ROBLES v. STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

GUSTAVO ROBLES,

Civil Action No. 22-05371 (JXN)(JSA)

Plaintiff,

v.

OPINION

STATE OF NEW JERSEY, et al.,

Defendants.

NEALS, District Judge

This matter comes before the Court by way of Defendant Tamsen Thorpe Ph.D.’s (“Dr.

Thorpe” or “Defendant”) motion to dismiss Plaintiff Gustavo Robles’ (“Robles” or “Plaintiff”)

Amended Complaint (ECF No. 6) pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No.

72). Plaintiff opposed the motion (ECF No. 73), and Dr. Thorpe replied in further support (ECF

No. 74). Jurisdiction is proper pursuant to 28 U.S.C. § 1331 with supplemental jurisdiction under

28 U.S.C. §1367 over Plaintiff’s state law claims. Venue is proper pursuant to 28 U.S.C. § 1391.

The Court has carefully reviewed the Amended Complaint and the parties' submissions and decides

this matter without oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil

Rule 78.1. For the reasons set forth below, Defendant’s motion to dismiss is GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND1

This matter arises from an alleged conspiracy involving thirty named defendants, including

the State of New Jersey, two state court judges, court workers, and various health care providers,

acting in concert to subvert Plaintiff’s parental rights during the state court child custody

1 When reviewing a motion to dismiss, a court accepts as true all well-pleaded facts in the complaint. Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

proceedings between Plaintiff and Defendant Grecia K. Pinto (“Pinto”), the mother of Plaintiff's

minor son, G.A.R. (See generally Amended Complaint (“Am. Compl.”), ECF No. 6.) Specifically,

in his Amended Complaint, Plaintiff alleges that Pinto and her “paramour” Defendant Charles

Cetta, Jr. (“Cetta”) fabricated evidence which led to his being “maliciously” investigated by the

New Jersey Division of Child Protection and Permanency (“DCPP”) for the sexual abuse of G.A.R.

(Am. Compl. ¶¶ 38, 42.) Plaintiff alleges that G.A.R. was incorrectly taken at his word, and DCPP

conducted a biased evaluation of him. (Am. Compl. ¶¶ 41-50.) The purpose of the investigation,

which took over sixty (60) days to complete, was, in part, to determine whether Plaintiff’s parental

rights over G.A.R. should be restricted. (Am. Compl. ¶¶ 45, 47.)

Plaintiff claims that during the original investigation and evaluation concerning the sexual

abuse allegations, which was audio and video recorded on or about September 3, 2020, the

“professionals at the special victim’s unit (SVU)…determined that both mother and child were not

credible and that G.A.R. used non[-]age appropriate words and phrases [which] indicated he had

been improperly coached.” (Am. Compl. ¶ 39.) Plaintiff claims that, “[i]nstead of closing out the

investigation… DCPP continued its investigation and in concert with [] Pinto and Cetta fabricated

and/or exaggerated evidence against Plaintiff.” (Am. Compl. ¶ 42.)

Plaintiff contends that DCPP Caseworker Suni Brown (“Brown”) was part of DCPP’s

investigation of Plaintiff between August 2020, and February 2021. (Am. Compl. ¶¶ 7, 43.) As

part of the investigation, Plaintiff claims that Brown “acknowledged that “traumatic experience

therapy was to be decided between both parents and to be performed by a private practice therapist

and within G.A.R.’s medical plan.” (Am. Compl. ¶¶ 49.) Plaintiff further alleges that throughout

DCPP’s investigation, several of the named Defendants facilitated biased psychological

evaluations of G.A.R., discriminated against him based on his gender and disability, post-traumatic

stress disorder, and continuous vertigo, which, according to Plaintiff, Defendants regarded as a

mental illness, failed to investigate Pinto’s and Cetta’s complaint against him properly, and

reached incorrect conclusions as to Pinto’s and Cetta’s complaint. (Am. Compl. ¶¶ 41-42, 48, 50-

56, 58, 63-68, 72-76, 83-92, 99-103, 106, 114-19, 125, 129-30, 191.)

