THE UNITED STATES DISTRICT COURT 


FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 


ELAINE AND VICTOR SWANGER, 

as parents and legal guardians of 

B.J.S., and B.J.S., 

Plaintiffs, 

v. 4:11-CV-894 

(JUDGE MARIANI) 

WARRIOR RUN 

SCHOOL DISTRICT, et al., 

Defendants. 

MEMORANDUM OPINION 

I. INTRODUCTION 

Presently before the Court is a Motion for Summary Judgment by Defendants 

Diversified Treatment Alternatives (''OTA'') and Alvin Weaver (collectively hereinafter 

"Mental Health Defendants"). (Doc. 133). Defendants Warrior Run School District, Patricia 

Cross, Douglas Bertanzetti, Tammy Osenga, and Cynthia Del Gotto (collectively hereinafter 

"School Defendants") also moved for summary judgment (Doc. 156) which will be 

addressed in a separate opinion. The issues have been fully briefed and the parties have 

submitted extensive documentary evidence in support of their respective positions. For the 

reasons that follow, the Court will grant the Mental Health Defendants' Motion for Summary 

Judgment. 

Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 1 of 33
1 II. PROCEDURAL HISTORY I 

I Plaintiffs, Bobbie Jo Swanger, and Elaine and Victor Swanger, as parents and legal 	 ,

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I guardians of Bobbie t Jo, filed a Complaint (Doc. 1) with this Court on May 11, 2011. Since 


this time, Plaintiffs have filed an Amended Complaint (Doc. 34), which was the subject of a ! 

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t motion to dismiss by the School Defendants which the Court granted in part and denied in 

! part, prompting Plaintiffs to file a Second Amended Complaint on March 8, 2013 (Doc. 77). 	 I 

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Plaintiffs' Second Amended Complaint, against Defendants Warrior Run School District, 

Patricia Cross, Douglas Bertanzetti, Tammy Osenga, Cynthia Del Gotto, Duane Mattison, t 

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Diversified Treatment Alternatives, and Alvin Weaver, sets forth nine counts: violation of 

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (Count I) and Title IX l 

of the Education Amendments of 1972,20 U.S.C. § 1681(a) (Count II) against the Warrior 

Run School District; violation of Bobbie Jo's substantive due process rights under 42 U.S.C. 	 I 

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t § 1983 (Count III) and breach of fiduciary duty (Count IV) against Patricia Cross, Douglas I 

Bertanzetti, Tammy Osenga, and Cynthia Del Gotto; assault (Count V), battery (Count VI), I 

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and intentional infliction of emotional distress (Count VII) against Duane Mattison; and 

! negligence (Count VIII) and violation of 42 U.S.C. § 1983 (Count IX) against Diversified 	 t

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Treatment Alternatives and Alvin Weaver. (Doc. 77). 	 II In addition to filing an Answer to Plaintiffs' Second Amended Complaint, the School 1 

Defendants also filed across-claim against Diversified Treatment Alternatives, Alvin I 

Weaver, and Duane Mattison alleging that those Defendants are solely liable if it is I 

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determined that Plaintiffs are entitled to recover damages, or in the alternative, if it is 
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determined that the School Defendants are liable to Plaintiffs, that the other Defendants are t 

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jointly and severally liable with them and/or should be held liable over the School I 

Defendants for contribution and/or indemnification. (Doc. 78). I 

III. STATEMENT OF UNDISPUTED FACTS I 

In accordance with Local Rule 56.1, DTA and Weaver have submitted a Statement I 

of Material Facts in Support of their Motion for Summary Judgment (Doc. 134) as to which 

they submit there is no genuine issue or dispute for trial. Plaintiffs have submitted their 

response, a Counter Statement of Facts (Doc. 154) with the result being that the following 

facts have been admitted except as speci'flcally noted: 

Plaintiffs, Elaine Swanger and Victor Swanger are the parents and guardians of 

Plaintiff Bobbie Jo Swanger, who, at all times relevant to this action, was astudent at 

Warrior Run School District in its special education and life skills program due to her mental 

retardation. (Doc. 134, mr 1,2). At all times relevant hereto, Defendant Duane Mattison 

was also astudent at Warrior Run School District in its special education and life skills I

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program, and under the legal and physical custody of the Tioga County, Pennsylvania I Department of Human Services. (/d. at ~ 3). Defendants Patricia Cross and Douglas I Bertanzetti were the Principal and Assistant Principal respectively at Warrior Run High I 

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l School. (Id. at mr 4, 5). Defendant Cynthia Del Gotto was a learning support teacher at the 

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high school and Defendant Tammy Osenga was ateacher at the high school who taught 

language arts and math to students in the life skills program. (Id. at W6,7). 

Defendant Diversi'fied Treatment Alternatives is aPennsylvania non-profit 

organization that provides individualized psychiatric treatment programs for at-risk 

adolescent males. (Id. at ~ 8). DTA is licensed by the Pennsylvania Department of Public 

Welfare Office of Mental Health and Substance Abuse Services and the Office of Children 

and Youth Families, and is accredited by the Joint Commission of Healthcare 

Organizations. (ld. at ~ 9). Defendant Alvin Weaver is a mental health professional in 

DTA's Community Residential Rehabilitation host home where he is "part of a treatment 

team that provides counseling to post-traumatized individuals." (Dep. of Alvin Weaver, Doc. 

154, Ex. 2, at 6-7). Weaver, as aMental Health Professional for DTA, is a member of a 

treatment team, which consists of approximately seven mental health professionals, who 

collaborate to provide individualized counseling and treatment services to DTA patients. 

(Doc. 134, ~ 11). Among the treatment services provided by DTA, two of its main programs 

are its Residential Treatment Program and Specialized Foster Care Program. (Id. at ~ 12). 

Adolescent males are typically referred to DTA for treatment by county Children & 

Youth Services Departments, Juvenile Probation Departments, county Mental Health Mental 

Retardation Services programs, as well as some private referrals, such as parents and 

family members. (Doc. 134, ~ 13; Doc. 154, ~ 13). Upon referral to DTA for services, a 

patient will typically begin treatment at DTA's main residential treatment facility in Danville or 

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Lewisburg. (Doc. 134, 1l14). Once a patient has met certain treatment milestones and has 


demonstrated awareness of DTA's program and rules and expectations, the patient is 

eligible to transfer to the Montour Learning Center, DTA's "second home" for continued 

treatment. (Id. at 1l15). At this Learning Center, adolescents continue their individualized 

course of treatment and work with DTAstaff on relapse prevention plans and other goals 

that the adolescent needs to accomplish in order to be eligible for post-placement. (Id. at 1l 

16). As part of managed care, DTA provides psychological evaluations to its patients 

regularly throughout the course of treatment. (Id. at 1l17). Once a patient successfully 

completes DTA's residential treatment programs and is eligible for post-placement, there 

are several options depending on the individual's family situation and support system; the 

adolescent may return to his family, transition to an independent living environment with the 

assistance of DTA, or be placed with afoster care family through DTA's foster care program 

or other agency. (Id. at1l18). While in DTA's specialized foster care program, adolescents 

undergo psychiatric evaluations by a DTA psychiatrist and attend weekly individual and 

group therapy sessions run by DTA's case managers. (Id. at 1l19). 

