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LINDA "DOE" v. MARSHALL

April 13, 1995

LINDA "DOE"
v.
RICHARD E. MARSHALL



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 APRIL 13, 1995

 Before this Court today is Defendant's Motion to Dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative, Defendant seeks an order requiring Plaintiff to file a more definite statement of the Complaint pursuant to Federal Rule of Civil Procedure 12(e).

 This litigation arises out of Plaintiff's Complaint against her former college professor alleging quid pro quo sexual harassment on the basis of her known mental disability. Plaintiff's Complaint has three Counts. The only Count on which federal jurisdiction may be invoked is the third, in which Plaintiff seeks relief under 42 U.S.C.A. § 1983 (West 1994) for alleged violations of the Fourteenth Amendment of United States Constitution, *fn1" the Americans with Disabilities Act, 42 U.S.C.A. §§ 12101-12213 (West 1994) (ADA), and the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-796 (West 1993) (RHA). *fn2"

 STANDARD

 In considering a 12(b)(6) motion, a court must primarily consider the allegations contained in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990).

 In ruling upon such a motion, the Court must accept as true all of the allegations in the pleadings and must give the plaintiff the benefit of every favorable inference that can be drawn from those allegations. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A complaint is properly dismissed only if it appears certain that the plaintiff cannot prove any set of facts in support of its claim which would entitle it to relief. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

 In considering a motion for a more specific pleading pursuant to Rule 12(e), the court must weigh whether the Complaint is "sufficiently intelligible for the Court to be able to make out one or more potentially viable legal theories on which the claimant might proceed." 5a Charles A. Wright & Arthur R. Miller Federal Practice and Procedure § 1376 (1977).

 DISCUSSION

 A. Parties To Suit

 In all three of her federal claims, Plaintiff asserts that she is suing Montgomery County Community College since she is suing Defendant in his official capacity as an agent and official of the College. However, the College is not named as a party to her complaint. Under Kentucky v. Graham, 473 U.S. 159, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985), Plaintiff must amend her Complaint to join the College and secure the College's rights to notice and an opportunity to be heard. Thus, Defendant's motion for a more specific pleading as it relates to the parties subject to suit is GRANTED.

 B. Equal Protection Claim

 Defendant moves for dismissal or for a more definite statement on the ground that Plaintiff's complaint avers no discrimination in derogation of the Equal Protection Clause of the Fourteenth Amendment. To allege a violation of the Fourteenth Amendment such that relief may be granted through § 1983, a plaintiff must allege that: 1) a government official acted under color of state ...


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