The opinion of the court was delivered by: Magistrate Judge Prince
REPORT AND RECOMMENDATION
Pursuant to an Order entered on May 13, 2010 (Doc. 26), the Honorable Thomas I. Vanaskie referred the Defendants' pending Motion to Dismiss to the undersigned for the purpose of preparing a Report and Recommendation.
Plaintiff, Kelly Ann Riordan, commenced this action by filing a complaint on September 29, 2009 against Defendants Marywood University, Dr. Leonard Herman, Diane Taylor, Ann Boland-Chase, Patricia Dunleavy and John Does 1-10.*fn1 (Doc. 1). An Amended Complaint brought pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794 et seq., was filed on February 14, 2010 (Doc. 18). On March 21, 2010, Defendants*fn2 filed a Motion to Dismiss along with a Brief in Support (Docs. 20-21). Plaintiff field a Brief in Opposition (titled "Response") on March 18, 2010 (Doc. 24), to which Defendants filed a Reply on April 1, 2010. (Doc. 25). The matter is now ripe for disposition. For the reasons that follow, it will be recommended that the Defendants' Motion to Dismiss be granted.
Plaintiff is a former student at Marywood University who suffers from Turner's Syndrome, a genetic condition which result in learning disabilities, anxiety disorders and developmental problems (Doc. 18, ¶ 13). Because of this condition, Plaintiff was classified as learning disabled, and she requested accommodations from Marywood in the form of extended test-taking time, tutoring and note-taking. (Id. at ¶ 17). She asserts that Marywood, through its employees, refused to accommodate her as she requested. Additionally, the complaint alleges that the peer interaction within her dormitory deteriorated, and that she was threatened by her then-roommate. After the school was notified of the situation and conducted an investigation, which resulted in three (3) students being directed to have no contact with Plaintiff, Plaintiff contends she was ostracized from her peer group at Marywood. As a result of these incidents, Plaintiff withdrew from Marywood. She subsequently enrolled in another college program.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of claims that fail to assert a basis upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). When deciding a motion to dismiss for failure to state a claim, the court is required to accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). "The complaint will be deemed to have alleged sufficient facts if it adequately put[s] the defendant on notice of the essential elements of the plaintiff's cause of action." Id. The court will not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
In rendering a decision on a motion to dismiss, a court should not inquire "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). First, the court must accept as true the factual allegations in the complaint and draw all reasonable inferences from them in the light most favorable to the plaintiff. Innis v. Wilson, 2009 U.S. App. LEXIS 12424, *4-5 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009) ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). The court must then determine whether the complaint states a plausible claim for relief, which is a "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557-58 (2007)).
In their Motion to Dismiss, Defendants maintain that Plaintiff cannot state a cause of action against them in their individual capacities under Titles II and III of the ADA and the Rehabilitation Act. Plaintiff concedes this point, and agrees to withdraw her claims against the individual Defendants in their individual capacities. However, she seeks to continue her pursuit of liability against the individual Defendants in their official capacities. Defendants argue, however, that suit against the individual Defendants in their official capacities cannot survive.
Plaintiff brings her complaint under Titles II and III of the ADA. Title II of the ADA is intended to prohibit discrimination by governmental entities in their operation of public services, programs and activities. For purposes of this section, "the term 'public entity' means (A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of Title 49)." 42 U.S.C.A. § 12131(1). Whether, as Defendants maintain, Title II is inapplicable to the present matter seems clear, considering neither Defendant Marywood University nor its employees are "public entities" under Title II. See Ellis v. Morehouse School of Medicine, 925 F. Supp. 1529 (N.D. Ga. 1996) (Private medical school was not a "public entity" subject to Title II of the Americans with Disabilities Act); Spychalsky v. Sullivan, 2003 WL 22071602, (E.D.N.Y. 2003) (unreported), aff'd 96 Fed. Appx. 790, 2004 WL 1157714 (Law ...