3. ADA and RHA
With respect to the ADA and RHA claims, MCCC contends that there is no allegation that Slater was excluded from, or denied the benefits of, any MCCC program because of her disability. It contends that this is a necessary allegation to both of these claims. 42 U.S.C. § 12132; 29 U.S.C. 794.
As above, even taking all facts as true and making inferences in Slater's favor, we cannot find any allegation that any treatment of Slater was based on her disability. For this reason, we dismiss Count III's claims under the ADA and RHA.
4. Policy, Practice or Custom
In response to our previous dismissal of her § 1983 claim, Slater's Third Amended Complaint now includes a list of actions that MCCC did not take. These allegedly serve to tie the civil rights violations to MCCC itself. Briefly, these non-actions are that MCCC failed to issue written policies or otherwise advise faculty members: (1) how to interact with students with mental disabilities, (2) of their obligations under the ADA, (3) not to put personal correspondence on MCCC letterhead and (4) not to date or otherwise fraternize sexually with students.
MCCC contends that even if these allegations are intended to raise a "failure to train" theory, like that found in City of Canton v. Harris, 489 U.S. 378, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989), that they do not actually state such a claim. It argues that first, MCCC was not legally required to take any of the actions it allegedly failed to take. Second, even if it was, there is no allegation that MCCC's failure to act was done with "deliberate indifference." Id. ; Simmons v. City of Philadelphia, 947 F.2d 1042, 1059 (3d Cir. 1991), cert. denied, 503 U.S. 985, 118 L. Ed. 2d 391, 112 S. Ct. 1671 (1992).
Again, we agree. Slater's Third Amended Complaint does not make any of the requisite allegations, nor can such allegations be reasonably inferred. For this reason, we dismiss Count III for failure to state a claim for which relief can be granted.
This is Slater's fourth attempt at drafting her complaint, and her second attempt to plead a § 1983 claim against MCCC. The grounds on which this Motion to Dismiss is granted are the same grounds on which the last Motion to Dismiss was granted. Out of the many areas we identified as lacking, Slater has failed to address almost every one. We need not grant leave to amend when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Waye v. First Citizen's Nat'l Bank, 846 F. Supp. 310, 314, 321 (E.D. Pa.), aff'd, 31 F.3d 1175 (3d Cir. 1994). In all versions of Slater's complaint, the basic facts underlying her claims have not changed. Those facts, even if true, cannot state a claim against MCCC under § 1983. For this reason, we find it appropriate to dismiss Count III of the Third Amended Complaint with prejudice.
5. Punitive Damages
MCCC asks us to reconsider our ruling that punitive damages are available against it, a local agency. Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986); Quinn v. SEPTA, 659 A.2d 613, 615 (Commw. Ct. 1995). We do not address this question because it is moot as to Count III and because the time for reconsideration has passed with respect to Count IV.
An appropriate Order follows.
AND NOW, this 21st day of February, 1996, upon consideration of the Motion to Dismiss Count III of Plaintiff's Third Amended Complaint, (doc. no. 39) the Motion is hereby GRANTED. Count III of Plaintiff's Third Amended Complaint is hereby DISMISSED with PREJUDICE.
BY THE COURT:
J. CURTIS JOYNER, J.
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