In May 2007, the Court of Common Pleas of Tioga County issued an Order 

adjudicating Mattison dependent and in need of treatment, supervision, and/or rehabilitation, 

and ordered that Mattison be placed in the custody of the Tioga County Human Services 

Agency and at the Laurel Youth Services Diagnostic Unit for diagnostic evaluation. (Doc. 

134,1l26). Laurel Youth Services evaluated Mattison and recommended him for treatment, 

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as aresult of which the Tioga County, Pennsylvania Department of Human Services, placed 

him with DTA, to be enrolled in DTA's residential treatment program. (Id. at ~ 27). 

That same month, Mattison entered DTA's residential treatment program, where he 

began undergoing mental health treatment at its facility in Lewisburg. (Id. at ~ 28). After a 

period of time, Mattison was transferred to DTA's second home at the Montour Learning 

Center. (Dep. of Kristen Powell, Doc. 154, Ex. 4, at 10). While at the Montour Learning 

Center, Mattison attended on-site schooling, provided by the Central Susquehanna 

Intermediate Unit. (Doc. 134, ~ 30). According to Kristen Powell, Mattison's caseworker at 

the Montour Learning Center, there were no problems with him acting out sexually or other 

incidents reported while at the Montour Learning Center. (Dep. of Powell, at 9, 11). Michael 

Jones, DTA's Administrative Coordinator at the Montour Learning Center, testified that at 

the time Mattison graduated from the residential treatment program and was placed in foster 

care, "Duane had demonstrated no sexually inappropriate behavior within the residential 

treatment component" which was approximately two years in duration. (Doc. 134, ~ 32). 

Mattison also testified that no incidents occurred while he lived at DTA. (ld. at ~ 33). 

In February 2009, Mattison graduated from the Montour Learning Center and was 

placed in the foster home of Pat and Bob Baier. (Doc. 134, 34). Soon thereafter, 

Mattison began attending Warrior Run High School and was enrolled in the school's life 

skills program for the rest of his tenth grade, and a portion of his eleventh grade and twelfth I 

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grade school years. (Doc. 134, W35,39; Doc. 154, W35,39). I 

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On March 14,2011, an incident allegedly occurred between Mattison and Bobbie Jo 

in Del Gotto's English class at Warrior Run High School. (Doc. 134, 1l40). Mattison, seated 

in the desk immediately behind Bobbie Jo, reached around his laptop and desk, and 

"touched her underneath her bra and ... put [his] hand down her pants." (Doc. 134, 1l41; 

Dep. of Duane Mattison, Doc. 154, Ex. 3, at 43-44). Nathan Neidig, another student seated 

immediately behind Mattison, testified that he "reached [his] head around the corner to see 

what [Mattison] was doingll and saw that Mattison had his hand down Bobbie Jo's pants. 

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(Doc. 134, 1l42). After class, Neidig reported to Del Gotto what he had witnessed between 

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Mattison and Bobbie Jo. (Id. at 1l43). Del Gotto testified that she and Trish Marino, another 

teacher at Warrior Run, then brought Bobbie Jo into the classroom and asked her to show 

them what happened between her and Mattison. (Id. at 1l44). The incident was then 

reported to Bertanzetti, who met with Mattison to discuss the reported incident, at which 

time Mattison admitted that he put his hand up Bobbie Jo's shirt. (Id. at 1m 45, 46). 

Mattison was removed from Warrior Run High School that afternoon. (Doc. 134, 1l47).1 

Bertanzetti contacted Ms. Swanger that same day and informed her that Mattison had 

inappropriately touched Bobbie Jo's breast and genital region. (Id. at 1l49). Ms. Swanger 

testified that during that telephone call, Bertanzetti encouraged her to press criminal 

charges against Mattison and "said that they wanted to get Duane out of the school district 

1 Mattison never returned to Warrior Run High School after he was removed on March 14,2011. 

(Doc. 134, 1f 48). 

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and if [she] would bring charges against him that would make it easier for them to do that." 

(Id. at ~ 56). 

After learning of the incident, Ms. Swanger contacted the Pennsylvania State Police 

to report the incident and pursue criminal charges against Mattison. (Doc. 134, ~ 50). 

Ultimately, on May 17,2011, acriminal complaint was filed in Northumberland County, 

Pennsylvania, charging Mattison with aggravated indecent assault, indecent assault, and 

indecent exposure based on the March 14,2011 events. As aresult, Mattison pled guilty to 

the charges of indecent assault and nolo contendere to indecent exposure. (Id. at 1m 52, 

53). On August 25,2011, the Court issued orders suspending the imposition of Mattison's 

sentence and, along with certain conditions, placed Mattison on probation for aperiod of 

two years for each of the charges, to run consecutively. (Id. at ~ 54). The Court further 

ordered that Mattison reside, participate, and successfully complete the Mainstay North 

Program. (Id. at ~ 55). 

Before March 14, 2011, Bobbie Jo never told anyone that Mattison had made 

advances towards her. (Doc. 134, ~ 57). While the Swangers did not notice or recognize 

any signs of sexual abuse in their daughter, according to Ms. Swanger, approximately one 

month before the March incident, Bobbie Jo "got quieter" and would spend more time in her 

room reading by herself, instead of with the family. (Id. at 1m 59, 60; Dep. of Elaine 

Swanger, Doc. 154, Ex. 7, at 51-52). 

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After March 2011, Ms. Swanger testified that she received multiple phone calls from 


the school, informing her that Bobbie Jo "was writing different singer's names from 

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magazines and saying that she wanted to make sex with them, she wanted to kiss them" 

and that Bobbie Jo had received detention several times for different issues. (Doc. 134, ~ I 

63). At no time have Plaintiffs consulted with any healthcare professional regarding Bobbie 

Jo and the problems they believe to have occurred or resulted from the incident between 

her and Mattison. (Id. at 1f 64). Specifically, Bobbie Jo has never been examined by her 

family physician for any issues relating to the incident between her and Mattison and, 

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despite her family physician's office providing the family with a list of psychologists that 

Bobbie Jo could speak with, according to Ms. Swanger, Bobbie Jo "chose not to talk to 

anyone." (Doc. 134, 1f1f 65,66; Doc. 154, 1f1f 65,66; Dep. of Elaine Swanger, at 56). Ms. 

