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Van C. Sher and Carol L. Sher On Behalf of Themselves and Their Minor Son, Anthony Sher v. Upper Moreland Township School District

August 19, 2011


The opinion of the court was delivered by: Robert F. Kelly, Sr. J.


Presently before the Court is Defendants, Upper Moreland Township School District ("UMSD"), Superintendent of UMSD Dr. Robert Milrod ("Dr. Milrod"), and Upper Moreland High School Psychologist Howard Cohen's ("Cohen") (collectively, "Defendants") Motion to Dismiss. Also before the Court is Plaintiffs, Van C. Sher, Carol L. Sher's, (collectively, "Plaintiffs") Motion for Appointment of Counsel brought on behalf of themselves and their minor son Anthony Sher ("Anthony"). For the following reasons, Defendants' Motion to Dismiss will be granted in its entirety and Plaintiffs' Motion for Appointment of Counsel will be denied.


Plaintiffs are currently proceeding pro se on behalf of themselves and their minor son Anthony in this action against UMSD and individual Defendants Dr. Milrod and Mr. Cohen.*fn1

Sixteen-year-old Anthony was diagnosed as having Attention Deficit Hyperactivity Disorder ("ADHD") on or about August of 2009.*fn2 (Compl. ¶¶ 14, 63, 80(g)); (Defs.' Mot. to Dismiss, Ex. A, Spec. Ed. Hearing Decision ¶¶ 22-23.)*fn3 Anthony transferred to UMSD from a private school in the eighth grade. (Id. at ¶¶ 17, 26-27.) According to Plaintiffs, prior Anthony's transfer, he was involved in extracurricular activities, sports, his school drama program, and community service. (Id. at ¶ 23.) He also scored very well on his PSAT exam. (Id.)

Plaintiffs aver that, unfortunately, Anthony's model behavior deteriorated after he transferred to UMSD in the eighth grade. (Id. at ¶ 27.) In the eighth grade, Anthony received approximately twenty-eight disciplinary sanctions consisting of detentions, in-school-suspensions, and at least one out-of-school suspension for: refusing to carry out directions, threatening other students, making derogatory remarks to students, poking/touching students, acting disrespectfully towards staff, disrupting classes, using profanity, being present in unauthorized areas during the school day, bringing a toy gun to school, throwing objects, misconduct during a fire drill, misconduct during detention, refusal to participate in class, and unauthorized use of a username/password. (Defs.' Mot. to Dismiss, Ex. A, Spec. Ed. Hearing Decision ¶¶ 3, 17.) In the ninth grade, Anthony was involved in thirty-one behavioral incidents due to: possession of electronics, refusal to carry out directives, disrespect towards staff, inappropriate comments, disruption of class, throwing objects, failure to report to detention, fighting, hallway misconduct, vandalism, and refusal to participate in class. (Id. at ¶ 21.) These incidents resulted in verbal warnings, detentions, in-school suspension, and out-of-school suspension. (Id. at ¶ 22.) In the tenth grade, Anthony was involved in eight behavioral incidents where he was the offender, including failure to report to detention, insubordination/disrespectful behavior, theft, harassment, disruption of class, throwing objects, and fighting. (Id. at ¶ 34.) The incidents resulted in detentions and out-of-school suspensions. (Id. at ¶ 35.)

Plaintiffs allege that they requested counseling for Anthony when his behavior changed for the worse but that UMSD failed to fully provide it. (Id. at 28.) According to Plaintiffs, UMSD also failed to recognize clear indicators that Anthony suffered from a learning disability, despite the fact that Anthony's father informed UMSD that he suffered from ADD and that Anthony's behavior was typical of the disorder. (Id. at ¶ 56.) Because Anthony has been diagnosed with ADHD, Plaintiffs believe that Anthony's behavior was purely symptomatic of that disability and, thus, any punishments or disciplinary actions by UMSD were unfairly dealt and should be expunged. (Id. at ¶ 58.) UMSD's alleged wrongful acts cover a great variety of misconduct, but Plaintiffs' allegations may be condensed into the following conclusions: (1) Anthony has ADHD, which made him act out and misbehave in school (Id.); (2) the Defendants, rather than inquiring into whether Anthony had ADHD (or some other disability) and formulating an appropriate public education, inappropriately responded to Anthony's behavior by assigning him traditional discipline such as suspensions and other disciplinary write-ups (Id. at ¶¶ 45, 47, 63, 67); and (3) Anthony has suffered emotional and medical harm as a result of the Defendants' negligence in diagnosing and treating his disability (Id. at 10).

