SHER et al v. UPPERMORELAND TOWNSHIP SCHOOL DISTRICT et al

Filing 10

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE ROBERT F. KELLY ON 8/19/2011. 8/19/2011 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(stwe, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
VAN C. SHER and CAROL L. SHER
:
on behalf of themselves and their minor son,
:
CIVIL ACTION
ANTHONY SHER,
:
:
Plaintiffs,
:
vs.
:
NO. 11-1525
:
UPPER MORELAND TOWNSHIP SCHOOL
:
DISTRICT, et al.
:
:
Defendants.
:
__________________________________________:

MEMORANDUM
ROBERT F. KELLY, Sr. J.

AUGUST 19, 2011

Presently before the Court is Defendants, Upper Moreland Township School District
(“UMSD”), Superintendent of UMSD Dr. Robert Milrod (“Dr. Milrod”), and Upper Moreland
High School Psychologist Howard Cohen’s (“Cohen”) (collectively, “Defendants”) Motion to
Dismiss. Also before the Court is Plaintiffs, Van C. Sher, Carol L. Sher’s, (collectively,
“Plaintiffs”) Motion for Appointment of Counsel brought on behalf of themselves and their
minor son Anthony Sher (“Anthony”). For the following reasons, Defendants’ Motion to
Dismiss will be granted in its entirety and Plaintiffs’ Motion for Appointment of Counsel will be
denied.
I.

FACTS
Plaintiffs are currently proceeding pro se on behalf of themselves and their minor son

Anthony in this action against UMSD and individual Defendants Dr. Milrod and Mr. Cohen.1
1

It is unclear whether Plaintiffs have named Messrs. Milrod and Cohen in their official or
individual capacities. Upon careful inspection of the Complaint, it appears as though Plaintiffs

Sixteen-year-old Anthony was diagnosed as having Attention Deficit Hyperactivity
Disorder (“ADHD”) on or about August of 2009.2 (Compl. ¶¶ 14, 63, 80(g)); (Defs.’ Mot. to
Dismiss, Ex. A, Spec. Ed. Hearing Decision ¶¶ 22-23.)3 Anthony transferred to UMSD from a
private school in the eighth grade. (Id. at ¶¶ 17, 26-27.) According to Plaintiffs, prior Anthony’s
transfer, he was involved in extracurricular activities, sports, his school drama program, and
community service. (Id. at ¶ 23.) He also scored very well on his PSAT exam. (Id.)
Plaintiffs aver that, unfortunately, Anthony’s model behavior deteriorated after he
transferred to UMSD in the eighth grade. (Id. at ¶ 27.) In the eighth grade, Anthony received
approximately twenty-eight disciplinary sanctions consisting of detentions, in-schoolsuspensions, and at least one out-of-school suspension for: refusing to carry out directions,
threatening other students, making derogatory remarks to students, poking/touching students,
acting disrespectfully towards staff, disrupting classes, using profanity, being present in
unauthorized areas during the school day, bringing a toy gun to school, throwing objects,
misconduct during a fire drill, misconduct during detention, refusal to participate in class, and
unauthorized use of a username/password. (Defs.’ Mot. to Dismiss, Ex. A, Spec. Ed. Hearing

have named those Defendants in their official capacity as the Complaint states “Defendant is the
[UMSD], which will include it agents and administrators for purposes of description and
responsibility.” (Compl. ¶ 6.)
2

ADHD is a chronic condition that includes a combination of problems such as difficulty
sustaining attention, hyperactivity, and impulsive behavior. http://www.mayoclinic.
com/health/adhd/DS00275 (last visited July 25, 2011).
3

Generally, the court may not consider documents outside of the pleadings when ruling
on a motion to dismiss. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997). However, a court may consider public documents and prior judicial proceedings without
converting a motion to dismiss into one for summary judgment. In re Rockefeller Ctr. Props.
Sec. Litig., 184 F.3d 280, 292-93 (3d Cir. 1999).
2

Decision ¶¶ 3, 17.) In the ninth grade, Anthony was involved in thirty-one behavioral incidents
due to: possession of electronics, refusal to carry out directives, disrespect towards staff,
inappropriate comments, disruption of class, throwing objects, failure to report to detention,
fighting, hallway misconduct, vandalism, and refusal to participate in class. (Id. at ¶ 21.) These
incidents resulted in verbal warnings, detentions, in-school suspension, and out-of-school
suspension. (Id. at ¶ 22.) In the tenth grade, Anthony was involved in eight behavioral incidents
where he was the offender, including failure to report to detention, insubordination/disrespectful
behavior, theft, harassment, disruption of class, throwing objects, and fighting. (Id. at ¶ 34.) The
incidents resulted in detentions and out-of-school suspensions. (Id. at ¶ 35.)
Plaintiffs allege that they requested counseling for Anthony when his behavior changed
for the worse but that UMSD failed to fully provide it. (Id. at 28.) According to Plaintiffs,
UMSD also failed to recognize clear indicators that Anthony suffered from a learning disability,
despite the fact that Anthony’s father informed UMSD that he suffered from ADD and that
Anthony’s behavior was typical of the disorder. (Id. at ¶ 56.) Because Anthony has been
diagnosed with ADHD, Plaintiffs believe that Anthony’s behavior was purely symptomatic of
that disability and, thus, any punishments or disciplinary actions by UMSD were unfairly dealt
and should be expunged. (Id. at ¶ 58.) UMSD’s alleged wrongful acts cover a great variety of
misconduct, but Plaintiffs’ allegations may be condensed into the following conclusions: (1)
Anthony has ADHD, which made him act out and misbehave in school (Id.); (2) the Defendants,
rather than inquiring into whether Anthony had ADHD (or some other disability) and
formulating an appropriate public education, inappropriately responded to Anthony’s behavior by
assigning him traditional discipline such as suspensions and other disciplinary write-ups (Id. at ¶¶
3