Swanger also testified that no healthcare practitioner has related any of the perceived 

changes in Bobbie Jo's behavior or health to the incident between Mattison and Bobbie Jo. 

(Doc. 134, 67; Doc. 154, 1f 67). 

The parties agree that DTA and its administrative and clinical staff, including Alvin 

Weaver, are required to comply with Pennsylvania Department of Public Welfare Rules and 

Regulations which govern the confidentiality of records and the release of confidential 

information to outside third parties such as the Warrior Run School District, but Plaintiffs 

dispute that these regulations limited the exchange of information between DTA and Warrior 

Run personnel. (Doc. 134, ~ 69; Doc. 154, 1f 69). 

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IV. STANDARD OF REVIEW 

Through summary adjudication, the court may dispose of those claims that do not 

present a"genuine dispute as to any material fact." Fed. R Civ. P. 56(a). "As to materiality, 

... [o]nly disputes over facts that might affect the outcome of the suit under the governing 

law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 248 (1986). 

The party moving for summary judgment bears the burden of showing the absence 

of agenuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 

S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such ashowing has been made, the non-moving 

party must offer specific facts contradicting those averred by the movant to establish a 

genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). 

Therefore, the non-moving party may not oppose summary judgment simply on the basis of 

the pleadings, or on conclusory statements that afactual issue exists. Anderson, 477 U.S. 

at 248. "A party asserting that afact cannot be or is genuinely disputed must support the 

assertion by citing to particular parts of materials in the record ... or showing that the 

materials cited do not establish the absence or presence of agenuine dispute, or that an 

adverse party cannot produce admissible evidence to support the fact." Fed. R Civ. P. 

56(c)(1 )(A)-(8). In evaluating whether summary judgment should be granted, "[t]he court 

need consider only the cited materials, but it may consider other materials in the record." 

Fed. R Civ. P. 56(c)(3). "Inferences should be drawn in the light most favorable to the nonJ 10 I 

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moving party, and where the non-moving party's evidence contradicts the movant's, then 


the non-movant's must be taken as true," Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 

F.2d 1358,1363 (3d Cir.1992), cert. denied 507 U.S. 912 (1993). 

However, "facts must be viewed in the light most favorable to the nonmoving party 

only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380,127 

S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the 

summary judgment rule, 

its opponent must do more than simply show that there is some metaphysical 

doubt as to the material facts. Where the record taken as a whole could not 

lead a rational trier of fact to find for the nonmoving party, there is no genuine 

issue for trial. The mere existence of some alleged factual dispute between 

the parties will not defeat an otherwise properly supported motion for 

summary judgment; the requirement is that there be no genuine issue of 

material fact. When opposing parties tell two different stories, one of which is 

blatantly contradicted by the record, so that no reasonable jury could believe 

it, acourt should not adopt that version of the facts for purposes of ruling on a 

motion for summary judgment. 

Id. (intemal quotations, citations, and alterations omitted). 

V. ANALYSIS 

A. Count VIII- Negligence 

Count VIII alleges that the Mental Health Defendants "determined, or should have 

determined, that Defendant Mattison presented aserious danger of acting out sexually 

against other students" and "took inadequate, or no steps to warn the school" about 

Mattison's "known sexually aggressive behavior" despite "a duty to exercise reasonable 

care to protect by warning the intended or readily identifiable victims of Defendant Mattison 

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against such danger and ... to disclose information about aclient that they knew or had 

reason to believe could be a harm to others." (Doc. 77, 1m 86-88). 

Under Pennsylvania law, a plaintiff must prove the following elements to prevail on 

a negligence claim: (1) the defendant had a duty to conform to a certain standard of 

conduct; (2) the defendant breached that duty; (3) such breach caused the injury in 

question; and (4) the plaintiff incurred actual loss or damage. Pyeritz v. Commonwealth, 32 

A.3d 687, 692 (Pa. 2011). Mental Health Defendants argue that there are no record facts 

to support afinding that they owed a duty to warn or disclose Mattison's mental health 

information to Plaintiffs or the School District. (Doc. 136, at 7). In so doing, Defendants rely 

on federal and state statutes and regulations and Pennsylvania Department of Public 

Welfare Rules and Regulations for the proposition that they were legally prohibited from 

disclosing Mattison's confidential mental health information, as well as a general assertion 

that, under Pennsylvania law, the Mental Health Defendants do not owe aduty to control 

the conduct of athird party to protect another from harm. (Id. at 7-11). 

Whether a defendant in an action for negligence is under a legal duty to conform to a 

certain standard of conduct is aquestion of law. Thus, although the issue of negligence is 

one better left to afact finder, in the absence of a duty, the fact trier has nothing to consider. 

See Emerich v. Philadelphia Ctr. for Human Dev., Inc., 720 A.2d 1032, 1044 (Pa. 1998) 

("While the existence of a duty is a question of law, whether there has been a neglect of 

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such duty is generally for the jury."). Nonetheless, "[t]he issue of whether an act or afailure l 

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to act constitutes negligence may be removed from consideration by ajury and decided as 

a matter of law when the case is free from doubt and there is no possibility that a 

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threat of serious bodily injury has been conveyed by the patient to the professional I 

regarding aspecifically identified or readily identifiable victim." 'd. at 1041, 1043. Because 

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reasonable jury could find negligence." 'd. 

Under common law in Pennsylvania, there is generally no duty to control the conduct 

of athird party to protect another from harm. Emerich, 720 A.2d at 1036. However, a 

limited exception exists where adefendant either has aspecial relationship with the third 

person "which imposes a duty upon the actor to control the third person's conduct" or has a 

special relationship with the intended victim which gives rise to a right to protection for the 

victim. Restatement (Second) of Torts § 315 (1965). "The vast majority of courts that have 

considered the issue have concluded that the relationship between amental health care 

professional and his patient constitutes a special relationship which imposes upon the 

professional an affirmative duty to protect athird party against harm. Thus, the concept of a 

duty to protect by warning, albeit limited in certain circumstances, has met with virtually 

universal approval." Emerich, 720 A.2d at 1037. Therefore, "a mental health professional 

who determines, or under the standards of the mental health profession, should have 

determined, that his patient presents a serious danger of violence to another, bears aduty 

to exercise reasonable care to protect by warning the intended victim against such danger." 

'd. at 1040, 1043. This limited duty to warn only arises "where a specific and immediate 


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"the protective privilege ends where the public peril begins", the law protecting privileged 

communications between a mental health care professional and his or her patient is not 

violated, and does not prohibit, afinding that a duty existed on the part of the mental health 

professional to warn an intended victim of a patient's threats of serious bodily harm. ld. at 

1043 (quoting Tarasoff v. Regents of Univ. of California, 551 P.2d 334, 347 (Cal. 1976)). 

