Opinion
1:22-CV-00143-SPB-RAL
04-18-2024
RENE FIGUEROA, Plaintiff v. SUPERINTENDENT DEREK F. OBERLANDER, SECURITY CAPTAIN CARTER, C/O MORGAN, C/O JOHN DOE 1, SGT JOHN DOE 3, JOHN DOE 2, KEVIN MCGUIRE, AND WILLIAM S. TANNER, Defendants
SUSAN PARADISE BAXTER United States District Judge.
REPORT AND RECOMMENDATION ON PARTIAL MOTION TO DISMISS THE SECOND AMENDED COMPLAINT ECF NO. 42
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE.
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss Count II (deliberate indifference to medical needs) and Count III (conspiracy) of the Second Amended Complaint (ECF No. 42) be GRANTED. It is also respectfully recommended that Count IV (negligence) be DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
II. Report
Plaintiff Rene Figueroa, an inmate at the State Correctional Institution (“SCI”) at Forest, commenced this pro se action against SCI Forest Superintendent Oberlander, Security Captain Carter, Corrections Officer (“CO”) Morgan, and three unidentified COs (“John Doe Defendants”) based on allegations that one or more of the Defendants caused a heavy metal gate to close on him and then denied him necessary medical care for injuries he sustained in the incident. See ECF No. 6. Figueroa's first Amended Complaint asserted claims pursuant to 42 U.S.C. § 1983 for violation of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution, as well as a civil rights conspiracy claim, and state law claims of assault, conspiracy, negligence, medical malpractice, and intentional infliction of emotional distress. See ECF No. 19. The first Amended Complaint sought declaratory, injunctive, and monetary relief against the Defendants in their individual and official capacities.
After Defendants moved to dismiss Figueroa's Complaint, he filed an Amended Complaint as a matter of right pursuant to Fed.R.Civ.P. 15. See ECF Nos. 6 (Complaint), 12 (Motion to Dismiss), 19 (Amended Complaint).
Defendants Oberlander, Carter, and Morgan moved to dismiss the claims of the first Amended Complaint against them pursuant to Fed.R.Civ.P. 12(b)(6). See ECF Nos. 21. The undersigned recommended that the Court grant the motion. See ECF No. 27. The undersigned also recommended that the Court dismiss certain claims against other Defendants pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). Id. The Court adopted the undersigned's Report and Recommendation and (1) dismissed with prejudice Figueroa's civil rights conspiracy claim and his First, Eighth, and Fourteenth Amendment claims for monetary damages against Oberlander, Carter, and Morgan in their official capacities, (2) dismissed Figueroa's remaining constitutional and state law claims against Oberlander, Carter, and Morgan without prejudice, and (3) dismissed without prejudice all constitutional and state law claims against John Doe 2 and John Doe 3, and all constitutional and state law claims except for the Eighth Amendment excessive force claim and state law assault claim against John Doe 1, pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See ECF No. 29.
Thereafter, Figueroa filed a Second Amended Complaint (“SAC”) against only original Defendant CO Morgan and newly identified Defendants McGuire and Tanner, both of whom are also COs at SCIForest. See ECF No. 37. The SAC asserts four claims against these three Defendants. Count I asserts an Eighth Amendment excessive force claim; Court II, an Eighth Amendment claim for deliberate indifference to serious medical needs; Count III, a claim for conspiracy to violate Figueroa's civil rights; and Count IV, state law negligence claim for failing to prevent the assault, report the assault, and obtain medical assistance. See Id. See also ECF No. 43. Defendants have moved to dismiss Count II (deliberate indifference to medical needs) and Count III (conspiracy) pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 42. Defendants have also filed a brief in support of their motion. ECF No. 43. Figueroa has filed a brief in opposition to the motion. ECF No. 43.
In the conclusion of Defendants' brief in support of their partial motion to dismiss the SAC, they ask the Court to dismiss “Counts [II], [III], and [IV]”; however, their brief does not mention Count IV at any other place or substantively challenge the negligence claim. That said, the undersigned recommends the dismissal of Count IV as well for the reasons discussed below.
A. Material Facts
For purposes of the pending motion, the following factual allegations of Figueroa's SAC are accepted as true. At approximately 3:30 PM on August 23, 2021, COs McGuire, Morgan, and Tanner were operating the automatic security gate that separated Figueroa's housing unit from his place of work. As Figueroa passed through this “five-hundred-pound” metal gate, the Defendants closed it, causing the gate to “smash[] into [his] shoulder” and injure his right deltoid. ECF No. 37, ¶ 9. Once safely inside the enclosed area, Figueroa asked the Defendants for medical assistance for his severe shoulder pain. Id. In response, Morgan “stated that it was not him who closed the gate.” Id. The Defendants did not make an “effort[] to provide [Figueroa] with access to medical treatment.” Id.
