Rogers v. Pocono Mountain East High School

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

TAJ K. ROGERS,

Plaintiff, CIVIL ACTION NO. 3:21-CV-02072

v.

(MEHALCHICK, M.J.)

POCONO MOUNTAIN EAST HIGH

SCHOOL, et al.,

Defendants.

MEMORANDUM

Presently before the Court is a motion to dismiss for failure to state a claim brought by

Defendants Pocono Mountain School District (“School District”); Pocono Mountain East

High School (“High School”);1 Dr. Elizabeth Robison (“Robison”), individually and in her

capacity as Superintendent at Pocono Mountain School District; Dr. Marybeth Gustafson

(“Gustafson”), individually and in her capacity as Assistant Superintendent of Special

Education at Pocono Mountain School District; Kevin Lesoine (“Lesoine”), individually and

in his capacity as a teacher at Pocono Mountain East High School; Daniel Higgins

(“Higgins”), individually and in his capacity as the Principal of Pocono Mountain East High

1 Defendants argue that the High School is inappropriately named as a defendant and

should be dismissed with prejudice. (Doc. 9, at 8 n.1). Under the Pennsylvania Public School

Code, “school districts in this Commonwealth shall be, and hereby are vested as, bodies

corporate, with all necessary power to enable them to carry out the provisions of this act,”

including the power to sue and be sued. 24 P.S. § 2-211. Individual schools, like school boards

of directors, are excluded from the definition of “political subdivision,” which is limited to

the following: “any county, city, borough, incorporated town, township, school district,

vocational school district, country institution district or municipal or other local authority.”

Pennsylvania Rule of Civil Procedure 76. “Because an individual public school is not included

in the Rule 76 definition of ‘political subdivision,’ there does not appear to be any authority

which would support a suit against the [High School].” C.T. by Smith v. Delaplaine McDaniel

Sch., No. 17-CV-4463, 2018 WL 1072385, at *4 (E.D. Pa. Feb. 26, 2018); see Pennsylvania

Rule of Civil Procedure 2102(b). Rogers has not offered any argument to the contrary.

Therefore, the claims against the High School will be dismissed with prejudice.

School; and Jerusalem Strickland (“Strickland”), individually and in his capacity as a staff

member of Pocono Mountain East High School (collectively, “Defendants”). (Doc. 8). On

December 9, 2021, Plaintiff Taj K. Rogers (“Rogers”) initiated this action by filing the

complaint pursuant to the Americans with Disabilities Act (“ADA”), the Individuals with

Disabilities Education Act (“IDEA”), 42 U.S.C. § 1983, and various state law claims. (Doc.

1). The parties have consented to proceed before the undersigned United States Magistrate

Judge pursuant to Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). (Doc. 7). For the following

reasons, Defendants’ motion to dismiss shall be GRANTED. (Doc. 8).

I. BACKGROUND AND PROCEDURAL HISTORY

On December 9, 2021, Rogers filed the complaint against Defendants. (Doc. 1). In the

complaint, Rogers alleges that he is a nineteen-year-old disabled individual with special needs

who has been diagnosed with Conduct Disorder, Attention Deficient/Hyperactivity Disorder

(“ADHD”), and Opposition Defiance Disorder. (Doc. 1, ¶¶ 7, 21). Rogers is a former student

of the High School who is eligible for special education services as provided by the IDEA.

(Doc. 1, ¶¶ 23, 25). Rogers was identified as having a specific learning disability in reading

fluency and written expression, and received services in an emotional support classroom.

(Doc. 1, ¶ 24). Rogers was also the recipient of an Individualized Education Program (“IEP”),

which required Defendant Strickland, a staff member of the School District, to escort Rogers

in all areas at the High School and to transition Rogers to his therapeutic emotional support

classroom. (Doc. 1, ¶¶ 32-39). In addition, the School District allowed Rogers to have earbud-

style headphones as an accommodation based on his disabilities. (Doc. 1, ¶ 47).

The events giving rise to this action follow. On June 14, 2018, Rogers arrived at the

High School and did not see Strickland. (Doc. 1, ¶¶ 40-41). A staff member instructed Rogers

to proceed to his emotional support classroom, and he thereafter did so with another

classmate. (Doc. 1, ¶¶ 43-44). While walking in the hallway, Rogers was wearing his earbud-

style headphones when Lesoine approached Rogers and asked him to remove his

headphones. (Doc. 1, ¶¶ 50-63). Rogers did not know that Lesoine was a teacher and ignored

his request. (Doc. 1, ¶¶ 53-63). Lesoine continued to follow Rogers and again requested that

Rogers remove the headphones. (Doc. 1, ¶¶ 53-63). After Rogers refused to remove his

headphones, a verbal and physical altercation ensued. (Doc. 1, ¶ 66). As a result of that

altercation, Rogers was charged with aggravated assault and related offenses. (Doc. 1, ¶¶ 77-

78).

Rogers’s complaint raises nine state and federal claims related to alleged constitutional

violations by Defendants: (1) Count I – Violation of ADA against all Defendants; (2) Count

II – Violation of IDEA, 20 U.S.C. § 1440, et seq., against all Defendants; (3) Count III – 42

U.S.C. § 1983, Violation of Fourth and Fourteenth Amendments against all Defendants; (4)

Count IV – 42 U.S.C. § 1983, Equal Protection against all Defendants; (5) Count V – Monell

claim under 42 U.S.C. § 1983 against Pocono Mountain School District; (6) Count VI –

Intentional Infliction of Emotional Distress (“IIED”) against all Defendants; (7) Count VII –

Breach of Fiduciary Duty against all Defendants; (8) Count VIII – Negligence against all

Defendants; (9) Count IX – Violation of Pennsylvania Human Relations Act (“PHRA”)

against all Defendants. (Doc. 1, at 13-38). For relief, Rogers requests compensatory and

punitive damages, as well as attorney’s fees. (Doc. 1, at 38).

On February 11, 2022, Defendants filed the motion to dismiss, as well as a brief in

support. (Doc. 8; Doc. 9). Rogers filed a brief in opposition on March 28, 2022. (Doc. 15).

The motion to dismiss has been fully briefed and is ripe for disposition. (Doc. 8; Doc. 9; Doc.

15).

