Swanger v. Warrior Run Sch. Dist. (346 F. Supp. 3d 689, 2018)

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.

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. 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 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." Doc. 215-3 at 57-58. He also asked Bobbie Jo "to suck [his] penis" on this occasion. Id. at 63. Mattison testified that this incident occurred while Del Gotto was helping another student in the classroom. Doc. 204 ¶ 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. Id. at 43-44. After class on March 14, 2011, Nathan Neidig, another student seated immediately behind Mattison, reported to Del Gotto that he had seen Mattison put his hand down Bobbie Jo's pants. Doc. 204 ¶¶ 25, 26. Del Gotto testified that she and Trish Marino, another teacher at Warrior Run High School, asked Bobbie Jo to show them what happened between her and Mattison. Id. ¶ 27. The incident was then reported to Bertanzetti, who met with Mattison to discuss the allegations, and Mattison admitted that he put his hand up Bobbie Jo's shirt. Id. at ¶ 30. Mattison was removed from Warrior Run High School that afternoon. Id. at ¶ 31.

According to a report created after Warrior Run's investigation of the March 14, 2011 incident, titled the "Manifestation Determination" report, the school decided to remove Mattison from school and ask him to return to the Montour Learning Center at DTA, noting that "Duane admittedly knows what he did was wrong" and that he "has been in treatment/counseling for similar behaviors" without expounding further on what such behaviors were. Doc. 215-8 (Manifestation Determination) at 5. The report also summarized Mattison's history at school as follows:

Prior to this incident Duane has been reported by his teachers to have had issues of inappropriateness with another female in his class. Duane has been under the watchful eye of administration and teachers. DTA staff members have been made aware of issues with Duane in school and they have been working with him .... During 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 .... Due to a series of concerns over the course of the school year, Duane's teachers have been more closely observing his behavior, especially when he is in close proximity to female students in his class.

Id. at 4-5. It is unclear what these "issues of inappropriateness" or "series of concerns" refer to, though they likely include the incidents summarized above, where Mattison was accused of talking about Swartz in eleventh grade, and when he was verbally disciplined in twelfth grade for making a comment to a male peer about a female student's breasts. Doc. 210-6 at 7; Doc. 215-15 at 201. The school stated in the Manifestation Determination that it "will not proceed with disciplinary action since Duane will return to DTA." Doc. 215-8 at 6.

On the day Bertanzetti learned about the Bobbie Jo incident, he contacted Ms. Swanger and informed her that Mattison had inappropriately touched Bobbie Jo's breast and genital region. Doc. 204 ¶ 33. Ms. Swanger testified that during that telephone call, Bertanzetti referenced past sexual misconduct by Mattison, telling her "that Duane had had a similar incident with another girl in the classroom," and that "[h]e said that Duane had been removed from the school [in eleventh grade] because of that incident, but that he had been allowed to come back. And he said that they wanted to get Duane out of the school district and keep him out of the school district and if I would bring charges against him that would make it easier for them to do that. And he said that if I would bring charges against Duane, I could prevent it from happening to another girl." Doc. 215-7 (Swanger Dep.) at 17. After learning of the incident, Ms. Swanger contacted the Pennsylvania State Police to report the incident and pursue criminal charges against Mattison. Doc. 204 ¶ 34. 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 incident. Id. ¶ 35. Mattison thereafter pled guilty to the charges of indecent assault and nolo contendere to the charge of indecent exposure. Id. ¶ 36.

It is undisputed that before March 14, 2011, Bobbie Jo never told anyone that Mattison had acted inappropriately towards her. Id. ¶ 37. 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 2011 incident, Bobbie Jo "got quieter" and would spend more time in her room reading by herself, instead of with the family. Id. ¶ 40. However, the Swangers have not consulted a doctor for any issues that may arise from the incident between Bobbie Jo and Mattison. According to Ms. Swanger, Bobbie Jo "chose not to talk to anyone." Id. ¶¶ 42, 43; Doc. 215 ¶¶ 42, 43.

In their briefs, both the School Defendants and Plaintiffs focus primarily on the extent of the individual school defendants' - and specifically Bertanzetti's - knowledge of Mattison's sexual history. Defendants aver that Principal Cross was unaware of any prior sexual history involving Mattison. Doc. 204 ¶ 54. Though Plaintiffs purport to "deny" this fact, they do not point to any portions of the record that involve Cross, must less parts of the record that show Cross was aware of Mattison's sexual history. Doc. 216 ¶ 54 (containing no original statement of denial and instead incorporating by reference paragraphs 45 and 50, neither of which cite to portions of the record involving Cross). To the extent Plaintiffs attempt to deny statements of facts by ipse dixit without citing to any relevant evidence in the record, such statements of facts are deemed as admitted.

