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Cosme Cesar Ecudero-Aviles, et al v. Milton Hershey School

January 13, 2012

COSME CESAR ECUDERO-AVILES, ET AL.,
PLAINTIFFS
v.
MILTON HERSHEY SCHOOL, DEFENDANT



The opinion of the court was delivered by: (Chief Judge Kane)

(Magistrate Judge Carlson)

MEMORANDUM

Before the Court is Magistrate Judge Carlson's December 5, 2011, Report and Recommendation, recommending that Plaintiffs' complaint be dismissed with prejudice. (Doc. No. 8.) Plaintiffs filed objections to the Report and Recommendation on December 22, 2011. (Doc. No. 9.) For the reasons that follow, the Court will adopt the Report and Recommendation in part, and will dismiss the amended complaint with prejudice.

I. BACKGROUND

On October 7, 2011, Cosme Cesar Escudero-Aviles ("Plaintiff Cesar") and his mother, Sylvia Aviles-Escudero ("Plaintiff Sylvia"), filed a complaint with the Court, alleging that a number of state torts were committed by Defendant Milton HersheySchool in connection with the May 2009 expulsion of Plaintiff Cesar, stemming from an altercation between Plaintiff Cesar and another student. (Doc. No. 1.) Magistrate Judge Carlson recommended that the complaint be dismissed without prejudice, as it only articulated state law claims and was time-barred. (Doc. No. 4.) The Court adopted the Report and Recommendation, dismissing the complaint, but permitting Plaintiffs to file an amended complaint. (Doc. No. 5.) On November 25, 2011, Plaintiffs filed an amended complaint, adding four federal causes of action, consisting of three claims brought pursuant to 42 U.S.C. § 1983 and one claim brought pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"). (Doc. No. 6.) The amended complaint also alleged state-law causes of action for negligence, fraudulent misrepresentation, breach of fiduciary duty, unlawful imprisonment, and negligent infliction of emotional distress. (Id.) On December 5, 2011, Magistrate Judge Carlson recommended that the amended complaint be dismissed with prejudice. (Doc. No. 8.) On December 22, 2011, Plaintiffs filed a set of objections to the Report and Recommendation. (Doc. No. 9.)

II. STANDARD OF REVIEW

The Magistrate Act, 28 U.S.C. § 636, and Federal Rule of Civil Procedure 72(b), provide that any party may file written objections to a magistrate's proposed findings and recommendations. In deciding whether to accept, reject, or modify the Report and Recommendation, the Court is to make a de novo determination of those portions of the Report and Recommendation to which objection is made. 28 U.S.C. § 636(b)(1).

A court must review the complaint of a plaintiff seeking to proceed in forma pauperis prior to service of process under 28 U.S.C. § 1915(e). If the court determines that an action fails to state a claim on which relief may be granted, dismissal of that claim is required. 28 U.S.C. § 1915(e)(2)(B) (ii); see also id. § 1915A(b)(1). The standard of review for failure to state a claim in this context is the same as the standard governing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Grayson v. Mayview State Hosp., 293 F.3d 103, 110 (3d Cir. 2002). Thus, dismissal is proper when the defendants are entitled to judgment as a matter of law. See Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990). To avoid dismissal, the complaint must contain allegations sufficient to "raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Essentially, a plaintiff must "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted). Put otherwise, a civil complaint must "set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009)). A court, however, "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).

III. DISCUSSION

In his Report and Recommendation, Magistrate Judge Carlson recommended that the amended complaint be dismissed with prejudice, as Plaintiffs had failed to state a federal cause of action, and as the action was time barred. (Doc. No. 8.) On December 22, 2011, Plaintiffs filed objections to the Report and Recommendation. (Doc. No. 9.) First, Plaintiffs argue that Plaintiff Cesar was a minor at the time of the incident, thereby tolling the statute of limitations. (Id. ¶ 1.) Next, Plaintiffs contend that the Report and Recommendation "failed to address the allegations in the core averments of state action." (Id. ¶ 2.) Plaintiffs also request counsel, or to be "given sufficient time to properly research formats, legal terminology, and sufficiently allege and articulate the state action in this case." (Id. ¶ 3.) Finally, Plaintiffs address their request for unliquidated damages, stating that they are "in no way, shape, or form seeking a ridiculous amount of damages" and asking the Court for a chance to amend their request for unliquidated damages. (Id. ¶ 4.) The Court will consider each of Plaintiffs' objections in turn.

A. Statute of Limitations

In his Report and Recommendation, Magistrate Judge Carlson recommended that Plaintiffs' case be dismissed as time-barred. (Doc. No. 8 at 12-16.) Magistrate Judge Carlson explained that Plaintiff Cesar's expulsion, which allegedly occurred in May of 2009, occurred more than two years before Plaintiffs filed their complaint, on October 7, 2011. (Id. at 14.) In response, Plaintiffs argue that the case is not time-barred, as the statute of limitations was tolled until Plaintiff Cesar turned 18, which Plaintiffs allege occurred less than two years before October 7, 2011. (Doc. No. 9 ¶ 1.) The Court agrees that Plaintiff Cesar's claims in the amended complaint should not be dismissed as time-barred.

Civil rights claims in Pennsylvania are subject to a two-year statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 276 (1985) (holding that for section 1983 actions, courts should apply the state statute of limitations applicable to personal injury torts); 42 Pa. Cons. Stat. § 5524. However, "[i]f an individual entitled to bring a civil action is an unemancipated minor at the time the cause of action accrues, the period of minority shall not be deemed a portion of the time period within which the action must be commenced." 42 Pa. Cons. Stat. § 5533. Instead, the statute of limitations does not start to accrue until the individual turns eighteen. Id.

Here, Plaintiffs alleged that Plaintiff Cesar's expulsion, which is the event forming the basis of this lawsuit, occurred in May of 2009. (Doc. No. 6 ¶ 76.) Plaintiffs also alleged that, at the time of all of the events in the complaint, Plaintiff Cesar was a minor. (Id. ¶ 2.) In their objections, Plaintiffs alleged that on October 7, 2011, the date on which Plaintiffs commenced this action, Plaintiff Cesar had not yet reached the age of twenty. Thus, the Court is satisfied that Plaintiffs have alleged sufficient facts to avoid dismissal of Plaintiff Cesar's claims in the amended complaint as ...


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