PHILADELPHIA – In a class action sexual abuse lawsuit brought by seven former residents of The Summit Academy, Philadelphia’s Juvenile Probation Department has received dismissal of certain federal civil rights and state-law claims lodged against it.
R.Q., D.B., W.M., S.C., R.B. and K.M.G. of Pennsylvania, plus S.B. of Maryland first filed suit in the U.S. District Court for the Eastern District on March 2, 2023 versus The Summit School, Inc. (doing business as “The Academy Schools” and “The Summit Academy”) of Herman and John-Jane Does 1-100.
“The Academy Schools operate facilities where juveniles are held in custody in Pennsylvania. The Academy Schools offers rehabilitation, education and support services for youth through a trauma-informed approach. Established in Western Pennsylvania and managed by leaders and innovators in the field of juvenile justice, The Academy Schools are both community-based and residential, serving both local and out-of-state students,” the suit said.
“The Schools program includes room and board, clothing, behavior management individual and group counseling, academic and vocational programming, medical and dental services, as well as athletic and recreational opportunities. The School offers services for court-adjudicated youth and non-delinquent youth.”
However, the suit added that “instead of fulfilling its promise and solemn responsibility to protect these vulnerable youth, they were exposed to predators and abusers…Summit Academy failed to enact safety measures and other policies to protect the children, failed to adequately screen, hire, train, and supervise staff, and failed to fulfill its duties under state and federal law and as a result of the defendants’ misconduct, children in Summit Academy facilities have been reportedly sexually abused – often by Summit Academy staff.”
“The School serves as a custodial facility for the placement of juvenile court adjudicated youths, aged 11-18, and other at-risk youth. Founded in 1982, the School has provided juvenile residential care since its inception. It claims to assess the unique needs of each student, teach tools for success and offer meaningful opportunities for personal growth,” the suit stated.
“For the children who were abused at a Summit Academy facility, it was almost impossible to get help or stop the abuse because Summit Academy reportedly limited the contact many of them had with the outside world, limiting phone calls thereby trapping children with their abusers. Nor was there any clear and safe mechanism by which victims could report abuse within Summit Academy; as reported, those who did report were disbelieved, or worse, retaliated against, exacerbating and amplifying the trauma of the actual abuse. Many of the children who were abused at Summit Academy were vulnerable, intellectually disabled, and already fleeing from abuse. Summit Academy staff members also took advantage of children who had already been victims of sexual abuse and were at Summit Academy to seek healing.”
The suit further graphically recounts alleged, horrific instances of physical, mental and sexual abuse the plaintiffs say they suffered at the hands of facility staff:
• Plaintiff R.Q. alleged that on multiple occasions, a staff member would pull him into a side closet and hit him all over his body with a broom stick or his fists;
• Plaintiff D.B. alleged he was beaten repeatedly, suffered punches to his genitals, spanked on the buttocks and sodomized with a broom handle;
• Plaintiff W.M. alleged he was forced to perform oral sex on a staff member on several occasions, being beaten when he refused;
• Plaintiff S.C. alleged he was slapped on his buttocks before, during and after football games and practices by a staff member;
• Plaintiff K.M.G. alleged he was forced to perform oral sex on a staff member more than three times, in order to receive basic program privileges, including phone calls, food, and home passes;
• Plaintiff S.B. alleged he was smacked with a wet towel across his genitals and buttocks, and was forced to manually stimulate a staff member’s penis in the facility’s chapel;
• Plaintiff R.B. alleged he was forced to perform oral sex on a staff member more than three times, and engage in masturbation, fondling and groping with that same person in order to be able to make a phone call.
The class action suit maintained that its potential members “are so numerous that joinder of all members in one action is impracticable”, since “hundreds and possibly thousands of boys have attended the School and been subjected to the widespread abuse occurring at the school.”
In an April 21, 2023 letter, counsel for the defendants argued the case should be subject to complete dismissal – and if it were not, for it not to proceed as a class action.
“Defendant submits this letter to the Court due to plaintiffs’ failure to plead adequate facts to support their allegations; improper venue, improper styling as a class action, claims are time-barred and as to all counts, plaintiffs have failed to state a claim for which relief can be granted. Accordingly, this Court should dismiss plaintiffs’ complaint in their entirety,” the letter stated.
Defense counsel then outlined their rationales for the alleged improper venue of the case and why several of its claims should be stricken.
