E.R. and I.R., SR. v. Stroudsburg Area School District et al

Filing 55

MEMORANDUM (Order to follow as separate docket entry) re 33 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION to Dismiss for Lack of Jurisdiction filed by Colonial Intermediate Unit 20, 31 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Stroudsburg Area School District, 45 MOTION to Dismiss filed by Suzanne Dellorusso Signed by Honorable Malachy E Mannion on 9/29/17. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
E.R. and I.R., Sr., Individually
and as Parents and Natural
Guardians of I.R., Jr., a minor,

:

v.

CIVIL ACTION NO. 3:16-1593

:

Plaintiffs

:

(JUDGE MANNION)

:

STROUDSBURG AREA SCHOOL
DISTRICT, COLONIAL
INTERMEDIATE UNIT 20 and
SUZANNE DELLORUSSO,

:
:
:

Defendants
:
MEMORANDUM
Pending before the court are: (1) a motion to dismiss the plaintiffs’
complaint filed on behalf of defendant Stroudsburg Area School District,
(“School District”), (Doc. 31); (2) a motion to dismiss the plaintiffs’ complaint
on behalf of defendant Colonial Intermediate Unit 20, (“CIU”), (Doc. 33); and
(3) a motion to dismiss the plaintiffs’ complaint brought on behalf of defendant
Dellorusso, (“Dellorusso”), (Doc. 45). Upon review of the defendants’ motions
and the materials related thereto, the motions will be granted as the court
finds that the plaintiffs have failed to exhaust their administrative remedies
with respect to their federal claims. Moreover, the court will decline to exercise
supplemental jurisdiction over the plaintiffs’ state law claims.

I.

PROCEDURAL HISTORY

By way of relevant background, the plaintiffs filed the instant action on
August 1, 2016. (Doc. 1). An amended complaint was filed on November 14,
2016, in which the plaintiffs allege that all defendants failed to provide plaintiff
I.R., Jr., with a free appropriate public education, (“FAPE”“), thus unlawfully
discriminating against him in violation of the 14th Amendment; all defendants
violated the plaintiffs’ rights under the Individuals with Disability Education Act,
(“IDEA”), by failing to identify, evaluate and provide I.R., Jr., with a FAPE and
by physically and verbally abusing him; defendant Dellorusso committed
assault and battery against plaintiff I.R., Jr.,; defendant Dellorusso
intentionally inflicted emotional distress upon plaintiff I.R., Jr.; defendant
Dellorusso breached her fiduciary duty to I.R., Jr.; all defendants violated
Section 504 of the Rehabilitation Act, 29 U.S.C. §794; and defendant
Dellorusso engaged in willful misconduct. (Doc. 25). The defendant School
District filed a motion to dismiss the plaintiffs’ amended complaint on
December 14, 2016, (Doc. 31), along with a brief in support thereof, (Doc.
32). The plaintiffs filed a brief in opposition to the defendant School District’s
motion to dismiss on February 8, 2017. (Doc. 39). A reply brief was filed by
the defendant School District on February 22, 2107. (Doc. 41).
In the meantime, defendant CIU also filed a motion to dismiss the

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plaintiffs’ complaint on December 14, 2016. (Doc. 33). A supporting brief was
filed on December 28, 2016. (Doc. 35). On February 8, 2017, the plaintiffs
filed a brief in opposition to defendant CIU’s motion to dismiss. (Doc. 40).
On March 16, 2017, defendant Dellorusso filed a motion to dismiss the
plaintiffs’ complaint, (Doc. 45), with a supporting brief following on March 30,
2017, (Doc. 48). The plaintiffs filed a brief in opposition to defendant
Dellorusso’s motion on May 1, 2017.

II.

