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Riordan v. Marywood University

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


July 14, 2010

KELLY ANN RIORDAN, PLAINTIFF
v.
MARYWOOD UNIVERSITY, ET AL., DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 14th day of July, 2010, upon consideration of the report of the magistrate judge (Doc. 27) recommending that the motion (Doc. 20) to dismiss defendants Dr. Leonard Herman, Diane Taylor, Ann Boland-Chase, and Patricia Dunleavy*fn1 (collectively "moving defendants") be granted because plaintiff, Kelly Ann Riordan ("Riordan") has not opposed the motion, and because Riordan's Americans with Disabilities Act ("ADA") claim, 42 U.S.C. § 12101, and claim under the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794, do not subject the moving defendant to liability, and, following an independent review of the record, it appearing that there is no individual liability under Title II of the ADA, see Taylor v. Altoona Area School Dist., 513 F. Supp. 2d 540, 559-60 (W.D. Pa. 2007); Arnold v. City of York, No. Civ. A. 4:03-1352, 2004 WL 2331781, at *7 (M.D. Pa. 2004); see also Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001), nor may moving defendants be liable in their official capacities under Title III of the ADA since they do not own, lease, or operate Marywood University, see Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002), and concluding that suits may not be brought against individuals under Section 504 of the Rehabilitation Act, see A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 804 (3d Cir. 2007), and noting that neither party has objected to the magistrate judge's report and recommendation, and that there is no clear error on the face of the record,*fn2 see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that "failing to timely object to [a report and recommendation] in a civil proceeding may result in forfeiture of de novo review at the district court level"), it is hereby ORDERED that:

1. The report (Doc. 27) of the magistrate judge is ADOPTED.

2. The motion (Doc. 20) to dismiss is GRANTED. Leave to amend is DENIED as futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

3. Defendants Dr. Leonard Herman, Diane Taylor, Ann Boland-Chase, and Patricia Dunleavy are TERMINATED as parties to the above-captioned matter.

4. The above-captioned case is REMANDED to the magistrate judge for further proceedings.

CHRISTOPHER C. CONNER United States District Judge


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