Summary
finding state-created danger where P.E. teacher instructed class to tape a student to a wall
Summary of this case from Hinterberger v. Iroquois Sch. Dist.Opinion
Civil Action No. 03-2198.
May 13, 2004
MEMORANDUM AND ORDER
Plaintiff Laura M. Hillard ("Plaintiff") filed a Complaint with this court seeking compensatory and general damages pursuant to Section 1983 for an alleged deprivation of her Fourteenth Amendment rights by Defendants Lampeter-Strasburg School District ("school district"), Brian Barnhart, and Faith Cowell. Plaintiff asserts that she was deprived of these rights when Defendants violated her right to bodily integrity. Before us now is a Motion for Summary Judgment filed by Defendants on the grounds that Plaintiff has failed to establish the deprivation of a constitutional right under the state created danger, special relationship, or policy or custom theories of recovery. For the following reasons we deny Defendants' Motion in part and grant it in part.
I. Factual History
In the fall of 2002, Plaintiff was a senior at Lampeter-Strasburg High School. During that semester, she was a student in Defendant Faith Cowell's "Athletic Training" course in the Physical Education Department. The course included a lesson on the proper techniques to be used when taping for athletics. As an introduction to this particular lesson, Cowell employed an exercise known as "Fly on the Wall." Cowell first learned of this exercise when she participated in it during a graduate level course she was taking at Millersville University. In the exercise, students are divided into small groups with each group selecting a member to act as a "fly." The "fly" then stands on a chair against the wall while the other students in the group proceed to tape him or her to the wall using duct tape. Once a group finishes taping the "fly" to the wall, it is required to notify Cowell, who must be present in order for the chair to be removed, and who times how long the tape holds the student to the wall. The group with the "fly" who stays attached to the wall the longest wins the exercise.
Cowell first used the "Fly on the Wall" exercise in her classes in 1998. In 1999, Hilary Weymer, a student in Cowell's Athletic Training class, participated in the exercise as a "fly." When the chair was removed, she testified that the tape created a "noose effect" around her neck, making it difficult for her to breathe and causing her to be frightened. (Hilary Weymer Dep. at 13.) The next day, her parents contacted Defendants Cowell and Barnhart, who was then in the process of transitioning from his role as principal of Lampeter-Strasburg High School to Assistant Superintendent of the school district, and provided him with a photo of Weymer taped to the wall. (Beth Weymer Dep. at 14-17.) Barnhart denies that he ever spoke with Weymer's parents regarding this incident. (Barnhart Dep. at 20.) Cowell, however, acknowledges that in response to Weymer's and Weymer's parents' concerns, she instructed students in all future classes not to tape across the shoulders or neck. (Cowell Dep. at 41.)
On the day that Plaintiff's class was to take part in the "Fly on the Wall" exercise, Plaintiff volunteered to play the part of the "fly." Accordingly, she stood on a chair while the other students in the group began taping her to the wall. While most "flies" have their back to the wall, Plaintiff's group decided it would be better for her to face the wall. Although Cowell had never seen the exercise attempted in this manner, she did not attempt to dissuade the students and continued to circulate around the room, monitoring the different groups. At some point prior to Plaintiff's group's completion of the exercise, however, Plaintiff slipped off the chair she was standing on and fell backward, striking her head on the concrete. Cowell immediately went over and, finding Plaintiff unconscious, began to administer first aid. Plaintiff was then taken by ambulance to the hospital where was diagnosed with left temporal and occipital bone fractures, underwent two brain surgeries and was on life support in intensive care for seven days.
II. Standard of Review
The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248. All inferences must be drawn and all doubts resolved, in favor of the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985).
On a motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n. 3 (quoting Fed.R.Civ.R.P. 56(e). See First Nat'l. Bank of Pa.v. Lincoln Nat'l. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-249.
