PHILADELPHIA – Bucks County Technical High School has won dismissal without prejudice of claims from a former EMS student, who alleged she suffered a broken left pinky finger, after being compelled to participate in a mandatory impact weapons drill featuring batons and punch paddles.
Jenna-Jo Biondino of Morrisville first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on March 25 versus Bucks County Technical School Authority (operating as “Bucks County Technical High School”) of Fairless Hills and one of its teachers, Kimberly Caron, also of Morrisville.
“On May 23, 2022, plaintiff Biondino, a then-17-year-old student was enrolled in the Emergency Medical Services program at Bucks County Technical High School. At all times relevant hereto the defendants, Bucks County Technical School Authority operating as Bucks County Technical High School and Caron, had a policy, practice, tradition and/or custom of having the students enrolled in the Emergency Medical Services program engage in impact weapons training with batons and punch paddles. At all times relevant hereto, the Pennsylvania State Police has classified ‘batons’ as a ‘weapon’ albeit a ‘less-lethal weapon.’ At all times relevant hereto, defendants provided students in general and plaintiff in particular with batons and punch paddles to engage in ‘sparring’ with one another,” the suit said.
“At all times relevant hereto, defendants instructed students in general and plaintiff in particular to hold the baton with both hands while another student was instructed to strike the baton holding student with punch paddles. At all times relevant hereto, defendants provided no hand or finger protection for those students engaged in weapons training. At all times relevant hereto, there was no rational reason to have students enrolled in the Emergency Medical Services program to be trained in the use of impact weapons. At all times relevant hereto, the defendants’ policy makers knew of the policy, acquiesced to it, and disregarded the foreseen problems, of compelling minor students to ‘spar’ with one another using impact weapons and punch paddles.”
The suit added the policy, practice, tradition and/or custom of defendants in having minor children ‘spar’ with one another using impact weapons and punch paddles was “known to create a foreseeable danger of which the defendants were aware” – and the defendants “affirmatively implemented a dangerous weapons training exercise, which encouraged, facilitated or authorized students to engage in ‘sparring’ with one another, using baton weapons and punch paddles.”
“On May 23, 2022, pursuant to this policy, practice and/or custom of defendants, plaintiff Biondino was instructed, compelled and directed to ‘spar’ with a fellow student using impact weapons and punch paddles. On May 23, 2022, while instructed, compelled and directed to ‘spar’ with a fellow student using the baton weapon and punch paddles, plaintiff Biondino’s left hand was struck, causing serious injuries thereto,” the suit stated.
“As a result of the actions of the defendants, and/or the failure of the defendants to perform the duties they were legally obligated to perform, plaintiff Biondino has suffered severe and permanent injuries, including, but not limited to, a displaced fracture of her left small finger, requiring open-reduction and internal fixation, with accompanying nerve damage and permanent limitations. As a result of the actions and/or inactions of the defendants, plaintiff Biondino has in the past and may in the future be required to obtain medical treatment for her injuries. As a further result of the actions and/or inactions of the defendants, plaintiff Biondino has been unable to engage in her usual and customary activities.”
On April 24, the defendants motioned to dismiss the complaint for failure to state claims upon which relief could be granted.
“Having failed to identify a single constitutional right in plaintiff’s complaint which she believes has been violated, plaintiff cannot recover under 42 U.S.C. Section 1983. The only potential constitutional violation of rights identified by the plaintiff is a nebulous claim of a ‘right to bodily integrity’ under the due process laws of the 14th Amendment. However, plaintiff has not identified how her substantive or procedural due process rights were somehow violated thru plaintiff’s voluntary participation in a proficiency exam for a certification that she was seeking while enrolled in the Emergency Services Technology technical program offered by Bucks County Technical High School,” the dismissal motion stated, in part.
“Plaintiff has claimed that the constitutional right that was infringed was a ‘right to bodily integrity.’ The Third Circuit Court has found a right to bodily integrity to be a ‘generalized right, not a particularized one’, and thus the right at issue must be framed in a specific context. Therefore, for plaintiff to even prevail on motion to dismiss, she must convince this Honorable Court, that she had a constitutional right to be free from injuring herself while engaged in a skills portion of a certification exam to become certified in Personal Protection Baton Tactics (PPBT) that was an optional certification that had no bearing on her scholastic record at Bucks County Technical High School. The facts as pled by plaintiff do not amount to a violation of plaintiff’s constitutional rights.”
The motion added that “in order for the plaintiff to succeed on a state-created danger theory, they must show that the harm ultimately caused was the foreseeable and fairly direct result of the state’s actions.”
