On Appeal From the United States District Court For the Western District of Pennsylvania. (D.C. Civil Action No. 90-01100).
Before: Stapleton, Scirica, and Alito, Circuit Judges.
STAPLETON, Circuit Judge:
Plaintiff schoolchildren allege that they were sexually molested by their school bus driver while being driven in the bus to and from school and, together with their parents and guardians, brought a civil rights action under 42 U.S.C. § 1983 against the bus driver, Clark Myers, the school superintendent, David Laird, the school district, the bus company, Vernon R. Claypoole, Inc., and its president, Vernon Claypoole. The district court granted a motion for summary judgment as to all defendants, and plaintiffs appeal. We will affirm.
Plaintiffs allege that at various times between September 1984 and December 1988, Myers sexually molested the girls while on the school bus. At the time of the alleged molestations the schoolchildren were six, seven, and eight years old.
There were only two complaints made about Myers' alleged activities. One was in February of 1985 and the other was in December of 1988. In February of 1985, Dennis Hulings contacted the school district with concerns that Myers might have sexually molested Hulings' daughter, Stefanie. Superintendent Laird immediately contacted the Hulings to verify the complaint. The Hulings were unsure that any molestation had occurred and were reluctant to press criminal charges. Laird called a meeting which Mr. and Mrs. Hulings, Myers, and Laird attended. At the Conclusion of the meeting Laird and the Hulings were convinced that, while Myers may have shown some special affection for Stefanie, no sexual abuse had taken place. Laird instructed Myers to stop showing special attention to any particular child, and the Hulings apologized to Myers for having brought the complaint. Laird did not report the Hulings' complaint to Children and Youth Services because he, like the Hulings, did not believe that Stefanie had been abused. There were no further complaints against Myers until December of 1988.
In December of 1988, another parent informed Laird that Myers had molested her daughter and other children, and that she intended to press criminal charges. Laird insisted that Myers be suspended from driving a bus for the school district, and Myers has not driven for the school district since that time. Children and Youth Services was notified of the complaint and a criminal prosecution ensued.
Plaintiffs allege that the children's constitutionally protected right to bodily integrity*fn1 was violated by Myers's alleged abuse. They assert that Myers was acting under color of law when he committed the assault, and that he is thus personally liable under § 1983. With respect to Laird, plaintiffs claim that Laird established and maintained, with deliberate indifference to the consequences, a policy, practice or custom that directly caused the harm, and so is independently liable for the wrong. Additionally, plaintiffs claim that Laird had an affirmative duty to protect the children under his care, arising from a "special relationship" between the school district and the children. Likewise, plaintiffs claim that the school district is liable both on a "policy leading to injury" theory and a "special relationship" theory. Finally, plaintiffs claim that Vernon Claypoole and the Claypoole Corporation are independently liable for plaintiffs' injuries because, while acting under color of state law, they failed to sufficiently monitor Myers.
This Court's standard for reviewing a summary judgment is plenary. Regarding the facts in the light most favorable to the non-moving plaintiffs, we must determine whether the moving defendants are entitled to judgment as a matter of law. See Sames v. Gable, 732 F.2d 49 (3d Cir. 1984); Betz Laboratories, Inc. v. Hines, 647 F.2d 402 (3d Cir. 1981).
With respect to Myers, Claypoole and Vernon R. Claypoole, Inc., the threshold question is whether they were acting under color of state law. If they were not, they can have no liability under 42 U.S.C. § 1983. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982).
Vernon R. Claypoole, Inc. is a private entity that was under contract with the school district to provide transportation for students to and from school. Myers and Claypoole were, respectively, an employee and an officer of this state contractor. Thus, none of these three defendants was an officer or employee of the state. We must nevertheless determine whether their actions are "fairly attributable to the state. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982). Based on Rendell-Baker v. Kohn, 457 U.S. 830, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982), we conclude that they cannot.
In Rendell-Baker, five employees of a private school brought a § 1983 suit against a Massachusetts private school, the New Perspectives School, and its director, alleging that they had been discharged for speech protected by the First Amendment. The crucial issue was whether the director and the ...