Opinion
Case No. 1:20-cv-10
01-29-2021
ALONZO PALMER, Plaintiff v. C.O. WATTERSON, et al., Defendants
SUSAN PARDISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT AND PLAINTIFF'S MOTIONS FOR LEAVE TO AMEND AMENDED COMPLAINT ECF NO. 31 I. Recommendation
This matter was referred to the undersigned for a Report and Recommendation in accordance with the Federal Magistrates Act, 28 U.S.C. § 636, and Local Civil Rule 72.D. It is respectfully recommended that Defendants' Motion to Dismiss (ECF No. 31) be GRANTED in part, and DENIED in part. It should be granted as to all claims except Plaintiff's Eighth Amendment claim against C.O. Kennedy and C.O. Ferringer. Plaintiff's Eighth Amendment claim against the remaining Defendants and his conspiracy claim should be dismissed without prejudice as Plaintiff may be able to cure the pleading deficiencies of these claims by amendment. It is further recommended that his Fifth Amendment, Fourteenth Amendment, Americans with Disabilities Act, Rehabilitation Act, and negligence claims be dismissed with prejudice, as they fail as a matter of law and any attempt to amend these claims would be futile. Plaintiff, however, should be granted leave to file an amended complaint asserting ADA and Rehabilitation Act claims against an entity amenable to suit under those statutes or an official of such entity in his or her official capacity. II. Procedural Background
Acting pro se, Plaintiff Alonzo Palmer (Palmer), a prisoner in the custody of the DOC, commenced this civil rights and negligence action on January 21, 2020, by filing a motion for in forma pauperis status. ECF No. 1. After correcting a procedural error with his IFP application, with the Court's permission, Palmer filed his initial Complaint. ECF No. 8. He then filed an Amended Complaint on August 11, 2020, which is the operative Complaint. See ECF Nos. 23, 26, 29. The Amended Complaint names eight employees of the DOC as Defendants: C.O. Watterson, C.O. Mason, Sargent Reddinger, C.O. D. Perry, C.O. R. Swanson, C.O. Kennedy, Lieutenant Duffy, and C.O. Ferringer. All Defendants have moved to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 31. The motion has been fully briefed and is ripe for review. III. Legal Standards
A. Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, a court is not opining on whether a plaintiff is likely to prevail on the merits; instead, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009). A complaint should only be dismissed under Rule 12(b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)). In making this determination, the court must accept as true all well-pleaded factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed.2d 209 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts in the complaint. See Cal. Pub. Emps.' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. See also McTernan v. City of York, Pa., 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions").
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S. Ct. 1937.
B. Pro Se Pleadings
For purposes of a motion to dismiss, a court must employ less stringent standards in considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L.Ed.2d 652 (1972). In a § 1983 action, the court must "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) ("Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution."). Despite this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). Finally, the United States Court of Appeals for the Third Circuit in Phillips v. County of Allegheny has ruled that if a district court is dismissing a claim under Fed. R. Civ. P. 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would be inequitable or futile." 515 F.3d 224, 245 (3d Cir. 2008). IV. Amended Complaint
Palmer's Amended Complaint alleges the following facts, all of which are accepted as true for purposes of Defendants' motion:
Palmer is an amputee (right foot) whose prior doctor certified him for disability accommodations. ECF No. 29 ¶¶ 13, 17. On January 29, 2019, Palmer was transferred from SCI Greene to SCI Forrest. Id. ¶ 16. While housed at SCI Greene, he was assigned a designated handicap accessible cell in accordance with an unnamed physician's medical opinion. Id. ¶ 17. Although he was initially placed in a handicap accessible cell at SCI Forrest, he was moved to a standard cell two days later, on January 31, 2019. Id. ¶¶ 18-19. On that date, the following interaction occurred:
• "[A]round about 9:00 a.m., Reddinger informed Palmer via the cell's intercom to pack his personal property, because Palmer was moving to a non-handicap cell . . . [, and he] complied." Id. ¶ 19.
• Fifteen minutes later, "Watterson and Mason approached Palmer at cell 11 on K/D pad. Palmer was stripped searched by the aforesaid Prison officials [and] cuffed behind the back by Watterson." Id. ¶ 20.
• Mason ordered the cell opened and the aforementioned prison officials escorted Palmer to his new cell. Id.