II. MOTION TO DISMISS STANDARDS

A. RULE 12(B)(1)

Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). “When a party

moves to dismiss under more than one Rule 12 ground, the Court must first consider the Rule

12(b)(1) challenge, ‘because if it must dismiss the complaint for lack of subject matter

jurisdiction, all other defenses and objections become moot.’ ” A.D. v. Haddon Heights Bd. of

Educ., 90 F.Supp.3d 326, 334 (D.N.J. 2015), aff'd, 833 F.3d 389 (3d Cir. 2016) (citation

omitted). Here, Defendants argue that Rogers failed to exhaust administrative remedies with

respect to Counts I, II, IV, and IX. (Doc. 9, at 12). “A motion to dismiss under Rule 12(b)(1)

challenges the jurisdiction of the court to address the merits of the plaintiff’s complaint.” Vieth

v. Pennsylvania, 188 F. Supp. 2d 532, 537 (M.D. Pa. 2002). The failure to exhaust

administrative remedies is a jurisdictional issue and the appropriate device to raise this issue

is a motion to dismiss under Rule 12(b)(1). See Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d

266, 271 (3d Cir. 2014). A Rule 12(b)(1) dismissal is not a judgment on the merits, but only a

determination that the court lacks the authority to hear the case. Swope v. Central York Sch.

Dist., 796 F. Supp. 2d 592, 599 (M.D. Pa. 2011).

Rule 12(b)(1) challenges may be “facial” or “factual.” See Mortensen v. First Fed. Sav. &

Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). A facial attack challenges whether jurisdiction

has been properly pled and requires the court to “only consider the allegations of the

complaint and documents referenced therein and attached thereto, in the light most favorable

to the plaintiff.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing

Mortensen, 549 F.2d at 891.) Conversely, when a defendant sets forth a factual attack on

subject-matter jurisdiction, “the Court is free to weigh the evidence and satisfy itself whether

it has power to hear the case. . . ‘no presumptive truthfulness attaches to plaintiff's allegations,

and the existence of disputed material facts will not preclude the trial court from evaluating

for itself the merits of jurisdictional claims.’ ” Carpet Group Int'l v. Oriental Rug Importers Ass'n,

Inc., 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen, 549 F.2d at 891).

In this case, Defendants challenge Rogers’s alleged failure to exhaust administrate

remedies and, thus, present a factual attack on subject-matter jurisdiction. See Rohrbaugh by &

through Rohrbaugh v. Lincoln Intermediate Unit, 255 F.Supp.3d 589, 592 (M.D. Pa. 2017). As a

result, the Court will weigh the allegations in the complaint without presuming truthfulness

in order to determine the merits of the jurisdictional claim.

B. RULE 12(B)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). “Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-

pleaded allegations in the complaint are true and viewing them in the light most favorable to

the plaintiff, a court finds the plaintiff’s claims lack facial plausibility.” Warren Gen. Hosp. v.

Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,

555-56 (2007)). Although a court must accept the factual allegations in a complaint as true, it

is not compelled to accept “unsupported conclusions and unwarranted inferences, or a legal

conclusion couched as a factual allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir.

2013) (quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Additionally, a court

need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated

Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).

In Ashcroft v. Iqbal, the United States Supreme Court held that, when considering a

motion to dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” 556 U.S. 662, 679 (2009).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678. “Factual allegations must be enough to

raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In evaluating a

motion to dismiss, a court may consider the facts alleged on the face of the complaint, as well

as “documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

III. DISCUSSION

Defendants move to dismiss the claims raised in Rogers’s complaint pursuant to Rule

12(b)(1) and (6). (Doc. 8). Specifically, Defendants argue that (1) the Court lacks subject-

matter jurisdiction over Counts I, II, IV, and IX; (2) Rogers fails to state a cause of action

under the ADA; (3) Rogers fails to establish Monell liability under 42 U.S.C. § 1983; (4)

Counts VI, VII, VIII, and IX are barred by the Political Subdivision Tort Claims Act; (5)

Rogers is not entitled to punitive damages; and (6) individual defendants are shielded by the

doctrine of qualified immunity. (Doc. 9).

A. COUNTS I, II, IV, AND IX – IDEA-BASED CLAIMS

Defendants argue that “[t]he Court lacks subject-matter jurisdiction over Counts I, II,

IV, and IX because [Rogers] failed to exhaust his administrative remedies available to him

under the IDEA.” (Doc. 9, at 12). Specifically, Defendants assert that Counts I, II, IV, and

IX “are based on [Rogers]’s specific educational accommodations and, thus, these are FAPE-

based claims required to be exhausted under the IDEA that must be dismissed.” (Doc. 9, at

15). In response, Rogers argues that he was not required to exhaust administrative remedies

under the IDEA because the complaint details intentional discrimination and negligence

claims, not a denial of Rogers’s right to a free appropriate public education (“FAPE”). (Doc.

15, at 12-13). On the face of the complaint, Rogers seeks compensatory and punitive damages,

as well as attorney’s fees under the ADA, the IDEA, Section 1983, and Pennsylvania law.

(Doc. 1).

The IDEA, 20 U.S.C. § 1400 et seq., ensures that all children with disabilities receive a

FAPE. Section 1415(l) of the IDEA provides that “[n]othing in [the IDEA] shall be construed

to restrict or limit the rights, procedures, and remedies available under the Constitution, the

[ADA], title V of the Rehabilitation Act, or other Federal laws.” 20 U.S.C. § 1415(l).

However, this section also requires a person to first exhaust the IDEA's administrative

procedures before suing under the ADA or Section 504. 20 U.S.C. § 1415(l). The Supreme

Court addressed the question in Fry v. Napolean Cmty. Schs., 137 S. Ct. 743 (2017). There, the

Court held that “exhaustion is not necessary when the gravamen of the plaintiff's suit is

something other than the denial of the IDEA's core guarantee—what the [IDEA] calls a ‘free

appropriate public education.’ ” Fry, 137 S. Ct. at 748. The examination of a plaintiff's

complaint should “consider substance, not surface.” Fry, 137 S. Ct. at 755. The Third Circuit

has interpreted Fry’s use of the word “gravamen” to mean that “a court must review both the

entire complaint and each claim to determine if the plaintiff seeks relief for the denial of a

FAPE.” Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 133 (3d Cir. 2017) (dismissing for lack

of subject-matter jurisdiction where student’s claims were subject to exhaustion). Whether a

complaint uses particular terms or labels, such as FAPE or IEP, is not material. Fry, 137 S.

