Opinion
Civil Action 21-146
04-05-2022
ZACHARY R. GRAHAM, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF CORRECTIONS and A. KULICK, Defendants.
Arthur J. Schwab, District Judge.
REPORT AND RECOMMENDATION
RE: ECF No. 27
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Zachary R. Graham (“Plaintiff'), an inmate incarcerated at the State Correctional Institution at Greene (“SCI-Greene”), filed the instant action arising out of allegations that she engaged in self-harm after prison officials wrongfully refused to provide her hormone therapy treatment for gender dysphoria. ECF No. 13.
Presently before the Court is a Motion to Dismiss filed by Defendants A. Kulick (“Kulick”) and the Pennsylvania Department of Corrections (“DOC”) (collectively, “Defendants”). For the following reasons, it is respectfully recommended that the Motion to Dismiss be granted in part and denied in part.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Pleadings
Plaintiff initiated this action on February 1, 2021 by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 1. After Plaintiff cured certain deficiencies with her filing, the Court granted Plaintiffs IFP Motion on May 18, 2021, and her original Complaint was filed on the same date. ECF Nos. 9 and 10.
On June 8,2021, Plaintiff filed the operative Amended Complaint naming Kulik, the DOC and William Nicholson (“Nicholson”) as Defendants. ECF No. 13. She later voluntarily dismissed Nicholson, so that Kulick and the DOC are the only remaining Defendants. ECF No. 15. Plaintiff brings her claims against Kulick individually and in his official capacity. ECF No. 13 at 4.
2. Factual Allegations
Plaintiff has gender dysphoria, which is treated with hormone replacement therapy (“HRT”) medication. Id. ¶ 2. During the relevant time, she self-administered her medication and kept it in her possession. Id. ¶ 27.
On June 29, 2020, Plaintiff was transferred to the Restricted Housing Unit (“RHU”) after she placed a sign in her cell window that said “I need psych.” Id. ¶ 1; Id. at 6.
Under DOC policy 13.2.1, self-administered medications must be kept in the inmate's possession until the medication expires. Id. § 15(B)(2)(e). If an inmate is removed from general population to the RHU, all of the inmate's self-administered prescriptions must be returned to the Medical Department. Id. § 15(B)(5)(a)-(b). Medical staff is required to secure any medications prior to transfer. Id. Nursing staff at the facility may then return the self-medication to the inmate, if appropriate. Id. § 15(B)(5)(f). The policy explicitly states that “[m]edication(s) must not be packed with an inmate's property.” Id. § 15(B)(5)(d).
The DOC's policies are available on their website, at www.cor.pa.gov/About%20Us/Pages/DQC-Policies.aspx (last visited April 5, 2022).
In this case, Plaintiff claims that Defendants did not follow this policy. ECF No. 13 ¶ 26. Upon being transferred to the RHU, Defendant Kulick, a non-medical prison official, packed her HRT medication with her personal property, and it was not returned to her for 19 days. Id. ¶¶ 20, 26 and 31; ECF No. 13-3 at3. Despite Plaintiff s repeated requests to receive her HRT medication, medical staff informed her that they did not have the medication, and they could not help her. Id., ¶¶3, 8, 9,11.
Plaintiff claims that she spoke with Kulick and another prison official, Lieutenant Trout or Troutman, about returning her HRT medication on June 30, 2020. She was assured that someone would “get them for her.” Id. ¶ 5. On July 7, 2020, she spoke with Kulick again. Id. ¶ 20. He told her that he had personally packed her HRT medication. Id.
Plaintiff alleges that “[h]e said he will get them,” but it is not clear whether Kulick or Lieutenant Trout(man) made this claim. ECF No. 13 ¶ 5.
Plaintiff also filed multiple grievances about her medication. ECF No. 13-4 at 3; ECF No. 13-3 at 3. In response to one of her grievances, Nicholson wrote that “[t]he process is that all of your property, including KOP [keep on person] medications are packed and taken to property to be given to you when sorted.” ECF No. 13-3 at 3. Because Kulick falsely claimed to have already returned the HRT medication to Plaintiff, her grievances were denied. Id.; ECF No. 13-4 at 3; ECF No. 13¶28.
