IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 

 

JANE DOE, a minor, by her mother : Civ. No. 3:23-CV-1118 

and natural guardian, Jennifer Nied, : 

and JENNIFER NIED, individually, : 

 : 

 Plaintiffs, : 

 : 

v. : (Magistrate Judge Bloom) 

 : 

RIVERSIDE SCHOOL DISTRICT, : 

d/b/a Riverside Junior/Senior : 

High School, et al., : 

 : 

Defendants. : 

 

MEMORANDUM OPINION 

 

I. Introduction 

This case comes before us for consideration of a motion to dismiss 

filed by several defendants—Riverside School District (the “District”), 

Riverside School District Board of Education (the “School Board”), Robert 

Presley, Christopher Lazor, and Paul Brennan. (Doc. 18). Jennifer Nied 

filed this action on behalf of herself and her daughter Jane Doe, a minor 

student in the Riverside School District. (Doc. 1). The complaint alleges 

that Jane Doe was sexually assaulted off school grounds by another 

student who attended the same school, and that following that student’s 

adjudication of guilt, the school failed to expel him or otherwise keep him 

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away from Jane Doe. (See generally Doc. 1). This, in turn, allegedly led 

to Jane Doe’s abuser harassing her during school hours and school 

functions. (Id.). 

The plaintiffs assert a host of claims against the School District and 

the School Board, as well as Paul Brennan, the Superintendent, and 

Robert Presley and Christopher Lazor, both of whom served as the 

principal of the school at some time during the alleged events. The 

plaintiffs bring claims of discrimination and retaliation under Title IX of 

the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681, et 

seq.; claims alleging violations of the Fourteenth Amendment’s Equal 

Protection and Substantive Due Process clauses under 42 U.S.C. § 1983; 

a Monell1 claim under § 1983; and state law claims of negligence, 

negligence per se, breach of contract, intentional infliction of emotional 

distress, and negligent infliction of emotional distress. (See Doc. 1). These 

defendants have now moved to dismiss the claims against them, arguing 

1 Monell v. Dep’t of Social Servs. of the City of New York, 436 U.S. 658 

(1978). 

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that the plaintiffs have failed to state claims upon which relief can be 

granted. (Doc. 18).2

The motion is fully briefed and ripe for resolution. (Docs. 21, 25, 28, 

32, 33). After consideration, the defendants’ motion will be granted in 

part and denied in part. 

II. Background 

 

The factual background of this Memorandum Opinion is taken from 

the well-pleaded facts alleged in the plaintiffs’ complaint (Doc. 1), which 

we must accept as true for purposes of the instant motion to dismiss. The 

minor plaintiff, Jane Doe, was enrolled as a student in the Riverside 

School District at Riverside Junior/Senior High School, located in 

Lackawanna County, Pennsylvania. (Doc. 1 ¶ 9). Jane Doe was a student 

with a disability and had a 504 Service Agreement with the District that 

outlined the accommodations she needed. (Id. ¶ 27). 

In January of 2021, Jane Doe was sexually assaulted by A.P., a 

minor who was also enrolled at Riverside Junior/Senior High School. (Id.

¶ 28). The assault occurred outside of the school setting in Luzerne 

2 The remaining defendants, Bryan and Nicole Pica, have also filed a 

motion to dismiss (Doc. 20), which we will address through a separate 

Memorandum Opinion. 

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County, Pennsylvania. (Id. ¶ 29). Following the assault, the Luzerne 

County District Attorney’s Office filed a Petition Alleging Delinquency, 

alleging that A.P. raped and/or sexually assaulted Jane Doe. (Doc. 1 ¶ 

30). After a hearing, the Court adjudicated A.P. delinquent of Felony 2 

Sexual Assault pursuant to 18 Pa. Cons. Stat. § 3124.1. (Id. ¶ 31). 

The complaint alleges that throughout the pendency of the juvenile 

proceedings against A.P., Jane Doe’s mother, Jennifer Nied, was in direct 

communication with the District regarding the proceedings. (Id. ¶ 33). 

Specifically, Jennifer Nied alleges that she informed the District of A.P.’s 

delinquency adjudication at the conclusion of the juvenile case. (Id. ¶ 36). 

However, the complaint asserts that despite her concerns voiced to the 

District regarding A.P. having contact with Jane Doe during school, the 

District told Jennifer Nied that there was nothing that could be done to 

protect Jane Doe from A.P. (Id. ¶¶ 34, 37-38). 

Thus, following the juvenile adjudication, A.P. was permitted to 

attend the same lunch period as Jane Doe. (Doc. 1 ¶ 39). It is further 

alleged that A.P. was permitted to attend the semi-formal dance in 

January of 2022. (Id. ¶ 42). At the dance, A.P. sat at a table directly 

behind Jane Doe and her friends and allegedly harassed, embarrassed, 

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and threatened Jane Doe, causing her to spend most of the evening crying 

in the restroom. (Id. ¶¶ 43, 45). Some time after the semi-formal dance, 

the complaint alleges that A.P. verbally harassed Jane Doe in the 

hallway during school, mockingly shouting at her. (Id. ¶ 46). Accordingly, 

Nied contacted the District, informed individuals within the District of 

the ongoing issues, and requested a meeting with the principals and 

guidance counselor. (Id. ¶ 48). 