III. Discussion
Defendants move for summary judgment on the grounds that they are entitled to qualified immunity because Plaintiff cannot establish that Defendants violated a constitutional right which would enable her to recover under § 1983. In determining whether Defendants are entitled to qualified immunity, we must first examine whether a constitutional right of Plaintiff's was violated and then assess whether that right was clearly established such that Defendants would have had fair warning of its existence. See Saucier v. Katz, 533 U.S. 194 (2001). While § 1983 does not itself confer any rights on citizens, it provides a vehicle for individuals to recover for states' constitutional violations. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906-7 (3d Cir. 1997). The Supreme Court has held that states generally have no affirmative obligation under the Fourteenth Amendment, which Defendants are alleged to have violated, to protect citizens from torts committed by private citizens. See DeShaney v. Winnebago Co. Dep't. of Social Servs., 489 U.S. 189, 195 (1989). However, courts have come to recognize certain exceptions to this rule in the form of the state created danger, special relationship, and policy or custom theories. Plaintiff apparently seeks to proceed under the state created danger theory, as well as on the theory that the "Fly on the Wall" activity constituted a custom and policy which unconstitutionally harmed Plaintiff.
A. State Created Danger
Under the state created danger theory, Plaintiff may establish a constitutional violation if she can demonstrate that (1) the harm caused was foreseeable and fairly direct; (2) the state actor acted with willful disregard to the safety of Plaintiff or the actor's conduct shocked the conscience; (3) some relationship existed between Plaintiff and the state; and (4) the state actors used their authority to create an opportunity for harm by a third party that otherwise would not have existed. See Page v. School Dist., 45 F. Supp.2d 457, 465 (E.D. Pa. 1999).
We discuss which of these standards are appropriate below.
Turning to the first element of the state created danger test, we consider whether the harm that befell Plaintiff was foreseeable and fairly direct. Defendants rely on the facts ofKneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), to distinguish the instant case from one in which the court found that the harm caused was foreseeable and fairly direct. In Kneipp, police officers stopped a husband and wife for causing a disturbance one night in the street. Id. at 1199-1203. The wife, Samantha, was so intoxicated that she could not walk without assistance and had urinated on herself. Id. After speaking with the couple, police agreed to let the husband go home to relieve the babysitter.Id. However, instead of escorting Samantha home, police sent her home alone. Id. Approximately two hours later, Samantha was found at the bottom of an embankment. Id. The extreme cold had caused her to suffer from hypothermia, which then caused severe brain damage. Id. The court held that this harm was foreseeable and fairly direct because it was obvious to police that Samantha could not walk without assistance and she might therefore become injured in an attempt to do so. Id. at 1208.
Defendants argue that Kneipp is distinguishable because unlike Samantha, Plaintiff was in no way inebriated or incapacitated. However, we find that in fact Kneipp is analogous to the instant case because, although Plaintiff was not incapacitated by alcohol, she was incapacitated by the tape which prevented her from breaking her fall and avoiding striking her head on the concrete. Since a reasonable jury could conclude that an injury caused by taping an individual to a wall above a concrete floor is foreseeable and fairly direct, we find that Plaintiff has satisfied this first element of the state created danger test with regard to Cowell.
Defendants also cite to Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), in which, after impounding her car, police left a woman stranded in a high crime area, where she was ultimately raped. However, Defendants do not explain how Wood is applicable here, since that opinion dealt with the standard of deliberate indifference within the context of a constitutional violation and not specifically foreseeability. Similarly, Defendant does not explain why it is appropriate to rely onCornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), in which the court engaged in a "special relationship/special danger analysis," rather than a foreseeability analysis. While the Third Circuit eventually relied on these cases in adopting the state created danger theory in Kneipp, we believe that at present, Kneipp provides a more appropriate precedent than Wood or Cornelius. Nevertheless, were we to apply Wood and Cornelius to the facts in the instant case, we would still conclude that a reasonable jury could find Plaintiff's injury foreseeable and fairly direct.
