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SLATER v. MARSHALL

November 8, 1995

LINDA SLATER
v.
RICHARD E. MARSHALL and MONTGOMERY COUNTY COMMUNITY COLLEGE



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 NOVEMBER 8, 1995

 Before this Court today is Defendant Montgomery County Community College's (MCCC) Motion to Dismiss Plaintiff's Second Amended Complaint. *fn1" Plaintiff, Linda Slater, was a student at MCCC from 1991 through 1994. During that time she was a student of MCCC Professor Richard Marshall, who allegedly sexually harassed her on the basis of her gender and her mental disability. As a result, Slater has sued Marshall in his individual capacity for two common law torts and MCCC and Marshall in his official capacity for violations of 42 U.S.C. § 1983 and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 (1990). *fn2"

 Standard of Review

 In considering a Rule 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). 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).

 A. 42 U.S.C. § 1983

 42 U.S.C. § 1983 provides that "any person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured." In Count Three of her complaint, Slater alleges that MCCC has violated § 1983 by violating the Constitution's Equal Protection Clause, the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1995) (ADA), Title IX, 20 U.S.C. § 1681 and § 504 of the Rehabilitation Act, 29 U.S.C. §§ 701-796 (1985 & Supp. 1995) (RHA).

 We find, however, that the issues Marshall raised and the issues MCCC raises are different. So, even though we ruled that none of Marshall's objections to Slater's complaint had merit and therefore denied his Motion to Dismiss, that ruling does not determine whether MCCC's different arguments have merit. For this reason we will examine MCCC's arguments. Id. at 816.

 First, MCCC alleges that Count Three does not meet the standard enunciated in Fed. R. Civ. P. 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." We note that both Slater and MCCC cite the same, and correct, standard of pleading. One point of Rule 8(a) is to ensure that the defendant receives fair notice of the claim against it and the grounds upon which the claim rests. Leatherman v. Tarrant County Narcotics Intelligence Unit, 507 U.S. 163, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993). Vague and conclusory allegations do not provide fair notice and will not survive a motion to dismiss. United States v. City of Philadelphia, 644 F.2d 187, 204 (3d Cir. 1980); Bieros v. Nicola, 860 F. Supp. 226, 229 (E.D. Pa. 1994); Sell v. Barner, 586 F. Supp. 319, 321 (E.D. Pa. 1984).

 MCCC contends that Slater's bare allegations that the Defendants are state actors and that they "acted under the color of state law, regulations, policies, ordinances, and procedures" (Complaint P 37) are not specific enough to give them fair notice of her claim. In support, MCCC cites Bieros. There, this Court dismissed a pro se prisoner plaintiff's complaint with leave to amend. We found that the plaintiff had not made sufficient factual, as opposed to conclusory, averments of each Defendant's alleged violations of plaintiff's civil rights. 860 F. Supp. at 236. MCCC argues that Slater's complaint suffers from the same defect in that it is conclusory and does not identify a particular law, custom, policy or practice that violated her rights.

 Slater argues that her § 1983 claim is pleaded with sufficient particularity because she alleges that MCCC is a state actor and "acted under the color of state law, regulations, policies, ordinances, and procedures." Complaint P 37. However, these are the only references to MCCC that she makes.

 Although Slater need not plead facts giving rise to her claim, she must make more than the existing vague and conclusory statements in her complaint. Hines v. Sheahan, 845 F. Supp. 1265, 1268 (N.D. Ill. 1994); Askanase v. Fatjo, 148 EF.R.D.F 570, 573 (S.D. Tex. 1993). Without more detail, we find MCCC does not have fair notice of what Slater's claim is based on, not even whether she alleges that MCCC acted pursuant to a state law ...


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