The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SUSAN LLOYD, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 20-CV-4070
:
HILTON GARDEN INN, et al., :
Defendants. :
MEMORANDUM OPINION
Schmehl, J. /s/ JLS June 1, 2021
Before the Court is three Motions to Dismiss, and a Motion for Leave to file a Second
Amended Complaint. After a review of the motions and responses thereto, the case shall proceed
with one count of disability discrimination case under Title III of the ADA in which plaintiff
may seek injunctive relief. Accordingly, plaintiff may now file a Second Amended Complaint
against the “Hilton defendants” for this count, and all other counts and parties are dismissed for
the reasons set out below
I. Procedural Posture
Before the Court is defendant Osmose’s Motion to Dismiss, defendants Hilton Garden,
Eagleview, and David Hirsch’s (the “Hilton defendants”) Motion to Dismiss, non-parties Post
and Schell, P.C. and Charles Spitz’s Motion to Dismiss, and plaintiff Susan Lloyd’s Motion for
Leave to File a Second Amended Complaint. Lloyd responded to the three Motions to Dismiss,
and all defendants and the non-parties responded to Lloyd’s Motion for Leave to File a Second
Amended Complaint.
Lloyd argues that she should be permitted to file a Second Amended Complaint to clarify
her positions, and then all the Motions to Dismiss should be rendered moot. She has done this
once before. After receiving Motions to Dismiss on her original complaint, she filed a First
Amended Complaint to add facts and legal conclusions that directly responded to the Motions to
Dismiss, thereby rendering the motions moot. She wishes to do that again.
Her proposed Second Amended Complaint (“SAC”) is over fifty pages long, it pads
additional facts onto her First Amended Complaint, adds legal citations, legal conclusions,
analogizes caselaw, and directly responds to arguments made in defendants’ Motions to Dismiss.
Defendants argue that permitting the SAC would be futile given that the amendment would
change nothing of substance, and would require defendants to brief another Motion to Dismiss
and they have already had to deal with over fifteen motions in which nearly all were without
merit. (See ECF #96, Court Order.) Defendants are correct. Permitting Lloyd to file a SAC
would be futile given her numerous filings, and with an understanding of what she seeks to add
in her SAC.
Accordingly, as Lloyd writes in her SAC, a policy in federal court is to permit
amendments so that cases may be decided on the merits rather than procedural technicalities.
Given that principle, an understanding of the changes that Lloyd seeks to add with her SAC, the
procedural posture of the case, and acknowledging that Lloyd is proceeding pro se, I will address
the defendants’ Motions to Dismiss in light of both plaintiff’s FAC and proposed SAC. I will
draw all reasonable inferences in favor of plaintiff and her claims from both complaints given
that she is proceeding pro se.1
II. Relevant Factual Background
In her First Amended Complaint and proposed Second Amended Complaint, along with
numerous other filings, plaintiff Susan Lloyd alleges the following. Lloyd has been “disabled
since 2006 with multiple problems including severe heart and respiratory medical problems.”
(ECF #74, Proposed Second Amended Complaint, at 8.) Defendant Hilton Garden Inn is a hotel
in Exton, Pennsylvania, where the events of this case took place. Defendant Eagleview Crossing
Hotel LP is the owner and operator of the hotel. Defendant David Hirsch is the manager of the
hotel. Lastly, defendant Osmose Utilities Services Inc. is an electric utility services company
whose employees were staying at the hotel during the event of the case.
Lloyd pleads three issues. First, her hotel neighbors, the Osmose employees, were
disorderly, harassed her, were staying in a handicap accessible room but were not handicapped,
therefore, they deprived her of the full rights of her stay. Second, the hotel refused to move the
Osmose employees to a different hotel room thereby discriminating against Lloyd. Third, the
hotel has ADA deficiencies in the parking lot and other premises which caused Lloyd harm.