Plaintiff has raised a genuine issue of material fact regarding whether Barnhart and the school district were made aware of the "Fly on the Wall" activity and the risks associated with it by Weymer and her parents. Weymer, whose daughter was in Cowell's class in 1998, testified that after her daughter's breathing was constricted during the activity, she contacted Barnhart directly and shared her concerns with him. (Beth Weymer Dep. at 14-17). In addition, Plaintiff argues that since Barnhart became Assistant Superintendent shortly thereafter, his knowledge of these concerns may be imputed to the school district. Barnhart denies that he was made aware of these concerns. As a result of this genuine issue of material fact, we are unable to determine at this time whether Barnhart and the school district's failure to stop the activity after the Weymer incident could be viewed as resulting in a foreseeable and fairly direct harm to Plaintiff and summary judgment must therefore be denied in this regard.
We now consider whether a reasonable jury would find that Defendants acted with willful disregard to the safety of Plaintiff. Defendants argue that the proper standard to apply in this case is whether Defendants' conduct was conscience shocking. Plaintiff contends, however, that the conscience shocking standard is only appropriate for police pursuit cases and that the Third Circuit merely suggested in Miller v. City of Philadelphia, 174 F.3d 368 (3d Cir. 1998), that it was applicable to all substantive due process cases. See Estate of Smith v. Marasco, 318 F.3d 497, 507 (3d Cir. 2003). Plaintiff would instead have us apply the deliberate indifference standard. To convey when it is appropriate to apply the deliberate indifference standard versus the conscience shocking standard,Miller relied on the Supreme Court's comparison in Estelle v. Gamble, 429 U.S. 97, 104 (1976), of the liabilities imposed on prison officials as opposed to police in hot pursuit. Miller, 174 F.3d at 375. In that case, the Court held that deliberate indifference is an appropriate standard for assessing liability with regard to prisoners' medical needs because "forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare." Estelle, 429 U.S. at 104. Nonetheless, the Miller court held that while a social worker making child custody decisions is hardly subject to the "hyper-pressurized environment of a high speed chase, he or she rarely will have the luxury of proceeding in a deliberate fashion." Thus the court concluded that application of the conscience shocking standard was appropriate in that case, seemingly leaving the door open for future substantive due process cases to be decided on a case by case basis. This holding is apparently the underpinning for the Third Circuit's subsequent statement in Estate of Smith that it "suggested" in Miller, but did not hold, that conscience shocking can be applicable in all substantive due process claims. 318 F.3d at 507.
Applying these precedents to the instant case, we conclude that the appropriate standard to apply in this case is deliberate indifference. A school environment is much more akin to that of a prison, where, students, like inmates, engage in activities in a controlled environment under constant supervision by teachers and staff. In addition, teachers attempt to structure their days according to lesson plans that are prepared in advance. While a social worker might attempt to follow a loose plan, as the court pointed out in Miller, in reality, situations frequently come up which require quick decisions. While that might also be the case in certain situations confronting teachers, in this case, the "Fly on the Wall" activity was a pre-planned activity which did not require any spur of the moment decisions and which had been conducted on several prior occasions. Consequently, the Defendants did have the luxury of proceeding in a deliberate fashion and should therefore be subject to a standard of deliberate indifference.
We now consider whether a reasonable jury could conclude that Cowell acted with deliberate indifference. We believe that it could. Deliberate indifference may be established by showing "(1) an unusually serious risk of harm . . . (2) defendant's actual knowledge of (or at least willful blindness to) that elevated risk, and (3) defendant's failure to take steps to address that known, serious risk." Sciotto v. Marple Newtown Sch. Dist., 81 F. Supp.2d 559 (E.D. Pa. 1999), citing Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992). In Wood, the court held that a police officer acted with deliberate indifference when it left a woman stranded in a high crime area, where she was later raped, after impounding the car she had been traveling in and arresting the driver. 879 F.2d at 588. In that situation, the court said that the officer had shown an assertion of government power which tends to show a disregard for safety amounting to deliberate indifference. Id. Aware of the dangers posed by the neighborhood, the officer might have driven her to her destination, instead of leaving her on the street. Similarly, Cowell's decision to have her class engage in the "Fly on the Wall" activity above a concrete floor without taking precautions, such as putting mats on the floor, tends to show a disregard for safety amounting to deliberate indifference. While Plaintiff's participation in the exercise has been characterized as voluntary, we note that in a classroom setting, participation in activities organized by a teacher are seldom viewed as voluntary and that a teacher's sanctioning of an assignment can reasonably be relied on by students as a guarantee of safety.
