Taylor v. Altoona Area School District et al.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SONYA TAYLOR, Administratrix of

dele The Estate of Devin J. Taylor, and in Her own Right,

Plaintiff, CIVIL ACTION NO. 2005-350]

V.

JUDGE GIBSON ALTOONA AREA SCHOOL DISTRICT, ALTOONA AREA SCHOOL BOARD, SUZANNE RITCHEY, CAROL MYERS, MICHELLE ADAMS, R.N.,

Defendants.

MEMORANDUM OPINION and ORDER OF COURT

GIBSON, J.

SYNOPSIS

This matter comes before the Court on the Defendants’ Motion to Dismiss/Motion for a More

Definite Statement, which has been filed pursuant to Federal Rules of Civil Procedure 12(b)(6) and

12(e). Document No. 8. For the reasons that follow, the Court will grant the Defendants’ Motion to

Dismiss in part and grant the Defendants’ Motion for a More Definite Statement.

BACKGROUND

The Plaintiff, Sonya Taylor [hereinafter “Taylor’] commenced this action against the

Defendants, the Altoona Area School District [hereinafter “District”], the Altoona Area School Board

[hereinafter “Board”], Suzanne Ritchey [hereinafter ““Ritchey’’], Carol Myers [hereinafter “Myers’’], and Michelle Adams, R.N. [hereinafter “Adams” ], alleging violations of the Individuals with Disabilities

in Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., the Rehabilitation Act, 29 U.S.C. § 701 et seq.,

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Pennsylvania Wrongful

Death Statute, 42 PA. C.S. § 8301, the Pennsylvania Survival Statute, 42 PA. C.S. § 8302, and the

Fourteenth Amendment to the United States Constitution. Document No. 1, pp. 12-13, [§ 67-73.

Taylor seeks redress for the alleged violations of the Fourteenth Amendment pursuant to 42 U.S.C. §

1983. The Defendants have filed a Motion to Dismiss for failure to state a claim upon which relief can

be granted with respect to Taylor’s constitutional and Pennsylvanialaw claims. Document No. 8. Since

the matter comes before the Court in this context, the allegations contained in Taylor’s complaint are

assumed to be true. Anza v. Ideal Steel Supply Corp., U.S. , 126 S. Ct. 1991, 1994, 164 L. Ed.2d

720, 726 (2006); Sutton v. United Air Lines, Inc., 527 U.S. 471, 475, 119 S. Ct. 2139, 2143, 144 L.

Ed.2d 450, 458 (1999).

According to the complaint, Devin J. Taylor was born on October 12, 1994, and was, at all times

relevant to this case, a student at Wright Elementary School. Document No. 1, p. 2, 96. Wright

Elementary School is under the administration of the Altoona Area School District. Jd. Taylor is

Devin’s natural mother and the administratrix of his estate. J/d., p. 3, 47. She served as Devin’s

primary physical and legal custodian. Jd. The Board, which consists of the elected directors of the

District, is responsible for all of the District’s policies. /d. at | 9. During the period of time at issue,

Ritchey was the Principal of Wright Elementary School, Myers was employed as a teacher at the school,

and Adams was employed as a school nurse for the District. /d. at J] 10-12. All individual defendants

have been sued in their personal capacities, and the actions or omissions allegedly committed by them

2 in their official capacities are incorporated within the claims against the District and the Board. /d. at

q 13.

Devin was identified as a student with disabilities. /d.,p.5,922. Specifically, he suffered from

asthma and related breathing problems. /d. Taylor and the Defendants developed an Individualized

Education Plan (“IEP”) in order to address all matters pertinent to Devin’s disabilities. Jd. at { 23.

Taylor worked with the District to implement a Service Plan for Devin, which provided that he be given

an inhaler before exercising, that he be able to utilize a nebulizer with the assistance of the school nurse,

and that his parents be notified promptly of any related incidents or actions. Jd. at Ff 24-25. Taylor

provided an inhaler to Myers for Devin’s use. /d. at 26. During the relevant period of time, Taylor

was enrolled in “Access,” which was a state-sponsored health care program. /d., p.6, 927. Access

provided for the acquisition of only one nebulizer, which was maintained at Devin’s home. /d.

Although Taylor asked the District to purchase an additional nebulizer for Devin’s use at school, the

District refused to do so. /d. at J] 27-28. Taylor saved the necessary funds and purchased a second

nebulizer, which was maintained in the nurse’s office at Wright Elementary School for Devin’s benefit.

Id. at § 28. According to the complaint, this nebulizer was never utilized to treat Devin’s symptoms.

Id.

The District was provided with an Asthmatic Reaction Procedure document, which detailed the

steps to be taken in the event that Devin exhibited symptoms. /d. at ¢ 29. Under circumstances in

which his breathing, pulse or consciousness were deemed to be decreasing, emergency personnel were

to be contacted and CPR was to be performed. /d. The District had in its possession all of the necessary

documentation from Devin’s mother and physician in order to facilitate the important components of Mace ~ ~

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the IEP, Service Plan and Asthmatic Reaction Procedure document. /d. at ¥ 30.

Devin was in second grade during the 2002/2003 school year. /d. at 931. On Saturday, January

18, 2003, he suffered an acute bronchial asthmatic attack. /d. He was airlifted to Children’s Hospital

in Pittsburgh, where he was hospitalized for approximately one week. Jd. Taylor went to Wright

Elementary School the following week to explain why Devin was absent. /d., p. 7, 9 32. On that

occasion, she spoke with Devin’s second-grade teacher, who informed her that Devin had experienced

an episode of arduous breathing and lethargy on Friday, January 17, 2003. /d. at 7 33. Taylor

proceeded to inform the appropriate school personnel of the situation. /d. She alleges that she was

never notified of the breathing episode and that the school nurse failed to provide treatment to Devin

in its aftermath. /d. at § 34. Apparently, he walked home after the conclusion of the school day. Id.

When Devin entered third grade, Taylor responded to a questionnaire from the District. Jd. at

436. This questionnaire, which was related to the IEP, Service Plan, and Asthmatic Reaction Procedure

document prepared for the school year, was an attempt by the District to acquire more detailed

hospitalized during the previous school year, and that he had received treatment in an emergency room

on at least ten other occasions during that same year. /d.

Myers was Devin’s third-grade teacher. /d. p. 8,938. It is alleged that, during the course of the

2003/2004 school year, Myers regularly failed to administer the prescribed inhaler to Devin before

recess and similar strenuous activities. /d. at 937. Apparently, Devin reminded her to give him the

inhaler on some occasions. Jd.

The culmination of this tragic set of circumstances began on September 24, 2003, when Devin

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informed Myers that he was feeling tired and that he was having breathing difficulties. /d., p. 8, ] 38.

Myers allegedly told Devin to lay his head on his desk and continued with regularly scheduled activities

for the other students. Jd. Myers allegedly did not administer any medication, Id. The school nurse

was not in the building at the time, and she was not contacted. Jd. at § 39. Taylor was not informed of

the situation. Jd. One of the other students noticed that Devin was turning purple. Id. at ¥ 40.

Apparently, he had stopped breathing. Jd. After approaching Devin and observing his condition, Myers

instructed another student to ask Ritchey to come to the classroom. Jd. at 941. Ritchey subsequently

arrived and was able to observe Devin’s condition. Id. at § 43.

At some point, emergency personnel were contacted. /d., p.9,944. While traveling to Wright

Elementary School, the emergency medical personnel were informed that Devin had responded

positively to resuscitative efforts and had begun to breath again. /d. at 745. Itis alleged that, when the

emergency responders arrived, Devin was still in a seated position, which was apparently not a position

well suited for resuscitative treatment. Jd. at | 46. When the medical personnel entered the classroom,

an unidentified adult, who was standing behind Devin, exclaimed, “His doctor told me to do this!’ Jd.

The medical responders immediately placed Devin on the floor and initiated resuscitative efforts. Id.

at | 47. Taylor alleges that the reported resuscitative attempts prior to the arrival of the emergency

medical personnel never actually occurred. Jd.

Taylor and the school nurse’ arrived at the school after being informed of the situation. Jd. at

' Taylor indicates in her complaint that she believes that the “unidentified adult” standing behind Devin was Myers. Document No. 1, p. 9, 7 46.

* It is unclear from the language of the complaint whether the school nurse who arrived at the scene was Adams or a different school nurse. Document No. 1, p. 9, § 48. 448. The school nurse was not scheduled to be at Wright Elementary School at that time, and she and

Taylor arrived at approximately the same time. Jd. They both arrived as emergency responders were

preparing to transport Devin to Altoona Hospital. /d. Apparently, Taylor was not aware of the severity

of the situation until she arrived at the scene and observed the presence of emergency medical vehicles

outside and the school nurse frantically approaching the vicinity. /d., pp. 9-10, at J] 49-50. Thereafter,

Devin was transported to Altoona Hospital and resuscitated. /d., p. 10, 51. He was eventually

transported to Children’s Hospital in Pittsburgh, where he died on September 27, 2003. Jd. at {§ 51-52.

An autopsy confirmed that the cause of Devin’s death was acute bronchial asthma. /d. at | 52.

