Opinion
3:23-cv-144-SLH-KAP
07-24-2024
ALAN DECKER, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Defendants' motion to dismiss, ECF no. 15, should be granted, and plaintiff's Amended Complaint dismissed.
Report
Plaintiff Alan Decker is blind and according to the defendants a sexually violent predator who was confined at S.C.I. Laurel Highlands, the Pennsylvania Department of Corrections prison medical facility. Decker was granted parole in September 2015 and became eligible for transfer to a halfway house, but the DOC rejected several halfway house locations sought by Decker in Allegheny County, according to Decker because of Decker's disability. In October 2022 Decker was placed in a halfway house in Harrisburg; he subsequently moved to York. Decker's sentence expired in November 2022.
In June 2023, Decker filed a counseled complaint naming as defendants the DOC and Laurel Harry, the Secretary of Corrections, in her official capacity. Decker sought compensatory damages, a declaratory judgment, and counsel fees based on the assertion that the DOC's placement decision process and the DOC's placement decisions violated the Equal Protection Clause and the Americans with Disabilities Act. Once served, defendants filed a motion to dismiss at ECF no. 9. Decker filed the operative Amended Complaint at ECF no. 11 in September 2023, adding as a defendant Michael Wenerowicz, the DOC's Deputy Secretary for Office of Reentry, in his individual capacity (the Amended Complaint does not state this expressly but it is fairly obvious and in plaintiff's brief counsel confirm this is the intent), and adding the Rehabilitation Act as a legal basis for the relief sought. Defendants filed the pending motion to dismiss, ECF no. 15, with defendants' brief at ECF no. 16, to which Decker has replied, ECF no. 20.
The Amended Complaint alleges that Decker is blind but able to care for himself without assistance, and that “the DOC was aware of this,” ¶17, and that “DOC staff were aware,” ¶18, that Decker can ambulate and does not need a wheelchair or other navigation assistance. Defendants do not dispute that Decker is blind or that Decker's blindness is a disability under the Americans with Disabilities Act and Rehabilitation Act. Decker alleges that he wanted to be placed in Allegheny County and pleads “on information and belief” that “at all times relevant” there were halfway houses in Allegheny could have accommodated Decker. ¶21. The DOC denied placement at a facility in Allegheny County in 2016 because the DOC determined no halfway house could accommodate Decker's blindness. ¶22. The DOC offered Decker placement at a personal care home in Philadelphia in 2017, placement that Decker rejected because he did not want to be in Philadelphia and did not find the facility suitable. ¶24. The DOC considered but ultimately denied Decker placement at a facility in Allegheny County in November 2021 “because the DOC falsely concluded that,” ¶25, Decker required a wheelchair, an aide, and navigation assistance not available at the facility. That same month Decker's counsel communicated to counsel for the DOC Decker's position that Decker did not need a wheelchair or aide, needed navigation assistance only for a brief period to become oriented, and that there was a non-DOC agency that could provide navigation assistance. ¶26.
Decker alleges (and attaches to his brief an exhibit in support) that in April 2022, defendant Wenerowicz signed a declaration in a matter in litigation in the Eastern District of Pennsylvania that resulted in Stradford v. Sec'y Pennsylvania Dep't of Corr., 53 F.4th 67, 70-71 (3d Cir. 2022), in which Wenerowicz referred to Decker's placement process; Decker alleges that in the declaration, Wenerowicz “incorrectly stated,” ¶28, that Decker needed a wheelchair and an aide. In July 2022, counsel for Decker told counsel for the DOC that counsel's review of Laurel Highlands medical records indicated that Decker “ambulates without issue,” ¶30, and that a visitor from the Pennsylvania Prison Society had confirmed this. In late October 2022, the DOC placed Decker in a halfway house in Harrisburg. ¶32. No wheelchair or aide was provided at this facility. ¶33.
