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September 15, 2005.

UMAR BETHEA, a minor child, by and through his mother, KIMBERLY M. DAVIS, and KIMBERLY M. DAVIS, Plaintiffs

The opinion of the court was delivered by: YVETTE KANE, District Judge



On May 24, 2004, Kimberly Davis, represented by counsel, filed a complaint on behalf of herself and her son, Umar Bethea, alleging that Central Dauphin School District and a number the District's Board members and employees violated the Plaintiffs' civil rights. (Doc. No. 1.) Generally, Plaintiff Davis alleged that her son had been subjected to racial slurs and disparate treatment on the basis of his race from kindergarten until his eventual expulsion from Dauphin County Technical School in 2004. Plaintiffs also claim that their procedural and substantive due process rights were violated in connection with the District's decision to suspend Mr. Bethea for drug use and assault of another student while on a school bus. Ms. Davis also generally alleged that Defendants have discriminated against her on the basis of her race and religion, and have violated her First Amendment rights by "barring her from school property" and subjecting Mr. Bethea to "retaliatory disciplinary actions, and harassment" after she protested what she believed to be Defendants' "discriminatory and otherwise unlawful treatment." (Compl. ¶ 96.) Plaintiff Davis also alleged that Defendants violated her "substantive due process parental right to a full and equal public education for her son in violation of 42 U.S.C. § 1983." (Id. ¶ 100.) Plaintiff Davis generally averred that her substantive and procedural due process rights were violated, and that Defendants's actions were "undertaken pursuant to an illicit plan and agreement between and among them" thereby violating 42 U.S.C. §§ 1983, 1985(3), and 1986.

  Defendants subsequently filed a joint motion to dismiss the complaint in its entirety, as well as a motion to strike and a motion for a more definite statement. (Doc. Nos. 5, 6, and 7.) The motions were fully briefed, and the Court scheduled oral argument on the motion to dismiss for January 28, 2005.

  On November 30, 2004, Plaintiffs submitted an amended complaint, which contained factual allegations substantially similar to those set forth in the original complaint. (Doc. No. 32.) Defendants again moved jointly to dismiss the amended complaint, and alternatively moved to strike or requested a more definite statement. (Doc. Nos. 35, 36, and 37.) Pursuant to Defendants' request, the previously scheduled oral argument on the pending motions was continued until February 15, 2005.

  Subsequent to oral argument, the Court became aware the Plaintiffs' original counsel, Andrew Ostrowski, had unexpectedly been forced to discontinue his legal practice due to the onset of a medical emergency. On June 8, 2005, attorney Sherri Coover, an attorney with Bailey & Ostrowski, entered an appearance on behalf of Plaintiffs. (Doc. No. 51.) Through Attorney Coover, Plaintiffs moved to extend the June 8, 2005 discovery cutoff. (Doc. No. 52.) Defendants opposed extending discovery, and on June 29, 2005, the Court convened a telephone conference to discuss the status of the litigation and Plaintiffs' request to extend discovery deadlines. During the June 29 telephone conference, Attorney Don Bailey of Bailey & Ostrowski advised the Court that Plaintiff Davis had been seeking replacement counsel since April 2005, and she did not wish for the Bailey & Ostrowski firm to continue representing her and her son in this action. Attorneys Bailey and Coover had sought to hold discovery open in order to protect Plaintiffs' interests while she engaged replacement counsel. The Court agreed to suspend the action for a period of 30 days while Plaintiff Davis found new representation. On July 8, 2005, the Court entered an Order scheduling a telephone conference for August 4, 2005, and directed Plaintiff Davis to participate in the conference call either through replacement counsel or, if counsel had not been obtained, on a pro se basis.

  As of August 4, 2005, Plaintiff Davis had been unable to find a lawyer willing to undertake representation of her and Mr. Bethea in this action. Plaintiff Davis participated in the telephone conference and indicated that she continued to seek new counsel and wished to engage in settlement discussions with Defendants. Defendants suggested that such settlement talks would be better facilitated if Plaintiffs were represented. On August 5, 2005, the Court entered an Order allowing Bailey & Ostrowski to withdraw and granted Plaintiff Davis an additional ten days in which to engage replacement counsel. (Doc. No. 64.) In the event Plaintiffs were able to secure new representation, the Court would hold the action open for 30 days to allow the parties to engage in settlement negotiations. However, the Court advised Plaintiff Davis that if she had not found new counsel, the Court would proceed to consider the pending motions to dismiss the amended complaint. (Id.)

  By letter dated August 17, 2005, Plaintiff Davis advised the Court that she had been unable to find a new lawyer to represent her and Mr. Bethea in the litigation. (Doc. No. 66.) Ms. Davis requested that the Court hold the case in abeyance "for an extended period of time" to allow her to continue her search for a new lawyer. (Id.) Alternatively, Ms. Davis asked that if the Court were constrained to rule upon the pending motions to dismiss, that it do so without prejudice in order that she might refile the complaint at such time as she secured new counsel. (Id.)

  The Court is sensitive to Plaintiff Davis's current status as an uncounseled litigant in this action. However, that sensitivity must be balanced against the legitimate interests of, and expense incurred by, the many Defendants to an action that has now been pending for more than 15 months with little progress.*fn1 The Court finds that Plaintiff Davis has been afforded an adequate opportunity to find suitable replacement counsel and, to date, has been unable to find a lawyer willing to take this case. Accordingly, the Court is now constrained to consider the merits of the pending and fully briefed motions to dismiss with respect to Ms. Davis's claims. However, for the reasons discussed below, the Court will dismiss Plaintiff Bethea's claims without prejudice.

  II. Standard of Review

  A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When considering a motion to dismiss, the court accepts as true all factual allegations contained in the complaint and views them in the light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The plaintiff is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court should grant a motion to dismiss only if it appears the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985) (citations omitted).

  A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, "a court need not credit a complaint's `bald assertions' or `legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)).

  II. Plaintiff Bethea's Claims

  Plaintiff Davis, a pro se litigant, is not entitled to represent her son in place of an attorney in federal litigation. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882-83 (3d Cir. 1991). In a recent unpublished decision, the United States Court of Appeals for the Third Circuit vacated a district court's order granting summary judgment in favor of a school district where plaintiff-mother improperly represented herself and her minor son in the litigation after their attorney withdrew. Harris-Thomas v. Christina Sch. Dist., No. 04-1184, 2005 U.S. App. LEXIS 14152 (3d Cir. July 12, 2005). The Third Circuit vacated the grant of summary judgment ...

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