NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-4412
___________
JENN-CHING LUO,
Appellant
v.
OWEN J. ROBERTS SCHOOL DISTRICT;
GEOFFREY BALL; BRIAN SCHNEIDER;
SHARON W. MONTANYE
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 2-15-cv-04248)
District Judge: Honorable Thomas N. O’Neill, Jr.
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 8, 2018
Before: SHWARTZ, KRAUSE and FISHER, Circuit Judges
(Opinion filed: June 11, 2018)
___________
OPINION*
___________
PER CURIAM
Pro se appellant, Jenn-Ching Luo, appeals from the District Court’s order entered
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
October 31, 2016. For the following reasons, we will affirm.
I.
Luo is the father of B.L., a minor who receives special education services in the
Owen J. Roberts School District in Pottstown, Pennsylvania. B.L. was originally placed
in a day program within the district, but Luo later asked that B.L. be moved to a
residential program. B.L.’s Individualized Education Plan (IEP) team agreed to a
residential placement. After meetings with Special Education Supervisor Geoffrey Ball,
however, Luo received a revised IEP indicating that B.L. was ineligible for such
placement. The revised IEP also included a Specially Designed Instruction (SDI)
directing Luo to take a parent-training course under the School District’s supervision.
The School District also issued a Notice of Recommended Educational Placement
(NOREP) notifying Luo of its intent to implement the proposed SDI requiring parent
training.
Luo objected and filed an administrative due process complaint under the
Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400−1482.
Following a hearing in August 2014, Hearing Officer Cathy A. Skidmore ordered an
Independent Educational Evaluation (IEE) in order to determine B.L.’s needs. Luo
objected and informed the School District that he intended to appeal the Hearing
Officer’s decision.
2
Accordingly, in November 2014, Luo commenced an action in the United States
District Court for the Eastern District of Pennsylvania. (E.D. Pa. Civ. No. 14-cv-6354)
(Luo I). Luo named as defendants: the School District; Sharon Montayne, the School
District’s attorney; Supervisor Ball; Hearing Officer Skidmore; and Keri Kolbay, a
psychologist hired to conduct the IEE.1
Meanwhile, the School District proceeded to conduct the IEE. At a meeting in
January 2015, the IEP team proposed revisions to B.L.’s IEP based on Kolbay’s
recommendations. Among other revisions, the IEP recommended that a behavioral
specialist observe B.L. at school and at home. To this end, and with Luo’s consent, the
School District’s psychologist, Brian Schneider, evaluated B.L. Dr. Schneider concluded
that B.L. was more independent at school than at home, and recommended that Luo
undergo parent training. Around this time, the School District issued another NOREP
notifying Luo of its intent to implement the proposed SDIs requiring parent training.
Luo filed a number of additional administrative complaints challenging the School
District’s actions and recommendations. A hearing on the consolidated complaints took
1
The complaint set forth the following claims: the School District and Ball had violated
Luo’s “liberty right” by recommending the SDI (claims one and two) and failing to
obtain a residential placement for B.L. (claim three); Skidmore violated his liberty right
to informed consent and due process by ordering the IEE (claim four); the School
District, Ball, and Kolbay violated his rights to privacy and due process by transmitting
and reviewing B.L.’s records (claims three and seven); the School District, Ball, Kolbay,
and Montayne violated his due process rights by proceeding with the IEE after he
appealed the Hearing Officer’s decision (claims six and eight).
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place on February 13, 2015. This time, the hearing officer found in Luo’s favor in
several respects.
The School District then initiated its own case against Luo in the District Court
seeking reversal of the hearing officer’s decision. (E.D. Pa. Civ. No. 15-cv-2952) (Luo
II). Luo responded with counterclaims against the School District challenging the need
for the IEE and raising claims for both breach of implied covenant of good faith and fair
dealing, and malicious abuse of process. Luo also filed a third-party complaint raising
due process and malicious-abuse-of-process claims against the attorneys who represented
the School District at the administrative level and law firm Sweet Stevens Katz &
Williams LLP. Following additional administrative hearings, Luo commenced another
civil action in the District Court against the School District, Ball, Montayne, and
Schneider. (E.D. Pa. Civ. No. 15-cv-4248) (Luo III).2
2
Luo raised the following claims in the complaint: violation of his equal protection rights
by the School District and Ball (claim one); violation of Luo’s liberty rights by the
School District and Ball (claims two, five, and six); malicious abuse of process by the
School District, Ball, and Montayne (claim three); violation of Luo’s substantive due
process rights by the School District and Ball (claim four); breach of the duty of good
faith and fair dealing by the School District and Ball (claim seven); defamation by the
School District and Ball (claim eight); harassment by the School District and Ball (claim
nine); violation of Luo’s liberty right by the School District and Schneider (claim ten);
violation of Luo’s substantive due process rights by the School District and Schneider
(claim eleven); defamation against the School District and Schneider (claim twelve); and
negligence against the School District and Schneider (claim thirteen).