• "While in route to said pod and cell, Palmer inquired as to why he was being assigned to a non-handicap cell." Id. ¶ 21.
• Waterson responded, "I'm only doing what I was told . . don't care what cell you're in . . ." Id.
• Mason likewise responded, "Yeah, Palmer, it's the truth . . . we were in a meeting and this is the move we agreed upon." Id.
• Palmer replied that he could only be assigned to a handicap cell. Id. ¶ 22.
• Watterson advised that he should talk to Perry or Swanson, and Mason explained, "Our policy say[s] we can put handicap inmates in any cell that is operable." Id.
A month later, Palmer spoke with Perry and Swanson and inquired why he was moved from a handicap cell. Id. ¶ 24. Palmer explained that without handicap accommodations, he would be more susceptible to hurting himself when "cleaning himself" or using the restroom. Id. Perry responded, "We're not giving you any special cell. . . . We know your story, but the DOC Policy states we can house handicap inmates in non-handicap cells. Stop your bitching. . . . Your problems are small." Id. ¶ 25. Swanson concurred, "He's (Perry), my boss and the RHN staff understand and agree with the decision of moving you out of the handicap cell." Id. ¶ 26.
The next day, February 27, 2019, Palmer again raised his concerns with Watterson and Reddinger. Reddinger responded, "You don't tell us what cell you go to. We tell you what cell you can go to. Shut up and lie down. Didn't Perry address this?" Id. ¶ 28. Watterson concurred, "Well said." Id. ¶ 29. Two days later, Ferringer and Kennedy escorted Palmer to a non-handicap accessible shower. Id. ¶¶ 30-33. During the commute, Palmer remonstrated, "Are you guys taking me to the handicap shower . . . I have an amputated foot. I don't want to hurt myself entering or exiting the non-handicap shower." Id. ¶ 34. Kennedy responded, "We've been through this. You're not going to [a] handicap shower. . . . Talk to Perry and Swanson." Id. ¶ 35. Bluntly, Ferringer declared, "I wish you [would] shut the fuck up about your foot." Id. ¶ 36.
Palmer was escorted to a non-handicap shower, which lacked the handrails, bench, and padding that the handicap accessible one has. Id. ¶ 38. To enter the shower, Palmer had to step up. As he was leaving, he slipped and fell and hit his back on the stainless-steel shower stoop. Id. ¶ 39. He began screaming in pain and various prison officials came to assist him. Id. ¶¶ 40-41. After a brief examination, Palmer was taken in a wheelchair and treated in the medical department. Id. ¶ 43. As a result of his fall, Palmer sustained a bad cut on his leg, bruising on his leg and back, radial nerve damage, shock, severe emotional distress, embarrassment, damage to reputation, and mental anguish. Id. ¶ 45. V. Discussion and Analysis
At this stage of the proceedings, Defendants do no challenge whether Palmer has exhausted his administrative remedies. See Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 152 L. Ed.2d 12 (2002).
Based upon the foregoing facts, Palmer's two-count Amended Complaint asserts the following theories of liability against all Defendants: deliberate indifference to Palmer's serious medical need in contravention of the Eighth Amendment, substantive due process violations under the Fifth and Fourteenth Amendments, Section 1983 civil conspiracy, failure to accommodate his disability in violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101, et. seq. and the Rehabilitation Act of 1973 (RA), 29 U.S.C. § 701, et. seq., and a negligence claim under Pennsylvania state law. Defendants' motion to dismiss (ECF No. 31) argues that Palmer has failed to show that any of the Defendants acted with deliberate indifference to his serious medical needs as required to support an Eighth Amendment claim and failed to sufficiently allege the personal involvement of any of the Defendants as is necessary to state a claim pursuant to 42 U.S.C. § 1983. Defendants also assert that his Fifth and Fourteenth Amendment claims must be dismissed because the Fifth Amendment does not apply to the states and a more specific constitutional provision (Eighth Amendment) precludes a claim under the more general Fourteenth Amendment's substantive due process principles. Additionally, they maintain that Palmer fails to allege facts to support a conspiracy claim. They likewise contend that his ADA and RA claims must be dismissed because neither provides for individual liability. Lastly, they argue that his negligence claim is barred by Pennsylvania state sovereign immunity. The Court will address each argument in turn.
