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 AND ORDER 

 

I. Introduction 

This case comes before us on a motion for reconsideration filed by 

the plaintiffs. (Doc. 40). The plaintiffs filed this action against the 

Riverside School District (“the District”) and other defendants, alleging 

claims of discrimination and retaliation under Title IX of the Education 

Amendments of 1972 (“Title IX”), 20 U.S.C. §§ 1681, et seq.; violations of 

the Fourteenth Amendment’s Equal Protection and Substantive Due 

Process clauses under 42 U.S.C. § 1983; a Monell1 claim under § 1983; 

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

(1978). 

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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 claims arose from the sexual abuse 

and subsequent sexual harassment of the Jane Doe plaintiff by another 

student in the District, whom the plaintiffs allege the District failed to 

remove from the school setting. 

We granted the Defendant’s motion to dismiss in part, dismissing 

the § 1983 and state law negligence claims against the District. (Docs. 

36, 37). Relevant to the instant motion to reconsider, we dismissed the 

plaintiffs’ § 1983 claims alleging Monell liability against the district, 

finding that the plaintiffs had failed to allege any affirmative action by 

the District, and further, that the plaintiffs had failed to plead facts from 

which we could infer that the District discriminated against her based on 

gender in violation of the Fourteenth Amendment. (Doc. 36 at 21-24). We 

also dismissed the plaintiffs’ negligence claims against the District, 

concluding that the District was shielded by immunity under the 

Pennsylvania Political Subdivision Tort Claims Act (“PSTA”). (Id. at 24-

30). 

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The plaintiffs now urge us to reconsider our ruling on the motion to 

dismiss, asserting that we erred in our consideration and dismissal of 

these claims. (Doc. 40). After consideration, we will deny the plaintiffs’ 

motion. 

II. Discussion 

 

“The purpose of a motion for reconsideration . . . is to correct 

manifest errors of law or fact or to present newly discovered evidence.” 

Howard Hess Dental Labs. Inc. v. Dentsply Intern., Inc., 602 F.3d 237, 

251 (3d Cir. 2010) (internal citations and quotations omitted). It is not to 

“rehash arguments already briefed.” Dentsply Int’l Inc. v. Kerr Mfg. Co., 

42 F. Supp. 2d 385, 419 (D. Del. 1999). Thus, motions for reconsideration 

should be granted sparingly and only if the plaintiff can show: “(1) [an] 

intervening change in controlling law, (2) availability of new evidence not 

previously available, or (3) need to correct a clear error of law or prevent 

manifest injustice.” Dodge v. Susquehanna Univ., 796 F. Supp. 829, 830 

(M.D. Pa. 1992); Continental Casualty Co. v. Diversified Indus., Inc., 884 

F. Supp. 937, 943 (E.D. Pa. 1995). 

 Here, the plaintiffs do not argue that there has been an intervening 

change in the law, nor do they present new evidence in support of their 

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claims that was not previously available. Rather, they assert that we 

erred in our consideration of the law as applied to the plaintiffs’ claims 

against the District. Specifically, the plaintiffs contend that they have 

adequately pleaded their § 1983 claims against the District, and further, 

that the PSTCA does not bar their negligence claims against this 

defendant. 

 With respect to the plaintiffs’ § 1983 claims against the District, the 

plaintiffs assert that their complaint adequately pleads a claim against 

the District for its failure to act to protect Jane Doe from the sexual 

harassment of A.P. They further claim that they adequately pleaded facts 

to show that the school was deliberately indifferent to the sexual 

harassment in violation of the Equal Protection clause. We disagree. 

 As we stated in our prior Memorandum Opinion, the plaintiffs’ 

allegations that the District failed to prevent Jane Doe from being 

harassed by a mere failure to act is insufficient to establish § 1983 

liability: 

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. Penn-Trafford 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. 

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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-onstudent 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). 

(Doc. 36 at 22). While the plaintiffs are correct that a municipality may 

be held liable based upon a showing that it was aware of similar conduct 

in the past but failed to take action to prevent future violations (Doc. 41 

at 11), the plaintiffs must plead facts to that effect. Here, the complaint 

falls short of alleging that the District was aware of any prior harassment 

of the plaintiff by A.P. and that it failed to act. Rather, the complaint 

alleges that after the harassment occurred, Nied set up a meeting with 

the District to inform them of what was occurring. Accordingly, the 

District cannot be held liable based on their failure to act to prevent these 

alleged instances of harassment where there are no allegations tending 

to show that the District was “aware of similar unlawful conduct in the 

past.” (Id.) (quoting Bielevicz v. Dubinon, 915 F.2d 845, 851 (3d Cir. 

1990)). 

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 Further, the plaintiffs assert that they have adequately pleaded 

intentional discrimination by the District to sufficiently allege a claim 

under the Equal Protection clause. The plaintiffs point us to Goodwin v. 