Similarly, Plaintiffs also deny that prior to the alleged incident, Defendants Osenga and Del Gotto were unaware that Mattison had any history of sexual misconduct, or that he had acted sexually inappropriately at school. Doc. 204 ¶¶ 50-53. However, the only evidence relied upon by Plaintiffs is that at some point, Del Gotto had been told by another teacher, Ms. Marino, that Mattison and Sara Swartz should not be seated next to each other. Doc. 216 ¶ 50. But it is undisputed that Del Gotto was not told of the reason for this arrangement, nor was she aware of Swartz's accusation against Mattison. Doc. 215-13 at 9-10. Instead, Del Gotto assumed that Swartz should not be seated next to Mattison because "Sara [Swartz] could be a little forward and that maybe, you know, something was going on between them." Id. at 12. Del Gotto was not aware of any time when Mattison had acted inappropriately prior to the Bobbie Jo incident in March, 2011. Id. at 13. On the day of the Bobbie Jo incident, two students had asked Del Gotto for help on their newspaper project when Neidig went up to Del Gotto and told her about what he witnessed between Mattison and Bobbie Jo. Id. Del Gotto immediately informed another teacher, Ms. Marino, and asked "if this could possibly be true[, b]ecause [she] had never seen any signs from Duane or anything." Id. at 14. Both teachers then asked Bobbie Jo what happened before taking Bobbie Jo to Bertanzetti's office. Id.

As for Defendant Osenga, she testified that though she was vaguely aware that "there was an issue with another girl [i.e. Swartz]" prior to the Bobbie Jo incident, all she knew was that Bertanzetti had conducted an investigation, during which Swartz admitted "nothing happened." Doc. 215-17 at 14, 19. Osanga was not involved in the Swartz investigation, nor was she told by anyone that Mattison should be separated from any student. Doc. 215-17 at 19-20. With respect to Mattison's sexual history, Osenga was only aware that Mattison was himself "sexually abused as a child by his parents and his siblings, and that's why he was in foster care." Id. at 14. She never heard any "rumors" about Mattison's sexual conduct, nor was she aware that Mattison had a prior history of sexual misconduct. Id. at 10, 21.

Plaintiffs also point to statements in the Manifestation Determination that prior to the Bobbie Jo incident, "Duane has been under the watchful eye of administration and teachers"; that "Duane's teachers have been more closely observing his behavior, especially when he is in close proximity to female students in his class"; and that Weaver had been "invited to the school on more than one occasion to discuss issues and concerns with Duane, specifically his inappropriate sexual tendencies ...." Doc. 216 ¶ 50. However, the Manifestation Determination did not name which teachers were keeping a "watchful eye" on Mattison, and the only incident on the record of a meeting between school employees and Weaver is in Fall of 2010, when Bertanzetti met with Weaver to discuss a comment Mattison made to a male peer about wanting to touch a female student's breasts. Doc. 215-6 (Bertanzetti Dep.) at 7.

As noted above, at the time of the parties' filings of their previous summary judgment briefs, Defendants had not disclosed all of Mattison's psychiatric records from DTA, which this Court deemed as privileged, Doc. 149. On appeal, the Third Circuit declined to "address the substantive merits" of the Court's summary judgment rulings, and instead found that on remand, this Court should conduct a further assessment as to whether Pennsylvania's Mental Health Procedures Act's confidentiality protections should be recognized as a federal common law privilege, and noted that if the Court "declines to recognize the MHPA as a federal common law privilege, it should review the DTA documents in camera to determine the extent to which they are protected under the narrower federal psychotherapist-patient privilege." Swanger , 659 F. App'x at 126 (emphasis in original). However, the parties resolved their privilege disputes upon remand, as "Mattison signed an Authorization to Disclose Health Information which provided for the disclosure of his entire record from [DTA]." Doc. 210 ¶ 76 (Plaintiffs' admission with respect to the Mental Health Defendants' statement of facts). After the disclosure of these records, Defendant Alvin Weaver submitted to a second deposition on June 19, 2017, during which time he was asked to expound upon various case notes and records from the newly disclosed file. Doc. 215-15. Both his deposition and the DTA records referenced in the deposition were submitted for the present summary judgment record.

The newly available evidence is discussed in more detail in this Court's accompanying memorandum opinion addressing the Mental Health Defendants' motion for summary judgment. However, the Court need not delve greatly into the evidence here, as it is undisputed that such information was not shared with anyone at Warrior Run. In particular, Weaver testified at his second deposition that he is not aware of anyone at DTA sharing "any treatment notes, plans, records of any kind with anyone from the Warrior Run School District or the teachers," nor did anyone from DTA "discuss[ ] with anyone from Warrior Run School District - teachers, principals ... anything having to do with Mr. Mattison's care, treatment, and/or psychiatric/sexual history." Doc. 215-15 at 178-80. See also id. at 138-39, 163 (Weaver testifying no teacher or representatives of Warrior Run ever asked him why Mattison was removed from school in eleventh grade, nor did DTA inform anyone at Warrior Run why Mattison left in eleventh grade); Doc. 215-6 at 21 (Bertanzetti testifying that on the day the Bobbie Jo incident came to light, Weaver came to Warrior Run to remove Mattison from the school, and Weaver did not "share any information about whether Duane had done anything like this in the past"); id. at 8-9 (Bertanzetti testifying that he was unaware that Mattison had been receiving weekly counseling treatment at DTA during his time at Warrior Run High School).