Decker concludes that “On information and belief, Defendant Wenerowicz participated in and knowingly acquiesced in the decision to deny Mr. Decker placement in a halfway house because of his disability.” ¶34. In ¶¶35-37 Decker states that “defendants” (no individual defendant is identified) “knew that ... refusing to place [Decker] in a halfway house because of his disability would violate his federally protected rights,” refused to place Decker in a halfway house “because of his disability,” and knew that their failure to engage in an interactive process [under the ADA/RA] concerning Decker's placement “was likely to result in violation of his federally protected rights. In ¶¶ 39-43, Decker repeats these assertions with the additional feature that “defendants” (again, en bloc) knew that failure to place Decker in the Pittsburgh area because of his disability would violate Decker's rights. In ¶38, Decker states that others “similarly situated ... who are not disabled” are routinely placed in DOC halfway houses.
According to Decker, these facts give rise to: (1) a claim under the Equal Protection Clause of the Fourteenth Amendment because “defendants” en bloc treated Decker worse than parolees who are not blind, ¶¶47-49; (2) a claim against the DOC under Title II of the ADA because its actions or omissions excluded Decker, an otherwise qualified person with a disability, from the benefits of the halfway house program, ¶¶50-53; and (3) a claim against the DOC under the Rehabilitation Act because its actions or omissions excluded Decker, an otherwise qualified person with a disability, from the benefits of the halfway house program, ¶¶54-58.
Fed.R.Civ.P. 8(a) requires the complaint to be a short and plain statement containing sufficient factual matter that if accepted as true would state a legal claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In the Supreme Court's words, plaintiff must allege enough facts in the complaint to “nudge” a claim “across the line from conceivable to plausible.” Id., 556 U.S. at 683, quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
An initial word about “the DOC was aware,” “DOC staff was aware,” and facts pleaded “on information and belief”: pleading on information and belief is accepted where the proof supporting the allegation is within the sole possession and control of the defendant and where there are other allegations of sufficient facts to makes an inference of liability plausible. See Ahern Rentals, Inc. v. EquipmentShare.com, Inc., 59 F.4th 948, 954 (8th Cir. 2023)(collecting cases including McDermott v. Clondalkin Grp., Inc., 649 Fed.Appx. 263, 268 (3d Cir. 2016)(“McDermott may plead allegations based upon information and belief, so long as he does not rely on boilerplate and conclusory allegations and he accompanies his legal theory with allegations that make his theoretically viable claim plausible.”); see also Kajoshaj v. New York City Dep't of Educ., 543 Fed.Appx. 11, 16 (2d Cir. 2013)(“[E]ven such pleadings must be grounded in a goodfaith basis in fact[.]”)
Decker's asserting the liability of the DOC based on the unknown actions of unnamed agents at unknown times (neither side discusses the effect of the two-year statute of limitations on Decker's claims, nor will I) and Decker's pleading on information and belief are not valid here. Without supporting allegations it is unreasonable to believe that the allegation that “at all times relevant,” ¶21, there were halfway houses in Allegheny could have accommodated Decker is based on information exclusively within the control of defendants. Without facts, there is nothing from which to draw an inference that the allegedly incorrect beliefs by agents of the DOC about Decker's abilities were more than simply incorrect. That Decker's counsel told Wenerowicz directly or indirectly what Decker's abilities were does not compel the inference that the defendant “knew” that Decker's abilities were as stated, or even believed in the good faith of counsel's statement. And assertions like that at ¶34 that Wenerowicz “participated in and knowingly acquiesced in the decision to deny Mr. Decker placement in a halfway house because of his disability” are legal conclusions. That a high-level official would be involved in groundlevel placement work is not impossible, but it is sufficiently implausible to call for more. More generally, this type of allegation presents the very pleading problem addressed in Ashcroft v. Iqbal, 556 U.S. 662 (2009). It is worth quoting the Supreme Court at some length:
We begin our analysis by identifying the allegations in the complaint that are not entitled to the assumption of truth. Respondent pleads that petitioners “knew of, condoned, and willfully and maliciously agreed to subject [him]” to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶ 96, App. to Pet. for Cert. I73a-i74a. The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, id., ¶ 10, at 157a, and that Mueller was “instrumental” in adopting and executing it, id., ¶ 11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a “formulaic recitation of the elements” of a constitutional discrimination claim, 550 U.S., at 555, 127 S.Ct. 1955, namely, that petitioners adopted a policy “ ‘because of,' not merely ‘in spite of,' its adverse effects upon an identifiable group,” Feeney, 442 U.S., at 279, 99 S.Ct. 2282. As such, the allegations are conclusory and not entitled to be assumed true. Twombly, 550 U.S., at 554-555, 127 S.Ct. 1955. To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected the plaintiffs' express allegation of a “ ‘contract, combination or conspiracy to prevent competitive entry,' ” id., at 551, 127 S.Ct. 1955, because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.556 U.S. at 680-81 (my emphasis). If one prefaces the legal conclusion rejected in Ashcroft v. Iqbal that government officials discriminated against plaintiff on account of his religion, race, or national origin for no legitimate penological interest with “on information and belief” and changed the motivation to disability, one would have Decker's Amended Complaint exactly. Once again, the Supreme Court in Ashcroft v. Iqbal:
Were we required to accept this allegation as true, respondent's complaint would survive petitioners' motion to dismiss. But the Federal Rules do not require courts to credit a complaint's conclusory statements without reference to its factual context.556 U.S. at 686. The Supreme Court made it clear that a conclusory complaint cannot be allowed to go forward on the theory that discovery could turn up some factual support. Id. (“Because respondent's complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”).
The throwaway claim at the end of Amended Complaint ¶58 (“Defendants ... have otherwise subjected [Decker] to discrimination”) illustrates the problem running throughout the complaint. Decker fails to respect the distinction between conclusions and allegations of fact that is fundamental and that applies to all complaints subject to Rule 8. For just one recent example, consider the retaliation/ selective prosecution claim reviewed in Falcone v. Dickstein, 92 F.4th 193, 211 (3d Cir. 2024), cert. denied sub nom. Murray-Nolan v. Rubin, No. 23-1008, 2024 WL 2262337 (U.S. May 20, 2024). The plaintiff's claim of retaliation rested on the assertion that “people similarly situated as [her] were not arrested for attending board meetings unmasked when they were not necessarily long-standing anti-mask protestors for children in schools.” The appellate panel affirmed the dismissal of that claim because that assertion was a “conclusory statement [that] is not supported by any facts pled in her amended complaint. Murray-Nolan never alleged selective enforcement or any facts sufficient to demonstrate a ‘facial plausibility' that police commonly see violations of masking mandates and fail to make arrests.” Id. (my emphasis).
Claims against the DOC and Harry in her official capacity
The substantive standards for claims under Title II of the ADA and under the Rehabilitation Act are the same. Furgess v. Pennsylvania Department of Corrections, 933 F.3d 285, 288 (3d Cir. 2019). The statutes provide for actions against public entities, but they do not create actions for the liability of individual persons. Matthews v. Pennsylvania Department of Corrections, 613 Fed.Appx. 163, 169-70 (3d Cir. 2015)(dismissing all ADA and RA claims except against the DOC). See 42 U.S.C.§ 12132 (“Subject to the provisions of this subchapter, 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.” (my emphasis)); 42 U.S.C.§ 12131 (a “public entity” is (a) any State or local government; (b) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (c) the National Railroad Passenger Corporation, and any other commuter authority). Any ADA/RA claim intended against Harry in her official capacity is redundant of the claim against the DOC and should be dismissed, but the more important question is whether any claim is stated.
