Opinion
2:20-cv-1168
11-02-2021
ANTHONY SIDES, Plaintiff v. JOHN WETZEL, et al., Defendants.
J. Nicholas Ranjan, Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, United States Magistrate Judge
I. Recommendation
For the reasons that follow, it is respectfully recommended that the Court grant in part and deny in part the Motion to Dismiss (ECF 64) filed by Dr. Mike Melczak and grant in part and deny in part the Motion to Dismiss filed by the Pennsylvania Department of Corrections (“DOC”) defendants (ECF 68).
II. Report
A. Relevant Background
Plaintiff, Anthony Sides, is a state prisoner in the custody of the DOC. He is proceeding pro se in this civil rights action in which he asserts Eighth and Fourteenth Amendment claims under 42 U.S.C. § 1983, as well as claims under Title II of the Americans with Disabilities Act of 1990 (“ADA”), § 504 of the Rehabilitation Act of 1973 (“RA”), and related supplemental state law claims under Pennsylvania's Mental Health Procedures Act (“MHPA”). The events in question in this lawsuit occurred at SCI Pine Grove, which is where the DOC housed Plaintiff from April 2018 until February 2021, at which time it transferred him to SCI Forest.
Plaintiff began this case in August 2020, when he was still at SCI Pine Grove, with the filing of a motion for leave to proceed in forma pauperis, which the Court granted, and his complaint (ECF 11). On or around December 29, 2020, and before the defendants had filed their responsive pleading to the original complaint, Plaintiff filed the Amended Complaint (ECF 43), which is the operative pleading.
The Amended Complaint names as defendants former DOC Secretary John Wetzel (in his official capacity only) and the following individuals who worked at SCI Pine Grove during the relevant time: (1) Superintendent Lee Estock; (2) S.L. Bergey, the Chief Health Care Administrator (“CHCA”); (3) Dr. Melczak, the Licensed Psychology Manager (“LPM”); (3) Kennedy, a psychologist; (4) D.L. Yingling; (5) S.L. Newman; (6) Inmate Counselor Cogan; and (7) Unit Manager Sawtelle. (ECF 43, Amend. Compl. ¶¶ 4-10.) All defendants except for Dr. Melczak (who is represented by separate counsel) are referred to collectively as the “DOC Defendants.”
Defendants Kennedy, Bergley, Cogan and Sawtelle are members of the Multi-Disciplinary Committee (“MDC”). (ECF 43, Amend. Compl. ¶ 10.)
The Amended Complaint also lists as Jane/John Doe defendants an unnamed psychiatrist and three unnamed staff members on the Program Review Committee (“PRC”). (Id. ¶¶ 10-11.)
Plaintiff alleges in the Amended Complaint that he has been diagnosed since childhood with Axis 1 and 2 disorders, including bipolar, mood, dysthymic, borderline and anti-social disorders. (ECF 43, Amend. Compl. ¶ 13.) He has been institutionalized and treated for these disorders many times throughout his life. (Id. ¶ 14.)
According to Plaintiff, since entering DOC custody he has been assigned either Stability Code C or D because of his mental health history and/or treatment needs. (Id. ¶ 15; ECF 43-6, Ex. F to Amend. Compl.) In November 2016, Dr. Robert Marsh recommended that the DOC assign Plaintiff to a correctional institution and/or housing unit that provides “dual-diagnosis” treatment for inmates with mental health and drug dependency disorders. (Id. ¶ 52.) Plaintiff does not explain in the Amended Complaint where the DOC housed him immediately following Dr. Marsh's recommendation. At any rate, about a year and half later, on April 5, 2018, the DOC designated Plaintiff to be confined at SCI Pine Grove. (Id. ¶ 12.)
The DOC receives federal funding to provide inmates with mental health services and programming. (Id. ¶ 40.) Plaintiff alleges that he meets the criteria for the mental health programing that the DOC provides to inmates who are housed in specialized treatment units (such as Secure Residential Treatment, Residential Treatment, Diversionary Treatment, Special Needs and/or Behavior Health Units), but that those treatment units are unavailable to inmates at SCI Pine Grove. (Id. pp. 4-5, ¶¶ 15-18; ECF 43-2, Ex. B to Amend. Compl.) He alleges SCI Pine Grove is not designed to house inmates with mental and intellectual disabilities and that its mental health services and programming are either nonexistent or are so deficient that he is being denied mental health treatment. (Id. ¶¶ 16-17, 45-48, 53.)
Plaintiff alleges that SCI Pine Grove's mental health programming and services consists of providing psychotropic medications and crosswords puzzles. (Id. ¶ 48.) He also alleges that SCI Pine Grove lacks an on-site psychiatrist; that its inmate-to-psychiatrist ratio is insufficient; that inmates with mental health issues are mixed with non-mentally ill inmates; that mental health personnel fail to see inmates on the mental health roster or spend only minutes with the inmate at the cell door and do not conduct out-of-cell therapy; that he and other inmates are “continuously being housed in and out of the RHU [Restricted Housing Unit]” even though doing so exacerbates the inmate's mental health problems; and that RHU personnel are not properly trained to deal with inmates with mental health issues (Id. ¶¶ 46-50.)
At times in the Amended Complaint Plaintiff uses the term “solitary confinement” to describe his confinement. It appears he uses this term to describe his confinement in SCI Pine Grove's RHU.
Plaintiff alleges that his mental health illnesses have worsened as a result of “being in and out of” the RHU and because he is being denied mental health programming and services at SCI Pine Grove. (Id. ¶ 51.) Plaintiff also asserts that “[h]e is constantly depressed, angry, hears voices, committed [self-injurious behavior], attempted suicide and has [had] both suicide[al] and homicidal thoughts.” (Id.)