III. 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine 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 a showing 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, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. "A party asserting that a fact 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 a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A)-(B). 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 non-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, 113 S.Ct. 1262, 122 L.Ed.2d 659 (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, 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, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

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

IV. ANALYSIS

A. Count II - Title IX

Plaintiffs bring a Title IX claim for sex discrimination against Defendant Warrior Run School District (Count II), alleging in their Second Amended Complaint that the "Defendants were aware of Defendant Mattison's prior sexual misconduct," and that "[d]espite this knowledge, Defendants permitted Defendant Mattison to attend classes"; "seated Defendant Mattison directly beside or behind Bobbie Jo Swanger in the classrooms"; "failed to supervise Defendant Mattison, who was known to act out sexually,"; "were aware that Defendant Mattison had made unwelcome sexual advances toward Bobbie Jo Swanger"; and "failed to remedy the situation and/or report to the proper authorities." Doc. 77 ¶¶ 46-51. In the previous motion for summary judgment, the Court found that there was no genuine dispute of fact as to whether the School Defendants evinced deliberate indifference towards Bobbie Jo. Doc. 169. In the renewed motion for summary judgment, School Defendants argue that "there are no new facts of record that would change this [ ] Court's previous determination in favor of School Defendants." Doc. 205 at 6. In light of Weaver's unequivocal testimony that none of the newly available evidence, i.e. Mattison's treatment information at DTA, was shared with the School Defendants, the Court agrees that summary judgment should be granted in favor of Warrior Run on Plaintiffs' Title IX claim.

In relevant part, Title IX provides that "no person ... shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Title IX can also be enforced through a private right of action wherein monetary damages are available. Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 281, 118 S.Ct. 1989, 141 L.Ed.2d 277, 158 A.L.R. Fed. 751 (1998) (citing Cannon v. Univ. of Chicago , 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) ; Franklin v. Gwinnett Cnty. Pub. Schs. , 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) ). In imposing a duty upon a funding recipient not to discriminate on the basis of sex, Title IX encompasses sexual harassment, including for "deliberate indifference to known acts of peer sexual harassment." Davis Next Friend LaShonda D. v. Monroe Cnty. Bd. of Educ. , 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). Thus, in limited circumstances, deliberate indifference to known acts of harassment of a student by another student can amount to an intentional violation of Title IX, capable of supporting a private damages action. Id. at 643, 119 S.Ct. 1661.

In a case such as the one presently before this Court, to proceed on a claim against an educational institution under Title IX, the student must establish that the institution was "deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis , 526 U.S. at 650, 119 S.Ct. 1661. See also Yan Yan v. Penn State Univ. , 529 F.App'x 167, 171 (3d Cir. 2013).

An "appropriate person" is one who, at minimum, "has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf" to end this discrimination. Gebser , 524 U.S. at 290, 118 S.Ct. 1989.

Recovery based on the principles of respondeat superior or constructive notice "frustrate[s] the purposes" of Title IX, and therefore the school official must have actual knowledge in order for the plaintiff to prevail.

Gebser , 524 U.S. at 285, 118 S.Ct. 1989 ; see also, id. at 290, 118 S.Ct. 1989 (holding that "a damages remedy will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails adequately to respond."). Actual notice necessitates more than a simple report of inappropriate conduct, however, the standard "does not set the bar so high that a school district is not put on notice until it receives a clearly credible report of sexual abuse from the plaintiff-student." Escue v. Northern OK College , 450 F.3d 1146, 1154 (10th Cir. 2006) (quoting Doe v. Sch. Admin. Dist. No. 19 , 66 F.Supp.2d 57, 62 (D.Me. 1999) ). Therefore, while actual knowledge does not require absolute certainty that harassment has occurred, there must be more than an awareness of a mere possibility of the harassment. Bostic v. Smyrna Sch. Dist. , 418 F.3d 355, 360 (3d Cir. 2005). The educational institution has " 'actual knowledge' if it knows the underlying facts, indicating sufficiently substantial danger to students, and was therefore aware of the danger." Id. at 361.

Furthermore, the "actual notice" or "actual knowledge" must be attributed to an "appropriate person." Warren ex rel. Good v. Reading Sch. Dist. , 278 F.3d 163, 169 (3d Cir. 2002) (quoting Gebser , 524 U.S. at 290, 118 S.Ct. 1989 ). An "appropriate person" is one who, at minimum, "has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf" to end this discrimination. Gebser , 524 U.S. at 290, 118 S.Ct. 1989. Thus, deliberate indifference requires an "official decision by the recipient not to remedy the violation." Gebser , 524 U.S. at 290, 118 S.Ct. 1989.