For any ADA/RA claim against the DOC or Harry in her official capacity, Decker must plausibly 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. Decker must also allege a plausible claim that the preclusion was due to deliberate indifference to state a claim for compensatory damages from a state or one of its agencies. See Furgess, supra, 933 F.3d at 289; Haberle v. Troxell, 885 F.3d 170, 181 (3d Cir.2018). See also Matthews v. Pennsylvania Department of Corrections, 827 Fed.Appx. 184, 187-88 (3d Cir.2020); Bowers v. NCAA, 475 F.3d 524, 553 n.32 (3d Cir.2007).
The intentional discrimination/deliberate indifference element requires Decker to allege facts that would show (1) knowledge by a defendant (here the DOC through an agent or employee) that Decker's federally protected rights were substantially likely to be violated, and (2) failure to act despite that knowledge. The plausible facts have to allow an inference of (1) a failure to adequately respond to a pattern of similar injuries; or (2) a risk of cognizable harm so great and so obvious that the risk and the failure to respond will alone support finding deliberate indifference. Matthews v. Pennsylvania Department of Corrections, supra, 827 Fed.Appx. at 187-88. Decker pleads no such facts. He does not provide one allegation of similar discrimination, or even of similar placement problems. And although Decker's allegation of fact that he did not need the wheelchair that DOC personnel said they thought he needed must be accepted as true, Decker alleges no facts allowing the inference that they were not simply mistaken. No allegations allow the inference of a known risk of discrimination, and no allegations supply any plausible incentive for the DOC to discriminate against Decker by falsely asserting that Decker had more disabilities than Decker actually had.
Equal Protection Clause claims against all defendants
Despite Decker naming all defendants in this claim, this claim can be brought against Wenerowicz only: the DOC and Harry in her official capacity are equivalent to Pennsylvania which is neither a person amenable to suit under Section 1983, Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989), nor amenable to suit for damages as a result of the Eleventh Amendment. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984)(“[A] suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief.”) Cf. Haybarger v. Lawrence County Adult Prob. & Parole, 551 F.3d 193, 199 (3d Cir. 2oo8)(acceptance of federal funds waives Eleventh Amendment immunity under the RA).
As for the equal protection claim against Wenerowicz, the Court of Appeals summarized the law in Artway v. Att'y Gen. of State of N.J., 81 F.3d 1235, 1267 (3d Cir. 1996):
The Equal Protection Clause provides that no state shall “deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV § 1. This is not a command that all persons be treated alike but, rather, “a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985) (emphasis added). The level of scrutiny applied to ensure that classifications comply with this guarantee differs depending on the nature of the classification. Classifications involving suspect or quasi-suspect class, or impacting certain fundamental constitutional rights, are subject to heightened scrutiny. Id. Other classifications, however, need only be rationally related to a legitimate government goal. See Chapman v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 1927-28, 114 L.Ed.2d 524 (1991) (applying rational basis test to classification based on nature of offense).
Decker's allegation of blindness does not allege membership in a suspect class for purposes of the Equal Protection Clause. Part of the reason for the passage of the ADA and RA is precisely that courts have held and continue to hold that differential treatment of persons with disabilities creates no liability under the Clause if there is some rational relationship between the disparity of treatment and some legitimate governmental purpose. See Ostrowski v. Lake County, 33 F.4th 960, 966 (7th Cir. 2022)(pension plan that treated disabled retirees differently from non-disabled retirees by denying disabled retirees COLAs was rationally related to government interest in administering its benefits programs); see United States v. Harris, 197 F.3d 870, 875-76 (7th Cir. 1999) (noting the passage of ADA in response to discrimination and rejecting defendant's challenge to prosecutor's use of peremptory challenge to strike member of the venire with a disability because prosecutor's fear the disability might have an impact on the ability to pay attention was a legitimate concern rationally related to provision of a fair trial).