Ct. at 755. Rather, Section 1415(l) “requires exhaustion when the gravamen of a complaint

seeks redress for a school's failure to provide a FAPE, even if not phrased or framed in

precisely that way.” Fry, 137 S. Ct. at 755.

The Supreme Court stated that two hypothetical questions are instructive for

determining whether the gravamen of the complaint concerns the denial of a FAPE or a

disability-based discrimination claim:

First, could the plaintiff have brought essentially the same claim if the alleged

conduct had occurred at a public facility that was not a school—say, a public

theater or library? And second, could an adult at the school—say, an employee

or visitor—have pressed essentially the same grievance? When the answer to

those questions is yes, a complaint that does not expressly allege the denial of

a FAPE is also unlikely to be truly about that subject; after all, in those other

situations there is no FAPE obligation and yet the same basic suit could go

forward. But when the answer is no, then the complaint probably does concern

a FAPE, even if it does not explicitly say so; for the FAPE requirement is all

that explains why only a child in the school setting (not an adult in that setting

or child in some other) has a viable claim.

Fry, 137 S. Ct. at 756.

The Supreme Court illustrated a situation that is instructive in this case: a teacher, “acting out

of animus or frustration, strikes a student with a disability.” Fry, 137 S. Ct. at 756 n.9. While

a lawsuit under a statute other than the IDEA could relate to the student's education, “the

substance of the plaintiff's claim is unlikely to involve the adequacy of special education—

and thus is unlikely to require exhaustion.” Fry, 137 S. Ct. at 756 n.9. In that situation, a child

or adult could file the same type of suit if the action took place in a different public facility.

Fry, 137 S. Ct. at 756 n.9.

In this case, Counts I and IX of the complaint assert that Defendants’ failure to provide

accommodations that were tailored to meet Rogers’s special needs resulting from his

disability, including the permission to wear headphones and the IEP for an escort, violated

the ADA and the PHRA. (Doc. 1, at 13-18, 37-38). Count II claims Defendants violated

Section 1415(k)(6)(b) of the IDEA because “[a]t no time following this incident, which

occurred on school property during school hours, did the Defendants forward [Rogers]’s

documentation regarding his IEP and trauma-based issues to authorities, which is a violation

of federal law under the IDEA.” (Doc. 1, ¶ 116). Finally, Count IV of the complaint asserts a

Fourteenth Amendment Equal Protection claim under 42 U.S.C. § 1983, arguing that

Defendants treated Rogers differently than other similarly situated persons by not forwarding

the documentation regarding his IEP and trauma-based issues to authorities. (Doc. 1, ¶ 150-

53).

Applying the Fry framework, Rogers argues that Counts I, II, IV, and IX should not

be dismissed and that administrative exhaustion is nevertheless futile. (Doc. 15, at 16-20).

Rogers contends that if the alleged conduct had occurred in a public facility, he could assert

a violation of the ADA because he was wearing headphones as an accommodation for his

disability when the alleged conduct occurred. (Doc. 15, at 17). In addition, Rogers states that

“any employee or visitor could advance this same grievance if that person was followed,

harassed, and detained by a school member because they were wearing earbuds to

accommodate their disability.” (Doc. 15, at 17). Rogers argues that Counts I, II, IV, and IX

pertain to Defendants’ failure to provide him accommodations based on his disability which

have resulted in him being suspended and criminally charged in violation of his civil

rights . . . .” (Doc. 15, at 17-18). Rogers claims that these allegations “have nothing to do with

a denial of FAPE, or any deficiency in [Rogers]’s IEP.” (Doc. 15, at 18-19).

The Court’s review of Rogers’s complaint reveals that Rogers’s alleged injuries in

Counts I, II, IV, and IX of the complaint “comprise [of claims that [seek] relief under the

IDEA, as opposed to the sort of claim[s] that a student could bring against a public facility

that was not a school or that a nonstudent could bring for alleged wrongs in a school setting.”

S.D. by A.D. v. Haddon Heights Bd. of Educ., 722 F. App'x 119, 126 (3d Cir. 2018) (exhaustion

required because substance of plaintiffs’ discrimination claims concerned the denial of a

FAPE to student where Defendants allegedly failed to provide instruction tailored to meet

student’s special needs resulting from his disability). Rogers would not be able to bring the

same claims if the same conduct occurred in a public facility because another public facility

would not be obligated to comply with his education-related accommodations. Furthermore,

Rogers’s allegations are related to his education-related disability accommodations that

would not be afforded to an adult at the school. Regarding Rogers’s equal protection claim in

Count IV, the Supreme Court has noted:

[A]llowing an equal protection claim without requiring exhaustion under the

predecessor statute, would not only “render superfluous most of the detailed

procedural protections outlined in the statute, but, more important, it would

also run counter to Congress' view that the needs of handicapped children are

best accommodated by having the parents and the local education agency work

together to formulate an individualized plan for each handicapped child's

education.”

Komninos by Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d

Cir. 1994) (quoting Smith v. Robinson, 468 U.S. 992, 1011-12 (1984)).

Therefore, Rogers’s claims in Counts I, II, IV, and IX of the complaint could have been

remedied through the IDEA’s administrative process and are subject to exhaustion. See

Wellman, 877 F.3d at 133.

Rogers argues that if the Court finds that the IDEA exhaustion requirements do apply,

an exception should be applied. The Third Circuit has recognized four exceptions where

exhaustion would be unnecessary, including situations where “(1) exhaustion would be futile

or inadequate; (2) the issue presented is purely a legal question; (3) the administrative agency

cannot grant relief; and (4) exhaustion would cause severe or irreparable harm.” D.E. v. Cent.

Dauphin Sch. Dist., 765 F.3d 260, 275 (3d Cir. 2014) (citing Komninos, 13 F.3d at 778). The

futility and inadequate relief exceptions apply where plaintiffs “ ‘allege systemic legal

deficiencies and, correspondingly, request system-wide relief that cannot be provided (or even

addressed) through the administrative process.’ ” D.A. v. Pleasantville Sch. Dist., No. 07-CV-

4341, 2009 WL 972605, at *5 (D.N.J. Apr. 6, 2009) (quoting Beth V. by Yvonne V. v. Carroll,

87 F.3d 80, 89 (3d Cir. 1996)). Courts must consider whether enforcing the exhaustion

requirement would serve its purposes, namely “developing the record for review on appeal,

encouraging parents and the local school district to work together . . . , and allowing the

education agencies to apply their expertise and correct their own errors.” Batchelor, 759 F.3d

at 275 (internal citations omitted).

