Tamaqua Area School District officials seek dismissal of federal lawsuit

Jul. 21—An attorney for Tamaqua Area School District officials is seeking to have a federal lawsuit against them in connection with an alleged assault of players at the high school "football house" dismissed.

Gary H. Dadamo, the attorney representing the district and 12 current or former district officials named as defendants in the lawsuit, argued in a motion filed May 3 that the suit failed to establish claims that the rights of two students involved in the incident in November were violated under the 14th Amendment.

He added the lawsuit, filed in April in U.S. District Court for the Middle District of Pennsylvania by attorneys Barry H. Dyller and Tara G. Giarratano of Wilkes-Barre on behalf of the fathers of the alleged victims, doesn't meet the legal thresholds for violations of Title IX or the equal protection clause of the 14th Amendment.

"The claims against the individual defendants must be dismissed because there are no allegations that they had any personal involvement in any violation of plaintiffs' constitutional rights," Dadamo wrote.

He reiterated the arguments in a reply brief filed July 14, but added that no district policies, customs or procedures caused the students harm.

"Based upon the specific allegations in the complaint, this was an isolated incident at most," Dadamo wrote, referring to the alleged assault.

In the lawsuit, the fathers claim the district failed to protect their children and took no action after the alleged sexual assaults.

Also named in the lawsuit, in addition to the district, are: Superintendent Raymond Kinder; Assistant Superintendent Steven Toth; high school Principal Thomas McCabe; and all nine school board members: Larry Wittig, Nicholas Boyle, Melanie Dillman, Thomas Bartasavage, Bryan Miller, Robert Rother, Daniel Schoener, Trina Schellhammer and Thomas Rottet.

Authorities charged Tamaqua resident Zachary McGlinchey, 18, with two misdemeanor counts of simple assault and three summary counts of harassment in connection with the incident in November, which resulted in the high school forfeiting its District 11 semifinal football game.

McGlinchey allegedly attacked a fellow football player in the football house on the high school campus in November, during which McGlinchey punched the victim in the face and "forcefully pushed a banana against his clothed anus," police reported.

Magisterial District Judge Thomas H. Xavios bound over all the charges against McGlinchey to Schuylkill County Court at a hearing in late May.

McGlinchey, who had been expelled from school, was also arraigned by Xavios on $20,000 unsecured bail on the condition that he not have contact with the alleged victim.

The defendant has a status conference scheduled at 9 a.m. Aug. 5 before President Judge Jacqueline L. Russell.

Authorities also charged a juvenile with summary harassment in connection with the incident, while two other juveniles were referred to county juvenile probation.

In a brief in opposition to the May 3 motion, Dyller and Giarratano argued their clients suffered intentional discrimination and a hostile environment under the 14th Amendment.

They said district officials had the authority to address student-on-student sexual harassment and can be held liable for not doing so under the equal protection clause.

"Each of the individual defendants acted with deliberate indifference to the sexual assaults of A.M. and T.K.," they wrote in the brief filed June 30. "A school official who receives actual knowledge of sexual harassment or assault is obligated to respond as mandated by Title IX."

Dyller and Giarratano argued that officials create a Title IX liability for their institution by responding to sexual harassment or assault with "deliberate indifference," adding the officials refused to comply with Title IX mandates.

The attorneys concluded their response by stating that district officials didn't follow the law and abide by Title IX.

Specifically, they ignored T.K.'s reports of sexual harassment and denied A.M. the opportunity to be present at hearings over the incident.

Contacted Tuesday, Dyller said he thinks the motion to dismiss the lawsuit lacks merit and he's confident the case won't be dismissed.

He added they plan to proceed with the discovery process, which includes the exchange of information, in the case.

The case has been assigned to Magistrate Judge Joseph F. Saporito Jr. He has not ruled on the case.

Contact the writer: clee@republicanherald.com; 570-628-6028; @Cleespot on Twitter