Case 3:17-cv-01839-JMM Document 32 Filed 10/13/18 Page 1 of 35 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ) H.S. ) Civil Action No. 3:17-cv-01839 ) Plaintiff, ) vs. ) ) JURY TRIAL DEMANDED STROUDSBURG AREA SCHOOL ) DISTRICT and BRANDON W. ) SECOND AMENDED COMPLAINT FLATLEY ) ) JUDGE MUNLEY Defendants ) ) ) SECOND AMENDED COMPLAINT 1. Plaintiff H.S. alleges, while as a minor child in the Stroudsburg Area School District (“District or SASD”), she was sexually harassed and molested by Brandon W. Flatley (“Flatley”), a music teacher, and that, not only is Flatley liable for his actions, but Defendant School District is also liable under 20 U.S.C. §1681 (hereafter “Title IX”) and 42 U.S.C. §1983 for its inaction, policies and customs which made the harassment possible and probable, and for its deliberate indifference to H.S.’s right to be free from sexual harassment, a hostile learning environment, grooming and sexual molestation by professional teaching staff. Plaintiff H.S. alleges that persons with authority at the Defendant School District acted with deliberate indifference despite actual knowledge of Flatley’s molestation and harassment and once Flatley was suspended and arrested, despite Case 3:17-cv-01839-JMM Document 32 Filed 10/13/18 Page 2 of 35 actual knowledge of the hostile educational environment she suffered from her peers, their parents, teachers and staff during the second half of her junior year and her entire senior year. PARTIES 2. Plaintiff H.S. was under the age of 18 at the time the incidents described herein occurred. 3. H.S. was born on . 4. When not attending college, H.S. resides with her parents in . 5. The Stroudsburg Area School District (“SASD”) is a political subdivision as that term is defined in the Political Subdivision Tort Claims Act (“Tort Claims Act”), 42 Pa.C.S. §§ 8541-8542, organized pursuant to the laws of the Commonwealth of Pennsylvania and maintains its administrative offices at 123 Linden Street, Stroudsburg, Pennsylvania 18360. 6. The Stroudsburg Area School District (“SASD” or “District”) is governed under Pennsylvania law by an elected school board which develops the practice, procedure, policy and custom of the District to be implemented daily by an appointed superintendent and other school administrators. 7. The superintendent and other members of the administration work with the SASD School Board in proposing policy for adoption by the school board 2 Case 3:17-cv-01839-JMM Document 32 Filed 10/13/18 Page 3 of 35 and in identifying areas and concerns to be addressed, and act as the “eyes and ears” of the SASD School Board on campus and in running the District on a daily basis through authority delegated by the Board and Pennsylvania law. 8. The practices, procedures, policies and customs of SASD, identified herein, were either expressly developed by the SASD school board, or established by the superintendent or other administrators, with the express delegation or acquiescence by the SASD school board. 9. Defendant Brandon W. Flatley was a full time, permanent music teacher employed by the District at the time the incidents described herein occurred. JURISDICTION AND VENUE 10. This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. § 1331 over all civil actions arising under the Constitution, laws and treaties of the United States. 11. This Court also has subject matter jurisdiction pursuant to 28 U.S.C. § 1343, which gives district courts original jurisdiction over (a) any civil action authorized by law to be commenced by any person to redress the deprivation, under color of any State law, statute, ordinance regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within 3 Case 3:17-cv-01839-JMM Document 32 Filed 10/13/18 Page 4 of 35 the jurisdiction of the United States; and (b) any civil action to recover damages or to secure equitable relief under any Act of Congress providing for the protection of the civil rights. 12. This Court also has supplemental jurisdiction over H.S.’s state law claims pursuant to 28 U.S.C. § 1367. 13. This is an action to redress the deprivation of H.S.’s constitutional rights under Title IX and 42 U.S.C. § 1983. 14. Venue is in the United States District Court, Middle District of Pennsylvania, under the provisions of 28 USC § 1391(b) since the acts and omissions alleged herein were committed or omitted in the County of Monroe and Middle District of Pennsylvania. 15. At all times material hereto, Defendants acted pursuant to or under color of state law. MATERIAL FACTUAL ALLEGATIONS 16. The preceding paragraphs are incorporated by reference herein and made part hereof. 