Upon a showing of actual knowledge by an appropriate person, Plaintiff must show that the funding recipient exercised deliberate indifference. A funding recipient is "deliberately indifferent" when the recipient's response to the harassment, or lack of response, is "clearly unreasonable in light of the known circumstances." Davis , 526 U.S. at 648-649, 119 S.Ct. 1661. Deliberate indifference requires an "official decision by the recipient not to remedy the violation." Gebser , 524 U.S. at 290, 118 S.Ct. 1989.

Deliberate indifference further incorporates a causation requirement. The Title IX funding recipient's deliberate indifference must subject the students to further harassment, to wit, the indifference must "cause students to undergo harassment or make them liable or vulnerable to it." Davis , 526 U.S. at 644-645, 119 S.Ct. 1661 (internal quotations omitted). This harassment must take place in a context subject to the school's control. Id. at 645, 119 S.Ct. 1661. Therefore, the school is only liable when "the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs." Id. This causation element results in a requirement that harassment, or the likelihood or vulnerability of a student to be subjected to it, must occur subsequent to an official's decision not to remedy a known violation.

The fact that the appropriate person's initial response does not remedy or prevent the harassment, or that the school does not use a particular method to remedy or prevent the harassment, does not provide sufficient grounds for liability. Baynard v. Malone , 268 F.3d 228, 236 (4th Cir. 2001). A school district is not required to respond to harassment or discrimination in a specific manner, nor is the district required to eradicate all sexual harassment; however, the school district's response must be reasonable in light of the known circumstances. For example, "[w]here a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances." Vance v. Spencer Cnty. Pub. Sch. Dist. , 231 F.3d 253, 260-261 (6th Cir. 2000). The funding recipient is not required to "engage in [a] particular disciplinary action." Davis , 526 U.S. at 648, 119 S.Ct. 1661. Accordingly, "[s]chool administrators will continue to enjoy the flexibility they require so long as funding recipients are deemed 'deliberately indifferent' to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Id.

Based on the record in this case, the Court finds that Warrior Run School District's response to the likelihood of peer harassment was not "clearly unreasonable".

Preliminarily, there only exists an issue of fact here as to whether Principal Cross and Assistant Principal Bertanzetti constitute "appropriate persons" for purposes of Title IX. There is no evidence that Defendants Osenga and Del Gotto, who were only school teachers, had the type of supervisory authority that would render them "appropriate persons" who could subject the School District to Title IX liability. See Warren , 278 F.3d at 173 (finding that even a guidance counselor who had sometimes assumed the duties of the principal when the principal was away was not "cloaked with sufficient authority" to be an "appropriate person" when the principal was present); Does v. Se. Delco Sch. Dist. , 272 F.Supp.3d 656, 688 (E.D. Pa. 2017) (noting that "there is no evidence to suggest that [school guidance counselor] ever assumed the duties of the principal or was otherwise vested with administrative control over the teaching faculty. Accordingly ... knowledge on her part would not suffice to create liability under Title IX"). Here, Plaintiffs have failed to present any evidence that Osenga and Del Gotto had any administrative authority over other teachers.

Contrary to teachers and low-level administrative staff, the Third Circuit has found that a school principal "who is entrusted with the responsibility and authority normally associated with that position will ordinarily be 'an appropriate person' under Title IX." Warren , 278 F.3d at 171. In this case, Principal Cross testified that her job duties included "oversee[ing] the functions of the building itself, the students and [her] staff from scheduling, teachers' schedules to students' schedules, perform[ing] observations and evaluations on staff members, do[ing] the hiring of staff together with a committee, enrollment of students, course selections and placements of students together with our counselors and the assistant principal ...." Doc. 215-5 (Cross Dep.) at 7. She further testified that when discipline issues arose, either she or the assistant principal would handle the issue and that the assistant principal had the authority to engage in, and make conclusions in, investigations without consulting her. Id. at 13, 20-21.

Because school officials and administrators' duties vary among school districts, "deciding who exercises substantial control for the purposes of Title IX liability is necessarily a fact-based inquiry." Murrell v. Sch. Dist. No.1 , 186 F.3d 1238, 1247 (10th Cir. 1999). Here, there is sufficient evidence to create an issue of fact as to whether Bertanzetti was capable of taking corrective action on the school's behalf. According to Bertanzetti, his duties included overseeing the faculty and student body as well as student discipline, and "just about anything else that goes on during the day." Doc. 215-6 (Bertanzetti Dep.) at 5. He also investigated incidents and complaints to determine whether a school policy had been violated. Id. at 6. Bertanzetti's responsibilities, including investigating incidents relevant to the instant case, and his apparent authority to address these situations, create a factual question regarding his status as an "appropriate person."

Because there is sufficient evidence to create an issue of fact as to whether Cross, and in particular Bertanzetti, constitute an "appropriate person(s)," the issue becomes whether Cross and/or Bertanzetti had actual knowledge of Mattison's harassment of Bobbie Jo or other female students at Warrior Run or that Mattison posed a "substantial danger" to other students at Warrior Run.

