect to most. of the plaintiffs’ claims, particularly in light of the plaintiffs failure
to cure the previously identified pleading deficiencies of their original complaint. With respect to the plaintiffs’ newly asserted. state-created
danger theory of recovery for their substantive due process claim, however, it is not so clear that amendment of chisvelearn would be futile. Therefore, the plaintiffs will be granted leave to file a second amended ~
complaint, with. □□□ scope of amendments limited to the plaintiffs’ state-
created danger substantive due process claim, previously set forth in
Count IV of the amended complaint.
IV. CONCLUSION For the foregoing réazons, the defendant's motion to dismiss (Doc. 16) will be granted and the amended complaint (Doc. 14) will be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The plaintiffs, however, will be granted leave to file a second amended
. _92.
complaint, subject to the limitations stated above.
An appropriate order follows. oo □□
- Dated: February _2/ 2024 Zpsa7e desprws ke ¥- a SEPH F.SARORITO, JR. □□ United States Magistrate Judge
oq.