4
The various parties moved to dismiss the complaints in Luo I, Luo II, and Luo III.
These motions were referred to a Magistrate Judge who issued a Report and
Recommendation in each case. The parties filed objections. On October 27, 2016, the
District Court issued a Memorandum Opinion addressing the Reports and
Recommendations as well as the parties’ objections in all three cases. The District Court
determined that several of Luo’s claims survived the motions to dismiss, but noted that
the state of the three actions—which included overlapping facts and claims—made
practical resolution of the issues difficult. Therefore, having reviewed the parties’ claims
under Rule 12(b)(6), “and with an eye toward efficiency,” the District Court ordered as
follows.
In Luo I, the District Court dismissed with prejudice all of Luo’s Fifth-
Amendment claims, all claims against Hearing Officer Skidmore, and all claims against
Attorney Montayne. However, the court dismissed without prejudice Luo’s claims
against the School District and Ball (claims one through three, and claims five through
eight), and instructed him to re-plead these claims in a seconded amended complaint.
The District Court likewise dismissed Luo’s claims against Kolbay (claims five and six)
without prejudice to his ability to re-plead them. In Luo II, the court did not dismiss any
of the School District’s claims, but dismissed with prejudice Luo’s counterclaims and the
claims raised in his third-party complaint.
In Luo III, the District Court dismissed with prejudice claims one, three, and seven
through thirteen. The court determined that the remaining claims (claims two, four, five,
5
and six), however, could go forward. That being said, the court concluded that these four
claims were substantially identical to claims that Luo had raised in Luo I. Therefore, the
District Court dismissed claims two, four, five, and six in Luo III without prejudice to
Luo’s ability to include them in his second amended complaint in Luo I.
The District Court then consolidated Luo I and Luo II pursuant to Rule 42(a) of
the Federal Rules of Civil Procedure, closed Luo III, and directed Luo to file a second
amended complaint in Luo I setting forth all claims not dismissed with prejudice within
thirty days (by November 30, 2016). The court instructed Luo to take care to combine
like claims and include all factual allegations relating to a particular claim within that
claim.
Instead of filing a second amended consolidated complaint as instructed, Luo filed
a motion for reconsideration challenging the District Court’s order. The District Court
denied reconsideration and directed Luo to file the second amended consolidated
complaint by December 23, 2016. The District Court advised Luo that failure to do so
would result in the dismissal with prejudice of all remaining claims. Luo did not amend
his pleading within that time period. Instead, on December 26, 2016, Luo filed a notice
of appeal seeking review of the District Court’s orders. The District Court has stayed the
proceedings below pending resolution of this appeal.
II.
Although we ordinarily lack jurisdiction over an order that dismisses a complaint
without prejudice in part, we may exercise jurisdiction here because Luo has elected to
6
stand on his complaint.3 See Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d
Cir. 1992). In addition, the Supreme Court has recently held that when, as in this case,
“one of several consolidated cases is finally decided, a disappointed litigant is free to
seek review of that decision in the court of appeals” even if one of the other consolidated
cases remains pending. Hall v. Hall, 138 S. Ct. 1118, 1131 (2018). Therefore, we will
treat the District Court’s order as final and exercise appellate jurisdiction under 28 U.S.C.
§ 1291. See Wellman v. Butler Area Sch. Dist., 877 F.3d 125, 130 (3d Cir. 2017). Our
review is plenary. Our review of a Rule 12(b)(6) dismissal is plenary. See Scattergood
v. Perelman, 945 F.2d 618, 621 (3d Cir.1991).
III.
A. The District Court’s Dismissal Without Prejudice of Claims Two, Four,
Five, and Six in Luo III
Luo’s primary argument on appeal is that the District Court erred in dismissing
without prejudice claims two, four, five, and six in Luo III and instructing him to re-plead
them in a second amended complaint in Luo I. According to Luo, the District Court erred
because the claims in Luo III were not substantially similar to any claims in Luo I.
3
Because Luo filed his motion for reconsideration within twenty-eight days of the
District Court’s October 31, 2016 order, we have jurisdiction to review both the District
Court’s order denying reconsideration and its underlying order. See CTC Imp. & Exp. v.