Assuming that Cross was an "appropriate person" pursuant to Title IX, no actual knowledge or notice can be attributed to her. As discussed above, Plaintiffs do not properly controvert the fact that Cross was unaware of any of Mattison's prior sexual history. See Doc. 216 ¶ 54 (Plaintiffs denying Defendants' statement of facts regarding Cross' lack of knowledge by incorporating by reference two other paragraphs in Plaintiffs' counterstatement of facts, neither of which cite to any portion of the record involving Cross). As this Court found in its previous memorandum opinion, nothing in the record contradicts Cross' deposition testimony that she was unaware of Mattison's sexual history. In fact, the parties appear to concede the issue by concentrating solely on Bertanzetti's knowledge in their respective briefs.

Accordingly, the only remaining issues in Plaintiffs' Title IX claim are whether Bertanzetti had actual knowledge of any peer-on-peer sexual harassment by Mattison, and if so, whether his actions, or lack of action, in addressing such harassment evinced a level of deliberate indifference on the part of the school district.

Here, there is some evidence in the record that may give rise to an inference that Bertanzetti was aware of certain parts of Mattison's sexual history. According to Mattison, when he "first started" at Warrior Run (in 10th grade), he informed Bertanzetti that there were rumors circulating at school about his "history," specifically his sexual history in prior schools. Doc. 215-3 (Mattison Dep.) at 27-29. Mattison testified that Bertanzetti told him that he would "take care of it" and that the rumors subsequently stopped. Id. at 29-30. Bertanzetti, however, denied having such a conversation with Mattison. Doc. 215-6 (Bertanzetti Dep.) at 6-8. The only other evidence as to Bertanzetti's knowledge involved an allegation of sexual misconduct between Mattison and another student, Sara Swartz, which occurred a year before the Bobbie Jo incident. In that instance, the mother of Swartz reported to Bertanzetti that Mattison asked Swartz if he could touch her. Id. at 7. Bertanzetti investigated the report, determined that Mattison "had not done that ... and that he wasn't talking about Sara at all"; he also determined that there was no evidence that Mattison had physically touched Swartz. Id. at 8, 26. Bertanzetti did, however, take preventative measures to keep the two students separated because they "were both getting too close to each other." Id. at 26. This investigation is consistent with the Manifestation Determination Review, which referenced the fact that "Duane has been under the watchful eye of administration and teachers," that "DTA staff members have been made aware of issues with Duane in school" and 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." Doc. 215-8 at 2. See also Doc. 215-15 at 201 (Weaver's notes showing that he met with Bertanzetti at the beginning of Mattison's twelfth grade to discuss a remark he made to a male peer about a female student's breasts).

Despite these incidents, Bertanzetti also testified that prior to March 14, 2011, no teacher "knew of anything happening" between Mattison and Bobbie Jo; that other than what Bobbie Jo told him, he had no knowledge of any other inappropriate touching by Mattison of Bobbie Jo; and that he did not know why Mattison had previously left Warrior Run during his 11th grade year. Doc. 215-6 (Bertanzetti Dep.) at 11, 15, 18, 34.

Nonetheless, drawing all inferences in the light most favorable to the Plaintiffs, and assuming that Bertanzetti was an appropriate person with actual knowledge, Plaintiffs have fail to establish a genuine dispute of material fact as to the deliberate indifference element of their Title IX claim. For Plaintiffs to succeed on their Title IX claim and establish that the school was deliberately indifferent, there would have to be evidence in the record to demonstrate that Bertanzetti either knew that Mattison was a substantial danger to the other female students or knew that Mattison was sexual harassing Bobbie Jo or other students at Warrior Run, and took insufficient, or no, measures to attempt to remedy the situation.

Here, while there are differing accounts by Bertanzetti and Mattison about their conversation regarding the "rumor," there is nothing to suggest that Bertanzetti's actions in response to that conversation can sufficiently amount to deliberate indifference. As set forth in the facts section, Mattison did not recall telling Bertanzetti anything about his sexual history during this conversation. Doc. 215-3 (Mattison Dep.) at 29. However, Plaintiffs' counsel kept returning to this conversation during deposition. Over the objections of his counsel, Mattison gave additional, vague responses to Plaintiffs' counsel's questioning:

Q. And when you spoke with Mr. Bertanzetti about the rumor, he was aware of your prior instances of sexual touching; is that right?

A. Yes, because I had told him about the rumor.

Q. Okay. I think you told him about the rumor, but when you told him about the rumor, was he aware that you had this prior instances [sic ] of touching?