It appears that Figueroa does not know which of the Defendants caused the gate to close on him, so he alleges that all three Defendants did so. It is unclear whether Figueroa has a reasonable basis in fact for this allegation but, given that he has not yet had an opportunity to discover the role, if any, of each Defendant in the incident, the Court will construe the SAC as alleging in the alternative that each Defendant or some combination of the three caused the gate to close on Figueroa.
Upon his return to Echo Unit, Figueroa relayed the incident to his Unit Manager. He then called his wife and asked her to report the incident to prison security because “[he] was paranoid that this assault was intentional and in retaliation over [his] previous Grievance(s) filed on his housing unit based on sexual harassment and theft of his tablet.” Id. ¶ 10. He told “his wife that he feared more retaliation would come.” Id. After speaking with prison personnel, Figueroa's wife told him that “a person from institutional security” was being sent “to speak with [him] about the incident.” Id. As of the SAC (July 30, 2023), no such person has met with Figueroa.
At approximately 7:30 P.M. that night, Figueroa spoke with Morgan about his gate assault. Morgan refused to tell him who was responsible but reiterated that he had not been “operat[ing] or control[ing] the electronic security gate” when Figueroa was hit. Id. ¶ 11.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176,183 (3d Cir. 1993). In deciding a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice, and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to 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 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, it must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Emp. Ret. Sys. v. The 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. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 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.”). Put another way, in assessing a motion to dismiss, while the Court must view the factual allegations contained in the pleading at issue as true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007).
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.
Because Figueroa is proceeding pro se, his SAC will be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the Court can reasonably read his pro se SAC to state a claim upon which relief can be granted, it will do so despite his confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969). That said, “pro se litigants still must allege sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citing Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)).
C. Analysis
Defendants first argue that the SAC fails to state a claim of deliberate indifference to Figueroa's serious medical needs because the pleading acknowledges that he did in fact receive medical treatment. Defendants next contend that the SAC fails to state a claim of conspiracy because Figueroa does not plausibly plead “the existence of an agreement and concerted action among” them. ECF No. 43. The undersigned will address these arguments in turn.
1. The SAC fails to state a claim of deliberate indifference to Figueroa's serious medical needs.
Count I of the SAC alleges that Defendants failed to obtain immediate medical assistance for Figueroa after the gate closed on his shoulder in violation of his rights under the Eighth Amendment. Prisons have a duty to provide prisoners with adequate medical care, Estelle v. Gamble, 429 U.S. 97,104 (1976), and “[t]he Eighth Amendment proscribes deliberate indifference to prisoners' serious medical needs.” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004); Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). To state a claim for violation of his Eighth Amendment right to adequate medical care, Figueroa must allege facts to “show (i) a serious medical need, and (ii) acts or omissions by prison officials that indicated deliberate indifference to that need.” Id. A serious medical need is a need diagnosed by a physician that the physician believes to require medical treatment or a need 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). To support a finding that a prison official was deliberately indifferent requires a showing that the official “knew of and disregarded an excessive risk to [the] inmate['s] health.” Natale, 318 F.3d at 582 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). A plaintiff must allege facts sufficient “to support the inference that the defendants knowingly and unreasonably disregarded an objectively intolerable risk of harm.” Beers-Capitol v. Whetzel, 256 F.3d 120,132 (3d. Cir. 2001) (emphasis supplied) (quoting Farmer, 511 U.S. at 846).
Figueroa avers that after being struck by the security gate, Defendants refused to assist him with obtaining medical assistance for his severe shoulder pain. Figueroa's allegations regarding his right shoulder injury are sufficient at the pleading stage of the case to support the “serious medical need” element of his claim. See Figueroa, 2023 WL 3937790, at *8. However, Figueroa does not allege facts sufficient to support a plausible inference that any Defendant acted with deliberate indifference to his shoulder injury. He does not allege what information, if any, he communicated to any of the three Defendants to support an inference that any Defendant knew that Figueroa had sustained an injury that required immediate medical attention. He also does not allege facts to support an inference that his injury was obvious and required immediate medical attention. The facts alleged are therefore insufficient to support an inference that any Defendant knew of and disregarded his need for immediate medical treatment.