Assuming a special relationship existed between the Mental Health Defendants and 

Mattison, the limited duty imposed by Pennsylvania law still precludes a finding that the 

Mental Health Defendants owed, and therefore breached, aduty to the plaintiffs. It is 

undisputed that DTA and Weaver were aware of Mattison's past sexual history, including his 

previous sexual behavior at Williamson High School. But there is absolutely no record 

evidence that Mattison ever communicated athreat to any DTA mental health professional 

regarding an intent to cause serious bodily harm to any student at Warrior Run, let alone to 

Bobbie Jo. The narrow exception to the general rule that there is no duty to control the 

conduct of athird party to protect another from harm is limited to whether the third party said 

or communicated athreat to the mental health professional regarding a specific or readily 

identifiable individual. Here, the only evidence of record is that DTA knew about Mattison's 

past, including his sexual propensities. Plaintiffs use this evidence to suggest that DTA 

should have known that, due to Mattison's past, he would touch one or more of his fellow 

students at Warrior Run and therefore the defendants owed Plaintiffs aduty to warn. Such 

afinding would lead to an application of the duty excessive in scope and breadth which I 

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would risk violating a patient's rights and undermining the purpose of strict mental health 


professional-patient confidentiality rules and law. Under Plaintiffs' reasoning, the Mental 

Health Defendants had a duty to warn an almost unlimited array of potential victims, whose 

identification would be difficult at best. Should the Mental Health Defendants have warned 

only the females in Mattison's special education classes? Or every student, male and 

female, in the special education classes2? Every female at Warrior Run or every student in 

the school since Mattison testified that he participated in several regular education 

classes3? Other than the entire student body, Plaintiffs have not put forth evidence to 

narrow this population to establish the presence of a specifically identified or readily 

identifiable victim.4 To adopt Plaintiffs' argument would force mental health professionals to 

2 Mattison also had ahistory of sexual behavior with other males. See Laurel Youth Services 

Psychiatric Evaluation, June 6, 2007, Doc. 154, Ex. 11, at 2 (Mattison and another boy "engaged in a 

sexual act in the bathroom of the Williamson High School earlier this year [2007], which, Duane states, was 

forced upon him, while the other Individual states it was consensual." Regardless of whether this one 

encounter was consensual, "it is clear that [the two boys] engaged in consensual activity with each other on 

a number of occasions over several years."). 

3 Mattison testified that he had gym, drivers' ed, and art with the "regular" students. (Dep. of 

Mattison, at 30). 

4 Plaintiffs argue that Bobbie Jo was areadily identifiable victim "in that she was mentally retarded, 

same age, female classmate in the special education classroom." (Doc. 155, at 12). Although multiple 

psychiatric reports state that Mattison previously touched female students at Williamson and engaged in 

sexually inappropriate behavior towards these students, the reports do not indicate that all of the females 

were the same age as Mattison, although certainly some of them were. or, crucially, that each of the 

females Mattison touched were mentally challenged. See e.g., Laurel Youth Services Social History, June 

12. 2007. Doc. 154, Ex. 11, at 5, 9, 12, 13, 14 ("In March 2007, several female students at Williamson I 

Jr./Sr. High School reported that Duane made inappropriate gestures towards them"; ateacher reported 

that Mattison "touched the buttocks of three or four classmates"; at 15-years-old, Mattison touched the 1 

buttocks of a 13-year-old female student without her consent.). The only indication that Mattison targeted 

mentally challenged students is one teacher's opinion that "Duane chose the lowest functioning female 

students in the classroom and tried to be alone with them." Id. at 6. The psychiatric reports do not state I

that Mattison's inappropriate behavior was limited to mentally challenged females and do not make a I 

determination as to whether Mattison speCifically targeted mentally challenged students. 

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warn an unnecessarily large, and to some extent arbitrary, designation of people of a 


patient's potential danger to them, solely in an attempt to avoid potential liability. 

Both parties rely on Emerich in support of their respective arguments, and the Court 

acknowledges that the duty to warn is applicable to this case and would extend to the 

serious and immediate threat of sexual assault. But Plaintiffs have not put forth any 

evidence to show a genuine factual dispute as to whether Mattison ever communicated a 

threat to anyone at OTA which would be encompassed within the Emerich exception. OTA, 

via Weaver, acknowledged that the duty established under Emerich exists and that he was 

bound by it.5 Plaintiffs, though they had an opportunity to do so, never further inquired of 

Weaver (or ever inquired of any other OTA employee) whether he, or any other mental 

5 The following exchange took place during Plaintiffs' examination of Weaver: 

Q. I have on follow-up. In your opinion is there any situation that would warrant the 

disclosure of information to aschool or to an official? 

A. If there was a signed release for records, in that instance information could be 


released. 
 

Q. Asigned release by whom? 

A. The client. 

Q. Is there a reason, a health and safety reason, that you might have to disclose the 
 

information as far as you know? 


A. Based on -- for example, if someone was disclosing that they were going to do 


significant harm to themselves or someone else, if they said to me they were going to 


murder someone, then I am obligated to share information with the police, for example. 
 

Q. Is that the only situation that you believe would obligate you to disclose? , A. Again, these are hypothetical situations 

Q. Right. 

A. -- but if asituation would be significant harm to self or others. 

Q. What do you consider significant harm? 

A. It's avery vague area. I don't have adefinition. 

Q. So if you had information that you considered to be significant harm to others then you 


could disclose it? 
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health care professional, had ever received information from Mattison that he intended to, or 

threatened to, sexually assault or seriously injure a readily identifiable person such as 

Bobbie Jo or any other student at Warrior Run. In addition to Weaver's testimony that he 

knew he had a duty to disclose a patient's confidential information to the extent that a 

patient had communicated "that they were going to do significant harm to themselves or 

someone else", and the fact that Weaver never informed anyone that Mattison posed a 

threat to any students, Jones' deposition testimony further bolsters Defendants' argument 

that U[d]iscovery has not revealed any evidence that Mattison communicated any threats of 

serious bodily injury, much less any specific and immediate threats" (Doc. 136, at 11). 

During Jones' deposition, the following exchange took place between him and Plaintiffs' 

counsel: 

Q. Were you aware of concerns at the Warrior Run school about Mr. Mattison 

and his actions with other students? 

A. He was removed from school once again when there was some incidents 

of him acting out. 

Q. Are you aware of anything prior to that? 

A. No. 

Q. With other students? 

A. No. 

Q. Is that something you would ­

A. You know, with other students. Would he come into group therapy 

sessions and discuss his interactions with other people and give us an 

opportunity to raise red flags if we thought there was an issue? Yeah. So I 

can't say that was never part of conversations of other students. Not enough 

that I would draw a red flag and say he's not going back there again. 