A. Eighth Amendment and Defendants' Personal Involvement
Palmer contends that Defendants violated the Eighth Amendment's prohibition against cruel and unusual punishment by being deliberately indifferent to the risk of assigning him to a non-handicap cell and taking him to use a non-handicap shower. ECF No. 29. The Eighth Amendment is made applicable to the States by means of the Fourteenth Amendment. Glossip v. Gross, 576 U.S. 863, 876, 135 S. Ct. 2726, 192 L.Ed.2d 761 (2015). Although the Eighth Amendment's prohibition on cruel and unusual punishment protects against "unnecessary and wanton infliction of pain," Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 89 L.Ed.2d 251 (1986), it guarantees an inmate only the "minimal civilized measure of life's necessities," Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L.Ed.2d 59 (1981).
To state an Eighth Amendment claim, a plaintiff must allege facts showing that objectively he suffered a sufficiently serious deprivation and subjectively that the defendant had a culpable state of mind in allowing the deprivation to occur. Thompson v. Pa. Dep't of Corrs., 2020 WL 2429011, at *3 (W.D. Pa. April 16, 2020) (citing Wilson v. Seiter, 501 U.S. 294, 298-99, 111 S. Ct. 2321, 115 L.Ed.2d 271 (1991)). "The first element is satisfied when an inmate is deprived of 'the minimal civilized measure of life's necessities.'" Thomas v. Tice, 948 F.3d 133, 138 (3d Cir. 2020) (quoting Wilson, 501 U.S. at 299). To meet the second element, a plaintiff must plead that the defendants were deliberately indifferent to those conditions by acting with a reckless disregard of a known risk of harm. Id. (citing Wilson, 501 U.S. at 298-303). Thus, "[a] prison official acts with deliberate indifference to an inmate's serious medical need when he 'knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and must also draw the inference.'" Cameron v. Swartz, 2020 WL 7496317, at *5 (W.D. Pa. Nov. 19, 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)); Beers-Capitol, 256 F.3d 120, 133 (3d Cir. 2001); see Thomas, 948 F.3d at 138 (explaining on summary judgment that a defendant's knowledge of a risk to health and safety can be proved indirectly by circumstantial evidence if the excessive risk was so obvious that the official must have known of the risk) (internal citation and quotation omitted).
At this juncture, Palmer alleges sufficient facts to state a plausible Eighth Amendment claim against Ferringer and Kennedy. Palmer, a right foot amputee, alleges that despite his protestations to the contrary and a doctor's note, Ferringer and Kennedy took him to a non-handicap accessible shower. Predictably, Palmer fell, seriously injuring himself. See, e.g, Green v. Maldonodo, 2017 WL 3568662, at *4 (D. Conn. Aug. 17, 2017) (finding a plausible Eighth Amendment violation where the plaintiff alleged that the defendants played a role in keeping him from accessing a handicap shower); Latham v. Corizon Health Servs., 2015 WL 13658590, at *3 (D. N.M. Aug. 17, 2015) (finding a handicap plaintiff had stated a colorable claim for an Eighth Amendment violation against a warden where the plaintiff had been denied access to a handicap shower); see also Thomas v. Pa. Dep't of Corr., 615 F. Supp. 2d 411, 423 (W.D. Pa. 2009) (providing that a prisoner may plead an Eighth Amendment violation by alleging that he was "unable to shower or otherwise care for himself" due to not having access to a handicap shower). Cf. Cameron v. Swartz, 2020 WL 7496317, at *6 (explaining in the context of bottom bunk beds that where a plaintiff has a documented medical need and made repeated requests for a bottom bunk, the refusal to provide him with one can be construed as deliberate indifference where the plaintiff was injured as a result of same).
As to the remaining Defendants, Watterson, Mason, Reddinger, Perry, Swanson, and Duffy, Palmer merely alleges that he spoke to them on various occasions about his disability and asked for clarity as to his cell assignment. Consequently, Palmer has not plausibly asserted an Eighth Amendment claim against them as he has not sufficiently pleaded their personal involvement. Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (providing a "plaintiff must aver facts to show the defendants' personal involvement in the alleged misconduct"). Accordingly, his Eighth Amendment claim against Watterson, Mason, Reddinger, Perry, Swanson, and Duffy should be dismissed without prejudice.
