                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 11-3669
                                 ___________

                        AKHI RAHEEM MUHAMMAD,

                                                  Appellant

                                       v.

 COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA;
           COMMONWEALTH COURT OF PENNSYLVANIA;
              SUPREME COURT OF PENNSYLVANIA;
                PENNSYLVANIA SUPERIOR COURT
              ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                      (D.C. Civil Action No. 09-cv-01255)
                  District Judge: Honorable Joy Flowers Conti
                  ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 May 11, 2012

             Before: SLOVITER, SMITH and COWEN, Circuit Judges

                          (Opinion filed: May 15, 2012)

                                 ___________

                                  OPINION
                                 ___________

PER CURIAM
       Appellant Akhi Raheem Muhammad, proceeding pro se, appeals from the District

Court‟s order granting the defendant-appellees‟ motion to dismiss Muhammad‟s

complaint under 42 U.S.C. § 1983. For the reasons that follow, we will affirm in part,

vacate in part, and remand for further proceedings.

                                             I

       In July 2008, Muhammad -- an experienced litigant -- filed in the United States

District Court for the Eastern District of Pennsylvania a complaint under 42 U.S.C.

§ 1983, alleging that some 200 defendants violated his civil rights. He sought, inter alia,

permanent injunctive relief requiring the Pennsylvania state courts to address the needs of

disabled litigants, as well as damages and court costs. As Judge Padova of the Eastern

District noted, Muhammad‟s second amended complaint, which was nearly 70 pages

long, stemmed from at least seven discrete series of occurrences, including:

              (1) a 2004 automobile accident in Pittsburgh and related
              litigation in Allegheny County from 2004 to 2007; (2) the
              issuance of two traffic citations in Millvale, Pennsylvania[,]
              in 2005, and related litigation in Allegheny County from 2005
              to 2007; (3) a legal malpractice lawsuit initiated in Allegheny
              County in July 2005, and related litigation there from 2005 to
              2007; (4) a second legal malpractice lawsuit initiated in
              Allegheny County in September 2005 and related litigation
              there from 2005 to 2008; (5) the revocation of [Muhammad‟s]
              car insurance and related litigation from 2007 to 2008; (6) the
              forced removal of [Muhammad‟s] kufi, a religious head
              covering, at legal proceedings in the courtrooms of various
              Allegheny County judges . . . between 2004 and 2008; and
              (7) a 2009 lawsuit against Allegheny County Adult Probation
              and Parole over some money [Muhammad] paid them to
              secure the release of his incarcerated nephew.
                                             2
D. Ct. Doc. No. 88, 2-3 (internal citations omitted).

       In particular, Muhammad alleged that most of the defendants, including the

Allegheny County Court of Common Pleas, the Pennsylvania Commonwealth Court, the

Pennsylvania Superior Court, and the Pennsylvania Supreme Court (collectively, “the

Pennsylvania court defendants”), violated the Americans with Disabilities Act (“ADA”),

42 U.S.C. §§ 12101, et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. §§ 791, et seq.,

by repeatedly failing to reasonably accommodate his impaired vision at various stages

during his numerous state court lawsuits.1 Muhammad asked the courts to provide him

with a device which could magnify and project small text. According to his complaint,

Muhammad was unable to meaningfully participate in his Pennsylvania state court

hearings or review records at the courthouses because, with only a few exceptions, he

was not afforded equipment that would allow him to read documents relevant to his case.

       Because Muhammad was proceeding in forma pauperis, Judge Padova screened

his complaint for legal sufficiency pursuant to 28 U.S.C. § 1915(e), and concluded that

Muhammad‟s ADA and RA claims against the four Pennsylvania state court defendants

sufficiently stated claims upon which relief could be granted. Muhammad‟s ADA and

RA claims against the Pennsylvania state court defendants were then transferred to the


   1
     Muhammad‟s complaint and his various other filings are riddled with invectives,
   and he accuses all defendants of being racist, corrupt, asinine, anti-Islamic, and
   prejudiced against the disabled.