According to Plaintiff, Superintendent Estock, CHCA Bergey, Dr. Melczak, Newman and Yingling each had personal interactions with him and knew that he was going through a crisis and required mental health programing and treatment, including access to a psychiatrist. (Id. ¶¶ 36-37.) He alleges that each of these defendants admitted to him that SCI Pine Grove was not designed to treat or house inmates with mental illness and informed him that due to financial constraints, SCI Pine Grove was unable provide him with adequate mental health programming and services. (Id.)
Plaintiff was eventually seen by a visiting psychiatrist who recommended that he be transferred to a correctional institution that is equipped to treat his mental health issues. (Id. ¶ 38.) According to Plaintiff, that psychiatrist's recommendation was overridden by unidentified defendants for non-medical reasons, such as financial considerations, overcrowding, and lack of bed space. (Id. ¶ 39.)
In support of this allegation, Plaintiff cites to Exhibit J of his Amended Complaint, which consists of two Requests to Staff he submitted in June 2017 to Unit Managers Palmer and Bozelli, neither of whom is a defendant in this case. (ECF 43-10, Ex. J to Amend. Compl.) As discussed above, Plaintiff arrived at SCI Pine Grove on April 5, 2018. (ECF 43, Amend. Compl. ¶ 12.) He does not explain why the June 2017 Requests to Staff are relevant to the claims he brings in this lawsuit, which are limited to what occurred while he was housed at SCI Pine Grove.
Plaintiff also alleges that Kennedy fabricates his “Mental Health/Intellectual Disabilities Consultation for Disciplinary Disposition” forms, also known as “1-C's, ” which has resulted in his “arbitrary” placement in the RHU as a sanction following a misconduct hearing on at least four occasions. (Id. ¶¶ 20-25, 47, 50.) He explains that DOC policy on misconduct hearings provides that before a hearing examiner may conduct a hearing with an inmate who has serious mental health disabilities, a psychologist such as Kennedy must first interview the inmate and complete a 1-C Form. The hearing examiner must then use that 1-C Form during his or her deliberations and sanctioning. (Id. ¶¶ 21-24; see also ECDF 43-8, Ex. H to Amend. Compl.)
Plaintiff notified the MDT and the PRC that he was being arbitrarily placed in the RHU because of Kennedy's improper actions and that, on at least one occasion, he was successful in getting the hearing examiner's decision “set aside[.]” (Id. ¶ 25.) At the same time, Plaintiff alleges, Superintendent Estock and the PRC continued to allow Kennedy to intentionally submit false 1-C Forms for use at misconduct hearings. (Id. ¶¶ 25, 66.)
Plaintiff also claims that more than once he was placed in a Psychiatric Observation Cell (“POC”) because of his suicidal and homicidal ideations and/or because he had engaged in other self-injurious behavior. (Id. ¶ 26.) During his time in the POC he was denied all clothing and hygiene items. (Id. ¶ 29.) DOC policy provides that when an inmate is in a POC he is to be visited by the PRC and the MDT “on a weekly basis” to evaluate his progress and determine when he should be released from the POC. That did not happen on at least one occasion, however, and Plaintiff “remained in the POC for the better part of a month.” (Id. ¶¶ 33-34.)
Plaintiff also alleges that during this same stay in the POC, a corrections officer failed to appropriately monitor him and Plaintiff managed to shred his mattress and braid the mattress pieces to make a noose, which he then used to attempt to hang himself. (Id. ¶¶ 27-28.) Plaintiff was also able to shatter a security light in his cell and use the shards of glass to injure himself. (Id. ¶ 29.)
Finally, Plaintiff alleges that it was the custom and practice of Kennedy and other unidentified mental health personnel at SCI Pine Grove to conducting cursory mental health visits with Plaintiff at his cell door in contravention of DOC policy and procedures designed to maintain privacy and the confidentiality. (Id. ¶¶ 55, 59 and pp. 5-6.) Plaintiff objected to these cell-door visits because other inmates and staff could overhear what was said. (Id. ¶ 56.) He alleges that as a result of these cell-door visits, other inmates learned of his mental health disorders and of the medication he was taking and subjected him to harassment, ridicule and humiliation. (Id. ¶ 57.)
Plaintiff brings the following claims in the Amended Complaint:
• all defendants violated his rights under the Eighth Amendment, the ADA, the RA and the MHPA because they failed to provide him with adequate mental health treatment, services and programing. (Id. ¶¶ 61-63.)
• Kennedy violated Plaintiff's right to due process under the Fourteenth Amendment by falsifying Plaintiff's 1-C Forms, which resulted in his arbitrary placement in the RHU (id. ¶ 65), and Defendants Estock and the members of the PRC also violated his right to due process because they knowingly allowed Kennedy to falsify Plaintiff's 1-C Forms. (Id. ¶ 66.)
• all defendants exhibited deliberate indifference in violation of the Eighth Amendment because they knew that his “continued placement” in the RHU “would cause [him] undue suffering and place his health and safety at risk[.]” (Id. ¶ 60.)
• the “blanket policy” employed by Kennedy and other mental health personnel of conducting mental health visits at Plaintiff's cell door violated DOC policy and procedures and Plaintiff's right to mental health privacy and confidentiality under the Fourteenth Amendment and the MHPA. (Id. ¶¶ 64.)
Plaintiff seeks damages, declaratory relief and an injunction ordering that Defendants transfer him to another state correctional institution that has mental health programming and services and also that they cease all cell-door mental health visits. (Id. at pp. 33-35, ¶¶ A-I.)
Plaintiff filed his first motion for preliminary injunction (ECF 15) at around the same time that he filed the original complaint. In it, he sought preliminary injunctive relief in the form of an order directing that Defendants remove him from SCI Pine Grove's RHU and either transfer him to another DOC facility or hire an on-site psychiatrist at SCI Pine Grove and institute appropriate mental health treatment there. The Court scheduled a preliminary injunction hearing which it later continued after receiving notification from Plaintiff that he was going to be transferred to SCI Forest. (ECF 35, 52.)