45, 47, 63, 67); and (3) Anthony has suffered emotional and medical harm as a result of the
Defendants’ negligence in diagnosing and treating his disability (Id. at 10).
In their Complaint, Plaintiffs reference a Pennsylvania Special Education Hearing (“due
process hearing”), which took place on October 5, 2010, November 17, 2010, and November 22,
2010. The issues to be decided were: (1) does the student qualify as a “child with a disability”
under the Individuals with Disabilities Education Act (“IDEA”)? If so, did the district fail in its
obligations toward the student under the IDEA?; (2) did the district fail to meet its obligations to
the student as a “protected handicapped student” under Section 504 of the Rehabilitation Act
(“Section 504")?;4 and (3) If the answer to the foregoing two questions is in the affirmative, is the
student entitled to a remedy? (Defs.’ Mot. to Dismiss, Ex. A, Spec. Ed. Hearing Decision at 3.)
The findings of fact revealed a history of cooperative efforts between Plaintiffs and
UMSD to fashion a FAPE for Anthony. For instance, after Plaintiffs informed UMSD that a
licensed psychologist and certified school psychologist diagnosed Anthony with
ADHD/combined type and conduct disorder in August of 2009, UMSD recommended that
Anthony be provided with a 504 plan5 to help him with organizational skills and a number of
school-based accommodations. (Id. ¶¶ 23-24.) Plaintiffs agreed to the proposed 504 plan on

4

Section 504 is codified at 29 U.S.C. § 701 et seq. It provides, in relevant part:
No otherwise qualified individual with a disability . . . 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. § 794(a). Section 504 applies to public schools that receive Federal financial assistance
and its implementing regulations in this context are codified at 34 C.F.R. Part 104 et seq.
5

Section 504's implementing regulations provide a detailed scheme for fashioning a
FAPE for students with qualifying disabilities. See 34 C.F.R. 104.35. The plan for
implementing a FAPE is commonly referred to as a “Section 504 plan.”
4

October 8, 2010,6 which included accommodations such as regular communication between
home and school, an assignment book, preferential seating, verbal and non-verbal cues, extended
time on tests as needed, and the opportunity to meet with a school counselor or school
psychologist as needed. (Id. at ¶ 29.) Apparently, the school psychologist never shared the 504
plan with Anthony as he was required to do. (Id. at ¶ 30.) In December of 2009, Plaintiffs
requested another comprehensive psycho-evaluation for Anthony, but later withdrew consent for
the evaluation for unknown reasons on January 29, 2010. (Id. at ¶¶ 31-32.) Simultaneously, in
late January 2010, Plaintiffs and UMSD met to revise the 504 plan but Plaintiffs were not aware
that it was finalized until March of 2010. (Id. at 33.) Ultimately, Plaintiffs did not approve the
revised 504 plan, because Anthony withdrew from the district. (Id.)
The Hearing Officer issued his decision on December 28, 2010. He concluded that:
[Anthony] did not qualify as a child with a disability under the IDEIA.7 The District,
though significant substantive omissions, failed to have a Section 504 plan in place
to address [Anthony]’s ADHD. This resulted in a denial of FAPE under the
obligations of Section 504, but the deprivation did not rise to the level where
compensatory education is owed as a remedy. Finally, the District did not
discriminate against the student as a result of his disability.
(Id. at 17-18.) The Hearing Officer issued the following Order:
In accord with the findings of fact and conclusions of law . . . , the student does not
qualify as a child with a disability under the IDEIA. The Upper Moreland Township
School District has, under the obligations set forth under Section 504, denied the
student a FAPE from April 23, 2008 through October 8, 2009. This denial of FAPE,
however, does not rise to the level that compensatory education is owed. The Upper

6

The administrative record states that Plaintiffs agreed to the proposed 504 plan on
Obtober 8, 2010. This is somewhat confusing as Plaintiffs withdrew Anthony from school in
mid-March 2010. Thus, we assume that Plaintiffs agreed to the 504 plan in October of 2009.
7

The Hearing Officer referred to the name given to the IDEA in its amended form, the
Individuals with Disabilities Education Improvement Act of 2004, P.L. 108-446, 118 Stat. 2647.
5

Moreland Township School District has not discriminated against the student as a
result of his disability.
(Id. at 18.) Plaintiffs state in their Complaint that they had in effect “won” the hearing by
“proving FAPE,” but took issue with the fact that compensatory education was not awarded to
them. (Compl. ¶ 10.) The Complaint does not state whether Plaintiffs ever appealed the decision
of the Hearing Officer as provided for in the statute, and Plaintiffs have indicated that they are
not attempting to appeal the decision in the present action.8 (Mot. to Remand at 1.) However,
the Complaint also states “[Plaintiffs] can now show that all of the considerations were not taken
into consideration for the compensatory education” which was not awarded by the Hearing
Officer. Because Plaintiffs are proceeding pro se, we will construe their pleadings liberally and
consider all causes of action which can be fairly gleaned from their pleadings.
Plaintiffs commenced this action by filing a Complaint in the Court of Common Pleas of
Montgomery County on February 15, 2011. In Count I of the Complaint, Plaintiffs allege that
“The Defendant and its agents have failed to uphold the laws pertaining to students according to
the Federal laws of the [ADA] and [§ 504] for the learning disabled, including FAPE . . . After
written notice of these violations, Defendant blatantly disregarded any attempts to rectify the
situation.”9 (Compl. ¶ 69.) In Count II, Plaintiffs claim that Anthony was the victim of reverse

8

Plaintiffs assert that the due process hearing was a pre-requisite for commencing the
instant action. As we will later discuss, Plaintiffs are obligated to exhaust administrative
remedies prior to bringing suit for FAPE-related claims. However, Plaintiffs have also insisted
that the instant action has nothing to do with the ADA, Section 504, the IDEA or Title VI.
9

It is unclear whether Plaintiffs intend to assert claims under either the IDEA or § 504 in
light of their “Motion Not to Dismiss and to Remand Back to Montgomery County” (Doc. No.
3), which contained a list of amendments to their Complaint to void all reference to federal law.
However, considering the Complaint in its entirety, we feel the most prudent course is to include
those claims in the disposition of this Motion along with their common law claims.
6

discrimination. (Id. at ¶ 71.) In Count III, Plaintiffs complain that UMSD violated the Right to
Know Law (“RTKL”)10 by failing to provide a safe environment. (Id. at ¶ 73.) In Count IV,
Plaintiffs claim that UMSD violated the “[First] Amendment of the United States of America and
the Bill of Rights by subjecting Plaintiffs’ son to harassment and ridicule as well as mental
anguish over the treatment used to question him on numerous occasions.” (Id. at 75.) In Count
V, Plaintiffs complain that the UMSD’s Student Handbook is “over 10 years old, outdated, and
followed by [UMSD] on a basis to justify any actions they feel they have to take.” (Compl. ¶
77.) Finally, in Count VI, Plaintiffs complain that “the actions by the Defendant were malicious
and intentional and were intent on harming [Anthony] both physically and mentally.” (Id. at ¶
79.)
In terms of relief, Plaintiffs are requesting a combination of monetary damages and
injunctive relief.11 (Id. at ¶ 80(a)-(m).) The injunctive relief is aimed at correcting perceived
shortcomings of the staff and teachers at UMSD in their dealings with children who suffer from
disabilities. (Id.) The requested injunctive relief also requires UMSD to adopt a multitude of
internal operating procedures to facilitate its improved handling of children with disabilities. (Id.
at ¶ 80(c), (d), (f).) Furthermore, Plaintiffs would have UMSD issue various apologies to
Anthony (Id. at ¶ 80(a).) Moreover, the requested injunctive relief all but precludes UMSD from

