The opinion of the court was delivered by: RICHARD B. SURRICK, District Judge
Pro se Plaintiff James George Douris has filed this action against
the Bucks County District Attorney's Office, and Dianne Gibbons and
Arlene J. Angelo in their individual capacities for violations of Title
II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101,
et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS.
STAT. §§ 951, et seq.*fn1 Plaintiff alleges that proper accommodation
was not made for him at an auction of confiscated property in Bucks
County. Plaintiff seeks equitable relief, damages, and attorney's fees
and costs. Presently before the Court is Defendants Gibbons and Angelo's
Motion to Dismiss (Docket No. 16). For the reasons that follow, the
Motion will be granted and the claims against Gibbons and Angelo will be
Plaintiff alleges that he is disabled. He contends that he is confined
to a wheelchair, is unable to use either of his hands, has chronic
arthritic pain, and has visual and hearing problems. (Compl. ¶ 3.) On
October 12th and 13th, 2001, Plaintiff attended a public auction of
property in Bucks County. The auction was held by the Office of the
District Attorney of Bucks County. (Id. ¶¶ 14, 15.) The property on which
the auction was held did not have any posted handicapped parking signs
close to the entrance of the building where the auction was conducted.
(Id. ¶ 12.) Once inside the building, Plaintiff attempted to participate
in the auctions. However, because of Plaintiff's inability to use his
hands he was unable to fill out a "bid" and take advantage of the
opportunity of participating in the auction. (Id. ¶ 16.) No accommodation
was made for Plaintiff's disabilities. In addition, while at this public
auction, Plaintiff attempted to use the restroom facilities. Again,
because of his disabilities Plaintiff could not use the facilities that
were provided. No accommodation had been made for his disability. (Id.
¶ 17.) Plaintiff alleges that Defendants Gibbons and Angelo are liable
because they "have retaliated and coercion (sic) with each other to not
pay Plaintiff Douris any money for damages as a form of coercion and
intimidation in the Pa. Human Relations Commission Hearing Proseedings
(sic)." (Compl. ¶ 25.) Plaintiff also alleges that he has been treated
differently than other individuals with disabilities. (Id. ¶¶ 23, 24.)
Defendants move to dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(6).
Defendants' Motion is based solely on the argument that the there is no
liability under Title II of the ADA and the PHRA against individuals.*fn2
Fed.R.Civ.P. 12(b)(6) allows a court to dismiss a complaint for
failure to state a claim. The purpose of a Rule 12(b)(6) motion to
dismiss is to test the sufficiency of a complaint, not to resolve
disputed facts or decide the merits of the case. Tracinda Corp. v.
197 F. Supp.2d 42, 53 (D. Del. 2002). Though the "plain statement" rule
of 8(a) is construed quite liberally, the court need not credit a
plaintiff's "bald assertions" or "legal conclusions" when deciding a
motion to dismiss. Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 906 (3d
Cir. 1997). The court should not look to whether plaintiff will
"ultimately prevail." It should only consider whether plaintiff should be
allowed to offer evidence in support of their claims. In re Burlington
Coat Factory Sees. Litig., 114 F.3d 1410, 1420(3dcir. 1997).
Plaintiff is proceeding pro se. A pro se complaint, "however inartfully
pleaded," is subject to more liberal review than a district court's review
of pleadings prepared by lawyers. Haines v. Kerner, 404 U.S. 519, 520
(1972). In liberally construing a pro se plaintiff's pleadings, we will
"apply the applicable law, irrespective of whether a pro se litigant has
mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 687 (3d Cir.
Defendants argue that they cannot be sued under Title II of the ADA
because that statute does not provide for liability against individuals.
The Third Circuit has yet to specifically address this issue. However, in
Emerson v. Thiel College, while holding that individuals are not liable
under Title III of the ADA the court stated that "[t]his result comports
with decisions of other courts of appeals holding that individuals are
not liable under Title I and II of the ADA, which prohibit discrimination
by employers and public entities, respectively." 296 F.3d 184, 189 (3d
Cir. 2002) (citing Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98,
107 (2d Cir. 2001); Butler v. City of Prairie Vill., 172 F.3d 736, 744
(10th Cir. 1999); Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000)).
Other courts in this district have found that individuals cannot be
liable under Title II. See Wesley v. Vaughn, No. 99-1228, 2003 WL
1493375, *4 (E.D. Pa. Mar.
