The opinion of the court was delivered by: JOYNER
Before this Court is Defendant Montgomery County Community College's (MCCC) Motion to Dismiss Count Three of Plaintiff's Third Amended Complaint. Earlier, this Court dismissed the same count but granted Plaintiff, Linda Slater, leave to amend. MCCC contends that the amendment is insufficient to state a claim and that dismissal is therefore appropriate.
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).
Count Three alleges that MCCC violated 42 U.S.C. § 1983 by depriving Slater of her rights under the Constitution's Equal Protection Clause, the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1995) (ADA), 20 U.S.C. § 1681 (Title IX) and § 504 of the Rehabilitation Act, 29 U.S.C. §§ 701-796 (1985 & Supp. 1995) (RHA). Section 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."
Slater has not responded to this Motion and so, pursuant to Local Rule 7.1(c), we may treat it as uncontested. However, due to the importance of the issues, we choose to address them on their merits.
First, MCCC alleges that Count Three still 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." 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).
Slater's amendment recites four areas where MCCC allegedly violated her rights. Each of these is a 'failure to establish a written policy'-type allegation. For the purposes of Rule 8(a), we find that Slater has sufficiently stated her claim and will not dismiss Count III on that basis.
MCCC maintains that the Equal Protection portion of Count III still does not allege that MCCC itself or an MCCC supervisor purposefully discriminated against Slater or was aware of the discrimination and acquiesced in it. It contends this allegation is vital to an Equal Protection ...