(Dep. of Jones, at 20). The record does not indicate that in any of these conversations 

Mattison communicated a threat of serious bodily injury towards any specific person or class 

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of persons. Nonetheless, the clear implication to be drawn from Jones' testimony is that 


any "red flags" would necessarily include threats of serious bodily harm and would have, at 

minimum resulted in DTA removing Mattison from school to avoid the execution of these 

threats. Furthermore, the school officials specifically testified to never having been told by 

any DTA employee that Mattison was athreat, let alone a serious threat who had 

specifically targeted a student or class of students. (See Dep. of Bertanzetti, at 21 ("Q: 

When you explained to Alvin [Weaver] what happened [on March 14,2011] did he share 

any information about whether Duane had done anything like this in the past? A: No, he 

didn't"); see generally, Dep. of Patricia Cross, Doc. 154, Ex. 5 (testifying that she was 

unaware of any prior sexual history involving Mattison and that she did not know that 

Mattison was even associated with DTA prior to March 14,2011)). 

It is no excuse on the part of Plaintiffs for their failure to come forward with facts 

regarding whether Mattison ever communicated aspecific threat that Mattison's mental 

health treatment records are not otherwise subject to disclosure as this Court has previously 

ruled (see Doc. 148). This is so because Emerich narrowly carves out an exception to the 

prohibition on the disclosure of confidential information conveyed to a mental health 

professional to allow the disclosure of "a specifiC and immediate threat of serious bodily 

injury against a specifically identified or readily identifiable third party." See Emerich, 720 

A.2d at 1042 ("we believe that the protection against disclosure of confidential information ! 

! 

gained in the therapist-patient relationship does not bar the finding of a duty to warn"). It J 

18 


I 

Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 18 of 33
I 

i 

was thus within the Plaintiffs' prerogative to inquire into whether Mattison had ever ! 

t 

! 

communicated athreat the nature of which is covered by Emerich. I 

I 

The Court has found that Bobbie Jo was not a readily identifiable victim, and there is l 

no record evidence that Mattison ever communicated athreat about her, or any other I 

Warrior Run student, to any DTAmental health professional. There is no record evidence 

I 

that Mattison had previously engaged in any physically harmful behavior towards another 

student at school or that he was violent towards his peers. Accepting that Mattison had 

previously touched several students' buttocks at Williamson High School and made sexually 

inappropriate gestures, there is no evidence, or even allegation, that he had, for example, 

previously raped or sexually assaulted another student or that he ever attempted to do so. 

Thus, Mattison's past conduct does not present strong evidence that he was at risk of 

causing userious bodily harm" to one of his fellow students, such as to irnpose liability on the 

Mental Health Defendants for afailure to warn. Nor do Plaintiffs point to any case wherein a 

Court has found that mere sexual touching of an individual, such as another student, without 

more, created an issue of fact as to whether a person could be found to pose athreat of 

serious bodily harm to that same group, i.e. other students. In fact. DTA and Weaver's 

position that they owed no duty of care is strengthened by the fact that there is no evidence 

that at any time during his enrollment at Warrior Run, Mattison ever engaged in any 

19 


Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 19 of 33
inappropriate sexual behavior with any Warrior Run student6 that could amount to the 

necessary standard of "serious" bodily harm. 

Plaintiffs assert that their negligence claim is predicated on more than just afailure 

on the part of the Mental Health Defendants to warn Bobbie Jo and her parents. Rather, 

Plaintiffs contend that their claim is also based on "additional theories of liability namely that 

the DTA Defendants grossly negligently failed to share Mattison's necessary mental health 

information with their treatment partner, Warrior Run, and that the DTA Defendants are 

liable to [Bobbie Jo] for negligently performing the undertaking of treating Defendant 

Mattison for his sexually deviant and abusive behavior, which failure resulted in physical 

harm to [Bobbie Jo]." (Doc. 155, at 12). These assertions are without merit. Ignoring the 

irony of Plaintiffs' first argument, given that their argument in opposition to the School 

Defendants' motion for summary judgment is that enough information was turned over to 

the School so as to put them on notice that Mattison was a threat to Bobbie Jo, Plaintiffs' 

argument that DTAwas a "treatment partner" of Warrior Run is unsupported by any 

evidence or law. There is no evidence in the record that Warrior Run was responsible for 

6 The only reported incident of sexual misconduct by Mattison towards another student prior to 

March, 2011, was an accusation by the mother of another student, Sara Swartz. The mother reported to 

assistant principal Bertanzetti that Mattison asked Swartz if he could touch her. (Dep. of Bertanzetti, at 7). 

Bertanzetti investigated the report, determined that Mattison was not talking to Swartz when he made the 

comment, but did take preventative measures to keep the two separated because they "were both getting 

too close to each other." (Id. at 8,25-26). Bertanzetti also determined that there was no evidence that 

Mattison had physically touched Swartz. (Id. at 26). To the extent that the Manifestation Determination, 

conducted on March 16,2011 as a result of the March 14 incident, states that "[d]uring the current school 

year, Mr. Weaver has been invited to the school on more than one occasion to discuss issues and 

concerns with Duane, specifically his inappropriate sexual tendencies" (Manifestation Determination, March 

16,2011, Doc. 154, Ex. 8), this does not present suffiCiently specific evidence to show that Mattison posed 

a threat to any particular student or group of students, let alone athreat of serious bodily harm. 

20 

, 

I 

I 

I 

J 

Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 20 of 33
f 

f 

! 

! 

~ 

"treating" Mattison, and the use of the undefined term "treatment partner" implies the f 

i 

existence of a legal or contractual relationship between the parties to treat Mattison's mental 

health issues, a duty that there is no record evidence the School District had or was willing I

•! 

or attempted to undertake.? Plaintiffs' contention that DTA should have provided Warrior I Run with Mattison's records further indicates that the School had no role in his "treatment". 	 ~. 

f At best, Warrior was attempting to inform DTA and Weaver of the issues that had arisen at f 

school so that DTA could take action in dealing with Mattison. The record does not support 

an inference that the school participated in any psychiatric "treatment" of Mattison. 

Additionally, Plaintiffs' argument that the Mental Health Defendants were grossly negligent 

in failing to share Mattison's necessary mental health information is the equivalent to an 

argument asserting that DTA and Weaver had aduty to inform the School District about 

Mattison's past sexual history and any current sexual issues he may have had. Plaintiffs 

point to no law, statute, or case indicating that such aduty exists. Furthermore, if the 

Mental Health Defendants did have a duty, it would have to be within the ambit of their duty 

to warn a specific or readily identifiable person or group of persons if they knew, or had 

reason to know, that the patient would cause that person(s) "severe bodily harm." 