 At the meeting on February 23, 2022, the District informed Nied 

that it was unaware of A.P.’s juvenile adjudication or that A.P. was on 

juvenile probation, although the complaint alleges that the District was 

made aware not only by Nied but by A.P.’s juvenile probation officer. 

(Doc. 1 ¶¶ 49, 50). The District further informed Nied that there was 

nothing it could do to protect Jane Doe during school hours. (Id. ¶ 49). 

Thus, it is alleged that school continued to be a threatening and hostile 

environment for Jane Doe due to the District’s failure to protect her from 

A.P. (Id. ¶ 54). As an example, the complaint asserts that Jane Doe was 

forced to remain in a class taught by a teacher who created a hostile 

environment for her, despite her request to be transferred to another 

class, which was denied by the District. (Id. ¶ 56). 

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The complaint alleges that due to the District’s inaction and failure 

to protect Jane Doe, Jane Doe suffered and continues to suffer from 

physical and psychological harm, including self-mutilation, anxiety, 

decreased appetite, engaging in dangerous sexual activity, a decline in 

grades and attendance at school, post-traumatic stress disorder, 

depression, and panic attacks. (Id. ¶ 51). Further, the plaintiffs allege 

that Jane Doe’s education was substantially interfered with after the 

District created a hostile educational environment by permitting A.P. 

unfettered access to Jane Doe during school hours. (Id. ¶¶ 40, 47, 53-56). 

The plaintiffs filed this complaint on July 5, 2023. (Doc. 1). The 

complaint names the District, the School Board, Presley, Lazor, and 

Brennan as defendants, as well as Bryan and Nicole Pica, the parents 

and guardians of A.P. (Id.). The plaintiffs assert claims under Title IX, 

alleging discrimination and retaliation by the District and the School 

Board; claims under § 1983 against the District, the School Board, 

Presley, Lazor, and Brennan; state law claims of negligence, negligence 

per se, and breach of contract against the District and the School Board; 

and state law claims of intentional infliction of emotional distress and 

negligent infliction of emotional distress against Presley, Lazor, and 

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Brennan. The complaint also asserts claims of negligence per se and 

negligence against Bryan and Nicole Pica, A.P.’s parents. 

The District, the School Board, Presley, Lazor, and Brennan have 

now filed the instant motion to dismiss. (Doc. 18). In their motion, the 

defendants assert that the plaintiffs have failed to state a Title IX claim, 

that the § 1983 claims fail as a matter of law, and that the state law 

claims are barred by the Political Subdivision Tort Claims Act (“PSTCA”). 

They further contend that the plaintiffs’ state law claims fail as a matter 

of law. 

This motion is fully briefed and ripe for resolution. (Docs. 21, 25, 

28, 32, 33). After consideration, the motion will be granted in part and 

denied in part as follows: the motion will be granted with respect to the 

Title IX retaliation claim, § 1983 claims, state law claims, and claim for 

punitive damages against the District, as well as the request that the 

School Board be dismissed as a defendant; the motion will be granted as 

to the claims of intentional and negligent infliction of emotional distress 

against Preslesy, Lazor, and Brennan; and the motion will be denied as 

to the Title IX discrimination claim against the District. 

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III. Discussion 

 

A. Motion to Dismiss - Standard of Review 

The defendants have filed a motion to dismiss the complaint 

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Rule 

12(b)(6) permits the court to dismiss a complaint if the complaint fails to 

state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 

Under federal pleading standards, a complaint must set forth a “short 

and plain statement of the claim showing that the pleader is entitled to 

relief.” Fed. R. Civ. P. 8(a)(2). 

In determining whether a complaint states a claim for relief under 

this pleading standard, a court must accept the factual allegations in the 

complaint as true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 

(2007), and accept “all reasonable inferences that can be drawn from 

them after construing them in the light most favorable to the nonmovant.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 

1261 (3d Cir. 1994). However, a court is not required to accept legal 

conclusions or “a formulaic recitation of the elements of a cause of action.” 

Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare 

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recitals of the elements of a cause of action, supported by mere conclusory 

statements, do not suffice”). 