10

The RTKL, 65 P.S. § 67.101 et seq., generally governs the procedure for requesting
information from Pennsylvania government agencies.
11

Plaintiffs believe that the Hearing was a pre-requisite to instituting the present action.
However, this logic is at odds with the statutory scheme providing that a party who is unsatisfied
with the decision of the Hearing Officer may appeal the decision to a state-level administrative
hearing and then to a court of law because Plaintiffs claim they are not appealing the Hearing
Officer’s decision. Furthermore, a due process hearing is not a pre-requisite for filing a civil suit
against the Defendants generally.
7

disciplining Anthony by any traditional means. (Id. at ¶ 80(g).) Other injunctive relief seeks to
expunge all of Anthony’s disciplinary records and all police reports filed against him. (Id. at ¶
80(j), (l).) Plaintiffs demand monetary damages in excess of $5 million to “cover a potential
lifetime of psychiatric treatment, damages for future salaries for not being able to go to a college
of choice based on Defendants not expunging medical related record of discipline, and mental
and physical damage potential for all of the Plaintiffs.” (Id. at ¶ 80(e).) Plaintiffs also seek
“[f]ull restitution of any costs and expenses the Plaintiff had for any direct aspects of this case”
and “pay for on-going treatment” of Anthony (Id. at ¶¶ 80(b), (k).)
On March 4, 2011, Defendants removed this case here on the basis of 28 U.S.C. § 1331.
On March 11, 2011, the Defendants filed a Motion to Dismiss Plaintiffs’ Complaint arguing that
Plaintiffs had failed to state a claim upon which relief can be granted and that Plaintiffs could not
proceed pro se on behalf of Anthony. On March 17, 2011, Plaintiffs filed a “Motion Not to
Dismiss and Remand Back to Montgomery County, PA” (“Motion to Remand”) claiming that
their references to Federal laws were only intended to serve as “background” and that their
claims were only premised on state common law tort actions such as malpractice. (Mot. to
Remand at 1-3.) Along with the Motion to Remand, Plaintiffs submitted a list of amendments to
their Complaint in an attempt to void any reference to the IDEA, ADA, § 504, and FAPE.
Despite these amendments, which were not properly submitted, Plaintiffs’ causes of action and
relief still fell within the jurisdiction of this court as we will discuss more fully below.
Accordingly, we denied the Motion to Remand on March 21, 2011, finding that we did have
original jurisdiction over the claims in this case.
On April 4, 2011, we held a status conference to discuss whether it was permissible for
8

Plaintiffs to represent Anthony because no Plaintiff is a licensed attorney. We gave Plaintiffs
several weeks either to submit a brief on the issue of parental representation of their minor
children or to retain counsel. That same day, Plaintiffs submitted a document to the Court stating
that they only intended to go forward on claims of negligence, malpractice, and discrimination
and that no part of their case rested on federal law save for “the treatment of an ADHD student.”
(Apr. 4, 2011 Ltr. at 1.) However, Plaintiffs cited to two online articles addressing the rights of
parents to litigate pro se on behalf of their children specifically under the IDEA.12 This leads us
to believe that Plaintiffs have not completely abandoned their federal claims. Furthermore, some
of Plaintiffs’ claims are rooted in federal constitutional law despite the amendments submitted
with their Motion to Remand.
On May 6, 2011, we received a letter of representation informing us that Plaintiffs had
retained counsel. Shortly thereafter, on May 21, 2011, Plaintiffs informed the Court by letter that
their counsel could not represent them due to a conflict of interest and that all further attempts to
retain counsel were met with unresponsiveness or prohibitively high estimates. At this point,
Plaintiffs requested that we appoint counsel to represent them.
We will decide both the Defendants’ Motion to Dismiss and Plaintiffs’ Motion for
Appointment of Counsel together as the resolution of each requires similar analyses.
II.

STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). Under Rule 12(b)(6), the
12

Plaintiffs included the following URL’s in support of their argument that they should
be allowed to represent Anthony: (1) http://www.pilcop.org/dis-edu_Winkelman_1–1-5.pdf and
(2) http://sweetstevens.com/articles/documents.ParentalIDEARepresentation_000.pdf.
9

defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744,
750 (3d Cir. 2005). In Bell Atl. Corp. v. Twombly, the Supreme Court stated that “a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550
U.S. 544, 555 (2007). Following Twombly, the Third Circuit has explained that the factual
allegations in the complaint may not be “so undeveloped that [they do] not provide a defendant
the type of notice which is contemplated by Rule 8.” Phillips v. County of Allegheny, 515 F.3d
224, 233 (3d Cir. 2008). Moreover, “it is no longer sufficient to allege mere elements of a cause
of action; instead ‘a complaint must allege facts suggestive of [the proscribed] conduct.’” Id.
(alteration in original) (quoting Twombly, 550 U.S. at 563 n.8). Furthermore, the complaint’s
“factual allegations must be enough to raise a right to relief above the speculative level.” Id. at
234 (quoting Twombly, 550 U.S. at 555). “This ‘does not impose a probability requirement at
the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of the necessary element.’” Id. (quoting Twombly, 550 U.S.
at 556).
Notwithstanding Twombly, the basic tenets of the Rule 12(b)(6) have not changed. The
Knit With v. Knitting Fever, Inc., No. 08-4221, 2009 U.S. Dist. LEXIS 30230, at *6 (E.D. Pa.
Apr. 8, 2009). The general rules of pleading still require only a short and plain statement of the
claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515
F.3d at 231. Moreover, when evaluating a motion to dismiss, the court must accept as true all
well-pleaded allegations of fact in the plaintiff’s complaint, and must view any reasonable
10

inferences that may be drawn therefrom in the light most favorable to the plaintiff. Id.; Buck v.
Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Finally, the court must “determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002).
III.

DISCUSSION
A.

Motion to Dismiss
1.

Count I: FAPE claims
a.

