H.B. v. Pittsburgh Pub. Sch., Dist., Civil Action No. 19-1326

H.B., by and through PATRICIA F., as her Parent and legal guardian, and PATRICIA F., individually, Plaintiff, v. PITTSBURGH PUBLIC SCHOOLS, DISTRICT, THE CHILDREN'S INSTITUTE ofPITTSBURGH, PAUL K. BROWN INC., t/d/b/a/ PROFESSIONAL LIMOUSINE SERVICE,and LAVALLE TUCKER, Individually, Defendants.

Civil Action No. 19-1326

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

May 13, 2020

District Judge Cercone

Magistrate Judge Lenihan

ECF Nos. 39, 41 & 50

REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the Motion to Dismiss filed by Defendant the Children's Institute of Pittsburgh (ECF No. 39) be granted. It is further recommended that the Motion to Dismiss filed by Defendant Pittsburgh Public Schools (ECF No. 41) be granted in part and denied in part. It should be granted as it relates to Plaintiff § 1983 claim and denied as to Plaintiffs' ADA claim. It is also recommended that the Motion to Dismiss filed by Defendant Paul K. Brown Inc., t/d/b/a/ Professional Limousine Service (ECF No. 50) be granted.

II. REPORT

A. Factual Allegations

Plaintiff H.B. ("Minor Plaintiff") by and through Patricia F.("Plaintiff Mother"), as her parent and legal guardian, and Patricia F., individually (collectively "Plaintiffs"), filed this civil action against Defendants Pittsburgh Public Schools ("PPS"), the Children's Institute of Pittsburgh ("Institute"), Paul K. Brown, Inc., t/d/b/a Professional Limousine Service ("PLS"), and Lavalle Tucker ("Tucker"). Amended Complaint, ECF No. 35 ¶ 2. Minor Plaintiff suffers from a rare genetic disorder and as a result, is severely disabled, both physically and intellectually. ECF No. 35 ¶ 12. Minor Plaintiff is generally unable to communicate without the use of technological assistance in the form of a specially formatted iPad. ECF No. 35 ¶ 13.

Since 2009, Minor Plaintiff has attended Defendant Institute's Day School. ECF No. 35 ¶ 14. Defendant Institute's Day School is an approved private school ("APS") that provides special education services to students with complex disabilities. Defendant Institute's students attend its programs with the knowledge of and/or assistance from their home school districts, in accordance with state and federal law. ECF No. 35 ¶ 15. As part of her curriculum at Defendant Institute, Minor Plaintiff is enrolled in an individualized education program ("IEP") designed to meet her specific needs as a disabled student. Minor Plaintiff's IEP is implemented and managed by members of Defendant Institute's staff, as well as a representative from Minor Plaintiff's home district, Defendant PPS. ECF No. 35 ¶ 16.

In accordance with Defendant PPS' statutory obligations, Minor Plaintiff was transported to and from her classes at Defendant Institute by an agent of Defendant PLS, including, but not limited to, Defendant Tucker. ECF No. 35 ¶ 17. The vehicle used to transport Minor Plaintiff was not equipped with a surveillance camera comparable to those typically found on school buses. ECF No. 35 ¶ 18. Plaintiffs believe, and therefore allege, that vehicles provided by Defendant PPS used to transport non-disabled students are, and were, equipped with surveillance cameras as a safety measure. ECF No. 35 ¶ 19.

In September 2017, Defendant Tucker was assigned as Minor Plaintiff's bus driver for the 2017-2018 school year. At that time, Defendant Tucker had been employed by Defendant PLS for approximately eighteen (18) years. ECF No. 35 ¶ 21. Defendant Tucker transported both Minor Plaintiff and one (1) other severely disabled student, J.B., to and from their classes at Defendant Institute daily. Like the Minor Plaintiff, J.B. is generally unable to communicate with others because of his disability. ECF No. 35 ¶ 22.

Pursuant to Defendant Institute's policies and procedures, after collecting Minor Plaintiff and J.B. from their respective homes at the designated pick-up times, Defendant Tucker transported Minor Plaintiff and J.B. to Defendant Institute, where they were required to remain in Defendant PLS' vehicle for approximately thirty (30) minutes until the official school day began. ECF No. 35 ¶ 23. From September 2017 to December 2017, Plaintiff Mother made several complaints to representatives of Defendant institute which included identifying safety issues created and/or compounded by Defendant Institute's drop off policy and procedure. ECF No. 35 ¶ 24. Defendant institute failed to take any action, remedial or otherwise, in response to Plaintiff Mother's complaints. ECF No. 35 ¶ 25.

