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December 9, 2002


The opinion of the court was delivered by: Anita B. Brody, District Judge


Plaintiff's suit arises from the following facts: plaintiff is an Income Maintenance Case Worker who has consistently received favorable work evaluations from his supervisors at the DPW. While working, he uses the aide of a part-time reader in order to be more efficient. Plaintiff must compensate his aide directly and then await reimbursement from the DPW, an arrangement that he argues causes him to suffer a tax burden as well as unwarranted out-of-pocket expenses. Plaintiff must also train and hire these aides without defendants' assistance. In addition to these alleged failures by the defendants to provide reasonable accommodation in the workplace, plaintiff also points to defendants' refusal to supply him with updated computer software. Without such software, plaintiff apparently cannot access his employer's current training policies, procedures, manuals, and computerized materials. His work is also allegedly impeded by defendants' decision not to provide him with training manuals and seminar materials in braille. Plaintiff asserts that this lack of access to professional materials has disadvantaged him vis-à-vis his sighted peers.

Plaintiff has filed suit under both federal and state law. He is seeking an array of damages as well as injunctive relief for defendants' allegedly unlawful discrimination and retaliation. In response, defendants have filed Motions to Dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Defendants maintain that plaintiff's suit is barred by the Eleventh Amendment to the U.S. Constitution and that plaintiff's complaint fails to state a claim upon which relief may be granted.


When considering a Rule 12(b)(6) motion, the Court must accept as true all of the allegations set forth in the complaint and must draw all reasonable inferences in favor of the plaintiff. See Ford v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998). Dismissal of plaintiff's claim is appropriate only if plaintiff "can prove no set of facts in support of his claim which would entitle him to relief." Id. (quotations omitted). The court need not, however, accept conclusory allegations or legal conclusions. Morse v. Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997).

Defendants have also moved under Rule 12(b)(1), which allows the court to dismiss a suit for want of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). This motion permits a party to raise the issue of Eleventh Amendment immunity at the earliest stage of litigation. In Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690 (3d Cir. 1996), the Third Circuit Court of Appeal noted that "the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction." Id. at 694 n. 2 (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984)). The Blanciak court added that Rule 12(b)(1) was the proper means of raising the issue of whether the Eleventh Amendment bars federal jurisdiction. Id. There are two types of Rule 12(b)(1) motions. The first type, a facial attack, challenges only the court's subject matter jurisdiction. The second type, a factual attack, allows the court to question the plaintiff's facts after the defendant files an answer. See Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). As defendants have not filed an answer, their motion is necessarily a facial attack.

It is unclear what standard of review governs facial attacks made via Rule 12(b)(1) motions. The Third Circuit has "cautioned against treating a Rule 12(b)(1) motion as a Rule 12(b)(6) motion and reaching the merits of the claims" because "the standard for surviving a Rule 12(b)(1) motion is lower than that for a 12(b)(6) motion." Gould Elecs. Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000) (citation omitted). Nonetheless, the Third Circuit has also held that, when considering a facial attack under Rule 12(b)(1), "the trial court must accept the complaint's allegations as true." Turicentro, S.A. v. Am. Airlines Inc., 303 F.3d 293, 300 n. 4 (3d Cir. 2002) (citing NE Hub Parrtners, L.P. v. CNG Transmission Corp., 239 F.3d 333, 341 & n. 7 (3d Cir. 2001). Accordingly, when evaluating defendants' Rule 12(b)(1) motion, I will accept as true plaintiff's alleged facts. Moreover, since Rule 12(b)(1) has a more forgiving standard of review than that for Rule 12(b)(6), it logically follows that I should draw all reasonable inferences in the plaintiff's favor when considering a Rule 12(b)(1) motion.


Plaintiff has filed a complaint listing six counts against defendants. Plaintiff's causes of action are premised on three federal statutes and two state law claims. The federal statutes are the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983. The state laws are the Pennsylvania Human Relations Act and the Pennsylvania common law action for Assumpsit. While the Commonwealth is a defendant in all six counts, Commissioner Houston is named only for those counts involving state law and § 1983.

In lieu of an Answer to plaintiff's Amended Complaint, defendants have made two motions to dismiss. Defendants' 12(b)(1) motion asserts that plaintiff lacks subject matter jurisdiction because the Eleventh Amendment completely bars his suit against the state and those state agents who are sued in their official capacity. Defendants' 12(b)(6) motion argues that if the court does have subject matter jurisdiction, then plaintiff's suit should be dismissed because it fails to state a claim. I shall address each motion separately.

A. Rule 12(b)(1): Subject Matter Jurisdiction and the Eleventh Amendment

Defendants assert that plaintiff's claims are barred by the Eleventh Amendment.*fn1 Although the Eleventh Amendment does not expressly preclude suit by a state's own citizens, the Supreme Court has barred such claims based on the doctrine of state sovereign immunity. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 669 (1999); Alden v. Maine, 527 U.S. 706, 713 (1999) (noting that "the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution and which they retain today").

Although the States thus enjoy general immunity from suit by private individuals regardless of where they reside, there are three exceptions to the Eleventh Amendment's prohibition of private lawsuits against the States. First, the States may waive their immunity and consent to be sued. See Alden, 527 U.S. at 755. Second, Congress may abrogate the States' immunity so long as it "both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority." Bd. of Trs. of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). Third, the federal courts can issue an injunction against a state officer if there is evidence of ongoing violations of federal law and the injunction will afford a plaintiff prospective relief from the illegal state action. See Alden, 527 U.S. at 757; Seminole Tribe v. Florida, 517 U.S. 44, 73 (1996); see also Ex parte Young, 209 U.S. 123, 159-60 (1908).

Plaintiff has responded to defendants' 12(b)(1) motion to dismiss by asserting that all three of these exceptions permit his suit to go forward. I shall consider defendants' motion by evaluating whether ...

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