Due to poor credit, Lloyd has been unable to obtain an apartment or a home so she has
been staying at hotels and decided to stay at the Hilton Garden Inn. (Id. at 10.) Lloyd complains
that her neighbors in the hotel, the Osmose employees, were “slamming doors,” “smoking
marijuana,” “yelling and screaming,” “smoking cigarettes and drinking alcohol in public areas of
the hotel,” amongst other things. (Id. at 11-12.) When Lloyd confronted them about their
behavior one of them told Lloyd “she is tripping,” and they began “to harass Lloyd and even
stand outside Lloyds window smoking, drinking and harassing Lloyd to intimidate Lloyd.” (Id. at
12.) Lloyd continued to try to get them to settle down, but this only increased the tension and the
number of disturbances. (See id. at 12-29.)
Lloyd asked the hotel on multiple occasions to move the Osmose employees into a
different room because they were disturbing her and they were in handicap accessible rooms but,
according to Lloyd, were not in-fact handicapped. (Id. at 13.) The hotel declined Lloyd’s request
to move the Osmose employees. Although Lloyd states that the hotel “refused to do anything,”
they offered to move her to a different handicap accessible room. (Id. at 15.) Lloyd declined and
was appalled that the hotel would not move the Osmose employees. (See id. at 15-16.) Lloyd
now complains that the hotel discriminated against her by not moving the Osmose employees
because she is a Caucasian female. (Id. at 55-56.)
Ultimately, the hotel asked Lloyd to leave the hotel in the following email: “We respect
that you dislike the employees of the Osmose Company and rather than continue this
interpersonal dispute with them, we believe that it is in all parties best interest and for your own
happiness to seek accommodations elsewhere, as we are also no longer wish for you to continue
to attempt to involve either our employees or other hotel guests in this interpersonal dispute with
these Osmose employees.” (Id. at 19.). Lloyd characterizes this email by writing: “The hotel is
attempting to throw Lloyd out because they do not wish to deal with Lloyds legitimate
complaints.” (Id. at 23.) Lloyd moved out and was “able to find a hotel within reasonable
distance that would match the 60.00 a night rate.” (Id. at 35.)
Lloyd’s third issue is that the hotel has handicap accessibility deficiencies in violation of
Title III of the ADA. During the dispute with the hotel about the Osmose employees, Lloyd
“found out she was not in an ADA compliant room even though she is disabled with a mobility
scooter.” (Id. at 13.) She was “unable to access the bathroom in her room with her mobility
scooter.” (Id.) Additionally, the hotel handicap parking lot is further away from the building than
the regular parking spaces, and there is not a sufficient amount of handicap spaces. (Id. at 14.)
This causes handicap persons, like herself, to “go directly behind other vehicle (who could run
you over) as there is no accessible sidewalks . . . . Then you have to go across the parking lot . . .
go all around a very dangerous curve (another safety hazard) to get to the front of the building as
the back has zero accessible entryways.” (Id.) Thus, Lloyd “was greatly affected by the parking
lot ADA violations as she had to ride her mobility scooter around cars and around a very
dangerous curve in which to access the building.” (Id. at 41.) The deficiencies caused her “great
neck and back pain” and “led [her] to develop anxiety about riding her mobility scooter at the
hotel.” (Id.)
Also in her SAC, Lloyd directly responds to the standing arguments set out in the
pending Motions to Dismiss. (See id. at 38-40.) She states that she would still be living at the
hotel if not for the defendants’ actions, she has a high probability of returning since she lives
within ten miles of the hotel, frequently travels in the area, has many friends in the area, and has
been a “Hilton Honors” member for over twenty years. (Id. at 40.) Therefore, given her injuries
and likelihood of returning, if the alleged ADA violations are not remedied, she will be harmed.
(Id.)
III. Analysis
1. No Claims Exist Against Post and Schell, and Charles Spitz
Non-parties Post and Schell, P.C. and Charles Spitz Motion to Dismiss themselves from
the case, and Lloyd’s position in response is unclear. Plaintiff states that these parties defamed
her, but she did not include them as parties in any of her complaints. Nonetheless, their Motion
to Dismiss is granted because plaintiff admittedly intended to not include these parties and she
has not put forth any valid claims of defamation against them as a matter of law. (See ECF #96,
Court Order.)
2. Disability Discrimination Under Title III of the ADA.
Defendants argue that Lloyd lacks standing to bring a Title III claim under Rule 12(b)(1),
and alternatively, that her Title III claim is insufficient as a matter of law under Rule 12(b)(6).