Finally, Plaintiffs assert that the Mental Health Defendants were negligent in treating 

Mattison, quoting Seebold v. Prison Health Services for the general proposition that "a 

7 Plaintiffs' own expert report by Lisa Thorsen, Ed.D, C.R.C. (Doc. 154, Ex. 10) further hurts their 

argument that the school and DTAwere treatment partners. While the reports states that these 

"organizations" should collaborate, in the expert's opinion, "[i]nstead of working together as partners, 

Warrior Run School District and Diversified Treatment Alternatives chose to work as separate entities 

without concern for the safety of the individual child." ((d. at 13-14). 

21 


Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 21 of 33
I physician entering into such a relationship which he should recognize as necessary for the 

protection of others has the duty to exercise reasonable care in the patient's treatment", 57 I

I 

! 

I 

A.3d 1232, 1244·1245 (Pa. 2012). (Doc. 155, at 12). Plaintiffs' reliance on Seebold is 

inappOSite. The Court's holding in Seebold is limited to its facts and the area of treatment of ~ I communicable diseases and Plaintiffs offer no other case law to explain the circumstances 

l 

under which a mental health professional can be held liable to athird person for negligently [ 

I 

t 

treating a patient. 

Because Plaintiffs f have failed to establish adispute of fact as to whether the Mental 

~ ! Health Defendants owed aduty to Plaintiffs, as well as whether these Defendants were I 

t 

negligent, the Court need not address whether the Mental Health Defendants would have 

been protected by the limited immunity under the Mental Health Procedures Act, 50 P.S. § 

7101, et seq., thereby requiring Plaintiff to show gross negligence or willful misconduct.8 

For the reasons explained above, the Court will grant the Mental Health Defendants' 

motion for summary judgment with respect to Plaintiffs' claim for negligence (Count VIII). 

8 The Mental Health Procedures Act (UMHPA") "establishes rights and procedures for all involuntary 

treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of 

mentally ill persons." 50 P.S. § 7103. In the absence of willful misconduct or gross negligence, the Act 

provides county administrators, facility directors, physicians, or any other authorized persons immunity from 

civil and criminal liability when that person "participates in adecision that a person be examined or treated 

under this act, or that a person be discharged, or placed under partial hospitalization, outpatient care or 

leave of absence, or that the restraint upon such person be otherwise reduced ...." Id. at § 7114. 

22 


Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 22 of 33
B. Count IX - 42 U.S.C. § 1983 

To succeed on aclaim under 42 U.S.C. § 1983, the plaintiff must demonstrate a 

violation of aright protected by the Constitution or laws of the United States, committed by a 

person acting under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en 

banc). Therefore, in evaluating a§ 1983 claim, aCourt must first "identify the exact 

contours of the underlying right said to have been violated" and determine "whether the 

r 

plaintiff has alleged adeprivation of aconstitutional right at aiL" Id. (citing Cnty. of 

Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)). I 

~ Here, Plaintiffs' § 1983 claim rests on the substantive due process clause of the Fourteenth ! 

f 

i 

Amendment, and alleges that DTAand Weaver, acting under color of state law, deprived 

Bobbie Jo of her right to bodily integrity. (Doc. 77, ~ 93). 

The Mental Health Defendants argue that they were not acting under color of state I 

law but that, should the Court find that they were, summary judgment in their favor is still I 

I appropriate because they had no affirmative duty under the due process clause to protect I 

Bobbie Jo due to the absence of aspecial relationship between them and Bobbie Jo. (Doc. I 

136, at 11-18). I 

"The Due Process Clause does not impose an affirmative duty upon the state to 

protect its citizens. Rather, it serves as a limitation on the state's power to act." DeShaney I 

,

f 

v. Winnebago Cnty. Dep't of Social Srvcs., 489 U.S. 189, 195, 109 S.Ct. 998, 103 L.Ed.2d f 

! 

249 (1989). "[W]hen the state enters into aspecial relationship with aparticular citizen, it I 

; 

23 


Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 23 of 33
may be held liable for failing to protect him or her from the private actions of third parties." 


D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1369 (3d Cir. 

1992) (en banc). However, 

[I]t is the State's affimlative act of restraining the individual's freedom to act 

on his own behalf- through incarceration, institutionalization, or other similar 

restraint of personal liberty-which is the 'deprivation of liberty' triggering the 

protections of the Due Process Clause, not its failure to act to protect his 

liberty interests against harms inflicted by other means. 

DeShaney, 489 U.S. at 200. 

In DeShaney, the local Department of Social Services ("DSS") received areport that 

Joshua DeShaney was being physically abused by his father, and following an incident in 

which Joshua was treated at a hospital for multiple bruises and abrasions, DSS obtained a 

court order which placed Joshua in the temporary custody of the hospital. 489 U.S. at 192. 

However, after an inquiry determined there was insufficient evidence of child abuse, Joshua 

was returned to his father's care. Id. Over the next several months, despite evidence of 

ongoing abuse, DSS did nothing to intervene. Id. Eventually, Joshua's father, Randy, beat 

his son so severely that Joshua suffered permanent brain damage. Id. Despite the tragic 

facts of the case, the Supreme Court concluded that the "most that can be said of the state 

functionaries in this case is that they stood by and did nothing." Id. at 203. 

The [Due Process] Clause is phrased as a limitation on the State's power to 

act, not as a guarantee of certain minimal levels of safety and security. It 

forbids the State itself to deprive individuals of life, liberty, or property without 

"due process of law," but its language cannot fairly be extended to impose an 

affirmative obligation on the State to ensure that those interests do not come 

24 

Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 24 of 33
to harm through other means. Nor does history support such an expansive 

reading of the constitutional text. 

Id. at 195. Therefore, "[w]hile the State may have been aware of the dangers that Joshua 

faced in the free world, it played no part in their creation, nor did it do anything to render him 

more vulnerable to them." Id. at 201. 

In D.R. by L.R., the Third Circuit condemned the state actor school defendants who 

had allegedly been aware that the plaintiffs, two female high school students, had been 

verbally, physically, and sexually molested routinely by multiple male classmates over the 

course of several months in a unisex bathroom and class darkroom, but did nothing to 

intervene. 972 F.2d at 1373. "We readily acknowledge the apparent indefensible passivity 

of at least some school defendants under the circumstances. Accepting the allegations as 

true, ... they show nonfeasance but they do not rise to the level of a constitutional 

violation." Id. at 1376. There, the harm was caused the by private actors (i.e., the male 

students), not state actors. As such, the Court determined that the plaintiffs had failed to 

show "as required under DeShaney, that the school defendants either impermissibly limited 

the freedom of the plaintiffs to act on their own behalf, or barred their access to outside 

support. Nor do they demonstrate that defendants violated a constitutional duty by creating 

or exacerbating the danger posed by the student defendants." Id. 