As the Third Circuit Court of Appeals has aptly summarized: 

[A]fter Iqbal, when presented with a motion to dismiss for 

failure to state a claim, district courts should conduct a twopart analysis. First, the factual and legal elements of a claim 

should be separated. The District Court must accept all of the 

complaint’s well-pleaded facts as true, but may disregard any 

legal conclusions. Id. Second, a District Court must then 

determine whether the facts alleged in the complaint are 

sufficient to show that the plaintiff has a “plausible claim for 

relief.” Id. at 1950. In other words, a complaint must do more 

than allege the plaintiff’s entitlement to relief. A complaint 

has to “show” such an entitlement with its facts. See Phillips, 

515 F.3d at 234–35. As the Supreme Court instructed in Iqbal, 

“[w]here the well-pleaded facts do not permit the court to infer 

more than the mere possibility of misconduct, the complaint 

has alleged—but it has not ‘show[n]’—‘that the pleader is 

entitled to relief.’ ” Iqbal, 129 S. Ct. at 1949. This “plausibility” 

determination will be “a context-specific task that requires 

the reviewing court to draw on its judicial experience and 

common sense.” Id. 

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). 

 Generally, when considering a motion to dismiss, a court relies on 

the complaint and its attached exhibits, as well as matters of public 

record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). A court 

can also consider “undisputedly authentic document[s] that a defendant 

attached as an exhibit to a motion to dismiss if the plaintiff’s claims are 

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based on the [attached] documents.” Pension Benefit Guar. Corp. v. 

White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Additionally, if 

the complaint relies on the contents of a document not physically 

attached to the complaint but whose authenticity is not in dispute, the 

court may consider such document in its determination. See Pryor v. 

Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). 

However, the court may not rely on any other part of the record when 

deciding a motion to dismiss. Jordan, 20 F.3d at 1261. 

B. The Motion will be Granted in Part and Denied in Part. 

 

As we have noted, the defendants have moved to dismiss all the 

claims against them, arguing that the plaintiffs have failed to state a 

claim upon which relief can be granted. As we will discuss below, we will 

grant the defendants’ motion as to the Title IX retaliation claim, § 1983 

claims, state law claims, and claim for punitive damages against the 

District. Additionally, we will grant the motion as to the § 1983 claims 

and intentional and negligent infliction of emotional distress claims 

against Presley, Lazor, and Brennan. However, in our view, the plaintiffs 

have sufficiently pleaded their Title IX discrimination claim against the 

District. Accordingly, the motion will be denied as to this claim. 

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1. The School Board will be Dismissed as a Defendant. 

At the outset, the defendants contend that any claims against the 

School Board must be dismissed, as the School Board is not a separate 

entity from the District. Several courts in this district have considered 

whether a school board is a proper party to a suit in which the plaintiff 

has also sued the school district. The consensus among these courts is 

that the school board is not a proper party to a suit in which the plaintiff 

has also sued the school district because the school board is not a political 

subdivision separate and apart from the District. See e.g., Smith v. 

Warwick Sch. Dist., 2016 WL 3854586, at *1 (E.D. Pa. July 8, 2016); E.B. 

v. Woodland Hills Sch. Dist., 2010 WL 2817201, at *4 (W.D. Pa. July 16, 

2010); Young v. Pleasant Valley Sch. Dist., 2008 WL 417739, at *10 (M.D. 

Pa. Feb. 13, 2008). Accordingly, given that the plaintiffs’ rights can be 

adjudicated through a suit against the District, we will dismiss the 

School Board as a defendant. 

2. The Plaintiffs’ Title IX Discrimination Claim Survives, but 

the Retaliation Claim will be Dismissed. 

 

The plaintiffs assert claims against the District under Title IX, 

alleging discrimination and retaliation. The complaint alleges that Jane 

Doe was subjected to a hostile educational environment when the District 

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was aware of and permitted sexual harassment against her by her 

abuser, A.P. The complaint further alleges that Jane Doe was subjected 

to retaliation after she complained about the harassment. After 

consideration, we conclude that the plaintiff has sufficiently pleaded a 

claim for Title IX discrimination against the District, but her retaliation 

claim fails as currently pleaded. 

Title IX prohibits entities receiving federal financial assistance 

from discriminating against, excluding, or denying benefits of an 

educational program or activity to individuals on the basis of sex. 20 

U.S.C. § 1681(a). Under Title IX, the School District may be liable for 

student-on-student sexual harassment if the District (1) had “substantial 

control over both the harasser and the context in which the harassment 

occurred”; (2) “had ‘actual knowledge’ of the harassment”; (3) “was 

‘deliberately indifferent’ to the harassment”; and (4) the harassment was 

so severe or pervasive that it effectively deprived the victim of access to 

educational benefits and opportunities provided by the school. Lockhart 

v. Willingboro High School, 170 F. Supp. 3d 722, 736 (D.N.J. 2015) 

(quoting Davis v. Monroe Cnty. Bd. of Education, 526 U.S. 629, 645, 650 

(1999)). 