“Plaintiffs allege in a conclusory manner that venue is proper in the Eastern District of Pennsylvania because it is alleged that ‘a substantial part of the events and/or omissions giving rise to the claim occurred in this district.’ However, a read through the allegations makes clear that all the alleged events purportedly occurred at defendant’s school which is located in Herman, Pennsylvania – located in the Western District of Pennsylvania. As the alleged events occurred in the Western District, the case should be dismissed for improper venue or, at least transferred to the Western District in accordance with 28 U.S.C. Section 1406(a),” per the letter.
“Plaintiffs have failed to state a claim under Title IX. In order to establish liability under Title IX, plaintiffs must satisfy three different inquiries. The plaintiffs must be able to: (1) identify a person with “authority to take corrective measures in response to actual notice of sexual harassment” (the “appropriate person” prong); (2) demonstrate that the notice was “sufficient to alert the school official of the possibility of the Title IX plaintiff’s harassment;” (the “actual notice” prong); and (3) show that the authority figure acted with deliberate indifference to the notice of the harassment (the “deliberate indifference”) prong. A review of the facts as alleged by plaintiffs indicates that the complaint is devoid of any allegations of reporting or an ability of defendant to have actual notice of sexual harassment/sexual abuse. The Title IX claims must be dismissed. Further, it is to be noted that the allegations as to plaintiff R.Q. do not amount to sexual abuse, but instead purported physical assaults (without any assertion of sexual touching or abuse) and therefore a Title IX claim is not appropriate as to plaintiff R.Q.”
The Philadelphia County Juvenile Probation Department filed a motion to dismiss an amended version of the complaint on Aug. 31, 2023, arguing that immunity stemming from the Eleventh Amendment to the U.S. Constitution should protect it from the suit.
“The Juvenile Probation Department is an arm of the First Judicial District, Philadelphia’s County Court of Common Pleas. States and state entities are entitled to immunity under the Eleventh Amendment unless they waive that immunity, which Pennsylvania has not. The First Judicial District is an arm of the state. Since Juvenile Probation is a part of the First Judicial District, and since Pennsylvania has not consented to suit, the Juvenile Probation Department is entitled to Eleventh Amendment immunity in this matter,” per the dismissal motion.
“In Count III of their amended complaint, plaintiffs attempt to raise a Title IX claim against the Juvenile Probation Department. Clearly, a Juvenile Probation Department is not an education program or activity. Juvenile Probation Departments are generally responsible for taking delinquent juveniles into custody, filing petitions and making appropriate referrals for juveniles under their supervision, and communicating with the Court and interested parties regarding their juvenile offenders’ supervision. They do not provide courses of study or training. They do not provide degree, diploma or certification programs. Nor do they provide instructors, examinations or grades. There is simply no basis upon which to claim that the Juvenile Probation Department is an educational program or activity. As a result, Plaintiffs cannot maintain their Title IX claim against the Juvenile Probation Department.”
The named defendant added that under Pennsylvania law, “entities, officers and employees of the Commonwealth government are entitled to sovereign and official immunity from lawsuits, such as the one before this Court, pursuant to the Sovereign Immunity Act.”
In a Sept. 21, 2023 opposition response brief, the plaintiffs rejected this argument and asked that the dismissal motion be denied.
“Defendant argues that it is entitled to immunity against plaintiffs’ claims under the Eleventh Amendment and entitled to sovereign immunity to all state law claims. In Dean v. Commonwealth Department of Transportation, the Supreme Court of Pennsylvania held that sovereign immunity is only waived for damages arising out of a negligent act where the common law or a statute would permit recovery if the injury were caused by a person not protected by sovereign immunity. For the Commonwealth to be found liable, a plaintiff must also establish that the cause of action falls under one of the specifically enumerated exceptions to immunity. Sexual abuse is an enumerated exception defendants JPD and The Summit Academy failed to properly protect plaintiffs and have shown a reckless disregard and deliberate indifference to the widespread violations of the plaintiffs’ rights. Furthermore, defendants acted with deliberate indifference to the sexual abuse, which it knew or should have known persisted for decades,” the brief stated.
“Moreover, defendants have a statutory duty to supervise and assist a child placed on probation or in his protective supervision or care. Defendant JPD failed and ignored its statutory duty which caused plaintiffs to be exposed to outrageous conduct and harm. The adoption of the BARJ philosophy influenced defendant JPD’s decision to place plaintiffs, and those similarly-situated, at the facility. Part of the BARJ rehabilitation philosophy, which both defendants employ, is education. As such, defendant’s argument that it is not an education program fails.”