Whether Plaintiffs may litigate FAPE-based claims under Section
504

Defendants argue that Plaintiffs are attempting to assert a non-existent cause of action for
enforcement of Section 504's implementing regulations requiring a school district to provide a
FAPE and, thus, the claim must be dismissed. Defendants further argue that, according to
Alexander v. Sandoval, 532 U.S. 275 (2001), enforcement of statutorily created rights must be
provided for in the statute itself. (Mot. to Dismiss at 4). In Sandoval, the Supreme Court held
that “[l]anguage in a regulation may invoke a private right of action that Congress through
statutory text created, but it may not create a right that Congress has not.” 532 U.S. at 291. The
Defendants argue that, since there is no indication that Congress intended to create a private
cause of action, and the regulations go “far beyond” the intent of the statute, they do not create an
enforceable right. (Mot. to Dismiss at 4.)
Additionally, the Defendants argue that, to the extent that any sort of Section 504
regulatory FAPE right is actionable, it is only actionable to the extent that Section 504
regulations run together with the IDEA-based FAPE right. (Id. at 5.) This, the Defendants argue,

11

is due to the fact that Section 504's implementing regulation, 34 C.F.R. § 104.36, provides that
the due process procedures for Section 504 are the same as those for the IDEA.13 (Id.)
Moreover, Defendants argue that, in this case, Plaintiffs have not followed the due process
procedures required under the IDEA, because they have not challenged the administrative
hearing officer’s ruling through a statutory appeal as provided in 20 U.S.C. § 1415. That
provision allows for an impartial due process hearing (20 U.S.C. § 1415(f)), an appeal to the state
educational agency (20 U.S.C. § 1415(g)), and finally a judicial appeal (20 U.S.C. §1415(i)(2)).
Finally, the Defendants argue that Plaintiffs have not stated a claim for relief stemming from the
FAPE violation, because they have not alleged harm or challenged the contrary administrative
finding by pleading particular errors in the hearing officer’s analytical process. (Id. at 5-6.)
We agree with the Defendants that a plaintiff must first exhaust the administrative
remedies under the IDEA prior to instituting an action for a school district’s failure to provide a
FAPE under Section 504. In Derrick F. v. Red Lion Area Sch. Dist., 586 F. Supp. 2d 282 (M.D.
Pa. 2008), the district court discussed whether a plaintiff’s Section 504 and ADA claims must be
dismissed for failure to exhaust the administrative remedies available under the IDEA. 586 F.
Supp. 2d at 295. The district court held that “where a plaintiff brings an action under Section
504 or the ADA seeking relief that is also available under the IDEA, exhaustion of the
13

34 C.F.R. § 104.36 provides in relevant part:

A recipient who operates a public . . . secondary education program or activity shall establish and
implement, with respect to actions regarding the identification, evaluation, or educational
placements of persons who, because of a handicap, need or are believed to need special
instruction or related services, a system of procedural safeguards . . . Compliance with Section
615 of the Education of the Handicapped Act is one means of meeting this requirement.
34 C.F.R. § 104.36. The Education of the Handicapped Act was the IDEA’s predecessor.
12

administrative remedies provided by the IDEA is required ‘to the same extent as would be
required had the action been brought under [the IDEA].’” Id. (citing 20 U.S.C. § 1415(l)). See
also 24 C.F.R. § 300.516(e). “The IDEA administrative exhaustion requirement ‘allows a school
district to bring its expertise to bear and affords the state an opportunity to correct its own
mistakes.’” James S. ex rel. Thelma S. v. Sch. Dist. of Philadelphia, 559 F. Supp. 2d 600, 616
(E.D. Pa. 2008) (citing McKellar v. Com. of Pennsylvania Dept. of Educ., No. 98-4161, 1999
WL 124381, at *2 (E.D. Pa. Feb. 23, 1999)). In Pennsylvania, administrative exhaustion consists
of participating in a due process hearing and taking an appeal to the state appellate body. 22 Pa.
Code. § 14.162; Blunt v. Lower Merion Sch. Dist., No. 07-3100, 2008 WL 442109, at *5 (E.D.
Pa. Feb. 15, 2008) (describing two-level review process in Pennsylvania); Kristi H. v. Tri-Valley
Sch. Dist., 107 F. Supp. 2d 628, 631 (M.D. Pa. 2000) (same). Id. Conversely, should a plaintiff
seek relief for a claim that is not available under the IDEA, he or she is not required to exhaust
IDEA remedies prior to bringing those claims in federal court. Id. See also, James S., 559 F.
Supp. 2d at 617 (recognizing exhaustion not required for Section 504 claims seeking
compensatory damages not available under the IDEA).
Whether Plaintiffs may pursue a Section 504 FAPE-based claim in this Court depends on
whether FAPE is a remedy under both the IDEA and Section 504. The IDEA includes a specific
provision conditioning a state’s receipt of federal educational funds upon the state’s obligation to
provide a FAPE to children with disabilities at 20 U.S.C. § 1412(a)(1). A district’s denial of a
FAPE may be appealed via the two-step administrative process mentioned above. See 20
U.S.C.A. § 1415, et seq. Section 504's FAPE obligations arise from its implementing
regulations. In particular, 34 C.F.R. § 104.33 provides that a recipient (of federal funds) who
13

operates a public elementary or secondary education program shall provide a FAPE to each
qualified handicapped person within the recipient’s jurisdiction. 34 C.F.R. § 104.33. Section
504 specifically provides that the procedural safeguards available to contest the denial of a FAPE
shall be the same as under the IDEA. 34 C.F.R. § 104.36. Thus, it is evident that claims based
on a denial of FAPE must be exhausted under the procedural due process protective scheme
contained in the IDEA even if brought under Section 504. Because Plaintiffs have not appealed
the denial of FAPE to the state appellate body, they cannot advance any FAPE-based claims in
this Court. Accordingly, we will dismiss Plaintiffs’ Count I to the extent that it purports to seek
any relief for UMSD’s denial of a FAPE for Anthony under Section 504.
b.