Defendants argue, however, that the conduct of Barnhart and the school district cannot be considered deliberately indifferent because Plaintiff alleges that these particular Defendants are liable for their failure to act to prevent the activity from taking place. Defendants contend that a failure to act is not actionable under the state created danger theory. See Morse v. Lower Marion Sch. Dist., 1996 U.S. Dist. LEXIS 17337, n. 9 (E.D. Pa. Nov. 20, 1996). The court in Morse v. Lower Marion Sch. Dist reasoned that this notion is implicit in the second and fourth elements of the state created danger test, which require that a state actor actually act with willful disregard and that the state actor use his or her authority to actually create an opportunity for harm, respectively. Id. In Morse, the lower court held that the school's failure to keep workers from propping open a back door, thus allowing a third party to enter and commit a murder, constituted a failure to act and thus did not meet the state created danger test. However, on appeal, the Third Circuit discussed the difficulties courts face when attempting to draw the line between action and inaction. It accordingly held that the dispositive factor is not whether the act was an affirmative act or an omission, but whether "the state has in some way placed the plaintiff in a dangerous position that was foreseeable." Morse v. Lower Marion Sch. Dist., 132 F.3d 902, 915 (3d Cir. 1997). Because the school district could not have had the requisite awareness that a murder might be committed if the back door of the school was propped open, the court found it had not put the plaintiff in a dangerous position. Id. at 910.
In the instant case, Plaintiff has raised a genuine issue of material fact as to whether Barnhart or the school district were aware that the "Fly on the Wall" activity posed a danger to participants. While Defendant Barnhart denies that he was ever contacted by Mrs. Weymer, her testimony is sufficient to create a genuine issue of material fact and we will refrain from judgment as a matter of law on this point with regard to Barnhart and the school district.
Defendants argue that even with this knowledge, Barnhart and the school district cannot be found to have acted with deliberate indifference. They cite to Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 531 (5th Cir. 1994), in which the court found that a school district did not act with deliberate indifference in allowing a school dance to take place in spite of the fact that at prior school functions, students had been known to discharge firearms. The court held that the school did not act with deliberate indifference because it had not, as in other cases, put the decedent in close proximity with an individual known to commit violence or abandon the decedent in a dangerous environment and it did take certain steps to ensure safety, such as providing security guards. Id. This holding is not inconsistent with the Third Circuit's holding in Morse that the "state's actions must evince a willingness to ignore a foreseeable danger or risk." 132 F.3d at 910. If Barnhart and the school district had knowledge of the activity and its potential risks, a reasonable jury could find that Plaintiff's injury was foreseeable. We therefore reiterate our conclusion that whether the school district had knowledge through Barnhart is a genuine issue of material fact because a reasonable jury could conclude that ignoring such information exhibited a willingness to ignore a foreseeable danger.
Turning now to the third element of the state created danger test, we now consider whether some relationship existed between Plaintiff and Defendants. In order to satisfy this element, Plaintiff must be able to establish that she was "a foreseeable victim of a Defendant's acts in a tort sense." Kneipp, 95 F.3d at 1209, n. 22. In Kneipp, the court held that the officer had some relationship with Samantha because he used his authority to exercise some control over her when he sent her home unescorted. Like Samantha, Plaintiff was a foreseeable victim because she was a student in Cowell's Athletic Training class and a potential participant in the "Fly on the Wall" activity.