                                             3
United States District Court for the Western District of Pennsylvania, where venue was

proper.2

       Upon transfer to the Western District, the Pennsylvania court defendants filed a

motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). The

Magistrate Judge prepared a report and recommendation concluding that all of

Muhammad‟s claims based on conduct occurring before July 30, 2006, i.e., more than

two years before he filed his complaint, were time-barred, and that he had not

demonstrated a series of continuing violations that would operate to toll the statute of

limitations. The report and recommendation further stated that, notwithstanding Judge

Padova‟s earlier analysis, Muhammad‟s complaint failed to state a claim upon which

relief could be granted. The District Court agreed, adopted the Magistrate Judge‟s report

and recommendation, and granted the motion to dismiss over Muhammad‟s objections.

Muhammad then timely filed a notice of appeal.

                                             II

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over the District Court‟s decision to dismiss Muhammad‟s complaint. See Dique v. N.J.

   2
     The Eastern District then dismissed all other claims against the remaining
   defendants, save for Muhammad‟s ADA and RA claims against the Pennsylvania
   Department of Insurance. Thereafter, the Pennsylvania Department of Insurance filed
   a motion for summary judgment, which the District Court granted. See E.D. Pa. Civ.
   No. 08-cv-03616 (order entered December 13, 2010). Muhammad appealed that
   decision, but his appeal was dismissed for failure to file a brief. See C.A. No. 11-
   1075 (order entered April 27, 2011).

                                             4
State Police, 603 F.3d 181, 188 (3d Cir. 2010). “In deciding a motion to dismiss, all

well-pleaded allegations of the complaint must be taken as true and interpreted in the

light most favorable to the plaintiffs, and all inferences must be drawn in favor of them.”

McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009) (internal citation and

quotation marks omitted). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint

must contain sufficient factual matter, accepted as true, to „state a claim to relief that is

plausible on its face.‟” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

       At the outset, we note that, in his brief, Muhammad challenges a number of orders

issued by Judge Padova while his complaint was before the Eastern District. Muhammad

had the opportunity to challenge those decisions in his appeal at C.A. No. 11-1075, but he

failed to pursue that appeal. He may not now take a second bite at that apple.

       Turning to the District Court‟s decision, the District Court first concluded that all

of Muhammad‟s claims arising from conduct occurring before July 30, 2006, were time-

barred. We agree. In § 1983 cases, federal courts apply the state personal injury statute

of limitations, which is two years in Pennsylvania. See Smith v. Holtz, 87 F.3d 108, 111

& n.2; 42 Pa. Cons. Stat. Ann. § 5524 (West 2004). “A [§] 1983 cause of action accrues

when the plaintiff knew or should have known of the injury upon which its action is

based.” Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). The

determination of the time at which a claim accrues is an objective inquiry; the relevant

                                               5
question is what a reasonable person should have known. See Barren v. United States,

839 F.2d 987, 990 (3d Cir. 1988). As a general matter, a cause of action accrues at the

time of the last event necessary to complete the tort, usually at the time the plaintiff

suffers an injury. See United States v. Kubrick, 444 U.S. 111, 120 (1979). However, the

“continuing violations doctrine” constitutes an “equitable exception to the timely filing

requirement.” West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). Under this

doctrine, “when a defendant‟s conduct is part of a continuing practice, an action is timely

so long as the last act evidencing the continuing practice falls within the limitations

period; in such an instance, the court will grant relief for the earlier related acts that

would otherwise be time barred.” Brenner v. Local 514, United Bhd. of Carpenters and

Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991). To benefit from the doctrine, a

plaintiff must establish that the defendant‟s conduct is “more than the occurrence of

isolated or sporadic acts,” West, 45 F.3d at 755, and the doctrine “does not apply when

plaintiffs are aware of the injury at the time it occurred.” Morganroth & Morganroth v.

Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003).