Without her HRT medication, Plaintiff claims that she became depressed, anxious, physically ill, and had thoughts of self-harm and suicide. ECF No. 13 ¶¶ 7, 8,12. On July 3,2020, she cut her wrists. Id. ¶ 15. On July 8, 2020, she cut her wrists again, as well as her thighs. Id., ¶ 22. Plaintiff reported her symptoms and acts of self-harm to various individuals, but she did not receive the HRT medication. Id. ¶¶ 6, 7, 10, 12, 13, 14,16.
3. Legal Claims
Plaintiff brings nine claims: Count I: Eighth Amendment claim for deliberate indifference to serious medical needs; Count II: Eighth Amendment claim for failure to protect from substantial risk of harm and injury; Count III: Eighth Amendment claim for deliberate indifference to medical needs as a result of inadequate, unprofessional, lack of training, failure to follow training, ignoring policies and procedures and deficiencies in operation, management and control of health care; Count IV: Monell claim; Count V: Americans with Disabilities Act (“ADA”) and Rehabilitation Act claims; Count VI: medical malpractice; Count VII: professional liability; Count VIII: negligence; and Count IX: Ex Parte Young.
4. Motion to Dismiss
On October 18,2021, Defendants filed the instant Motion to Dismiss and Brief in Support. ECF Nos. 27 and 28. Plaintiff filed a Response to the Motion to Dismiss and Brief in Support on November 9, 2021. ECF Nos. 35 and 36. The Motion to Dismiss is now ripe for consideration.
B. STANDARD OF REVIEW
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202,205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement 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 set forth as factual allegations. Bell Atlantic Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow 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); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v, MacDougall, 454 U.S. 364 (1982); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner . .. may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other groundsf see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim ... they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a Pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. Eighth Amendment Claims (Counts I, II and III)
Plaintiff asserts three Eighth Amendment claims under 42 U.S.C. § 1983 in Counts I, II and III. For the reasons that follow, the Court should grant the Motion to Dismiss Plaintiff s Eighth Amendment claims against the DOC and Counts II and III against Kulick.
a. Claims against the DOC
Defendants argue that Plaintiff s claims against the DOC under § 1983 should be dismissed because the DOC has Eleventh Amendment immunity from suit, and it is not a “person” that can be sued under § 1983. ECF No. 28 at 4-7.
In response, Plaintiff argues that she can sue state agencies for injunctive or declaratory relief. ECF No. 36 at 5.
Upon review, Plaintiffs Eighth Amendment claims should be dismissed against the DOC. Plaintiff brings these claims under 42 U.S.C. § 1983. Section 1983 provides a private cause of action for violations of federal constitutional rights. The statute provides, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....42 U.S.C. § 1983.
Only “persons” can be sued under § 1983. See id. The United States Court of Appeals for the Third Circuit has held that the DOC cannot be sued under § 1983 because “it is not a ‘person' within the meaning of 42 U.S.C. § 1983.” Adams v. Hunsberger, 262 Fed.Appx. 478, 481 (3d Cir. 2008); see also Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that a State is not a “person” within the meaning of § 1983); Lavia v. Dep't of Corrections, 224 F.3d 190, 195 (3d Cir. 2000) (“Pennsylvania's Department of Corrections is a part of the executive department of the Commonwealth”). Therefore, Plaintiffs Section 1983 claims against the DOC should be dismissed.