After his transfer in February 2021, Plaintiff filed an “addendum” (ECF 62) to the first motion for preliminary injunctive relief in which he contended that his transfer did not necessarily moot that motion. Plaintiff also filed a second motion for preliminary injunction (ECF 61) related to his conditions of confinement at SCI Forest and in which he sought to litigate new claims against unnamed third parties.
After the undersigned issued a report and recommendation (ECF 63), the Court issued a memorandum order (ECF 73) that denied both of Plaintiff's motions for preliminary injunctive relief. The Court held that Plaintiff's transfer to SCI Forest mooted his request for injunctive relief targeted to SCI Pine Grove and that any claims related to his confinement at SCI Forest must be brought in a separate lawsuit.
Now pending before the Court are motions to dismiss the Amended Complaint filed by Dr. Melczak (ECF 64) and the DOC Defendants (ECF 68) under Federal Rule of Civil Procedure 12(b)(6). The motions are fully briefed. (ECF 66, 69, 76, 81-84.)
One of the arguments Dr. Melczak makes in his motion (ECF 64) is that Plaintiff's claims against him should be dismissed because Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”). The Court notified the parties that since Dr. Melczak attached Plaintiff's grievances to his motion, his motion would be treated as a motion for summary judgment under Federal Rule of Civil Procedure 56 with respect to the issue of exhaustion of administrative remedies. (ECF 70.) See Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010) (district court must provide notice to pro se prisoners when converting a motion to dismiss into a motion for summary judgment).
B. Standard of Review
A complaint requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed, in whole or in part, for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a Rule 12(b)(6) motion, the court must “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 entitled to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). While “accept[ing] all of the complaint's well-pleaded facts as true, ” the court “may disregard any legal conclusions.” Id. at 210-11.
To survive a motion to dismiss, the plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Though ‘detailed factual allegations' are not required, a complaint must do more than simply provide ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). In sum, the plaintiff “must plead facts sufficient to show that her claim has substantive plausibility.” Johnson v. City of Shelby, Miss., 574 U.S. 10 (2014).
To assess the sufficiency of a complaint under Twombly and Iqbal, a court must take three steps: (1) outline the elements the plaintiff must plead to state a claim for relief; (2) peel away those allegations that are no more than conclusions and thus not entitled to the assumption of truth; (3) look for well-pled factual allegations, assume their veracity, and then determine whether they plausibly give rise to an entitlement to relief. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012). The court's plausibility 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.
As noted above, that portion of Dr. Melczak's motion in which he raises the exhaustion defense will be treated as a motion for summary judgment. Rule 56 of the Federal Rules of Civil Procedure provides that: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court is the finder of fact with respect to the defense that a plaintiff failed to exhaust available administrative remedies as required by PLRA. Hardy v. Shaikh, 959 F.3d 578, 581 n.1 (3d Cir. 2020); Paladino v. Newsome, 885 F.3d 203, 210-11 (3d Cir. 2018); Small v. Camden Cnty., 728 F.3d 265, 269-71 (3d Cir. 2013).
Finally, “[a] document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citation and quotation marks omitted); see also Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011) (“The obligation to liberally construe a pro se litigant's pleadings is well-established.”). Additionally, the Court must “apply the relevant legal principle even when the complaint has failed to name it.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to support a claim[, ]” and “they cannot flout procedural rules- they must abide by the same rules that apply to all other litigants.” Id. at 245.
C. Discussion
1. All Claims for Declaratory and Injunctive Relief Should Be Dismissed
The DOC Defendants move for the dismissal of all of Plaintiff's claims for declaratory and injunctive relief. They point out that, as the Court recognized in its memorandum order (ECF 73) denying Plaintiff's first motion for preliminary injunctive relief, such claims are moot because the DOC has transferred Plaintiff to SCI Forest. See, e.g., Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (“An inmate's transfer from the facility complained of generally moots the equitable and declaratory claims.”); Johnson v. Wenerowicz, 440 Fed.Appx. 60, 62 (3d Cir. 2011) (“As the District Court correctly determined, Johnson's requests for injunctive and declaratory relief against the named DOC defendants were rendered moot by his transfer to SCI-Fayette[.]”); Johnson v. Tritt, No. 1:18-cv-203, 2020 WL 1911538, *12 (M.D. Pa. 2020) (any claims for prospective injunctive relief under the ADA and RA were rendered moot because of plaintiff's transfer); Santiago v. Sherman, No. 1:05-cv-153, 2007 WL 217353, at *3 (W.D. Pa. Jan. 25, 2007) (“In the prison context, the transfer of an inmate from the facility complained of moots claims for injunctive relief involving that facility.”)
For this reason, the Court should dismiss with prejudice Plaintiff's claims for declaratory and injunctive relief because they have been rendered moot by his transfer to SCI Forest.
2. Defendant Melczak's Failure to Exhaust Defense
The PLRA mandates that an inmate exhaust “such administrative remedies as are available” before bringing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). The exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA's mandatory exhaustion requirement means not only that a complaint filed before administrative remedies are exhausted is premature and cannot be entertained, but also that a failure to exhaust administrative remedies in accordance with a prison's grievance procedures constitutes procedural default. That is so because “the PLRA's exhaustion requirement requires proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93-95 (2006); see also Spruill v. Gillis, 372 F.3d 218, 227-30 (3d Cir. 2004).
Failure to exhaust is an affirmative defense under the PLRA. Jones v. Bock, 549 U.S. 199, 216 (2007). Exhaustion is a “non-jurisdictional prerequisite to an inmate bringing suit” and when raised by a defendant it constitutes a threshold issue to be addressed by the court. See, e.g., Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018). Dr. Melczak has the burden of proving that Plaintiff failed to exhaust his available administrative remedies. Id. at 268.
The prison's grievance policy is what “define[s] the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; Spruill, 372 F.3d at 230-31 (“prison grievance procedures supply the yardstick for measuring procedural default.”). Thus, the procedural requirements for exhaustion in a given case “are drawn from the policies of the prison in question rather than from any freestanding federal law.