A. Yes, sir.

Q. Okay. So he knew the rumor to be true?

A. I had sexual -

[Objections by counsel]

Q. You're allowed to answer. [Your counsel] is just being technical.

A. I'm confused. I mean -

[Objections by counsel]

Q. When you told Mr. Bertanzetti about the rumor, Mr. Bertanzetti knew that the rumor was actually true?

A. Yeah, because he questioned me about it and I trusted him enough to let him know my background.

Q. Okay. Before you told him -- is that how he found out about your background, when you told him about the rumor?

A. Yes, sir.

Q. And that was when you first came to school there in tenth grade?

A. Yes, sir.

Id. at 88-89. Mattison's testimony about what he told Bertanzetti was, at best, vague and unsupported by any other record evidence. At this point of the deposition, Mattison had already testified that he did not recall anything else about the conversation besides the fact that he told Bertanzetti about the rumor and that Bertanzetti said "he's going to take care of it." Id. at 29. But only after repeated leading questions by counsel, Mattison agreed that Bertanzetti must have known the rumor was true because "I trusted [Bertanzetti] enough to let him know my background," without expounding on what he meant by "my background." Id. at 88-89. The Court is constrained to note that Mattison is mentally challenged. Doc. 204 ¶ 3; see also Doc. 215-11 (June 12, 2007 Psychiatric Report of Mattison, averring that he has an IQ of 66 and "observed to be very concrete, easily led, and an insecure individual"). Thus, counsel's insistent pressing regarding a conversation that occurred years prior, about which Mattison had already testified that he did not recall, is a highly questionable litigation tactic that does not appear to be designed to elicit any accurate evidence.

Further, assuming the conversation about the "rumor" indeed occurred, this discussion alone could not have obligated Bertanzetti to take any action with Mattison, such that his failure to respond "is clearly unreasonable in light of the known circumstances." Davis , 526 U.S. at 648, 119 S.Ct. 1661. First, the purported conversation occurred at least two years prior to the Bobbie Jo incident. Second, the conversation arose in the context of discussing a high school rumor about Mattison's "background". It did not put Bertanzetti on notice that Mattison engaged in any misconduct at Warrior Run. Nor can Mattison's testimony about the "rumor" support an argument that Bertanzetti acted with deliberate indifference by failing to determine, based on this purported conversation alone, that as Plaintiffs argue "Mattison was a serial sex offender who was harassing females in his special needs class well prior to the March 14, 2011 incident", Doc. 215 at 16.

In addition to the conversation between Mattison and Bertanzetti about the "rumor", the only other evidence relating to Bertanzetti's knowledge are (1) the accusation by Swartz during Mattison's eleventh grade year, and (2) an incident in twelfth grade where Mattison made a remark to a male peer about a female student's breasts.

With respect to Swartz's accusation, it is undisputed that Bertanzetti conducted an investigation into this incident, the only previously reported incident of sexual misconduct against another student by Mattison at Warrior Run. Although Bertanzetti concluded that there was no proof that Mattison had inappropriately touched Swartz, Bertanzetti did conduct an investigation into the report, including talking to Mattison and Swartz, the classroom teacher and aid who were in the room, and "anybody else who was in the room that may have been there at the time", and ultimately implemented preventative measures to keep Swartz and Mattison separated. Doc. 215-6 (Bertanzetti Dep.) at 8, 25, 26. See also , Doc. 215-8 (Manifestation Determination), at 2 (noting that the school took corrective measures to ensure that Mattison was under the "watchful eye" of certain, unspecified administrators and teachers, and informed DTA of "issues with Duane in school").

With respect to the inappropriate remark Mattison made during twelfth grade regarding a female student's breasts, the record indicates that Bertanzetti called and met with Alvin Weaver from DTA the same day that he learned of the incident, and both he and Weaver reprimanded Mattison for the inappropriate comment. Doc. 215-15 at 201.

While Bertanzetti's remedial measures did not ultimately prevent Mattison's harassment of Bobbie Jo, the fact that the appropriate person's initial response does not remedy or prevent the harassment, cannot provide sufficient grounds for liability. See Baynard , 268 F.3d at 236. Additionally, it is undisputed that the first time Bertanzetti, or any other teacher or administrator, was made aware of Mattison's harassment of Bobbie Jo was March 14, 2011. Doc. 204 ¶ 37. After learning of the incident, Bertanzetti took immediate action, resulting in Mattison's removal from school that same day. Id. ¶ 31. In short, Plaintiffs have not presented a triable issue of fact to establish deliberate indifference by the school district as to Mattison's peer-to-peer harassment of Bobbie Jo. See Brooks v. City of Philadelphia , 747 F.Supp.2d 477, 483-84 (E.D. Pa. 2010) (finding no deliberate indifference under Title IX where two kindergarten boys had engaged in sexually inappropriate behavior on two separate occasions, since "there is absolutely no evidence that Tyler had sexually harassed other students or that the school was aware of any other harassment either before or after these incidents," and after the school became "aware that their initial attempts were not effective, the school district did not simply continue the same methods. Instead, the district complied with the Plaintiffs' request to transfer their son"). Cf. S.K. v. N. Allegheny Sch. Dist. , 168 F.Supp.3d 786, 803 (W.D. Pa. 2016) (holding that plaintiffs sufficiently alleged deliberate indifference when school officials had actual knowledge of persistent, increasingly severe sexual harassment by students, and knew that "the initial measure of a verbal reprimand by [the school principal] had proved to be ineffective," but "failed to impose any type of punishment that would deter the students from perpetuating the behavior," which then "escalated to the point where it essentially was open, notorious and prevalent and became 'its own sport' among certain of the school's athletes").