The Honorable Nina C. Remson J.S.C. (“Judge Remson”) of the Superior Court of New

Jersey, Chancery Division, Family Part, Bergen County, presided over Plaintiff’s child custody

matter from January 2021 to October of 2022. (Am. Compl. ¶ 113.) Plaintiff alleges that Judge

Remson demonstrated bias against Plaintiff on the basis of his gender; he also asserts that Judge

Remson accepted DCPP’s recommendations of the false allegations, allowed hearsay reports and

inadmissible evidence, and sanctioned the removal of GAR without a warrant or exigent

circumstances. (Am. Compl. ¶¶ 114-116, 117.) Further, Plaintiff alleges that Judge Remson

“implemented a ‘Consent Order’ entered under duress, and then did not enforce Plaintiff’s requests

for enforcement of litigant’s rights for the child Reunification Process.” (Am. Compl. ¶ 121.)

Additionally, Plaintiff alleges that the Honorable Peter J. Melchionne P.J.F.P (“Judge

Melchionne”) “was aware that Plaintiff is an innocent father” and that the “Consent Order was

structured under duress.” (Am. Compl. ¶¶ 134, 136.) Finally, Plaintiff states that Judge Melchionne

knew Plaintiff did not intend to waive his right to a trial hearing nor his constitutional rights. (Am.

Compl. ¶ 137.)

Pursuant to the Consent Order, in June 2022, Judge Remson appointed Dr. Thorpe as the

Reunification Expert in Plaintiff’s child custody case. (Am. Compl. ¶¶ 16, 138.) Plaintiff alleges

that Dr. Thorpe “did not follow up with her assertions that Reunification was required with G.A.R.

and feared that [] Pinto would be uncooperative and would not assist in Reunification therapy.”

(Am. Compl. ¶ 139.) Plaintiff also alleges that Dr. Thorpe did nothing on G.A.R.’s behalf to seek

Reunification therapy even though G.A.R. expressed he wanted it.” (Id.) Plaintiff sues Dr. Thorpe

“in her official capacity” and claims that she “is liable for her actions done under color of state

law.” (Am. Compl. ¶ 16.) Plaintiff further alleges that Dr. Thorpe was “entrusted to protect the

Constitutional rights of those she encounters and at all times relevant hereto was acting within the

scope of her duties and authority, under color or title of state law supervised or controlled one or

more of the Defendants herein, or acted in concert with one or more of the Defendants.” (Id.)

On September 1, 2022, Plaintiff filed a Complaint in this Court. (ECF No. 1.) On January

30, 2023, Plaintiff filed an Amended Complaint (Am. Compl., ECF No. 6) asserting nine causes

of action against Defendants including Declaratory Relief pursuant to the federal Civil Rights Act

of 1964 28 U.S.C. § 2201-2202 (Count I); violation of 42 U.S.C. § 1983 (Count II); violation of

42 U.S.C. §1983 for Monetary Relief (Count III); violation of Section 10:6-2 of the New Jersey

Civil Rights Act (“NJCRA”) (Count IV); Civil Conspiracy (Count V); Conspiracy pursuant to 42

U.S.C. §1985 (Count VI); Malicious Abuse of Process (Count VII); violation of Title II and III of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, 12181 (Count VIII); and

violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Count IX). (See Am. Compl.

¶¶ 145-236.) Plaintiff seeks declaratory and injunctive relief, compensatory and punitive damages,

and attorney’s fees and costs. (See Am. Compl. ¶¶ 168, 174, 186, 189, 225, 236, 238.)