LEGAL STANDARD

The defendants’ motions to dismiss are brought pursuant to the
provisions of Fed.R.Civ.P. 12(b)(1) and 12(b)(6). “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). Because the district court is a court of limited jurisdiction, the

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burden of establishing jurisdiction always rests upon the party asserting it.
See Kokkonen v. Guardian Life. Ins. Co. of America, 511 U.S. 375, 377
(1994).
An attack on the court’s jurisdiction may be either “facial” or “factual”
and the “distinction determines how the pleading must be reviewed.”
Constitution Party of Pennsylvania v. Aichele, 757 F.3d 347, 357 (3d Cir.
2014). A facial attack tests the sufficiency of the pleadings, while a factual
attack challenges whether a plaintiff’s claims fail to comport factually with
jurisdictional prerequisites. Id. at 358; see also S.D. v. Haddon Heights Bd.
of Educ., 833 F.3d 389, 394 n. 5 (3d Cir. 2016). If the defendant brings a
factual attack, the district court may look outside the pleadings to ascertain
facts needed to determine whether jurisdiction exists. Id.
Reviewing a facial attack, a district court must accept the allegations
stated in a plaintiff's complaint and review “only whether the allegations on the
face of the complaint, taken as true, allege facts sufficient to invoke the
jurisdiction of the district court.” Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d
181, 188 (3d Cir. 2006) (internal quotation marks omitted). “Thus, a facial
attack calls for a district court to apply the same standard of review it would
use in considering a motion to dismiss under Rule 12(b)(6), i.e., construing
the alleged facts in favor of the nonmoving party. This is in marked contrast

4

to the standard of review applicable to a factual attack, in which a court may
weigh and ‘consider evidence outside the pleadings.’” Aichele, 757 F.3d at
358 (quoting Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
2000)) (internal citation omitted). An attack on jurisdiction based on a failure
to exhaust remedies that is filed prior to answering the complaint is usually,
“by definition, a facial attack” on the pleadings unless the defendant has
offered factual averments in support of its motion. Haddon Heights, 833 F.3d
at 394 n. 5.
Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in
part, if the plaintiff fails to state a claim upon which relief can be granted. The
moving party bears the burden of showing that no claim has been stated,
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is
appropriate only if, accepting all of the facts alleged in the complaint as true,
the plaintiff has failed to plead “enough facts to state a claim to relief that is
plausible on its face,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct.
1955, 1974 (2007) (abrogating “no set of facts” language found in Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to
“raise a right to relief above the speculative level.” Twombly, 550 U.S. 544,
127 S. Ct. at 1965. This requirement “calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of” necessary

5

elements of the plaintiff’s cause of action. Id. Furthermore, in order to satisfy
federal pleading requirements, the plaintiff must “provide the grounds of his
entitlement to relief,” which “requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will not do.” Phillips
v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (brackets and
quotations marks omitted) (quoting Twombly, 550 U.S. 544, 127 S. Ct. at
1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
1261 (3d Cir. 1994).

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Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). “Dismissal without leave to amend is justified
only on the grounds of bad faith, undue delay, prejudice, or futility.” Alston v.
Parker, 363 F.3d 229, 236 (3d Cir. 2004).

III.

DISCUSSION

The allegations of the plaintiffs’ complaint provide that I.R., Jr., was born
on March 14, 2005 and was eleven years old at the time the instant action
was filed.1 He has been diagnosed as being profoundly developmentally
delayed with an autism spectrum disorder and a moderate intellectual
disability which have impacted development in the areas of social interaction
and communication skills. His specific condition renders him low functioning
with impairments of emotional, verbal, speech and physical behavior
impairments.
In October of 2014, the plaintiffs’ complaint provides that E.R. and I.R.,