In addition, Figueroa's first Amended Complaint detailed the medical treatment and care medical staff provided for his shoulder on the date of the incident and thereafter. See ECF No. 19) (Medical examined Figueroa and gave him pain medication at approximately 4:10 PM on August 23, and he received another examination and three steroid shots for his shoulder on August 27, 2021). Figueroa's own allegations demonstrate that medical care was reasonably available to him at the prison and that the Defendants' alleged failure to take him immediately to the medical department did not materially delay his receipt of care or cause him additional injury or undue suffering. “If a prisoner is under the care of medical experts ... a non-medical prison official will generally be justified in believing that the prisoner is in capable hands.” Jones v. Falor, 135 Fed.Appx. 554, 556 (3d Cir. 2005) (quoting Spruill, 372 F.3d at 236). “[A]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official... will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Id. (quoting Spruill, 372 F.3d at 236). While Figueroa may have expressed to Defendants his desire for medical assistance, their refusal to take him immediately to the medical department does not rise to deliberate indifference given the absence of allegations to support that a Defendant knew that immediate care was necessary. And it is clear from the pleadings that Defendants' alleged failure to report the incident to the medical department did not prevent Figueroa from receiving timely medical care or cause his any further injury. See Figueroa, 2023 WL 2927790, at *9 (dismissing Figueroa's Eighth Amendment medical deliberate indifference claim against SCI Forest medical personnel because the facts alleged in the Amended Complaint showed that he received medical care and “any delay in treatment and care was de minimus.”). Therefore, the facts alleged in the SAC do not state a viable Eighth Amendment deliberate indifference to medical needs claim against any Defendant.
2. The SAC fails to state a civil rights conspiracy claim against any Defendant.
Figueroa asserts that Defendants “McGuire, Morgan, and Tanner, each conspired with one another to organize assaults, or to cover-up wrongful conducts, with the intent and effect of influencing and hindering [Figueroa's] federal claims,” in violation of 42 U.S.C. § 1985, and neglected to prevent his injury, in violation of § 1986. ECF No. 37, ¶¶ 36, 37, 41. Defendants argue that the SAC fails to allege facts to state a claim under either of the cited statutes or under 42 U.S.C. § 1983. The undersigned agrees.
To properly plead a civil rights conspiracy claim, the plaintiff must allege: “1) the specific conduct that violated the plaintiffs rights, 2) the time and the place of the conduct, and 3) the identity of the officials responsible for the conduct.” Sanchez v. Coleman, 2014 WL 7392400, at *9 (W.D. Pa. Dec. 11, 2014) (citing Oatess v. Sobolevitch, 914 F.2d 428, 431 n.8 (3d Cir. 1990)). Critical to this claim is the complaint's “factual allegations of combination, agreement, or understanding among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry out the alleged chain of events.” Id. (quoting Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997)). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D. Pa. 1994) (“[w]hile the pleading standard under [Fed. R. Civ. Proc.] Rule 8 is a liberal one, mere incantation of the words ‘conspiracy' or ‘acted in concert' does not talismanically satisfy the Rule's requirements”). Bare allegations that “[d]efendants engaged in a concerted action of a kind not likely to occur in the absence of agreement” are insufficient. Id. It is likewise “insufficient to allege that ‘the end result of the parties' independent conduct caused plaintiff harm or even that alleged perpetrators of the harm acted in conscious parallelism.” Parness v. Christie, 2015 WL 4997430, at *11 (D.N.J. Aug. 19, 2015) (quoting Desposito v. New Jersey, 2015 WL 2131073, at *14 (D.N.J. May 5, 2015)).
In this case, Figueroa's conclusory allegation that Defendants conspired to violate his civil rights and prevent his injury does not amount to a cognizable conspiracy claim under § 1983 or any civil rights statute. Figueroa bases this claim solely on Defendants' alleged failure to identify the gate operator after the incident. See ECF No. 45. Figueroa avers that after the incident, Morgan refused to identify the operator of the gate, but he includes no such allegation regarding McGuire or Tanner. In fact, the SAC does not indicate that Figueroa interacted with McGuire and Tanner after the gate incident. A plaintiff must allege facts regarding the time, place, and conduct which constituted the conspiracy. See Reed v. Harpster, 506 Fed.Appx. 109, 111 (3d Cir. 2012) (citing Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (affirming dismissal of conspiracy claims based upon mere suspicion and speculation)).
Furthermore, even if all three Defendants had refused to identify the gate operator after the fact, such failure would not support a plausible inference that the Defendants conspired to cause Figueroa's alleged constitutional injury. The SAC alleges no facts to support that the Defendants conspired and agreed to close the gate on Figueroa, and any alleged failure to disclose information after the incident could not have been a cause of his injury. To the extent any Defendant has not been forthcoming in disclosing information relevant to Figueroa's claim, this information can be ascertained through discovery.
