NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3281
_____________
G.S., as an individual and mother and
natural guardian of S.S., a minor; S.S., a minor,
Appellants,
v.
PENN-TRAFFORD SCHOOL DISTRICT;
GREGORY CAPOCCIONI;
ANTHONY AQUILIO;
MATTHEW HARRIS;
SCOTT INGLESE
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No. 2-18-cv-00204)
District Judge: The Honorable William S. Stickman, IV
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Argued September 24, 2021
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Before: McKEE,* RESTREPO, and ROTH, Circuit Judges
(Opinion filed: July 12, 2023)
Alexander H. Lindsay, Jr. [ARGUED]
Lindsay Law Firm
110 East Diamond Street
Suite 301
Butler, PA 16001
Jessica L. Tully
Ruder Law
301 Grant Street
One Oxford Circle
Suite 270
Pittsburgh, PA 15219
Attorneys for Appellants
Michael L. Brungo [ARGUED]
Maiello Brungo & Maiello
Southside Works
424 South 27th Street
Room 210
Pittsburgh, PA 15203
Gary H. Dadamo
Sweet Stevens Katz & Williams
331 East Butler Avenue
P.O. Box 5069
New Britain, PA 18901
Attorneys for Appellees
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OPINION**
____________
______________
*
Judge McKee assumed senior status on October 21, 2022.
**
This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
2
McKEE, Circuit Judge.
G.S., mother of then-high school student S.S., appeals the District Court’s
dismissal of the amended complaint1 she filed on behalf of S.S. against the Penn-Trafford
School District and four administrators. The District Court dismissed the amended
complaint for failure to state a claim. This suit involves a First Amendment retaliation
claim and a 42 U.S.C. § 1983 claim under Monell v. Dep’t of Soc. Servs. of the City of
New York.2 For the reasons that follow, we must again vacate the District Court’s order
dismissing the amended complaint and remand for further proceedings consistent with
this opinion.3
I.4
A. First Amendment Retaliation Claim
G.S. alleges that four officials retaliated against S.S. for complaining that she
(S.S.) was bullied and assaulted in school. They are (1) Anthony Aquilio, Principal; (2)
Gregory Capoccioni, Assistant Principal; (3) Matthew Harris, Superintendent; and (4)
Scott Inglese, Assistant Superintendent. To establish a First Amendment retaliation
claim, a plaintiff “must allege: (1) constitutionally protected conduct, (2) retaliatory
1
By way of background, we previously held that the District Court erred in not allowing
Plaintiffs to amend the original complaint. We reversed and remanded with instructions
to permit an amendment. See G.S. v. Penn-Trafford Sch. Dist., 813 F. App'x 799 (3d Cir.
2020). That amended complaint is now the focus of this appeal.
2
436 U.S. 658 (1978).
3
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
4
Our review of a dismissal for failure to state a claim pursuant to Rule 12(b)(6) is
plenary. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009).
3
action sufficient to deter a person of ordinary firmness from exercising his/her
constitutional rights, and (3) a causal link between the constitutionally protected conduct
and the retaliatory actions.”5 We address each of these issues in turn.
1. Constitutionally protected activity
“[E]xcept for certain narrow categories deemed unworthy of full First Amendment
protection—such as obscenity, ‘fighting words’ and libel—all speech is protected by the
First Amendment.”6 This protection includes private speech that is not related to matters
of public concern.7 Furthermore, it has been established for many decades that students
do not “shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.”8
However, where, as here, a student asserts a First Amendment claim in school, we
weigh First Amendment rights “in light of the special characteristics of the school
environment.”9 Students may exercise their First Amendment rights unless doing so
would “materially and substantially disrupt” school operations.10 Obviously, the law
would afford a student’s right to free speech little protection if school authorities could
retaliate against a speaker solely because of his or her statements.11
5
Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v. Horn, 318
F.3d 523, 530 (3d Cir. 2003)).