17. H.S. became Defendant Flatley’s student during the 2007 school year when she was in fourth grade and a student at Chipperfield Elementary School, also known as Stroudsburg Intermediate School. (“Chipperfield”). 18. Defendant Flatley was employed by the District as a full-time music 4 Case 3:17-cv-01839-JMM Document 32 Filed 10/13/18 Page 5 of 35 teacher and the Junior High School Chamber Orchestra Director and the Pit Director for the Stroudsburg High School Musicals. 19. At all times material hereto, Flatley maintained his classroom and office at Chipperfield. 20. In April, 2013, Defendant Flatley befriended H.S., age fifteen (15), on Facebook. 21. Flatley began private messaging H.S. via Facebook during April, 2013 and in the process, sent her an audio clip of a song that he wrote. 22. From April, 2013 through December 24, 2014, Flatley and H.S. exchanged over 90,000 messages via Facebook and telephone text messaging. 23. The private messages sent by Flatley to H.S. through Facebook became sexual in nature when H.S. was approximately sixteen (16) years of age and a sophomore at Stroudsburg High School. 24. Many of the messages which Flatley sent H.S. included photos of him in his underwear, and multiple audio clips of Defendant Flatley telling H.S. about “touching, kissing and tasting” her. 25. Defendant Flatley also sent various audio clips to H.S. which involved Flatley moaning and masturbating, and telling H.S. that he is “ridiculously and utterly horny” for her. 26. During the private messaging, Defendant Flatley often told H.S. that 5 Case 3:17-cv-01839-JMM Document 32 Filed 10/13/18 Page 6 of 35 he loved her. 27. Flatley often messaged H.S. when she awoke in the morning, throughout the day, and late into the night, on a daily basis. 28. In June, 2014, while H.S. was sixteen (16) years of age, Defendant Flatley, using Facetime, communicated with the minor victim while he was in the shower and masturbated for her. 29. During the entire period that Defendant Flatley messaged H.S., Stroudsburg Area School District did not have a policy which prohibited any of the following: a. Fraternization between students and professional staff, including but not limited to teachers, outside of school hours, and off school grounds; b. Fraternization between students and professional staff, including but not limited to teachers, outside of school hours, at their homes; c. Using social media to befriend and to communicate with students on a private basis; d. A policy prohibiting high school students from visiting intermediate school teachers during school hours in their private offices behind closed and locked doors; and, 6 Case 3:17-cv-01839-JMM Document 32 Filed 10/13/18 Page 7 of 35 e. A policy generally prohibiting teachers from meeting with students privately behind closed/locked doors in their offices. 30. Prior to the discovery of Flatley’s grooming and molestation of H.S., the District knew: a. Teachers used social media to communicate with students, that students were meeting teachers at their homes; b. That teachers fraternized with students outside of school hours and activities; c. The District had disciplined teachers for having sexual relationships with students and/or cooperated with local police in the investigation of alleged teacher misconduct toward students; d. National media and professional journals all recommended that school districts amend their policies considering the increased incidence of professional staff engaging students in social media and sexual activity and or grooming; e. Other school districts in Monroe County, in response to the popularity of social media and the danger of sexual predators like Flatley engaging in predatory behavior toward students, had amended their policies to prohibit teachers using social media to 7 Case 3:17-cv-01839-JMM Document 32 Filed 10/13/18 Page 8 of 35 communicate with students and from fraternizing with at their homes or elsewhere after school hours in non-school related activities; and f. Other school districts had to discipline teachers for sexual relationships with students and other misconduct because of fraternization and use of social media to communicate and to groom students for the purpose of engaging with minor students in sexual intercourse and acts; and g. Local police and prosecutorial authorities had prosecuted teachers for sexual relationships with students and other misconduct because of fraternization and use of social media to communicate and “to groom” students to engage with minor students in sexual intercourse and acts; and h. Children who are sexually molested and harassed by teachers rarely come forward to report the abuse and when they do, are often victimized a second time by peer ostracism and criticism particularly where the offending teacher is popular; and i.