Submitted Under Third Circuit LAR 34.1(a) May 14, 2002.
OPINION OF THE COURT
PER CURIAM:
Appellant John M. Emerson, proceeding pro se, appeals the order of the District Court dismissing his complaint against Thiel College ("Thiel"), Rick Brown Concrete & Masonry Company, an outside contractor for Thiel (the "Masonry Company"), Rick Brown and nineteen other individuals, including Thiel's former President, Vice President of Academic Affairs, members of its faculty and staff and outside legal counsel (the "individual college defendants"). Emerson alleges violations of Title III of the Americans with Disabilities Act, 42 U.S.C. §§ 12181-12189 (the "ADA"), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17. For the reasons stated below, we will affirm.
I.
Emerson enrolled in a five-week summer session at Thiel in July of 1996. He took a writing course, in which he received a grade of D+, and a humanities course, from which he withdrew. In the fall of 1996, Emerson enrolled in two computer courses, a math course and a public speaking
Emerson avers in his amended complaint that he suffers from quadriplegia, neurological impairments and other disabilities. He states that Thiel and his professors failed to accommodate his disabilities and provide the assistance he needed to succeed in class. Emerson alleges, among other things, that the faculty and staff failed to provide him tutors and notetakers, a desk at the front of the class and help with heavy objects, and that college officials failed to supervise the faculty and staff. He also maintains that Thiel failed to repair its sidewalks and install proper doors and ramps. Emerson seeks declaratory and injunctive relief, including reinstatement at Thiel, and damages.
In January of 1999, the individual college defendants, Rick Brown and the Masonry Company moved to dismiss Emerson's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.
Emerson failed to timely file a second amended complaint and the District Court ordered him to do so by October 8, 1999 or show cause why his case should not be dismissed. The Masonry Company also renewed its motion to dismiss. In response to Emerson's statement that he could not read the court's orders due to the type size, on October 29, 1999, the District Court afforded Emerson twenty days to amend his complaint, denied the Masonry Company's motion and directed that all documents be produced in a larger type size. On December 3, 1999, Emerson moved to stay the case until February 7, 2000 because of injuries allegedly sustained in two car accidents. The District Court granted a stay until February 1 and extended its initial discovery and motion deadlines.
On January 20, 2000, the Masonry Company moved the court to set aside the stay and grant its motion to dismiss as Emerson had not amended his complaint in accordance with the October 29 order. On February 9, 2000, Emerson moved to extend the stay until February 16. The District Court held a conference call with the parties and inquired about Emerson's medical condition. Based upon Emerson's statement that he would be able to participate in the litigation, the District Court denied the pending motions and ordered Emerson to file his second amended complaint
Emerson filed a second amended complaint and Thiel moved to strike it, contending that Emerson improperly sought to replead his claims against the individual college defendants and add new defendants. On May 19, 2000, the Masonry Company moved to dismiss the complaint, contending that Emerson failed to cure the deficiencies in the original complaint. On June 20, 2000, Thiel moved for summary judgment.
Emerson did not respond to the summary judgment motion by the deadline in the case management order. On August 17, 2000, the District Court ordered Emerson to do so by September 11, 2000 and scheduled a hearing for September 14, 2000. On September 14, Emerson moved to stay the action until November 18, 2000 due to an injury. The District Court ordered Emerson to provide a physician's letter confirming his medical condition by October 24, 2000. Emerson moved for an extension of time until November 10, 2000 to respond to the court's order and submitted a hospital discharge summary dated June of 2000. On November 9, 2000, he filed a doctor's certificate stating that he was able to return to work or school on January 2, 2001.
On November 20, 2000, the District Court scheduled a hearing on all pending motions for November 28. Emerson failed to attend. In an order entered on December 15, 2000, the District Court denied Emerson's motions to stay and for an extension of time as moot, granted the Masonry Company's motion to dismiss and granted Thiel's motion to strike the second amended complaint with respect to the individual and new defendants. The District Court sua sponte extended Emerson's time to file a response to Thiel's summary judgment motion until January 10, 2001, and ordered that it would construe a failure to respond as consent to the relief requested.
On January 17, 2001, Emerson moved to stay the action until February 22, 2001. The District Court ordered oral argument on the motion and on whether the action should be dismissed for failure to prosecute and to comply with its orders. On February 20, 2001, after the hearing, the District Court denied Emerson's motion for a stay and dismissed the complaint against Thiel with prejudice for failure to prosecute. In the alternative, the District Court granted Thiel's motion for summary judgment. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We first review the District Court's order granting the individual college defendants' and Rick Brown's motions to dismiss for failure to state a claim. Our standard of review is plenary. Menkowitz v. Pottstown Memorial Med. Ctr., 154 F.3d 113, 115 (3d Cir.1998). A complaint will withstand an attack under Federal Rule of Civil Procedure 12(b)(6) if the material facts as alleged, in addition to inferences drawn from those allegations, provide a basis for recovery. Id. at 124-25. In dismissing Emerson's claims, the District Court concluded that individuals cannot be held liable under Title III of the ADA, § 504 of the Rehabilitation Act and Title VII of the Civil Rights Act of 1964.
