The opinion of the court was delivered by: YVETTE KANE, District Judge
THE BACKGROUND TO THIS ORDER IS AS FOLLOWS:
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
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
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 ...