Here, the DOC's relevant inmate grievance system is set forth in DC-ADM 804. (ECF 69-1.) There are several requirements to filing a proper grievance in accordance with DC-ADM 804, including, as relevant here:
The text of the grievance must be legible, understandable, and presented in a courteous manner. The inmate must include a statement of the facts relevant to the claim.
a. The statement of facts shall include the date, approximate time, and location of the event(s) that gave rise to the grievance.
b. The inmate shall identify individuals directly involved in the event(s).
c. The inmate shall specifically state any claims he/she wishes to make concerning violations of Department directives, regulations, court orders, or other law.
d. If the inmate desires compensation or other legal relief normally available from a court, the inmate must request the specific relief sought in his/her initial grievance.DC-ADM 804, § 1(A)(11) (emphasis added).
Dr. Melczak and Plaintiff agree that the only relevant grievance is Grievance 802849, which Dr. Melczak attached as Exhibit E to his Brief (ECF 69-5). Plaintiff wrote in this grievance that his complaint was “against the Mental Health Dept. and DOC employees” for alleged denial or delay of mental health treatment, programming, and services. (ECF 69-5 at p. 5, Dr. Melczak Ex. E.) He said that those individuals included, in relevant part, “Chief of Psych., Supt. Estock…and any and all mental health personnel, psych review team P.R.T. and Periodic Review Committee (P.R.C.).” (Id. at pp. 5-6) (emphasis added).
Dr. Melczak argues that Plaintiff failed to exhaust administrative remedies as to all claims against him because Plaintiff did not identify him, either by name or role, in Grievance 802849.Plaintiff counters with two arguments. First, Plaintiff contends that he did identify Dr. Melczak in Grievance 802849 because, in his role as SCI Pine Grove's LPM, Dr. Melczak was also the Chief Psychologist and Chair of its Psychiatric Review Team or PRT. (ECF 81 at pp. 4-5, Pl's Addendum, DOC Policy 13.8.1, Glossary of Terms.) Second, Plaintiff contends that because Dr. Melczak was identified in one of the responses to his appeal from the denial of Grievance 802849, this satisfied the exhaustion of his administrative remedies.
Dr. Melczak also stated in his brief that Plaintiff did not complete the appeal process for Grievance 802849. (ECF 69 at p. 5.) It is evident this was a typographical error on Dr. Melczak's part and that in this portion of his argument he was referring to Grievance 678868 and not Grievance 802849.
In his Reply (ECF 84), Dr. Melczak only addressed Plaintiff's second argument, pointing out that his name was mentioned in one of the responses provided during the appeal of Grievance 802849 because Dr. Melczak was the individual who initially responded to the grievance. Dr. Melczak failed to address or produce any evidence to counter Plaintiff's evidence that he was the Chief Psychologist at SCI Pine Grove and also a member of the PRT, however. Thus, Plaintiff did, in fact, identify him by his role in the grievance as one of the individuals responsible for the complaints he made.
Thus, Dr. Melczak has not met his burden of proving that Plaintiff failed to exhaust his administrative remedies with respect to the claims Plaintiff brings against him. As a result, it is recommended that the Court deny Dr. Melczak's motion to the extent that he seeks dismissal of Plaintiff's claims against him based on the failure to exhaust.
3. Section 1983 Claims
Plaintiff brings Eighth Amendment claims and Fourteenth Amendment claims under 42 U.S.C. § 1983, which “provides a cause of action against state actors who violate an individual's rights under federal law.” Filarsky v. Delia, 566 U.S. 377, 380 (2012). Section 1983 does not create substantive rights but “provides only remedies for deprivations of rights established elsewhere in the Constitution or federal laws.” Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). “To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
A plaintiff must plead a defendant's personal involvement in the alleged deprivation of his constitutional right. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). That is because, as stated in the text of § 1983 itself, only a person who “subjects, or causes to be subjected” another person to a civil rights violation can be held liable under § 1983. Thus, each defendant can be held liable only for his or her own conduct. See, e.g., id.; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016); Barkes v. First Corr. Med., 766 F.3d 307, 316 (3d Cir. 2014) (rev'd sub. nom. on other grounds 575 U.S. 822 (2015)); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005) (“To impose liability on the individual defendants, Plaintiffs must show that each one individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v. Oliva, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)).
The doctrine of respondeat superior, which makes an employer automatically responsible for the wrongdoing of employees, does not apply under § 1983. Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.”); see, e.g., Rode, 845 F.2d at 1207. Thus, supervisor-defendants cannot be held liable for every illegal act that takes place in a correctional facility. Rather, they can be liable only for their own conduct.
The Court of Appeals has identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, liability may attach if the supervisor, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). “Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.” Rode, 845 F.2d at 1208.
a. Section 1983 Claims Against Cogan, Sawtelle and Wetzel
The only instance in which the Amended Complaint mentions Inmate Counselor Cogan or Unit Manager Sawtelle by name is where it lists all defendants. (ECF 443, Amend. Compl. ¶ 10.) Although Cogan and Sawtelle are identified as members of the MDT, the Amended Complaint lacks sufficient allegations that in that role, Cogan or Sawtelle had knowledge of, or were responsible for, the alleged failure to provide Plaintiff with adequate mental health care or any of the other misconduct alleged in the Amended Complaint. Thus, the Amended Complaint fails to allege that either Cogan or Sawtelle had the requisite personal involvement sufficient to state a claim against them § 1983.
As for Secretary Wetzel, the Court notes that Plaintiff sued him in his official capacity only. (ECF 43, Amend. Compl. ¶ 4). Plaintiff cannot sue state officials such as Secretary Wetzel for damages in their official capacity under § 1983 because that is deemed to be the same as suing the state and, therefore, such claims are barred by Eleventh Amendment immunity. See, e.g., Lavia v. Pennsylvania Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000); Kentucky v. Graham, 473 U.S. 159, 167 n.14, 169 (1985); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). Although suits seeking purely prospective relief against a state official in his or her official capacity for ongoing violations of federal law are not barred by the Eleventh Amendment, Ex Parte Young, 209 U.S. 123, 159-60 (1908); Graham, 473 U.S. at 167 n.14, Plaintiff does not have a viable claim for prospective relief against Secretary Wetzel because, for the reasons previously discussed, Plaintiff's claims for injunctive relief are moot.