Defendant counters that according to Doe v. Methacton Sch. Dist., 880 F. Supp. 380, 386 (E.D. Pa. 1995), Plaintiff cannot be deemed to have had some relationship with Cowell because Plaintiff was simply a member of the public at large and the activity was not directed at her specifically. The application ofMethacton Sch. Dist to this case is problematic for several reasons. First, the holding in Methacton Sch. Dist occurred prior to the Third Circuit's holding in Kneipp, which appears to expand the definition of "some relationship" beyond that which was applied in Methacton Sch. Dist. Second, as a district court opinion, it is not binding upon us. Third, we do not find it persuasive. In Methacton Sch. Dist, the court held that a state cannot be liable unless the victim is known and identified.Methacton Sch. Dist at 386. However, it relied on precedents which were not analogous to the facts in Methacton Sch. Dist. In those cases, the courts held that where members of the public were victims of crime, no special relationship exists between the state and the plaintiff. Id., citing Martinez v. Cal., 444 U.S. 277, 285 (1980) (connection between parole officer who released murderer and decedent too remote); Commonwealth Bank Trust v. Russell, 825 F.2d 12, 15 (3d Cir. 1987) (people living in area surrounding prison part of public at large); Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (member of public has no constitutional right to be protected by state against being murdered by criminals). In Methacton Sch. Dist, however, the school district was sued for not notifying another school district that a teacher had been forced to resign for sexually abusing one of his students. In that case, the potential victim was not a random member of the public, but a student in the teacher's class at the new school. In our view, and based on the cases cited by the court in Methacton Sch. Dist. and the Third Circuit's subsequent holding in Kneipp, that would make her a foreseeable victim. Similarly, the connection between Cowell and Plaintiff is not so remote that a reasonable jury could not find Plaintiff to be a foreseeable victim of the "Fly on the Wall" activity. Plaintiff was, after all, a student in her class. As to Defendants Barnhart and the school district, however, we find that their connection with Plaintiff is too remote for there to have been "some relationship." In their case, Plaintiff was one of many students at large for which they had general responsibility and their actions cannot not be said to have been directed at Plaintiff in any way.
The final element under the state created danger theory which we must assess is whether Defendants used their authority to create an opportunity for harm by a third party which otherwise would not have existed. Here we must assess whether there was some "causal connection between the acts or omissions of the state and harm which befell the victim." Morse, 132 F.3d at 915. With regard to Cowell, a reasonable jury could find sufficient causal connection between her planning and facilitation of the "Fly on the Wall" activity and Plaintiff's injuries incurred during the activity, since if Plaintiff had not engaged in the activity, she would not have become injured. As to Barnhart and the school district, we again find that Plaintiff has raised a genuine issue of material fact regarding whether Barnhart, and consequently the school district, had knowledge of the "Fly on the Wall" activity and the risks associated with it.
Having determined that Plaintiff established a constitutional violation under the state created danger theory with regard to Cowell, we must now consider whether this constitutional violation was clearly established at the time of Plaintiff's injury. A right is clearly established if there is "some but not precise factual correspondence between relevant precedents and the conduct at issue." In re City of Philadelphia Litig., 49 F.3d 945, 970 (3d Cir. 1996). From both a factual and legal standpoint, Sciotto, 81 F. Supp.2d 559, constitutes sufficient fair warning to Cowell that Plaintiff's injury would be deemed a constitutional violation. In Sciotto, plaintiffs sued the high school wrestling coaches after their sixteen year old son was rendered a quadriplegic as a result of wrestling match, per school tradition, with a twenty-two year old Division I wrestler from Pennsylvania State University. Id. at 562. The court found that the constitutional right for students to be free of "acts that increase the risk of serious injury from unjustified invasions of bodily integrity perpetuated by third parties" was clearly established and that the coaches were therefore not entitled to qualified immunity. Id. at 570. The risk inSciotto posed by a smaller and less experienced student wrestling an larger and more experienced wrestler, is not unlike the risk posed here of taping students to a wall several feet above a concrete floor. More generally, the holding in Sciotto was sufficient to put Cowell on notice that allowing third parties, students in this case, to tape other students to the wall above a concrete floor might increase the risk of serious injury to a student.
