Defendants' 12(b)(1) motion is also denied-in-part. Despite the broad
grant of sovereign immunity afforded by the Eleventh Amendment, the DPW
and Secretary Houston are not entirely immune from suit. Congress validly
abrogated the States' sovereign immunity when it passed the
Rehabilitation Act. Also, the doctrine of Ex Parte Young allows a
plaintiff to sue a state officer for prospective, injunctive relief under
§ 1983. Thus, plaintiff has presented two claims over which this
court holds subject matter jurisdiction. Recognizing that I only have
jurisdiction to decide defendants' 12(b)(6) motion with regard to these
two surviving claims, I find that plaintiff has stated claims upon which
relief can be granted. Accordingly, defendants' 12(b)(6) motion is denied
as to plaintiff's surviving claims.
AND NOW, this 12th day of December, 2002, the defendants' 12(b)(1)
Motion to Dismiss (Docket # 5) is GRANTED-IN-PART and DENIED-IN-PART.
Defendants' 12(b)(1) is GRANTED with regard to:
(1) Count I for Disability Discrimination under the ADA;
(2) Count II for Retaliation under the ADA;
(3) Count IV for Disability Discrimination under the PHRA;
(4) Count V for Retaliation under the PHRA;
(5) Count VI for Assumpsit;
(6) Count VII for Deprivation of Federally Protected Rights under
42 U.S.C. § 1983 as it pertains to defendant DPW and any retroactive
relief sought from Secretary Houston.
Defendants' 12(b)(1) motion is DENIED with regard to:
(1) Count VII insofar as it seeks prospective injunctive relief
from the Secretary;
(2) Count III for disability discrimination under the Rehabilitation
AND Defendants' 12(b)(6) Motion to Dismiss (Docket # 5) is DENIED.