6
Eichenlaub v. Twp. of Indiana, 385 F.3d 274, 282–83 (3d Cir. 2004).
7
Id. at 283.
8
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).
9
Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988).
10
See Healy v. James, 408 U.S. 169, 189 (1972) (quotation marks and citation omitted);
Hazelwood Sch. Dist., 484 U.S. at 272.
11
See Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 670 (1973).
4
Here, the amended complaint alleges that “S.S. engaged in conduct protected by
the First Amendment, specifically reporting instances of bullying to her assistant
principal, Mr. Capoccioni.”12 That reporting is the alleged protected activity, and we
conclude that the amended complaint sufficiently pleads this prong of S.S.’s First
Amendment retaliation claim.
2. Retaliatory action
Neither party to this suit disputes that G.S. was initially told that S.S. was
suspended for fighting. However, G.S. argues that the school officials retaliated against
S.S. for reporting incidents of bullying by suspending her for three days. The officials
counter that the alleged retaliatory conduct was the refusal to remove the suspension and
“not the imposition of the suspension itself.”13 According to the officials, “the Amended
Complaint lacks facts that set forth a plausible showing that any Individual Appellee took
sufficient retaliatory action against S.S. because she engaged in any expressive
activity.”14 We disagree.
In reviewing a Rule 12(b)(6) dismissal, we “accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”15
Again, the amended complaint alleges that “S.S. engaged in conduct protected by the
12
App. 42 (Am. Compl. ¶ 163).
13
Appellees’ Br. at 4.
14
Id.
15
Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quotation marks and
citation omitted).
5
First Amendment, specifically reporting instances of bullying to her assistant principal,
Mr. Capoccioni.”16 It later alleges that Inglese decided to uphold the suspension in part
because of S.S.’s prior reporting altercations with other students. Construing these
allegations in the light most favorable to S.S., as we must at this early stage of litigation,
we conclude that the amended complaint sufficiently alleges that S.S.’s protected speech
was a factor contributing to the three-day suspension imposed upon her. Though
Inglese’s comments were explicitly made in the context of the decision to uphold the
suspension, his comments nevertheless raise a non-speculative possibility that S.S.’s
reporting played a role in the initial decision to suspend her as well.17 Common sense
alone establishes that a three-day suspension from school would deter a person of
ordinary firmness from exercising his or her constitutional rights. Accordingly, this prong
of the First Amendment retaliation claim is sufficiently pled.
3. Causation
The causation element of a First Amendment retaliation claim requires either “(1)
an unusually suggestive temporal proximity between the protected activity and the
allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.”18 Here, S.S.’s reports of bullying occurred over a period of many
16
App. 42 (Am. Compl. ¶ 163).
17
To be sure, we acknowledge the likelihood that S.S. was truly suspended, in part, for
being a part of a fight. Indeed, we have not required that the protected activity in a First
Amendment case be the sole factor influencing an official’s retaliatory response. Still,
Inglese’s comments potentially indicate that a concern about S.S.’s protective speech
existed at the time she was originally suspended.
18
Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
6
months, beginning in the spring of 2016 and continuing until the day of the altercation on
December 16, 2016. S.S.’s most recent alleged protected conduct and the alleged
retaliatory action (i.e., the suspension) both occurred on December 16, 2016. This timing
is highly suggestive of First Amendment retaliation and is sufficient to establish the
required causal link.19 Moreover, S.S. need not rely solely upon the timing of the
retaliation. As discussed above, the amended complaint adequately alleges that S.S.’s
prior complaints factored into her suspension given Inglese’s statements.
B. The Monell Claim20
A school district may incur Monell liability under Section 1983 for a violation of
an individual’s constitutional rights when it implements an official policy or custom that
results in a constitutional deprivation.21 “To satisfy the pleading standard [for such a
19
See Mirabella v. Villard, 853 F.3d 641, 651–52 (3d Cir. 2017) (holding that an
“unusually suggestive temporal proximity” existed where the alleged retaliatory act
occurred on the same day as the constitutionally protected conduct).
