The opinion of the court was delivered by: Slomsky, J.
On October 31, 2008, Plaintiffs B.L., a minor, and D.N., as parent of B.L. and in her own right, filed a complaint against Defendants Boyertown Area School District, Principal Christopher Iacobelli, and Pennsylvania State Trooper Brian M. Shpock. Defendants Boyertown Area School District ("BASD") and Iacobelli filed a Motion to Dismiss on January 20, 2009, to which Plaintiffs filed a response on February 3, 2009. On February 24, 2009, the Court granted BASD and Iacobelli's Motion to Dismiss, but also granted Plaintiffs leave to amend their complaint. Defendant Shpock was not a party to this Motion to Dismiss and no ruling was made at that time on his status as a defendant.
On April 24, 2009, Plaintiffs filed an Amended Complaint (Doc. No. 11). On April 30, 2009, Defendant Brian M. Shpock filed a Motion to Dismiss the Amended Complaint (Doc. No. 12). On May 7, 2009, Defendants BASD and Iacobelli filed a Motion to Dismiss the Amended Complaint (Doc. No. 14). On May 26, 2009, Plaintiffs filed a Response to Defendants BASD and Iacobelli's Motion to Dismiss (Doc. No. 17). On the same date, Plaintiffs also filed their First Amended Complaint (Doc. No. 18). Plaintiffs did not file a Response to Defendant Shpock's Motion to Dismiss. On June 1, 2009, Shpock filed a Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. No. 19). On June 10, 2009, BASD and Iacobelli filed a Motion to Dismiss Plaintiffs' First Amended Complaint (Doc. No. 20).
Plaintiffs filed their First Amended Complaint without first seeking leave of Court which is required by Fed. R. Civ. P. 15(a)(2). However, on June 10, 2009, the parties faxed to the Court a Stipulation in which they agreed that the language which had been changed in the First Amended Complaint would be the relevant language for deciding the motions before the Court. Although Plaintiffs have not responded on the record to either of the Motions to Dismiss Plaintiffs' First Amended Complaint, in view of the Stipulation, the Court will render a decision on the Motions to Dismiss. For reasons that follow, the Court grants Defendants BASD, Iacobelli, and Shpock's Motions to Dismiss all claims brought against them.
B.L. is a special needs student who attended Washington Elementary School, part of the Defendant Boyertown Area School District. (First Am. Compl. ¶¶ 1, 9). He had an Individualized Education Plan ("IEP") created under the Individuals with Disabilities Act ("IDEA") and supplemental Behavioral Intervention Plan ("BIP"). (Id. ¶¶ 12, 27). In addition to assisting B.L. with his academic needs, these plans were created to address B.L.'s behavioral problems, which included frequent use of derogatory and/or inappropriate remarks. (Id. ¶22). Plaintiffs assert that the BIP in effect at the time of the incident, BIP Behavior #2, provided that if B.L. used swear words, B.L. would:
- be prompted to use his replacement strategies; lose his points for that class period on his behavior card; - serve 6th grade detention and write why it was inappropriate to use swear words in school and what he should have done instead; - have opportunity to go for a 5 minute walk outside with his one to one instructional aide after 6th grade recess is over; - be required to apologize to student/adult. (Id. ¶29). B.L. also had a one-to-one disability aide assigned to him, Shelley Raymock, who his mother, D.N., had repeatedly requested be replaced. Plaintiffs allege that B.L.'s prior aide was "trained in ADHD and helped B.L. in his disability." (Id. ¶¶ 32, 33).
On February 23, 2007, B.L. called Ms. Raymock a "fucking bitch" while he was in the lunchroom eating with his friends. (Id. ¶ 37). Ms. Raymock escorted him to the principal's office. The Principal, Defendant Christopher Iacobelli, called the Pennsylvania State Police. (Id. ¶¶ 38-39). Pennsylvania State Trooper Brian M. Shpock, the other individual defendant, arrived at the elementary school and issued a non-traffic citation to B.L. for disorderly conduct pursuant to 18 Pa. C.S.A. § 5503(a)(3) based upon B.L.'s calling Ms. Raymock a "fucking bitch." (Id. ¶ 40). D.N. was called to pick up B.L. after the citation was issued. (Id. ¶ 41). Ms. Raymock's last day assigned to B.L. was February 27, 2007. (Id. ¶ 36).
On or about April 20, 2007, Iacobelli allegedly contacted the Pennsylvania State Police and informed them that D.N. had attempted to make contact with Ms. Raymock on BASD grounds. D.N. claims that this did not occur, and the Pennsylvania State Police found this allegation to be without merit. (Id. ¶¶ 42-43). On October 22, 2007, B.L. was found not guilty on the non-traffic citation issued February 23, 2007 for violating 18 Pa. C.S.A. § 5503(a)(3) (disorderly conduct). (Id. ¶ 44).
Plaintiffs allege that B.L. continues to suffer severe emotional trauma, which is reasonably expected to continue indefinitely, proximately related to the February 23, 2007 incident; that D.N. continues to suffer distress related to the negative impact on her relationship with B.L., proximately related to the incident; and that the harms suffered are the result of actions taken by Defendants under color of Pennsylvania law. (Id. ¶¶ 45-47).
Plaintiffs' six-count Complaint alleges a malicious prosecution claim based on the Fourth Amendment pursuant to 42 U.S.C. § 1983 (Count I); violations of the Rehabilitation Act and Americans With Disabilities Act, 29 U.S.C. § 794 and 42 U.S.C. § 12132 et seq. (Count II); a Fourteenth Amendment Equal Protection Claim brought pursuant to 42 U.S.C. § 1983 (Count III); a Fourteenth Amendment liberty interest claim (Count V); a state law malicious prosecution claim (Count VI); and a state law loss of consortium claim (Count VII).*fn1
III. The Motion to Dismiss Standard
Defendants BASD, Iacobelli, and Shpock have moved to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under a reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotations omitted) (reasoning that this statement of Rule 12(b)(6) standard remains acceptable following U.S. Supreme Court's decision in Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007)). To withstand a motion to dismiss under Rule 12(b)(6), "factual allegations must be enough to raise a right to relief above the speculative level." Phillips, 515 F.3d at 234. When a complaint contains well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 129 S. Cr. 1937, ...