Taylor alleges that the Defendants’ conduct during the period of time at issue failed to conform

to the applicable legal requirements. Specifically, she contends that the Defendants failed to adhere to

Devin’s daily medicinal regimen, that they failed to maintain adequately trained personnel to recognize

the seriousness of Devin’s condition or to initiate resuscitative efforts, that they failed to contact the

appropriate individuals about Devin’s condition in a timely manner, and that their conduct otherwise

demonstrated a reckless indifference and callous disregard for Devin’s health. /d., pp. 10-11, 9 53-66.

Taylor asserts that the Defendants’ conduct directly caused Devin’s death, and that she has suffered

emotional stress, anxiety and depression as a result of the tragedy. /d., p. 12, at § 66.

The first three counts of Taylor’s complaint allege violations of the IDEA, the Rehabilitation

Act, and the ADA. Id. at {9 67-69. Count IV alleges a violation of Devin’s rights under the Due

Process Clause of the Fourteenth Amendment, and Count V alleges a similar violation of Taylor’s own

constitutional rights. /d., p. 13, at J§ 70-71. These constitutional claims are brought before the Court

pursuant to 42 U.S.C. § 1983. Jd. In Count VI, Taylor alleges a violation of Pennsylvania’s Wrongful

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Death Statute. Jd. at {| 72. Count VII alleges a violation of Pennsylvania’s Survival Statute. Jd. at {

73.

The Defendants have filed a Motion to Dismiss Counts IV, V, VI and VII for failure to state a

claim upon which relief can be granted. Document No. 8, pp. 3-8. The Defendants are also asking the

Court to dismiss Ritchey, Myers and Adams, in their personal capacities, from this litigation. /d., pp.

2-3. In the alternative, they have filed a Motion for a More Definite Statement pursuant to Federal Rule

of Civil Procedure 12(e). /d., p.9. Finally, the Defendants seek the dismissal of the punitive damages

claims against Ritchey, Myers and Adams, in the event that the substantive claims against them are not

dismissed altogether.

DISCUSSION

A. THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

Counts IV and V of Taylor’s complaint allege violations of the Due Process Clause of the

Fourteenth Amendment. Document No. 1, p. 13, {§ 70-71. Count IV alleges a violation of Devin’s

constitutional rights, and Count V alleges a violation of Taylor’s constitutional rights. /d. Section |

of the Fourteenth Amendment states as follows:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. CONST., amend. XIV, § 1. Section 5 of the Fourteenth Amendment gives Congress the “power

to enforce, by appropriate legislation, the provisions of this article.” /d., §5. Pursuant to this legislative

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authority, as well as other grants of legislative authority, Congress has enacted 42 U.S.C. § 1983, which

states 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 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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983. Counts IV and V of Taylor’s complaint have been brought against the Defendants

pursuant to § 1983. Document No. 1, p. 13, {§ 70-71. Section 1983 does not itself create substantive

rights. Maher v. Gagne, 448 U.S. 122, 129, 100 S. Ct. 2570, 2574, 65 L. Ed.2d 653, 661 n.11 (1980).

In order to prevail in an action brought under § 1983, a plaintiff must establish an underlying violation

of federal law. The first step for the Court to take is to identify “the exact contours of the underlying

right said to have been violated.” County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S. Ct. 1708,

1714, 140 L. Ed.2d 1043, 1055 n.5 (1998).

In this case, Taylor alleges that the Defendants violated substantive due process rights enjoyed

by her and Devin under the Due Process Clause of the Fourteenth Amendment. Document No. |, p.

13, 99 70-71. Section 1983 “contains no state-of-mind requirement independent of that necessary to

state a violation of the underlying constitutional right.” Daniels v. Williams, 474 U.S. 327, 330, 106

S. Ct. 662, 664, 88 L. Ed.2d 662, 667 (1986). At the outset, it is worth noting that constitutional challenges to executive actions must be analyzed differently than challenges to legislative enactments.

In County of Sacramento v. Lewis, 523 U.S. 833, 118 8. Ct. 1708, 140 L. Ed.2d 1043 (1998), the

Supreme Court explained that, “in a due process challenge to executive action, the threshold question

is whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be

said to shock the contemporary conscience.” Lewis, 523 U.S. at 847, 118 S. Ct. at 1717, 140 L. Ed.2d

at 1058 n.8 (1998). The Court has refused to adopt reasoning that “would make of the Fourteenth

Amendment a font of tort law to be superimposed upon whatever systems may already be administered

by the States[.|” Daniels, 474 U.S. at 332, 106 S. Ct. at 665, 88 L. Ed.2d at 669,

In many instances, the conscience-shocking standard discussed in Lewis has required a showing

that the executive official acted with a purpose or intent to cause harm. Lewis, 523 U.S. at 836, 118S.

Ct. at 1711-12, 140 L, Ed.2d at 1051; Chavez v. Martinez, 538 U.S. 760, 775, 123 S. Ct. 1994, 2005,

155 L. Ed.2d 984, 999 (2003) (plurality opinion). It is clear that the protections of the Due Process

Clause, whether procedural or substantive, are not triggered by a lack of due care on the part of state

officials.’ Davidson v. Cannon, 474 U.S. 344, 348, 106 S. Ct. 668, 671, 88 L. Ed.2d 677, 683 (1986).

* Taylor’s complaint is not specific as to whether Counts IV and V are substantive or procedural due process claims. Document No. 1, p. 13, ff 70-71. Given the arguments raised by Taylor in her brief, however, it is clear that these claims are substantive due process claims. Document No. 13, pp. 9-17. She bases her argument on the conscience-shocking standard discussed in Lewis, which is applicable only in substantive due process cases. In Lewis, the Court did not address any procedural due process issues, since the respondent did not argue that California law provided no adequate postdeprivation remedy. Lewis, 523 U.S. at 840, 118 S. Ct. at 1714, 140 L. Ed.2d at 1054 n.4. In Hudson v. Palmer, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed.2d 393 (1984), the Supreme Court held that “an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural due process requirements of the Due Process Clause of the Fourteenth Amendment if'a meaningful postdeprivation remedy for the loss is available.” Hudson, 468 U.S. at 533, 104 S. Ct. at 3204, 82 L. Ed.2d at 407. In the procedural due process context, the Fourteenth Amendment does not prohibit mere deprivations, but rather deprivations without due process of law. Therefore, in the event of an unauthorized deprivation of a protected liberty or property interest by a state official, a State satisfies its constitutional obligation by providing aremedy. Albright v. Oliver, 510 U.S. 266, 281-286, 114 S. Ct. 807, 127 L. Ed.2d 114 (1994)(Kennedy, J., concurring in judgment); Zinermon v. Burch, 494 U.S. 113, 139, 110 S. Ct. 975, 990, 108 L. Ed.2d 100, 123 (1990)(O’Connor, J., dissenting); Parratt v. Taylor, 451 U.S. 527, 543-544, 101 S. Ct. 1908, 1917, 68 L. Ed.2d 420, 433-

9 “Whether the point of the conscience-shocking is reached when injuries are produced with culpability

falling within the middle range, following from something more than negligence but less than

intentional conduct, such as recklessness or gross negligence, is a matter for closer calls.” Lewis, 523

USS. at 849, 1188. Ct. at 1718, 140 L. Ed.2d at 1059 (internal quotation marks and citations omitted).

In Kaucher v. County of Bucks, 455 F.3d 418 (d Cir. 2006), the U.S. Court of Appeals for the Third

Circuit explained that the precise degree of wrongfulness necessary to reach the conscience-shocking

level depends on the specific circumstances of a particular case. Kaucher, 455 F.3d at 426.

1, Deliberate Indifference

Taylor refers to a standard known as “deliberate indifference” in various portions of her brief.

Document No. 13, pp. 9-17. Before proceeding to address the distinct theories advanced by Taylor in

support of her constitutional claims, it is necessary to categorize the various applications of the

“deliberate indifference” standard. It is not uncommon for the same legal term to be used in more than

one context. Nevertheless, where the same term is used to describe different inquiries, it is important

for litigants and courts alike to recognize and observe all relevant distinctions. For purposes relevant

to this case, the Supreme Court has used the term “deliberate indifference” in three distinct contexts.’

434 (1981). The State’s action is not complete until it either provides or refuses to provide a suitable postdeprivation remedy. Hudson, 468 U.S. at 533, 104 S. Ct. at 3204, 82 L. Ed.2d at 407-08. Since Taylor’s arguments focus on the conscience-shocking standard discussed in Lewis and not on the lack of postdeprivation remedies available under Pennsylvania law, the Court construes Counts IV and V as alleging only substantive due process violations. In any event, while Taylor would not have to show that the Defendants’ conduct was “shocking to the conscience” in order toestablish a deprivation for procedural] due process purposes, she would still need to show more than mere negligence. Daniels, 474 U.S. at 334-36, 106 S. Ct. at 666-67, 88 L. Ed.2d at 669-71. For this reason, it is doubtful that Counts IV and V would survive the Defendants’ Motion to Dismiss even if they were construed to allege procedural due process violations.

