ALLENTOWN – A federal judge has dismissed a lawsuit against the Bethlehem Area School District brought by the parents of a six-year-old child, who the suit claims was repeatedly bullied and sexually assaulted on the school bus and the district didn’t prevent the abuse.
R.B., E.B. and minor P.B. first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 24 versus Bethlehem Area School District, of Bethlehem.
P.B., a kindergartener, was transported to Farmersville Elementary School in Easton on a school bus, along with other students of similar and older ages.
“In September 2019, an older student by the name of Giovanna began bullying P.B. P.B. told his father, R.B., about the bullying, at which time R.B. notified the school staff, including the bus driver, the school’s counselor, Ms. Davis, and the teacher, Ms. Jackson, of the bullying,” the suit stated.
“Beginning on or about Oct. 31, 2019 until about Dec. 23, 2019, P.B. was subject to numerous instances of sexual abuse at the hands of Gio, while on the school bus.”
The suit said Gio repeatedly touched with his hands and had oral contact with P.B.’s genitals, buttocks and anus.
“Although the defendant was explicitly on notice of the violent tendencies of Gio upon P.B. and other students, defendant did nothing to protect the safety of students such as P.B affirmatively and constructively placing P.B. in a dangerous situation. After being exposed to this violent, physical and sexual torture by Gio, P.B. finally confessed to his parents what was happening in late December 2019,” per the suit.
“On Dec. 30, 2019, R.B. and P.B. were interviewed by an investigator with the Bethlehem Township Police Department and a report was made. On Jan. 16, 2020, Gio and his mother were interviewed by the Bethlehem Township Police Department, wherein Gio admitted to the above sexual assaults and incident.”
Counsel for the Bethlehem Area School District filed a motion to dismiss the lawsuit on April 23, believing it failed to state a claim.
“Plaintiffs’ complaint contains insufficient facts to establish that defendant BASD violated plaintiffs’ child’s constitutional Due Process rights under the Fourteenth Amendment. Although substantive due process protects an individual’s liberty interest in bodily integrity, the Due Process clause of the Fourteenth Amendment does not impose an affirmative duty upon the state or any state actor, such as a school district, to protect its citizens,” the dismissal motion said.
“Rather, it serves as a limitation on the state’s power to act. There are two exceptions to this general rule, but the requirements of being within either one of these exceptions are not satisfied by the allegations in the complaint.”
Those two exceptions are 1) the special relationship exception and 2) the state-created danger exception. According to defense counsel, neither one applies.
“In the complaint, the plaintiffs contend that the School District’s act of placing their child on the moving school bus was ‘custodial’ in nature, thereby suggesting to the Court that a special relationship similar to the one recognized in Youngberg v. Romeo, was created. However, the Third Circuit has not recognized a special relationship between a student and school district or other school entity based on a student’s presence on a moving school bus,” the dismissal motion stated.
“Plaintiffs have failed to state a claim within the state-created danger exception to the general rule that the Fourteenth Amendment protects individuals from harm caused by the state, and not other citizens. Plaintiffs have failed to allege with specificity any customs, policies or practices of the School District and plaintiffs have failed to identify what the policy, custom or practice was. In addition, the Plaintiff has not identified any policymaker in the complaint, which is ‘fatal’ to a Monell claim.”
UPDATE
Four days after hearing arguments from both sides on the School District’s motion to dismiss, U.S. District Court for the Eastern District of Pennsylvania Judge Edward G. Smith ordered the complaint dismissed without prejudice, finding that the plaintiffs had not proven P.B.’s Fourteenth Amendment rights were violated through a state-created danger theory of liability.
The defendant argues that the plaintiffs have failed to meet the fourth prong of the test because they have not identified any affirmative action taken by the defendant that ‘created or increased a danger to the plaintiffs’ child.’ The plaintiffs respond that they alleged in the complaint that the defendant ‘caused these two individuals to sit together although there were parental complaints that the defendant was on notice of the assailants’ violent propensities.’ The court finds that the plaintiffs have not satisfied the fourth element of the state-created danger analysis and thus fail to state a claim against the defendant,” Smith said.
“Although they claim that the defendant ‘caused’ P.B. and Gio to sit together on the school bus, the court notes that ‘neither the state compulsory attendance law nor any other state rule required [P.B.]’s presence on the…school bus,’ let alone mandated that P.B. and Gio sit together. Moreover, the allegations in the complaint as stated do not plausibly allege that the defendant took any affirmative action to compel R.B. and Gio to sit together – or even to ride the school bus, for that matter. At best, the complaint only speaks to ‘passive inaction’ rather than ‘affirmative acts.’ Because the plaintiffs have failed to plead any affirmative act on the part of the defendant, the due process claim is dismissed.”
Smith granted the plaintiff leave to file an amended complaint, which they would need to do on or before Aug. 30.
For a single count of violation of the Fourteenth Amendment right to bodily integrity, the plaintiffs are seeking compensatory damages of $150,000, plus attorney’s fees, costs, and pre- and post-judgment interest.
The plaintiffs are represented by Michael D. Shaffer of Shaffer & Gaier, in Philadelphia.
The defendant is represented by John E. Freund III of King Spry Herman Freund & Faul, in Bethlehem.
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-00846
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com