Finally, though Plaintiffs make much of Mattison's DTA therapy notes addressing his sexual fantasies, including those targeted at his peers in school, see, e.g. , Doc. 215 at 6-10, it is undisputed that Bertanzetti had no knowledge of the sexual desires revealed by Mattison during DTA's weekly therapy sessions. See Doc. 215-15 at 178-80 (Weaver testifying at his second deposition that DTA did not share "any treatment notes, plans, records of any kind with anyone from the Warrior Run School District or the teachers," including the newly available evidence from DTA's psychiatric file on Mattison, nor did anyone from DTA "discuss[ ] with anyone from Warrior Run School District - teachers, principals ... anything having to do with Mr. Mattison's care, treatment, and/or psychiatric/sexual history"). See also Doc. 215-6 at 21 (Bertanzetti testifying that on the day of the Bobbie Jo incident, Weaver came to Warrior Run to remove Mattison from the school, but he did not "share any information about whether Duane had done anything like this in the past").

Because Plaintiffs cannot demonstrate that an appropriate person was deliberately indifferent so as to establish a cause of action under Title IX, the Court need not determine in this Count whether the discrimination or harassment of Bobbie Jo rises to the level of "severe, pervasive, and objectively offensive" or effectively barred her access to an educational opportunity or benefit.

Summary judgment will thus be granted in favor of the School District on Count II.

B. Count I - Section 504 of the Rehabilitation Act

Count I of the Second Amended Complaint alleges a violation of Section 504 of the Rehabilitation Act by the Warrior Run School District. Section 504 provides:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...

29 U.S.C. § 794(a). To establish a violation of Section 504, a plaintiff must show that "(1) [s]he is 'disabled' as defined by the Act; (2) [s]he is 'otherwise qualified' to participate in school activities; (3) the school or the board of education receives federal financial assistance; and (4) [s]he was excluded from participation in, denied the benefits of, or subject to discrimination at, the school."

Andrew M. v. Delaware Cnty. Office of Mental Health & Mental Retardation , 490 F.3d 337, 350 (3d Cir. 2007) (quoting Ridgewood Bd. of Educ. v. N.E. , 172 F.3d 238, 253 (3d Cir.1999), superseded by statute on other grounds as recognized by D.F. v. Collingswood Borough Bd. of Educ. , 694 F.3d 488 (3d Cir. 2012) ). As this Court stated in its previous opinion, although a showing of intentional discrimination is not a requisite to establishing a Section 504 claim in general, see Ridgewood , 172 F.3d at 253, the statutory language of the Act, which prohibits discrimination against a person "solely by reason of his or her disability" imposes a requisite causation element on a Section 504 claim. Specifically, a plaintiff must show that "[t]he state ... failed to provide the service for the sole reason that the child is disabled." Andrew M. , 490 F.3d at 350.

Here, Plaintiffs blithely assert "the District knew [Bobbie Jo] was a sitting duck for this sexual predator [i.e. Mattison] who was repeatedly acting out in the classroom setting and, that her disability of mental retardation rendered her most vulnerable to his predations." Doc. 215 at 12. However, Plaintiffs have failed to point to any causal relationship between Bobbie Jo's disability and Mattison's misconduct towards her or shown that her disability affected the decisions of Warrior Run School District. Even assuming that one or more of the school defendants did know about Mattison's sexual misconduct history or his sexual propensities, Plaintiffs have failed to demonstrate how this knowledge in itself led to discrimination based on Bobbie Jo's disability. According to Mattison, his special education classes were held in three separate classrooms. Doc. 215-3 (Mattison Dep.) at 31-32. Mattison also testified that he had gym, drivers' education, and art with the "regular" students. Doc. 215-3 at 30. As the Court found in its previous opinion, there is no evidence that Mattison was not permitted to sit next to female students in his "regular" classes or that the school took extra precautions to protect students in regular classes but not students in special education classes. Similarly, there is no evidence that Mattison touched any other student in his special education classes (other than the accusation by Swartz found to be without basis) or that any of the teachers or administrators were aware of his sexual advances towards Bobbie Jo or any other student in the special education classrooms. See, e.g. , Doc. 215-13 at 9-13 (Del Gotto testifying that she was not aware of any time when Mattison had acted inappropriately prior to the Bobbie Jo incident); Doc. 215-17 at 10, 21 (Osenga testifying that she had never heard any "rumors" about Mattison's sexual conduct, nor was she aware that Mattison had a prior history of sexual misconduct).