B. Fifth and Fourteenth Amendments
Palmer also alleges Fifth and Fourteenth Amendment violations against all Defendants. ECF No. 29 ¶ 63. With respect to the Fifth Amendment, it applies only to the federal government and not to the states. Scutella v. Erie Cty. Prison, 2020 WL 7865402, at *5 (W.D. Pa. Nov. 16, 2020) (citing Dusenbery v. United States, 534 U.S. 161, 167, 122 S. Ct. 694, 151 L.Ed.2d. 597 (2002)). Consequently, because Palmer's claim is against state prison officers only, his Fifth Amendment claim fails as a matter of law and must be dismissed with prejudice. See Leventry v. Watts, 2007 WL 1469038, at *2 (W.D. Pa. May 17, 2007) (dismissing the plaintiff's Fifth Amendment claim against state actors because "the Fifth Amendment restricts the actions of federal officials, not state actors").
Palmer's Fourteenth Amendment claim must likewise be dismissed with prejudice. The Supreme Court of the United States has made clear that "[w]here a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing' such a claim.'" Albright v. Oliver, 510 U.S. 266, 266, 114 S. Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L.Ed.2d 443. (1989)). The Eighth Amendment provides the explicit source of constitutional protection against deliberate indifference claims. See In v. Stroup, 2020 WL 5819602, at *9 (W.D. Pa. Sept. 30, 2020) (citing Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L.Ed.2d 251 (1976)). Thus, Palmer's Fourteenth Amendment claim also fails as a matter of law and should be dismissed with prejudice.
C. Conspiracy
Palmer further alleges that the Defendants conspired against him to commit a constitutional violation. ECF No. 29, ¶ 62. To state a claim for civil conspiracy under § 1983, a plaintiff must allege that two or more persons acting under color of state law conspired to deprive him of a constitutional right. Laurensau v. Romarowics, 528 Fed. Appx 136, 140 (3d Cir. 2013). However, "mere conclusory allegations of deprivations of constitutional rights are insufficient to state a conspiracy claim." Tindell v. Beard, 351 Fed. Appx 591, 594 (3d Cir. 2009) (internal quotation and citation omitted). Instead, a plaintiff "must provide some factual basis to support the existence of the elements of a conspiracy: agreement and concerted action." Capogrosso v. Supreme Court of the State of N.J., 588 F.3d 180, 185 (3d Cir. 2009) (internal citation and quotation omitted). This includes "alleg[ing] specific facts, particular to the moving defendants, demonstrating the actions of defendants committed in creating and furthering the conspiracy, including the times and places of meetings and the general role of each conspirator." Brown v. Wetzel, 2019 WL 1331619, at *6 (W.D. Pa. Mar. 25, 2019) (quoting Robinson v. Corizon Health, Inc., 2016 WL 1274045, *12 (E.D. Pa. Mar. 30, 2016)).
Palmer's bare allegations, without more, fail to state a plausible claim for civil conspiracy under this standard. To this end, he has not pleaded the express or tacit agreement necessary to state a conspiracy claim. See Brown, 2019 WL 1331619, at *6. As a result, Defendants' motion to dismiss this claim should be granted. Nonetheless, because it cannot be concluded as a matter of law that amendment would be futile, Palmer should be granted a further opportunity to amend his Amended Complaint to include the factual allegations necessary to state a valid conspiracy claim.
D. ADA and RA
Palmer also alleges that the Defendants violated the ADA and RA by failing to accommodate his disability. ECF No. 29 ¶¶ 46-65. To state a claim under either of these statutes, a plaintiff must allege that "he is a qualified individual with a disability, who was precluded from participating in a program, service, or activity, or otherwise was subject to discrimination, by reason of his disability." Furgess v. Pa. Dep't of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019). However, neither the ADA nor RA provides a private right of action for damages against individual defendants. See, e.g., Matthews v. Pa. Dep't of Corr., 613 Fed. Appx 163, 170 (3d Cir. 2015) (explaining "Title II of the ADA does not provide for suits against state officers in their individual capacities"); Bowens v. Wetzel, 674 Fed. Appx 133, 136 (3d Cir. 2017) (affirming dismissal of ADA claims against individual prison employees because "there is no individual damages liability under Title II of the ADA"); A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 804 (3d Cir. 2007) (providing "[s]uits may be brought pursuant to [the RA] against recipients of federal financial assistance, but not against individuals"); Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002) (stating "[b]ecause the individual defendants do not receive federal aid, [plaintiff] does not state a claim against them under the [RA]"). Given that Watterson, Mason, Reddinger, Perry, Swanson, Kennedy, Duffy, and Ferringer are all being sued in their individual capacities, Palmer's ADA and RA claims against them should be dismissed with prejudice. Palmer should, however, be given the opportunity to file a second amended complaint to properly assert ADA and RA claims against an entity amenable to suit under those statutes. See Jones v. Bureau of Prisons, 2020 WL 6785975, at *4 (W.D. Pa. Nov. 18, 2020).