Thus we conclude that the Motion for Summary Judgment under the state created danger theory is denied as to Cowell because we find that a reasonable jury could conclude that Plaintiff has established all of the necessary elements for this claim and that the constitutional violation alleged here was clearly established. In addition, the Motion for Summary Judgment with regard to the state created danger theory is denied as to Barnhart and the school district because Plaintiff has raised a genuine issue of material fact regarding their knowledge of the "Fly on the Wall" activity and the risks associated with it.
B. Special Relationship Theory
Defendants argue that they are entitled to judgment as a matter of law under the special relationship theory because Plaintiff has not alleged facts sufficient to support this theory. Since Plaintiff has not responded to this argument, we presume that she has conceded that there has been no constitutional violation in this regard and grant the Motion for Summary Judgment as to the special relationship theory.
C. Policy or Custom Theory
Under the policy or custom theory, a constitutional violation may be established if Plaintiff can demonstrate that a school district's policy or custom was unconstitutional or, if not unconstitutional, was the "moving force" behind an action which caused a constitutional tort. See Colburn v. Upper Darby Township, 946 F.2d 1017, 1027 (3d Cir. 1991). The policy or custom at issue must be clearly identified by Plaintiff. See Page. v. Sch. Dist., 45 F. Supp.2d 457, 466 (E.D. Pa. 1999). The policy or custom identified by Plaintiff in the instant case is the "Fly on the Wall" activity. In order for the "Fly on the Wall" activity to be considered a policy, however, it must have been formulated by a decisionmaker with final authority. See Kneipp by Cusack v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996), citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990). A custom, on the other hand, exists when certain practices of "`state officials [are] so permanent and well settled' as to virtually constitute law," and policymakers with final decisionmaking authority knew of the practices and acquiesced in them. See Sciotto, 81 F. Supp.2d at 575. In the context of a school district, the relevant policymakers are the superintendent and the school board. Id., citing Pennsylvania Public School Code, 24 P.S. § 5-511(a). Plaintiff does not offer any evidence to suggest that the "Fly on the Wall" activity was a policy or custom that was instituted by the superintendent or the school district or that either of these parties knew of or acquiesced in the "Fly on the Wall" activity. Plaintiff merely argues that Barnhart was aware of the activity as Assistant Superintendent. Even if we were to presume that to be the case, it would be insufficient to establish a policy or custom because he is not considered a policymaker with final decisionmaking authority. We therefore conclude that Plaintiff has not established a constitutional violation under the policy or custom theory and, accordingly, we grant Defendants' Motion for Summary Judgment in this regard.
IV. Conclusion
Defendants' Motion for Summary Judgment is denied with regard to the state created danger theory. Plaintiff has established a constitutional violation under this theory by Cowell that was clearly established at the time of Plaintiff's injury. Because a genuine issue of material fact remains regarding Barnhart's, and consequently the school district's, knowledge of the "Fly on the Wall" activity, we deny summary judgment under the state created danger theory as to these Defendants as well. Summary Judgment is granted as to all Defendants, however, with regard to both the special relationship and policy or custom theories of liability. Plaintiff apparently does not seek to assert the special relationship theory and has thus conceded the point. Plaintiff has also failed to establish that a final decisionmaker was involved in or aware of the alleged custom of conducting the "Fly on the Wall" activity. An appropriate order will follow.
ORDER
AND NOW, this 13th day of May, 2004, upon consideration of Defendants' Motion for Summary Judgment, and supporting memorandum of law, filed on April 14, 2004; and Plaintiff's Response in Opposition to Defendants' Motion for Summary Judgment, filed on May 3, 2004, it is hereby ORDERED that:
1) Defendants' Motion for Summary Judgment is DENIED with regard to the state created danger theory as to all Defendants;
2) Defendants Motion for Summary Judgment is GRANTED with regard to the special relationship theory as to all Defendants;
3) Defendants' Motion for Summary Judgment is GRANTED with regard to the policy and custom theory as to all Defendants.