It does not appear that Plaintiff is seeking to hold Secretary Wetzel individually liable for the misconduct alleged in the Amended Complaint. Even if he is attempting to do so, however, Plaintiff does not allege that Secretary Wetzel participated in any of the alleged incidents discussed in the Amended Complaint, that he personally directed the other defendants' actions, or that he had actual knowledge and acquiesced in their actions. Nor is there any allegation that the other defendants were carrying out a policy, practice or custom implemented by Secretary Wetzel that caused Plaintiff harm. As a result, the DOC Defendants are correct that, to the extent that Plaintiff is bringing a claim against Secretary Wetzel in his individual capacity, he is trying to impute liability upon him based solely under the doctrine of respondeat superior, which, as set forth above, does not apply under § 1983.
Accordingly, Plaintiff has failed to state a plausible § 1983 claim against Secretary Wetzel, Cogan and Sawtelle. Therefore, the Court should grant the DOC Defendants' motion to dismiss as it relates to these defendants and dismiss without prejudice all § 1983 claims asserted against them.
b. Deliberate Indifference to Plaintiff's Serious Mental Health Treatment Needs
“The Eighth Amendment, through its prohibition on cruel and unusual punishment, prohibits the imposition of ‘unnecessary and wanton infliction of pain contrary to contemporary standards of decency.'” Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)). This prohibition against cruel and unusual punishment guarantees that prison officials must provide humane conditions of confinement. Prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must “‘take reasonable measures to guarantee the safety of the inmates[.]'” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (emphasis added) (quoting Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). In Estelle v. Gamble, 429 U.S. 97, 103-04 (1976), the Supreme Court held that this principle “establish[es] the government's obligation to provide medical care for those whom it is punishing by incarceration[, ]” and that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of a pain'…proscribed by the Eighth Amendment.”
Plaintiff's Eighth Amendment claims turn on his assertion that he was denied adequate mental health treatment at SCI Pine Grove. He alleges that one or more of the defendants were responsible for, or aware of, the mental health crisis or crises he experienced as a result but failed to assist him by ensuring that he received the treatment he required. (ECF 43, Amend. Compl. ¶¶ 60-63.) To establish a violation of the constitutional right to adequate medical care, including adequate mental health care, a plaintiff must allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison officials that show deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that leads to suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
“A serious medical need is ‘one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.' Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citation omitted). A medical need is also serious where the denial of treatment would result in the ‘unnecessary and wanton infliction of pain,' Estelle, 429 U.S. at 103, or a ‘life-long handicap or permanent loss,' Lanzaro, 834 F.2d at 347.” Atkinson v. Taylor, 316 F.3d 257, 272 (3d Cir. 2003) (parallel citations omitted).
The DOC Defendants argue that the Amended Complaint lacks any facts demonstrating that any of them were aware of any risk to Plaintiff's health or safety. This argument is not persuasive with respect to Kennedy, whom Plaintiff alleges conducted only cursory mental health visits with him and also failed to interview him when preparing the 1-C forms, which led to his arbitrary placement in the RHU and the exacerbation of his mental health problems. (ECF 43, Amend. Compl. at p. 5 and ¶¶ 8, 22-23, 46, 55). The DOC Defendants' argument is also less than persuasive with respect to the claims against Superintendent Estock, CHCA Bergey, Newman and Yingling, since Plaintiff alleges that he had personal interactions with these defendants and that they knew that he was going through a crisis and required mental health programing and treatment but failed to assist him even though they could have given the roles they held at SCI Pine Grove.(Id. ¶¶ 5-7, 9, 36-37.) Since at this stage of the litigation the Court must view the allegations of the Amended Complaint as true and draw all reasonable inferences in Plaintiff's favor, Plaintiff's allegations against Kennedy, Superintendent Estock, CHCA Bergey, Newman and Yingling state a plausible Eighth Amendment claim based on the alleged denial of adequate mental health treatment at SCI Pine Grove.
Plaintiff alleges that Superintendent Estock is responsible for the overall management of SCI Pine Grove and for making sure all policies and procedures are being followed; that CHCA Bergey is responsible for ensuring that all DOC policies and procedures regarding the dissemination of medical and mental health treatment and services are provided to all inmates and for ensuring all personnel comply with state and federal statutes about medical and mental health issues; that Dr. Melczak is responsible for ensuring mental health services and programing is provided to all inmates and that it meets their personal needs; and that Yingling and Newman are responsible for ensuring programing to individual inmates and that such programming meets a prisoner's personal needs. (ECF 43, Amend. Compl. ¶¶ 5-7, 9.)
As for Dr. Melczak, he contends that Plaintiff fails to state an Eighth Amendment claim against him because Plaintiff admits in the Amended Complaint that he received some mental health programing at SCI Pine Grove, including treatment with psychotropic medications and cell-door visits from Kennedy and other mental health providers. (ECF 43, Amend. Compl. ¶¶ 48, 55.) Dr. Melczak characterizes Plaintiff's complaints about his mental health care as a disagreement about the type of care to which he believes he was entitled.
It is true that “[b]ecause ‘mere disagreement as to the proper medical treatment' does not ‘support a claim of an eighth amendment violation,' Monmouth Cty. Corr. Inst. v. Lanzaro, 834 F.2d 326, 346 (3d. Cir. 1987), when medical care is provided, we presume that the treatment of a prisoner is proper absent evidence that it violates professional standards of care.” Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017) (additional citation omitted). That said, the fact that prison medical personnel have provided some medical care to an inmate does not preclude a finding of deliberate indifference:
[T]here are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements. For instance, prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for “an easier and less efficacious treatment” of the inmate's condition. West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978) (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)). Nor may “prison authorities deny reasonable requests for medical treatment... [when] such denial exposes the inmate ‘to undue suffering or the threat of tangible residual injury.'” Monmouth County Corr. Inst. Inmates, 834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir. 1976)). And, “knowledge of the need for medical care [may not be accompanied by the]…intentional refusal to provide that care.” Id. (alterations in original) (quoting Ancata v. Prison Health Servs., 769 F.2d 700, 204 (11th Cir. 1985)).Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017).