“To demonstrate foreseeability, plaintiff must show that defendants’ awareness of the potential harm rises to the level of actual knowledge or amounts to an awareness of the risk that is sufficiently concrete to put the actors on notice of the harm. For causation she must show that defendants’ actions precipitated or were the catalyst for the ultimate harm. Actions do not meet the fairly direct prong when they are separated from the ultimate harm by a lengthy period of time and intervening forces and actions,” the motion continued.
“In order for a risk to be foreseeable, plaintiff must show an awareness on the part of a state actor of the foreseeable risk. In the instant matter, plaintiffs have not pled, have not (and cannot) aver to this Honorable Court that either defendants could have foreseen plaintiff suffering a pinky injury while attempting to achieve a certification in baton use training while engaged in defending herself with the baton from a foam pad. In addition, plaintiff cannot base their claim of foreseeability on the nature of the activity that was required for the voluntary certification that plaintiff sought. They must base their claim on the risk that the School District and/or defendant Caron herself present.”
The motion likewise argued that the plaintiff “has not pled any set of facts that would rise to a level of deliberate indifference or conscience shocking behavior on the part of defendants”, “has not pled any set of facts that would demonstrate that defendants used their authority to create an opportunity that otherwise would not have existed for the third party’s action to occur” and “does not have a viable Monell claim against Bucks County Technical High School.”
“Plaintiff does not identify any training measures that could have prevented the injury and there is no evidence that a single constitutional violation, such as the one alleged here amounts to deliberate indifference where the need for municipal action can be said to be so obvious that failure to do so could properly be characterized as deliberate indifference to constitutional rights even without a pattern of constitutional violations,” the motion said, in part.
“In the instant matter, plaintiffs do not and cannot allege anything that the High School could have done differently in allowing plaintiff to participate in a Department of Education sanctioned self-defense baton training program that rises to a level of deliberate indifference so as to allow for this matter to fit within a narrow range of circumstances for a viable single incident liability Section 1983 failure to train claim.”
UPDATE
In a May 20 memorandum opinion, U.S. District Court for the Eastern District of Pennsylvania Judge Wendy Beetlestone ordered the case dismissed, without prejudice.
“Biondino alleges that defendants instructed her and her classmates to engage in a ‘sparring’ exercise whereby one student would ‘hold the baton with both hands while another student as instructed to strike the baton holding student with punch paddles’ without any protective equipment. The risk of injury – indeed, the risk that a student would get injured in precisely the way that Biondino did – was clearly substantial. But the risk of harm inherent in this exercise – broken bones and other injuries along the lines of what Biondino suffered – was not ‘serious’ enough to plausibly show that defendants, as a matter of law, were deliberately indifferent. Simply put, where the defendant is not in a high-pressure situation, the Third Circuit requires a risk of significantly more serious harm to a plaintiff than has been alleged here,” Beetlestone ruled.
“Therefore, viewed in the light most favorable to her, Biondino’s complaint does not plausibly allege that defendants ‘conscious[ly] disregard[ed]…a substantial risk of serious harm,’ as is necessary under these circumstances to state a claim that they ‘acted with a degree of culpability that shocks the conscience,’ Her allegations of state-created danger against defendants will be dismissed without prejudice.”
Beetlestone then turned to the plaintiff’s Monell claim and dismissed it as well.
“The complaint varies in how it describes the policy for which these decisions serve as evidence, alternately calling it a policy ‘of having the students enrolled in the Emergency Medical Services program engage in impact weapons training with batons and punch paddles’ and a policy ‘of deliberate indifference to plaintiff’s overall health, safety and welfare.’ As discussed above, the complaint does not plausibly allege that, as a matter of law, any defendant was deliberately indifferent to Biondino’s safety, so only the former proffered policy could serve as a basis for Monell liability. And defendants are entitled to dismissal of Biondino’s Monell claim based on that alleged policy too,” Beetlestone said.
“Here, Biondino’s complaint does identify a cognizable ‘official proclamation, policy, or edict’ that can serve as a hook for the Authority’s liability. Even if the Court assumes that, under Pennsylvania law, curriculum approval is a cognizable policy for purposes of Monell liability, the complaint does not identify any ‘official with final policymaking authority’ under state law who approved that curriculum. Therefore, as currently pleaded, Biondino has not alleged that the Authority was a final policymaker. Nor does she allege that the Authority ‘ratified the unconstitutional actions of a subordinate.’ Finally, Biondino does not allege any informal practices ‘so permanent and well settled as to virtually constitute law,’ so she has not plausibly identified any municipal custom either. Instead, her Monell claim primarily relies on one-time acts – curriculum approval and procurement – that are not the makings of a municipal custom. Biondino’s Monell claim therefore will be dismissed without prejudice.”
The plaintiff was represented by Jonathan J. Russell of Drake Hileman & Davis, in Doylestown.
The defendants were represented by John F. Kennedy of Grace & Kennedy, in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-01252
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com