The DOC is also entitled to immunity under the Eleventh Amendment as to these three claims. The Eleventh Amendment generally precludes private individuals from bringing suit against a state, or one of its agencies, in federal court. Sheffer v. Centre Cnty., No. 4:18-cv-2080, 2019 WL 2621836, at *4 (M.D. Pa. May 23,2019) (citing U.S. Const. Amend. XI; Pennhurst State Sch. & Hosp, v. Halderman, 465 U.S. 89 (1984)). This is a jurisdictional bar, which applies regardless of the relief sought, including claims brought in equity. Id. (citing Pennhurst, 465 U.S. at 100). Such immunity is not absolute, however, and is “subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa. Fed'n of Sportsmen's Clubs, Inc, v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
As an executive department of the Commonwealth, the DOC shares in the Commonwealth of Pennsylvania's Eleventh Amendment immunity. Lavia, 224 F.3d at 195. Moreover, none of the exceptions apply to Plaintiffs Section 1983 claims. “The Commonwealth of Pennsylvania has not waived its immunity in § 1983 civil rights cases (42 Pa. C.S.A. § 8521) and Congress did not abrogate state immunity in general in enacting civil rights legislation, including § 1983.” O' Hara v. Ind. Univ, of Pa., 171 F.Supp.2d 490,495 (W.D. Pa. 2001). For these reasons, the Court should grant the Motion to Dismiss Plaintiffs Eighth Amendment claims in Counts I, II and III against the DOC.
Defendants move to dismiss all claims against the DOC based on Eleventh Amendment immunity. ECF No. 28 at 4-6. It is unclear if Defendants also move to dismiss Plaintiffs claims against Kulick in his official capacity. Although Defendants do not expressly request that the Court dismiss any such claims, they state that “[l]ikewise, each individual Defendant acting in his or her official capacity also has Eleventh Amendment immunity.” Id. at 5. While it is generally true that suits against state officials in their official capacities are treated as suits against the State and are barred by the Eleventh Amendment, as discussed, there are exceptions to this rule, including for certain claims against state officials in their official capacities seeking prospective injunctive and declaratory relief. If Defendants are seeking to dismiss Plaintiffs official-capacity claims, they have not substantively briefed this issue relative to whether Eleventh Amendment immunity applies to the specific claims against Kulick in his official capacity and damages requested in this action. Hess, 297 F.3d at 293. Therefore, the Court should not dismiss Plaintiffs official-capacity claims against Kulick on this basis.
b. Claims against Kulick
(1) Deliberate Indifference to Medical Needs (Count I)
In Count I, Plaintiff pleads an Eighth Amendment claim based on deliberate indifference to serious medical needs. In support of the Motion to Dismiss, Defendants argue that a nonmedical prison official, like Kulick, cannot be deliberately indifferent for failing to intervene in an inmate's medical treatment, unless that official had reason to know about the mistreatment. ECF No. 28 at 9-10. Here, Defendants argue, Plaintiff fails to state a claim against Kulik because she was being closely monitored by medical staff, and Kulik had no reason to believe that her care was inadequate. Id.
In response, Plaintiff argues that gender dysphoria is a serious medical need. ECF No. 36 ¶ 20. She asserts that she told multiple people that she needed her HRT medication, and that prison officials intentionally refused to provide it. Id. ¶¶ 24-25. She also argues that Defendants did not follow DOC policies relative to securing and providing medications upon transfer to the RHU. Id.
“The Eighth Amendment prohibits prison officials from being deliberately indifferent to an inmate's serious medical needs.” Pakalovic v. Wetzel, 854 F.3d 209,227 (3d Cir. 2017) (citing Estelle v. Gamble, 429 U.S. 97,104 (1976)). As the United States Supreme Court has held, prison officials violate the Eighth Amendment when they act deliberately indifferent to an inmate's serious medical needs by “intentionally denying or delaying access to medical care or interfering with treatment once prescribed.” Estelle, 429 U.S. at 104-05.
Upon review, Plaintiff sufficiently pleads a deliberate indifference claim at this stage of the case. Construing Plaintiff's Pro se pleadings liberally, she appears to claim that Kulick took possession of her HRT medication upon her transfer to the RHU, and he refused to return it despite her repeated requests. Plaintiff notified various individuals that she was being denied medical treatment, and that she was at risk of harm as a result. However, these requests were ignored. Ultimately, Plaintiff alleges that she did suffer harm because she did not receive her medication, including significant mental distress resulting in incidents of self-harm. Based on these allegations, Plaintiff plausibly claims that Kulick acted with deliberate indifference to a serious medical need. Accordingly, the Motion to Dismiss should be denied as to Count I against Kulick.
