problems. Previously Gregorich had run a record check with the Pennsylvania State Police and found that plaintiff did not have a criminal record.
On May 27, 1994 plaintiff met with Gregorich to submit the name of a licensed psychologist who would administer the second MMPI. Gregorich rejected plaintiff's psychologist as being biased. When plaintiff insisted on being able to use the psychologist of his choice, Gregorich grabbed and shoved plaintiff and again threatened plaintiff with expulsion from the Act 120 Program. Resultingly, the plaintiff obtained a different psychologist, Charles H. Steinmeyer, to perform the MMPI, which the plaintiff underwent on June 4, 1994.
On June 7, 1994, prior to receiving the written results of the second MMPI, Gregorich informed plaintiff that he was no longer a part of the Act 120 Program because Gregorich felt plaintiff constituted a risk. Gregorich also informed plaintiff his decision was, in part, based on the second MMPI. Plaintiff requested the opportunity to review the results of the second MMPI, but this request was refused.
Pursuant to Mercyhurst College policies, plaintiff filed a grievance with Mullen, the Dean of the McAuley Division. The appeal hearing was originally scheduled for June 13, 1994; however, it was rescheduled for June 17, 1994. In the interim, and without allowing plaintiff to present his appeal, Mullen issued a written opinion dated June 13, 1994, upholding Gregorich's decision to terminate plaintiff's association with the Act 120 Program.
All of the above facts have been averred in the Amended Complaint.
In January of 1995 the plaintiff had filed a complaint pro se. The Honorable Sean J. McLaughlin ordered the plaintiff to file a more specific pleading. In May of 1995 plaintiff, through an attorney, filed an amended complaint containing twelve counts of both federal and state claims. Plaintiff's attorney has subsequently withdrawn, and plaintiff is again pro se.
This Court has jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over the state claims pursuant to 28 U.S.C. § 1367.
Lantz has moved to dismiss the complaint against her. Plaintiff has set forth three causes of action against her conspiracy to violate civil rights, defamation, and conspiracy to defame, counts VI, X, and XII respectively.
A. Conspiracy to Violate Civil Rights
Initially, Lantz addresses count VI, conspiracy to violate civil rights. In count VI plaintiff asserts that rights afforded by (1) the Fourteenth Amendment to the United States Constitution, (2) the Rehabilitation Act of 1973, and (3) Title III of the Americans with Disabilities Act ("ADA") have been denied. Plaintiff is claiming that he was denied protection under the law because of his status as a person who is handicapped. Amended Complaint at PP 97-99. Lantz notes that Conspiracy to Violate Civil Rights is a cause of action grounded in the Civil Rights Act of 1871, 42 U.S.C. § 1985(3). She argues that handicapped individuals are not a class that is protected by § 1985(3), and as such, plaintiff cannot sue Lantz pursuant to this section. Lantz also argues that plaintiff is not handicapped or disabled within the meaning of the ADA or the Rehabilitation Act, and that as such, Count VI should be dismissed. We address this issue first.
A handicapped individual is defined by the Rehabilitation Act as one who (i) has a physical or mental impairment which substantially limits one or more of such person's major life activities, (ii) has a record of such impairment, or (iii) is regarded as having such an impairment. 29 U.S.C. § 706(8)(B) (emphasis added). The definition of a disabled individual in the ADA is identical to the one found in the Rehabilitation Act. 42 U.S.C. § 12102(2). Courts have interpreted this definition to mean that a two-pronged test must be undertaken to determine whether an individual is handicapped. Initially, it must be determined that an individual has, or had, a physical or mental impairment. If so, it must then be determined whether the "impairment substantially limits [or limited] one or more of that person's major life activities." Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d Cir. 1994), cert. denied, 115 S. Ct. 1095 (1995).
Plaintiff contends that he is handicapped because he has a record of mental impairment. Amended Complaint at P 63. In support of his assertion, he alleges the following facts. He was hospitalized four times for psychiatric treatment, the most recent instance being in 1992. Prior to this hospitalization plaintiff had been reviewed for a possible psychiatric disability in 1989 and 1991. Plaintiff does not state by whom this review was performed. As a result of these treatments it was determined that plaintiff did not suffer from a major Axis I psychiatric impairment, but was suffering from problems more closely associated with immaturity and emotional stress. Id. at PP 55-57. He goes on to allege that during his previous psychiatric treatment he had been treated as an individual who was substantially limited in his major life's activities. Id. at P 63.
Because the motion before us is a motion to dismiss made pursuant to Fed. R. Civ. P. 12(b)(6), this Court must accept plaintiff's version of the facts as true. However, we need not accept plaintiff's characterization of the facts. Fisher Bros. Sales, Inc. v. United States, 46 F.3d 279, 286 (3d Cir.), cert. denied, 116 S. Ct. 49 (1995). Indeed, we are bound by the factual allegations in the complaint, but not its legal conclusions. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th Cir. 1991), cert. denied, 503 U.S. 936 (1992). Plaintiff's assertion that his past psychiatric treatment constituted treatment for an individual who was limited in major life activities is just such a legal conclusion, and as such we are not bound by it.
Separate regulations promulgated by the Department of Health and Human Services and the Equal Opportunity Commission use the same language in defining "major life activities" to mean "functions, such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 45 C.F.R. § 84.3(j)(2)(ii); 29 C.F.R. § 1613.702(c). Plaintiff has not asserted a factual basis which could lead to the determination that he was substantially limited in any of these major life activities. As such, based on the Amended Complaint, we hold that plaintiff is not handicapped pursuant to the Rehabilitation Act or the ADA.
Relevant case law is in accord with such a holding. Daley v. Koch, 892 F.2d 212 (2d Cir. 1989). In Daley, plaintiff unsuccessfully sought appointment to the New York City Police Department. As part of the employment screening process, plaintiff interviewed with a psychologist, Dr. Adams. Adams diagnosed plaintiff as having poor judgment, irresponsible behavior, and poor impulse control. In Adams' opinion these behavioral traits rendered plaintiff unsuitable for police work, notwithstanding the fact that plaintiff was not diagnosed as having any particular psychological disease or disorder. Id. at 214.
Plaintiff sued pursuant to the Rehabilitation Act, alleging that he was denied employment due to his mental impairment. In determining whether plaintiff was to be considered handicapped pursuant to the act, the court relied on the regulations promulgated by the Department of Health and Human Services cited above. The court noted that plaintiff's argument was that his mental impairment prevented him from working as a policeman. While acknowledging that "working" was part of the definition of "major life" activities, the court stated that,
the regulations cannot be interpreted to extend this definition to include working at a specific job of one's choice. The position of [a] police officer demands unique qualifications that appellant has failed to meet. Being declared unsuitable for the particular position of police officer is not a substantial limitation of a major life activity.