‘In DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed.2d 249 (1989), the Supreme Court did not reach the respondents’ “alternative argument that the individual state actors lacked the requisite ‘state of mind’ to make out a due process violation” because it determined that those actors had no affirmative

10 The first category of deliberate indifference cases are those which govern the liability of a

municipality “for failure to train an employee who causes harm by unconstitutional conduct for which

he would be individually liable.” Zewis, 523 U.S. at 850, 118 S. Ct. at 1718, 140 L. Ed.2d at 1060 n.10;

Canton v. Harris, 489 U.S. 378, 388-89, 109 S, Ct. 1197, 103 L. Ed.2d 412 (1989). This concept has

evolved from the Court’s decision in Monell v. New York City Department ofSocial Services, 436 U.S.

658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed.2d 611, 636 (1978), which held that municipalities may not

be held liable under § 1983 solely on the basis of a respondeat superior theory. Although

municipalities are “persons” within the meaning of § 1983, “Congress did not intend to impose liability

on a municipality unless deliberate action attributable to the municipality itself is the ‘moving force’

behind the plaintiff's deprivation of federal rights.” Bd. ofthe County Comm’rs of Bryan County v.

Brown, 520 U.S. 397, 400, 1178S. Ct. 1382, 1386, 137 L. Ed.2d 626, 636 (1997) (emphasis in original).

The Supreme Court, in Collins y. City of Parker Heights, 503 U.S. 115, 112 S. Ct. 1061, 117 L. Ed.2d

261 (1992), elaborated on the “deliberate indifference” standard in the municipal liability context.° The

Court emphasized the difference between the standard for establishing municipal liability and the

duty to protect one private individual from another in any event. DeShaney, 489 U.S. at 202, 109 S.Ct. at 1007, 103 L. Ed.2d at 263 n.10. Although the Defendants in the instant case rely on DeShaney in order to establish t hat no “special custodial relationship” existed between the Defendants and Devin, they do not specifically argue that they had no constitutional duty to address Devin’s medical needs. Document No. 9, p. 9. For this reason, the Court has no occasion to consider the broader question of whether an omission, without more, can ever constitute conscience-shocking conduct outside of the custodial context. The question is a complicated one because the resolution of the federal constitutional issue, in some contexts, depends on the precise contours of state law. Town of Castle Rock v. Gonzales, U.S., 125 S. Ct. 2796, 2803-10, 162 L. Ed.2d 658, 669-77 (2005). In the present case, the Court must discuss the applicable levels of culpability because, under Third Circuit precedent, the resolution of Taylor’s “state-created danger” argument depends, in part, on whether “a state actor acted with a degree of culpability that shocks the conscience[.]” Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006).

* The Court points this out because the parties in the instant case appear to be confusing the standard for establishing municipal liability under § 1983 with the standard for establishing the underlying violation of the Due Process Clause. Document No. 9, pp. 14-16; Document No. 13, pp. 14-16.

1] standard for establishing the underlying constitutional violation. Collins, 503 U.S. at 122, 112 S. Ct.

at 1067, 117 L. Ed.2d at 271. Referring to its prior decision in Canton v. Harris, 489 U.S. 378, 109 S.

Ct. 1197, 103 L. Ed.2d 412 (1989), the Court stated as follows:

We did not suggest that all harm-causing municipal policies are actionable under § 1983 or that all such policies are unconstitutional. Moreover, we rejected the city’s argument that only unconstitutional policies can create municipal liability under the statute. Jd. at 387. Instead, we concluded that if a city employee violates another’s constitutional rights, the city may be liable if it had a policy or custom of failing to train its employees and that failure to train caused the constitutional violation. In particular, we held that the inadequate training of police officers could be characterized as the cause of the constitutional tort if-and only if-the failure to train amounted to “deliberate indifference” to the rights of persons with whom the police come into contact. Jd. at 388. Although the term “deliberate indifference” has been used in other contexts to define the threshold for finding a violation of the Eighth Amendment, see Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed.2d 251, 97 S. Ct. 285 (1976), as we have explained, that term was used in the Canton case for the quite different purpose of identifying the threshold for holding a city responsible for the constitutional torts committed by its inadequately trained agents.

Collins, 503 U.S. at 123-24, 112 S. Ct. at 1067-68, 117 L. Ed.2d at 272 (footnotes omitted).

Accordingly, the cases discussing the deliberate indifference standard for purposes of municipal liability

have nothing to do with whether the allegations contained in Taylor’s complaint are sufficient to

establish a violation of the Fourteenth Amendment.® Their relevance is limited to the question of

whether the District can be held liable for any constitutional violations committed by its employees.

® The confusion of the parties in this case regarding the distinction between these separate inquiries may be due, in part, to the language of the U.S. Court of Appeals for the Third Circuit in Brown v. Commonwealth of Pennsylvania Department ofHealth Emergency Medical Services Training Institute., 318 F.3d 473 (3d Cir. 2003). In Brown, the Court of Appeals engaged in a cursory review of these standards without highlighting the distinction between them. Brown, 318 F.3d at 479. It appears that the purpose of the language in Brown was to explain the level of culpability typically associated with the deliberate indifference standard. /d¢. In any event, the Supreme Court’s language in Co/lins makes it clear that the standard for imposing liability on a municipality under § 1983 should not be confused with the standard for establishing a violation of the Due Process Clause. Coflins, 503 U.S. at 123-24, 112 S. Ct. at 1067-68, 117 L. Ed.2d at 272.

12 oe ve a ape rat5 ‘ores ai eee

To reach that step, of course, Taylor must first establish that a constitutional violation occurred.

The second category of deliberate indifference cases are those discussing the standard for

establishing an Eighth Amendment violation.’ In Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L.

Ed.2d 251 (1976), the Supreme Court held that the Eighth Amendment requires prison authorities to

provide medical care for those who are incarcerated. Estelle, 429 U.S. at 103, 97S. Ct. at 290, 50 L.

Ed.2d at 259. The Court explained that “deliberate indifference” to the serious medical needs of

prisoners constituted the “unnecessary and wanton infliction of pain” prohibited by the Eighth

Amendment. Jd, 429 U.S. at 104, 97S. Ct. at 291, 50 L. Ed.2d at 260. The Court went on to state as

follows:

{I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment.

Id., 429 U.S. at 105-06, 97 S. Ct. at 292, 50 L. Ed.2d at 261. In Hope v. Pelzer, 536 U.S. 730, 122 S.

Ct. 2508, 153 L. Ed.2d 666 (2002), the Court noted that “deliberate indifference to the inmates’ health

or safety” is a subjective state of mind that may be inferred from the fact that “the risk of harm is

obvious.” Hope, 536 U.S. at 738, 122 8. Ct. at 2514, 153 L. Ed.2d at 677.

’ Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001), which is cited in Taylor’s brief, falls into this second category. Document No. 13, p. 15. Because Taylor does not allege a violation of the Eighth Amendment, her reliance on Beers-Capitol is misplaced.

13 The cases discussing the deliberate indifference standard in the Eighth Amendment context are

not controlling in this case. It is, of course, true that when state officials violate the Eighth

Amendment’s Cruel and Unusual Punishment Clause, they violate the Due Process Clause of the

Fourteenth Amendment. United States v. Georgia, U.S. , 126 S. Ct. 877, 881, 163 L. Ed.2d 650,

658 (2006). Nonetheless, Taylor’s complaint alleges violations of the Due Process Clause which are

different from those alleged by prisoners in the Eighth Amendment context. While the cases discussing

the “deliberate indifference” standard with respect to the Eighth Amendment may help to explain the

meaning of that term, and the precise level of culpability associated with it, they do not establish that

the standard itself is specifically applicable to this case.

The third category of cases discussing this level of culpability are those in which deliberate

indifference to the welfare of an individual is itself sufficient to establish a violation of the Due Process

Clause. Lewis, 523 U.S. at 849-50, 118 S. Ct. at 1718-19, 140 L. Ed.2d at 1059-60. Generally

speaking, this category of cases includes those in which the factual situation is analogous to those

typically found in the Eighth Amendment context. /d. For instance, in City ofRevere v. Massachusetts

General Hospital, 463 U.S, 239, 103 8. Ct. 2979, 77 L. Ed.2d 605 (1983), the Supreme Court explained

that the Due Process Clause required the City of Revere to provide medical care to an individual who

was injured while being apprehended by police. City ofRevere, 463 U.S. at 243-45, 103 S. Ct. at 2983,

77 L. Ed.2d at 611. Since no formal adjudication of guilt had occurred, the protections of the Eighth

Amendment were not applicable. /d Nevertheless, the Court concluded that the rights of a pretrial

detainee were “at least as great as the Eighth Amendment protections available to a convicted prisoner.”

Id., 463 U.S. at 244, 103 S. Ct. at 2983, 77 L. Ed.2d at 611. State officials who are deliberately

14 ao op om C fresh afi m4 rw

indifferent to the medical needs of a pretrial detainee violate the Due Process Clause, just as state

officials who are deliberately indifferent to the medical needs of an incarcerated convict violate the

Cruel and Unusual Punishment Clause.’

Taylor does not allege facts which resemble those found in the prison context. The facts alleged

in her complaint are not analogous to those which allege violations of the Eighth Amendment. The

inquiry, however, does not end there. The Supreme Court has never expressly limited the category of

cases in which deliberate indifference suffices to establish a Fourteenth Amendment violation to include

only those in which the plaintiff alleges facts analogous to those typically found in the prison setting.