The substantive standards for determining liability under the ADA and RA are the same. Furgess v. Pa. Dep't of Corr., 933 F.3d 285, 288 (3d Cir. 2019).
The Court expresses no opinion at this stage of the proceedings regarding what entity or person in an official capacity may be a proper ADA or RA defendant in this case, see Powell v. Wetzel, 2015 WL 1513888, at *2 (M.D. Pa. Mar. 27, 2015), or any issue relating to possible Eleventh Amendment immunity from suit. See Shaw v. Pa. Dep't of Corr., 2018 WL 6831148, at *4 (W.D. Pa. Dec. 28, 2018).
E. Negligence
Lastly, Palmer asserts a claim for negligence under Pennsylvania state law. ECF No. 29. In general, employees of the Commonwealth of Pennsylvania acting within the scope of their duties are immune from liability. Moss v. Pa., 2020 WL 7240185, at *3 (3d Cir. Dec. 9, 2020); Walton v. Harkleroad, 2016 WL 11480713, at *7 (W.D. Pa. Mar. 3, 2016) (citing 1 Pa. Con. Stat. Ann. § 2310). To this end, Pennsylvania's sovereign immunity statute affords state officials with broad immunity from state-law tort claims. 1 Pa. Con. Stat. § 2310. The General Assembly has only waived sovereign immunity for claims of negligence against Commonwealth employees in nine discrete areas, which must "be narrowly interpreted." Smith v. Loysville Youth Dev. Ctr., 2020 WL 5439547, at *6 (E.D. Pa. Sept. 10, 2020) (internal citation omitted); 42 Pa. Con. Stat. Ann. § 8522(b). Here, the allegations in Palmer's complaint do not fall within any of the nine exceptions. See ECF No. 29. Accordingly, Palmer's negligence claim should be dismissed with prejudice as the named individual defendants are immune from suit based on the facts alleged. VI. Conclusion
The General Assembly has waived its sovereign immunity in cases of (1) vehicle liability; (2) medical-professional liability; (3) care, custody or control of personal property; (4) Commonwealth real estate, highways, and sidewalks; (5) potholes and other dangerous conditions; (6) care, custody, or control of animals; (7) liquor store sales; (8) National Guard activities; and (9) toxoids and vaccines. 42 Pa. Con. Stat. Ann. § 8522(b).
For the reasons stated herein, it is respectfully recommended that Defendants' motion to dismiss (ECF No. 31) be granted, in part, and denied, in part. Specifically, Defendants' motion should be granted as to all claims except Palmer's Eighth Amendment claim against C.O. Kennedy and C.O. Ferringer. Palmer's Eighth Amendment claim against the remaining defendants and his conspiracy claim should be dismissed without prejudice as Palmer may be able to cure the pleading deficiencies of these claims by amendment. Palmer's Fifth Amendment, Fourteenth Amendment, ADA, RA, and negligence claims against these Defendants should be dismissed with prejudice, as they fail as a matter of law and any attempt to amend these claims would be futile. Palmer, however, should be granted leave to file an amended complaint asserting ADA and RA claims against an appropriate entity or individual in his or her official capacity. VII. Notice
Plaintiff has filed two motions for leave to file an amended complaint. ECF Nos. 43, 44. Neither motion includes a proposed amended complaint. See Ladd v. Plummer, 1993 WL 29120, at *1 (E.D. Pa. Feb. 5, 1993). Given the recommendation that Plaintiff be granted leave to file an amended complaint as to certain claims, the undersigned will enter an order denying these two motions as moot, subject to the Court's ultimate disposition of Defendants' motion. --------
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, any party may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed. R. Civ. P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
Submitted this 29th day of January, 2021.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge