NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 15-3465

__________

L. H.; C. H., as legal guardians of their minor children; 

A. H., minor child,

 Appellants

v.

PITTSTON AREA SCHOOL DISTRICT; 

SUPERINTENDENT MICHAEL GARZELLA, Individually; 

KELLI DIAZ, a/k/a PAVALONIS

__________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(District Court Civil No. 3-13-cv-00788)

District Judge: Honorable Malachy E. Mannion

Submitted Under Third Circuit LAR 34.1(a)

September 7, 2016

BEFORE: JORDAN, VANASKIE, and NYGAARD, Circuit Judges

(Filed: November 21, 2016)

__________

OPINION*

__________

NYGAARD, Circuit Judge.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

A teacher leveled some inappropriate verbal insults at an eighth grade pupil. In 

granting summary judgment to the School District, the superintendent, and the teacher, 

the District Court ruled that these insults, while certainly disturbing, were not actionable. 

We agree with that conclusion and will affirm the District Court’s ruling.

I.

A.

Because this opinion lacks precedential value, and because we write solely to 

explain our decision to the parties, we presume their familiarity with the underlying 

factual background and the procedural history of this dispute. Therefore, we provide the 

following précis. In September of 2012, Appellee Kelli Diaz (Diaz),

1

a social studies 

teacher in the Appellee Pittston Area School District (School District), was covering a 

computer science class for an absent colleague. No lesson plan had been provided, so 

Diaz allowed the students to work on their homework in other subjects. The students 

became unruly and Diaz repeatedly asked them to remain quiet. Things apparently went 

from bad to worse, and what happened next is not disputed because it was recorded by A. 

H., a minor student, on his cell phone. After moving A. H. from the back to the front of 

the classroom, Diaz told him to “shut up;” that “it’s day 13 and I can’t stand you 

already;” that “I’m not the only teacher who can’t stand you;” and that A. H. was “going 

to have the [worst] year ever.” The teacher also questioned whether A. H. “had a 

 

1 Throughout this case, the parties have referred to this Appellee as “Kelli Diaz,” which 

was how she was known at the time of the incident. She is listed in the caption of this 

case as “Kelli Pavalonis,” which is her married name. Like the District Court, we will 

refer to her as “Kelli Diaz” in the interests of clarity and continuity.
3

problem,” and whether he suffered from Tourette’s.2 After learning of this incident, A. 

H.’s parents, L. H. and C. H. (Appellants herein) met with Superintendent Michael 

Garzella (Garzella), also an Appellee, and asked him to investigate. They additionally 

asked Garzella to terminate Diaz’ employment. A subsequent inquiry concluded that 

Diaz had not violated the Pennsylvania School Code, and based on that determination, 

the School Board decided not to dismiss her. However, Diaz was required to 

acknowledge her inappropriate conduct in writing, to promise such verbal insults would 

not be used again, and to take a remedial course.

These consequences did not satisfy the Appellants, who sued the School District, 

Garzella, and Diaz in the District Court on behalf of A. H. and in their own right. 

Pursuant to 42 U.S.C. § 1983, they raised claims of First Amendment retaliation and 

violations of Due Process. They also raised claims based in state law for intentional 

infliction of emotional distress, negligent hiring, training, and supervision. The District 

Court granted summary judgment to the Appellees on all claims and this appeal followed.

B.

The District Court had jurisdiction over the federal claims pursuant to 28 U.S.C. § 

1331 and § 1343(a)(3) and over the state law claims under 28 U.S.C. § 1367(a). We have 

jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s grant of summary 

judgment de novo. Doe v. Indian River Sch. Dist., 653 F.3d 256, 275 n. 7 (3d Cir. 2011). 

 

2 This is an apparent reference to Tourette’s Syndrome, which the District Court noted is 

a “neurological disorder marked by repetitive motor and verbal tics. Affected persons 

may blink, jerk, grunt, clear their throats, swing their arms, grasp or clasp others, have 

obsessive-compulsive behaviors, or use verbal expletives uncontrollably.” App. at 3, 

citing Taber’s Cyclopedic Medical Dictionary at 2199 (9th ed. 2001).
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In doing so, we apply the same standard as the District Court. Id. That is, summary 

judgment should be granted “if the movant shows that there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). In deciding whether summary judgment is warranted, we “must view the facts in 

the light most favorable to the nonmoving party and draw all inferences in that party's 

favor.” Doe, 653 F.3d at 275 n.7.