Nigerian Petroleum Corp., 951 F.2d 573, 577 (3d Cir. 1991). Luo does not specifically
challenge the District Court’s order denying reconsideration.
7
The District Court acted within its discretion in administering its docket in this
manner.4 We have made clear that a plaintiff has “no right to maintain two separate
actions involving the same subject matter at the same time in the same court and against
the same defendant.” Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977). Thus, a
district court faced with a second, duplicative complaint may choose to dismiss the
second complaint without prejudice. Id. We have reviewed the pleadings and agree with
the District Court that the disputed claims were substantially similar. Furthermore, even
assuming that the complaint in Luo III contained some distinct allegations, we fail to see
how Luo was prejudiced by the District Court’s action given that he was permitted to re-
plead each of these claims in a new complaint in Luo I. The District Court’s effective
consolidation of the two complaints was purely for administrative efficiency and had no
effect on Luo’s ability to proceed with these causes of action.5 Luo could have so
proceeded by filing a second amended complaint in Luo I but chose not to do so.
B. The District Court’s Dismissal of the Malicious-Abuse-of-Process Claim
4
We review a district court’s dismissal of a duplicative complaint for abuse of discretion.
Adam v. Jacobs, 950 F.2d 89, 92 (2d Cir.1991).
5
To the extent that Luo argues that claims raised in a second amended complaint in Luo I
would have been time-barred, the District Court specifically addressed this concern,
explaining that Federal Rule of Civil Procedure 15(c)(1)(B) allows relation back of any
amendments that “assert[] a claim or defense that arose out of the conduct, transaction or
occurrence set out—or attempted to be set out—in the original pleading.” As a common
core of operative facts existed between Luo I and Luo III, Luo’s new claims would have
been timely.
8
Luo next challenges the District Court’s determination that he failed to state a
claim for malicious abuse of process. In claim three in Luo III, Luo asserted that Ball’s
use of NOREPS to force him into parent training constituted malicious abuse of process.
Luo sought to hold Ball, the School District, and Attorney Montayne liable under this
theory.
“[A] section 1983 claim for malicious abuse of process lies where prosecution is
initiated legitimately and thereafter is used for a purpose other than that intended by the
law.” Rose v. Bartle, 871 F.2d 331, 350 n.17 (3d Cir. 1989) (quotation marks omitted).
“The gravamen of [a malicious abuse of process claim] is not the wrongful procurement
of legal process or the wrongful initiation of criminal or civil proceedings; it is the misuse
of process, no matter how properly obtained, for any purpose other than that which it was
designed to accomplish.” Restatement (Second) of Torts § 682 cmt. a (1977).
The District Court correctly concluded that Luo failed to state a claim for
malicious abuse of process. Simply stated, the agency’s issuance of NOREPS does not
constitute “process” for purposes of a § 1983 malicious-abuse-of-process claim. A
NOREP is a form completed at the end of the IEP development process that must be
provided to parents whenever the school district proposes a change. 20 U.S.C. §
1415(b)(3), (c)(1). A NOREP is not a form of legal process. Luo fails to cite any
authority to support his contention that a malicious-abuse-of-process claim may rest on a
school district’s issuance of NOREPs or similar administrative action.
C. The District Court’s Dismissal of the Informed-Consent Claim
9
In claim ten of Luo III, Luo asserted that he was deprived of his liberty right “to
informed consent” regarding the adaptive behavior assessment that Dr. Schneider
performed on B.L. Luo conceded that he generally consented to Dr. Schneider’s
assessment, but claimed that he did not consent to the methodology that Dr. Schneider
used to conclude that B.L. was more independent at school than at home. Borrowing the
concept of informed consent from the medical context, Luo contended that Dr.
Schneider’s “unapproved assessment” amounted to a violation of “the liberty right to
informed consent.”
We agree with the District Court that Luo does not have a constitutionally
protected interest in being advised of the methodology Dr. Schneider used in the adaptive
behavior assessment. Rights are protected under the Due Process Clause if they are “so
rooted in the traditions and conscience of our people as to be ranked as fundamental” or if
such rights reflect basic values “implicit in the concept of ordered liberty” such that
“neither liberty nor justice would exist if they were sacrificed.” Washington v.
Glucksberg, 521 U.S. 702, 721 (1997) (internal quotation marks omitted). As the District
Court explained, Luo’s interest in being advised of Dr. Schneider’s methodology is not
the sort of “fundamental” interest entitled to the protection of substantive due process.
As a result, the District Court correctly concluded that Luo failed to assert a substantive
due process claim in this regard.
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IV.
We have reviewed Luo’s remaining arguments and conclude that they are
meritless. Accordingly, we will affirm.
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