PHILADELPHIA – For the second time, a federal judge has dismissed litigation from a woman who alleged that the school bus sexual assault she endured as a middle school student was the fault of her school, which was said to have 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 said.
“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 added 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 maintained 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 stated.
“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.”
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.”
However, Chester Community Charter School replied to the plaintiff’s response on April 4, and now moves to dismiss Count II and Count III of the plaintiff’s complaint.
“Here, other than conclusory allegations of Monell theories, plaintiff fails to plead any facts that would support a basis for such either an unconstitutional policy, practice, or custom or a failure to train claim. Indeed, plaintiff’s complaint makes no reference to any policy or a failure to train that would support a finding of liability under Monell,” the reply brief stated.
“Without any supporting details, plaintiff fails to allege deliberate indifference under a pattern of violations theory and plaintiff fails to sufficiently allege that Chester Community Charter School acted with the deliberate indifference necessary to sustain a claim for municipal liability. Wherefore, for the reasons included herein, the Chester Community Charter School respectfully requests this Court grant the motion to dismiss.”
U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert dismissed the case without prejudice on Sept. 20, pending an amending of the plaintiff’s complaint prior to Oct. 20 which would show a constitutional violation.
“P.W. alleges that CCCS created a danger by ‘allowing [Hodges] on Bus Route 25.’ But she does not allege any facts suggesting that Hodges would have been unable to board Bus Route 25 under the status quo. As in Morrow v. Balaski, CCCS’s failure to prevent Hodges from boarding P.W.’s bus in light of his previous behavior toward her is passive inaction, not an affirmative act. P.W. has not satisfied the fourth element of the state-created danger doctrine. Because this is fatal to her claim, the Court need not address the remaining elements,” Pappert said.
“P.W.’s Monell claims fall with her state-created danger claim. A municipal entity is not liable under Section 1983 for an employee’s acts on a theory of respondeat superior. Instead, a plaintiff must demonstrate that the municipality’s policy or custom caused a constitutional violation. P.W. has not adequately alleged a constitutional violation under the state-created danger theory, nor does she allege that CCCS violated any other constitutional right. The Court dismisses P.W.’s claims without prejudice. P.W. may amend her complaint if she can allege facts, consistent with this memorandum, establishing a constitutional violation.”
UPDATE
After an amended version of the complaint was filed on Oct. 25, a motion to dismiss filed on Nov. 7 and a reply to the dismissal motion filed on Dec. 5, Pappert granted the dismissal motion on Dec. 16.
“P.W. filed an amended complaint, which now also alleges that CCCS knew that assaults and fights frequently occurred on P.W.’s bus route and that CCCS placed bus aides and video cameras on the bus in a presumed effort to deter assaults by other students. P.W. now claims the bus aides were not present roughly twice a week, that the videos of the bus rides were not reviewed daily and that CCCS nonetheless allowed the bus to operate, despite knowing of the assaults and the need for the bus aides to protect the students. CCCS moved to dismiss the amended complaint arguing, that the gravamen of P.W.’s claim remains that CCCS failed to use its authority, not that it affirmatively used, or misused, that authority. CCCS is correct. Failing to manage absenteeism among the bus aides is not an affirmative use of the school’s authority,” Pappert stated.
“In her response to CCCS’s motion, P.W. says that CCCS took the ‘affirmative steps’ of placing the aides and cameras on the bus – ‘exactly the kind of affirmative step that separates these facts from the status quo type of case…’ – but then ‘failed in its duty to provide the reasonably relied upon safeguards.’ This is not the correct analysis and fails to correct the initial complaint’s shortcomings. P.W. does not claim, as she must, that CCCS acted affirmatively to remove a barrier that would otherwise prevent access to her, nor that placing aides and cameras on the bus upset the ‘status quo’ in a way that made the bus more dangerous for P.W. Her allegations still come down to CCCS’s ‘failure to provide the bus aide on the day in question…’ The amended complaint does not allege facts which could establish that CCCS affirmatively used its authority to create a danger to P.W. The amended complaint is dismissed with prejudice because at this point further amendment would be futile.”
The plaintiff was represented by Gregg L. Zeff and Derek J. Demeri of Zeff Law Firm, in Mount Laurel, N.J.
The defendants were 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
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com