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M.S., Minor Child Through v. Marple Newtown School

September 4, 2012

M.S., MINOR CHILD THROUGH NEXT BEST FRIEND MARISALA SHIHADEH, ET AL.
v.
MARPLE NEWTOWN SCHOOL DISTRICT, ET AL.



The opinion of the court was delivered by: O'neill, J.

MEMORANDUM

Plaintiffs M.S. and her parents sued defendants Marple Newtown School District and the Marple Newtown School District Board of Directors, alleging violations of the Rehabilitation Act and the Americans with Disabilities Act. On February 14, 2012 I granted defendants' motion to dismiss plaintiffs' complaint but granted plaintiffs leave to amend. Plaintiffs subsequently filed an amended complaint and defendants again move to dismiss. For the following reasons I will deny defendants' motion.

BACKGROUND

The amended complaint substantially repeats the factual allegations in the original complaint and for clarity's sake I summarize those allegations here. M.S. attended middle school in the Marple Newtown School District. Am. Compl. ¶ 7. In November 2007, while M.S. was in the eighth grade, M.S.'s sister was molested by B.C., a minor who lived near M.S.'s family. Id. ¶ 8. This incident traumatized M.S. Id. ¶ 14. B.C. was arrested in June 2008 and convicted two months later. Id. ¶ 11. The families of M.S. and B.C. continued to live near each other and tensions between them rose "to a fever pitch." Id. ¶ 12.

M.S. started ninth grade at the Marple Newtown High School in September 2008. Id.

¶ 16. M.S.'s mother learned that B.C. would be attending the same school as M.S. and that B.C.'s brother, J.C., would be in the same class as M.S. Id. ¶ 17. The presence of B.C. and J.C. reminded M.S. of her sister's molestation and of the animosity between the two families. Id. ¶15. Additionally, J.C. harassed M.S. by "staring, leering" and engaging in other disruptive behavior. Id. ¶ 21. B.C. harassed M.S. by "point[ing] cameras at" her in school. Id. M.S.'s academic performance declined and she experienced disciplinary problems at school. Id. ¶ 24.

Prior to the start of ninth grade, M.S.'s mother attempted to persuade school officials to separate M.S. from J.C. and B.C. Id. ¶¶ 22. She also related her concerns to a local newspaper, who published a story on the situation in April 2009. Id. Despite these efforts, when M.S. started the tenth grade, she was again placed in the same class as J.C. Id. ¶ 26. She continued to experience academic and disciplinary problems. Id. ¶ 27. A psychotherapist diagnosed M.S. with "anxiety disorder and post-traumatic stress syndrome" and recommended to the School District's guidance counselor that M.S. be placed in a different class. Id. ¶¶ 28-29. The School District ignored this recommendation and kept M.S. and J.C. in the same class. Id. ¶ 30.

M.S. started the eleventh grade in September of 2010 and was again assigned to the same class as J.C. Id. ¶¶ 31-32. "[T]o escape classes with J.C.," M.S. enrolled in a vocational program that took her outside the high school building three periods per day. Id. ¶¶ 33-34. But that program "did not work out well and M.S. returned to regular classes in November, 2010." Id. ¶ 33. M.S.'s mother continued trying to convince the School District to separate M.S. and J.C. but to no avail. Id. ¶ 35. M.S.'s physician recommended that M.S. receive homebound instruction in order to avoid J.C. Id. ¶ 36. On December 20, 2010, M.S. "became hysterical because of the situation" and at that point the School District agreed to provide homebound instruction starting the following month. Id. ¶ 37.

At some unspecified time, M.S.'s mother filed discrimination and harassment complaints with the Marple Newtown Board of School Directors. Id. ¶ 38. The Board referred the complaints to the Delaware County Solicitor, who hired an outside law firm to investigate the matter. Id. ¶ 39. The Solicitor's wife worked at that firm and "conducted . . . or, alternatively played a major role in th[e] investigation." Id. ¶ 40. Plaintiffs declined to be interviewed because they did not believe the investigation would be "impartial and objective." Id. ¶ 41. J.C. and B.C. also refused to be interviewed. Id. ¶ 41.1. The law firm subsequently issued a report that cleared the School District and the Board of any wrongdoing. Id. ¶ 42. The firm's report, which casts M.S.'s mother "in a bad light," was sent to J.C., B.C. and certain unidentified individuals "who had no need to know about" the details of the investigation. Id. ¶ 56.

The amended complaint contains three causes of action. The first is for "causing/aggravating a disability and/or failure to accommodate same" in violation of Section 504 of the RA, 29 U.S.C. § 794. Id. ¶¶ 43-52. The second is for retaliation in violation of the same statute. Id. ¶¶ 53-61. The third alleges violation of Section 202 of the ADA, 42 U.S.C. § 12132. Plaintiffs seek damages, attorney fees and costs and expert witness fees and costs. Id. ¶¶ 52, 61 & 65.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008), quoting Twombly, 550 U.S. at 556. The Court of Appeals has made clear that after Ashcroft v. Iqbal, 129 S. Ct. 1937, 1955 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now 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 Iqbal, 129 S. Ct. at 1949. The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11, quoting Iqbal, 129 S. Ct. at 1950. The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id., citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S. Ct. at 1949.

DISCUSSION

I. Discrimination ...


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