Plaintiffs’ Section 504 statutory discrimination claim

As noted, Section 504 provides, in relevant part, that: “[n]o 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 . . .” 20 U.S.C. § 794(a).
The elements of a statutory Section 504 discrimination claim are: (1) a qualifying disability; (2)
qualification to participate in school activities; (3) receipt of federal financial assistance; (4)
exclusion from participation in, or denial of the benefits of, or otherwise discriminated against in
the school program. Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238 (3d Cir. 1999)
(citing W.B. v. Matula, 67 F.3d 484, 492 (3d Cir. 1995), abrogated on other grounds by A.W. v.
Jersey City Public Schools, 486 F.3d 791 (3d Cir. 2007)). The Defendants correctly assert that
the elements of an ADA claim are essentially the same but without the element of federal
funding. See Chambers v. Sch. Dist. of Philadelphia, No. 05-2535, 2007 WL 515497, at *1
14

(E.D. Pa. Feb. 12, 2007).
The Defendants concede that the first, second, and third elements may be assumed. In
regards to the fourth element, the Defendants argue that Plaintiffs have not alleged that Anthony
was excluded from participation in, or denied the benefits of, or otherwise discriminated against
in the school program. (Mot. to Dismiss at 6-7.) Additionally, the Defendants argue that,
because Plaintiffs claim that they are not appealing the Hearing Officer’s decision, that decision
is binding on the Parties. The Hearing Officer specifically found that UMSD did not:
. . . exclude the student from District programs or activities, den[y] the student the
benefits of District programs or activities, or discriminate[] against the student in its
treatment of the student. Indeed, even given the extensive disciplinary history of the
student, the District’s treatment of the student was fair and did not result in any
unwarranted or excessive exclusion from school. . .

(Defs.’ Mot. to Dismiss, Ex. A, Spec. Ed. Hearing Decision at 16.)
We agree that the Hearing Officer’s finding must be left undisturbed in the absence of an
appeal of his decision or allegations that the Hearing Officer erred in his analysis or conclusion.
See Breanne C. v. Southern York County Sch. Dist., 665 F. Supp. 2d 504, 506 n.4 (M.D. Pa.
1009) (deferring to due process hearing officer’s findings of fact when uncontested by parties).
Additionally, we find that Plaintiffs have not alleged that Anthony was excluded from
participation in, or denied of the benefits of, or otherwise discriminated against in the school
program. Plaintiffs allege that Anthony was discriminated against by UMSD because he
received numerous disciplinary actions. It is clear that Plaintiffs heartily disagree with UMSD’s
style and frequency of discipline because they believe all or most discipline was given in
response to behavior which was solely caused by Anthony’s ADHD. The Defendants argue that

15

Anthony’s status as having a “qualifying disability” does not prohibit UMSD from disciplining
Anthony under Section 504 as there is no proscription against discipline in either the text of
Section 504 or its implementing regulations. We have reviewed the relevant statutes and case
law and, likewise, were unable to find any such prohibition.14 Thus, we find that Plaintiffs have
failed to allege a cause of action for Section 504 statutory discrimination.
c.

Section 504 and ADA claims against the individual Defendants

Plaintiffs may not bring an ADA or Section 504 claim against Messrs. Milrod or Cohen
as a matter of law. Section 504's and the ADA’s non-discrimination rules are directed at federal
funding recipients and at public entities. A.W., 486 F.3d at 804. In light of this fact, the Third
Circuit holds that individual liability is not available under Section 504. Taylor v. Altoona Area
Sch. Dist., 513 F. Supp. 2d 540, 556 (W.D. Pa. 2007) (citing A.W., 486 F.3d at 804). Thus, to
the extent that Plaintiffs attempt to state either an ADA or Section 504 claim against the
individual Defendants, such claims fail as a matter of law.15

14

We note that, the Hearing Officer determined that Anthony did “not qualify as a child
with a disability under the IDEA” and was only “a protected handicapped student” under Section
504. (Defs.’ Mot. to Dismiss, Ex. A, Spec. Educ. Hearing Dec. at 16-17.) Because Plaintiffs do
not contest these findings, we need not address the Defendants arguments relating to the
applicability of disciplinary regulations under the IDEA.
15

Plaintiffs submitted an amendment to Count I, which states:

The Defendants and its agents have failed to uphold the laws pertaining to students
according to the laws of the school district as well as malpractice in treatment of a
disabled student and unfair practice of medical treatment, bullying, targeting,
providing a safe environment, child endangerment, failure to abide by the internal
obligations made known to the public, lying to Plaintiff[s] about performance of
school program and officials, and purposely trying to harm Plaintiffs.
These allegations are merely legal conclusions and do not sufficiently allege any of the causes of
action contained therein. Thus, we find that Plaintiffs have failed to state a cause of action for
16

2.

Count II: Fourteenth Amendment Equal Protection

In Count II of the Complaint, Plaintiffs assert that the Defendants “by [their] actions,
exercised reverse racial discrimination, including unequal penalties for alleged racial incidents”
in violation of Anthony’s Fourteenth Amendment rights.16 It is unclear from their Complaint,
thus we assume that Plaintiffs are referencing the incident where Anthony was suspended for
exchanging a racially charged greeting with a minority friend. (Compl. ¶ 62.) Allegedly,
Anthony was suspended for greeting a black friend by saying, “White power,” and his friend
responded, “Jew Boy.” (Id.) According to Plaintiffs, the suspension was discriminatory because
the minority was not suspended. (Id.) Plaintiffs do not reference race at any other point in their
Complaint. The Defendants argue that Plaintiffs have failed to state a cause of action because
they have not alleged how UMSD’s suspension of Anthony differs from their treatment of other
similarly situated individuals or what “similarly situated” might look like.
In light of the lengthy and confusing nature of the Complaint and the virtual hodgepodge
of allegations contained therein, we feel it necessary to attempt to clarify the nature of Plaintiffs’
Count Two. Considering the Complaint as a whole, and giving due consideration to the
Amendments submitted by Plaintiffs, Count II is properly viewed as a 42 U.S.C. § 1983
(“Section 1983") action.17 We reach this conclusion because Plaintiffs seek to recover damages

any of the alleged causes of action contained in the amended Count One.
16

Plaintiff’s amendment omitting the reference to the Fourteenth Amendment does little
to alter the constitutional nature of the claim. Thus, it is appropriate to analyze Count II under
the Fourteenth Amendment’s equal protection clause.
17

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, subjects,
17

and injunctive relief for what can only be viewed as a constitutional violation arising under the
Fourteenth Amendment, the equal protection clause in particular. Additionally, because the
Defendants are a school district, a superintendent of the school district (in his official capacity),
and a school psychologist (in his official capacity), Plaintiffs are suing “persons” amenable to
suit under the statute. Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 690 (1978).
Although a constitutional violation may give rise to a cause of action in and of itself, the only
means by which to recover the relief sought by Plaintiffs is through the vehicle of Section 1983.
To allege a claim for reverse racial discrimination a plaintiff must allege that “the
defendant treated the plaintiff ‘less favorably than others because of his race . . .’” Iadimarco v.
Runyon, 190 F.3d 151, 163 (3d Cir. 1999) (considering reverse discrimination in employment
context) (citing Furno Const. Corp. v. Waters, 438 U.S. 567, 577 (1978)). See also, DiTommaso
v. Medicines Co., 754 F. Supp. 2d 702, 705 (D.N.J. 2010) (same). In the context of Equal
Protection claims under Section 1983 premised on race, a plaintiff is required to allege that the
defendant treated the plaintiff differently than similarly situated individuals and that the
difference in treatment was motivated by race. Bell v. Pennsbury Sch. Dist., No. 09-5967, 2011
WL 292241, at *5 (E.D. Pa. Jan. 31, 2011).
In Bell, a student alleged that his school district and several employees of the school
district improperly considered his race in their decision to “dismiss” him from the district. 2011