With further development of the record during discovery, Dr. Melczak's argument may well be persuasive. But at this stage of the litigation the Court cannot conclude, as Dr. Melczak argues, that Plaintiff failed to state a plausible Eighth Amendment claim against him because Plaintiff received some mental health treatment at SCI Pine Grove.
In conclusion, taking Plaintiff's allegations as true and construing them liberally, he has stated an Eighth Amendment claim against Kennedy, Superintendent Estock, Dr. Melczak, CHCA Bergey, Yingling and Newsome for denial and/or inadequate mental health treatment.
c. Claims Related to RHU Confinement
Plaintiff claims that Defendant Kennedy violated his right to procedural due process under the Fourteenth Amendment by providing false information in the 1-C Forms used by the hearing examiner during Plaintiff's misconduct hearings. (ECF 43, Amend. Compl. ¶ 65.) He also asserts that Superintendent Estock and the unidentified members of PRC knew of Kennedy's actions and did not stop them. (Id. ¶ 66.) As a result of the conduct of these defendants, Plaintiff alleges, he was arbitrarily placed in the RHU on at least four occasions. (Id. ¶¶ 20-25.)
The DOC Defendants also argue that if Plaintiff is seeking to bring a substantive due process claim, the Court should dismiss it. (ECF 66 at p. 9.) In his response to the DOC Defendants' motion, Plaintiff clarified that the Amended Complaint asserts only a procedural due process claim. (ECF 76 at pp. 5-7.)
To establish a due process violation a plaintiff must show that he was deprived of a liberty interest protected by the Constitution or a statute. Sandin v. Conner, 515 U.S. 472, 479 n.4, 483-84 (1995). In relevant part, a prisoner's liberty interests are not violated unless a condition “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484; see, e.g., Williams v. Sec'y Pa. Dep't of Corrs., 848 F.3d 549, 559 (3d Cir. 2017) (to establish such a liberty interest in the prison conditions context, “the right alleged must confer ‘freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'”) (quoting Griffin v. Vaughn, 112 F.3d 703, 708 (3d Cir. 1997)); Mitchell v. Horn, 318 F.3d 523, 531 (3d Cir. 2003).
Thus, in determining whether Plaintiff's due process rights have been violated, the Court must first consider whether he has adequately pleaded a denial of a liberty interest. Only if he makes such a showing is it necessary for the Court to evaluate “whether the procedures attendant upon that deprivation were constitutionally sufficient.” See Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989).
Plaintiff's procedural due process claim fails at the first step of the inquiry. In deciding whether a protected liberty interest exists in cases such as this, the court must consider the duration of the disciplinary confinement and the conditions of that confinement in relation to other prison conditions. See, e.g., Shoats v. Horn, 213 F.3d 140, 144 (3d Cir. 2000) (citing Sandin, 515 U.S. at 486). Here, the Amended Complaint alleges that Plaintiff was placed in SCI Pine Grove's RHU on at least four occasions (ECF 43, Amend. Compl. ¶ 20) but provides no other details about his confinement, such as its duration on any of these occasions or the conditions in the RHU and how they differed from housing in the general population. As the DOC Defendants point out, the mere fact that Plaintiff was confined in the RHU is insufficient to state a cognizable liberty interest, since “confinement in administrative or punitive segregation will rarely be sufficient, without more, to establish the kind of ‘atypical' deprivation of prison life necessary to implication a liberty interest [for the purpose of triggering due process protection].” Smith v. Mensigner, 293 F.3d 641, 653 (3d Cir. 2002) (quoting Sandin, 515 U.S at 486.)
Thus, as currently pled, the Amended Complaint fails to state sufficient facts to establish the kind of atypical deprivation of prison life necessary to implicate a protected liberty interest. See Smith, 293 F.3d at 652 (seven months in disciplinary custody insufficient to trigger a due process violation); Griffin, 112 F.3d at 706-08 (fifteen-month placement in administrative custody did not implicate a protected liberty interest because said confinement was not atypical); Young v. Beard, 227 Fed.Appx. 138 (3d Cir. 2007) (aggregate 980 days in disciplinary segregation did not violate the due process clause). As a result, the Amended Complaint Plaintiff fails to state a procedural process claim against Kennedy, Superintendent Estock and the PRC.
Plaintiff may also be bringing a related Eighth Amendment claim against all defendants in which he alleges that they exhibited deliberate indifference because they knew that his solitary confinement in the RHU placed his health and safety at risk. (ECF 43, Amend. Compl. ¶ 60.) Any such assertion fails to state a claim against any defendant because, as set forth above, the Amended Complaint lacks sufficient allegations concerning the conditions of his confinement in the RHU and the duration of his confinement there. If this claim is premised upon the occasion when Plaintiff was placed in the POC for approximately a month, the Amended Complaint fails to explain how any defendant had the requisite personal involvement necessary to hold him or her liable for what allegedly occurred during that POC stay.