20
As a threshold matter, we observe that G.S. did not plainly assert a Monell claim in the
amended complaint. The initial complaint asserted two causes of action under 42 U.S.C §
1983: (1) a state-created danger claim against the school administrators, and (2) a claim
under Monell against the School District and its administrators. Yet the amended
complaint asserts only one cause of action—First Amendment retaliation against the
School District and its administrators. We have held that “[i]f a party omits a claim from
an amended complaint that it would not have been futile to replead, that party can still
preserve the claim for appellate review by standing on the dismissed claim despite
leaving it out of the amended complaint.” In re Atkinson v. PA. Shipbuilding Co., 473
F.3d 506, 517 (3d Cir. 2007). To date, we have “not adopt[ed] a rigid requirement as to
what a plaintiff must do to stand on a dismissed complaint.” Id. Here, both parties argued
the dismissed Monell claim in their briefs to us and during oral argument before our
Court. This is sufficient to meet the flexible requirement that G.S. notify us and the
opposing parties that she is standing on her dismissed Monell claim. We will therefore
also address that cause of action.
21
Monell, 436 U.S. at 694.
7
claim, a plaintiff] must identify a custom or policy, and specify what exactly that custom
or policy was.”22 In addition, a plaintiff must establish causation by properly pleading
that the municipality’s policy or custom “was the source of [his or] her injury.”23
We have held that “municipal liability [under Section 1983] attaches only when
‘execution of a government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy, inflicts the
injury.’”24 The District Court concluded that the amended complaint failed to allege any
custom, practice, or policy of First Amendment retaliation. It determined that the
amended complaint contained no “allegations as to how the policymakers of the Penn-
Trafford School District became aware of a pattern and culture of unconstitutional
behavior infringing on students’ First Amendment rights or when and under what
circumstances such events occurred.”25 The District Court is wrong.
For purposes of a Monell claim, “[p]olicy is made when a ‘decisionmaker
possess[ing] final authority to establish municipal policy with respect to the action’ issues
an official proclamation, policy, or edict.”26 A plaintiff must show that an official who
has the power to make policy is responsible for the action.27 When deciding who has
policymaking responsibility, “a court must determine which official has final,
22
McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009).
23
Santiago v. Warminster Twp., 629 F.3d 121, 135 (3d Cir. 2010).
24
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990).
25
Penn Trafford, 2020 WL 6135729, at *5 (internal quotation marks omitted).
26
Bielevicz, 915 F.2d at 850 (quoting Andrews v. City of Philadelphia, 895 F.2d 1469,
1480 (3d Cir. 1990)).
27
Andrews, 895 F.2d at 1480.
8
unreviewable discretion to make a decision or take an action,” a question that is answered
by looking to state law.28
Under Pennsylvania law, a school board may be the final policymaker with respect
to some actions, while the school superintendent may be the final policymaker with
regard to other actions.29 The inquiry into whether Harris acted as a policymaker when he
agreed to review S.S.’s suspension is resolved by identifying the final policymaker
regarding suspensions in Pennsylvania high schools.
Section 12.6 of the Pennsylvania Administrative Code30 governs exclusions from
school. It states that suspensions of one to ten school days “may be given by the principal
or person in charge of the public school.”31 The Pennsylvania School Code provides that
district superintendents have final discretion to determine the appropriateness of three-
day suspensions.32 Another section of the School Code provides that a superintendent
supervises all matters relating to discipline and holds final authority on such matters.33
28
Id. at 1481.
29
See McGreevy v. Stroup, 413 F.3d 359, 368–69 (3d Cir. 2005) (a Pennsylvania school
board is final policymaker regarding dismissal of employees, but the superintendent is the
final policymaker over employee ratings determinations).