Defendants2 moved to dismiss the Amended Complaint pursuant to Rules 12(b)(1) and

12(b)(6). (See ECF Nos. 31, 38, 55, 61, 71.) Plaintiff did not oppose the motions. On September

2 Defendants the State of New Jersey Administration of the Courts, Glenn A. Grant, Administrative Director, Hon.

Peter J. Melchionne, P.J.F.P., Hon. Nina C. Remson, J.S.C., and David Tang, Chief of Family Practice Division (the

“Judiciary Defendants”); Sheila Steinbach and Constance Ritzler (the “Bergen Family Center Defendants”); Asad

Hussain, Renee Kuperinksy, Michelle Thorpe, Rene Compean, and Shahan Sibtain (the “New Bridge Defendants”);

Carmen Diaz-Petti, Christine Norbut-Beyer, Lori Makridakis, Lori Laverty, Gregory Maier, Suni Brown, and Shante

Singletary (the “DCPP Defendants”); Stephanie Anismatta, Psy.D, Kirsten Byrnes, Psy.D, Richard Coco, Psy.D,

Michelle Fanciullo, Psy.D, Brett Biller, Psy.D; Kyongok Kim, LCAT, and Michelle Mroz, LCSW (the “Audrey

Hepburn Defendants”).

26, 2024, the Court issued an Order granting Defendants’ motions as unopposed and terminating

them from this action. (See ECF No. 77.)

On October 2, 2023, Dr. Thorpe moved to dismiss the Amended Complaint pursuant to

Rule 12(b)(6). (ECF No. 72.)3 Plaintiff opposed the motion (ECF No. 73), and Dr. Thorpe replied

in further support (ECF No. 74). The motion is now ripe for the Court to decide.

II. LEGAL STANDARD

Under Rule 8 of the Federal Rules of Civil Procedure, a pleading is sufficient so long as it

includes “a short and plain statement of the claim showing that the pleader is entitled to relief” and

provides the defendant with “fair notice of what the . . . claim is and the grounds upon which it

rests[.].” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355

U.S. 41, 47 (1957)) (internal quotations omitted). In considering a Rule 12(b)(6) motion to dismiss,

the court accepts as true all the facts in the complaint and draws all reasonable inferences in favor

of the plaintiff. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). Moreover,

dismissal is inappropriate even where “it appears unlikely that the plaintiff can prove those facts

or will ultimately prevail on the merits.” Id.

While this standard places a considerable burden on the defendant seeking dismissal, the

facts alleged must be “more than labels and conclusions, and a formulaic recitation of the elements

3 The Court notes that Dr. Thorpe’s motion was initially filed on March 1, 2023 (ECF No. 15), with a return date of

April 3, 2023. On March 20, 2023, Plaintiff filed Rule 7.1(d)(5) Letter for an automatic extension of the return date.

(ECF No. 25.) Thereafter, from April 14, 2023, to July 17, 2023, Plaintiff filed additional adjournment requests

concerning the motions to dismiss filed by Dr. Thorpe her co-defendants in this action. (See ECF Nos. 34, 37, 40, 43,

47, 48, 53, 56, 57, 63, 64.) Consequently, on July 17, 2023, the Court issued a Text Order (ECF No. 65) providing

that in the interest of efficient case management and to preclude further piecemeal extensions of briefing and

adjournments of these pending motions’ return date, Dr. Thorpe’s motion was administratively terminated. The parties

were to serve the opposition papers on or before July 24, 2023, and reply papers on or before July 31, 2023, and once

all papers have been exchanged between counsel, coordinate the simultaneous, consecutive refiling of the motions in

accordance with the Court’s Text Order. On January 23, 2024, Plaintiff’s counsel filed a letter (ECF No. 75) to the

Court advising that they wrote to Plaintiff’s Counsel in order to coordinate the refiling of the motion in accordance

with the Court’s Text Order and “[n]ot having received a response, [counsel] refiled the previously styled motion”

along with Plaintiff’s previously filed opposition and their reply brief.

of a cause of action will not do.” Twombly, 550 U.S. at 555. That is, the allegations in the complaint

“must be enough to raise a right to relief above the speculative level.” Id. Accordingly, a complaint

will survive a motion to dismiss if it provides a sufficient factual basis such that it states a facially

plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662 (2009). In order to determine whether a

complaint is sufficient under these standards, the Third Circuit requires a three-part inquiry: (1)

the court must first recite the elements that must be pled in order to state a claim; (2) the court

must then determine which allegations in the complaint are merely conclusory and therefore need

not be given an assumption of truth; and (3) the court must assume the veracity of well-pleaded

factual allegations and ascertain whether they plausibly give rise to a right to relief. Santiago v.

Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).

III. ANALYSIS

As noted above, the Plaintiff asserts nine counts in his Amended Complaint; however, only

four of the nine counts are directed against Dr. Thorpe, Declaratory Relief pursuant to the federal

Civil Rights Act of 1964 28 U.S.C. § 2201-2202 (Count I); violation of 42 U.S.C. § 1983 (Count

II); violation of Title II and III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§

12131, 12181 (Count VIII); and violation of Section 504 of the Rehabilitation Act, 29 U.S.C. §

794 (Count IX). (See Am. Compl. ¶¶ 145-159, 190-236.) The Court addresses the merits of these

claims below.

A. Plaintiff’s Claim for Declaratory Relief (Count I)

Count I of the Amended Complaint purports to assert a cause of action under the

Declaratory Judgment Act, 28 U.S.C. § 2201.

The Declaratory Judgment Act (the “Act”) provides that “[i]n a case of actual controversy

within its jurisdiction ... any court of the United States, upon the filing of an appropriate pleading,

may declare the rights and other legal relations of any interested party seeking such declaration,

whether or not further relief is or could be sought.” 28 U.S.C. § 2201. The Act “is not a standalone

source of rights, but a procedural vehicle for litigants to seek a declaration of their rights under

some other law.” MedWell, LLC v. Cigna Corp., No. 20-10627, 2021 WL 2010582, at *2 (D.N.J.

May 19, 2021) (citing CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 628 (3d Cir. 2013));

see also Malhan v. Sec. U.S. Dep't of State, 938 F.3d 453, 457 n.3 (3d Cir. 2019) (“[T]he

Declaratory Judgment Act is procedural only, and presupposes the existence of a judicially

remediable right. It creates a remedy, not rights.” (internal quotation marks and citations omitted));

Everest Indem. Ins. Co. v. All Risks LTD, Civ. No. 16-3582, 2023 WL 4295778, at *4 n.8 (D.N.J.

June 30, 2023) (“Declaratory judgment is a remedy, not an independent cause of action.”

(collecting cases)). Because Count I is premised on a form of relief rather than a cause of action,

it cannot be pursued as a “standalone claim” and, accordingly, must be dismissed. See id.

B. Plaintiff’s 42 U.S.C. § 1983 Claim (Count II)

Section 1983 permits claims for violations of certain constitutional rights:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the Constitution and laws, shall

be liable to the party injured in an action at law, suit in equity, or other proper

proceeding for redress[.]

42 U.S.C. § 1983. To state a claim for relief under § 1983, a plaintiff must allege (1) the violation

of a right secured by the Constitution or laws of the United States and (2) that the alleged

deprivation was committed or caused by a person acting under color of state law. West v. Atkins,

487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Plaintiff pursues claims against Dr. Thorpe “in her official capacity” as the court-appointed

Reunification Expert in connection with the underlying state court child custody proceedings.

(Am. Compl. ¶ 138, 139, 155, 168.) Plaintiff’s allegations against Dr. Thorpe provide that she was

“entrusted to protect the Constitutional rights of those she encounters and at all times relevant

hereto was acting within the scope of her duties and authority, under color or title of state law

supervised or controlled one or more of the Defendants herein, or acted in concert with one or

more of the Defendants.” (Id.) (Am. Compl. ¶ 16.)

Individuals charged with the duty of carrying out facially valid court orders enjoy quasi-

judicial absolute immunity from liability for damages in a suit challenging conduct prescribed by

that order. See Gallas v. Supreme Court of Pennsylvania, 211 F.3d 760, 772–73 (3d Cir. 2000).