In Lewis, the Court left open the possibility that this category is broad enough to encompass other

scenarios. Lewis, 523 U.S. at 850, 118 S. Ct. at 1718-19, 140 L. Ed. 2d at 1060. The Court explained

that “[d]eliberate indifference that shocks in one environment may not be so patently egregious in

another,” and that its “concern with preserving the constitutional proportions of substantive due process

demands an exact analysis of circumstances before any abuse of power is condemned as conscience-

shocking.” Jd., 523 U.S. at 850, 118 S. Ct. at 1718, 140 L. Ed.2d at 1060.

In determining the appropriate level of culpability applicable in the instant case, this Court is

guided by the Supreme Court’s discussion in Farmer v. Brennan, 511 U.S. 825, 1148. Ct. 1970, 128

L. Ed.2d 811 (1994). Farmer was a case involving the Cruel and Unusual Punishment Clause.

* Even in the prison context, the deliberate indifference standard is not automatically applicable. In Whitley v. Albers, 475 U.S. 312, 106 8S. Ct. 1078, 89 L. Ed.2d 251 (1986), the Supreme Court held that where a prison security measure is undertaken to resolve a disturbance that poses serious risks to the safety of inmates and prison officials, the question of “whether the measure taken inflicted unnecessary and wanton pain and suffering turns on whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.” Whitley, 475 U.S. at 320-21, 106 S. Ct. at 1085, 89 L. Ed.2d at 261 (internal quotation marks omitted).

15 ps ue ny m4 r

Deliberate indifference lies “somewhere between the poles of negligence at one end and purpose or

knowledge at the other[.|” Farmer, 511 U.S. at 836, 114 S. Ct. at 1978, 128 L. Ed.2d at 824. “[A]cting

or failing to act with deliberate indifference to a substantial risk of serious harm to [an individual] is

the equivalent of recklessly disregarding that risk.” Jd, 511 U.S. at 836, 1148S. Ct. at 1978, 128 L.

Ed.2d at 825. In Farmer, the Supreme Court explained the difference between the standard of

“recklessness” associated with the civil law and that associated with the criminal law. Id. “The civil

law generally calls a person reckless who acts or (if the person has a duty to act) fails to act in the face

of an unjustifiably high risk of harm that is either known or so obvious that it should be known.” Jd.

On the other hand, the criminal law “generally permits a finding of recklessness only when a person

disregards a risk of harm of which he is aware.” Jd, 511 U.S. at 837, 114 S. Ct. at 1978-79, 128 L.

Ed.2d at 825. Moving on to decide which standard was applicable in Farmer, the Court stated as

follows:

We reject petitioner’s invitation to adopt an objective test for deliberate indifference. We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. This approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual “conditions”; it outlaws cruel and unusual “punishments.” An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. The common law reflects such concerns when it imposes tort liability on a purely objective basis. But an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.

16 mele

Id., 511 U.S. at 837-38, 114 S. Ct. at 1979, 128 L. Ed.2d at 825-26 (citations omitted).

The Farmer standard is relevant for purposes of the instant case because of the language in a

few recent decisions of the U.S. Court of Appeals for the Third Circuit. In Nicani v. Morra, 212 F.3d

798 (3d Cir, 2000), the Court of Appeals noted that, after Farmer, federal appellate courts had “shown

a tendency to apply a purely subjective deliberate indifference standard” outside of the Eighth

Amendment context.’ Nicani, 212 F.3d at 812, n. 10. Very recently, in Kaucher, the Court of Appeals

discussed the applicability of the Farmer standard in cases involving the Due Process Clause. Kaucher,

455 F.3d at 428 n.5. The Court of Appeals expressed its reluctance to apply an objective standard in

the substantive due process context, since doing so would move the concept of deliberate indifference “closer to the pole of negligence.” Jad. For this reason, the Court is convinced that the application of

an objective deliberate indifference standard would be inappropriate in the present case. It is unclear

whether a subjective showing of deliberate indifference would be sufficient for establishing a violation

of the Due Process Clause under these circumstances, since the actual inquiry is whether Taylor’s

complaint alleges conscience-shocking conduct. Lewis, 523 U.S. at 854-55, 118 S. Ct. at 1720-21, 140

L. Ed.2d at 1062-63. Nevertheless, the Court assumes arguendo that Taylor could properly allege a

violation of the Fourteenth Amendment by showing that the Defendants were deliberately indifferent,

in the subjective sense, to the medical needs of Devin prior to the point at which the situation became

an emergency.

? Grant v. Wallingford Bd. ofEduc., 195 F.3d 134, 141 n.6 (2d Cir. 1999) (rejecting “should have known” standard in a due process action challenging the conduct of school officials and other defendants in responding to complaints of racial harassment); Qian v. Kautz, 168 F.3d 949, 955-56 (7" Cir. 1999) (applying the Farmer standard in a case involving a detainee’s rights under the Due Process Clause); Hare v. City of Corinth, 74 F.3d 633, 648 (5" Cir. 1996) (same).

17 When it became apparent that Devin was in imminent danger, the situation gravitated closer to

an emergency situation akin to that in Lewis, in which there was little or no time for actual deliberation.

Lewis, 523 U.S. at 851, 118 S.Ct. at 1719, 140 L.Ed.2d at 1060. The Court of Appeals discussed the

appropriate level of culpability applicable in the medical emergency context in Ziccardi v. City of

Philadelphia, 288 F.3d 57 (d Cir. 2002). In Ziccardi, the Court of Appeals explained that, in the

context of a medical emergency, a plaintiff must show more than “subjective deliberate indifference”

as that term is defined in Farmer. Ziccardi, 288 F.3d at 65. While it is not necessary for a plaintiff to

prove an actual intent to cause harm under these circumstances, the applicable precedents require “proof

of something less than knowledge that the harm was practically certain but more than knowledge that

there was a substantial risk that the harm would occur.” Jd. at 66; Rivas v. City ofPassaic, 365 F.3d

181, 195 (3d Cir. 2004). In the context of the present case, the alleged omissions of the Defendants

during the medical emergency can only be said to be conscience-shocking if the Defendants

“consciously disregarded, not just a substantial risk, but a great risk that serious harm would result”

from their failure to act.'° Ziccardi, 288 F.3d at 66 (emphasis added).

2. Application of the Conscience-Shocking Standard

Taylor’s complaint alleges a series of failures by the Defendants prior to September 24, 2003.

' It is arguable that Ziccardi is inapplicable in this case because Taylor does not allege that the Defendants’ actions caused Devin’s death. Instead, she alleges that their omissions caused his death. Document No. 1, pp. 10-11, J§ 53-61. In Ziccardi, the plaintiff alleged that the defendants had taken affirmative actions which turned out to be harmful to the decedent’s health. Ziccardi, 288 F.3d at 60. Whether this standard is applicable in an omission case is questionable. Nevertheless, the Court assumes arguendo that Taylor could allege a violation of the Due Process Clause without showing that the Defendants acted with an intent to harm Devin, and that the appropriate showing is the more relaxed standard discussed in Ziccardi. Even under this standard, her complaint does not allege facts sufficient to state a constitutional violation, since she does not allege that the Defendants’ omissions evidenced a “conscious disregard” for the fact that their conduct would cause a “great risk of harm” to Devin’s health.

18 She alleges that the District refused to purchase a nebulizer, that the relevant school officials failed to

inform her of Devin’s January 17, 2003, “episode of arduous breathing and lethargy,” and that Myers

regularly failed to administer Devin’s medication during the course of the school year. Document No.

1, pp. 66-8, 99 28, 33,37. Since these events occurred prior to the onset of the medical emergency, the

applicable standard of culpability is the subjective deliberate indifference standard discussed in Farmer.

Under this standard, Taylor must allege that the Defendants were “aware of facts from which the

inference could be drawn that a substantial risk of harm exist[ed], and [that they actually drew] the

inference.” Farmer, 511 U.S, at 837, 1148S. Ct. at 1979, 128 L. Ed.2d at 825. The allegation that the

District refused to purchase a nebulizer cannot be fairly read to allege that the District was aware that

its refusal alone could create a substantial risk of serious harm. The only reasonable construction of this

averment is that the District refused to bear the cost associated with the purchase of the nebulizer, and

that the District expected Taylor to pay for it herself.'' The failure of the school officials to inform

Taylor of Devin’s January 17, 2003, episode did not evidence the Defendants’ awareness of a

substantial risk of serious harm. Although Taylor alleges that Devin’s teacher “expressed her

realization that the child’s symptoms during school were related to his eventual hospitalization,” this

realization occurred only in hindsight. Document No. 1, p. 7,33. This conversation occurred when

Taylor informed the teacher that Devin was in the hospital. /d. At that point, the relevant omission had

already occurred. Taylor’s complaint cannot be read to allege that any of the Defendants had an actual

'' Taylor alleges that she ultimately purchased the nebulizer herself, but that it was never utilized to treat Devin’s symptoms. Document No. 1, p. 6, 928. Nevertheless, she fails to identify a single situation in which the nebulizer should have been used.