Thus, there is no record evidence that the School District discriminated against female students in special education classes in any way, nor is there evidence that the School took any actions based on the special education students' disabilities that rendered them more vulnerable to Mattison's potential sexual misconduct. There is no evidence to suggest that Bobbie Jo was treated differently than any other student, disabled or not.

Accordingly, the Court will grant School Defendants' motion for summary judgment on Plaintiffs' Section 504 Rehabilitation Act claim due to Plaintiffs' failure to present any evidence to create a factual dispute as to whether Bobbie Jo was discriminated against due to her disability.

C. Count III - 42 U.S.C. § 1983

To succeed on a claim under 42 U.S.C. § 1983, the plaintiff must demonstrate a violation of a right 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). In evaluating a Section 1983 claim, a Court must first "identify the exact contours of the underlying right said to have been violated." Id. (citing Cty. of Sacramento v. Lewis , 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) ). Here, Plaintiffs' claim rests on the substantive due process clause of the Fourteenth Amendment, alleging that Bobbie Jo was deprived of her right to bodily integrity. Doc. 77 ¶ 55. "Liability under the state-created danger theory is predicated upon the states' affirmative acts which work to plaintiffs' detriments in terms of exposure to danger." D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch. , 972 F.2d 1364, 1374 (3d Cir. 1992) (en banc).

To meet the requirements of a state-created danger claim, a plaintiff must show (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor acted with a degree of culpability that shocks the conscience; (3) 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 (4) a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all. Bright v. Westmoreland Cty. , 443 F.3d 276, 281 (3d Cir. 2006) ; Robinson v. Peirce , 586 F. App'x. 831, 834 (3d Cir. 2014). As this Court previously stated in its prior opinion on summary judgment, "[t]he first and fourth elements of a state-created danger test are so intertwined as to be capable of analysis together." Doc. 169 at 34. The analysis asks "whether a state actor's behavior constituted an affirmative act, and, if so, whether the affirmative act created a foreseeable opportunity for harm." Bright , 443 F.3d at 283 n.7 (citing Morse v. Lower Merion Sch. Dist. , 132 F.3d 902 (3d Cir. 1997) ). "To adequately plead foreseeability," there must be "an awareness on the part of the state actors that rises to level of actual knowledge or an awareness of risk that is sufficiently concrete to put the actors on notice of the harm." Phillips v. Cty. of Allegheny , 515 F.3d 224, 238 (3d Cir. 2008).

Here, Plaintiffs argue that the harm to Bobbie Jo was foreseeable because the School Defendants had knowledge of Mattison's propensity for sexual misconduct. To establish such knowledge, they point to the "Manifestation Determination, Mattison's testimony concerning his informing Bertanzetti of his sexually deviant past towards females, Weaver's testimony concerning interventions at the school regarding sexual abuse by Mattison and the content of the conversations involving Mattison's ongoing sexual deviancy to which Bertanzetti was privy, and even Bertanzetti's testimony concerning his knowledge of the allegations of abuse of [Swartz]." Doc. 215 at 21.

Once again, Plaintiffs make no specific argument as to Cross' knowledge of Mattison's sexual history or any risk he may have posed to other students. At best, as previously discussed, Cross admitted knowing about an investigation by Bertanzetti into the Swartz accusation, which did not find any misconduct on Mattison's part. See Doc. 215-5 at 12 (Cross testifying that she was aware of the accusation regarding Mattison and Swartz, that it was investigated by Bertanzetti, and that it was "founded [sic ] untrue"). Furthermore, Cross did not even know that Mattison was associated with DTA or received psychiatric treatment from them prior to March 14, 2011, an assertion that has not been contradicted by any other deposition testimony or documentary evidence. Id. at 11, 27. Thus, Plaintiffs have failed to point to any evidence that could reasonably impute any knowledge to Cross that Mattison posed foreseeable harm to Bobbie Jo, or any other student at Warrior Run.

In addition, regardless of the extent of Cross' knowledge, Plaintiffs have not put forth any evidence demonstrating that Cross took any affirmative actions in a way that put Warrior Run students in danger or made them more vulnerable to danger. In their brief in opposition to summary judgment, Plaintiffs make an off-handed reference that "Cross and Bertenzetti [sic ] plac[ed] Mattison in the special needs classrooms with [Bobbie Jo]." Doc. 215 at 22. However, Plaintiffs fail to support such a statement with any citations to the record. Moreover, the Court's independent review of the record has not uncovered any evidence that either Cross or Bertanzetti had any personal involvement in, or influence over, the decision to place Bobbie Jo in special education classes with Mattison. In fact, Plaintiffs admit that Bobbie Jo was placed in Warrior Run's special education and life skills program because "[Bobbie Jo] identified as having mental retardation," not because any school official affirmatively made a decision to place her there. Doc. 204 ¶ 2. The record further does not provide any evidence to support an assertion that Cross or Bertanzetti ma