The doctrine of quasi-judicial immunity “evolved out of its well-known namesake, judicial

immunity,” which protects judges from liability for damages for acts committed within their

judicial jurisdiction. Russell v. Richardson, 905 F.3d 239, 247 (3d Cir. 2018). The fair

administration of justice depends not only on judges, however. Id. Thus, the immunity doctrine

has been extended to “certain others who perform functions closely associated with the judicial

process,” id. (quoting Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)), including “those who serve

as arms of the court, ... fulfill[ing] a quasi-judicial role at the court's request,” id. (quoting Hughes

v. Long, 242 F.3d 121, 126 (3d Cir. 2001) (quotation marks omitted)). This immunity extends to

evaluative functions when the evaluation is done, as it plainly was here, to assist the court in its

decision-making process. See Williams v. Consovoy, 453 F.3d 173, 178–79 (3d Cir. 2006)

(licensed psychologist who evaluated inmate for state parole board and presented his findings is

absolutely immunized from suit for damages).

Here, allegations in the Amended Complaint against Dr. Thorpe concern her role in

providing reunification assessments and evaluations as an “arm[] of the court.” See Hughes v.

Long, 242 F.3d 127 (3d Cir. 2001). Dr. Thorpe’s participation in the custody proceedings was, as

a general matter, court-ordered. Further, there is nothing in Plaintiff’s Amended Complaint that

credibly suggests that the actions taken by Dr. Thorpe were outside of the scope of her role as the

court-appointed Reunification Expert. Plaintiff’s dissatisfaction with Dr. Thorpes’ actions as the

court-appointed Reunification Expert does not change this fact. Dr. Thorpe accordingly enjoys the

benefit of quasi-judicial immunity. See Heffley v. Steele, 826 F. App'x 227, 231 (3d Cir. 2020)

(citing Hughes, 242 F.3d at 126-28) (holding that custody evaluators in family court cases are

entitled to judicial immunity; discussing the judicial immunity of court-appointed counselors and

therapists).

Moreover, even if Plaintiff had established that Dr. Thorpe is a state actor, his conclusory

claim of liability does not amount to a viable cause of action under Section 1983 or the Twombly

and Iqbal pleading standards. Plaintiff has failed to allege any plausible facts to show that the

actions taken by Dr. Thorpe were not an integral part of the judicial process. Further, Plaintiff’s

conspiracy allegations against Dr. Thorpe, including that she conspired with other Defendants to

deprive Plaintiff of access to his son, also are plainly inadequate to survive a Rule 12(b)(6) motion

to dismiss. Great Western Mining, 615 F.3d at 176. See also Twombly, 550 U.S. at 555, 127 S.Ct.

1955; Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. Mikhail v. Kahn, 572 F. App'x 68, 72 (3d Cir. 2014).

As a result, Plaintiff fails to state a claim for relief as to Dr. Thorpe under Count II.

C. Plaintiffs Claim under Titles II and III of the Americans with Disabilities Act

(“ADA”) (Counts VIII)

In Count VIII of the Amended Complaint, Plaintiff alleges disability discrimination under

Titles II and II of the ADA and asserts an assortment of discrimination and retaliation claims under

various regulatory provisions. (Am. Compl. ¶¶ 190-225.) The Amended Complaint does not

specify who among the thirty named defendants is charged with discrimination under Count VIII.

(See Am. Compl. ¶ 209.) Plaintiff simply alleges that “Defendants have discriminated intentionally

against Plaintiff in violation of Title II and III of the ADA, 42 U.S.C. § 12131 and 42 U.S.C. §

12181, by refusing to provide individualized treatment, auxiliary aids and services, and other

accommodations and modifications necessary to ensure an equal opportunity for Gustavo Robles

to participate in Defendants’ programs and activities; and by using retaliation and coercion tactics

against Plaintiff to exploit his disability.” (Am. Compl. ¶ 210.)