Based on the above, it is recommended the Court dismiss without prejudice Plaintiff's Fourteenth Amendment due process claim related to his alleged arbitrary placement in the RHU and his related Eighth Amendment claim related to his confinement in the RHU for failure to state a claim.
d. Violation of Right to Privacy and Confidentiality
Plaintiff claims that his Fourteenth Amendment right to privacy and confidentiality in his medical information was violated because information about his mental health disorders, and his treatment related to them, were disclosed to other inmates and staff during the sick call visits conducted at his cell door. (ECF 43, Amend. Compl. ¶¶ 64). In Doe v. Delie, 257 F.3d 309, 315-18 (3d Cir. 2001), the Court of Appeals recognized that the Fourteenth Amendment affords a prisoner the right to privacy in his medical information. It also held that “a prisoner does not enjoy a right of privacy in his medical information to the same extent as a free citizen[, ]” and that his “constitutional right is subject to substantial restrictions and limitations in order for correctional officials to achieve legitimate correctional goals and maintain institutional security.” Delie, 257 F.3d at 317. Thus, the Court of Appeals held, a prisoner's right to privacy in his medical information “may be curtailed by” a policy that is “reasonably related to a legitimate penological interests.” Id. (citing Turner v. Safley, 482 U.S. 78, 89 (1987)).
In Delie, the inmate challenged certain prison procedures that resulted in the repeated disclosure of his HIV-positive status.
The Amended Complaint asserts that this claim is brought against all defendants. The allegations of the Amended Complaint implicate Kennedy only, however, as he is the only defendant whom Plaintiff identifies as having conducted mental health visits at his cell door. (ECF 43, Amend. Compl. ¶¶ 55-59.) Thus, as currently pled, the Amended Complaint fails to state a Fourteenth Amendment violation of privacy claim against any defendant except for Kennedy. As for Kennedy, accepting the facts alleged in the Amended Complaint as true and construing them in the light most favorable to Plaintiff, Plaintiff has alleged enough to state a plausible violation-of-privacy claim against him.
The DOC Defendants ask the Court to conclude otherwise and point out that courts have held that conducting cell-door visits relates to the prison's legitimate penological interest of security and the safety of staff and inmates. In support, they cite Spencer v. Kelchner, No. 3:06-cv-1099, 2008 WL 11508376, at *10 (M.D. Pa. Dec. 11, 2008), report and recommendation adopted by 2010 WL 11684309 (M.D. Pa. July 23, 2010). In Spencer, the district court held that a prison psychologist was entitled to summary judgment on plaintiff's Fourteenth Amendment privacy claim because the prison's policy for conducting routine cell-door evaluations of inmates with aggressive, combative and disruptive histories as applied to plaintiff was reasonably related to legitimate penological interests. Spencer is distinguishable, however, because it was decided under a summary judgment standard, not under Rule 12(b)(6). At this stage of the litigation, the Court cannot discern the relationship between the alleged “blanket policy” used by Kennedy of conducting mental health visit at Plaintiff's cell-door visits and a legitimate governmental purpose and whether that purpose was reasonable.
For these reasons, it is recommended that the Court find that Plaintiff has stated a plausible Fourteenth Amendment violation-of-privacy claim against Kennedy but dismiss without prejudice this claim to the extent that Plaintiff brings it against any other defendant.
4. The ADA and RA Claims
Plaintiff's ADA and RA discrimination claims are based on his allegation that when he was housed at SCI Pine Grove, he was denied all mental health programing provided to inmates at other DOC correctional institutions. (ECF 43, Amend. Compl. ¶¶ 16-18.) All defendants move for the dismissal of these claims because neither the ADA nor the RA provides for individual liability and because Plaintiff failed to state a plausible claim against any of them in their official capacities.
Title II of the ADA, “which prohibits ‘a public entity' from discriminating against a ‘qualified individual with a disability' on account of that individual's disability, covers inmates in state prisons.” Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 208 (1998) (quoting 42 U.S.C. §§ 12141 & 12132). Section 504 of Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States...shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
The Court of Appeals has instructed that the substantive standards for determining liability under the ADA and the RA are the same. See, e.g., Furgess v. Pennsylvania Dep't of Corr., 933 F.3d 285, 288 (3d Cir. 2019); McDonald v. Pennsylvania, 62 F.3d 92, 94 (3d Cir. 1995) (“Although the language of the ADA and Rehabilitation Act differs, the standards for determining liability under the two statutes are identical.”). To maintain a claim under either statute, a plaintiff must show “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.” Id. at F.3d at 288-89. Here, Plaintiff “must also show intentional discrimination under a deliberate indifference standard because he seeks compensatory damages.” Id. at 289.
The class of defendants against whom a claim may be brought for a violation of either Title II of the ADA or § 504 of the RA is limited. The United States Court of Appeals for the Third Circuit has not addressed the issue precedentially but has approvingly cited “decisions of other courts of appeals holding that individuals are not liable under Titles I and II of the ADA.” Emerson v. Thiel Coll., 296 F.3d 184, 189 (3d Cir. 2002). See, e.g., Matthews v. Pennsylvania Dep't of Corr., 613 Fed.Appx. 163 (3d Cir. 2015) (“Title II of the ADA does not provide for suits against state officers in their individual capacities”); Williams v. Hayman, 657 F.Supp.2d 488, 502 (D. N.J. 2008) (most courts “have held that Title II does not authorize suits against government officers in their individual capacities.”). Similarly, unless an individual defendant is a direct recipient of federal financial aid, such defendant cannot be liable for claims under the RA. See, e.g., Emerson, 296 F.3d at 190 (“Because the individual defendants do not receive federal aid, Emerson does not state a claim against them under the Rehabilitation Act.”); Palmer v. Watterson, No. 1:20-v-10, 2021 WL 640637, *6 (W.D. Pa. Jan. 29, 2021) (“neither the ADA nor RA provides a private right of action for damages against individual defendants.”), report and recommendation adopted, 2021 WL 633430 (W.D. Pa. Feb. 18, 2021); Doe v. DeJoy, No. 5:19-cv-05885, 2020 WL 4382010, *11 (E.D. Pa. July 31, 2020) (holding that there is no individual liability under the RA and citing authority).
The Court of Appeals “has recognized an exception to this general rule to the extent a plaintiff may sue for prospective injunctive relief against state officials acting in their official capacities.” Mayon v. Capozza, No. 2:14-cv-1203, 2015 WL 4955397, *6 (W.D. Pa. Aug. 19, 2015) (emphasis added) (citing Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002)). That circumstance does not apply here because Plaintiff's claims for prospective relief are moot given his transfer to SCI Forest.
