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DOURIS v. SCHWEIKER
October 23, 2002
JAMES GEORGE DOURIS, PLAINTIFF
MARK S. SCHWEIKER, GOVERNOR, COMMONWEALTH OF PENNSYLVANIA; COUNTY OF BUCKS; BUCKS COUNTY DISTRICT ATTORNEY'S OFFICE; DIANE GIBBONS; MICHELLE A. HENRY; ANNE SCHEETZ DAMON; TIMOTHY RAUCH; ALL BUT DEFENDANT SCHWEIKER SUED INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITY. HELD JOINTLY AND SEVERALLY LIABLE DEFENDANTS
The opinion of the court was delivered by: Baylson, Judge
This civil rights case was commenced by plaintiff James George Douris
("Plaintiff" or "Douris") against the following defendants: Mark S.
Schweiker, Governor of the Commonwealth of Pennsylvania ("Schweiker");
the County of Bucks ("Bucks County"); the Bucks County District
Attorney's Office ("DA's Office"); Bucks County District Attorney Diane
Gibbons, ("Gibbons"); Bucks County Assistant District Attorney Michelle
A. Henry ("Henry"); Bucks County Assistant District Attorney Anne Scheetz
Damon ("Damon"); and Timothy Rauch, a Bucks County police officer
("Rauch") (collectively "Defendants"). The Complaint contains six counts
alleging violations and retaliation under the First Amendment and
Americans with Disabilities Act ("ADA"), 42 U.S.C § 12101 et seq.,
42 U.S.C. § 1983, and the Pennsylvania Human Relations Act ("PHRA"),
43 Pa. Cons. Stat. Ann. § 951 et seq. The Complaint also alleges
violations of the Pennsylvania Constitution, malicious prosecution, abuse
of process, conspiracy, and a constitutionally inadequate state appeals
process. Defendants all have filed Motions to Dismiss. For the reasons
which follow, Defendants' Motions will be granted in part and denied in
In March 1998, Bucks County publicly posted a notice for a county park
supervisor position. (Pl.'s Compl. ¶ 11). Plaintiff alleged that he
was discriminated against when he went to the Bucks County Department of
Human Resources Office to apply for the position because Bucks County
allegedly failed to provide him an accommodation for his disability. Id.
at ¶ 12. Plaintiff later filed a complaint with the Equal Employment
Opportunity Commission ("EEOC") and the Pennsylvania Human Resources
Commission ("PHRC"). Id.
On May 6, 1999, Plaintiff returned to the Bucks County Human Resources
Office stating that he wanted to apply for a position. Commonwealth v.
Douris, 766 A.2d 1276, 1277-78 (Pa. 2001). The receptionist handed him an
application and told him that he was required to fill it out in the
office. Id. at 1278. He then took the application, walked to the
elevator, and when the receptionist tried to stop him, he pushed her
against the wall, injuring her arm and neck. Id.
Douris was charged with harassment and prosecuted by the Bucks County
DA's Office, represented by Gibbons and Henry. (Pl.'s Compl. ¶ 14).
After a state district court justice convicted Douris of harassment, he
appealed to the Court of Common Pleas, where the matter was heard de
novo, the receptionist and a co-worker who witnessed the incident
testified, and Douris was again found guilty of harassment. Douris, 766
A.2d at 1277. Douris alleges that in May 2000, he discovered that
Defendants Bucks County, the DA's Office, Gibbons, and Henry withheld
exculpatory information from him during his harassment prosecution in
Bucks County. (Pl.'s Compl. ¶ 16). Douris appealed to the Superior
Court, and his conviction was affirmed. Douris, 766 A.2d at 1277. He also
appealed the denial of his motion for a new trial and post-conviction
relief, which the Superior Court affirmed. Commonwealth v. Douris, No.
694 EDA 2001, slip op. (Pa.Super.Ct. Nov. 5, 2001). The Pennsylvania
Supreme Court denied Plaintiff's petition for allowance of appeal.
Commonwealth v. Douris, No. 986 MAL 2001, slip op. (Pa. Mar. 27, 2002).
Plaintiff's prior federal lawsuit resulted in a dismissal against two
defendants, Douris v. County of Bucks, C.A. No. 99-3357, 2001 U.S. Dist.
LEXIS 9282, at *43 (E.D.Pa. 2001 July 3, 2001); Douris v. Brobst, C.A.
No. 99-3357, 2000 U.S. Dist. LEXIS 1579, at *1 (E.D.Pa. Feb. 14, 2000),
and a jury verdict and entry of judgment in favor of the remaining
defendant, Bucks County, and against Plaintiff. Douris v. County of
Bucks, No. 99-3357, slip op. (E.D.Pa. Aug. 2, 2001).
At some point in 2001, Douris was charged with impersonating a police
officer, making terrorist threats, disorderly conduct, harassment, and
duty to give information and render aid. (Pl.'s Compl. ¶ 18). Douris
alleges that during the prosecution on these charges, Defendants Bucks
County, the DA's Office, Gibbons, Damon, and Rauch destroyed and failed
to provide exculpatory evidence to Douris. Id. at ¶ 19. Douris was
not convicted of any of these charges. Id. at ¶ 20.
Plaintiff's Complaint contains six counts. Counts I-V are brought
against all Defendants, in their individual and official capacities,
except Defendant Schweiker. Count VI is brought only against Defendant
Schweiker. The Counts follow:
1. Retaliation in violation of the First Amendment and the ADA
2. Violation of 42 U.S.C. § 1983 (Count II);
3. Retaliation under the Pennsylvania Human Relations Act ("PHRA")
4. Malicious prosecution, abuse of criminal process, and conspiracy
5. Violation of the Pennsylvania Constitution and conspiracy (Count
6. Unconstitutionally inadequate state appeals procedure in violation
of 42 U.S.C. § 1983 (Count VI).
II. Legal Standard and Jurisdiction
When deciding a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6), the Court may look only to the facts alleged in the
complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien &
Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The Court must accept as true
all well-pleaded allegations in the complaint and view them in the light
most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec.,
Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be
granted only when it is certain that no relief could be granted under any
set of facts that could be proved by the plaintiff. Ransom v. Marrazzo,
848 F.2d 398, 401 (3d Cir. 1988).
This Court has jurisdiction pursuant to 28 U.S.C. § 1331, and
venue is appropriate under 28 U.S.C. § 1391(b).
A. Count I: Retaliation Under the ADA, First Amendment, and
42 U.S.C. § 1983
1. ADA Claim: Defendants Bucks County,
DA's Office, Gibbons, Henry, Damon, and Rauch
Plaintiff brings a retaliation claim under the ADA against Defendants
Henry, Damon, and Rauch in their individual capacities. The
United States Supreme Court has not addressed the issue of individual
liability under the ADA. The Third Circuit recently determined that
individual defendants may be liable under Title III of the ADA if they
own, lease, or operate a place of public accommodation. Emerson v. Thiel
College, 296 F.3d 184, 189 (3d Cir. 2002) (per curiam). In Thiel, the
individual defendants did not operate the college and could not be held
individually liable under Title III of the ADA. Id. at 189 ("This result
comports with decisions of other courts of appeals holding that
individuals are not liable under Titles I and II of the ADA, which
prohibit discrimination by employers and public entities respectively"
(citing Garcia v. SUNY Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir.
2001); Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.
1999); and quoting Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000)
("the ADA addresses its rules to employers, places of public
accommodation, and other organizations, not to the employees or managers
of those organizations")).
Retaliation under the ADA*fn1, the claim at issue, falls under Title
V, which the Third Circuit has not addressed as to individual liability.
However, in considering the issue of individual liability under Title
VII, the Third Circuit concluded that "Congress did not intend to hold
individual employees liable under Title VII." Sheridan v. E.I. DuPont de
Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996) (en banc), cert.
denied, 521 U.S. 1129, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997)). The
Third Circuit also has stated that "the ADA, ADEA, and Title VII all
serve the same purpose — to prohibit discrimination in employment
against members of certain classes. Therefore, it follows that the
methods and manner of proof under one statute should inform the standards
under the others as well." Newman v. GHS Osteopathic, Inc., Parkview
Hosp. Div., 60 F.3d 153, 157 (3d Cir. 1995).