Pennridge School District, 309 F. Supp. 3d 367 (E.D. Pa. 2018) and 

Williams ex rel. N.W. v. Jersey Shore School District, 2023 WL 8703402 

(M.D. Pa. Dec. 15, 2023), arguing that this caselaw establishes that a 

showing of deliberate indifference to student-on-student harassment is 

sufficient to state a claim of intentional discrimination under the Equal 

Protection clause. (Doc. 41 at 11-12). In Goodwin, however, the plaintiffs 

had alleged facts showing that school administrators had taken 

affirmative steps to encourage the harassment, including suggesting that 

the student-victim of the harassment switch schools after being informed 

of the harassment. Goodwin, 309 F. Supp. 3d at 378. Similarly, in 

Williams, the plaintiff had alleged that the school district ended a 

training program that it previously had regarding racial harassment, 

and that the school district told the plaintiffs it had investigated reported 

incidents of harassment and acted when it had not. Williams, 2023 WL 

8703402 at *1, 7. 

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The plaintiffs in this case make no such allegations. Rather, the 

complaint in this matter merely alleges that the District failed to remove 

A.P. from the school, intervene in the alleged sexual harassment, or 

otherwise protect Jane Doe from A.P.’s actions, which they assert led to 

A.P.’s subsequent harassment of Jane Doe. These allegations are 

insufficient to establish deliberate indifference by the District to 

maintain a § 1983 claim against it. Accordingly, we cannot conclude that 

the plaintiffs have shown a clear error of law in our decision to dismiss 

these § 1983 claims against the District. 

 We similarly conclude that the plaintiffs have failed to establish a 

clear error of law with respect to our dismissal of the negligence claims 

against the District. The plaintiffs contend that the PSTCA does not 

provide immunity to the District because of the “sexual abuse” exception 

to the PSTCA. They argue that the sexual abuse exception encompasses 

the sexual harassment allegedly suffered by Jane Doe, and that this falls 

within the PSTCA’s exception that a municipality may be liable if the 

sexual abuse was a result of the action or inaction of the municipality. 

(Doc. 41 at 17-18). 

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 However, as we explained in our prior Memorandum Opinion, in 

our view, the clear language of the sexual abuse exception does not 

encompass the sexual harassment alleged by the plaintiff in this case. 

The exception waives immunity for “Sexual abuse.--Conduct 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.” 42 Pa. Const. Stat. § 8542(b)(9) 

(emphasis added). While the plaintiffs believe that “sexual abuse” 

encompasses “sexual harassment” as alleged by the plaintiff, the 

exception clearly delineates that “sexual abuse” in this context is limited 

to “[c]onduct which constitutes an offense enumerated under section 

5551(7).” Id. Section 5551(7) enumerates nine offenses, one of which 

encompasses the sexual assault of which A.P. was adjudicated guilty. See

18 Pa. Cons. Stat. § 3124.1. It does not, however, include any reference 

to sexual harassment. 

 As we previously explained, we agree with the statutory 

interpretation set forth by one court in this district, which noted that “[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.” 

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Reed v. Mount Carmel Area Sch. Dist., 2023 WL 6449429, at *7 (M.D. Pa. 

Oct. 3, 2023). The sexual abuse waiver in the PSTCA clearly and 

unambiguously encompasses the enumerated conduct set forth and crossreferenced in the statute, which does not include sexual harassment. The 

plaintiffs have provided us with no argument to the contrary. Rather, the 

plaintiffs rely on their own interpretation of the harassment as “sexual 

abuse” to argue that this court committed a clear error of law in applying 

the PSTCA waiver and dismissing the negligence claims against the 

District. Accordingly, the plaintiffs have failed to show a clear error of 

law in our decision dismissing these negligence claims against the 

District. 

 Finally, we note that the plaintiffs have requested leave to amend 

their complaint to attempt to replead the § 1983 claims against the 

District.2 (Doc. 41 at 15-16). Rule 15 of the Federal Rules of Civil 

Procedure permits a party to amend a pleading once as a matter of 

2 The plaintiffs have not requested leave to amend the negligence claims 

against the District. We note that because these claims have been 

dismissed on immunity grounds, any amendment would be futile. See 

e.g., Torres v. Allentown Police Dep’t, 2014 WL 4081477, at *9 (E.D. Pa. 

Aug. 18, 2024) (finding that leave to amend claims dismissed on the basis 

of PSTCA immunity would be futile). 

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course, if amended within a particular timeframe, and with either 

consent of the opposing party or leave of court in all other cases. Fed. R. 

Civ. P. 15(a). Leave to amend should be freely given “when justice so 

requires.” Id. However, the decision to grant a party’s request to amend 

a pleading lies within the discretion of the court. Shane v. Fauver, 213 

F.3d 113, 115 (3d Cir. 2000). A court may deny a party’s request to amend 

if amendment would result in undue delay, is motivated by bad faith, or 

would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). 

 Here, there is no indication that granting the plaintiffs’ request for 

leave to amend as to the § 1983 claims against the District would result 

in undue delay, would be futile, is motivated by bad faith, or would 

prejudice the defendants. Accordingly, we will grant the plaintiffs’ 

request and permit them leave to amend their complaint with respect to 

the § 1983 claims against the District. 

III. Order 

Accordingly, for the foregoing reasons, the plaintiffs’ motion for 

reconsideration (Doc. 40) is DENIED. 

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So ordered this 11th day of April 2024. 

 s/ Daryl F. Bloom 

Daryl F. Bloom 

United States Magistrate Judge 

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