19 awareness of a substantial risk of harm at the time of the omission.” Taylor’s averment regarding the

failure of Myers to administer Devin’s medication alleges nothing more than negligence. Taylor’s

complaint states that “the child was required to remind the teacher of the medication in order to receive

appropriate treatments.” /d., p. 8,937. No allegation is made that Myers refused to administer Devin’s

medication. The fact that Myers forgot about the medication does not indicate that she was aware of

a substantial risk of harm. Since negligence is categorically below the threshold for establishing a

violation of the Due Process Clause, a lapse in memory cannot, in any circumstance, qualify as

conscience-shocking. Davidson, 474 U.S. at 348, 106 S. Ct. at 671, 88 L. Ed.2d at 683.

When Devin informed Myers that he was having difficulty breathing, Myers told him to lay his

head on his desk. Document No. 1, p. 8, § 38. Taylor alleges that Myers “failed to recognize and/or

appreciate” the significance of Devin’s symptoms. /d., pp. 10-11, 4 56. This averment implicitly

acknowledges that Myers drew no inference that a substantial risk of serious harm to Devin’s health

existed. Consequently, under the subjective deliberate indifference standard, Taylor’s complaint does

not allege that the Defendants engaged in conscience-shocking conduct with respect to Devin prior to

the commencement of the medical emergency.

When another student informed Myers that Devin was turning purple, the situation moved into

the emergency scenario discussed in Ziccardi. At that point, any act or omission alleged by Taylor

could only be deemed conscience-shocking upon a showing that the relevant Defendants “consciously

' In addition to alleging that she was never informed of Devin’s breathing episode of January 17, 2003, Taylor alleges that the school nurse failed to provide treatment to Devin on that occasion. Document No. I, p. 7, § 34. It is not clear, however, whether Taylor’s reference to “treatment” refers to the use of the nebulizer, or simply medical treatment in general.

20 disregarded, not just a substantial risk, but a great risk that serious harm would result[.]” Ziccardi, 288

F.3d at 66. Taylor alleges that, despite claims by the Defendants to the contrary, they did not initiate

efforts to resuscitate Devin after discovering his condition. Document No. 1, p. 11,960. Nevertheless,

she does not allege that they consciously disregarded a great risk that their failure to begin resuscitative

efforts would itself result in serious harm to Devin. After all, Taylor avers that the appropriate

emergency medical officials were contacted. Document No. 1, p. 9,944. The complaint, assumed to

be true and reasonably construed in the manner most favorable to Taylor, alleges nothing more than

woefully incompetent conduct on the part of the Defendants. Whatever might be said about the

Defendants’ duties under various legal doctrines, it is fair to say that their conduct did not violate the

Due Process Clause.

3. The Specific Theories Addressed by the Parties

In Lewis, the Supreme Court explained that “the constitutional concept of conscience-shocking

duplicates no traditional category of common-law fault, but rather points clearly away from liability,

or clearly toward it, only at the ends of the tort law’s spectrum of culpability.” Lewis, 523 U.S. at 848,

1188. Ct. at 1717, 140 L. Ed.2d at 1058-59. Itis for this reason that all cases falling between these two

ends turn on fact-specific distinctions. The present case is no exception. With that in mind, the Court

now turns to the context-specific arguments made by Taylor.

Taylor contends that the Defendants had a “special custodial relationship” with Devin and that,

because of that relationship, the Defendants were constitutionally required to come to Devin’s aid.

Document No. 13, pp. 11-14. This theory has its genesis in DeShaney v. Winnebago County

Department of Social Services, 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed.2d 249 (1989), in which the

21 Supreme 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.” DeShaney, 489 U.S. at 199-200, 109 S. Ct. at 1005, 103 L. Ed.2d at

261. In support of her argument, Taylor relies on the decisions of the Court of Appeals in Black v.

Indiana Area School District, 985 F.2d 707 (3d Cir. 1993), D.R. v. Middle Bucks Area Vocational

Technical School, 972 F.2d 1364 (3d Cir. 1992), and Stoneking v. Bradford Area School District, 882

F.2d 720 (3d Cir. 1989). It is difficult to fathom how these cases help Taylor’s argument more than

they hurt it. In all three cases, the Court of Appeals made it clear that Pennsylvania’s compulsory

school attendance law did not transform the relationship between students and schools into a custodial

relationship for purposes of the DeShaney standard. Black, 985 F.2d at 713-14; D.R., 972 F.2d at 1370-

72; Stoneking, 882 F.2d at 723-24. In D.R., the Court of Appeals stated as follows:

By requiring D.R. to attend assigned classes at Middle Bucks as part of her high school educational program, and authorizing officials to engage in disciplinary control over the students, the school defendants did not restrict D.R.’s freedom to the extent that she was prevented from meeting her basic needs. Thus, the school defendants’ authority over D.R. during the school day cannot be said to create the type of physical custody necessary to bring it within the special relationship noted in DeShaney, particularly when their channels for outside communication were not totally closed.

D.R., 972 F.2d at 1372 (citation omitted). Taylor does not argue that Pennsylvania law prevented her

from taking Devin out of the school building for the purpose of attending to his medical needs. Under

'? As noted earlier, Taylor confuses the standard for holding a municipality liableunder § 1983 for the acts of its employees with the standard for establishing an underlying constitutional violation. Her reliance on Stoneking is misplaced. Document No. 13, p. 14. The language in Stoneking upon which she relies deals with the standard for determining whether a school district can be held liable for constitutional violations committed by its employees. Stoneking, 882 F.2d at 725. It has absolutely nothing to do with whether Taylor’s complaint alleges a violation of the Due Process Clause. Collins, 503 U.S. at 123-24, 112 S. Ct. at 1067-68, 117 L. Ed.2d at 272.

22 pee ord popes

Pennsylvania law, “a parent is justified in withdrawing [her] child from a school where the health and

welfare of the child is threatened.” Zebra v. Pittsburgh Sch. Dist., 296 A.2d 748, 751 (Pa. 1972).

Taylor does not allege that the Defendants affirmatively prevented Devin from seeking medical

assistance on his own. For these reasons, Devin was not in custody for purposes of the standard

discussed in DeShaney.

Taylor argues that the IDEA placed an affirmative duty on the Defendants to safeguard Devin’s

welfare while he was at school. Document No. 13, p. 13. For purposes of the Defendants’ Motion to

Dismiss, this argument 1s unavailing. The question before the Court is whether the Defendants had a

constitutional obligation to ensure that Devin was afforded adequate medical care. The Supreme Court

has consistently held that statutory and common-law protections do not transform ordinary legal

doctrines into constitutional mandates.'* Town ofCastle Rock v. Gonzales, U.S., 125 8. Ct. 2796,

2810, 162 L. Ed.2d 658, 676-77 (2005); DeShaney, 489 U.S. at 203, 109 S. Ct. at 1007, 103 L. Ed.2d

at 264.

Taylor also argues that her complaint alleges the elements necessary to state a due process claim

pursuant to the “state-created danger” theory. In Bright v. Westmoreland County, 443 F.3d 276 (3d Cir.

2006), the Court of Appeals enumerated the elements necessary for establishing a constitutional

violation on the basis of this theory. Bright, 443 F.3d at 281. Inorder to state a substantive due process

‘4 The Court acknowledges that conduct which demonstrates an indifference to the needs of a disabled child may be more likely to reach the conscience-shocking threshold than conduct which demonstrates a similar indifference to the needs of a nondisabled child, given the fact-specific nature of the inquiry. Lewis, 523 U.S. at 848-50, 1188. Ct. at 1717-19, 140 L. Ed.2d at 1058-60. Taylor’s argument, however, is not based on the conscience-shocking standard. Instead, she purports to rely on the IDEA for the purpose of establishing the existence of a custodial relationship between Devin and the Defendants. Document No. 13, pp. 11-14. Whether the IDEA imposed a statutory duty on the Defendants to attend to Devin’s medical needs has nothing to do with whether Devin was incustody for purposes of the DeShaney standard.

23 claim under this theory, a plaintiff must show that: (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 plaintiff or that

rendered the plaintiff more vulnerable to danger than had the State not acted at all." /d. at 281.

Assuming arguendo that Taylor’s complaint satisfies the first and third elements necessary to

establish a “state-created danger” claim under the Due Process Clause, it clearly fails to satisfy the

second and fourth elements. For the reasons discussed earlier, Taylor’s complaint does not allege that

any of the Defendants acted with a conscience-shocking level of culpability.'° Therefore, she cannot

satisfy the second “state-created danger” element. Furthermore, with respect to the fourth element,

'S Taylor states these elements ina slightly different way, relying on Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996). Kneipp was decided before Lewis. The second element described in Kneipp required the plaintiff to demonstrate that the state actor exhibited a “willful disregard” for the safety of the plaintiff. Kneipp, 95 F.3d at 1208. In the aftermath of Lewis, it is now clear that a plaintiff must show that the state actor’s level of culpability was conscience-shocking. Lewis, 523 U.S. at 836, 118 S. Ct. at 1711-12, 140 L. Ed.2d at 1051. The recent decision of the Court of Appeals in Bright incorporates the proper standard, Bright, 443 F.3d at 281.