Here, Rogers argues that no administrative remedy is available under the IDEA

because he is only seeking monetary damages and has suffered non-educational injuries,

including criminal prosecution. (Doc. 15, at 19). Furthermore, Rogers makes the

unsupported, conclusive assertion that “[t]he issues presented in this case are legal in nature.”

(Doc. 15, at 19). Lastly, Rogers avers that because he “is 19 years old and out of High School,”

“[r]equiring exhaustion under the IDEA would cause a dismissal of [Rogers]’s case.” (Doc.

15, at 20). Thus, Rogers concludes that exhaustion would cause irreparable harm and is futile.

(Doc. 15, at 19-20). The Court finds that Rogers’s conclusive assertions for why the Court

should apply an exception to the IDEA exhaustion requirement are not persuasive.

First, the fact that Rogers seeks compensatory and punitive damages -- which are not

available under the IDEA -- for his IDEA-related claims does not permit Rogers to circumvent

the administrative exhaustion requirements for his other claims under the ADA, PHRA, and

Section 1983. See Batchelor, 759 F.3d at 276-78 (upholding dismissal for failure to exhaust

IDEA administrative remedies where plaintiffs sought compensatory and punitive damages

under the ADA and Rehabilitation Act). Neither party disputes that Rogers failed to exhaust

administrative remedies under the IDEA. As such, exhaustion would not be futile in this case

because there have been no administrative rulings relating to Rogers’s IEP or the underlying

incident, which is the subject of Counts I, II, IV, and IX.

Next, the Court finds the issues presented in Counts I, II, IV, and IX are not purely

legal in nature and would be better presented to an administrative law judge in the first

instance as the IDEA requires because the record is not developed on issues related to Counts

I, II, IV, and IX. Compare Batchelor, 759 F.3d at 281 (refusing to excuse exhaustion where the

factual record was not fully developed and the plaintiffs had not participated in hearings

before an ALJ to resolve the student's classification and placement), with Lester H. by Octavia

v. Gilhool, 916 F.2d 865, 869-70 (3d Cir. 1990) (excusing exhaustion where “no evidentiary

disputes remain[ed]”). In addition, Rogers does not cite any authority to explain why

administrative exhaustion under the IDEA would be futile in this matter. Nor does Rogers

proffer facts or cite any authority to explain why exhaustion would cause severe or irreparable

harm. While the Court is sympathetic to the frustration of administrative delays, the

adjudication of Counts I, II, IV, and IX is not jeopardized by requiring Rogers to first exhaust

his administrative remedies under the IDEA. For these reasons, the Court finds that an

exception to the administrative exhaustion requirements does not apply to Rogers’ complaint.

Enforcing the exhaustion requirement “ensures that the purpose of the IDEA remains intact.”

Batchelor, 759 F.3d at 278.

The complaint does not plead facts to establish that the Court has subject-matter

jurisdiction over Rogers’s claims in Counts I, II, IV, and IX. Even though a facial review of

the complaint for subject-matter jurisdiction requires the Court to draw inferences in favor of

Rogers, Rogers still “bears the burden of persuasion” as to jurisdiction. Henderson v. Nationwide

Mut. Ins. Co., 169 F. Supp. 2d 365, 367 (E.D. Pa. 2001) (citing Mortensen, 549 F.2d at 890).

Rogers has not carried his burden here. Accordingly, the Court will dismiss Counts I, II, IV,

and IX of the complaint without prejudice for lack of subject-matter jurisdiction.2

B. COUNTS III AND V – 42 U.S.C. § 1983 CLAIMS.

Defendants argue that Counts III, IV, and V of Rogers’s complaint, which are brought

under 42 U.S.C. § 1983, must be dismissed because those claims “fail[] to establish Monell

liability and the individual Defendants are shielded by the doctrine of qualified

immunity. . . .”3 (Doc. 9, at 19). Section 1983 imposes civil liability on any person who, acting

under the color of state law, deprives another person of rights, privileges, or immunities

secured by the Constitution or laws of the United States. Shuman ex rel. Shertzer v. Penn Manor

2 Because the Court dismissed Count I of the complaint for lack of subject-matter

jurisdiction, the Court declines to address Defendants’ secondary argument that Count I must

be dismissed for failure to state a claim upon which relief may be granted. (Doc. 9, at 15-18).

3 In the body of the motion to dismiss, Defendants state: “Because [Rogers] fails to

establish Monell liability and the individual Defendants are shielded by the doctrine of

qualified immunity, Counts III, VI, and V must be dismissed.” (Doc. 9, at 19). However, in

footnote 13, Defendants state “the Individual Defendants are barred from Counts III, IV, and

V under the doctrine of qualified immunity.” (Doc. 9, at 19 n. 13). Because Counts III, IV,

and V assert Monell liability against Defendants, the Court will address Defendants’

arguments as applied to these causes of action. The Court will address Count VI asserting a

claim for Intentional Infliction of Emotional Distress, later in this Memorandum Opinion.

As discussed supra, Rogers failed to establish that he exhausted his administrative

remedies under the IDEA. Therefore, the Court dismissed Rogers’s Fourteenth Amendment

Equal Protection Clause claim in Count IV of the complaint. (Doc. 9, at 19). For those

reasons, the Court will not address Defendants’ additional arguments to dismiss Count IV.

Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005) (citing Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir.

2000)). Section 1983 does not create substantive rights; it provides a remedy for the violation

of federal constitutional or statutory rights. Shuman, 422 F.3d at 146.

1. Claims against the School District

In Counts III and V of the complaint, Rogers asserts that the School District is liable

for a violation of the Fourth Amendment, as applied to public school officials by the

Fourteenth Amendment, and a Section 1983 failure to train claim. (Doc. 1). Rogers states

“[t]he School District failed to properly instruct Lesoine, as well as other staff concerning the

emotional support issues and triggers of [Rogers], as well as his accommodation. (Doc. 1, ¶

159). Furthermore, Rogers alleges “[t]he School District’s failure to adequately train and

supervise its employees at High School regarding the needs of students in its special education

and emotional support classes offered at the School District has caused the constitutional

violations and amounted to a deliberate indifference to and callousness disregard to the rights

of [Rogers].” (Doc. 1, ¶ 166).