Lloyd’s Title III claim is based on alleged ADA accessibility deficiencies at the hotel.
a. Lloyd has Standing to Bring a Title III Claim.
Article III standing exists when a plaintiff adequately establishes: (1) an injury in fact
(i.e., a “concrete and particularized” invasion of a “legally protected interest”); (2) causation
(i.e., a “fairly traceable” connection between the alleged injury in fact and the alleged conduct of
the defendant); and (3) redressability (i.e., it is “likely” and not “merely speculative” that the
plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit). Common Cause of
Pennsylvania v. Pennsylvania, 558 F.3d 249, 258 (cleaned up).
Under Title III of the ADA, injunctive relief is the only remedy available. Hollinger v.
Reading Health Sys., 2017 U.S. Dist LEXIS 12871, *9 (E.D. Pa. Jan. 31, 2017). Provided this
remedy, courts are instructed to “look beyond the alleged past violation and consider the
possibility of future violations.” Id. (citation omitted). Lloyd argues in her SAC that the “intent
to return method” establishes that she has standing. (ECF #74, 38-40.)
Under the intent to return method, a plaintiff can show a real and immediate threat of
future injury, and thereby satisfy the first Lujan prong, by demonstrating their intent to return to
the place where the discrimination occurred. Hollinger, 2017 U.S. Dist LEXIS 12871, at *9-10.
To do so, the plaintiff should show “(1) the past discriminatory conduct violates the ADA; (2) it
is reasonable to infer from the allegations that the discriminatory conduct will continue; and (3)
it is reasonable to infer based on past patronage, proximity of the place to the plaintiff’s home,
business connections, and personal connections to the area, that the plaintiff intends to return to
the place in the future.” Id. at *10.
The Hilton defendants only cite to Gill for the proposition that Lloyd lacks standing, and
they do not argue against the veracity of Lloyd’s facts regarding standing. In Gill, the plaintiff
“expresse[d] no intent to return,” and failed to provide “any description of concrete plans.” Gill
v. Abington Mem’l Hosp., 2019 U.S. Dist. LEXIS 10336, at *10 (E.D. Pa. Jan. 23, 2018).
Whereas Lloyd pleads that she would still be living at the hotel if not for the defendants’ actions,
has a high probability of returning since she lives within ten miles of the hotel, frequently travels
in the area, has many friends in the area, and has been a “Hilton Honors” member for over
twenty years. (ECF #74, at 40.)
Given Lloyd’s injuries and likelihood of returning, if the ADA violations are not
remedied, she states that she will be subjected to a real and immediate threat of future injury.
(Id.) Again, defendants do not contest the veracity of these facts, defendants only argue that her
SAC which brings forth her standing arguments is futile. However, her amendment establishes
that she has standing to bring a Title III claim, and as explained below, her Title III claim has
merit so defendant’s futility argument is rejected.
b. Lloyd’s Title III Claim is Sufficient.
Title III of the ADA prohibits discrimination “on the basis of disability in the full and
equal enjoyment of . . . accommodations of any place of public accommodation . . . .” 42 U.S.C.
§ 12182(a). To state a claim of disability discrimination under Title III of the ADA, a plaintiff
must show (1) discrimination on the basis of a disability; (2) in the full and equal enjoyment of
goods, services, facilities, privileges, advantages or accommodations of any place of public
accommodation; (3) by the public accommodation’s owner, lessor or operator.” Mizic v. Pacious,
2017 U.S. Dist. LEXIS 191949, *11 (E.D. Pa. Nov. 20, 2017) (citations omitted).
For example, in Harty v. Burlington, the plaintiff was paralyzed from the waist down, and
encountered various architectural barriers that were not ADA compliant at a clothing store. 2011
U.S. Dist. LEXIS 64228, *2-4 (E.D. Pa. June 16, 2011). The court found the allegations
sufficient as a matter of law because the plaintiff alleged “disabled parking spaces that were too
narrow, non-level spaces and aisles, a missing grab bar in the restroom, a misplaced sink in the
restroom, a prohibitively high hand dryer in the restroom, and overcrowded merchandise aisles.”
Id. at *30.
Lloyd complains that the hotel had numerous architectural barriers that caused her harm.
