PHILADELPHIA – A local woman has claimed once again that the school bus sexual assault she endured as a middle school student was the fault of her school, who disregarded the alleged assailant’s history of prior assaults and violated her constitutional rights in the process.
P.W. initially filed suit in the Philadelphia County Court of Common Pleas on Feb. 18 versus Chester Community Charter School and Eastside Middle School, both of Philadelphia.
“P.W. was born on Dec. 18, 2001. On or around Feb. 10, 2015, P.W. was a student enrolled in CCCS Eastside Middle School. On or around Feb. 10, 2015, P.W. was on a bus going to or from CCCS Eastside Middle School. Upon information and belief, this was Bus Route 25. Derek Hodges, a student enrolled in CCCS, was also on this bus,” the suit says.
“On or around Feb. 10, 2015, Derek Hodges sexually assaulted P.W. by attempting to place his hand up her skirt. P.W. fought Derek Hodges off to prevent further assault. P.W. may have seen E.W., a friend sitting next to her on the bus, also get sexually assaulted by Derek Hodges. While Derek Hodges was committing this sexual assault, several of his friends who attended CCCS’s high school were cheering him on. Upon information and belief, some or all of Derek Hodges’ friends from CCCS’s high school were not supposed to be on that bus. During this incident, the bus driver did not attempt to intervene and was wearing headphones. After the sexual assault, P.W. ran off the bus.”
The suit adds that Hodges also sexually assaulted another student. S.S., and that Hodges both previously attempted to assault her when the two were in second grade and the school was aware of his behavior pattern.
As a result of the assault, P.W. had performance maintains she had performance issues while enrolled in CCCS Eastside Middle School.
The plaintiff turned 18 years of age on Dec. 18, 2019 and then filed a writ of summons against CCCS nearly two years later, on Nov. 30, 2021.
“CCCS affirmatively acted to create a danger that would not have been present absent such conduct. The Fourteenth Amendment to the United States Constitution guarantees plaintiff the substantive due process right to be free from state-created dangers. Defendants violated this right by taking affirmative steps which placed plaintiff at imminent and foreseeable risk of danger and harm. The physical, emotional, developmental, psychological, and/or psychiatric harm that plaintiff suffered after being so placed was foreseeable, and directly and proximately cause unconstitutional acts and omissions. Defendant arbitrarily and capriciously deprived plaintiff of her due process rights in the absence of any countervailing state interest,” the suit states.
“As a result of CCCS’s constitutionally infirm policies, customs, and/or practices as described herein, P.W. has been deprived of her pursuit of life, liberty, and happiness, due process and other constitutional rights in violation of the Fifth and Fourteenth Amendments. CCCS failed to properly train and/or supervise its staff members, including the bus driver who drove on Bus Route 25 on or about Feb. 10, 2015. As such, CCCS was deliberately indifferent, grossly negligent, wanton, and/or reckless with respect to the potential violations of the constitutional rights of P.W.”
Due to the federal nature of the plaintiff’s claims, the defendant removed the litigation to the U.S. District Court for the Eastern District of Pennsylvania on March 7 and filed a motion to dismiss for failure to state a claim on March 11.
“Plaintiff’s allegations fail to state a state-created danger claim. Plaintiff alleges that the defendant allowed plaintiff to be assaulted by Mr. Hodges by having unconstitutional policies, practice and customs along with a failure to train. This failure allegedly allowed the assault on P.W. to occur. However, the actions complained of by plaintiff does not violate the constitutional right to due process of law,” the dismissal motion stated, in part.
“Plaintiff’s allegations in this matter center on the defendant’s failure to intervene when P.W. was assaulted on the school bus. What plaintiff truly complains of is the defendant’s failure to use their authority. In this matter because plaintiff only alleges the defendant failed to take action, her claims fail as a matter of law.”
UPDATE
The plaintiff responded to the dismissal motion with an opposing brief on March 24, re-arguing that the circumstances P.W. was placed in directly led to the assault on her person.
“Defendant exercised its authority over minor P.W. as the sole entity tasked with administering her education to affirmatively place P.W. on the bus with a known sexual predator without any appropriate supervision. In this capacity, defendant acted as P.W.’s educator to control her movement to and from school. Had defendant not acted at all, P.W. would not have been at risk of sexual assault as she was on or about Feb. 10, 2015,” per the brief.
“Moreover, this risk of harm to P.W. was foreseeable, direct, and plainly disregarded P.W.’s safety. Given Mr. Hodges’ previous sexual assaults, defendant was well aware of the risks of placing him in a small, confined space with P.W. without any appropriate supervision. By failing to take any protective measures after affirmatively placing P.W. in this situation, the eventual harm that P.W. endured (and continues to endure) was entirely predictable. Thus, defendant’s action which placed P.W. in an environment in which she was likely to be sexually assaulted created a relationship.”
For counts of state-created danger, unconstitutional policy, practice or custom and failure to train under 42 U.S.C. Section 1983, the plaintiff is seeking judgment against the defendant, plus interest, costs, attorney’s fees and punitive damages.
The plaintiff is represented by Gregg L. Zeff and Derek J. Demeri of Zeff Law Firm, in Mount Laurel, N.J.
The defendants are represented by Joshua David Hill and Andrew John Bond of Eckert Seamans Cherin & Mellott, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:22-cv-00840
Philadelphia County Court of Common Pleas case 211102218
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com