United States District Court, M.D. Pennsylvania
D. Mariani United States District Judge.
NOW, THIS 7th DAY OF FEBRUARY, 2017, upon de
novo review of Magistrate Judge Saporito's
Report & Recommendation, (Doc. 199), IT IS HEREBY ORDERED
Report & Recommendation ("R&R"), (Doc.
199), is ADOPTED for the reasons discussed therein, except as
Plaintiff's Objections, (Doc. 201), are OVERRULED.
Plaintiffs relevant objections concern whether the continuing
violations doctrine is applicable and whether there were any
grounds for tolling the statute of limitations. The R&R
adequately addresses why the continuing violations doctrine
does not apply. (Doc. 199 at 18-19). With that in mind, the
last affirmative act that could be the basis for Plaintiffs
claims is the passage of the six-attempt limit
rule, which accrued, at the latest, when it took effect for
Plaintiff on January 1, 2013. The Defendants' denial of
Plaintiffs request for a waiver is not an independent act of
discrimination, but merely Plaintiffs attempt to remedy the
act of alleged discrimination that had already occurred.
See Delaware State College v. Ricks, 449 U.S. 250,
260-61, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). Therefore, the
denial of the waiver request is not the date that the claims
accrued as Plaintiff suggests. As for tolling, Plaintiff
argues two points: (1) Plaintiffs mental status should allow
for tolling because he was incapable of rational thought or
deliberate decision making due to his bipolar disorder until
April of 2014; (2) Defendants1 statement that Plaintiffs
request for accommodations was reviewed by
"experts" was deceptive and prohibited him from
discovering his claims. (Doc. 201 at 11, 14-18). Both
arguments are without merit. First, while the Court does not
doubt the seriousness of Plaintiffs bipolar disorder,
Plaintiffs mental illness does not rise to the level of
extraordinary as required to toll the statute of limitations
on the basis of mental illness. See Kach v. Hose,
589 F.3d 626, 643-45 (3d Cir. 2009). During the time of
Plaintiffs disability, Plaintiff was able to finish medical
school, apply for the required examinations for his medical
license on multiple occasions, and apply for other jobs.
Second, even assuming the use of the word "experts"
by Defendants was deceptive and wrongful, Plaintiff was aware
that he was denied the accommodations he believed he was
entitled to under the law.
Defendants' Motion for Summary Judgment, (Doc. 105), in
light of the fact that it was filed a day before Plaintiff
filed his Second Amended Complaint, (Doc. 107), is DISMISSED
Plaintiffs Obstruction of Justice claim, (Doc. 107 at
¶¶ 25-36), is DISMISSED WITH PREJUDICE as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
Plaintiff's Breach of Contract claim, (Doc. 107 at ¶
24), is DISMISSED WITH PREJUDICE for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
Defendants' Amended Motion for Summary Judgment, (Doc.
126), is GRANTED with respect to all of Plaintiff's
remaining claims. Judgment is hereby entered IN FAVOR OF
Defendants and AGAINST Plaintiff on these claims.
Clerk of the Court is directed to CLOSE this case.
 Plaintiffs claim of unfair and
deceptive practices under the Pennsylvania's Unfair Trade
Practices and Consumer Protection Law, 73 P.S. §§
201-1 et seq., which has a six year statute of
limitations, seems to be entirely based on the
"deceptive conduct" of Defendants use of the words
"experts" to describe a non-licensed psychologist
who reviewed Plaintiff request for testing accommodations in
2006. This claim would therefore be time-bared in
 Plaintiff argues that given his status
as a pro se litigant, he should be allowed to amend
this claim. (Doc. 201 at 10). The Court, however, finds that
because there are no facts to suggest the presence of a
contract between Plaintiff and Defendants, any such attempt
to amend this claim would be futile. Therefore, the Court
does not grant leave to amend. See Cowell v. Palmer
Twp., 263 F.3d 286, 296 (3d Cir. 2001) ("[L]eave to
amend need not be granted when amending the complaint would
clearly be futile").
 The remaining claims are (1)
discrimination in violation of Title III of the Americans
with Disabilities Act, 42 U.S.C. § 12189, (Doc. 107 at
¶¶ 16-23); (2) unfair and deceptive practices under
the Pennsylvania's Unfair Trade Practices and Consumer
Protection Law, 73 P.S. §§ 201-1 et seq.,
(Doc. 107 at ¶¶ 3741); (3) negligent or intentional
infliction of emotional distress, (Doc. 107 at ¶¶
42-44); (4) tortious interference with a prospective
employment relationship, (Doc. 107 at ¶¶ 45-53);
(5) fraudulent misrepresentation, (Doc. 107 ...