She complains that the she was “unable to access the bathroom in her room with her mobility
scooter.” (Id.) The hotel’s handicap parking spaces are further away from the building than the
regular parking spaces, and the hotel does not have a sufficient amount of handicap spaces. (Id.)
This causes handicap persons, like herself, to “go directly behind other vehicle (wo could run
you over) as there is no accessible sidewalks . . . . Then you have to go across the parking lot . . .
go all around a very dangerous curve (another safety hazard) to get to the front of the building as
the back has zero accessible entryways.” (Id.) Lloyd’s SAC alleges cognizable violations of Title
III of the ADA against the Hilton defendants, but no claims exist against the Osmose defendants
who are not the owner, operator, or lessor of the hotel.
3. Lloyd’s Title V Claim is Dismissed.
Title V is the anti-retaliation provision of the ADA which requires that a defendant took
an adverse action against a plaintiff at least in part because the plaintiff engaged in protected
conduct under the ADA. Heffley v. Steele, 2019 U.S. Dist. Lexis 177026, at *14, FN10 (W.D. Pa.
Oct. 11, 2019). Lloyd pleads that defendants violated Title V by forcing her to leave the hotel
under threat of arrest if she refused to comply. (ECF #74, at 44.) She does not plead that she was
kicked out of the hotel because she engaged in any protected conduct under the ADA, nor can
she plead anything of that sort. The hotel offered her a different room that was handicap
accessible. Lloyd declined. Then when Lloyd continued to complain, the hotel believed, as they
wrote in their email to Lloyd, that it was in the best interest of all parties for her to no longer stay
at the hotel. The hotel asking Lloyd to leave had nothing to do with Lloyd acting under the ADA
nor her disabilities, therefore, Lloyd’s Title V claim is dismissed.
4. Lloyd’s Section 504 of the 1973 Rehabilitation Act Claim is Dismissed.
Section 504 of the Rehabilitation Act states: “No otherwise qualified individual with a
disability in the United States . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance . . . . 29 U.S.C. section 794(a). To
establish a violation of Section 504, a plaintiff must prove that (1) he or she is handicapped under
the Act; (2) qualified for the program of benefits from which he or she had been excluded; (3)
the program receives federal financial assistance; and (4) he or she was precluded from
participating in the program because of their handicap. Sullivan v. Pittsburgh, 811 F.2d 171, 181-
82 (3d Cir. 1987).
Lloyd pleads that the hotel received or should have received federal financial assistance
through the CARES Act, thus, it falls within section 504 of the Rehabilitation Act. Next, she was
“qualified to stay at the property” but was “excluded the usage of the property due to her
disability.” (ECF #74 at 45-46.) Lloyd does not exactly plead the programs, activities, or services
that she was excluded from or denied the benefits from based upon her disability. Nevertheless,
as described in the previous section, the hotel offered Lloyd a new handicap accessible room
given her complaints about the Osmose employees. She declined. After she continued to
complain further, the hotel asked her to leave the hotel. Lloyd fails to plead that she was asked to
leave because of her disability, therefore, her Rehabilitation Act claim is dismissed.
5. Lloyd’s NIED and IIED Claims are Dismissed.
Lloyd claims she suffers from negligent infliction of emotional distress (NIED) and
intentional infliction of emotional distress (IIED) because the Hilton defendants “allowed
Osmose employees to continue to harass Lloyd, stand directly outside Lloyds window and harass
Lloyd and also to continue to violate the Hotel Rules in regards to the smoke free policies and
the noise regulations to not disturb other guests.” (ECF #74, at 50.)
Under Pennsylvania law, to prove a NIED claim when the defendant had a contractual or
fiduciary duty toward the plaintiff, the plaintiff must prove (1) the defendant owed a duty of care
to the plaintiff; (2) the defendant breached that duty; (3) the breach resulted in injury to the
plaintiff; and (4) the plaintiff suffered an actual loss or damage. Wilder v. United States, 230 F.
Supp. 2d 648, 653-54 (E.D. Pa. 2002). The Pennsylvania Supreme Court explained that “NIED is
not available in garden-variety ‘breach of contractual or fiduciary duty’ cases, but only in those
cases where there exists a special relationship where it is foreseeable that a breach of the relevant
duty would result in emotional harm so extreme that a reasonable person should not be expected
to endure the resulting distress.” Toney v. Chester Cnty. Hosp., 614 Pa. 98, 100 (2011).
