Swanger v. Warrior Run Sch. Dist.

• Decision Date: 30 September 2015
• Docket Number: 4:11–CV–894
• Citation: 137 F.Supp.3d 737
• Parties: Elaine and Victor Swanger, as parents and legal guardians of B.J.S., and B.J.S., Plaintiffs, v. Warrior Run School District, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

137 F.Supp.3d 737

Elaine and Victor Swanger, as parents and legal guardians of B.J.S., and B.J.S., Plaintiffs,

v.Warrior Run School District, et al., Defendants.

4:11–CV–894

United States District Court, M.D. Pennsylvania.

Signed September 30, 2015

Amy R. Boring, Michael Zicolello, Schemery Zicolello, Williamsport, PA, for Plaintiffs.

Barry A. Kronthal, Margolis Edelstein, Camp Hill, PA, Michael R. Miller, Margolis Edelstein, Philadelphia, PA, William A. Hebe, Spencer, Gleason, Hebe & Rague, P.C., Wellsboro, PA, for Defendants.

MEMORANDUM OPINION

Robert D. Mariani

, United States District Judge

I. INTRODUCTION

Presently before the Court is a Motion for Summary Judgment by Defendants Warrior Run School District, Patricia Cross, Douglas Bertanzetti, Tammy Osenga, and Cynthia Del Gotto (collectively hereinafter "School Defendants") (Doc. 156). Defendants Diversified Treatment Alternatives ("DTA") and Alvin Weaver also moved for summary judgment (Doc. 133) 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 School Defendants' motion.

II. PROCEDURAL HISTORY

Plaintiffs, Bobbie Jo Swanger, and Elaine and Victor Swanger, as parents and legal guardians of Bobbie 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 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). Plaintiffs' Second Amended Complaint, against Defendants Warrior Run School District, Patricia Cross, Douglas Bertanzetti, Tammy Osenga, Cynthia Del Gotto, Duane Mattison, 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 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. § 1983 (Count III) and breach of fiduciary duty (Count IV) against Patricia Cross, Douglas Bertanzetti, Tammy Osenga, and Cynthia Del Gotto; assault (Count V), battery (Count VI), 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 Treatment Alternatives and Alvin Weaver. (Doc. 77).

In addition to filing an Answer to Plaintiffs' Second Amended Complaint, the School Defendants also filed a cross-claim against Diversified Treatment Alternatives, Alvin Weaver, and Duane Mattison alleging that those Defendants are solely liable if it is determined that Plaintiffs are entitled to recover damages, or in the alternative, if it is determined that the School Defendants are liable to Plaintiffs, that the other Defendants are jointly and severally liable with them and/or should be held liable over the School Defendants for contribution and/or indemnification. (Doc. 78).

III. STATEMENT OF UNDISPUTED FACTS

In accordance with Local Rule 56.1, the School Defendants have submitted a Statement of Material Facts in Support of their Motion for Summary Judgment (Doc. 157) as to which they submit there is no genuine issue or dispute for trial. Plaintiffs have submitted their response, a Counter Statement of Facts to the School Defendants' Statement of Facts (Doc. 162) with the result being that the following facts have been admitted except as specifically noted:

The parties to this action are as follows. 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 a student at Warrior Run School District in its special education and life skills program due to her mental retardation. (Doc. 157, ¶¶ 1, 2). At all times relevant hereto, Defendant Duane Mattison was also a student at Warrior Run School District in its special education and life skills program, and under the legal and physical custody of the Tioga County, Pennsylvania Department of Human Services. (Id. at ¶ 3). Defendants Patricia Cross and Douglas Bertanzetti were the principal and assistant principal respectively at Warrior Run High School. (Id. at ¶¶ 4, 5). Defendant Cynthia Del Gotto was a learning support teacher at the high school and Defendant Tammy Osenga was a teacher at the high school who taught language arts and math to students in the life skills program. (Id. at ¶¶ 6,7). Defendant Diversified Treatment Alternatives is a Pennsylvania non-profit organization that provides individualized psychiatric treatment programs for at-risk adolescent males. (Id. at ¶ 8). 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. 162, Ex. 2, at 6–7).