30
22 Pa. Code § 12.6.
31
22 Pa. Code § 12.6(b)(1)(i).
32
See 24 P.S. § 13–1318 (“Every principal or teacher in charge of a public school may
temporarily suspend any pupil on account of disobedience or misconduct, and any
principal or teacher suspending any pupil shall promptly notify the district superintendent
or secretary of the board of school directors.”).
33
See 24 P.S. § 21-2107 (“Assistant district superintendents . . . . in conjunction with the
school principals, inquire into and supervise all matters relating to . . . discipline, and
conduct of all schools in their respective districts, and shall report the same when
required to the superintendent of schools.”).
9
Pennsylvania statutes thus support the conclusion that Harris possesses final authority
over student suspensions.
In Andrews v. City of Philadelphia, we explained that in circumstances such as
these, where officials without policymaking authority allegedly violate a plaintiff’s
constitutional rights, a municipality can be held liable only if the final policymaker either
acquiesced in the subordinate’s decisions or delegated authority to him or her.34 Here,
Defendants acknowledge that Harris is the final policymaker, but they argue that “the
only allegations involving Harris are that he met with [G.S.] and refused to remove S.S.’s
suspension.”35 But G.S. does not only allege that Harris met with her and refused to
remove S.S.’s suspension. She also alleges that Harris told her that he would (1) review
the suspension, and (2) contact her after he and Inglese reached a decision. As we have
explained, G.S. alleges that Inglese explicitly relied on S.S’s protected conduct to justify
her suspension (which Harris apparently reviewed). Once again construing these
allegations in the light most favorable to the plaintiffs, we conclude that the complaint
sufficiently pleads that Harris knowingly acquiesced to the justification Inglese
communicated to G.S. If so, Harris’s ratification may be chargeable to the School District
because his decision regarding S.S.’s suspension was final.
34
895 F.2d at 1481. Furthermore, the Supreme Court held in City of St. Louis v.
Praprotnik, 485 U.S. 112, 142 (1988) that “[i]f the authorized policymakers approve a
subordinate’s decision and the basis for it, their ratification would be chargeable to the
municipality because their decision is final.”
35
Appellees’ Br. at 7–8.
10
Lastly, to maintain a Monell claim pursuant to Section 1983, a plaintiff must also
plausibly allege that a municipal policy was the proximate cause of her injuries.36 To
establish proximate causation, a plaintiff must demonstrate a “plausible nexus” or
“affirmative link” between the municipality’s policy and the specific deprivation of
constitutional rights at issue.37 “As long as the causal link is not too tenuous, the question
[of] whether the municipal policy or custom proximately caused the constitutional
infringement should be left to the jury.”38
As Plaintiffs argue in their brief, “[t]he clear message that the administrators sent
to the student body is that students should not report incidents of bullying, and if they do
report it, they will be suspended.”39 G.S. alleges facts that, if accepted by a fact-finder,
support a claim that the administrators’ “clear message” became policy when the School
District’s superintendent reviewed and approved S.S.’s suspension. The District Court
simply failed to appreciate allegations that school authorities were trying to maintain an
appearance of civility and order by creating an environment where students “see no evil,
hear no evil, speak no evil.”
Accordingly, G.S. has plausibly alleged that the School District was the proximate
cause of S.S.’s injury, and thus, has successfully pleaded a Monell claim. In fact, this case
36
Bielevicz, 915 F.2d at 850.
37
Id. at 850–51.
38
Id. at 851 (citation omitted).
39
Appellants’ Br. at 20.
11
is a clear illustration of why we have stated that “[o]rdinarily, proximate cause cannot be
determined on the basis of pleadings but instead requires a factual development at trial.”40
II.
For the foregoing reasons, we will vacate the District Court’s order dismissing the
amended complaint pursuant to Rule 12(b)(6) and remand for further proceedings
consistent with this opinion.
40
Est. of Bailey by Oare v. York Cnty., 768 F.2d 503, 511 (3d Cir. 1985).
12