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 We conclude that the complaint adequately pleads a claim of 

discrimination under Title IX. At the outset, it is undisputed that the 

District receives federal funds as required under § 1681. Further, the 

plaintiffs have pleaded that Jane Doe was subjected to sexual 

harassment. While the District contends that the harassment alleged by 

the plaintiff does not appear to be sexual in nature, it is clear from the 

complaint that the harassment of Jane Doe by A.P. is alleged to have 

stemmed from the earlier sexual assault perpetrated by A.P. As one court 

in this circuit has noted, “[w]hen a sexual assault triggers a course of 

harassment, the total course of events can be considered sexual 

harassment.” Goodwin v. Pennridge Sch. Dist., 389 F. Supp. 3d 304, 314 

(E.D. Pa. 2019) (citing C.S. v. Southern Columbia Sch. Dist., 2013 WL 

2371413, at *9 (M.D. Pa. May 21, 2013)). Accordingly, we conclude that 

the complaint sufficiently alleges that Jane Doe was subjected to sexual 

harassment. 

 We further conclude that the complaint adequately pleads that the 

District had knowledge of the harassment, had control over the harasser 

and the context in which the harassment occurred, and was deliberately 

indifferent to the harassment. Here, the complaint alleges that the 

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District was informed by Jennifer Nied, as well as by A.P.’s juvenile 

probation officer, that A.P. was adjudicated delinquent of sexually 

assaulting Jane Doe. It is further alleged that A.P. harassed Jane Doe 

during school hours and at a school dance, and that Jennifer Nied 

informed the District of this harassment during a meeting with the 

principals and guidance counselor. The complaint asserts that even after 

the District was informed of the harassment, it did nothing to prevent 

A.P. from further harassing Jane Doe; in fact, it is alleged that A.P. was 

permitted to attend the same lunch period as Jane Doe, and that she was 

denied the opportunity to transfer out of a class in which the teacher was 

creating a hostile environment for her. 

 Finally, the plaintiffs have alleged that Jane Doe was denied 

educational benefits and opportunities due to the District’s deliberate 

indifference. The complaint asserts that, in addition to the physical and 

emotional harm Jane Doe suffered, she also suffered a decline in her 

grades and an increase in absences from school due to A.P.’s continued 

harassment and the District’s failure to stop it. She further alleges that 

she requested to be transferred out of a class in which she was subjected 

to a hostile environment because of the harassment, and the District 

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denied this request. While a decline in grades, by itself, is not sufficient 

to prove a denial of educational opportunities, Davis, 526 U.S. at 652, in 

our view, the allegations taken together are sufficient at this stage to 

show that Jane Doe was denied educational benefits or opportunities. 

Accordingly, we find that the allegations in the complaint are sufficient 

to state a claim for Title IX discrimination against the District, and this 

claim will proceed forward.3 

 Title IX also prohibits an entity receiving federal funds from 

retaliating against individuals who report or complain of sex 

discrimination. Jackson v. Birmingham Bd. of Education, 544 U.S. 167, 

171 (2005). To state a retaliation claim, a plaintiff must show: “that he or 

she engaged in protected activity [under Title IX]; (2) defendant had 

knowledge of the protected activity; (3) adverse school-related action was 

taken against plaintiff; and (4) a causal connection between the protected 

3 The defendants have also challenged the plaintiffs’ ability to recover 

punitive damages as to this Title IX claim. Although we are permitting 

the discrimination claim to proceed forward, we will dismiss the claim for 

punitive damages, as courts in this circuit have held that punitive 

damages are not recoverable against a municipal entity such as a school 

district under Title IX. See M.S. ex rel. Hall v. Susquehanna Twp. Sch. 

Dist., 43 F. Supp. 3d 412, 433 (M.D. Pa. 2014); Dawn L. v. Greater 

Johnstown Sch. Dist., 614 F. Supp. 2d 555, 573 (W.D. Pa. 2008). 

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activity and the adverse action.” B.W. v. Career Tech. Ctr. of Lackawanna 

Cnty., 422 F. Supp. 3d 859, 886 (M.D. Pa. 2019) (internal quotations and 

citations omitted); Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 564 (3d 

Cir. 2017) (“Title VII’s familiar retaliation framework ‘generally governs’ 

Title IX retaliation claims.”). A complaint must allege “specific action 

taken by the [defendants] that can be found to be ‘materially adverse’ 

within the meaning of Title IX’s prohibition against retaliation.” S.K. v. 

North Allegheny Sch. Dist., 168 F. Supp. 3d 786, 804 (W.D. Pa. 2016). 

 Here, we agree with the defendants that the plaintiffs have not 

sufficiently pleaded a Title IX retaliation claim. While the complaint 

alleges that Jennifer Nied made a verbal complaint of discrimination 

with the District concerning A.P.’s harassment of Jane Doe, the 

complaint fails to allege any intentional conduct by the District that 

would constitute an adverse action. Rather, the complaint relies on the 

District’s inaction, rather than any affirmative action, to show that the 

District retaliated against the plaintiffs for complaining of the sexual 

harassment. Courts in this district have found that a plaintiff may not 

rely on a defendant’s inaction or failure to remedy discrimination as 

intentional conduct to support a claim of retaliation under Title IX. See 

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e.g., B.W., 422 F. Supp. 3d at 887 (“The mere possibility that defendant 

intentionally failed to curb the harassment . . . falls short of the plausible 

showing of intentional conduct needed to identify a form of materially 

adverse action needed to state a claim for retaliation.”); S.K., 168 F. Supp. 

