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Frogge v. Fox

United States District Court, N.D. West Virginia

February 27, 2018

VANESSA FROGGE, Plaintiff,
v.
CRAIG FOX doing business as Mountain Line Transit Authority Defendant.

          KEELEY JUDGE

          REPORT AND RECOMMENDATION

          MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.

         This matter before the undersigned is pursuant to Defendant Craig Fox's “Motion to Dismiss” filed on September 15, 2017. (ECF No. 4). Prior to the filing of the motion, District Court Judge Irene M. Keeley entered an order referring to the undersigned, for written orders or report and recommendations, any motions filed in this case. (ECF No 2).

         I. Relevant Procedural History

         Plaintiff, Vanessa Frogge, initiated this case by filing a pro se complaint in the Magistrate Court of Monongalia County in Morgantown, West Virginia, on April 20, 2017. (ECF No. 3-1 at 1). On June 2, 2017, Defendant Craig Fox, d.b.a. the Mountain Line Transit Authority timely filed a notice of removal of Plaintiff's suit to the Circuit Court of Monongalia County under W.Va. Code § 50-4-8, at which time the Circuit Court assumed control of the matter. (ECF No. 3-1 at 30-34). At the same time, Mr. Fox filed a Motion to Dismiss Plaintiff's Complaint, arguing that the Complaint was in violation of W.Va. Code §§ 29-12A-13; 29-12A-6(d). (ECF No. 4-1 at 2). The Court heard argument on Mr. Fox's Motion to Dismiss on August 15, 2017. Id. The Court ordered Ms. Frogge to file an amended complaint within twenty (20) days of the hearing. (ECF No. 4-1 at 2). Ms. Frogge filed an Amended Complaint against Defendant, Craig Fox, d.b.a. the Mountain Line Transit Authority, in the Circuit Court of Monongalia County, West Virginia, on August 29, 2017. (ECF No 3-5).

         The case was removed to the United States District Court for the Northern District of West Virginia, on September 8, 2017. On September 15, 2017, Mr. Fox filed the pending “Motion to Dismiss” (ECF No. 4). The undersigned issued a Roseboro Notice to Ms. Frogge, on October 25, 2017. On November 6, 2017, Ms. Frogge, filed a response to Defendant's motion and a Request for Pro Se Packet. (ECF No. 12). Mr. Fox did not file a reply. After consideration of the parties' filings, and finding no hearing deemed necessary, for the following reasons, the undersigned recommends that Mr. Fox's Motion to Dismiss be granted.

         II. Relevant Background

         In her initial Complaint, filed in the Magistrate Court of Monongalia County in Morgantown, West Virginia, Ms. Frogge asserted a claim of discrimination against Defendant Craig Fox, d.b.a. Mountain Line Transit Authority and sought $10, 000 in damages. (ECF No. 3-1 at 1).

         In the Amended Complaint, Ms. Frogge brings a claim of discrimination against Defendant, Craig Fox, pursuant to Title II of the Americans with Disabilities Act of 1990 (ADA). (ECF No. 3-5). Ms. Frogge alleges that within his official capacity, Defendant Fox discriminated against her as “an opinionated individual acting on his/her own behalf” when he denied her 'Route Deviation Request' in December 2016 and that such conduct “was outside the scope of his employment as a government official.” (ECF No. 3-5 at 9).

         According to her Amended Complaint, Ms. Frogge suffers from a neck condition and lives in an apartment complex on Scott Avenue in Morgantown, West Virginia. She submitted a route deviation request to Mountain Line, asking for a new bus stop to be established at the top of the hill, presumably, within her apartment complex. She further alleges that “there is no sidewalk connecting [her] apartment to a hill and several flights of stairs leading to the bus stop.” (ECF No. 3-5 at 8). She also alleges that when Defendant conducted a site visit to consider the proposed deviation request, he failed to include consideration for her disability. Id. Mr. Fox denied Ms. Frogge's request determining that the roads in Ms. Frogge's apartment complex were too small and did not have an acceptable place for the bus to turn around. Mr. Fox further determined that fundamental changes would have significantly impacted passengers. (ECF No. 3-5 at 5, 6).

         In her request for relief, Ms. Frogge includes a list of damages totaling approximately $50, 000. (ECF No. 3-5 at 10-11). The list includes several medical procedures she found on “surgery-guide.com” (including hernia removal of the spine, spondylolisthesis fusion, and removal of bones for fusion) and a “Kia Niro at $22, 890, ” which she found in the Kelly Blue Book. (ECF No. 3-5 at 9-10). On November 13, 2017, Ms. Frogge filed a “Settlement Demand Letter” seeking “two years' salary: $64, 800, ” a figure she arrived at by using the Average Median Income in Morgantown, West Virginia, which she determined is $32, 400. (ECF No. 13). She also itemized specific damages in the letter, in her own words, as follows:

1) $4, 800 toward preliminary healthcare;
2) $20, 000 toward healthcare for actual physical damages incurred trekking to ...

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