A § 1983 claim against a municipality may proceed in two ways: the plaintiff may

allege that an unconstitutional municipal policy or custom led to his injuries or that his

injuries were caused by a failure or inadequacy by the municipality that reflects a deliberate

or conscious choice. Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (citing Estate of Roman v.

City of Newark, 914 F.3d 789, 798-99 (3d Cir. 2019)). A plaintiff alleging an unconstitutional

policy must point to “an official proclamation, policy or edict by a decisionmaker possessing

final authority to establish municipal policy on the relevant subject.” Forrest, 930 F.3d at 105.

A plaintiff alleging an unconstitutional custom “must evince a given course of conduct so

well-settled and permanent as to virtually constitute law.” Forrest, 930 F.3d at 105 (citing

Estate of Roman, 914 F.3d at 798). The plaintiff must also allege that the policy or custom was

the proximate cause of his injuries by demonstrating an “affirmative link” between the policy

or custom and the constitutional violation. Estate of Roman, 914 F.3d at 798 (citing Kneipp v.

Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996); quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d

Cir. 1990)). A plaintiff alleging that his injuries were caused by a failure or inadequacy by the

municipality must demonstrate “(1) municipal policymakers know that employees will

confront a particular situation, (2) the situation involves a difficult choice or a history of

employees mishandling, and (3) the wrong choice by an employee will frequently cause

deprivation of constitutional rights.” Forrest, 930 F.3d at 106 (citing Estate of Roman, 914 F.3d

at 798; Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir. 1999)).

“Generally, Monell claims are brought against employees or officials that are

subordinate to the policymakers of a particular government entity. . . .” Michalesko v. Freeland

Borough, 18 F.Supp.3d 609, 623 (M.D. Pa. 2014), aff'd sub nom. Michalesko v. Borough, 658 F.

App'x 105 (3d Cir. 2016). Section 1983 creates no substantive rights, but rather allows a

plaintiff to vindicate violations of rights created by the Constitution or federal law. Baker v.

McCollan, 443 U.S. 137, 145 n.3 (1979); Kaucher v. Cty. of Bucks, 455 F.3d 418, 423 (3d Cir.

2006). Thus, to state a claim under § 1983, a plaintiff must show that the defendants, acting

under color of state law, deprived him or her of a right secured by the Constitution or laws of

the United States. 42 U.S.C. § 1983; American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-

50 (1999); Kaucher, 455 F.3d at 423. In this case, the School District is considered to be a

municipality. See B.W. v. Career Tech. Ctr. of Lackawanna Cty., 422 F.Supp.3d 859, 889 (M.D.

Pa. 2019); Highhouse v. Wayne Highlands Sch. Dist., 205 F.Supp.3d 639 (M.D. Pa. 2016).

It is well established that “a municipality cannot be held liable solely because it

employs a tortfeasor—or, in other words, a municipality cannot be held liable under § 1983

on a respondeat superior theory.” Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658,

691 (1978); Grayson v. Mayview State Hosp., 293 F.3d 103 (3d Cir. 2002). Municipalities, such

as the School District, “are not liable under § 1983 merely for employing someone who

violates a person's civil rights; rather, a municipality that does not directly violate a person's

civil rights is liable only where it has in place a policy or custom that led to the violation.”

B.W., 422 F.Supp.3d at 890; see Monell, 436 U.S. at 694. There must be a “direct causal link”

between the municipal policy or custom and the alleged constitutional violation. City of

Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). “Proof of a single incident of unconstitutional

activity is not sufficient to impose liability under Monell, unless proof of the incident includes

proof that it was caused by an existing, unconstitutional municipal policy, which policy can

be attributed to a municipal policymaker.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-

24 (1985). “Otherwise the existence of the unconstitutional policy, and its origin, must be

separately proved.” Tuttle, 471 U.S. at 823-24.

The plaintiff bears the burden of identifying the “policy” or “custom.” Beck v. City of

Pittsburgh, 89 F.3d 966, 972 (3d Cir. 1996). A court may find that a municipal policy exists

when a “ ‘decisionmaker possess[ing] final authority to establish municipal policy with respect

to the action’ issues an official proclamation, policy, or edict.” Andrews v. City of Phila., 895

F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481

(1986)). It is also possible for a court to find the existence of a municipal policy in “the isolated

decision of an executive municipal policymaker.” City of St. Louis v. Praprotnik, 485 U.S. 112,

139 (1988). “A course of conduct is considered to be a ‘custom’ when, though not authorized

by law, ‘such practices of state officials [are] so permanent and well settled’ as to virtually

constitute law.” Andrews, 895 F.2d at 1480 (citations omitted). A plaintiff can show a custom

by “evidence of knowledge and acquiescence,” Beck, 89 F.3d at 971, and must “demonstrate

that, through its deliberate conduct, [defendant school] was the ‘moving force’ behind [his

alleged constitutional violation].” Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 404

(1997).

With respect to the first method of establishing municipal liability, the complaint does

not sufficiently allege that a municipal policy or custom caused Rogers’s injuries. At no point

does the complaint aver that the School District had a policy, regulation, and/or custom to

improperly train and supervise its employees. The only semblance of such an allegation in the

complaint is that “[t]he School District’s policies, practices, and customs as implemented by

its decision makers and staff caused the constitutional violations.” (Doc. 1, ¶ 165). Rogers

does not allege which School District policy, regulation, and/or custom Lesoine was

executing when he allegedly violated Rogers’s rights. See Monell, 436 U.S. at 690. Nor does

Rogers allege that other individual Defendants acted pursuant to a policy, regulation, and/or

custom of constitutional violations so well-settled as to constitute the “standard operating

procedure” of the School District. Tucker v. Sch. Dist. of Phila., No. 19-CV-889, 2019 WL

3802066, at *4 (E.D. Pa. Aug. 13, 2019) (quoting Bielevicz, 915 F.2d at 850); see Jett v. Dallas

Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). “Vague assertions of policy or custom” are

insufficient to survive a motion to dismiss. Buoniconti v. City of Phila., 148 F.Supp.3d 425, 438

(E.D. Pa. 2015) (quoting Groman v. Twp. of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995)); see

Tuttle, 471 U.S. at 822.