1

For purposes of the instant motions to dismiss, the allegations of the
plaintiffs’ complaint are accepted as true.
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Sr., enrolled I.R., Jr., in the Stroudsburg Area School District, and requested
that he be placed at the Chipperfield elementary location of the District in the
autistic support class. The parents’ request was denied and I.R., Jr., was
placed in defendant CIU’s classroom at the East Stroudsburg School District.
From the time I.R., Jr., was placed in the CIU classroom at East
Stroudsburg until November 12, 2014, defendant Dellorusso was an associate
teacher. During the course of her duties as an associate teacher, defendant
Dellorusso continually and systematically employed the use of aversive
techniques which were deliberate activities to establish a negative association
with a specific behavior. Defendant Dellorusso used adverse techniques in an
attempt to redirect I.R., Jr., and her special needs students. These techniques
included, but were not limited to: pushing I.R., Jr., in the neck; using improper
methods to restrain I.R., Jr.; violently pushing I.R., Jr., to the floor; violently
pushing I.R., Jr., in the upper chest and shoulder areas; acting aggressively
towards I.R., Jr.; pulling I.R., Jr.’s, hair; using an open hand to hit I.R., Jr., in
the arm in an aggressive manner; grabbing I.R., Jr., by the neck; choking I.R.,
Jr.; assaulting I.R., Jr.; picking I.R., Jr., up to his feet from the floor by his hair;
slapping the arm of I.R., Jr., hard enough to inflict pain and slapping I.R., Jr.,
with an open hand.
As to these techniques, the plaintiffs specifically allege that, on a date

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certain between October 1, 2014 and November 13, 2014, while with I.R., Jr.,
near an elevator in the hallway, defendant Dellorusso pushed I.R., Jr., by the
neck. This action was witnessed by I.R., Jr.’s, teacher, Ashley Fehr.
On another occasion between October 1, 2014 and November 13, 2014,
I.R., Jr., was having an outburst and was placed in a safe corner so as to
calm down. I.R., Jr., attempted to get out of the corner by trying to climb over
a makeshift wall. As he did so, the plaintiffs allege that defendant Dellorusso
violently pushed I.R., Jr., in the upper chest and shoulder area to the floor.
This action was again witnessed by Ashley Fehr.
Again, between October 1, 2014 and November 13, 2014, defendant
Dellorusso pulled I.R., Jr., by the hair, which was witnessed by a CIU
employee, Brian Labar. On yet another occasion during this time period,
defendant Dellorusso used an open hand to hit the arm of I.R., Jr., in an
aggressive manner. This was also witnessed by Mr. Labar.
On another occasion, defendant Dellorusso grabbed I.R., Jr., by the
neck, which was witnessed by Mr. Labar. In response to questioning by Mr.
Labar as to why she engaged in such action, defendant Dellorusso allegedly
stated that I.R., Jr., was attempting to choke her, so she choked him back.
Again, during this same time frame, the complaint alleges that
Defendant Dellorusso removed I.R., Jr., and other students from the

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classroom due to another child having an outburst. At this time, defendant
Dellorusso pushed I.R., Jr., into a wall. This action was witnessed by Ms.
Fehr, Mr. Labar, and another student.
On another occasion, while I.R., Jr., was in the classroom having an
outburst, he was sitting, lying and screaming on the floor. At this time,
defendant Dellorusso picked I.R., Jr., up to his feet by pulling a braid on his
hair. This action was witnessed by Mr. Labar.
On an occasion when I.R., Jr., was attempting to get out of the safe
corner and was reaching for defendant Dellorusso, she used her open hand
to slap the arm of I.R., Jr., hard enough to inflict pain.
Eventually, the plaintiffs allege that law enforcement was notified with
respect to the actions taken against I.R., Jr., by defendant Dellorusso. The
allegations of abuse were investigated and established and, as a result,
defendant Dellorusso was charged criminally. Defendant Dellorusso pled
guilty and was incarcerated for a period of time.
Despite the fact that the defendant School District and defendant CIU
were aware of the allegations against defendant Dellorusso, the plaintiffs
allege that neither informed I.R., Jr.’s, parents. As a result, I.R., Jr., remained
in the autistic support classroom at East Stroudsburg where the abuse had
occurred. It was not until March of 2015, when a newspaper reporter brought