Under the ADA, a person is “regarded as” having a “disability” if they have a “physical or

mental impairment that substantially limits one or more major life activities of such individual,”

“a record of such an impairment,” or “being regarded as having such an impairment. …” See 42

U.S.C. § 12102(1). Based on this definition of “disability,” §§ 12132 and 12182 of the ADA

prohibit discrimination in similar capacities. Section 12132 specifies that individuals with

disabilities shall not “be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Section 12182 prohibits “discrimination by public accommodations” under multiple contexts, but

Plaintiff seems only to allege discrimination under § 12182(b)(1)(A)(ii). (See Am. Compl. ¶¶ 207-

08.) Under § 12182(b)(1)(A)(ii), it is unlawful to:

[A]fford an individual or class of individuals, on the basis of a disability or

disabilities of such individual or class, directly, or through contractual, licensing,

or other arrangements with the opportunity to participate in or benefit from a good,

service, facility, privilege, advantage, or accommodation that is not equal to that

afforded to other individuals.

Further, each of the federal regulations that Plaintiff alleges “Defendants” violated prohibits, in

some fashion, various forms of discrimination, denial of equal treatment based on disability and

other grounds, and retaliation. (See Am. Compl. ¶¶ 201-03, 213, 217-20.)

Title II of the Act authorizes suits by private citizens for money damages against public

entities that violate 42 U.S.C. § 12132. United States v. Georgia, 546 U.S. 151, 153 (2006). In

order to state a claim for a violation of Title II of the ADA, 42 U.S.C. § 12131, et seq., a Plaintiff

must show that (1) they are a qualified individual; (2) with a disability within the meaning of the

statute; (3) they are being excluded from participation in, or are being denied the benefits of the

services, programs, or activities of a covered entity, or are otherwise being discriminated against

by the covered entity; and (4) such exclusion, denial of benefits, or discrimination is by reason of

their disability. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 253 (3d Cir. 1999).

An ADA plaintiff bears the burden of proving that she is a “qualified individual with a disability.”

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797 (1999); see also Bowers v. NCAA, 475

F.3d 524, 528 (3d Cir. 2007).

Also at issue in this case is Plaintiff’s assertions that he was denied appropriate

accommodations during state court proceedings. Title III of the ADA provides:

No individual shall be discriminated against on the basis of disability in the full and

equal enjoyment of the goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person who owns,

leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). Notably, Title III of the ADA applies to private entities providing public

accommodations, not to public entities. Id.; see also 42 U.S.C. § 12181(6) (defining "private

entity" as "any entity other than a public entity (as defined in section 12131(1) of this title)").

Here, even assuming arguendo that Plaintiff’s PTSD and continuous vertigo qualify as a

disability under 42 U.S.C. § 12102(1), Plaintiff has not pled any facts to support a viable claim

against Dr. Thorpe for discrimination or retaliation under either Title II or III of the ADA. First,

the Amended Complaint does not identify a single potential act of discrimination by Dr. Thorpe.

Plaintiff does not claim that Dr. Thorpe refrained from seeking reunification therapy because of

his disability or identify any incidents or communications wherein Dr. Thorpe discriminated

against him “based on perceived mental impairments and stereotypes.” Further, the Amended

Complaint provides no factual support for Plaintiff’s retaliation claims against Dr. Thorpe.

Plaintiff’s sole factual allegations against Dr. Thorpe are that she served as a court-appointed

Reunification Expert and did not seek reunification therapy because Pinto “would be

uncooperative and would not assist” with such therapy. (Am. Compl. ¶¶ 138-39.) As such, Plaintiff

does not state any factual allegations to show that Dr. Thorpe discriminated against him or

retaliated against him in any capacity by reason of his alleged disabilities. Accordingly, Plaintiff

has failed to plead any viable cause of action under the ADA, and Count VIII is dismissed pursuant

to Rule 12(b)(6).