With respect to the second method of establishing municipal liability, Rogers has not

sufficiently alleged that the School District failed to train, supervise, and/or discipline its

employees such that it was deliberately indifferent to students’ rights to be free from excessive

force or equal protection. The United States Supreme Court has recognized that “there are

limited circumstances in which an allegation of ‘failure to train’ can be the basis for liability

under § 1983.” Canton, 489 U.S. at 387. “Where the policy ‘concerns a failure to train or

supervise municipal employees, liability under section 1983 requires a showing that the failure

amounts to ‘deliberate indifference’ to the rights of persons with whom those employees will

come into contact.’ ” Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (quoting

Carter, 181 F.3d at 357). Of note, a failure-to-train claim does not require a plaintiff to allege

an unconstitutional policy. See Estate of Roman, 914 F.3d at 798. “Additionally, ‘the identified

deficiency in a city's training program must be closely related to the ultimate injury;’ or in

other words, ‘the deficiency in training [must have] actually caused’ the constitutional

violation.” Thomas, 749 F.3d at 222 (quoting Canton, 489 U.S. at 391).

The complaint alleges that the School District failed to take proper precautions to

prevent the constitutional violations because it did not provide the required escort and

properly instruct its faculty and staff members, which resulted in Rogers’s verbal and physical

altercation with Lesoine. (Doc. 1, ¶ 162-165). Furthermore, Rogers asserts that “[t]he School

District’s failure to adequately train and supervise its employees at High School regarding the

needs of students in its special education and emotional support classes offered at the School

District has caused the constitutional violation and amounted to a deliberate indifference to

and callousness disregard to the rights of [Rogers].” (Doc. 1, ¶ 166). These “bald assertions”

are not entitled to the assumption of truth. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906

(3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir.

1997)). “The Court cannot, without sufficient factual matter to support the allegations,

reasonably infer that the School District failed to train, supervise and/or discipline its

employees or that any such failure reflected a deliberate or conscious choice.” Tucker, 2019

WL 3802066, at *4.

Accordingly, Defendants' motion to dismiss Counts III and V is granted as to the

School District. Defendants will be granted leave to amend to the deficiencies addressed

herein regarding municipal liability against the School District. See Grayson, 293 F.3d at 108.

2. Claims against individual Defendants

Defendants argue that Count III, asserting violation of the Fourth and Fourteenth

Amendment, fails to state a claim against individual Defendants sued in their official

capacities because “[t]he only facts regarding a potential seizure are that ‘Lesoine pressed his

forearm against [Rogers]’s chest multiple time,” and prevented Rogers from entering his

classroom. (Doc. 9, at 21). First, Rogers asserts that Defendants violated his Fourth

Amendment rights when Rogers “was unlawfully seized and detained by Lesoine against his

will while he was simply attempting to walk to his emotional support classroom.” (Doc. 1, ¶¶

135, 142). Rogers states “Defendants, by and through its agents, had no reasonable basis

under the circumstances to seize and detain [Rogers] against his will.” (Doc. 1, ¶ 136).

The Third Circuit has articulated that: “A seizure occurs for Fourth Amendment

purposes when ‘a reasonable person would have believed that he was not free to leave.’ ”

Shuman, 422 F.3d at 147 (citing Michigan v. Chesternut, 486 U.S. 567, 573 (1988)) The Fourth

Amendment's prohibition of unreasonable seizures undoubtedly applies in the school context.

New Jersey v. T.L.O., 469 U.S. 325, 335 (1985). However, for government conduct to amount

to a seizure, it must be intentional. In Brower v. County of Inyo, 489 U.S. 593 (1989), the

Supreme Court considered whether the police had seized a suspect by setting up a roadblock

into which he drove his car. In ruling that the plaintiffs had adequately alleged a seizure, the

Court explained:

Violation of the Fourth Amendment requires an intentional acquisition of

physical control. A seizure occurs even when an unintended person or thing is

the object of the detention or taking ... but the detention or taking itself must be

willful. . . . [A] Fourth Amendment seizure does not occur whenever there is a

governmentally caused termination of an individual's freedom of movement ...

but only when there is a governmental termination of freedom of movement

through means intentionally applied.

Brower, 489 U.S. at 596-97.

This language from Bower led the Third Circuit later to conclude: “[W]e think it reasonable

to read Brower as focusing on the objective intent of officials to use force to effectuate a seizure

and the subsequent seizure flowing from the use of that force.” In re City of Phila. Litig., 158

F.3d 711, 721-22 (3d Cir.1998).

In this case, Rogers has not alleged any “intentional acquisition of physical control,”

nor is there any suggestion that individual Defendants intended to confine Rogers in the

hallway. K.M. v. Chichester Sch. Dist., 152 F.Supp.3d 412, 416 (E.D. Pa. 2015) (dismissing

Fourth Amendment claim for failure to allege intentional or willful restriction of student’s

freedom of movement). Notably, the Third Circuit has held that ‘”the ‘momentary use of

physical force by a teacher in reaction to a disruptive or unruly student does not effect a seizure

of the student under the Fourth Amendment,’ and therefore ‘is a scenario to which the Fourth

Amendment does not textually or historically apply.’ ” Gottlieb ex rel. Calabria v. Laurel

Highlands Sch. Dist., 272 F.3d 168, 172 (3d Cir. 2001) (quoting Kurilla v. Callahan, 68 F. Supp.

2d 556, 563 (M.D. Pa. 1999)). The complaint does not establish Defendants’ willfulness to

seize Rogers, which is required to state a Fourth Amendment claim under Brower. Therefore,

Rogers fails to state a Fourth Amendment claim.

Next, Rogers alleges that individual Defendants violated his Fourteenth Amendment

right to be free from excessive force. Specifically, Rogers states that “[t]he action of pressing

a forearm into [Rogers]’s chest multiple times constitutes excessive use of force on the part of

a school official.” (Doc. 1, ¶ 140). “A decision to discipline a student, if accomplished through

excessive force and appreciable physical pain, may constitute . . . a violation of substantive

due process prohibited by the Fourteenth Amendment.” Metzger ex rel. Metzger v. Osbeck, 841

F.2d 518, 520 (3d Cir. 1988) (citing Hall v. Tawney, 621 F.2d 607, 611 (4th Cir. 1980)).