8 In Sanford v. Stiles, 456 F.3d 298 (3d Cir. 2006), the Court of Appeals held that “in a state-created danger case, when a state actor is not confronted with a hyperpressurized environment but nonetheless does not have the luxury of proceeding in a deliberate fashion, the relevant question is whether the officer consciously disregarded a great risk of harm.” Sanford, 456 F.3d at 310 (citations omitted). This standard incorporates the Ziccardi test “insofar as it requires that the defendants disregard a great risk of serious harm rather than a substantial risk.” Jad. This Court’s earlier discussion about the applicable level of culpability deals with Ziccardi rather than Sanford. This is because the earlier discussion dealt more generally with the facts of this case, whereas the Sanford standard is specifically tailored for state-created danger cases. Since Taylor advances multiple theories in support of her complaint, rather than a single theory, the Court’s discussion about the applicable level of culpability was not limited to that associated with only one theory. Furthermore, with respect to the period of time after Myers became aware of the fact that Devin was turning purple, the Court assumes arguendo that the Ziccardi and/or Sanford standard is applicable. Nevertheless, it is at least arguable that the situation was hyperpressurized at that point, thereby requiring Taylor to show that the Defendants acted (or failed to act) with an intent to cause harm. /d. at 309.

24 “liability under the state-created danger theory is predicated upon the states’ affirmative acts which

work to the plaintiffs’ detriments in terms of exposure to danger.” /d. at 282 (emphasis in original).

“Tt is misuse of state authority, rather than a failure to use it, that can violate the Due Process Clause.”

Id. In Bright, the Court of Appeals explained that it had “never found a state-created danger claim to

be meritorious without an allegation and subsequent showing that state authority was affirmatively

exercised.” Id.

Taylor’s complaint alleges no affirmative act on the part of the Defendants which contributed

to Devin’s death. Instead, it alleges a long series of omissions. Document No. 1, pp. 5-12, [J 21-66.

Under Bright, a plaintiff cannot establish a substantive due process violation pursuant to the “state-

created danger’ theory without alleging affirmative acts on the part of a defendant. Since Taylor fails

to allege a single affirmative act which contributed to Devin’s death, her complaint fails to state a claim

upon which relief can be granted."’

Taylor also argues that her complaint states a “failure to train” claim under § 1983. Document

No. 13, pp. 14-15. She relies on Reitz v. County of Bucks, 125 F.3d 139 (3d Cir. 1997) for the

proposition that “the inadequacy of training may itself serve as the basis for liability, where it amounts

to deliberate indifference.” Document No. 13, p. 15. She contends that, in order to be successful, she

'7 The Court acknowledges that Taylor’s complaint, construed in the manner most favorable to her, alleges that one of the Defendants gave false information to the emergency medical providers when they were traveling to the school. Document No. 1, p. 9, 745. This averment alleges that somebody reported that resuscitative efforts had been employed, and that Devin had responded by breathing. /d. The complaint further alleges that no such resuscitative efforts had actually been initiated. /d. at 953. However, the complaint does not allege that this false report itself contributed to Devin’s death. In fact, it alleges that the emergency medical responders immediately began resuscitative efforts after arriving at the school. Id.at]47. Absent an allegation that the false report somehow caused Devin’s death, by preventing the first responders from acting or otherwise, Taylor’s false report averment cannot save her due process claims from the Defendants’ Motion to Dismiss.

25 se bed —

must establish that the Defendants were aware of, and disregarded, an excessive risk to Devin’s health

and safety. Id. The wording of Taylor’s argument itself convinces the Court that she fundamentally

misunderstands the “failure to train” inquiry.

In Reitz, the Court of Appeals stated as follows:

Establishing municipal liability on a failure to train claim under § 1983 is difficult. A plaintiff pressing a § 1983 claim must identify a failure to provide specific training that has a causal nexus with their injuries and must demonstrate that the absence of that specific training can reasonably be said to reflect a deliberate indifference to whether the alleged constitutional deprivations occurred.

Reitz, 125 F.3d at 145 (emphasis added). The language in Reitz discussing a municipality’s liability for

failing to train its employees has nothing to do with whether a plaintiff can establish an underlying

violation of the Constitution. In order to defeat the Defendants’ Motion to Dismiss, Taylor must first

establish a violation of the Due Process Clause. If she were able to show that an employee of the

District violated the constitutional rights of either Devin or herself, the “failure to train” line of cases

would be relevant for the purpose of determining whether the District could be held liable under § 1983

for the failure to train its employees. The language in Reitz regarding the “failure to train” theory speaks

to a municipality’s duty to train its employees for the purpose of preventing constitutional violations.

It does not speak to the question of whether the District had a duty to train its employees for the purpose

of preventing Devin’s death.

This point is further illustrated by Beers-Capitol v. Whetzel, 256 F.3d 120 (3d Cir. 2001), which

is also cited in Taylor’s brief. Document No. 13, p. 15. In Beers-Capitol, the Court of Appeals

discussed the standard for holding a supervisor in a juvenile detention facility liable for Eighth

26 Amendment violations committed by his subordinates. The Court of Appeals explained this standard

as follows:

[T]o hold a supervisor liable because his policies or practices led to an Eighth Amendment violation, the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1) the existing policy or practice created an unreasonable risk of the Eighth Amendment injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the policy or practice.

Beers-Capitol, 256 F.3d at 134 (emphasis added). The injury for which the supervisor could be held

liable was the constitutional violation. Taylor’s “failure to train” argument confuses the municipality

liability standard with the standard governing the underlying constitutional inquiry. In order to hold the

District liable under Reitz and Beers-Capitol, Taylor would have to show that an employee of the

District committed a constitutional violation which could have been prevented by adequate training.

Itis not enough for her to show that, with proper training, the District’s employees could have prevented

Devin’s death. Although the omissions of the District’s employees may have been tortious under any

of a number of statutory or common-law mandates, it is clear that they were not unconstitutional."

For these reasons, Taylor’s complaint cannot be reasonably construed to allege a violation of

the Due Process Clause of the Fourteenth Amendment. Accordingly, pursuant to Federal Rule of Civil

Procedure 12(b)(6), the Court must grant the Defendants’ Motion to Dismiss with respect to Counts IV

'8 For this reason, Taylor’s argument that the District “maintained a consistent pattern or policy deliberately indifferent to the needs of children suffering [from] asthma” is unavailing. Document No. 13, p. 16. The dispositive question is not whether the District was deliberately indifferent to the medical needs of its students, but rather whether the District’s deliberate indifference to the constitutional rights of its students was the “moving force” behind an actual constitutional violation. Bd. of the County Comm'rs ofBryan County v. Brown, 520 U.S. 397, 400, 1175S. Ct. 1382, 1386, 137 L. Ed.2d 626, 636 (1997).

27 and V of Taylor’s complaint.

When a motion to dismiss claims set forth in a complaint is granted pursuant to Feb. R. CIv. P.

12(b)(6) , a district court will normally provide the plaintiff the opportunity to amend the complaint at

least once to correct any defects unless it is clear that any further amendment cannot provide the

necessary corrections. Heller v. Fulare, 371 F. Supp. 2d 743, 749 (W.D. Pa. 2005) (citing CHARLES

ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE § 1357 (3d ed. 2004)

(footnotes omitted)). Accordingly, Plaintiff will be granted leave to file an amended complaint

regarding Counts IV and V within twenty days of the date of the Order entered as a result of this

Memorandum Opinion.

B. THE ADDITIONAL MATTERS RAISED IN THE MOTION TO DISMISS

The Defendants, in their Motion to Dismiss, seek the dismissal of Counts VI and VII of Taylor’s

complaint and the dismissal of all punitive damages claims against the individual defendants.

Document No. 8, pp. 7-9, {f 33-46. They also seek the dismissal of the claims against Ritchey, Myers

and Adams, who have been sued in their personal capacities. /d., pp. 3-4, 9] 2-10. In the alternative,

the Defendants seek a more definite statement with respect to the allegations against Ritchey, Myers

and Adams. /d., pp. 9-10, 9] 47-53. The Court now turns to these additional matters.

l. The Pennsylvania Law Claims

In Counts VI and VII of her complaint, Taylor seeks damages for Devin’s death pursuant to 42

Pa.C.S. §§ 8301 and 8302. Document No. 1, p. 13, {| 72-73. This Court has supplemental jurisdiction

over these claims pursuant to 28 U.S.C. § 1367(a). In their Motion to Dismiss, the Defendants seek the

dismissal of these Pennsylvania law claims on the ground that they are barred by Pennsylvania’s

28 Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541 et seg. Document No. 9, pp. 19-20.