II.

Appellants argue that the District Court improperly granted summary judgment. 

For essentially the same reasons stated by the District Court in its opinion, we conclude 

that, even drawing all permissible factual inferences in Appellants’ favor, summary 

judgment was appropriate. We will briefly address each of Appellants’ claims, as set

forth in the amended complaint, beginning with the federal claims.

A. Federal Claims – Counts I and IV

Count I of the Third Amended Complaint is a claim of First Amendment 

retaliation against the School District. A successful claim of First Amendment retaliation

must show that a plaintiff engaged in constitutionally protected conduct, was subjected to 

adverse actions by a state actor, and demonstrate that the protected activity was a 

substantial motivating factor in the state actor’s decision to take the adverse action. See 

Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011). For an action to be adverse, the 

alleged retaliation must be “sufficient ‘to deter a person of ordinary firmness’ from 

exercising his First Amendment rights.” Id. (citation omitted). Here, the Appellants 

allegations are that the School District failed to dismiss Diaz, failed to respond properly 
5

to the Appellants’ questions about the progress of the investigation, and failed to inform 

them of the discipline Diaz ultimately received. These failures of action, they allege, 

caused them to remove their child from school and instruct him at home for five months. 

This is the basis for their retaliation claim. But, allegations of inaction are not sufficient 

to establish an actionable claim for retaliation. See Kaucher v. County of Bucks, 455 F.3d 

418, 433 n. 11 (3d Cir. 2006) (“[F]ailures to act cannot form the basis of a valid § 1983 

claim.”). Here, the Appellants allege only inaction on the part of the School District. As 

such, the District Court correctly granted summary judgment to the School District on the 

First Amendment retaliation claim because the Appellants could not establish retaliatory 

action. 

Count IV of the amended complaint charges the School District and Garzella with 

violations of A. H.’s substantive due process rights based on a state created danger 

theory. We have adopted a “state-created danger” exception to the general rule that the 

Due Process Clause imposes no duty on states to protect their citizens from private harm. 

See Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996). In Bright v. Westmoreland 

County, 443 F.3d 276 (3d Cir. 2006), we clarified that a successful state-created danger 

claim must establish that the alleged harm was foreseeable and fairly direct; that a state 

actor acted with a degree of culpability that shocks the conscience; that 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 that a state actor affirmatively used his or her authority in a way that 
6

created a danger to the citizen or that rendered the citizen more vulnerable to danger than 

had the state not acted at all. Id. at 281. Focusing on the fourth part of the Bright test, 

the District Court concluded that the Appellants failed to establish how the School 

District or Garzella affirmatively used their authority to create a danger or make A. H. 

more susceptible to a danger. Our review of the record leads us to the same conclusion. 

Appellants charge only that the School District and the Superintendent failed to provide 

proper training, supervision and monitoring of Diaz. We have been clear: to satisfy the 

fourth element of the state created danger test, a plaintiff must “allege an affirmative 

action rather than inaction or omission.” Bright, 443 F.3d at 282. 

The substantive due process claim against Diaz, which is also set out in Count IV, 

is not a state-created danger claim, but rather alleges that the teacher “inflicted cruel and 

unusual treatment onto [A. H.] in a public school classroom” through her verbal abuse of 

the student. They claim this verbal abuse violated A. H.’s liberty interest in bodily 

integrity. See, e.g., Philips v. Cnty. Of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008). 

Specifically, the Appellants claim violations of A. H.’s liberty interest in “not being 

defamed, humiliated, and made fun of in front of his minor peers.” However, “verbal 

abuse is normally not a constitutional violation,” Doe v. Gooden, 214 F.3d 952, 955 (8th 

Cir. 2000), and for such claims to succeed, the teacher’s actions must “shock the 

conscience.” County of Sacramento v. Lewis, 523 U.S. 833 (1998); Fagan v. City of 

Vineland, 22 F.3d 1296, 1303 (3d Cir. 1994) (en banc ). 