In their Complaint, Plaintiffs reference a Pennsylvania Special Education Hearing ("due process hearing"), which took place on October 5, 2010, November 17, 2010, and November 22, 2010. The issues to be decided were: (1) does the student qualify as a "child with a disability" under the Individuals with Disabilities Education Act ("IDEA")? If so, did the district fail in its obligations toward the student under the IDEA?; (2) did the district fail to meet its obligations to the student as a "protected handicapped student" under Section 504 of the Rehabilitation Act ("Section 504")?;*fn4 and (3) If the answer to the foregoing two questions is in the affirmative, is the student entitled to a remedy? (Defs.' Mot. to Dismiss, Ex. A, Spec. Ed. Hearing Decision at 3.)

The findings of fact revealed a history of cooperative efforts between Plaintiffs and UMSD to fashion a FAPE for Anthony. For instance, after Plaintiffs informed UMSD that a licensed psychologist and certified school psychologist diagnosed Anthony with ADHD/combined type and conduct disorder in August of 2009, UMSD recommended that Anthony be provided with a 504 plan*fn5 to help him with organizational skills and a number of school-based accommodations. (Id. ¶¶ 23-24.) Plaintiffs agreed to the proposed 504 plan on October 8, 2010,*fn6 which included accommodations such as regular communication between home and school, an assignment book, preferential seating, verbal and non-verbal cues, extended time on tests as needed, and the opportunity to meet with a school counselor or school psychologist as needed. (Id. at ¶ 29.) Apparently, the school psychologist never shared the 504 plan with Anthony as he was required to do. (Id. at ¶ 30.) In December of 2009, Plaintiffs requested another comprehensive psycho-evaluation for Anthony, but later withdrew consent for the evaluation for unknown reasons on January 29, 2010. (Id. at ¶¶ 31-32.) Simultaneously, in late January 2010, Plaintiffs and UMSD met to revise the 504 plan but Plaintiffs were not aware that it was finalized until March of 2010. (Id. at 33.) Ultimately, Plaintiffs did not approve the revised 504 plan, because Anthony withdrew from the district. (Id.)

The Hearing Officer issued his decision on December 28, 2010. He concluded that: [Anthony] did not qualify as a child with a disability under the IDEIA.*fn7 The District, though significant substantive omissions, failed to have a Section 504 plan in place to address [Anthony]'s ADHD. This resulted in a denial of FAPE under the obligations of Section 504, but the deprivation did not rise to the level where compensatory education is owed as a remedy. Finally, the District did not discriminate against the student as a result of his disability. (Id. at 17-18.) The Hearing Officer issued the following Order:

In accord with the findings of fact and conclusions of law . . . , the student does not qualify as a child with a disability under the IDEIA. The Upper Moreland Township School District has, under the obligations set forth under Section 504, denied the student a FAPE from April 23, 2008 through October 8, 2009. This denial of FAPE, however, does not rise to the level that compensatory education is owed. The Upper Moreland Township School District has not discriminated against the student as a result of his disability. (Id. at 18.) Plaintiffs state in their Complaint that they had in effect "won" the hearing by "proving FAPE," but took issue with the fact that compensatory education was not awarded to them. (Compl. ¶ 10.) The Complaint does not state whether Plaintiffs ever appealed the decision of the Hearing Officer as provided for in the statute, and Plaintiffs have indicated that they are not attempting to appeal the decision in the present action.*fn8 (Mot. to Remand at 1.) However, the Complaint also states "[Plaintiffs] can now show that all of the considerations were not taken into consideration for the compensatory education" which was not awarded by the Hearing Officer. Because Plaintiffs are proceeding pro se, we will construe their pleadings liberally and consider all causes of action which can be fairly gleaned from their pleadings.

Plaintiffs commenced this action by filing a Complaint in the Court of Common Pleas of Montgomery County on February 15, 2011. In Count I of the Complaint, Plaintiffs allege that "The Defendant and its agents have failed to uphold the laws pertaining to students according to the Federal laws of the [ADA] and [§ 504] for the learning disabled, including FAPE . . . After written notice of these violations, Defendant blatantly disregarded any attempts to rectify the situation."*fn9 (Compl. ¶ 69.) In Count II, Plaintiffs claim that Anthony was the victim of reverse discrimination. (Id. at ¶ 71.) In Count III, Plaintiffs complain that UMSD violated the Right to Know Law ("RTKL")*fn10 by failing to provide a safe environment. (Id. at ¶ 73.) In Count IV, Plaintiffs claim that UMSD violated the "[First] Amendment of the United States of America and the Bill of Rights by subjecting Plaintiffs' son to harassment and ridicule as well as mental anguish over the treatment used to question him on numerous occasions." (Id. at 75.) In Count V, Plaintiffs complain that the UMSD's Student Handbook is "over 10 years old, outdated, and followed by [UMSD] on a basis to justify any actions they feel they have to take." (Compl.¶ 77.) Finally, in Count VI, Plaintiffs complain that "the actions by the Defendant were malicious and intentional and were intent on harming [Anthony] both physically and mentally." (Id. at ¶79.)

