United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION
MICHAEL JOHN ALOI UNITED STATES MAGISTRATE JUDGE.
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
Relevant Procedural History
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).
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.
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).
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).
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).
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 ...