3d at 805 (finding that the plaintiff’s reliance on an allegation that the 

district “was unable to curb the harassment and/or did not sufficiently 

discipline her harassers” did not support a claim of retaliation). While 

the plaintiffs couch the allegations in terms that would suggest an 

affirmative action was taken, e.g., that the District “compelled” Jane Doe 

to be in the same vicinity as her abuser, these allegations are simply an 

attempt to rephrase the District’s inaction as affirmative action taken by 

the District to support a claim of retaliation. See Morrow v. Balaski, 719 

F.3d 160, 179 (3d Cir. 2013) (“[M]erely restating the Defendants’ inaction 

as an affirmative failure to act does not alter the passive nature of the 

alleged conduct.”). 

 In this case, the plaintiff cannot rely on her allegations that the 

District failed to stop the harassment to sufficiently plead a retaliation 

claim against the District. Rather, “retaliation is, by definition, an 

intentional act.” Jackson, 544 U.S. at 173-74. Accordingly, this claim fails 

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as currently pleaded, and we will dismiss the plaintiff’s Title IX 

retaliation claim against the District. 

3. The Plaintiffs’ § 1983 Claims Fail as Currently Pleaded. 

The plaintiffs also assert claims under § 1983, alleging violations of 

the Fourteenth Amendment. The complaint alleges that the District, 

along with the individual defendants, had a pattern or practice of 

dissuading students from reporting sexual harassment. The plaintiffs 

assert that this practice by the defendants violated Jane Doe’s 

Fourteenth Amendment substantive due process rights, relying on the 

state-created danger doctrine. They also allege that this practice or 

custom violated the Equal Protection clause because it constituted 

disparate treatment of and had a disparate impact on female students in 

the District. However, after consideration, we conclude that the plaintiffs 

have not set forth sufficient allegations to support these § 1983 claims. 

a. State-Created Danger Claim 

The plaintiffs assert that the District and the individual defendants 

are liable for substantive due process violations under the state-created 

danger doctrine. They claim that the defendants’ inaction permitted the 

ongoing sexual harassment by A.P., which led to Jane Doe’s injuries. 

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Generally, the state does not have an affirmative duty to protect 

citizens from the actions of private individuals. DeShaney v. Winnebago 

Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 198-200 (1989). However, an 

exception exists when “the state acts to create or enhance a danger that 

deprives the plaintiff of his or her Fourteenth Amendment right to 

substantive due process.” Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 

2006) (citing Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996) 

(emphasis in original)). 

To prevail on a state-created danger theory, a plaintiff must show: 

(1) the harm ultimately caused was foreseeable and fairly 

direct; (2) a state actor acted with a degree of culpability that 

shocks the conscience; (3) a relationship between the state 

and the plaintiff existed such that the plaintiff was a 

foreseeable victim of the defendant’s acts, or a member of a 

discrete class of persons subjected to the potential harm 

brought about by the state’s actions, as opposed to a member 

of the public in general; and (4) a state actor affirmatively

used his or her authority in a way that created a danger to the 

citizen or that rendered the citizen more vulnerable to danger 

than had the state not acted at all. 

Sanford, 456 F.3d at 304-04 (quoting Bright v. Westmoreland Cnty., 443 

F.3d 276, 281 (3d Cir. 2006) (internal quotation marks and footnotes 

omitted) (emphasis added). The Third Circuit has noted the significance 

of the affirmative act requirement, which “distinguishes cases where 

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officials might have done more from cases where officials created or 

increased the risk itself.” G.S. v. Penn-Trafford Sch. Dist., 813 F. App’x 

799, 802 (3d Cir. 2020) (quoting Morrow, 719 F.3d at 179). 

 Thus, courts in this circuit have consistently held that a plaintiff 

fails to plead a state-created danger claim when she relies on the inaction

of the defendants, rather than alleging an affirmative act. See e.g., 

Morrow, 718 F.3d at 177-78 (school’s failure to protect a student does not 

constitute an “affirmative act”); Williams v. Jersey Shore Sch. Dist., -- F. 

Supp. 3d --, 2023 WL 3513677, at *8 (M.D. Pa. May 17, 2023) (dismissing 

a student’s claim based on a district’s failure to prevent bullying); 

Lansberry v. Altoona Area Sch. Dist., 318 F. Supp. 3d 739, 755-56 (W.D. 

Pa. 2018) (failure to prevent bullying or follow school’s own policy is not 

an affirmative act); Brown v. Sch. Dist. of Phila., 456 F. App’x 88, 92-93 

(3d Cir. 2011) (school district’s lack of affirmative action was fatal to § 

1983 claim). Accordingly, given that the plaintiffs have failed to identify 

any affirmative action taken by the District or the individual school 

officials, we conclude that this stated-created danger claim fails. 