In a later case, the Third Circuit affirmed D.R.by L.R.'s holdings: 

[In D.R. by L.R.,] we held that where parents remain the primary caretakers of 

students and where students are not deprived of access to sources of help, 

there is no special relationship between the school and students, despite the 

25 

Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 25 of 33
state's compulsory school attendance laws. 972 F.2d at 1371-72. Like the 


parents in D.R. by L.R. who maintained custody over the high school 


students, the Aliens, ... maintained custody over Jaquan. In fact, the Aliens 


had more control over Jaquan's education than other parents because they 


had to approve his special needs educational plan. See D.R. by L.R., 972 


F.2d at 1371 .... There is no record evidence that [defendant] physically 


restrained Jaquan or otherwise impaired his liberty in such a fashion that 


prevented him from taking care of himself. In fact, as a resource-level 


student, Jaquan could seek the haven of his emotional support classroom or 


report school-related problems to his parents. 
 I 

Allen v. Susquehanna Twp. Sch. Dist., 233 Fed. Appx. 149, 152 (3d Cir. 2007) (affirming the 

district court's grant of summary judgment in favor of the school defendants when a student 

with aserious emotional disturbance left school without permission and was struck and 

killed by an automobile). 

Relying on DeShaney, D.R. by L.R., and their progeny, this Court previously rejected 

the special relationship theory as a basis for liability under Plaintiffs' § 1983 claim against 

the School Defendants because the Amended Complaint did not allege the requisite facts 

that would convert the non-custodial relationship between those defendants and Bobbie Jo 

to a special relationship. (Doc. 50). Plaintiffs' arguments now against the Mental Health 

f 

Defendants to show a special relationship are even more attenuated and fail to establish a 

f 

relationship between DTA, Weaver, and Bobbie Jo. I 

Plaintiffs attempt to distinguish D.R. by L.R. by arguing that in addition to compulsory I 

t attendance and in loco parentiS authority of the school, in the present case, the Mental I 

Health Defendants "undertook aduty to treat and control Mattison while he was in their I 

care, control, and custody'\ thus entering them into aspecial relationship with Bobbie Jo. 

26 


Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 26 of 33
(Doc. 155, at 17). D.R. by L.R. and Allen both focus on the custody and control of the 


I 

J 

i 

,

i 

parents of the victims, and these individuals' ability to act, not the person or group 

[

exercising control over the private perpetrator. The issue of who exercised custody or 

control over Mattison is not relevant to the inquiry here, but rather whether Bobbie Jo, I 

t 

whose parents undisputedly were her primary caretakers, was deprived of access to i 

i 

t sources of help by the Mental Health Defendants. There is no record evidence that DTA or 

f 

any of its employees restrained or prevented, or even had the power to restrain or prevent, f 

I Bobbie Jo either physically or otherwise, from acting on her own behalf or otherwise 

f 

deprived her of access to sources of help. Bobbie Jo never informed anyone of Mattison's 

actions against her prior to March 14, 2011, including her own parents (Doc. 134, ~ 57; Doc. I 

154, ~ 57), never requested to move seats or indicated that she was suffering any harm at l 

school, and never had any interaction with DTAor its employees. Even assuming that DTA t 

and Weaver were state actors, Plaintiffs have not put forth any evidence demonstrating the I

presence of aspecial relationship between the Mental Health Defendants and Plaintiffs, and 

J 

as the Court previously stated with respect to Plaintiffs' negligence claim, the Mental Health •t 

i 

Defendants did not owe aduty to the plaintiffs. t 

I Plaintiffs also assert that the state-created danger theory available under § 1983 is 

applicable in the present case. (Doc. 155, at 15-16). "Liability under the state-created 

danger theory is predicated upon the states' affirmative acts which work to plaintiffs' I 

detriments in terms of exposure to danger." D.R. by L.R., 972 F.2d at 1374. To meet the t 

•f 

! 

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Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 27 of 33
I 

requirements of astate-created danger claim under the Fourteenth Amendment substantive 


due process clause, a plaintiff must show (1) the harm ultimately caused was foreseeable 

and fairly direct; (2) a state actor acted with adegree of culpability that shocks the 

conscience; (3) a relationship between the state and the plaintiff existed such that the 

plaintiff was aforeseeable victim of the defendant's acts, or amember of adiscrete 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) astate actor affirmatively used his or her 

authority in a way that created adanger to the citizen or that rendered the citizen more 

vulnerable to danger than had the state not acted at all. Bright v. Westmoreland Cnty., 443 

F3d 276,281 (3d Cir. 2006); Robinson V. Peirce, 586 Fed.Appx. 831,834 (3d Cir. 2014). 

The Mental Health Defendants do not address the state-created danger theory. 

Regardless, this theory fails for largely the same reason asserted by Defendants with 

respect to their special relationship argument. There is no evidence of an affirmative action 

by DTAor Weaver that created a danger or rendered Bobbie Jo more vulnerable to danger 

than had Mental Health Defendants not acted at all. Plaintiffs' brief in opposition to the 

Mental Health Defendants' motion for summary judgment does not specifically identify what 

affirmative act or acts they believe the Mental Health Defendants engaged in which would 

make these defendants subject to liability under the substantive due process clause. With 

respect to the fourth element, Plaintiffs merely argue that "the DTADefendants used their 

authority to create an opportunity that would not have otherwise existed for Mattison to harm 

28 


Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 28 of 33
[Bobbie Jo] by enrolling him in the Warrior Run special education program and placing 

[Bobbie Jo] in adangerous position of spending her school days in the 2010-2011 school 

year in close proximity to" Mattison. (Doc. 155, at 16). 