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.
18

WL 292241, at *3. The district court’s analysis considered the defendant’s status as a school
district and applied a standard consistent with Monell. Thus, the Bell court found that, in order
to state a cause of action against the school district under Section 1983, for a school official’s
deprivation of a plaintiff’s constitutional rights, the plaintiff must show that the plaintiff’s injury
resulted from an “official custom or policy”18 of the school district, which was the driving force
behind its or an official’s actions. 2011 WL 292241, at *4 (citing Monell, 436 U.S. at 690-92).
In other words, the district court required that the plaintiff plead and prove that:1) there was a
violation of the plaintiff’s constitutional rights pursuant to an official policy, custom, or practice;
and 2) the school district’s policy or custom caused that violation. Id. See also, Phillis v.
Harrisburg Sch. Dist., 2011 WL 2279674, at *4 (3d Cir. 2011) (slip opinion). It went on to note
that, absent unusual circumstances, “proof of one single incident of unconstitutional activity is
not sufficient to impose liability under Monell.’” Id. (citing Turner v. City of Philadelphia, 22 F.
Supp. 2d 434, 437 (E.D. Pa. 1998)).
Here, Plaintiffs’ allegations are strikingly similar to those at issue in Bell. That is,
Plaintiffs allege that UMSD improperly allowed race to enter into their decision to suspend
Anthony. However, apart from that assertion, Plaintiffs fail to allege that this impermissible
conduct was pursuant to an official policy or custom, or practice or that the policy, custom, or
practice caused that violation. Without more, we find that Plaintiffs have failed to state a cause
of action upon which relief can be granted for reverse racial discrimination.

18

“Policy” includes official proclamations made by a municipal decision maker with final
authority, and “custom” is defined as ‘practices of state officials . . . so permanent and well
settled as to virtually constitute law.’” Kelly v. Borough of Carlisle, 622 F.3d 248, 263 (3d Cir.
2010) (citing Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000)).
19

In addition to the reverse discrimination claim, Plaintiffs allege what could amount to a
“class-of-one” claim under the equal protection clause. To state a class of one equal protection
claim, a plaintiff must allege that he or she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the difference in treatment. Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (citations omitted). In Paragraph 66 of the
Complaint, Plaintiffs state that UMSD discriminatorily reported Anthony to the police after he
pushed a student out of the way, attempting to go to class. (Compl. ¶ 66.) Apparently, friction
between Anthony and the other student began outside of school but continued on school grounds.
Plaintiffs allege that this “is another inconsistency whereas other incidents did not have reports
filed including [Anthony’s] past incidents and Plaintiffs can produce individuals or their parents
in similar situations of the school policy, which affects the future of the children.” (Id.)
The first part of Plaintiffs’ claim fails as they are comparing UMSD’s responses to
Anthony’s previous misconduct to the singular incident where they reported his misconduct to
the police. Thus, they have not alleged that the treatment is different from others similarly
situated. Furthermore, Plaintiffs have not alleged that the difference in treatment was intentional
or that UMSD had no rational basis for the difference in treatment. Finally, Plaintiffs’ have not
sufficiently alleged what characteristics “similarly situated” would encompass. Thus, we find
that Plaintiffs have failed to sufficiently allege a “class-of-one” equal protection claim and we
will dismiss this claim. Thus, we will dismiss Plaintiffs’ Count II in all respects.
3.

Count III: Failure to Provide a Safe Environment and the Right to Know
Law

Count III of Plaintiff’s Complaint alleges that “Defendants failed to provide a safe

20

environment for the [sic] [Anthony] providing an environment known to be part of child
endangerment during each roughly 7-hour day that the Plaintiff[s’] son was in the Defendant[s’]
care. This is a violation of the Right to Know Law.”19 (Compl. ¶ 73.) We assume that Count
Three relates to UMSD’s failure to engage the police to eliminate the alleged presence of heroin
in the school and violence in the school cafeteria.20 The Defendants argue that the Right to
Know Law, 65 P.S. § 67.101 et seq. (“RTKL”) does not create a private right of action for any
sort of failure to provide a safe school environment. The Defendants further argue that there is
no generalized right to a particular level of safety for students within public schools and that the
existing statutes and case law do not create an affirmative duty to create a safe environment.
The RTKL is:
An Act providing for access to public information, for a designated open-records
officer in each Commonwealth agency, local agency, judicial agency and legislative
agency, for procedure, for appeal of agency determination, for judicial review and for
the Office of Open Records; imposing penalties; providing for reporting by Staterelated institutions; requiring the position of certain State contract information on the
Internet; and making related appeals.
65 P.S. § 67.101. The RTKL prohibits a Commonwealth or local agency from denying a
requester access to a public record due to the intended use of the public record by the requester
unless otherwise provided by law. 65 P.S. §§ 67. 301, 67.302. A “requester” is defined as “[a]
person that is a legal resident of the United States and requests a record pursuant to this Act.” 65

19

Plaintiffs submitted an amendment to the Complaint omitting reference to the RTKL.
However, the introductory remarks of the amendment list state that Plaintiffs wished only to omit
all references to federal law. Since the RTKL is a Pennsylvania state law, we assume the
amendment was submitted in error.
20

The Complaint is unclear and does not specify which of the numerous factual
allegations Plaintiffs seek to apply to any count. We have done our best to apply the facts most
fitting to the respective counts.
21