“[L]ocal agencies in Pennsylvania generally are immune from suit for damages caused by an act

of the local agency or the negligence of the agency’s employees.” Walker v. Eleby, 842 A.2d 389, 392

(Pa. 2004). In light of the fact that the Pennsylvania General Assembly sought to insulate political

subdivisions from exposure to tort liability when it enacted the Political Subdivision Tort Claims Acct,

the exceptions to immunity found in 42 Pa.C.S. § 8542 must be narrowly construed. Jd. In the instant

case, the Defendants argue that liability under §§ 8301 and 8302 is foreclosed by § 8541. Document

No. 9, pp. 19-20. Taylor’s brief does not address this issue.'? Document No. 13. Given the fact that

'® Taylor mentions the Political Subdivision Tort Claims Act only within the context of a discussion about her constitutional claims. Document No. 13, p. 9. The Defendants contend that Taylor cannot prevail in her Pennsylvania law claims because her complaint fails to state a violation of the Due Process Clause. Document No. 9, p. 19. In truth, Taylor’s Pennsylvania law claims are barred by 42 PA.C.S. § 8541 regardless of whether her complaint alleges a violation of the Due Process Clause. The question of whether Taylor has a cause of action under 42 U.S.C. § 1983 has nothing to do with whether she has an independent cause ofaction under Pennsylvanialaw. It is clear that immunities provided to state agencies and officials under state law do not immunize those agencies and officials from suits brought pursuant to § 1983. Martinez v. California, 444 U.S. 277, 284, 100 S. Ct. 553, 558, 62 L. Ed.2d 481, 488-89 n.8 (1980). By virtue of the Supremacy Clause, a state immunity statute cannot defeat a cause of action arising under federal law. U.S. CONST., art. V1. That is fundamental to our constitutional structure. However, it does not follow that the existence of a federal cause of action impacts the operation of a state immunity statute with respect to a plaintiff's claims arising under state law. It is, of course, true that the application of a state immunity statute could itself violate the Due Process Clause under certain circumstances. For instance, if a state official deprives a plaintiff of liberty or property in an unauthorized manner, an attempt by the State to immunize the official’s conduct would deprive the plaintiff of an adequate postdeprivation remedy. Consequently, the unauthorized deprivation would be without due process of law, in violation of the Fourteenth Amendment. Albright v. Oliver, 510 U.S. 266, 281-86, 114 S. Ct. 807, 127 L. Ed.2d 114 (1994) (Kennedy, J., concurring in judgment); Zinermon v. Burch, 494 U.S. 113, 139, 110 S. Ct. 975, 990, 108 L. Ed.2d 100, 123 (1990) (O’Connor, J., dissenting); Parratt v. Taylor, 451 U.S, 527, 543-44, 101 S. Ct. 1908, 1917, 68 L. Ed.2d 420, 433-34 (1981). In this case, Taylor does not allege a procedural due process violation. Ifa state official had deprived her or Devin of life, liberty or property in a manner unauthorized by Pennsylvania law, the application of the immunity statute would most likely be unconstitutional. /d The question of whether a deprivation occurred would not depend on whether the state official acted in good faith, but rather on whether that official was aware of the fact that he was depriving Taylor or Devin of life, liberty or property. The question ofwhether a deprivation has occurred depends on whether the State deliberately (or perhaps recklessly) deprived the plaintiff ofa liberty or property interest, and a State cannot escape the requirements of the Due Process Clause by characterizing its failure to follow proper procedures as negligence. Daniels v. Williams, 474 U.S. 327, 333-34, 106 S. Ct. 662, 666, 88 L. Ed.2d 662, 670 (1986) (“We think the relevant action of the prison officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him theprocedural protections of the Due Process Clause.”). Nonetheless, Taylor does not question the adequacy of Pennsylvania’s postdeprivation remedies in this case. Even if she were asserting a procedural due process violation, it is doubtful that she could prevail on

29 asSeto nes

Taylor has effectively waived this issue, as well as the Court’s conclusion that her claims are

insufficient to surmount the hurdle imposed by the immunity statute, the Court must grant the

Defendants’ Motion to Dismiss with respect to Counts VI and VII of Taylor’s complaint. Plaintiff will

be granted leave to file an amended complaint regarding Counts VI and VII within twenty days of the

date of the Order entered as a result of this Memorandum Opinion.

2. Punitive Damages

The Defendants seek the dismissal of the punitive damages claims against Ritchey, Myers and

Adams. Document No. 8, pp. 9-10, {4 43-46. They contend that Taylor’s complaint fails to allege the

requisite level of culpability necessary to obtain punitive damages under § 1983, and that punitive

damages are not an available remedy under the IDEA, the Rehabilitation Act, and the ADA. Jd. at Ff

44-46. While noting that punitive damages are an available remedy under § 1983, Taylor makes no

argument with respect to the availability of punitive damages under the other statutes. Document No.

13, pp. 16-17. The Court has already determined that the Defendants’ Motion to Dismiss must be

granted with respect to Taylor’s claims under § 1983.” Since the Court agrees with the Defendants’

argument that punitive damages are not an available remedy under the IDEA, the Rehabilitation Act,

and the ADA, the Defendants’ Motion to Dismiss must be granted with respect to the punitive damages

claims against Ritchey, Myers and Adams. Barnes, Etc. v. Gorman, 536 U.S. 181, 189-90, 122 S. Ct.

the averments in her complaint. Daniels, 474 U.S. at 333, 106 S. Ct. at 666, 88 L. Ed.2d at 669 (“Where a government official’s act causing injury to life, liberty, or property is merely negligent, no procedure for compensation is constitutionally required.”)(emphasis in original; internal quotation marks omitted). In any event, since Taylor’s complaint alleges substantive due process violations rather than procedural due process violations, the question of whether she can proceed with her Pennsylvania law claims has absolutely nothing to do with whether she can proceed with her claims under § 1983.

*° The Court notes that the only counts in Taylor’s complaint brought pursuant to 42 U.S.C. § 1983 are those alleging violations of the Due Process Clause of the Fourteenth Amendment. Document No. 1, pp. 12-13, [9 67-73.

30 mele

2097, 2103, 153 L. Ed.2d 230, 239 (2002); Hesling v. The Avon Grove Sch. Dist., 428 F. Supp. 2d 262,

273 (E.D. Pa, 2006). Since the Plaintiffis being granted leave to amend her § 1983 claims, the Plaintiff

will also be granted leave to file an amended complaint with regard to punitive damages but only with

regard to the § 1983 claims. The dismissal of the punitive damages claims with regard to the IDEA,

the Rehabilitation Act, and the ADA is with prejudice.

3. The Claims Against the Individual Defendants

The Defendants, in their Motion to Dismiss, request that the Court dismiss all claims against

Ritchey, Myers and Adams insofar as those individuals have been sued in their personal capacities.

Document No. 8, pp. 3-4, Jf 2-10. In the alternative, the Defendants seek a more definite statement

under Federal Rule of Civil Procedure 12(e). /d., pp. 10-11, §§ 47-53. For the reasons that follow, the

Court cannot definitively determine, at this stage, the issue of whether Taylor may proceed against

Ritchey, Myers and Adams in their personal capacities.

The Defendants base their argument on the doctrine of qualified immunity. Document No. 9,

pp. 7-10, They contend that Ritchey, Myers and Adams should be dismissed as defendants, and that

their names should be removed from the caption of the case. /d., pp. 9-10. The argument advanced by

the Defendants is that Taylor’s complaint fails to allege that Ritchey, Myers and Adams violated clearly

established rights of which a reasonable state official would be aware.”' Jd. The Defendants’ brief, of

*1 The qualified immunity analysis is a twofold inquiry. “First, the court must examine whether the alleged constitutional or statutory violations were ‘clearly established’ at the time of the alleged violations.” Blake v, Wright, 179 F.3d 1003, 1007 (6" Cir. 1999). “Once it is determined that the right is clearly established, the court then must decide whether a reasonable person in the defendant’s position would have known that his or her actions violated clearly established rights. Such a test reflects an objective standard, making the official’s subjective intent irrelevant.” /d. at 1008 (citations and footnotes omitted).

31 course, was filed before the decision of the Court of Appeals in Thomas v. Independence Township,

2006 U.S. App. LEXIS 23685 (3d Cir. 2006), which makes it clear that “a plaintiff has no pleading

burden to anticipate or overcome a qualified immunity defense[.]” Thomas, 2006 U.S. App. LEXIS

23685 at 2. In light of Thomas, the Defendants are not entitled to the relief sought in their Motion to

Dismiss on the basis of Taylor’s failure to plead facts sufficient to overcome an anticipated qualified

immunity defense.

The Court’s analysis in this case is further complicated by the fact that the Defendants

apparently assume (rather than argue) that Ritchey, Myers and Adams cannot be sued in their personal

capacities under the IDEA, the Rehabilitation Act and the ADA. In her brief, Taylor argues that her

complaint alleges facts which could establish violations of the IDEA by the individual defendants.

Document No. 13, pp. 7-9. While the Defendants have successfully convinced the Court that Taylor’s

constitutional claims must be dismissed, they have left the issue of individual liability under the IDEA,

the Rehabilitation Act and the ADA wholly unaddressed. Their argument, even if meritorious, is

insufficient to entitle them to the relief that they seek.

In Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 1228S. Ct. 511, 151 L. Ed.2d 489 (2001),

the Supreme Court dismissed a writ of certiorari as improvidently granted. Adarand Constructors, Inc.,

534 U.S. at 105, 122 S. Ct. at 511-12, 151 L. Ed.2d at 493, The Court’s action was based, in part, on

the fact that the petitioner assumed that it had standing even though the U.S. Court of Appeals for the

Tenth Circuit had determined that the petitioner did not have standing. /d., 534 U.S. at 109-10, 122 S.