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b. Monell Claim 

A municipal entity may be liable for a constitutional violation under 

§ 1983 if the violation was a direct result of the entity’s policy, custom or 

practice. Monell, 436 U.S. at 695. However, an entity may not be held 

liable “solely because injuries were inflicted by its agents or employees.” 

Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 

2007). Rather, a plaintiff must demonstrate a “direct causal link” 

between the alleged constitutional violation and the municipal policy or 

custom. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). A 

plaintiff may show that either an official policy of the municipality was 

the moving force behind the violation, or that the municipality had an 

informal custom such that it operated as the municipality’s policy. 

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986); Monell, 436 U.S. 

at 690. In either scenario, the plaintiff has the burden to show that the 

policy or custom was implemented or acquiesced in by a policymaker. 

Andrews v. City of Phila., 895 F.2d 1469, 1480 (3d Cir. 1990). 

Further, the plaintiff must show “that, through its deliberate 

conduct, the municipality was the ‘moving force’ behind the alleged 

injury.” Bd. of Cnty. Comm’rs of Bryan Cnty, Okl. v. Brown, 520 U.S. 397, 

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404 (1997). The Third Circuit has held that “failures to act cannot form 

the basis of a valid § 1983 claim.” Kaucher v. Cnty. of Bucks, 455 F.3d 

418, 433 n. 11 (3d Cir. 2006) (collecting cases); see also G.S. v. PennTrafford Sch. Dist., 813 F. App’x 799, 803 (3d Cir. 2020) (school’s failure 

to respond to reports of bullying not an affirmative act for § 1983 

liability); S.K., 168 F. Supp. 3d at 815 (same); Young v. Pleasant Valley 

Sch. Dist., 2012 WL 1827194, at *6 (M.D. Pa. May 18, 2012) (dismissing 

student’s claim that the school’s failure to prevent student-on-student 

harassment violated her constitutional rights). This is particularly so in 

cases in which the underlying violative act—the sexual harassment—is 

committed by private actors rather than state actors. D.R. by L.R. v. 

Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1376 (3d 

Cir. 1992) (distinguishing sexual abuse by a teacher who is a state actor 

from student-on-student sexual abuse perpetrated by a private actor). 

Here, the plaintiffs allege that the District’s failure to act, either on 

its own or through the principals and superintendent, was the moving 

force behind the alleged constitutional violation. Specifically, the 

plaintiffs contend that the District failed to remove A.P. from the school, 

intervene in the alleged sexual harassment, or otherwise protect Jane 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 22 of 32
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Doe from A.P.’s actions. Thus, the plaintiffs seek to hold the District 

liable for its failure to protect Jane Doe from the underlying actions of 

A.P., a private actor. These allegations are simply insufficient to state a 

§ 1983 claim against the District and the individual defendants. 

Accordingly, these claims will be dismissed. 

Moreover, even if the plaintiffs had met their burden to plead an 

affirmative act, they have not set forth sufficient factual allegations to 

support an Equal Protection claim. To state a claim under the Equal 

Protection clause, a plaintiff must show that she was purposefully 

discriminated against by a state actor because of her sex. Johnston v. 

Univ. of Pittsburgh of Com. System of Higher Education, 97 F. Supp. 3d 

657, 667 (W.D. Pa. 2015). Accordingly, she must plead facts showing “(1) 

disparate treatment in relation to other similarly situated individuals, 

and (2) that the discriminatory treatment was based on sex.” Id. 

Here, the plaintiffs assert in a conclusory fashion that the 

defendants violated Jane Doe’s Equal Protection rights when they failed 

to protect her from A.P.’s harassment. The complaint asserts that the 

defendants had a policy of dissuading students from reporting 

harassment, and that this policy or action by the defendants resulted in 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 23 of 32
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the disparate treatment of female students and survivors of sexual 

assault. However, notably missing from the complaint are any 

allegations that the District or its employees treated other students who 

reported harassment or who were victims of sexual assault differently. 

In fact, the plaintiff bewilderingly asserts that non-victims of sexual 

assault were not forced to confront any attackers to support her 

argument that she was treated differently in violation of the Equal 

Protection clause.4 

These conclusory and bare allegations are not enough to support an 

Equal Protection claim, and this claim will be dismissed. 

4. The District and Individual Defendants are Immune from the 

Plaintiffs’ State Law Tort Claims. 

 

The plaintiffs also assert state law claims against the defendants, 

alleging claims of negligence and negligence per se against the District, 

as well as claims of intentional and negligent infliction of emotional 

distress against the individual defendants. The defendants argue that 

4 This analysis applies equally to the extent the plaintiffs are asserting a 

class-of-one theory, as the plaintiffs “must allege facts sufficient to make 

plausible the existence of . . . similarly situated parties.” Perano v. Twp. 

of Tilden, 423 F. App’x 234, 238 (3d Cir. 2011). Here, the comparators the 

plaintiffs identify—non-victims of sexual assault—cannot be said to be 

similarly situated for purposes of an Equal Protection claim. 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 24 of 32
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they are entitled to immunity from these state law claims under 

Pennsylvania’s Political Subdivision Tort Claims Act (“PSTCA”), 42 Pa. 