Therefore, NIED in this scenario is limited “to preexisting relationships involving duties that
obviously and objectively hold the potential of deep emotional harm in the event of beach. Id. at
117.
Lloyd’s NIED claim is insufficient because Osmose did not breach any duty owed to
Lloyd, and the Hilton defendants’ actions did not have potential to cause deep emotional harm as
required under Pennsylvania law. Lloyd claims that the Osmose employees harassed her, Hilton
failed to move them or ensure that they complied with hotel rules, and Hilton kicked her out of
the hotel. While the Hilton defendants could arguably be said to have owed Lloyd the duty of
ensuring that other guests follow the rules, their lack of enforcement or the Osmose employees
breaking rules nonetheless could not have foreseeably caused deep emotional harm to Lloyd.
Toney, 614 Pa. at 117. A NIED claim requires extreme conduct and foreseeability that such
conduct would cause deep emotional harm, which this does not.
Under Pennsylvania law, to prove an IIED claim a plaintiff must show (1) extreme and
outrageous conduct; (2) the conduct was intentional or reckless; (3) the conduct caused
emotional distress; and (4) the plaintiff’s distress is severe. Doe v. Trustees of the Univ. of
Pennsylvania, 270 F. Supp. 3d 799, 826-27 (E.D. Pa. 2017) (cleaned up). “[D]iscrimination
alone does not meet the extreme and outrageous standard,” the conduct must be “the most clearly
desperate and ultra extreme conduct.” Id. at 827 (citations omitted). Further, it is for the court to
“determine initially whether the conduct in issue can be regarded as so extreme and outrageous
so at to permit recovery.” Harris v. Dollar Gen. Corp., 2016 U.S. Dist. LEXIS 137942, *15
(E.D. Pa. Oct. 3, 2016).
Lloyd’s IIED claim is based on the same facts as her NIED claim and fails for the same
reasons. The Osmose employees’ conduct and the Hilton defendants’ actions were not “extreme
and outrageous.” Osmose employees were allegedly being disruptive in the hotel hallways, and
the Hilton defendants failed to stop them. This simply cannot support an IIED claim.
6. Lloyd’s Discrimination Claim Under 42 U.S.C. Section 1981 is Dismissed.
Lloyd’s discrimination claim under 42 U.S.C. section 1981 is based on the Hilton
defendants’ actions of not moving the Osmose employees to a different hotel room after Lloyd
made such a request. Since they did not move the Osmose employees, Lloyd complains that she
was discriminated against for being a Caucasian female. (ECF #74, Lloyd’s Proposed SAC, at
55-56.) (“The Osmose Employees who harassed Lloyd are African American males. Lloyd is
Caucasian female.”)
Under 42 U.S.C. section 1981, a plaintiff must show that a defendant intentionally
discriminated against him or her “because of race” in a contractual relationship. Katchur v.
Thomas Jefferson Univ., 354 F. Supp. 3d 655, 668 (E.D. Pa. 2019) (cleaned up). A plaintiff must
show that he or she “was deprived of a protected right and then establish causation.” Comcast
Corp. v. Nat’l Assoc. of African American-Owned Media, 140 S.Ct. 1009, 1018 (2020).
There is no suggestion of racial discrimination in Lloyd’s pleadings. Lloyd had no right
to have the Osmose employees moved, nor was any part of Lloyd’s and the hotel’s contractual
relationship violated when the hotel chose to not move the Osmose employees to a different
hotel room. Lloyd cannot maintain this claim simply because she pleads that she is a Caucasian
woman, the Osmose employees are African American, and no further evidence. Lloyd’s section
1981 claim is dismissed.
7. Lloyd’s Discrimination Claim Under 42 U.S.C. Section 2000a is Dismissed.
Section 2000a prohibits discrimination in places of public accommodation “on the
ground of race.” 42 U.S.C. § 2000a. Argentina v. Gillette, 2018 U.S. Dist. LEXIS 14469, *7-8
(E.D. Pa. Jan. 30, 2018). Like her section 1981 claim above, Lloyd’s section 2000a public
accommodation claim is based on the defendants’ actions of not moving the Osmose employees
to a different hotel room, and since they did not move the Osmose employees, Lloyd complains
that she was discriminated against for being a Caucasian female. (ECF #74, at 55-56.) For the
same reasons set out in the previous section, Lloyd’s section 2000a claim is dismissed.