Telling a student, among other things, to “shut up,” and questioning whether he 

suffers from Tourette’s Syndrome are obviously disturbing breaches of decent behavior, 
7

particularly when aimed at a child and, more troubling still, a child who has to sit and 

listen to the insults because they are coming from his teacher. But, bad as Diaz’ behavior 

was, it does not rise to the level of conscience-shocking behavior. Cf. Abeyta v. Chama 

Valley Indep. Sch. Dist., 77 F.3d 1253 (10th Cir. 1996) (noting that a teacher calling a 

sixth-grade student a prostitute in front of her classmates for over a month-and-a-half did 

not rise to the level of a substantive due process claim.). We agree, therefore, with the 

District Court that Appellants cannot recover under a substantive due process theory.

B. Federal Claim — Count II

Count II of the Appellant’s Amended Complaint raises claims of negligent hiring, 

inadequate supervision, screening, and training against the School District. These claims 

are also brought pursuant to 42 U.S.C. § 1983. To hold the School District liable under 

these theories of recovery, however, the Appellants must show that there was a 

constitutional violation and that the violation was caused by the School District’s custom 

or policy. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978). Appellants 

cannot recover under any of these theories for the simple reason that they have failed to 

establish an underlying constitutional violation, as we have determined, supra. 

Therefore, we share the District Court’s conclusion that the Appellants’ could not recover 

under the theories presented in Count II.

C. State Law Claims — Counts III and V

Before briefly addressing the specific aspects of the Appellants’ state law claims

against the School District and the Superintendent, we must determine which of these 

issues are actually before us. The School District tells us that the Appellants have 
8

abandoned or waived their state law negligent supervision, training and hiring claims

(Count V), as well as their state law intentional infliction of emotional distress claims. 

(Count III). We agree. Very simply, the failure to raise an issue in an opening brief 

waives the issue on appeal. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993) (holding 

that issues not presented in the opening brief are deemed waived). 

The Appellants have, however, adequately raised issues on appeal concerning the 

District Court’s grant of summary judgment in favor of Superintendent Michael Garzella 

on the state law claims. Nonetheless, we will affirm. As to the intentional infliction of 

emotional distress claim, the Appellants argue that Garzella’s conduct is actionable 

because it falls under 42 Pa. C.S. § 8550 as willful misconduct. The District Court 

rightly denied Garzella immunity on this claim because an employee of a local agency 

may be stripped of his immunity when he engages in conduct that is found to constitute 

“a crime, actual fraud or willful misconduct,” 42 Pa C.S. § 8550. However, the District 

Court also rightly granted summary judgment to Garzella because the Appellants’

allegations could not demonstrate that the superintendent engaged in willful misconduct. 

He met with L. H. and C. H. to discuss the incident. He further acknowledged the 

offensive nature of Diaz’ comments indicated his position that such behavior on the part 

of the teacher was not to be tolerated, and that he would “take care of it.” The record 

shows he did just that. 

Together with the School Board, Garzella hired an independent investigator to 

look into whether Diaz had violated any provisions of the Pennsylvania School Code. 

The investigator’s report indicated that Diaz had not violated any provisions of the code 
9

and, as a result, could not be suspended or terminated. Nevertheless, Garzella saw to it 

that Diaz received a verbal reprimand. Diaz also acknowledged in writing that her 

conduct was inappropriate and would not be repeated. The superintendent also required 

Diaz to attend a remedial course.

Like the District Court, we conclude that Garzella’s actions fail to rise to an 

extreme or outrageous level such that they would sustain the Appellants’ intentional 

infliction of emotion distress claim against him. We thus will affirm the District Court’s 

grant of summary judgment to the superintendent on those claims.

III.

We have thoroughly reviewed all of the arguments raised by the parties in this 

appeal and conclude that they are without merit. Accordingly, we will affirm the ruling 

of the District Court.