Accordingly, the Court will review Rogers’s Count III claim by reference to his right to

substantive due process under the Fourteenth Amendment. Tucker, 2019 WL 3802066, at *2;

see MG ex rel. LG v. Caldwell-W. Caldwell Bd. of Educ., 804 F. Supp. 2d 305, 317 (D.N.J. 2011)

(applying substantive due process standard to special education student's excessive force claim

brought under Fourth and Fourteenth Amendments).

The Third Circuit has held that for federal claims alleging the use of excessive force by

public school officials, the Fourteenth Amendment's “shocks the conscience” standard

applies. Gottlieb, 272 F.3d at 172. Under this standard, “whether the constitutional line has

been crossed” is determined by analyzing four elements: (1) “[w]as there a pedagogical

justification for the use of force?”; (2) “[w]as the force utilized excessive to meet the legitimate

objective in this situation?”; (3) “[w]as the force applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the very purpose of causing harm?” and

(4) “[w]as there a serious injury?” Gottlieb, 272 F.3d at 172-73. To establish an excessive force

claim, the alleged injury must have been a physical injury, not psychological, mental, or

emotional. JGS v. Titusville Area Sch. Dist., 737 F. Supp. 2d 449, 456-57 (W.D. Pa. 2010).

“Courts have applied a high standard in finding substantive due process violations sufficiently

egregious to ‘shock the conscience’, with respect to children and particularly in a public school

setting.” K.A. ex rel. J.A. v. Abington Heights Sch. Dist., 28 F.Supp.3d 356, 369 (M.D. Pa. 2014).

Here, Rogers’s complaint fails to provide sufficient plausible allegations that individual

Defendants' actions sufficiently “shock the conscience” to support an excessive force claim

under the Fourteenth Amendment. Rogers claims that “Lesoine pressed his forearm against

[his] chest multiple times” after Rogers refused to take out his earbuds, and that as “[a] result

of the continued following, antagonizing, and demanding, [Rogers] and Lesoine became

involved in a verbal and physical altercation.” (Doc. 1, ¶¶ 131-133). Rogers alleges that the

physical altercation was prompted only by Defendants failure to comply with Rogers’s IEP.

(Doc. 1, ¶ 142). Rogers states that Defendants’ conduct caused him to suffer “financial

hardship, damages, pain and suffering, emotional distress, severe mental anguish, and

impairment of his reputation and embarrassment upon [Rogers] and his family.” (Doc. 1, ¶

143).

Even accepting these allegations as true, the allegations could not be considered

sufficiently egregious to rise to the level of conscious-shocking. First, it has been recognized

that using force in reaction to a disruptive student serves a pedagogical objective. See D.C. v.

Pittsburgh Pub. Sch., 415 F.Supp.3d 636, 661 (W.D. Pa. 2019) (dismissing excessive force claim

where Defendants restrained student after he destroyed property, threw objects, pushed staff

members, failed to follow directives, and ran from principal). Second, Rogers does not allege

facts to establish that Defendants’ conduct constituted excessive force under the

circumstances. Third, Rogers does not plead facts showing that Lesoine’s “action of pressing

a forearm into Rogers’s chest multiple times” or Defendants’ failure to comply with Rogers’s

IEP was malicious. Lastly, Rogers’s claims are devoid of any suggestion that Rogers was

physically harmed or abused at the time of his “detention” by Lesoine. See, e.g., JGS, 737 F.

Supp. 2d at 456-57 (holding that the excessive force claim failed “on the basis of the

undisputed lack of any physical injury”). Therefore, Rogers does not state a Fourteenth

Amendment claim.

Accordingly, Defendants’ motion to dismiss is granted and Count III of the complaint

is dismissed without prejudice as Rogers will be granted leave to amend to cure the

deficiencies addressed herein. (Doc. 8).

3. Remaining Arguments

Because Rogers’s complaint fails to state a claim upon which relief may be granted

under Rule 12(b)(6), the Court declines to assess Defendants’ remaining arguments, including

those concerning claims against individual Defendants in their official capacities, immunity,

and punitive damages. (Doc. 9, at 12). The Court nonetheless acknowledges that “[t]he

Supreme Court has recognized that a suit against a state official in his or her official capacity

is not a suit against the official but rather a suit against the individual’s office.” Arnold v. New

Jersey, No. 03-CV-3997, 2007 WL 1381757, at *3 (D.N.J. May 9, 2007) (citing Will v. Michigan

Dep’t of State Police, 491 U.S. 58, 71 (1989)) (“Therefore, suits against state officials in their

official capacities are treated as suits against the state since the real party in interest is the

state, not the named official.”). Further, states and state-like entities, as well as state officials,

under § 1983 are generally afforded Eleventh Amendment immunity in claims for money

damages and non-monetary-relief to remedy past harms. Kokinda v. Pennsylvania Dept. of Corr.,

779 F. App’x 944, 948 (3d Cir. 2019) (“The District Court properly concluded that Kokinda’s

claimed violations of §§ 1983, 1985(3), and 1986 against the DOC and the individual prison

staff members sued in their official capacities are barred by the Eleventh Amendment.”); see

Miller v. Rutgers, 619 F. Supp. 1386, 1392 (D.N.J. 1985) (“[I]n holding that the Eleventh

Amendment applies to Rutgers, I am in accord with the majority of federal courts which have

considered the applicability of the amendment to state universities.”); see also Harris v.

Zyskowski, No. 12-CV-7191, 2016 WL 3566721, at *4 (D.N.J. June 30, 2016) (“Because the

remaining claim of the Complaint does not seek prospective relief, and only seeks declaratory

relief as to Defendant’s past actions, the relief Plaintiff seeks is barred by the Eleventh

Amendment.” (emphasis added)).