19, 2003); Maeagna v. Salisbury Township Sch. Dist., No. 98-1033, 1998 WL
961906, *3 (E.D. Pa. Dec. 29, 1998).
Plaintiff contends that Defendants are individually liable because they
retaliated against him. Retaliation claims under the ADA fall under Title
V. Section 503 of Title V provides, "[n]o person shall discriminate
against any individual because such individual has opposed any act or
practice made unlawful by this chapter or because such individual made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter."*fn3 42
U.S.C.A. § 12203(a). In a case previously filed in this court, Plaintiff
brought a claim of retaliation under Title V against Defendant Gibbons
and others. In dismissing that claim against the individual defendants,
the court observed that the "consensus view among district courts in this
circuit is that individual liability cannot be imposed under the ADA.
Douris v. Schweiker, 229 F. Supp.2d 391, 397 (E.D. Pa. 2002) (quoting
Douris v. County of Bucks, No. Civ. A. 99-3357, 2001 WL 767579 (E.D. Pa.
July 3, 2001); see e.g., Schumacher v. Souderton Area School Dist., C.A.
No. 99-1515, 2000 WL 72047, *3 (E.D. Pa. Jan. 21, 2000); Metzgar v. Lehigh
Valley Housing Auth., C.A. No. 98-3304, 1999 WL 310639, *4 (E.D. Pa. July
27, 1999); Fullman v. Phila. 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,
*1-2 (E.D. Pa. Mar. 30, 1998).
Despite the language of 42 U.S.C.A. § 12203(a), two circuits have
addressed the issue of individual liability for retaliation under §
12203(a) and reached different conclusions. See Shotz v. City of
Plantation, Fla., 344 F.3d 1161, 1179-80 (11th Cir. 2003) (holding
that an individual
may be sued in his or personal capacity for violating § 12203 in the
public services context); compare Baird v. Rose, 192 F.3d 462, 472 (4th
Cir. 1999) (holding that despite the statutory language, Congress did not
intend individuals to be liable under § 12203). While the Third Circuit
has not spoken to this issue, even if we were to assume that individual
liability exists under § 12203, Plaintiff's claim must fail.
Retaliation claims under § 12203(a) of the ADA are analyzed under the
same framework employed in retaliation claims under Title VII. Krouse v.
American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997). To establish a
prima facie case of retaliation under the ADA plaintiff must show that:
"(1) a plaintiff was engaged in protected activity; (2) the alleged
retaliator knew that plaintiff was involved in protected activity; (3) an
adverse decision or course of action was taken against plaintiff; and (4)
a causal connection exists between the protected activity and the adverse
action." P.N. v. Greco, 282 F. Supp.2d 221, 243 (D.N.J. 2003) (citing
Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 148 (2d Cir.
Plaintiff has brought several lawsuits in this district against
Gibbons, Bucks County and other defendants. Plaintiff now asserts that
Gibbons and Angelo have taken adverse action against him because of this
litigiousness. Plaintiff alleges that Gibbons' and Angelo's failure to
compensate him financially after he made the instant charge of
discrimination was an act of retaliation. He alleges that the failure of
Gibbons and Angelo to make all of the ten accommodations which he
demanded in this matter was an act of retaliation. Plaintiff alleges that
as a result of Gibbons' and Angelo's dislike for him, they have
retaliated against him by failing to treat him in a manner similar to an
employee of the Bucks County District Attorney's Office who developed a
brain tumor and another county employee who received a monetary
settlement after making a claim against the county. Finally, Plaintiff
alleges that he was retaliated against when no accommodation was made to
give him the opportunity to sit in a "Lamborghini" that was on display at
the auction even though Gibbons was permitted to sit in the vehicle.
Even if the Third Circuit were to determine that individuals can be
liable for retaliation under § 12203(a), we are satisfied that the
decisions made and the actions taken by Gibbons and Angelo as alleged by
Plaintiff are not "retaliation" as contemplated by Congress when it
enacted § 12203(a) of the ADA. Certainly the refusal to pay money to
settle a claim and the refusal to capitulate to all demands of
accommodation cannot be characterized as "retaliation" in these
circumstances. The failure to treat Plaintiff the same as those who are
not similarly situated is not retaliation. Finally, Plaintiff's complaint
that he did not have the opportunity ...