Cons. Stat. § 8541. 

The PSTCA provides immunity to local agencies and their 

employees “for any damages on account of any injury to a person or 

property” caused by the agency or its employees. § 8541. This immunity 

is broad and all-encompassing, except for nine enumerated instances in 

which this immunity does not apply and may subject the agency to 

liability. 42 Pa. Cons. Stat. § 8542(b). The plaintiffs contend that their 

negligence claims fit within the ninth exception, the sexual abuse 

exception, which waives immunity for “[c]onduct which constitutes an 

offense enumerated under section 5551(7) . . . if the injuries to the 

plaintiff were caused by actions or omissions of the local agency which 

constitute negligence.” § 8542(b)(9). “Sexual abuse” cross references 

various criminal statutes, including 18 Pa. Cons. Stat. § 3124.1, of which 

the minor assailant, A.P., was adjudicated guilty. See 42 Pa. Cons. Stat. 

§ 5551. 

However, we cannot conclude that the allegations in the complaint, 

which entail conduct occurring in the school setting after Jane Doe was 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 25 of 32
26 

sexually assaulted by A.P., fall within the sexual abuse exception to 

constitute a waiver of immunity in this case. As one court in this district 

has explained, the alleged sexual abuse “must result from the 

municipality’s ‘acts or omissions.’” Doe v. Williamsport Area Sch. Dist., 

2023 WL 6929316, at *13 (M.D. Pa. Oct. 19, 2023). Thus, courts that have 

applied the sexual abuse exception have done so in cases in which the 

alleged sexual abuse was perpetrated on school property, such that it can 

be said that the negligent actions of the school or its employees were the 

proximate cause of the plaintiff’s injuries. See e.g., J.R. by and through 

Mr. R.R. v. Greater Latrobe Sch. Dist., -- F. Supp. 3d --, 2023 WL 

5510395, at *16 (W.D. Pa. Aug. 25, 2023); Doe by Brown v. Harrisburg 

Sch. Dist., 2020 WL 4584372, at *5 (M.D. Pa. Aug. 10, 2020); see also Doe 

v. Williamsport Area Sch. Dist., 2023 WL 6929316, at *15 (refusing to 

apply the sexual abuse exception where the agency’s duties arose after 

the sexual abuse). 

While the plaintiffs allege that the sexual harassment by A.P. 

stemmed from the prior sexual assault, we do not believe that the waiver 

encompasses sexual harassment as the plaintiff has alleged here. As one 

court in this district noted when considering the statutory construction 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 26 of 32
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of the sexual abuse exception, “[i]f the PSTCA’s drafters wanted the 

‘sexual abuse’ waiver to sweep more broadly than the criminal statutes 

they referenced, they did not say so.” Reed v. Mount Carmel Area Sch. 

Dist., 2023 WL 6449429, at *7 (M.D. Pa. Oct. 3, 2023). Here, had Jane 

Doe’s sexual abuse, as enumerated in 18 Pa. Cons. Stat. § 3124.1, 

occurred in the school setting and was a result of the school’s negligence, 

we would have no trouble finding that the exception applies. However, 

the instant complaint encompasses alleged conduct that occurred after 

the sexual assault that is contemplated by the exception. Accordingly, we 

cannot conclude that the sexual abuse exception applies here, and the 

negligence claims against the District will be dismissed. See Doe v. 

Williamsport Area Sch. Dist., 2023 WL 6929316, at *15. 

With respect to the tort claims asserted against the individual 

defendants, we find that these defendants are entitled to immunity from 

these claims. Generally, employees of a local agency are entitled to the 

same immunity as the agency, provided that the employees were acting 

within the scope of their employment at the time of the alleged conduct. 

42 Pa. Cons. Stat. § 8545. This immunity does not apply, however, “where 

their conduct amounts to ‘actual malice’ or ‘willful misconduct[.]’” 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 27 of 32
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Sanford v. Stiles, 456 F.3d 298, 315 (3d Cir. 2006) (quoting 42 Pa. Cons. 

Stat. § 8550). “Willful misconduct” is defined as conduct by which “the 

actor desired to bring about the result that followed or at least was aware 

that it was substantially certain to follow, so that such a desire can be 

implied.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994) 

(internal quotations and citations omitted). 