Thus, the Court should grant Dr. Melczak's and the DOC Defendants' motions to dismiss with prejudice with respect to Plaintiff's ADA and RA claims to the extent the Amended Complaint asserts a cause of action against them under those statutes in their individual capacities.
Notably, some district courts within the Third Circuit have observed that official-capacity claims for past violations of the ADA are theoretically actionable, particularly if the plaintiff failed to name his or her employer (here, the DOC) as a defendant. See Holden v. Wetzel, No. 18-cv-237, 2021 WL 1090638, at *4 (W.D. Pa. Mar. 22, 2021); Johnson v. Tritt, No. 18-cv-203, 2020 WL 1911538, at *12 (M.D. Pa. Apr. 20, 2020) (finding plaintiff's claims for damages against defendants in their official capacities to be cognizable because Eleventh Amendment does not bar actions against state entities for monetary damages brought under Title II of the ADA for conduct that violates the Fourteenth Amendment). Even if that is the case, however, Plaintiff has failed to state a claim of disability discrimination against any defendant here. Nowhere in the Amended Complaint does he allege facts showing that he was excluded from a particular program or service, or was otherwise discriminated against, because of his disability. See Holden, No. 18-cv-237, 2021 WL 1090638, at *4 (holding that the plaintiff's conclusory assertions that defendants engaged in disability-related discrimination by subjecting him to the conditions of the RHU and/or subjecting him to a sham investigation and/or failing to allow him to transfer to a different prison did not state a claim under the ADA or RA); Rashad v. Doughty, 4 Fed.Appx. 558, 560 (10th Cir. 2001) (“[T]he failure to provide medical treatment to a disabled prisoner while perhaps raising Eighth Amendment concerns in certain circumstances, does not constitute an ADA violation.”). Nor does he plausibly allege intentional discrimination under a deliberate indifference standard, as he must do to state a claim for compensatory damages. Furgess, 933 F.3d at 289. Simply put, Plaintiff's conclusory allegations that Defendants engaged in unlawful discrimination warrant no presumption of truth. See Iqbal, 556 U.S. at 681.
In his response in opposition to the DOC Defendants' motion, Plaintiff appears to assert that the one or more of the defendants violated the Equal Protection Clause of the Fourteenth Amendment because he was denied programing for his mental health disorders that the DOC provides to similarly situated inmates housed at other DOC facilities. (ECF 76 at p. 5, 8.) The Amended Complaint does not assert an equal protection claim against any defendant, however, and statements that a plaintiff makes in response to a motion to dismiss cannot amend the complaint. Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss.”) (internal marks and citation omitted); Bracken v. Cnty. of Allegheny, No. 2:16-cv-171, 2017 WL 5593451, at *2 (W.D. Pa. Nov. 21, 2017) (“A pleading may not be amended by a brief in opposition to a motion to dismiss.”).
“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). To assert an Equal Protection violation under a “class of one” theory “a plaintiff must allege that (1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.” Phillips v. County of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008). Persons are “similarly situated” for equal protection purposes when they are alike “in all relevant aspects.” Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (quoting Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005)).
Based on the above, it is recommended that the Court dismiss with prejudice Plaintiff's ADA and RA claims against all defendants. Plaintiff should, however, be given the opportunity to file a second amended complaint to properly assert ADA and RA claims against an appropriate entity or individual in his or her official capacity amenable to suit under those statutes, and/or an equal protection claim.
The Court expresses no opinion at the stage of the proceedings about which person in an official capacity may be a proper ADA or RA defendant, or any issue related to possible Eleventh Amendment immunity from suit.
III. Leave to Amend
When dismissing a civil rights case for failure to state a claim, a court must give a plaintiff a chance to amend a deficient complaint, irrespective of whether it is requested, unless doing so would be “inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). “An amendment is futile if the amended complaint would not survive a motion to dismiss for failure to state a claim upon which relief could be granted.” Alston v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000).
Under the circumstances presented here, Plaintiff may, if he so chooses, file a second amended complaint to attempt to cure the pleading deficiencies with respect to those claims that the Court does not dismiss with prejudice. Alternatively, he may choose to proceed with the Amended Complaint as it stands but only with respect to: (1) the Eighth Amendment claim asserted against Kennedy, Superintendent Estock, Dr. Melczak, CHCA Bergey, Yingling and Newsome for failing to provide, or failing to ensure that he was provided with, appropriate treatment for his mental health illnesses; and (2) the Fourteenth Amendment violation-of-privacy claim asserted against Kennedy.
IV. Conclusion
For these reasons, it is respectfully recommended that the Court grant in part and deny in part the motions to dismiss filed by Dr. Melczak and the DOC Defendants. (ECF 64, 68.) It is recommended that the Court should:
• dismiss without prejudice all § 1983 asserted against Cogan, Sawtelle and Secretary Wetzel for failure to state a plausible claim;
• conclude that Plaintiff has stated a plausible Eighth Amendment claim against Kennedy, Superintendent Estock, Dr. Melczak, CHCA Bergey, Yingling and Newsome for failing to provide, or failing to ensure that he was provided with, appropriate treatment for his mental health illnesses;
• conclude that Plaintiff has stated a plausible Fourteenth Amendment violation-of-privacy claim against Kennedy;
• reject Dr. Melczak's defense that Plaintiff failed to exhaust his administrative remedies with respect to the claims asserted against him in the Amended Complaint;
• dismiss with prejudice Plaintiff's claims for declaratory and injunctive relief;
• dismiss without prejudice Plaintiff's Fourteenth Amendment procedural due process and Eighth Amendment claims related to his confinement in the RHU or POC; and,
• dismiss the ADA and RA claims without prejudice to attempting to bring ADA and RA claims in a second amended complaint against an appropriate entity or individual in his or her official capacity amenable to suit under those statutes and/or an equal protection claim.
Under the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Plaintiff is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).