D. Plaintiff’s Section 504 of the Rehabilitation Act Claim (Count IX)

Section 504 of the Rehabilitation Act prohibits discrimination on the basis of disability in

federally funded programs or activities:

No otherwise qualified individual with a disability in the United States shall, solely

by reason of her or his disability, be excluded from 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.S. § 794(a); Koslow v. Pennsylvania, 302 F.3d 161, 165 (3d Cir. 2002).

The same standards govern claims brought under § 504 of the Rehabilitation Act, 29 U.S.C.

§ 794, and Title II of the ADA, 42 U.S.C. § 12132. S.H. v. Lower Merion Sch. Dist., 729 F.3d 248,

250 (3d Cir. 2013). To prevail on such claims, a plaintiff must demonstrate that they (1) have a

disability; (2) were otherwise qualified to participate in a program; (3) were denied the benefits of

the program or were otherwise subject to discrimination because of their disability; and (4) that

the program or activity in question receives federal financial assistance. See Id.; see also

Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 123 (3d Cir. 1998). Claims for

compensatory damages under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, require a

finding of intentional discrimination. S.H., 729 F.3d at 250.

Here, Plaintiff failed to plead sufficient facts to state a plausible claim against Dr. Thorpe

for a violation of Section 504 of the Rehabilitation Act for the same reasons as Plaintiff’s claims

against Dr. Thorpe under Title II of the ADA. Specifically, Plaintiff offers no factual evidence to

demonstrate that this statutory provision even applies to Dr Thorpe. First, Plaintiff has not pleaded

that Dr. Thorpe receives “Federal financial assistance” such that she is an actor subject to 29 U.S.C.

§ 794(a) (see Am. Compl. ¶ 229) or offer any evidence that Dr. Thorpe participates in a program

that receives “Federal financial assistance.” Second, Plaintiff fails to identify a specific “program

or activity” under which he has been denied equal access on account of his purported disability.

(Am. Compl. ¶¶ 30-31.) Third, Plaintiff fails to name a program or activity that has been created,

controlled, or implemented by Dr. Tamsen Thorpe. Further, of the few factual allegations directed

against Dr. Thorpe in the Amended Complaint, none of them allege that she discriminated against

Plaintiff because of his disability. (See Am. Compl. ¶¶ 138-39.) There is no suggestion of

discriminatory animus, discriminatory conduct, or deliberate indifference to Plaintiff’s disability

by Dr. Thorpe anywhere in the Amended Complaint. Accordingly, Plaintiff’s Section 504 of the

Rehabilitation Act claim (Count IX) fails and is dismissed pursuant to Rule 12(b)(6).

E. The Remaining Defendants

The Court may sua sponte raise the issue of improper service of process. See Fed. R. Civ.

P. 4(m). The only remaining defendants in this matter are Pinto and Cetta. Plaintiff initiated this

action on September 1, 2022. (See ECF No. 1.) On January 30, 2023, Plaintiff amended his

complaint. (See Am. Compl.) Based on Plaintiff’s counsel’s representation in a letter dated

February 15, 2023, it appears that Pinto and Cetta were among the defendants “served prior to the

end of February 14, 2023” (see ECF No. 11) yet, to date, Plaintiff has not submitted proof of

service to the Court, and neither defendant has made an appearance on the docket. Accordingly,

the Court will issue an Order directing Plaintiff to submit proof that Pinto and Cetta were properly

served by February 14, 2023, in compliance with Rule 4. If Plaintiff fails to provide such proof of

service by October 11, 2024, the Amended Complaint will be dismissed without prejudice as to

Pinto and Cetta pursuant to Rule 4(m) for failure to effect proper service.

IV. CONCLUSION

For the foregoing reasons, Dr. Thorpe’s motion to dismiss (ECF No. 72) is GRANTED.

Additionally, Plaintiff shall submit proof of proper service as to Defendants Pinto and Cetta by no

later than October 11, 2024, under pain of dismissal. An appropriate Order accompanies this

Opinion.

DATED: September 28, 2024 _______________________

JULIEN XAVIER NEALS

United States District Judge