UPDATE
In a March 27 judicial order, U.S. District Court for the Eastern District of Pennsylvania Judge Mitchell S. Goldberg granted the Juvenile Probation Department’s dismissal motion in part, and denied it in part.
“The Probation Department argues that plaintiffs’ Section 1983 claims against it should be dismissed because the Probation Department is an arm of the state not amenable to suit under Section 1983. A state cannot be sued under Section 1983. The Philadelphia County Probation Department is an arm of the Commonwealth of Pennsylvania, and thus shares in the state’s immunity. Plaintiffs make no contrary argument. For these reasons, plaintiffs’ Section 1983 claims against the Probation Department will be dismissed,” Goldberg stated.
“The Probation Department asserts that Plaintiffs’ Title IX claims against it should be dismissed because it is not an ‘education program or activity’ as used in that statute. The Probation Department does not deny that it is a ‘program or activity,’ and argues only that it is not ‘educational’ because it lacks features suggesting that ‘its mission [is], at least in part, educational.’ The Probation Department also gives a list of educational activities that it does not engage in – such as providing courses of study or training. But because these facts are not in plaintiffs’ complaint, they are outside the scope of a motion to dismiss. Moreover, I must view the facts in plaintiffs’ complaint in the light most favorable to plaintiffs, and, so viewed, it is plausible that the Probation Department’s mission is partially educational. Whether the Probation Department is in fact an ‘education program or activity’ must await further factual development. The Probation Department also cites Alegria v. Williams, in which a probation department in Galveston County, Texas, was found not to be an ‘education program or activity.’ But in Alegria, it was ‘conceded that the probation program at issue [was] not ‘educational.’ Here, those facts are plausibly alleged. For these reasons, the Probation Department’s motion to dismiss will be denied as to plaintiffs’ Title IX claims.”
As to the state-law claims against the Juvenile Probation Department, Goldberg also rendered those dismissed.
“Finally, the Probation Department asks that plaintiffs’ state-law claims against it be dismissed because it is entitled to sovereign immunity. The Probation Department is made immune from suit under state law by 1 Pa. C.S. Section 2310, to the extent no exception applies. Plaintiffs argue that an exception exists for certain enumerated ‘acts by a Commonwealth party,’ including the sexual abuse allegedly committed in this case. A ‘Commonwealth party’ is defined (in relevant part) as ‘[A] Commonwealth agency,’ which, in turn, means ‘any executive agency or independent agency,’ terms which ‘do not include any court or other officer or agency of the unified judicial system,” Goldberg said.
“Accordingly, the enumerated exceptions from immunity set out in Section 8522(b) do not apply to the courts, their officers and their agencies. The Probation Department is part of the Pennsylvania courts (applying Eleventh Amendment immunity to employment suit by former probation officer). For that reason, sovereign immunity has not been waived as to the Probation Department. I will therefore dismiss plaintiffs’ state-law claims against the Probation Department.”
For counts of creating a sexually hostile culture/heightened risk for sexual harassment, deliberate indifference to sexual harassment, civil rights deprivation, negligence, negligent hiring, negligent retention, negligent supervision, gross negligence, negligent misrepresentation and omissions, violation of the Unfair Trade Practices and Consumer Protection Law, vicarious liability, negligent infliction of emotional distress, intentional infliction of emotional distress, breach of fiduciary duty, assault and battery and injunctive and equitable relief, the plaintiffs are seeking compensatory, restitutionary, general, consequential, punitive, and exemplary damages, pre-judgment and post-judgment interest, reasonable attorney’s fees and costs, including expert fees as provided for by law, granting such other and further relief as the Court deems just and proper; injunctive, declaratory and other equitable relief; a declaration that the defendants are in violation of their mandatory reporting obligations and a complete disclosure of all records and information during the time period from Jan. 1, 2000 to the present, pertaining to the abuse of students at the school.
The plaintiffs are represented by David Wesley Cornish of Cornerstone Legal Group, plus Michael T. van der Veen, Jerry A. Lindheim and Steven R. Bryson of van der Veen Hartshorn & Levin, all in Philadelphia.
The defendants are represented by George N. Stewart, Joseph F. Butcher and Kerri Shimborske-Abel of Zimmer Kunz, David A. Strassburger and Kathryn L. Clark of Strassburger McKenna Gutnick & Gefsky, all in Pittsburgh, plus Geri Romanello St. Joseph and Megan L. Mallek of the Administrative Office of Pennsylvania Courts, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-00808
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com