Swanger v. Warrior Run Sch. Dist.

• Decision Date: 02 October 2018
• Docket Number: 4:11-CV-894
• Citation: 346 F.Supp.3d 689
• 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

346 F.Supp.3d 689

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.

Filed October 2, 2018

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

This is an action arising from inappropriate sexual touching between two mentally challenged high school students. Elaine and Victor Swanger, parents of Plaintiff Bobbie Jo Swanger, sued Defendant Duane Mattison, a student in Bobbie Jo's special education class for inappropriately touching their daughter in her private areas; his school district and school officials and teachers; and a nonprofit organization that provided psychiatric treatment to Mattison as well as a staff member of that organization who treated Mattison. Presently before the Court is a renewed Motion for Summary Judgment by Defendants Warrior Run School District, Patricia Cross, Douglas Bertanzetti, Tammy Osenga, and Cynthia Del Gotto (collectively "School Defendants"), Doc. 202. Defendants Diversified Treatment Alternatives ("DTA") and Alvin Weaver (collectively "Mental Health Defendants") also moved for summary judgment, Doc. 198, which will be addressed in a separate opinion.

The operative Complaint in this case is the Second Amended Complaint, which sets forth nine counts: (1) violation of Section 504 of the Rehabilitation Act of 1973, (2) violation of Title IX of the Education Amendments of 1972, (3) violation of substantive due process rights under 42 U.S.C. § 1983, and (4) breach of fiduciary duty, all against the School Defendants; (5) assault, (6) battery, and (7) intentional infliction of emotional distress, all against Mattison; and (8) negligence and (9) violation of substantive due process rights under 42 U.S.C. § 1983, against the Mental Health Defendants. Doc. 77. The relevant issues in this motion were first briefed in School Defendants' original motion for summary judgment, Docs. 156, 161, which this Court granted on September 30, 2015, Doc. 169.

On appeal, the Third Circuit vacated the Court's judgment without reaching the merits of the summary judgment opinions, and instead instructed the Court to assess "whether federal courts should recognize the [Pennsylvania's Mental Health Procedures Act] broader protections as a federal privilege," and whether, in light of such assessment, the Court should allow the disclosure of DTA's psychiatric treatment records of Mattison before adjudicating any further dispositive motions. Swanger v. Warrior Run Sch. Dist. , 659 F. App'x 120, 125 (3d Cir. 2016). However, the Third Circuit's instruction was largely rendered moot on remand, as Defendant Mattison waived his privilege to his psychiatric records. The disclosure of these documents supplemented the parties' original record, and the Defendants, with the exception of Mattison, filed renewed motions for summary judgment, arguing that none of the new evidence should prevent the Court from granting summary judgment again in their favor. Thus, the task before the Court is to determine to what extent, if any, its previous summary judgment opinions are impacted by the newly available evidence. For the reasons that follow, the Court finds that no new evidence has been placed of record to change our original analysis with respect to the School Defendants. ¹

The Court will therefore grant the School Defendants' Motion for Summary Judgment.

II. PROCEDURAL HISTORY

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 as to which they submit there is no genuine issue or dispute for trial. Doc. 204. Plaintiffs have submitted their response. Doc. 216. The following facts are not reasonably in dispute except as otherwise noted.

Elaine Swanger and Victor Swanger are parents of Plaintiff Bobbie Jo Swanger, who was a mentally challenged student in Warrior Run School District's special education and life skills program. Doc. 204 ¶¶ 1, 2. Defendant Duane Mattison was also a student in the special education and life skills program, and under the legal and physical custody of the Tioga County, Pennsylvania Department of Human Services. Id. ¶ 3. Defendant Patricia Cross was the principal at Warrior Run High School, while Defendant Douglas Bertanzetti was the assistant principal. Id. ¶¶ 4, 5. Defendant Cynthia Del Gotto was a learning support teacher at the high school, and Defendant Tammy Osenga was a language arts and math teacher to students in the life skills program. Id. ¶¶ 6, 7. Defendant DTA is a Pennsylvania non-profit organization that provides individualized psychiatric treatment programs for at-risk adolescent males. Id. ¶ 8.² Defendant Alvin Weaver is a mental health professional in DTA's Community Residential Rehabilitation program where he is "part of a treatment team that provides counseling to post-traumatized individuals." Doc. 215-2 (First Weaver Dep.) at 6-7.

In May 2007, Tioga County's Court of Common Pleas adjudged Mattison as a "Dependent Child" in need of treatment, supervision, and/or rehabilitation pursuant to Pennsylvania's Juvenile Act, and ordered that Mattison be placed in the custody of the Tioga County Human Services Agency. Doc. 204 ¶ 13. The Court also ordered the Laurel Youth Services Diagnostic Unit to conduct a diagnostic evaluation, which concluded that Mattison was in need of treatment and recommended that he be enrolled in DTA's residential treatment program. Id. ¶ 14. Mattison was then transferred to DTA's second home at the Montour Learning Center. Id. ¶ 15. 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. ¶¶ 16, 17.

In February 2009, Mattison graduated from the Learning Center and was placed in the foster home of Pat and Bob Baier. Id. ¶ 19. Soon thereafter, Mattison began attending Warrior Run High School in its life skills program for the rest of his tenth grade, and a portion of his eleventh grade and twelfth grade school years. Id. ¶¶ 20, 23.

During Mattison's deposition, he testified that when he first arrived at Warrior Run in tenth grade, he talked to assistant principal Bertanzetti about a "rumor" about his "history about [his] sexual issues" prior to his arrival at Warrior Run. Doc. 215-3 at 28. He testified that Bertanzetti told him that "he's going to take care of it." Id. Mattison did not remember anything else about this conversation. Id. However, Plaintiffs' counsel returned to the subject later in Mattison's deposition, asking several times if, during this conversation, Mattison informed Bertanzetti that the "rumor was actually true," to which Mattison displayed confusion before ultimately answering: "[y]eah, because [Bertanzetti] questioned me about it and I trusted him enough to let him know my background," without expounding further on what he meant by "my background." Id. at 88-89. Bertanzetti does not recall having such a conversation with Mattison. Doc. 215-6 at 7-8.

At the beginning of Mattison's eleventh grade year, Warrior Run conducted an investigation after a female student, Sara Swartz, accused Mattison of asking her "if he could touch her breasts." Doc. 215-6 (Bertanzetti Dep.) at 7. After interviewing both Mattison and Swartz, as well as other students who had been in the room at the time, Bertanzetti concluded that Mattison "had not done that. He hadn't asked to touch her inappropriately ... he was talking with other boys and ... he wasn't talking about Sara at all. And that was backed up by one of the other boys in the classroom." Id. at 8. Nevertheless, Bertanzetti implemented preventative measures to keep Swartz and Mattison separated after that incident. Id. at 8, 25, 26.

Less than two months later, in November 2009, DTA removed Mattison from Warrior Run High School and placed him back in alternative education "after he had sexual contact with a chicken at the Host Home." Doc. 215-9 (October 25, 2010 DTA Psychological Evaluation) at 4. However, Warrior Run was not made aware of this incident, because it did not involve any persons at school:

Q. When Duane Mattison was removed from school as a result of the chicken incident, was the school told anything?

A. That he was recommended to be in an alternative education program for a period of time to work on his issues.

Q. So and correct me if I'm wrong, they were not told anything in regard to his removal having anything to do with him presenting a danger to other students?

A. Correct. Because at that point, it was an animal.

Doc. 215-15 (Weaver Dep.) at 138-39.

After completing eleventh grade in the alternative education program, and because Mattison "did not exhibit any additional sexual acting out behaviors after [November 2009]", DTA suggested Mattison be "given the opportunity to attend public school for his 12th grade year." Id. Mattison was thereafter re-enrolled at Warrior Run High School for his twelfth grade year. Shortly after Mattison was re-enrolled, Weaver was called to Warrior Run for a meeting because Mattison had been "talking to a male peer about a girl and made a comment about touching her breasts." Doc. 215-15 at 201. Both Bertanzetti and Weaver talked to Mattison about the wrongful nature of his comment, telling him that it was "sexually inappropriate and offensive." Id.

On March 14, 2011, during Mattison's twelfth grade year, Mattison, while seated directly behind Bobbie Jo, touched her private areas during Del Gotto's English class. According to...