Turning to the facts alleged by Decker, any dissimilar treatment Decker allegedly suffered at the hands of Wenerowicz - to repeat, aside from the conclusory allegation of participation in discrimination by others, Wenerowicz is alleged to have mentioned Decker in an affidavit in a lawsuit, an act that Decker does not claim injured him - would only need to be supported by some rational basis. In this case, Decker points to Wenerowicz' affidavit submitted in other litigation that states “Mr. Decker simply is not appropriate for placement at the present time. This determination was based on .... medical issues that have rendered him hard to place” as the smoking gun of an equal protection violation. Plaintiff's brief at 6. It is not. Wenerowicz could have based Decker's placement decision on “community sensitivity” or a host of other factors without running afoul of the Equal Protection Clause. See Stradford v. Sec'y Pennsylvania Dep't of Corr., 53 F.4th 67, 70-71 (3d Cir. 2022). Stradford v. Sec'y Pennsylvania Dep't of Corr. rejected a challenge to the DOC's policy of considering community sensitivity to parolees in placing sex offenders in halfway houses, holding that sex-offenders were not similarly situated with non-sex-offender parolees, and that a policy of considering community sensitivity was rationally related to legitimate government interests. Although blindness and conviction for a sex offense are clearly different, for purposes of equal protection analysis they are both rational basis classifications. So plaintiff's allegations in the Amended Complaint “must negate every conceivable justification for the classification in order to prove that the classification is wholly irrational.” 53 F.4th at 77, quoting Brian B. ex rel. Lois B. v. Pa. Dep't of Educ., 230 F.3d 582, 586 (3d Cir. 2000).
That Wenerowicz allegedly considered Decker's medical condition together with, independently of, or despite Decker's SVP status is certainly rationally related to at least one legitimate government interest, that of using halfway houses as transitional stages back to the community and not just places where long-term inmates with felony convictions can congregate with fewer restraints on their behavior. In Stradford v. Sec'y Pennsylvania Dep't of Corr., the Court of Appeals assessed one group of hard to place inmates -sex offenders- and summarized the effect of placing them in halfway houses as “sex offenders clog the parole system.” 53 F.4th at 72. More prosaically, Wenerowicz -assuming he actually made the operative decisions - could rationally make disparate decisions about placement on the basis of how well he thought inmates or classes of inmates could adjust, and delay or refuse Decker placement because he thought Decker's blindness made him a poor candidate for adjustment. If a decision is hard to prove or even incorrect, that does not make it irrational.
Which brings me, although out of logical order, to the issue of qualified immunity. That is a defense which protects government officials from damages claims unless existing precedent has placed the violative nature of the defendant's particular conduct beyond debate in light of the specific context of the case. Mullenix v. Luna, 577 U.S. 7, 12 (2015). In Mullenix v. Luna, Mullenix, a law enforcement officer without any relevant specific training, proposed to stop a fleeing felon by shooting at his speeding car, took up a shooting position on an overpass, and fired six shots, four of which struck the decedent's upper body and none of which hit the car's radiator, hood, or engine block. Per curiam, the Supreme Court held that existing excessive force precedents would not have put Mullenix on notice that his conduct contravened clearly established law. Decker points to no precedent that would put Wenerowicz on notice that taking Decker's disability into consideration in the decision where to place or not place Decker contravened clearly established equal protection law.
Nor does Decker's claim that he was denied participation in a halfway house program allege any impairment of a fundamental interest. It is relevant to the existence of any equal protection claim and to the existence or absence of an injury that can be redressed by compensatory damages, and to the question of qualified immunity that Decker had no legal right to parole, and therefore no legal right to participate in a halfway house program. Except for placement in facilities that by their nature impose an atypical and significant hardship such as a supermax prison, see Wilkinson v. Austin, 545 U.S. 209 (2005), or a mental hospital for involuntary treatment, see Vitek v. Jones, 445 U.S. 480 (1980), an inmate has no substantive federal right to be housed in a particular prison. See Meachum v. Fano, 427 U.S. 215 (1976)(intra-state prison transfers); Olim v. Wakinekona, 461 U.S. 238 (1983)(inter-state prison transfers). Decker therefore had no procedural right to any process in the decision where he would be placed. For comparison purposes, an inmate does have a limited right to due process before being labeled a sex offender and assigned to mandatory behavioral modification therapy. Renchenski v. Williams, 622 F.3d 315, 328 et seq. (3d Cir. 2010)(inmate convicted of murder had a right to notice and hearing before placement in sex offender program; by contrast inmate convicted of sex offense had no such right). Decker points to nothing that suggests that his eligibility for placement in a halfway house confers a private right of action for damages in federal court, or that nonplacement in a halfway house imposes a burden similar to the one imposed by assignment to a sex offenders program.