Aspecific and deliberate exercise of state authority is necessary to satisfy the fourth 

element of state-created danger test, but this in itself is not sufficient; there must also be a I 

direct causal relationship between the affirmative act of the state and plaintiffs harm. [ 

Kaucher v. Cnty. ofBucks, 455 F.3d 418, 432 (3d Cir. 2006). Thus, assuming that DTA 

and/or Weaver enrolled Mattison at Warrior Run9 and that enrollment of astudent I 

constitutes an affirmative act, Plaintiffs must still establish that the act of enrolling Mattison, i 

without more, directly caused Bobbie Jo's injury. Such atheory of causation is too I 

attenuated to allow Plaintiffs' claim to survive summary judgment. Similar to this Court's 

t 

analysis of Plaintiffs' negligence claim, an assertion of adirect causal relationship between t 

Mattison's enrollment and Bobbie Jo's injury cannot withstand analysis as there is nothing in f 

t the record to suggest that DTA or Weaver was ever presented with information that f 

Mattison could be, or should have been, understood as presenting a specific threat to 

Bobbie Jo or any other readily identifiable person. Under Plaintiffs' theory, DTA should be 

I 

I 

held responsible for any harm that Mattison may cause simply by virtue of the fact that they 

enrolled him in the school. This would lead to the irrationally excessive imposition of liability I 

t 

on mental health professionals and elevate innumerable actions, formerly considered 

9 The Court notes that there is an issue of fact as to who enrolled Mattison at Warrior Run. (Doc. 

134, 1m 35-38; Doc. 154, 1m 35-38). However, the Court need not reach the issue in light of the absence I

of evidence as to causation. I 

f 

, 

29 

Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 29 of 33
t 

negligent at best, to the level of constitutional violations. The single affirmative act of I 

enrolling Mattison in school, without further affirmative actions by DTA or Weaver with r 

respect to Mattison's educational placement, is insufficient to create amaterial dispute 

regarding direct causation. DTA and Weaver did not place Mattison in Bobbie Jo's classes, 

require her to sit in any specific seat, prevent her in any way from getting help, or, more 

generally stated, undertake any affirmative action that directly put Bobbie Jo in asituation 

where she was more vulnerable to danger than had DTA and Weaver not acted at all. 

Furthermore, even if Plaintiffs could establish that the harm caused to Bobbie Jo was i 

I the result of DTAand Weaver, as state actors, affirmative use of their authority in away that 

f 

created adanger to Bobbie Jo or rendered her more vulnerable to danger than had they not I 

acted at all, these defendants' conduct cannot be said to shock the conscience. With t 

I 

respect to this element of the state created danger theory, Plaintiffs argue that "Weaver and t 

I 

DTA acted in willful disregard for [Bobbie Jo] by keeping Mattison in the class with her after i 

I he demonstrated continued sexual deviancy, by deciding to not share essential information 

concerning Mattison's history, treatment, and diagnoses with his care partner Warrior Run, I 

and by not warning BJS or her parents of the danger Mattison posed." (Doc. 155, at 16). I 

In Sanford v. Stiles, the Third Circuit articulated the test by which adistrict court f 

! 

should determine whether astate actor's behavior shocked the conscience. 456 F.3d 298 

(3d Cir. 2006). The Circuit adopted asliding scale approach whereby "the state actor's 

behavior must always shock the conscience. But what is required to meet the conscience30 


Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 30 of 33
shocking level will depend upon the circumstances of each case, particularly the extent to 

which deliberation is possible." Id. at 310. 

The level of culpability required to shock the conscience increases as the time 

state actors have to deliberate decreases. In a hyperpressurized 

environment, an intent to cause harm is usually required. On the other hand, 

in cases where deliberation is possible and officials have the time to make 

unhurried judgments, deliberate indifference is sufficient. . . . We also 

recognize that there are circumstances involving something less urgent than 

a split-second decision but more urgent than an unhurried judgment. 

Genera"y, this category will include situations in which the state actor is 

required to act in a matter of hours or minutes.... [In those circumstances,] 

the defendants [must] disregard a great risk of serious harm. 

Id. at 309-10 (internal quotation marks and citations omitted). See a/so, Ghainey v. Street, 

523 F.3d 200, 219-220 (3d. Cir. 2008) ("Deprivation [of a protected interest] violates due 

process only when it shocks the conscience, which encompasses only the most egregious 

official conduct. . . . While the meaning of the [shocks the conscience] standard varies 

depending upon factual context, merely alleging an improper motive is insufficient, even 

I 

Gnty. ofAllegheny, 515 F.3d 224, 241 (3d Gir. 2008). I 

Here, Plaintiffs' action against the Mental Health Defendants revolves around the t 

theory that, from the time of Mattison's placement with DTA and throughout his treatment ! 

with DTA, the Mental Health Defendants knew that Mattison posed, or would pose, a J 

} 

31 t 

where the motive is unrelated to the merits of the underlying decision.") (internal citations 

and quotations omitted). The Third Circuit summarized the levels necessary to establish 

conscience shocking behavior as follows: (1) deliberate indifference; (2) gross negligence or 

arbitrariness that indeed shocks the conscience; or (3) intent to cause harm. Phillips v. 

Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 31 of 33
serious danger to other students, yet failed to take appropriate action to protect these 

students. Because this argument is clearly based on atheory that deliberation was possible 

and DTA and Weaver had time to make "unhurried judgments", adeliberate indifference 

standard is appropriate in this case. In the context of astate created danger claim, the Third 

Circuit has "describe[d] deliberate indifference as requiring 'that a person consciously 

disregard aSUbstantial risk of serious harm"', Kaucher, 455 F.3d at 427 (quoting Ziccardi v. 

City of Philadelphia, 288 F.3d 57, 65 (3d Cir. 2002)) (internal quotation marks omitted), but 

has found that "actual knowledge" is not required to satisfy the deliberate indifference 

culpability standard, see Phillips, 515 F.3d at 242 ("Our test for whether aplaintiff has 

alleged that an action 'shocks the conscience' does not contain a requirement that the actor 

know his or her actions are 'conscience~shocking.'"). Rather, the state actor's conduct 

"must evince awillingness to ignore a foreseeable danger or risk." Morse v. Lower Merion 

Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997). 

Even drawing all reasonable inferences in favor of Plaintiffs, no reasonable factfinder 

could find that the Mental Health Defendants were so "deliberately indifferent" to a 

substantial risk of serious harm as to shock the conscience. As previously discussed, DTA 

and Weaver did not owe aduty to warn Bobbie Jo or share Mattison's confidential 

information with Warrior Run absent the type of communication by Mattison provided for by 

! 

Emerich. Furthermore, this Court is unwilling to find that Mattison's enrollment in Warrior 

Run's special education program, by itself, is conscience shocking. There are no facts of 

I 

l 

32 ! 

" 

Case 4:11-cv-00894-RDM Document 170 Filed 09/30/15 Page 32 of 33
I 

t 

i 

record creating adispute for trial as to whether DTAand Weaver's determination that f 

Mattison could return to Warrior Run was infected with deficiencies of such egregious I 

nature that they could amount to conduct that shocks the conscience. 

Accordingly, the Court will grant the Mental Health Defendants' motion for summary 

judgment on Count IX (42 U.S.C. § 1983) of Plaintiffs' Second Amended Complaint. 

VI. CONCLUSION 

For all of the foregoing reasons, the Court will grant Defendants Diversified 

Treatment Alternatives and Alvin Weaver's motion for summary judgment (Doc. 133). A 

separate Order follows. 

obert D. Manani 

, 

United States District Judge 


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