In terms of relief, Plaintiffs are requesting a combination of monetary damages and injunctive relief.*fn11 (Id. at ¶ 80(a)-(m).) The injunctive relief is aimed at correcting perceived shortcomings of the staff and teachers at UMSD in their dealings with children who suffer from disabilities. (Id.) The requested injunctive relief also requires UMSD to adopt a multitude of internal operating procedures to facilitate its improved handling of children with disabilities. (Id. at ¶ 80(c), (d), (f).) Furthermore, Plaintiffs would have UMSD issue various apologies to Anthony (Id. at ¶ 80(a).) Moreover, the requested injunctive relief all but precludes UMSD from disciplining Anthony by any traditional means. (Id. at ¶ 80(g).) Other injunctive relief seeks to expunge all of Anthony's disciplinary records and all police reports filed against him. (Id. at ¶ 80(j), (l).) Plaintiffs demand monetary damages in excess of $5 million to "cover a potential lifetime of psychiatric treatment, damages for future salaries for not being able to go to a college of choice based on Defendants not expunging medical related record of discipline, and mental and physical damage potential for all of the Plaintiffs." (Id. at ¶ 80(e).) Plaintiffs also seek "[f]ull restitution of any costs and expenses the Plaintiff had for any direct aspects of this case" and "pay for on-going treatment" of Anthony (Id. at ¶¶ 80(b), (k).)

On March 4, 2011, Defendants removed this case here on the basis of 28 U.S.C. § 1331. On March 11, 2011, the Defendants filed a Motion to Dismiss Plaintiffs' Complaint arguing that Plaintiffs had failed to state a claim upon which relief can be granted and that Plaintiffs could not proceed pro se on behalf of Anthony. On March 17, 2011, Plaintiffs filed a "Motion Not to Dismiss and Remand Back to Montgomery County, PA" ("Motion to Remand") claiming that their references to Federal laws were only intended to serve as "background" and that their claims were only premised on state common law tort actions such as malpractice. (Mot. to Remand at 1-3.) Along with the Motion to Remand, Plaintiffs submitted a list of amendments to their Complaint in an attempt to void any reference to the IDEA, ADA, § 504, and FAPE. Despite these amendments, which were not properly submitted, Plaintiffs' causes of action and relief still fell within the jurisdiction of this court as we will discuss more fully below. Accordingly, we denied the Motion to Remand on March 21, 2011, finding that we did have original jurisdiction over the claims in this case.

On April 4, 2011, we held a status conference to discuss whether it was permissible for Plaintiffs to represent Anthony because no Plaintiff is a licensed attorney. We gave Plaintiffs several weeks either to submit a brief on the issue of parental representation of their minor children or to retain counsel. That same day, Plaintiffs submitted a document to the Court stating that they only intended to go forward on claims of negligence, malpractice, and discrimination and that no part of their case rested on federal law save for "the treatment of an ADHD student." (Apr. 4, 2011 Ltr. at 1.) However, Plaintiffs cited to two online articles addressing the rights of parents to litigate pro se on behalf of their children specifically under the IDEA.*fn12 This leads us to believe that Plaintiffs have not completely abandoned their federal claims. Furthermore, some of Plaintiffs' claims are rooted in federal constitutional law despite the amendments submitted with their Motion to Remand.

On May 6, 2011, we received a letter of representation informing us that Plaintiffs had retained counsel. Shortly thereafter, on May 21, 2011, Plaintiffs informed the Court by letter that their counsel could not represent them due to a conflict of interest and that all further attempts to retain counsel were met with unresponsiveness or prohibitively high estimates. At this point, Plaintiffs requested that we appoint counsel to represent them.

We will decide both the Defendants' Motion to Dismiss and Plaintiffs' Motion for Appointment of Counsel together as the resolution of each requires similar analyses.


A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, the Supreme Court stated that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. 544, 555 (2007). Following Twombly, the Third Circuit has explained that the factual allegations in the complaint may not be "so undeveloped that [they do] not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Moreover, "it is no longer sufficient to allege mere elements of a cause of action; instead 'a complaint must allege facts suggestive of [the proscribed] conduct.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 563 n.8). Furthermore, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234 (quoting Twombly, 550 U.S. at 555). "This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Id. (quoting Twombly, 550 U.S. at 556).

Notwithstanding Twombly, the basic tenets of the Rule 12(b)(6) have not changed. The Knit With v. Knitting Fever, Inc., No. 08-4221, 2009 U.S. Dist. LEXIS 30230, at *6 (E.D. Pa. Apr. 8, 2009). The general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515 F.3d at 231. Moreover, when evaluating a motion to dismiss, the court must accept as true all well-pleaded allegations of fact in the plaintiff's complaint, and must view any reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. Id.; Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).


A. Motion to ...

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