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JOHNSON-LLOYD v. VOCATIONAL REHABILITATION OFFICE

January 22, 1993

DETRA JOHNSON-LLOYD
v.
VOCATIONAL REHABILITATION OFFICE, PENNSYLVANIA DEPARTMENT OF LABOR AND INDUSTRY, et al.



The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

MEMORANDUM

 Dalzell, J.

 January 22, 1993

 Plaintiff Detra Johnson-Lloyd filed this pro se action against the Vocational Rehabilitation Office of the Pennsylvania Department of Labor and Industry ("OVR") and Fred Motter, a former OVR counselor, for alleged violations of her rights under Title I of the Rehabilitation Act of 1973, *fn1" and the Due Process clause of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983, when they denied her federal certification as a sewing machine operator.

 Now before us is defendants' motion to dismiss plaintiff's complaint. In their motion, defendants ask that we dismiss plaintiff's claims as to both defendants for failing to state a claim upon which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). In the alternative, they ask that we dismiss plaintiff's complaint with regard to Fred Motter for insufficiency of service of process pursuant to Fed.R.Civ.P. 12(b)(5), and that we dismiss plaintiff's complaint with regard to OVR for insufficiency of process pursuant to Fed.R.Civ.P. 12(b)(4). For the following reasons, we will grant defendants' motion under Rule 12(b)(6) as to both defendants and, alternatively, as to defendant Motter under Rule 12(b)(5).

 I. BACKGROUND

 The facts as alleged in the complaint are that Johnson-Lloyd is forty-one years old and mentally retarded. As a teenager, Johnson-Lloyd attended William Penn High School where she was trained and certified as a sewing machine operator. She secured a job as a power sewing machine operator with Albert Nipon's dress firm and then worked in the same capacity as an employee of the Defense Supply Agency ("DSA") until 1973.

 In 1990, Johnson-Lloyd sought re-employment with DSA. She took and passed the agency's power sewing machine test, but before she could start employment with DSA, Johnson-Lloyd had to obtain OVR certification as a power sewing machine operator. In early October of 1990, Johnson-Lloyd contacted OVR and requested an appointment with a vocational rehabilitation counselor. One week later, she and her husband met with OVR counselor Fred Motter. Johnson-Lloyd provided Motter with her personal and work history as well as her records from high school. Motter then arranged for Johnson-Lloyd to be medically evaluated by Dr. Ciani, a physician, and Dr. Joanne Perilstein, a psychologist. Johnson-Lloyd's husband did not participate in the evaluations or provide the doctors with any additional information about his wife because Motter never informed him that he had the right to do so.

 On September 19, 1990, Johnson-Lloyd received a form from the Office of Civilian Personnel inquiring as to when she would be available to start work at DSA. Not knowing when she would receive her certification from OVR, Johnson-Lloyd speculated on the form that she would be available for work by December 7, 1990.

 When Johnson-Lloyd did not receive the results of her medical examinations from OVR as soon as she expected, her husband went to the OVR office to visit Motter and inquire as to the cause of the delay. To his dismay, Johnson-Lloyd's husband found that Motter had retired and OVR had closed his wife's file. In response, Detra Johnson-Lloyd on September 3, 1992, instituted this suit alleging that the defendants' "willful and gross delay of [her] federal certification . . . denied her employment nd [sic ] also endangered the health and life for the lack of insurance to [sic ] her spouse" who suffers from high blood pressure. Complaint P 20. As noted above, she brings her suit pursuant to the Federal Rehabilitation Act of 1973 and 42 U.S.C § 1983.

 II. DISCUSSION

 A. Failure to State a Claim.

 When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we must take all allegations contained in the complaint as true and construe them in a light most favorable to the plaintiff. H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989); Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989). We may grant a motion to dismiss for failure to state a claim upon which relief can be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." ...


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