       In this case, the District Court noted that Muhammad filed his complaint on July

30, 2008, and concluded that the statute of limitations barred his claims related to conduct

occurring before July 30, 2006. However, Muhammad argued that the Pennsylvania

court defendants‟ repeated denials of accommodations amounted to a series of continuing

violations bringing all such conduct within the limitations period. We agree with the

                                               6
District Court, as Muhammad‟s allegations make clear that he was aware at the time that

each of his requests for an accommodation was denied -- beginning as early as 2004 --

that the absence of accommodations would adversely affect his ability to represent

himself. The District Court correctly reasoned that “[e]ach refusal to provide

[Muhammad] with the accommodations to which he claims entitlement was a complete

and independent act,” D. Ct. Doc. No. 101, 12, and concluded that the continuing

violations doctrine did not apply because Muhammad should have been aware of each

act‟s negative impact at the time it occurred.

       We disagree, however, with the District Court‟s decision insofar as it dismissed

Muhammad‟s ADA claims regarding the defendants‟ purported failures to reasonably

accommodate him after July 30, 2006. Under Title II of the ADA, “no qualified

individual with a disability shall, by reason of such disability, be excluded from

participation in or be denied the benefits of the services, programs, or activities of a

public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

To establish a violation of Title II of the ADA, a plaintiff must allege that: (1) he is a

qualified individual with a disability; (2) he was either excluded from participation in or

denied the benefits of some public entity‟s services, programs, or activities; and (3) such

exclusion, denial of benefits, or discrimination was by reason of his disability. See id.;

Robertson v. Las Animas Cnty. Sheriff‟s Dep‟t, 500 F.3d 1185, 1193 (10th Cir. 2007).

The requirements for a claim under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, are

                                                 7
the same as those under the ADA, see Helen L. v. DiDario, 46 F.3d 325, 330 n.7 (3d Cir.

1995), with the additional requirement that a plaintiff alleging a violation of the RA

demonstrate that the violation was committed by a program or activity receiving “Federal

financial assistance.”3 § 794(a). Further, a plaintiff can assert a failure to accommodate

as an independent basis for liability under the ADA and RA. See Wis. Cmty. Servs., Inc.

v. City of Milwaukee, 465 F.3d 737, 751 (7th Cir. 2006) (en banc). To make out such a

claim, a plaintiff must show that the accommodation he seeks is reasonable, see

Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783 (7th Cir.

2002), i.e., that it is “necessary to avoid discrimination on the basis of disability.” 28

C.F.R. § 35.130(b)(7).

       With regard to the first element under § 12132, the District Court assumed that

Muhammad is a qualified individual with a disability, based on his averment that he

suffers from impaired vision as a complication of his diabetes, though the District Court

expressed some skepticism about the severity of his impairment. Regardless of the

District Court‟s concerns, viewing Muhammad‟s complaint in the light most favorable to

him, he alleged sufficient facts to support his claim that his vision is impaired to the

extent that he cannot read small text, which appears to satisfy the requirement of the

ADA that he be a qualified individual with a disability. See 28 C.F.R. § 35.104 (defining

   3
     Although we disagree with the District Court‟s analysis of Muhammad‟s ADA
   claims, the District Court properly dismissed Muhammad‟s RA claims, as he failed to
   allege any facts showing that the Pennsylvania court defendants receive federal
   funding.
                                              8
a disability as, inter alia, visual impairments).

       Muhammad was next required to demonstrate that he was excluded from the

benefits of some public entity‟s services, programs, or activities. The District Court‟s

analysis with respect to this prong is flawed in several respects. First, the District Court

stated that Muhammad “failed to allege facts establishing that litigation in the state courts

constitutes a program or activity within the meaning of the ADA.” D. Ct. Doc. No. 101,

14. It is not clear what “facts” the District Court expected Muhammad to allege in that

regard, as courts have recognized a due process right to meaningfully participate in civil

litigation, the violation of which is actionable under the ADA. See, e.g., Lane v. Tenn.,

315 F.3d 680, 682 (6th Cir. 2003) (“Among the rights protected by the Due Process

Clause of the Fourteenth Amendment is the right of access to the courts. . . . Parties in

civil litigation have [a] . . . due process right to be present in the courtroom and to

meaningfully participate in the process unless their exclusion furthers important

governmental interests.”), aff‟d, 541 U.S. 509 (2004).