The "consensus view among district courts in this circuit is that
individual liability cannot be imposed under the ADA." Douris v. County
of Bucks, 2001 U.S. Dist. LEXIS 9282, at *15 (citations omitted); see,
e.g., Schumacher v. Souderton Area School District, C.A. No. 99-1515,
2000 WL 72047, at *3 (E.D.Pa. Jan. 21, 2000); Metzgar v. Lehigh Valley
Housing Authority, C.A. No. 98-3304, 1999 WL 310639, at *4 (E.D.Pa. July
27, 1999); Fullman v. Philadelphia Int'l Airport, 49 F. Supp.2d 434, 441
(E.D.Pa. 1999); Brannaka v. Bergey's, Inc., C.A. No. 97-6921, 1998 WL
195660, at *1-2 (E.D.Pa. Mar. 30, 1998). "`Courts of Appeals that have
directly addressed the issue of individual liability under the ADA have
concluded that no such liability exists.'" Douris v. Brobst, 2000 U.S.
Dist. LEXIS 1579, at *7 (quoting Meara v. Bennett, 27 F. Supp.2d 288, 290
(D.Mass. 1998) (citing Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.
1996); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 179-82 (7th
In light of these decisions, Plaintiff's ADA retaliation claim against
Defendants Gibbons, Henry, Damon, and Rauch in their individual
capacities fails as a matter of law and will be dismissed.
The Court now considers Plaintiff's ADA retaliation claim against
Defendants Bucks County and DA's Office and Defendants Gibbons, Henry,
Damon, and Rauch, in their official capacities.
Plaintiff asserts that Defendants filed and/or prosecuted criminal and
traffic charges against him in retaliation for his opposition to Bucks
County's "illegal practice to discriminate against persons with a
disabled [sic] by failing to provide the legally required accessibility
to their facilities, and knew or should have know [sic] because Plaintiff
has filed discrimination charges against the Defendants with the
Department of Justice and PA. Human Relations Commission." (Pl.'s Compl.
Defendants contend that to bring suit under the ADA, a plaintiff must
exhaust his administrative remedies before the EEOC or the PHRC. See
Churchill v. Star Enterprises, 183 F.3d 184, 190 (3d Cir. 1999). Although
Plaintiff filed complaints with the EEOC and the PHRC regarding his
belief that Bucks County failed to provide him an accommodation, Pl.'s
Compl. ¶ 12, Plaintiff neither alleges nor is there any indication
that he filed an ADA retaliation claim with either agency. When a
retaliation claim is not specifically presented to the EEOC, the test for
whether that claim can be presented in district court is "`whether the
acts alleged in the subsequent . . . suit are fairly within the scope of
the prior EEOC complaint, or the investigation arising therefrom.'"
Douris v. Brobst, 2000 U.S. Dist. LEXIS 1579, at *9 (quoting Waiters v.
Parsons, 729 F.2d 233, 237 (3d Cir. 1984)). "The legal analysis for
whether a judicial complaint is within the scope of an earlier
administrative charge or a reasonable investigation therefrom turns on
whether `there is a close nexus between the facts supporting each claim
or whether additional charges made in the judicial complaint may fairly
be considered explanations of the original charge or growing out of it.'"
Ivory v. Radio One, Inc., C.A. No. 01-5708, 2002 WL 501489, at *2
(E.D.Pa. Apr. 3, 2001) (quoting Fakete v. Aetna, Inc., 152 F. Supp.2d 722,
732 (E.D.Pa. 2001)).
Although the EEOC was on notice of Plaintiff's complaints against Bucks
County for allegedly failing to provide him an accommodation, the EEOC
would not have been expected to initiate a retaliation investigation
based on Plaintiff's charge. See id. at *9-10 (citing Fieni v. Pocopson
Home, C.A. No. 96-5343, 1997 WL 220280, at *5-6 (E.D.Pa. Apr. 29, 1997)
(dismissing retaliation claim where not mentioned in EEOC filing)).
Therefore, Plaintiff's ADA retaliation claim against Defendants Bucks
County and DA's Office, and against Defendants Gibbons, Henry, Damon, and
Rauch, in their official capacities, will be dismissed.
2. First Amendment and § ...