NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 22-2671 ____________

RONALD BREDA; MELANIE BREDA; JOSEPH BREDA, Appellants

v.

DELAWARE VALLEY SCHOOL DISTRICT

____________

On Appeal from the United States District Court for the Middle District of Pennsylvania District Judge: Honorable Jennifer P. Wilson (District Court No. 3:20-cv-01853) ____________

Submitted Under Third Circuit L.A.R. 34.1(a) June 5, 2023

Before: HARDIMAN, AMBRO, and FUENTES, Circuit Judges.

(Filed: June 13, 2023)

____________

OPINION* ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. HARDIMAN, Circuit Judge.

Joseph Breda, along with his parents Ronald and Melanie Breda, appeal the

District Court’s order dismissing their claim for denial of educational benefits with

prejudice. We will affirm.

I1

Joseph Breda was a student at the Delaware Valley School District (the School

District). In elementary school he was identified as having a learning disability. The

School District provided him with an Individualized Education Plan but later withdrew it

for Joseph’s eighth grade year and did not reinstate it despite later objections by Joseph’s

parents. During Joseph’s tenth grade year his parents filed a complaint with the School

District that resulted in Joseph receiving a math tutor and additional time to complete

tests as part of a Service Agreement pursuant to Chapter 15 of the Pennsylvania Code.

The allegedly discriminatory conduct forming the basis for this suit occurred

when, in eleventh grade, Joseph enrolled in a nursing occupational program. A “Ms.

Coyle” supervised the program. Coyle allegedly harassed Joseph and threatened to throw

him out of the program. The Bredas filed a complaint with the School District and Coyle

was reprimanded. Coyle allegedly continued to harass Joseph by accusing him of

cheating and refused to let him take completed work home. So the Bredas complained

1 We review de novo the District Court’s order granting a motion to dismiss. Allen v. DeBello,

(3d Cir. 2017). We apply the same standard as the District Court, so we accept as true the Bredas’ allegations and draw all reasonable inferences in their favor. Foglia v. Renal Ventures Mgmt., LLC,

, 154 n.1 (3d Cir. 2014).

2 again. The parties entered into another Chapter 15 Service Agreement, this time

providing that Coyle was to have no contact with Joseph. But Coyle later “bump[ed]” and

“bang[ed]” into Joseph in what the Bredas contend was an “apparent attempt to threaten,

harass and annoy Joseph.” App. 135 (Amended Complaint ¶ 22). Joseph sought

counseling after the incident. The counselor recommended homeschooling and Joseph

later withdrew from the School District when the family moved to Florida. The Bredas

sued the School District. In a one-count complaint, they claimed discrimination against

Joseph based on his disability. They also claimed the School District denied Joseph a free

appropriate public education and failed to protect him from physical and mental abuse in

violation of Section 504 of the Rehabilitation Act and Pennsylvania’s parallel provisions

in Chapter 15 of the Pennsylvania Code.

The case was referred to a magistrate judge for pretrial management pursuant to

(b)(1)(B). After the District Court agreed with the Magistrate Judge’s

recommendation to dismiss the complaint, the Bredas filed an Amended Complaint. On

consideration of the School District’s motion to dismiss the Amended Complaint, the

Magistrate Judge flagged the Amended Complaint as “virtually identical” to the first

complaint and again recommended dismissal. App. 179–181. The Bredas filed objections

to the Magistrate Judge’s Report and Recommendation, but the District Court adopted it

and dismissed the Amended Complaint. The Bredas timely appealed.

3 II2

The Bredas argue the District Court erred in denying their objections to the

Magistrate Judge’s R & R and in granting the School District’s motion to dismiss. We

disagree. The District Court correctly applied clear error review because the Bredas’

objections were not specific.

The District Court did not err in granting the motion to dismiss because the

Bredas’ Amended Complaint failed to state a claim under Section 504 of the

Rehabilitation Act and Chapter 15 of the Pennsylvania Code.3

The Magistrate Judge found that the only factual allegation in the Amended

Complaint to indicate discrimination was the “bump[]” by Coyle. App. 190 (quoting

Amended Complaint ¶ 22). The Bredas argued in their objections and now on appeal that

there was no single incident, but rather repeated harassment. We consider the bump and

prior statements together and determine the allegations insufficient to state a claim.

Isolated comments or conduct by a teacher, while perhaps hurtful, do not violate

the Rehabilitation Act in the absence of allegations that the student was excluded from

participation in educational activities or denied educational benefits. See Ridley Sch. Dist.

2 The District Court had jurisdiction under

and 1367. We have jurisdiction under

. 3 We apply the same analysis to these two laws. See

(Chapter 15 does not “preempt, create, supplant, expand or restrict the rights or liabilities of protected handicapped students or school entities beyond what is contemplated by Section 504.”); see also Lower Merion Sch. Dist. v. Doe,

(Pa. 2007) (“Chapter 15 of the Pennsylvania Code, before it says anything else, states it is meant to comply with § 504 and its implementing regulations.”). 4 v. M.R.,

(3d Cir. 2012). Here there is nothing alleged that would

suggest that Coyle’s statements resulted in any denial of Joseph’s participation in the

program or that Coyle’s conduct rose to the level of discrimination under the

Rehabilitation Act.

The Bredas had to plead that Joseph’s disability was the cause of the

discrimination or denial of the benefits. See Andrew M. v. Delaware County Off. Mental

Health and Mental Retardation,

(3d Cir. 2007). But they did not allege

facts to suggest Joseph’s disability was the cause of discrimination. The Amended

Complaint’s conclusory allegations of harassment do not suffice. See Fowler v. UPMC

Shadyside,

(3rd Cir. 2009).

The Bredas further argue that Vicky M. v. N.E.I.U. established that abuse by school

district staff is sufficient to demonstrate that a free and appropriate education was not

provided. See

, 736–37 (M.D. Pa. 2009). Vicky M. is not binding

authority and does not make their Amended Complaint sufficient. Vicky M. involved

ample evidence of extreme repeated abuse over two years.

. Here there is an

allegation of Coyle “bumping” into Joseph once and making some scattered statements,

which did not amount to or result in the School District’s exclusion of Joseph from

educational opportunities or programs due to any alleged disability. So the Bredas failed

to state a plausible claim for relief.

Finally, we also agree with the School District that the Bredas’ claim fails because

they did not allege facts to show any intentional conduct committed by the School

District, as required for compensatory damages, the only relief sought. See S.H. ex rel.

5 Durrell v. Lower Merion Sch. Dist.,

(3d Cir. 2013). To the contrary,

the Amended Complaint catalogs how the School District responded to the Bredas’

complaints and accommodated Joseph. The Amended Complaint thus failed to allege

anything beyond mere negligence, which is insufficient to make out a claim against the

School District under Section 504 and its state counterpart. See

.

* * *

For the foregoing reasons, we will affirm the District Court’s order.

6