On or about November 17, 2017, J.B. grabbed Minor Plaintiff's glasses and threw them towards the back of the bus. Plaintiffs aver that J.B. is prone to emotionally and/or physically violent outbursts as a direct result of his disability. ECF No. 35 ¶ 26. In addition, no aid was assigned to the school bus during the transport of the two (2) children, nor was the bus equipped with any video surveillance equipment. ECF No. 35 ¶ 27. Plaintiff Mother made several complaints to representatives of both Defendant PLS and Defendant Institute which included identifying safety issues created and/or compounded by the lack of an aid worker assigned toMinor Plaintiff's route. ECF No. 35 ¶ 28. No remedial measures were taken by any of the moving Defendants. ECF No. 35 ¶ 29.

After the conclusion of Minor Plaintiff's regular school day, Defendant Tucker normally returned Minor Plaintiff to her residence at approximately 3:15 p.m. On or about December 6, 2017, however, Defendant Tucker informed Minor Plaintiff's home aid, Elizabeth Nowell ("Nowell"), that he would be returning Minor Plaintiff to her residence later than usual the next day as the result of an additional minor passenger assigned to his route on that date. ECF No. 35 ¶¶ 31-32. The next day, at approximately 4:30 p.m., Plaintiff Mother called Nowell and informed her that she had been notified by an agent of Defendant PLS that Minor Plaintiff's bus was stopped somewhere along Washington Boulevard in Pittsburgh, allegedly as a result of actions taken by J.B. ECF No. 35 ¶ 33. Minor Plaintiff's normal bus route does not include Washington Boulevard. ECF No. 35 ¶ 34. Thereafter, Nowell travelled to Washington Boulevard to collect Minor Plaintiff. Upon arrival, Nowell observed that the bus was parked in an isolated lot, away from any residential or commercial properties; Minor Plaintiff and J.B. were the only students on the bus; the bus was equipped with only two (2) seats for passengers and was therefore unable to accommodate a third student; and Minor Plaintiff was crying hysterically, breathing erratically and exhibiting other signs of extreme emotional distress. ECF No. 35 ¶ 35.

After this incident, Defendant Tucker continued to return Minor Plaintiff to her residence after the designated 3:15 p.m. drop-off time. ECF No. 35 ¶ 37. Plaintiff Mother made several complaints to all moving Defendants about the safety issues related to Minor Plaintiff's late drop-offs. No action was taken by any of the Defendants. ECF No. 35 ¶¶ 38-39.

On December 12, 2017 Plaintiff Mother met with members of Defendant Institute's staff and a representative from PPS to discuss Minor Plaintiff's IEP. At this meeting Plaintiff Mother again complained of safety issues related to Minor Plaintiff's transportation to and from the Institute. Again, no action was taken by any of the Defendants. ECF No. 35 ¶¶ 40-42.

On the morning of December 19, 2017, Defendant Tucker transported Minor Plaintiff to the Institute for her regularly scheduled classes. At approximately 8:52 a.m., Alexis Galanter ("Galanter") observed Minor Plaintiff's bus parked on Dennis[t]on Street near the rear entry of Defendant Institute. At that time, Defendant PLS's van was not located at the designated Drop-off point for the Institute's students. As she approached the vehicle, Galanter clearly observed Defendant Tucker touching Minor Plaintiff in a sexual manner. ECF No. 35 ¶¶ 44-48. Plaintiffs further allege that this location is monitored and clearly observable by video surveillance equipment operated and maintained by the Institute, and that the Institute's staff had a duty to monitor the location to protect supervise and ensure the safety of students. ECF No. 35 ¶¶ 50-51.

Thereafter, Defendant Tucker was arrested and charged with various misdemeanors and felonies. On or about May 8, 2019, Defendant Tucker plead guilty to indent assault of a person with mental disabilities, indecent assault through forcible compulsion, corruption of minor and endangering the welfare of children, students and employees. ECF No. 35 ¶¶ 52-53.

In this civil action, Plaintiffs bring the following claims: 1) Count I against PPS and PLS for violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C.S. § 12131 by both Plaintiffs; 2) Count II against PPS and PLS by Minor Plaintiff for a Fourteenth Amendment Due Process violation pursuant to 42 U.S.C. § 1983; 3) Count III against the Institute and PLS by Minor Plaintiff for common law negligence; 4) Count IV against Tucker and PLS by MinorPlaintiff for common law assault and battery; and 5) Count V against Tucker and PLS by Minor Plaintiff for common law intentional infliction of emotional distress.

B. Legal Standard

The United States Court of Appeals for the Third Circuit summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):

Under the "notice pleading" standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with "a short and plain statement of the claim showing that the pleader is entitled to relief." As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a "plausible" claim for relief, and "[a] claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Although "[f]actual allegations must be enough to raise a

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