As for the other remedies Decker seeks, he has no standing to seek declaratory relief because a declaratory judgment is a forward-looking remedy. Compare Matthews v. Pennsylvania Department of Corrections, supra, 827 Fed.Appx. at ¶ 86-87(“[B]ecause Matthews was released from prison prior to filing suit-and nothing in the record suggests he will be reincarcerated-there is no live case or controversy with respect to the declaratory relief sought.”) Judge Sloviter, writing for the Court of Appeals a quarter century ago, explained:
A declaratory judgment or injunction can issue only when the constitutional standing requirements of a “case” or “controversy” are met. See U.S. Const., art. III, § 2; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 272, 61 S.Ct. 510, 85 L.Ed. 826 (1941). Although declaratory judgments are frequently sought in advance of the full harm expected, they must still present a justiciable controversy rather than “abstract, hypothetical or contingent questions.” Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S.Ct. 1384, 89 L.Ed. 1725 (1945). We have explained that these standing requirements are satisfied when “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Step-Saver Data Systems, Inc. v. Wyse Technology, 912 F.2d 643, 647 (3d Cir.1990) (quoting Maryland Casualty, 312 U.S. at 273, 61 S.Ct. 510).St. Thomas--St. John Hotel & Tourism Association, Inc. v. Government of U.S. Virgin Islands, 218 F.3d 232, 240 (3d Cir. 2000). Past injury confers no standing to seek declaratory relief any more than it confers standing to seek injunctive relief. To have standing to seek either form of relief Decker must allege facts that would “establish a real and immediate threat that he would again be [the victim of the allegedly unconstitutional practice.]” Brown v. Fauver, 819 F.2d 395, 400 (3d Cir. 1987), quoting City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). See also Jones v. Unknown D.O.C. Bus Driver & Transportation Crew, 944 F.3d 478, 483 (3d Cir. 2019).
Declaratory relief is unavailable to a party who seeks solely to obtain a determination that an opposing party's past conduct was wrong. Taggart v. Saltz, 855 Fed.Appx. 812, 815 (3d Cir. 2021), citing Waller v. Hanlon, 922 F.3d 590, 603 (5th Cir. 2019). Waller v. Hanlon, in turn, at 922 F.3d 603-04, cited Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (per curiam). The Supreme Court made it clear that where a plaintiff alleges only past injury, a plaintiff has no standing to seek declaratory relief because no present legal right is at stake. In Ashcroft v. Mattis, Mattis' 18-year-old son was shot and killed by police while attempting to escape arrest, and Mattis filed suit in federal court for money damages and a declaratory judgment that the Missouri statute authorizing the use of deadly force was unconstitutional. The damages claim was dismissed without appeal. The Supreme Court held that since the liability of the police officers had been finally decided, neither the academic value of answering hypothetical questions or the emotional satisfaction to the successful party from a favorable ruling gave a federal court jurisdiction to issue a declaratory judgment about whether the use of force statute was constitutional. See Ashcroft v. Mattis, 431 U.S. at 172-73. That applies with full force to Decker's claims.
After two rounds of amendment and motions practice it would be inequitable to allow further amendment. The Amended Complaint should be dismissed.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to my recommendation. In the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).