       Next, the District Court faulted Muhammad for “failing to allege facts establishing

that the absence of [the requested] equipment was unreasonable in the circumstances, or

that it impaired his ability to litigate effectively.” The District Court‟s analysis is

problematic because Muhammad was not required to make any showing that the denial of

the requested accommodations was unreasonable. Rather, he bore the initial burden of

demonstrating that his requested accommodations were reasonable, i.e., necessary to

                                               9
permit his meaningful participation; upon making such a showing, the burden shifted to

the defendants to demonstrate that the requested accommodations were unreasonable.

See Oconomowoc, 300 F.3d at 783 (citing Lapid-Laurel, L.L.C. v. Zoning Bd. of

Adjustment of Twp. of Scotch Plains, 284 F.3d 442, 457 (3d Cir. 2002)).

       The District Court‟s latter point -- that Muhammad failed to allege sufficient facts

showing how he was excluded from meaningful participation -- is only partially correct.

The District Court correctly pointed out that Muhammad offered no facts to support his

contention that he was not able to meaningfully participate in certain motions hearings

that did not appear to involve reading, such as a motion to compel discovery, and that

those allegations were therefore insufficient under Iqbal. However, the District Court‟s

reasoning does not appear to hold water with regard to some of Muhammad‟s other

allegations, such as his inability to review records on appeal so as to prepare arguments

and filings. Even if his pro se complaint did not spell out the impact of each denial of an

accommodation, the complaint makes clear that, on at least some occasions, Muhammad

was unable to participate in the manner a non-visually impaired individual could because

he was not provided with an assistive device.4



   4
      Relatedly, the District Court noted that Muhammad‟s argument that his ability to
   litigate was impaired was undercut by his statement that he has successfully litigated
   on his own behalf for more than 20 years. However, the District Court read his
   statement out of context, as it was intended to show that Muhammad has successfully
   litigated in other states‟ courts, where he was provided assistance to compensate for
   his visual impairment, in contrast to his experience in Pennsylvania‟s courts, where
                                            10
       The District Court also faulted Muhammad for failing to “articulate any theory

that would impose liability on the Courts as institutional defendants.” D. Ct. Doc. No.

101, 16. However, the ADA imposes liability on any “public entity,” § 12131, which is

defined as “any State or local government; [or] any department, agency, special purpose

district, or other instrumentality of a State or States or local government . . . .”

§ 12131(1). Thus, the plain language of the ADA subjects state courts to liability for

violations of the statute. Accord Galloway v. Super. Ct. D.C., 816 F. Supp. 12, 19

(D.D.C. 1993) (“The Superior Court and the District of Columbia are public entities

within the meaning of the [Americans with Disabilities] Act.”).

       Finally, the District Court determined that Muhammad‟s complaint failed to

include sufficient facts to demonstrate that he was excluded from participating in his state

court proceedings “by reason of” his disability. A failure-to-accommodate claim differs

from other ADA claims in that the ADA does not require a failure-to-accommodate

plaintiff to show that his injury was the result of purposeful discrimination. See Good

Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561-62 (7th Cir. 2003).

Rather, the ADA‟s “by reason of” language requires a showing of causation: the plaintiff

must demonstrate that, but for the failure to accommodate, he would not be deprived of

the benefit he seeks. See id. In this case, the District Court concluded that because

Muhammad failed to allege facts showing that he was the victim of intentional

   his inability to receive accommodations has purportedly stymied his ability to litigate
   effectively. See D. Ct. Doc. No. 99, ¶¶ 3-4; D. Ct. Doc. No. 103, 5.
                                               11
discrimination, he failed to state a claim upon which relief could be granted. Because

Muhammad was only required to allege that he was unable to meaningfully participate in

his cases because he did not receive accommodations -- a requirement that he appears to

have satisfied -- the District Court‟s rationale and conclusion appear incorrect.

       In sum, although the District Court correctly concluded that a number of

Muhammad‟s claims were time-barred or failed to state a claim upon which relief could

be granted, the District Court erred in dismissing Muhammad‟s ADA claims for

purported violations occurring on or after July 30, 2008.

       Accordingly, we will affirm in part, vacate in part, and remand for further

proceedings. The District Court may wish, on remand, to revisit Muhammad‟s request

for appointment of counsel.




                                             12