Figueroa's conspiracy claims under §§ 1985 and 1986 suffer from the same insufficiencies as his § 1983 claim, as well as other elemental defects. To state a claim under § 1985(3), a plaintiff must allege facts to support:
(1) a conspiracy; (2) for the purpose of depriving ... any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.Slater v. Susquehanna Cnty., 465 Fed.Appx. 132,136 (3d Cir. 2012) (quoting United Bhd. of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983)). To recover under § 1986, a plaintiff must show that the defendant had actual knowledge of, the power to prevent or aid in preventing the commission of, and neglected or refused to prevent, a section 1985 conspiracy, and a wrongful act was committed. See Clark v. Clabaugh, 20 F.3d 1290, 1296 (3d Cir. 1994). Thus, a viable claim of conspiracy pursuant to § 1985 is a prerequisite to establishing liability under § 1986.
Figueroa's failure to allege facts to support the existence of an agreement among the Defendants to violate his rights dooms his § 1985(3) conspiracy claim, which in turn dooms his § 1986 claim. See, e.g., Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (“Because transgressions of § 1986 by definition depend on a preexisting violation of § 1985, if the claimant does not set forth a cause of action under the latter, its claim under the former necessarily must fail also.”). Further, nothing in the Complaint supports an inference that any supposed “conspiracy was motivated by racial, gender, or other class-based discriminatory animus.” Id. (citing Farber v. City of Paterson, 440 F.3d 131,135 (3d Cir. 2006)). As such, Figueroa cannot maintain a cause of action for conspiracy against Defendants under §§ 1983, 1985, or 1986.
The SAC also includes conclusory references to “retaliation” without supporting factual allegations, but no claim for retaliation. See ECF No. 37, ¶ 10. To the extent the SAC was intended to raise a retaliation claim, it has failed to do so. To state a retaliation claim, Figueroa must allege facts to support that (1) he engaged in protected activity; (2) officials took an adverse action against him; and (3) “a causal link” exists “between the exercise of his constitutional rights and the adverse action taken against him.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). Here, Figueroa singularly avers that Defendants may have intentionally closed the gate on him as “retaliation over [his] previous Grievance(s) filed on his housing unit based on sexual harassment and theft of his tablet.” ECF No. 37, ¶ 10. Figueroa does not allege against when he filed his “previous Grievance(s),” whether the grievance or grievances related to any Defendant in this case, or even that a Defendant was aware of the grievance(s). He has alleged no basis to infer a causal connection between the filing of any grievance and the closing of the gate on him and, therefore, the SAC fails to state a retaliation claim. See Figueroa v. Oberlander, 2023 WL 3937790, at * 11 (W.D. Pa. May 16, 2023), report and recommendation adopted, 2023 WL 3932533 (W.D. Pa. June 9, 2023) (citations omitted).
3. Defendants are immune from the Negligence Claim
Count IV asserts a claim of negligence against the Defendants under Pennsylvania state law. As the undersigned previously explained, the doctrine of sovereign immunity provides state officials with broad immunity from most state-law tort claims, “except as the General Assembly shall specifically waive the immunity.” Figueroa, 2023 WL 2927790, at *12 (quoting 1 Pa. C.S. § 2310). The Pennsylvania General Assembly “has waived sovereign immunity for claims of negligence against Commonwealth employees in a very limited and express set of circumstances.” Id. One such circumstance is the “medical-professional liability exception.” Id. However, “non-medical [DOC] employees do not fall within the scope of Pennsylvania's ‘medical-professional liability exception.'” Steinberg v. Department of Public Welfare, 405 A.2d 1135 (Pa. Cmwlth. 1979); Jackson v. Beard, 2010 WL 887246 (W.D. Pa. 2010); Johnson v. Department of Corrections, 1992 WL 392601 (E.D. Pa. 1992)). See also 1 Pa. C.S. § 2310; 42 Pa. C.S. § 8522(b). Accordingly, the Eleventh Amendment bars Figueroa from asserting a negligence claim against Morgan, McGuire, and Tanner. Figueroa's negligence claim should therefore be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
This action is also “subject to sua sponte screening for dismissal 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A because [Figueroa] is a prisoner proceeding pro se and is seeking redress from a governmental employee or entity.” Sanchez v. Coleman, 2014 WL 7392400, at *4 (W.D. Pa. Dec. 11, 2014) (citing Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008).
4. Leave to Amend
If a complaint is vulnerable to dismissal, in whole or in part, for failure to state a claim, the Court should permit a curative amendment unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refits [e] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). In this case, Figueroa has been given multiple opportunities to amend his pleading to cure the deficiencies of his deliberate indifference to medical needs and conspiracy claims, and the bar of sovereign immunity makes any attempt to amend his negligence claim futile. Accordingly, it is recommended that the Court dismiss Counts II, III, and IV of the SAC with prejudice.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that Defendants' motion to dismiss Counts II and III of the SAC (ECF No. 42) be GRANTED pursuant to Fed. R. Civ. P. 12(b)(6) and that Count IV of the SAC be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). It is further recommended that Counts II, III, and IV be dismissed with prejudice.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties 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 waive 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).