Vincent Dutkevitch, a minor by v. Pa Cyber Charter School

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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No. 09-2393
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VINCENT DUTKEVITCH,
a minor by and through his parent Sharon Dutkevitch;
SHARON DUTKEVITCH,
individually and on behalf of her son,
Appellants
v.
PA CYBER CHARTER SCHOOL; CEO NICK TROMBETTA;
PA STATE DEPARTMENT EDUCATION;
REBECCA MANNING, Director of Special Education;
GERALD ZAHORCHAK; PA SECRETARY OF EDUCATION;
DIRECTOR SPECIAL EDUCATION,
in their official and individual capacities;
WEST SIDE AREA VO-TECH SCHOOL;
PITTSTON AREA SCHOOL DISTRICT;
ELIZABETH JANE ELLIS,
Administrative Director in her official and individual capacities
________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-07-cv-01672)
Magistrate Judge: Honorable Thomas M. Blewitt
_______
Argued July 12, 2011
Before: SLOVITER, FUENTES, and GARTH, Circuit Judges
(Filed July 21, 2011 )

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Michael S. Doluisio
Jennings F. Durand (Argued)
Stuart T. Steinberg
Dechert
Philadelphia, PA l9l04
Attorneys for Appellants
John E. Freund, III
Glenna M. Hazeltine
Lucas J. Repka (Argued)
King, Spry, Herman, Freund & Faul
Bethlehem, PA l8018
Attorneys for Appellees
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OPINION
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SLOVITER, Circuit Judge.
Vincent Dutkevitch and his mother Sharon Dutkevitch appeal the District Court’s
dismissal of Vincent’s claims for disability discrimination against the Pittston Area
School District and West Side Area Vocational Technical School (collectively
“Defendants”). We will affirm.1
1 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367,
and this court has jurisdiction under 28 U.S.C. §§ 636(c)(3) and 1291. This court
exercises plenary review over a dismissal for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6). In so doing, we “accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be

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Because we write primarily for the parties, we need not discuss the facts or
procedural history of this case.2
In their Third Amended Complaint, the Dutkevitches allege that Defendants
discriminated against Vincent on the basis of his disability by failing to make reasonable
modifications to their enrollment policies in violation of Section 504 of the Rehabilitation
Act (“RA”), 29 U.S.C. § 794, and Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et seq.3 The Dutkevitches seek damages in excess of
$75,000 for “the loss of Vincent’s vocational technical education . . . [that] would have
increased Vincent’s strengths, preferences and interests in the computer field,” and their
“present financial hardship” for the cost of Vincent’s post-secondary program at the Art
Institute of Pittsburgh. App. at 44-45.
The RA and ADA have parallel requirements. See 29 U.S.C. § 794(a); 42 U.S.C.
§ 12132. See also, e.g., Helen L. v. DiDario, 46 F.3d 325, 330 n.7 (3d Cir. 1995). The
parties do not dispute that Vincent is a qualified individual with a disability.4 Rather, the
entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(internal quotation omitted).
2 The court thanks pro bono counsel, Dechert LLP, for their able
representation of the Dutkevitches in this matter.
3 The Dutkevitches did not specifically assert a claim under the Individuals
with Disabilities Education Act, 20 U.S.C. § 1400 et seq.
4 Neither do the parties dispute that Defendants receive federal financial
assistance, which is also necessary to establish a violation of the RA.

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dispute centers on whether Defendants denied Vincent a vocational education because of
his disability.
The District Court correctly concluded that the Dutkevitches failed to state a claim
for disability discrimination because “neither [Pittston] nor [West Side] owed any legal
obligation to Vincent during any relevant time of this case.” Dutkevitch v. PA Cyber
Charter Sch., et al., No. 3:CV-07-1672, slip op. at 18 (M.D. Pa. Apr. 8, 2009). Vincent
was enrolled with the Pennsylvania Cyber Charter School, which operated as Vincent’s
Local Education Agency (“LEA”) under the Individuals with Disabilities Education Act
(“IDEA”), 20 U.S.C. § 1400 et seq. Therefore, the Charter School was tasked with
providing Vincent with a free appropriate public education and Defendants were not
permitted to intervene. See 20 U.S.C. §§ 1412(b), 1414(b).
The Dutkevitches argue that “both the [RA] and the ADA impose an affirmative
duty not to discriminate that is distinct from any duties a school district may owe to a
student under the IDEA.” Appellant’s Br. at 20. We disagree. The lack of a duty to
Vincent under the IDEA on the part of Pittston and West Side bears directly on whether
Defendants violated their obligations not to discriminate against Vincent.
Pittston’s failure to recommend that Vincent attend a vocational-technical school
had nothing to do with Vincent’s disability. Rather, Pittston withheld recommendation
because it “was not Vincent’s LEA” and thus “was not required to make sure Vincent
received . . . computer training.” Dutkevitch, No. 3:CV-07-1672, slip op. at 18.
Likewise, West Side’s refusal to give Vincent’s mother an application to the school had

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nothing to do with Vincent’s disability. Rather, West Side’s decision was based on West
Side’s admissions policies that are consistent with federal law, see 20 U.S.C. § 1415(j),
and apply equally to all students who, like Vincent, seek to enroll in a vocational school
outside their district of residence, see 24 P.S. 18-1847. In other words, as the District
Court concluded, “there are insufficient allegations that Defendants withheld from
Vincent any educational services or benefits they owed to him because of his disabilities
and that they excluded Vincent from any school programs or activities available to other
students.” Dutkevitch, No. 3:CV-07-1672, slip op. at 18.
We further conclude that the District Court did not abuse its discretion when it
denied the Dutkevitches’ request for leave to amend the complaint a fourth time on the
grounds that amendment on the exhaustion of remedies issue would be futile and would
cause undue delay and prejudice the Defendants. See Travelers Indem. Co. v. Dammann
& Co., 594 F.3d 238, 243 n.3 (3d Cir. 2010) (setting forth abuse-of-discretion standard of
review of an order denying leave to amend); Shane v. Fauver, 213 F.3d 113, 115 (3d Cir.
2000) (setting forth justifications for denial of leave to amend).
Accordingly, we will affirm the order of the District Court dismissing the
Dutkevitches’ Third Amended Complaint with respect to claims for money damages
under Section 504 of the Rehabilitation Act and Title II of the Americans with
Disabilities Act and declining to exercise supplemental jurisdiction over the claim for
injunctive relief under the Pennsylvania Constitution.

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