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it to their attention did I.R., Jr.’s, parents learn of what had happened. Upon
learning this information, I.R., Jr.’s, parents removed him from the autistic
support classroom and medical attention was sought for him.
In April of 2015, the plaintiffs allege that I.R., Jr.’s, parents presented a
note from his treating physician requesting homebound education for him. In
response, neither defendant School District nor defendant CIU provided
homebound instruction. Instead, the complaint alleges that the parents were
convinced to place I.R., Jr., in the autistic support classroom at Chipperfield
Elementary, where they had originally requested that he be placed.
I.R., Jr., was placed at Chipperfield Elementary beginning in April of
2015 through October 26, 2015. While there, the plaintiffs allege that staff
members of the defendant School District and defendant CIU continued to
physically restrain I.R., Jr., on occasion, against the wishes and permission
of his parents.
Overall, the plaintiffs allege that defendant School District and
defendant CIU failed to provide I.R., Jr., a FAPE in a setting in which he would
not be restrained. As a result of the abuse suffered by I.R., Jr., at the hands
of defendant Dellorusso, his parents allege that he has required treatment
with a forensic counselor, who has explained to the defendants that I.R., Jr.,
has a negative association with the abuse that he suffered at the hands of

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defendant Dellorusso, and that such negative association is repeated each
time he is restrained at school. Based upon this negative association, the
plaintiffs allege that I.R., Jr.’s, therapist has recommended that he not be
subjected to hands-on restraints. Despite this, the plaintiffs allege that the
defendant School District and defendant CIU have failed to honor this
recommendation. As a result of the defendants’ failure to provide a plan for
the education of I.R., Jr., that calls for no hands-on restraints of him and their
failure to provide him homebound education, the plaintiffs allege that he has
been unable to attend school since October 26, 2015.
The plaintiffs’ complaint provides that an administrative process on the
issues of whether I.R., Jr.’s, placement, as well as the IEP proposed by the
defendant School District were appropriate, was conducted before the
Honorable William F. Culleton, Esquire, Chief Hearing Officer. To this extent,
hearings were held on January 14, February 17, February 29 and March 30,
2016, at which multiple witnesses testified and various documents were
entered into evidence. The plaintiffs allege that they, the defendant School
District and defendant CIU participated in the administrative proceedings.2 A
copy of the decision of the hearing officer is appended to the plaintiffs’

2

The decision of the special hearing officer attached to the plaintiffs’
complaint as Exhibit A reflects that only the parents and the defendant School
District were parties to the hearing. (Doc. 25, Ex. A).
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complaint and demonstrates that the defendant School District requested the
due process hearing in order to determine whether or not it has offered a
FAPE to I.R., Jr., and to request an order authorizing it to re-evaluate I.R., Jr.,
without parental consent. The hearing officer noted that the parents did not
file for due process and did not request a hearing officer order. The hearing
officer listed the issues considered: (1) Does the June 10, 2015 IEP, as
revised, offer Student a free appropriate public education as defined in the
IDEA? (2) Is Student’s current placement in a full-time autistic support
classroom operated by the governing Intermediate Unit and located in the
Student’s neighborhood school an appropriate placement, notwithstanding the
classroom program’s use of restraint? and (3) Should the Hearing Officer
authorize the District to proceed with re-evaluation of the Student,
notwithstanding Parents’ revocation and withholding of consent? A decision
was issued on May 3, 2016, in which the hearing officer concluded that the
School District had offered I.R., Jr., a FAPE and authorized the defendant
School District to re-evaluate I.R., Jr., in the absence of parental consent. In
the instant amended complaint, the plaintiffs allege that they are using this
action as an appeal from the decision of the hearing officer.
With respect to the claims in the plaintiffs’ amended complaint, as
discussed above, the plaintiffs allege in Count I that the failure of the