Ct. at 514, 151 L. Ed.2d at 495-96. The petitioner did not challenge enough of the decision below to

entitle it to the relief sought, and the Court declined to undertake a “threshold examination” into the

32 question of whether the petitioner had standing to challenge the applicable statutes and regulations that

were the subject of its argument on the merits. /d. It was incumbent upon the petitioner to articulate

a complete argument. Assuming that subject-matter jurisdiction is properly invoked under Article III

of the Constitution and the applicable jurisdictional statutes enacted by Congress, federal courts do not

address issues sua sponte for the purpose of filling in the gaps left in the arguments made by litigants.

For this reason, the Defendants in the instant case are not entitled to the dismissal of the personal-

capacity claims against Ritchey, Myersand Adams. Even though they point out that Taylor’s complaint

does not specify which counts apply to which defendants, they make no argument whatsoever as to

whether the individual defendants are amenable to, or otherwise immune from, suits brought under the

IDEA, the Rehabilitation Act, or the ADA. Document No. 8, pp. 10-11. Taylor evidently believes that

she can sue Ritchey, Myers and Adams under the IDEA. Document No. 13, p. 8. Since neither party

advances arguments as to whether individuals can be sued under the IDEA, the Rehabilitation Act, and

the ADA, the Court expresses no opinion as to whether Taylor can proceed against Ritchey, Myers and

Adams under those statutes.

The ultimate disposition of the Defendants’ Motion to Dismiss, as it relates to the claims against

Ritchey, Myers and Adams, will have to wait for another day. In Thomas, the Court of Appeals stated

as follows:

A defendant who makes a motion for a more definite statement under Rule 12(e) may join that motion with a Rule 12(b) motion to dismiss asserting the qualified immunity defense, which should be held in abeyance during the pendency of the Rule 12(e) motion. Fed. R. Civ. P. 12(g) (“A party who makes a motion under this rule may join with it any other motions herein provided for and then available to the party.”). When presented with an appropriate Rule 12(e) motion for a more definite statement, the district court shall grant the motion and demand more specific factual allegations from

33 the plaintiff concerning the conduct underlying the claims for relief. Even when a defendant has not formally expressed the need for a definite statement, the district court has the discretion to order a more definite statement, in observance of the Supreme Court’s mandate to facilitate an early resolution of the qualified immunity issue and in order to avoid a waste of judicial resources. See Crawford-El, 523 U.S. at 600-01 (recognizing the district court’s broad discretion to utilize civil procedures in a manner that is useful and equitable to the parties); see also Fed. R. Civ. P. 1 (‘The[] [rules] shall be construed and administered to secure the just, speedy, and inexpensive determination ofevery action.”). Ifthe plaintiff provides a more definite statement in compliance with the district court’s order, the defendant may, upon leave of court, supplement the Rule 12(b)(6) motion to dismiss by framing the qualified immunity argument within the factual context of the case. Once the motion has been supplemented, the Rule 12(b)(6) motion asserting qualified immunity should be expeditiously briefed and considered by the district court at the earliest stage in the litigation. Until the Rule 12(b)(6) motion is resolved, all discovery must be stayed. See Harlow, 457 U.S. at 818. Ofcourse, if the plaintiff fails to provide a more definite statement within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading. Fed. R. Civ. P. 12(e).

Thomas, 2006 U.S. App. LEXIS 23685 at 40-42. The Defendants have filed a Motion for a More

Definite Statement pursuant to Federal Rule of Civil Procedure 12(e). Document No. 8, pp. 10-11, {f

47-53. Given the decision in Thomas, it is clear that Taylor had no pleading burden to prospectively

overcome an anticipated qualified immunity defense raised by the individual defendants. However, the

Defendants are entitled to a more definite statement so that they can frame their qualified immunity

arguments within the factual context of this case.

The Court has determined that Counts IV, V, VI and VII of Taylor’s complaint must be

dismissed. Only Counts I, II and IIJ remain, unless Plaintiff files an amended complaint within the

permissible time period. The remaining counts allege violations of the IDEA, the Rehabilitation Act,

and the ADA. With respect to Counts IV, V, VI and VII, the question as to whether the individual

defendants are entitled to qualified immunity is now moot, unless an amended complaint is filed.

34 ey3 Cad ~ LA, pel Cad Le) 2

Nevertheless, the issue of whether they are entitled to qualified immunity with respect to Counts I, II

and III remains an open question. If an amended complaint is filed then the qualified immunity issue

will also need to be evaluated regarding the amended counts. This issue will have to be decided

according to the framework outlined by the Court of Appeals in Thomas.

The Court must grant the Defendants’ Motion for a More Definite Statement, and Taylor will

have to specify which of the remaining three counts (and the amended counts), if any, are applicable

to Ritchey, Myers and Adams. The Defendants will then have the opportunity to supplement their

Motion to Dismiss by framing their qualified immunity arguments within the factual context of this

case. Thomas, 2006 U.S. App. LEXIS 23685 at 42. The parties will then be able to brief the issue,

which shall be considered by the Court thereafter. Jd. The threshold inquiry for the Court will be a

determination as to whether Taylor’s allegations, if true, would entitle her to relief against the individual

defendants. Hope v. Pelzer, 536 U.S. 730, 736, 122 8. Ct. 2508, 2513, 153 L. Ed.2d 666, 676 (2002).

This determination will surely include a conclusion as to whether individual liability exists under the

IDEA, the Rehabilitation Act, or the ADA. The Court will not address this issue now, since it has not

been briefed by the parties. When the issue is fully argued and briefed, the Court will be in a better

position to determine: (1) whether Taylor’s allegations would entitle her to relief against the individual

defendants under the IDEA, the Rehabilitation Act, and the ADA;” if so, (2) whether qualified

immunity may be invoked by individual defendants sued under those statutes; and (3) if so, whether

Ritchey, Myers and Adams are entitled to qualified immunity within the context of this case. Blake vy.

2 The amended counts, if any, will also have to be considered.

35 o eneryr,

Wright, 179 F.3d 1003, 1011-14 (6" Cir. 1999) (discussing the applicability of the qualified immunity

defense with respect to statutory violations).

Cc. CONCLUSION

In summary, Taylor’s complaint alleges no violation of the Fourteenth Amendment.

Accordingly, the Defendants’ Motion to Dismiss is granted with respect to Counts IV and V. Document

No. 8, pp. 4-8, f§[ 11-32. Because Counts VI and VII of Taylor’s complaint do not allege conduct

sufficient to overcome the Defendants’ immunity under the Political Subdivision Tort Claims Act, and

because Taylor has waived any arguments that she may have to the contrary, the Defendants’ Motion

to Dismiss is granted with respect to Counts VI and VII. /d., pp. 8-9, ff 33-42. Given the unavailability

of punitive damages under the IDEA, the Rehabilitation Act, and the ADA, and since Taylor has based

her entire argument regarding punitive damages on the availability of punitive damages on the basis of

the now dismissed claims under § 1983, the Defendants’ Motion to Dismiss is granted with respect to

Taylor’s claims for punitive damages against the individual defendants. /d., pp. 9-10, J 43-46. To the

extent that the Defendants’ Motion to Dismiss the claims against the individual defendants is based on

an assertion of qualified immunity with respect to Taylor’s constitutional claims, it is rendered moot

by the Court’s determination that Counts IV and V of Taylor’s complaint fail to state claims upon which

relief can be granted. /d., pp. 3-4, {J 2-10. The Defendants’ Motion for a More Definite Statement is

granted, /Jd., pp. 10-11, 9 47-53. To the extent that the Defendants’ Motion to Dismiss the claims

against the individual defendants is based on an assertion of qualified immunity with respect to Counts

I, and III of Taylor’s complaint, the Court will reserve judgment until after the parties have proceeded

36 In accordance with the framework established in Thomas.22

An appropriate Order follows.

3 In the event an amended complaint is filed, then evaluation of the amended counts will, of course, have to be conducted in addition to the evaluation set forth in this Conclusion.

37 AND NOW, this 2g day of Speptemb er, 2006, this matter coming before the Court on the Defendants’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) and

Alternative Motion for a More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e)

(Document No. 8), IT IS HEREBY ORDERED THAT the Defendants’ Motion to Dismiss is

GRANTED IN PART as to the Plaintiff's claims under 42 U.S.C. § 1983 and Pennsylvania law, and

as to the Plaintiffs claims for punitive damages; Plaintiff is granted leave of court to file an amended

complaint regarding Counts IV, V, VI, VII, and punitive damages with regard to the § 1983 claims only;

the dismissal of the punitive damages claims with regard to the IDEA, the Rehabilitation Act, and the

ADA is with prejudice; and IT IS FURTHER ORDERED THAT the Defendants’ Motion for a More

Definite Statement is GRANTED. With respect to Counts I, II and III (and any amended counts if an

amended complaint is filed), insofar as they are asserted against the individual defendants, the parties

are HEREBY ORDERED to proceed in accordance with the decision of the U.S. Court of Appeals for

the Third Circuit in Thomas vy. Independence Township, 2006 U.S. App. LEXIS 23685, in a manner

consistent with this opinion.

BY THE COURT:

KIM R. GIBSON, UNITED STATES DISTRICT JUDGE

ce: All Counsel of Record

38