8. Lloyd’s Public Accommodations Claim Under the Pennsylvania Human Relations Act is
Dismissed.
Lloyd argues that defendants violated the Pennsylvania Human Relations Act for
“refusing [her] reasonable accommodation request, having ADA violations in regards to parking
and entrance accessibility, retaliation against [her] and forcing her to leave with the threat of
unlawful arrest, along with harassing Lloyd over the use of her service dogs.” (ECF #74, at 58.)
Under the PHRA, a party must first bring a claim to the Pennsylvania Human Rights
Commission within 180 days of the alleged act. See Bethea v. Michael’s Family Rest & Diner,
2001 U.S. Dist. LEXIS 8665, *11-12 (E.D. Pa. June 26, 2001). Lloyd failed this administrative
requirement, therefore, her PHRA claim is dismissed without prejudice.
9. Lloyd’s Pennsylvania Innkeeper Act Claim is Dismissed.
Lloyd claims defendants violated the Pennsylvania Innkeepers Act of 1996 because they
forced her to leave under threat of arrest despite her “legitimate complaints,” without right to do
so, and they cannot say that she was disorderly or brought something onto the property that may
be dangerous. (ECF #74, at 29, 57.) 48 Pa.C.S. section 1311 provides civil liability if a
hotelkeeper denies accommodations, facilities or privileges “based upon the factors under section
3 of the [PHRA].’ 42 Pa.C.S. § 1311(b)(2). Section three of the PHRA prohibits discrimination
of a person obtaining any public accommodation. 43 P.S. § 953. Lloyd’s claim that the
defendants forced her to leave under threat of arrest is not a viable claim under the Pennsylvania
Innkeeper Act. She does not argue, nor can she, that she was forced to leave the hotel because of
her race, gender, disability, or otherwise. She was asked to leave after her complaints and
disputes with other hotel guests continued and escalated to the point where the hotel believed
that it was in their best interest, along with everyone else’s best interest, that Lloyd left the hotel.
Accordingly, Lloyd’s Pennsylvania Innkeeper’s Act is dismissed.
10. Sanctions
Defendants ask that the Court impose sanctions and award attorney’s fees for having to
defend Lloyd’s frivolous filings. District Courts have substantial discretion in imposing
sanctions, and they are not appropriate at this time. While Lloyd has submitted numerous filings
that may not have any merit, she does has a valid claim that needs adjudication. As the case
proceeds, the Court will keep defendants’ request for sanctions and fees in mind, and if it later
becomes appropriate based upon filings or otherwise, the Court may impose sanctions at that
time.
IV. Conclusion
For the reasons set out above, Lloyd may now file a Second Amended Complaint under
Title III of the ADA against the Hilton defendants. Osmose’s Motion to Dismiss is granted, and
the non-parties’ Motion to Dismiss is granted.
1 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim
satisfies the plausibility standard when the facts alleged “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Burtch v. Millberg Factors,
Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility
standard is not “akin to a ‘probability requirement,’” there nevertheless must be more than a
“sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 556). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's
liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).
The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion:
(1) “it must ‘tak[e] note of the elements [the] plaintiff must plead to state a claim;’” (2) “it should
identify allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth;’” and, (3) “[w]hen there are well-pleaded factual allegations, [the] court
should assume their veracity and then determine whether they plausibly give rise to an
entitlement for relief.” Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016)
(quoting Iqbal, 556 U.S. at 675, 679); see also Burtch, 662 F.3d at 221; Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir.
2010).
Our analysis changes when a party represents itself pro se. The Supreme Court requires
us to “liberally construe” a pro se document. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro
se complaint, “however inartfully pleaded,” must be held to “less stringent standards than formal
pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief. Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Our Court of Appeals
instructs us to permit a curative amendment if a complaint is vulnerable to dismissal for failure to
state a claim, unless an amendment would be inequitable or futile. Grayson v. Mayview State
Hosp., 293 F.3d 103, 108 (3d Cir. 2002).