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defendants to provide I.R., Jr., with a FAPE constitutes unlawful
discrimination against him and other autistic children in violation of the equal
protection and due process clauses of the 14th Amendment. In Count II the
plaintiffs allege that the defendants violated the IDEA by failing to identify,
evaluate and provide I.R., Jr., with a FAPE and by physically and verbally
abusing him. Counts III, IV and V allege state law claims for assault and
battery, intentional infliction of emotional distress, and breach of fiduciary duty
against defendant Dellorusso only. Count VI is brought against all defendants
under the Rehabilitation Act and alleges that the defendants discriminated
against I.R., Jr., because of his disabilities in that they failed to provide him
with the same protection that all other students were provided by failing to
protect him from not having to be subjected to physical and mental abuse by
defendant Dellorusso. Finally, Count VII is another state law claim for willful
misconduct against defendant Dellorusso only.
In their motions to dismiss, all defendants argue that the court lacks
subject matter jurisdiction over the plaintiffs’ claims based upon their failure
to exhaust administrative remedies with respect to the claims which they now
attempt to raise. In this regard, the IDEA was enacted, in part, to “ensure that
all children with disabilities have available to them a free appropriate public
education [ (“FAPE”) ] that emphasizes special education and related services

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designed to meet their unique needs.” 20 U.S.C. §1400(d)(1)(A). The IDEA
conditions a state’s receipt of federal funds for special education programs on
its implementation of “policies and procedures to ensure that . . . [a FAPE] is
available to all children with disabilities.” 20 U.S.C. §1412(a)(1)(A). As a
recipient of federal funds, Pennsylvania has adopted the IDEA. See 22 Pa.
Code §14.101.
“The ‘primary vehicle’ for implementing a FAPE is the Individualized
Educational Program [(“IEP”)].” Melissa S. v. Sch. Dist. of Pittsburgh, 183
Fed.Appx. 184, 186-87 (3d Cir. 2006). “The IEP consists of a detailed written
statement arrived at by a multi-disciplinary team summarizing the child’s
abilities, outlining the goals for the child’s education and specifying the
services the child will receive.” Polk v. Cent. Susquehanna Intermediate Unit
16, 853 F.2d 171, 173 (3d Cir. 1988) (citing 30 C.F.R. §300.347).
States must also set up procedures under the IDEA to ensure that
children with disabilities and their parents are afforded a due process hearing
concerning “any matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C.
§1415(b)(6)(A). Exhaustion of the administrative remedies available under the
IDEA “serves the purpose of developing the record for review on appeal,
encouraging parents and the local school district to work together [,] . . . and

15

allowing the education agencies to apply their expertise and correct their own
errors.” Batchelor, 759 F.3d at 275 (internal citations omitted). After
exhausting the state’s administrative remedy, parties unsatisfied with the
result may seek judicial review in federal court. Id. §1415(i)(2)(A). A federal
court may then grant “such relief as [it] determines is appropriate.” Id.
§1415(i)(2)(c).
The IDEA requires exhaustion not only in actions brought directly under
the IDEA, but also “in non-IDEA actions where the plaintiff seeks relief that
can be obtained under the IDEA.” Id. at 272. This is directly in accordance
with §1415(l) of the IDEA statute. Section 1415(l) provides:
Nothing in this chapter shall be construed to restrict or limit the
rights, procedures, and remedies available under the Constitution,
the Americans with Disabilities Act of 1990 [42 U.S.C. §12101 et
seq.], title V of the Rehabilitation Act of 1973 [29 U.S.C. §791 et
seq.], or other Federal laws protecting the rights of children with
disabilities, except that before the filing of a civil action under
such laws seeking relief that is also available under this
subchapter, the procedures under subsections (f) and (g) shall be
exhausted to the same extent as would be required had the action
been brought under this subchapter.
20 U.S.C. §1415(l). “This provision bars plaintiffs from circumventing [the]
IDEA’s exhaustion requirement by taking claims that could have been brought
under [the] IDEA and repackaging them as claims under some other statute.”
Batchelor, 759 F.3d at 272. To avoid this result, there is a “strong policy . . .
requiring exhaustion of remedies available under the IDEA.” Id. at 275 (citing
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Komninos v. Upper Saddle River Bd. of Educ., 13 F.3d 775, 778 (3d Cir.
1994)).
Although several exceptions exist to the IDEA’s administrative
exhaustion requirement, none are argued to apply here. The Third Circuit has
recognized exceptions to the exhaustion requirement where: (1) exhaustion
would be futile; (2) the issue presented is purely a legal question; (3) where
the administrative agency cannot grant relief; and (4) where exhaustion would
cause severe or irreparable harm (an emergency situation). Komninos, 13
F.3d at 778. As it relates to the third exception, however, the Third Circuit in
Batchelor clarified that the relief sought does “not dictate the applicability of
the IDEA.” 759 F.3d at 277. “[T]he [d]istrict [c]ourt is not constrained in the
relief it is authorized to grant by the remedies sought in the [plaintiff’s]
[c]omplaint.” Id. at 276. Instead, it is the nature of the claims and the
governing law that determines the relief. Id. (citing Fed.R.Civ.P. 54(c)).
In this case, the plaintiffs argue that they have exhausted their
administrative remedies by way of the due process hearing that resulted in the
hearing decision of May 3, 2016. The court finds that the due process hearing
requested by the defendant School District does not operate to satisfy the
exhaustion requirement for the claims raised by the plaintiffs in the instant
action.