P.S. § 67.101. Should the agency deny a requester access to a public record, the RTKL lays out a
comprehensive administrative enforcement scheme culminating in judicial review. See 65 P.S.
§§ 67.1101, 67.1301. We must point out that the RTKL is only implicated by the request of
public information. Thus, in order for Plaintiffs to state a claim under the RTKL they must
allege that they requested information relating to the safety of the school. In its current form, the
Complaint fails to so state. Furthermore, our review of the overall statute and the relevant case
law has not revealed any affirmative duty upon the Defendants to disclose information relating to
the safety problems complained of by Plaintiffs.
Construing the Complaint in the light most favorable to Plaintiffs, Count II may also be
interpreted as a common law negligence claim, alleging that UMSD breached a duty to keep the
school safe or to inform Plaintiffs of the safety issues occurring on campus. However, even
under the general notice pleading provisions of Federal Rule of Civil Procedure 8(a), a
negligence claim must contain allegations of: (1) the existence of a duty of obligation recognized
by law; (2) a failure on the part of the defendant to conform to that duty or a breach thereof; (3) a
causal connection between the defendant’s breach and the resulting injury; and (4) actual loss or
damage suffered by the complainant. Calex Exp. Inc. v. Bank of America, 401 F. Supp. 2d 407,
412 (M.D. Pa. 2005) (citing T.A. v. Allen, 669 A.2d 360, 362 (Pa. Super. 1995)).
Here, Plaintiffs allege that UMSD had a duty, statutory or otherwise to inform them of
incidents relating to the overall safety of the school. Plaintiffs also allege that UMSD breached
that duty by failing to inform them of the incidents. However, Plaintiffs fail to specify the harm
suffered or a causal link from the failure to affirmatively disclose the presence of fighting or
drugs on school grounds to any such harm. Thus, even under a negligence theory independent of
22

the RTKL, Plaintiffs have not sufficiently alleged a claim for failing to provide a safe
environment. Thus, we will dismiss Count III of Plaintiff’s Complaint.
4.

Count IV: First Amendment Claim

In Count IV, Plaintiffs allege that the Defendants “violated the [First] Amendment of the
United States of America and the Bill of Rights by subjecting [Anthony] to harassment in [sic]
and ridicule as well as mental anguish over the treatment used to question him on numerous
occasions.” (Compl. ¶ 75.) Plaintiffs claim that Anthony was “forced to write ‘confessions’ on a
yellow pad in [the] Disciplinarians [sic] office [] without being advised of his rights to contact
parents in 2007 or without an advocate as stated by Act 504.” (Id. at ¶ 29.) The Defendants
argue that these allegations fall outside of the rights and protections afforded by the First
Amendment and that, even if pled under the Fifth, Fourth, or Fourteenth Amendment, Count
Four still fails to state a claim upon which relief can be granted.
The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the government for a
redress of grievances.
U.S. CONST. amend. I. “At the heart of the First Amendment lies the principle that each person
should decide for himself or herself the ideas and beliefs deserving of expression, consideration,
and adherence.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994). The First
Amendment protects an individual’s freedom of thought against state action and includes both
the right to speak freely and the right to refrain from speaking at all. Wooley v. Maynard, 430
U.S. 705, 714 (1977) (citing West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 633-34

23

(1943) (Murphy, J., concurring)). “A system which secures the right to proselytize religious,
political, and ideological causes must also guarantee the concomitant right to decline to foster
such concepts.” Id. The right to speak and the right to refrain from speaking are complementary
components of the “individual freedom of mind.” Id. (citations omitted).
Here, Plaintiffs do not allege that Anthony was forced to espouse an idea or belief that he
did not share by UMSD or that he was punished by UMSD for refusing to espouse an imposed
idea or belief. Rather, Plaintiffs allege that Anthony had a First Amendment right to remain free
from harassment and to have a parent or advocate present when questioned by UMSD staff
members. Plaintiffs further allege that UMSD violated those rights by failing to inform Anthony
of those rights and demanding that he compose self-incriminating materials. Based on these
allegations, it is most likely that Plaintiffs meant to assert a violation of the Fifth Amendment’s
protection against self-incrimination, applied to the States through the Fourteenth Amendment.
The conduct complained of simply does not fit within the ambit of First Amendment
jurisprudence.
Plaintiffs’ allegations relating to the “confessions” that Anthony was forced to write are
properly analyzed under the Fifth Amendment right against self-incrimination, made applicable
to the states through the Fourteenth Amendment.21 The Fifth Amendment provides in part that
“[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
CONST. amend V. It guarantees “the right of the person to remain silent unless he chooses to
speak in the unfettered exercise of his own free will, and to suffer no penalty . . . for such
21

Although the Defendants discuss whether this Count may be brought under the Fourth
Amendment’s protection against unreasonable searches and seizures, we find no support for such
a claim in the Complaint.
24

silence.” Weaver v. Brenner, 40 F.3d 527, 534 (2d Cir. 1994) (citing Malloy v. Hogan, 378 U.S.
1, 8 (1964)). However, in the context of questioning by school officials, the right against selfincrimination is considerably diminished. In Brian A. ex rel. Arthur A. v. Stroudsburg Area Sch.
Dist., 141 F. Supp. 2d 502, 511 (M.D. Pa. 2001), the parents of a minor student claimed that the
school district had violated their son’s Fifth Amendment right to be free from self-incrimination
by “coercing a confession from [their son] without having first ensured the presence of his
parents and/or attorney and without first Mirandizing him. . .” Id. The district court reiterated
the well-established law that “under the federal constitution, students facing disciplinary action in
public schools are not entitled to Miranda warnings.” Id. (citing Jarmon v. Batory, 1994 WL
313063, at *11 (E.D. Pa. 1994); In re D.E.M. v. Commonwealth, 1999 727 A.2d 570 (Pa. 1999)).
The district court thus determined that the plaintiffs failed to state a claim for a violation of the
Fifth Amendment and dismissed the plaintiff’s Fifth Amendment claims in respect to all alleged
violations. Id.
Plaintiffs’ allegations in Count Four are nearly identical to those at issue in Brian A.
They allege that UMSD violated Anthony’s rights by “forc[ing] him to write ‘confessions’ on a
yellow pad in [the] Disciplinarians [sic] office [] without being advised of his rights to contact
parents in 2007 or without an advocate as stated by Act 504.” (Id. at ¶ 29.) Given the factual
similarities between the parties in this action and the parties in Brian A., we find the reasoning
and conclusions of the Brian A. court persuasive. Thus, we find that Plaintiffs’ have failed to
state a claim for a violation of the Fifth Amendment right against self-incrimination.
If Plaintiffs meant to allege a substantive due process claim, that claim also fails. The
Fourteenth Amendment requires that no State “shall deprive any person of life, liberty, or
25