Whether individuals may be liable under Title III of the ADA, which prohibits discrimination in places of public accommodation, is an issue of first impression in the courts of appeals. The statute provides in relevant part that:
42 U.S.C. § 12182(a) (emphasis added). The regulations under the statute provide that discrimination is prohibited by any private entity that owns, leases (or leases to) or operates a place of public accommodation, 28 C.F.R. § 36.201(a), and that "private entity" means a person or entity other than a public entity. 28 C.F.R. § 36.104. Thus, the individual college defendants and Brown may be liable under Title III if they own, lease or operate Thiel, a place of public accommodation. See also 28 C.F.R.App. B. § 36.104 (discussing definition of private entity).
To the extent Emerson contends that the individual college defendants operate Thiel, in Neff v. American Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir.1995), the Court of Appeals for the Fifth Circuit applied principles of statutory construction and construed the term "operate," which the statute does not define, in accordance with its ordinary meaning. The court set forth several dictionary definitions, including "to control or direct the functioning of" and "to conduct the affairs of." Id. Applying these definitions, we hold that the individual college defendants and Brown do not operate Thiel and thus are not subject to individual liability under Title III of the ADA.
This result comports with decisions of other courts of appeals holding that individuals are not liable under Titles I and II of the ADA, which prohibit discrimination by employers and public entities respectively. See, e.g., Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir.2001) (Title II); Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.1999) (Title I). See also Walker v. Snyder, 213 F.3d 344, 346 (7th Cir.2000) ("the ADA addresses its rules to employers, places of public accommodation, and other organizations, not to the employees or managers of these organizations").
With respect to Emerson's claims under § 504 of the Rehabilitation Act, the Court of Appeals for the Second Circuit, relying upon various district court decisions, has ruled that individuals are not liable under the statute. Garcia, 280 F.3d at 107. We have yet to address this question. We recognize that the Rehabilitation Act and the ADA generally are interpreted consistently. See 28 C.F.R. § 36.103 (incorporating the standards applied under the Rehabilitation Act into Title III).
Section 504 provides in relevant part that:
Finally, the District Court properly granted the motions to dismiss with respect to Emerson's Title VII claims. Title VII prohibits unlawful employment practices by employers. 42 U.S.C. § 2000e-2(a). Emerson does not aver that any of the defendants employed him. In addition, individual employees are not liable under Title VII. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d Cir.1996) (en banc).
III.
The District Court dismissed with prejudice Emerson's remaining claims against Thiel for failure to prosecute or to comply with its orders pursuant to Federal Rule of Civil Procedure 41(b). We review such an order for an abuse of discretion. Adams v. Trustees of the N.J. Brewery Employees' Pension Trust Fund, 29 F.3d 863, 870 (3d Cir.1994). While we defer to the District Court's discretion, dismissal with prejudice is only appropriate in limited circumstances and doubts should be resolved in favor of reaching a decision on the merits. Id.
To determine whether the District Court abused its discretion, we evaluate its balancing of the following factors: (1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense. Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 868 (3d Cir.1984).
With respect to Emerson's personal responsibility, the District Court recognized that because Emerson is proceeding pro se, his failure to comply with its orders could not be blamed on counsel. The District Court further stated, and the record reflects, that there has been a pattern of a failure to comply with the court's orders based upon unsubstantiated allegations of medical disability resulting from various alleged accidents.
In considering the second Poulis factor, the District Court found that it
The procedural history of this case reflects continuous dilatoriness, the third Poulis factor, and is set forth above. While Emerson appears to argue that the District Court did not consider his medical problems, the record reflects the contrary. The District Court stayed the case initially without requiring Emerson to substantiate his medical condition. When Emerson sought additional stays, the District Court afforded Emerson the opportunity to submit documentation supporting that he was unable to proceed for medical reasons. Emerson failed to do so.
With respect to whether Emerson's conduct was willful or in bad faith, the District Court was unable to conclude whether Emerson acted in bad faith. The District Court found, however, that Emerson's conduct in failing to comply with the court's orders and in dragging the case out was willful and not merely negligent or inadvertent. The record supports this conclusion.
The District Court found no effective alternative sanctions to dismissal. It stated that an assessment of attorney's fees was not a serious consideration given Emerson's financial situation. Emerson proceeded in forma pauperis in District Court. We agree that monetary sanctions would not be an effective alternative.
Finally, the District Court concluded that Emerson's allegations with respect to Thiel are facially meritorious. Thiel, however, plead in part that it made numerous accommodations for Emerson. The meritoriousness factor is neutral and not dispositive.
Balancing these factors, we do not find that the District Court abused its discretion in dismissing Emerson's case for failure to prosecute and comply with its orders. Emerson was afforded a stay and numerous extensions of time. He was given the opportunity to substantiate that he was unable to proceed for medical reasons and he failed to do so. Given his behavior over the more than two years that the case was pending, the District Court had no indication that Emerson would prosecute his case as opposed to seek additional stays.
Accordingly, we will AFFIRM the District Court's order entered on February 21, 2001.
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