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Initially, in his decision, the hearing officer was careful to note that the
School District, not the plaintiffs, requested the due process hearing and that
the plaintiffs had never requested a hearing officer order. Moreover, the
gravamen of the plaintiffs’ amended complaint in this case relates to I.R.,
Jr.’s, time in the CIU classroom at East Stroudsburg from October 2014
through November 2014, the actions of defendant Dellorusso during that time,
and the defendants’ response thereto. The issues addressed by the
Pennsylvania Special Education Hearing Officer, as requested by the
defendant School District, related to the appropriateness of the IEP put in
place on June 10, 2015, after I.R., Jr., had been removed from East
Stroudsburg and placed in Chipperfield Elementary; whether I.R., Jr.’s,
placement in Chipperfield Elementary was an appropriate placement,
notwithstanding the classroom program’s use of restraints; and whether the
hearing officer should authorize the School District to re-evaluate I.R., Jr.,
notwithstanding his parents’ revocation and withholding of consent. There is
no indication that the matters raised by the plaintiffs in their amended
complaint relating to I.R., Jr.’s, time at East Stroudsburg and his exposure to
the actions of defendant Dellorusso were substantively raised and addressed
at the due process hearing requested by the defendant School District. The
failure of the plaintiffs to raise the issues presented in the instant action at a

18

due process hearing preclude them from pursuing their IDEA claim, as well
as their claims under Section 504 and the 14th Amendment, in this court.
Accordingly, defendants’ motions are granted and the plaintiff's federal claims
alleging violations of the 14th Amendment, (Count I), the IDEA, (Count II), and
violations of Section 504 under the Rehabilitation Act, (Count V), are
dismissed without prejudice.
As to the remaining Counts III, IV, V and VII, the court will decline to
exercise supplemental jurisdiction over the plaintiffs’ state law tort claims
against defendant Dellorusso individually. District courts may decline to
exercise supplemental jurisdiction over a state law claim if the district court
has dismissed all claims over which it has original jurisdiction. 28 U.S.C.
§1367(c)(3). When deciding whether to exercise supplemental jurisdiction, “a
federal court should consider and weigh in each case, and at every stage of
the litigation, the values of judicial economy, convenience, fairness, and
comity.” City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173 (1997)
(quoting Carnegie-Mellon Univ. v. Cahill, 484 U.S. 343, 350 (1988)). The Third
Circuit has held that “where the claim over which the district court has original
jurisdiction is dismissed before trial, the district court must decline to decide
the pendent state claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an affirmative justification for

19

doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (quoting
Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)). The
court can find no justification for exercising jurisdiction over the plaintiffs’ state
law claims against Dellorusso.

IV.

CONCLUSION
Based upon the foregoing, the defendants’ motions to dismiss the

plaintiffs’ amended complaint for failure to exhaust administrative remedies,
(Doc. 31, Doc. 33, Doc. 35), will be granted and the plaintiffs’ amended
complaint will be dismissed without prejudice in this respect. Further, the court
will decline to exercise supplemental jurisdiction over the plaintiffs’ state law
claims. An appropriate order shall issue.

s/Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: September 29, 2017
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