However, the Court notes that while the complaint does not allege sufficient facts to

establish a violation of Rogers’s constitutional rights, the Court cannot discern at this stage in

the litigation whether Rogers’s assertions are meritless. Defendants argue that Robison,

Gustafson, Lesoine, Higgins, and Strickland are shielded by the doctrine of qualified

immunity, which bars Rogers’s constitutional claims against them. (Doc. 9, at 19 n.13). The

doctrine of qualified immunity provides that government officials performing “discretionary

functions,” are shielded from suit if their conduct did not violate a “clearly established

statutory or constitutional right [ ] of which a reasonable person would have known.” Wilson

v. Layne, 526 U.S. 603, 609 (1999); Saucier v. Katz, 533 U.S. 194, 201-02 (2001). Qualified

immunity provides not only a defense to liability, but “immunity from suit.” Hunter v. Bryant,

502 U.S. 224, 227 (1991); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). In considering whether

a defendant is entitled to qualified immunity, the court must analyze two factors: (1) whether

the plaintiff has shown facts that make out a constitutional rights violation; and if so, (2)

whether those rights were “clearly established” at the time of the incident. Pearson v. Callahan,

555 U.S. 223, 231 (2009); see also Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (“Qualified

immunity shields government officials from civil damages liability unless the official violated

a statutory or constitutional right that was clearly established at the time of the challenged

conduct.”) (citation omitted). Therefore, based on the insufficiency of the record, the

individual Defendants are not entitled to qualified immunity at this time. (Doc. 8).

In addition, the Court notes that Rogers’s request for punitive damages will not be

dismissed at this juncture. Whether an award of punitive damages is warranted involves “a

fact-intensive issue inappropriate for resolution at the motion to dismiss stage, where no

factual record has yet been developed.” Miller v. Helm, No. 17-CV-1590, 2017 WL 6405738,

at *7 (M.D. Pa. Dec. 15, 2017). Indeed, “this Court has consistently held that it is premature

to dismiss demands for punitive damages prior to discovery.” Campbell v. Balon, No. 16-CV-

779, 2017 WL 2880856, at *19 (M.D. Pa. July 6, 2017); Bobrick Washroom Equip., Inc. v.

Scranton Prods., Inc., No. 14-CV-853, 2017 WL 2126320, at *11 n.15 (M.D. Pa. May 16,

2017). Here, Rogers does not contest that punitive damages cannot be alleged against the

School District and individual Defendants in their official capacities. Instead, Rogers states

that he seeks punitive damages against Defendants in their individual capacities. (Doc. 15, at

36). Nevertheless, at this preliminary stage of litigation, dismissal of Rogers’s request for

punitive damages against Defendants in their individual capacities is not appropriate.

However, Rogers’s request for punitive damages in Count I under the ADA is dismissed with

prejudice as punitive damages may not be awarded in private suits against the ADA. Barnes

v. Gorman, 536 U.S. 181, 189 (2002); (Doc. 1, at 18).

C. COUNTS VI, VII, AND VIII - STATE LAW CLAIMS

In the complaint, Rogers asserts claims against Defendants under Pennsylvania law

for IIED, breach of fiduciary duty, and negligence. (Doc. 1, at 28-36). Rogers alleges federal

question jurisdiction under 28 U.S.C. § 1331 and civil rights jurisdiction under 28 U.S.C. §

1343(a)(4). (Doc. 1, ¶ 2). However, as the Court found that Rogers’s federal claims must be

dismissed for lack of subject-matter jurisdiction and failure to state a claim upon which relief

may be granted, the Court declines to exercise supplemental jurisdiction over his state law

claims. 28 U.S.C. § 1367(c)(3). Whether a court will exercise supplemental jurisdiction is

within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir. 2009). That decision should be

based on “the values of judicial economy, convenience, fairness, and comity . . . .” Carnegie-

Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Ordinarily, when all federal law claims have

been dismissed and only state law claims remain, the balance of these factors indicates that

the remaining claims properly belong in state court. Cohill, 484 U.S. at 350. The Court finds

nothing in the record to distinguish this case from the ordinary one, and thus the balance of

factors “point toward declining to exercise jurisdiction over the remaining state law claims.”

See Cohill, 484 U.S. at 350 n.7.

D. LEAVE TO AMEND

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment

would be inequitable or futile. Grayson, 293 F.3d at 108. Further, “[a] district court has

‘substantial leeway in deciding whether to grant leave to amend.’” In re Avandia Mktg., Sales

Practices & Prod. Liab. Litig., 564 F. App'x 672, 673 (3d Cir. 2014) (not precedential) (quoting

Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). In this case, the Court will grant Rogers

leave to file an amended complaint in an attempt to cure the deficiencies outlined herein.

Estelle v. Gamble, 429 U.S. 97, 106 (1976); Grayson, 293 F.3d at 108.

Rogers will be allowed an opportunity to file a single, unified, legible amended

complaint setting forth factual allegations and legal claims in a manner that can be reviewed

by the Court and, if necessary, answered by Defendants. The amended complaint must be a

pleading that stands by itself without reference to the original complaint. Young v. Keohane, 809 F.

Supp. 1185, 1198 (M.D. Pa. 1992) (emphasis added). Further, the amended complaint must

be “simple, concise, and direct” as required by Rule 8(d)(1) of the Federal Rules of Civil

Procedure. It must also be limited to those claims that arise out of the same transaction or

occurrence or series of transactions or occurrences as averred, albeit vaguely, in the original

complaint. All claims should be set out in individual, numbered counts.

Regarding Counts I, II, IV, and IX, if Rogers chooses to file an amended complaint

further clarifying these claims, it must clearly identify facts showing that Rogers has exhausted

his administrative remedies. An amended complaint must allege that Rogers followed IDEA

procedures by filing an administrative complaint and appealing the initial administrative

decision, and that Rogers was “aggrieved” at the end of the administrative procedures. The

amended complaint must specify which administrative rulings or decisions have left Rogers

aggrieved. Alternatively, Rogers must allege facts to show that Defendants have failed to

comply with prior administrative rulings and that Rogers now seeks to enforce those prior

rulings. Either way, Rogers must clarify which instances of Defendants’ misconduct were

presented in which administrative proceeding, the outcome of each proceeding with respect

to each instance of misconduct, and the reasons why Rogers is now entitled to judicial review

in this Court.

Failure to file an amended complaint in accordance with the aforementioned

requirements will result in the dismissal of this action in its entirety.

IV. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED and Rogers’s

complaint is dismissed without prejudice. (Doc. 8). However, Rogers’s request for punitive

damages under the ADA in Count I are dismissed with prejudice as to all Defendants.

Rogers shall have 28 days from the date of this Memorandum Opinion to file an

amended complaint setting forth allegations in support of this civil action against Defendants

and curing the deficiencies outlined herein.

An appropriate Order follows.

BY THE COURT:

Dated: August 5, 2022 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

Chief United States Magistrate Judge