In May 2007, the Court of Common Pleas of Tioga County issued an Order which adjudicated Mattison dependent and in need of treatment, supervision, and/or rehabilitation, and ordered that he be placed in the custody of the Tioga County Human Services Agency and the Laurel Youth Services Diagnostic Unit for diagnostic evaluation. (Doc. 157, ¶ 12). Laurel Youth Services then evaluated Mattison and recommended him for treatment. (Id. at ¶ 13). The Tioga County, Pennsylvania Department of Human Services, thereafter placed Mattison with DTA, to be enrolled in its residential treatment program. (Id. ). Mattison was later transferred to DTA's second home at the Montour Learning Center. (Id. at 14). Kristen Powell, Mattison's caseworker at DTA, and Michael Jones, DTA's administrative coordinator at the Montour Learning Center, both testified that they were unaware of any sexual incidents or misconduct by Mattison while he was at DTA. (Id. at ¶ 15, 16).

In February 2009, Mattison graduated from the Learning Center and was placed in the foster home of Pat and Bob Baier. (Doc. 157, ¶ 18). 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 grade¹ and twelfth grade school years, (Doc. 157, ¶¶ 19, 22),

On March 14, 2011, during Mattison's twelfth grade year, Mattison, while seated directly behind Bobbie Jo, had sexual contact with her during Del Gotto's English class. According to Mattison, he "asked [Bobbie Jo] if [he] could put [his] hand up her shirt and feel her breast and she had shook her head yes ... and asked her if [he] could put [his] finger in her vagina, she shook her head yes." He also asked Bobbie Jo "to suck [his] penis" on this occasion. (Dep. of Duane Mattison, Doc. 162, Ex. 3, at 57–58, 63; see also Doc. 157, ¶¶ 23, 24; Doc. 162, ¶¶ 23, 24). Mattison testified that this incident occurred while Del Gotto was helping another student in the classroom. (Doc. 157, ¶ 48). Additionally, Mattison admitted that he "touched [Bobbie Jo] underneath her bra and ... put [his] hand down her pants" two or three times in Del Gotto's classroom during his senior year prior to the March 14 incident. (Dep. of Mattison, at 43–44).

After class on March 14, 2011, Nathan Neidig, another student seated immediately behind Mattison, reported to Del Gotto what he had witnessed between Mattison and Bobbie Jo. Specifically, Neidig testified that he "reached [his] head around the corner to see what [Mattison] was doing" and saw that Mattison had his hand down Bobbie Jo's pants. (Doc. 157, ¶¶ 25, 26; Dep. of Nathan Neidig, Doc. 156–1, at 15,16). Del Gotto testified that she and Trish Marino, another teacher at Warrior Run High School, then brought Bobbie Jo into the classroom and asked her to show them what happened between her and Mattison. (Doc. 157, ¶ 27; Dep. of Cynthia Del Gotto, Doc. 156–1, at 14). The incident was subsequently reported to Bertanzetti who then met with Mattison to discuss the allegations, during which time Mattison admitted that he put his hand up Bobbie Jo's shirt. (Doc. 157, ¶¶ 28, 29). Mattison was removed from Warrior Run High School that afternoon.² (Id. at ¶ 30).

Bertanzetti contacted Ms. Swanger that same day and informed her that Mattison had inappropriately touched Bobbie Jo's breast and genital region. (Id. at ¶ 32).

After learning of the incident, Ms. Swanger contacted the Pennsylvania State Police to report the incident and pursue criminal charges against Mattison. (Doc. 157, ¶ 33). Ultimately, on May 17, 2011, a criminal 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 a result, Mattison pled guilty to the charges of indecent assault and nolo contendere to indecent exposure. (Id. at ¶¶ 34, 35).

Before March 14, 2011, Bobbie Jo never told anyone that Mattison had made advances towards her. (Doc. 157, ¶ 36). 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 ¶¶ 38, 39; Dep. of Elaine Swanger, Doc. 162, Ex. 7, at 51–52).

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. (Doc. 157, 40). Specifically, Bobbie Jo has never been examined by her family physician for any issues relating to the incident between her and Mattison and, despite her family physician's office providing the family with a list of...