As to the negligent infliction of emotional distress claim, our 

analysis with respect to the negligence claims against the District is 

equally applicable here. The negligent conduct alleged by the plaintiffs 

does not fit within the sexual abuse exception to the PSTCA, and thus, 

this claim will be dismissed as to the individual defendants. With respect 

to the intentional infliction of emotional distress claim, we conclude that 

even if the PSCTA does not provide immunity against this claim, the 

plaintiffs have not stated a claim against the individual defendants. See

K.A. ex rel. J.A. v. Abington Heights Sch. Dist., 28 F. Supp. 3d 356, 376 

(M.D. Pa. 2014) (concluding that “the allegations of the tort of IIED are 

synonymous with an allegation of willful misconduct, . . . thereby 

preventing immunity from attaching[.]”). 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 28 of 32
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To state a claim for intentional infliction of emotional distress, a 

plaintiff must plead facts to show that the conduct of the defendants was 

“intentional, outrageous, or extreme conduct” that caused the plaintiff 

severe emotional distress. K.A. ex rel. J.A., 28 F. Supp. 3d at 376 (quoting 

Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)). The 

Pennsylvania courts have characterized outrageous or extreme conduct 

as “conduct that is ‘so outrageous in character, so extreme in degree, as 

to go beyond all possible bounds of decency, and to be regarded as 

atrocious, and utterly intolerable in civilized society.’” Swisher, 868 A.2d 

at 1230 (quoting Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 

1122 n.5 (Pa. Super. Ct. 2004)). Thus, only the most egregious conduct 

will qualify as “outrageous” for purposes of intentional infliction of 

emotional distress: 

Cases which have found a sufficient basis for a cause of action 

of intentional infliction of emotional distress have had 

presented only the most egregious conduct. See e.g., Papieves 

v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970) (defendant, 

after striking and killing plaintiff's son with automobile, and 

after failing to notify authorities or seek medical assistance, 

buried body in a field where discovered two months later and 

returned to parents (recognizing but not adopting section 46)); 

Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 

1236 (1981) (defendants intentionally fabricated records to 

suggest that plaintiff had killed a third party which led to 

plaintiff being indicted for homicide); Chuy v. Philadelphia 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 29 of 32
30 

Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) 

(defendant's team physician released to press information 

that plaintiff was suffering from fatal disease, when physician 

knew such information was false). 

Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). 

Here, the plaintiffs’ complaint merely alleges inaction on the part 

of the individual defendants; that is, that they should have done more to 

curb the harassment perpetrated by A.P. These allegations fall woefully 

short of what is needed to support a claim for extreme or outrageous 

conduct resulting in intentional infliction of emotional distress. 

Accordingly, this claim will be dismissed. 

5. The Breach of Contract Claim Fails as a Matter of Law. 

Finally, the District challenges the plaintiffs’ breach of contract 

claim. The plaintiffs assert that the District breached the Riverside 

Junior/Senior High School Student Handbook when it failed to inform 

Jane Doe of the formal complaint procedures for reporting harassment 

and failed to conduct a formal investigation into her complaints of 

harassment. For its part, the District contends that the student 

handbook is not an enforceable contract. 

To plead the existence of a contract under Pennsylvania law, the 

plaintiff must allege “(1) the existence of a contract, including its 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 30 of 32
31 

essential terms, (2) a breach of a duty imposed by the contract, and (3) 

resultant damages.” CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 

1058 (Pa. Super. Ct. 1999). While we have not found any caselaw 

speaking specifically to public high school student handbooks, courts in 

Pennsylvania have “declined to construe the student handbook of a public 

university as a contract between the public university and the student.” 

Cohn v. Pennsylvania State Univ., 2020 WL 738496, at *9 (E.D. Pa. Feb. 

12, 2020) (quoting Tran v. State Sys. of Higher Education, 986 A.2d 179, 

183 (Pa. Commw. Ct. 2009) (internal quotation marks and citations 

omitted). Thus, courts have routinely dismissed breach of contract claims 

premised on an alleged breach of a student handbook. See e.g., Borrell v. 

Bloomsburg Univ., 955 F. Supp. 2d 390, 408 (M.D. Pa. 2013); Carroll v. 

Millersville Univ. of PA, 2019 WL 2423268, at *8 (E.D. Pa. June 6, 2019). 

We similarly conclude that the plaintiffs’ breach of contract claim 

based on an alleged breach of the student handbook fails as a matter of 

law. Accordingly, this claim will be dismissed. 

IV. Conclusion 

For the foregoing reasons, the defendants’ motion to dismiss (Doc. 

18) will be GRANTED IN PART and DENIED IN PART as follows: 

Case 3:23-cv-01118-DFB Document 36 Filed 12/11/23 Page 31 of 32
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1. The motion will be GRANTED with respect to the Title IX 

retaliation claim, § 1983 claims, state law claims, and claim 

for punitive damages against the District; 

2. The School Board will be DISMISSED as a defendant; 

3. The motion will be GRANTED as to the § 1983 claims and 

claims of intentional and negligent infliction of emotional 

distress against Presley, Lazor, and Brennan; and 

4. The motion will be DENIED as to the Title IX discrimination 

claim against the District. 

An appropriate order follows. 

 s/ Daryl F. Bloom 

Daryl F. Bloom 

United States Magistrate Judge 

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