property, without the due process of law.” U.S. CONST. amend XIV, § 1. To state a due
process claim under the Fourteenth Amendment, a plaintiff must allege that the particular interest
at issue is protected by the substantive due process clause and the government’s deprivation of
that protected interest shocks the conscience. Walsh v. Krantz, 386 Fed. Appx. 334, 336 (3d Cir.
2010) (citing Chainey v. Street, 523 F.3d 200, 219 (3d Cir. 2008)). Accordingly, the first step in
evaluating this type of claim is to identify the exact contours of the underlying right said to have
been violated and to determine whether the plaintiff has alleged a deprivation of a constitutional
right at all. Chainey, 523 F.3d at 219 (citing Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000)
(en banc)).
Here, we infer that Plaintiffs are asserting that Anthony had a right to be free from
harassment by UMSD and its staff either during questioning or otherwise. First, we find that
Plaintiffs have failed to articulate “the contours of the underlying right.” Chainey, 523 F.3d at
219 (citation omitted). Additionally, we find that none of Plaintiffs’ allegations “shock the
conscience.” The Complaint alleges that Anthony has ADHD and that he received numerous
suspensions and other disciplinary actions. However, none of the disciplinary actions are
“shocking” and consist primarily of suspensions. As we discussed above, the First Amendment’s
protections do not contemplate a right to be free from harassment or ridicule or questioning by
school officials nor does the Fifth Amendment. Thus, as a matter of law, Plaintiffs have failed to
allege a substantive due process violation under the Fourteenth Amendment in Count Four of
their Complaint.22, 23
22

We also find that, Plaintiffs have not set forth any allegations relating to an official
policy or custom on the part of UMSD for the kind of constitutional violations encompassed
within Count IV and dismiss Plaintiffs’ constitutional claims in Count Four on those grounds as
26

5.

Count V: Student Handbook Violations

In Count V, Plaintiffs allege that: “The student handbook, which is the regulatory
document that students are to follow, is over ten years old, outdated, and followed by the
Defendants on a basis to justify any actions they feel they have to take. It is a violation of
student’s rights, causing mental anguish to Plaintiff and Plaintiff’s son.” (Compl. ¶ 77.)
Pennsylvania has long recognized a school’s right to enact codes of conduct as a necessary
corollary to providing an education. See generally, Girard Sch. Dist. v. Pittenger, 392 A.2d 261
(Pa. 1978). However, our research uncovered no private cause of action based solely upon the
antiquity of a school’s handbook or code of conduct. The Defendants attempt to tease out
various claims which could conceivably flow from or are in some way connected to, the student
handbook. For instance, the Defendants discuss whether Plaintiffs have alleged claims relating
to due process or how the handbook is used. However, even given Plaintiffs’ pro se status, they
still fail to allege material facts to support any of those claims. Thus, we will dismiss Count V.
6.

Count VI: Malice and Intent

In Count VI of Plaintiffs’ Complaint, they allege that “[t]he actions by the Defendant
were malicious and intentional and were intent on harming the Plaintiff both physically and
mentally.” (Compl. ¶ 79.) Much like Count V, this count also fails to allege any recognizable

well.
23

In their amended filing, Plaintiffs asked us to eliminate all reference to federal law and
to delete the portion of Count IV linking UMSD’s conduct to constitutional violations. Although
still unclear, a liberal construction of the amended Count Four may, if liberally construed, be
interpreted to allege a putative tort for harassment. However, under Pennsylvania law, the tort of
harassment is not a recognized cause of action. DeAngelo v. Fortney, 515 A.2d 594, 596 (Pa.
Super. 1986); see also, Sobel v. Winguard, 531 A.2d 520, 522-23 (Pa. Super 1987).
Accordingly, Count IV fails in all respects.
27

cause of action. Although malice and intent are indeed elements for certain claims, those mental
states are in no way actionable in and of themselves. Accordingly, we must dismiss this Count as
well. 24
C.

Plaintiffs’ Motion for Appointment of Counsel

Having completed our analysis of whether Plaintiffs have sufficiently plead their claims,
we will now consider whether they are entitled to appointment of counsel. First, we must note
that there is no constitutional or statutory right to appointed counsel for civil litigants. Parham v.
Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). Although not constitutionally guaranteed, 28
U.S.C. § 1915(d) does provide for discretionary appointments:
[t]he court may request an attorney to represent any such person unable to employ
counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied
that the action is frivolous or malicious.
Id. In Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993), the Third Circuit enumerated a series of
indeterminable, non-exhaustive factors for the district court to consider in a motion for
appointment of counsel. However, as a threshold issue, it must appear that the plaintiff’s claim
has some arguable merit in fact and law. Id. at 155. The court determined further that if the
district court opines that the plaintiff’s claims are arguably meritorious in law and fact, then the
court will undertake a six-factor test:
(1)

the plaintiff’s ability to present his or her own case;

24

The Defendants have asserted that the Messrs. Milrod and Cohen are entitled to
qualified immunity regarding Plaintiffs’ constitutional claims. The doctrine of qualified
immunity protects government officials “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because we find that
Plaintiffs have failed to allege any conduct that “violates clearly establish statutory or
constitutional rights” 555. U.S. at 231, we need not resolve the issue of qualified immunity.
28

(2)

the complexity of the legal issues;

(3)

the degree to which factual investigation will be necessary and the ability to
pursue such investigation;

(4)

the amount a case is likely to turn on credibility determinations;

(5)

whether the case will require the testimony of expert witnesses; and

(6)

whether the plaintiff can attain and afford counsel on his or her own behalf.

Id. at 155-56. Therefore, the district court is instructed to perform a two-prong analysis in
considering a motion for appointment of counsel: (i) whether plaintiff has presented arguably
meritorious claims; and (ii) whether the balance of the six-factor Tabron test weighs in favor of
appointing counsel.
As this case is a civil action, we will employ the Tabron analysis. Our initial inquiry
then, must be whether Plaintiffs’ claims have some arguable merit in fact and law. As we
discussed above, we have construed Plaintiffs’ claims liberally as befitting their pro se status and
we find that their claims are not arguably meritorious.25 Thus, we will decline to appoint counsel
for all Plaintiffs.
An appropriate Order follows.

25

Our reliance on pleadings and submissions prepared by Van C. Sher and Carol L. Sher
in deciding the instant Motion and Request for Appointment of Counsel is consistent with the
practice of courts facing similar situations where pro se parent litigants request that the court
appoint counsel to represent their minor children. See Banks-Bennett v. O’Brien, No. 08-1588,
239 Fed. Appx. 108, at *1 (3d Cir. Aug. 29, 2008) (unpublished opinion) (affirming district
court’s denial of pro se parent’s request for appointment of counsel to represent her son); Dunbar
v. Colasanto, No. 3:05-cv-1234 (CFD), 2006 WL 798883, at *1 (D. Conn. March 24, 2006)
(denying parent litigant’s pro se request for appointment of counsel for her minor child).
29