(2) Failure to Protect (Count II)
In Count II, Plaintiff asserts an Eighth Amendment claim for failure to protect. Defendants argue that failure to protect claims typically involve the use of excessive force, and such a claim is not applicable here. Instead, they argue, Plaintiffs claim should only be considered as a claim for deliberate indifference to a serious medical need. ECF No. 28 at 11-12.
Plaintiff does not specifically respond to this argument in her Response. ECF No. 36. Instead, she only argues that she sufficiently pleads an Eighth Amendment claim based on Defendants' deliberate indifference to her serious medical needs. Id. ¶¶ 18-26.
Prison officials have a duty under the Eighth Amendment to “take reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). To state an Eighth Amendment failure to protect claim against prison officials, an inmate must plausibly plead that “(1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the official was deliberately indifferent to that substantial risk to [the inmate's] health and safety, and (3) the official's deliberate indifference caused [the inmate] harm.” Ramey v. Marsh, No. 4:21-cv-01018, 2022 WL 363854, at *3 (M.D. Pa. Feb. 7, 2022) (citing Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020)).
Upon review, the failure to protect claim should be dismissed as to Kulick. Although Plaintiff does not clearly articulate the basis for this claim, the only alleged “condition posing a substantial risk of harm” that she arguably identifies is her failure to receive necessary medical care. As a result, this claim is duplicative of her Eighth Amendment deliberate indifference to serious medical needs claim in Count I. Therefore, the Motion to Dismiss should be granted as to Count II relative to Kulick.
(3) Inadequate Training and Failure to Follow Training, Policies and Procedures (Count III)
In Count III, Plaintiff pleads an Eighth Amendment claim for “deliberate indifference to medical needs as a result of inadequate, unprofessional, lack of training, failure to follow training, ignoring polic[i]es and procedures and deficienc[i]es in operation, management and control of health care.” ECF No. 13 at 5.
In support of the Motion to Dismiss, Defendants argue that, at best, Kulick's alleged failure to apply training or policies is a factual allegation in support of Plaintiff s deliberate indifference claim in Count I-not a separate claim. As a result, they argue this claim should be dismissed. ECF No. 28 at 12.
Plaintiff does not specifically address this argument in her Response. ECF No. 36.
Upon review, the Court should dismiss Count III. There are no specific allegations that Kulick was responsible for implementing training or managing healthcare. If Plaintiff claims that Kulick was deliberately indifferent to her medical needs based on his role in handling or withholding her medication, this claim is encompassed by her deliberate indifference claim in Count I. Therefore, the Motion to Dismiss should be granted as to Count III against Kulick.
2. Monell Claim (Count IV)
With respect to Plaintiffs Monell claim, Defendants argue that this claim should be dismissed because they are not municipalities against whom a Monell claim may be brought. ECF No. 28 at 12-13. Plaintiff does not address this claim in her Response. ECF No. 36.
Upon review, Plaintiffs Monell claim in Count IV should be dismissed. “Monell stands for the proposition that local governments are not liable under § 1983 for the acts of their employees unless those acts were taken pursuant to a policy or custom of the municipality.” Sims v. City of Phila., 552 Fed.Appx. 175, 177 (3d Cir. 2014) (citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978)). “Monell was ‘limited to local government units which are not considered part of the State for Eleventh Amendment purposes ....” Quem v Jordan, 440 U.S. 332, 338 (1979) (quoting Monell, 436 U.S. at 690 n. 54).
As discussed, the DOC is an agency of the State and, therefore, is entitled to the same Eleventh Amendment immunity the Commonwealth enjoys. Sloan v. Dep't of Corr., No. 2:16-cv-1182, 2017 WL 9487087, at *4 (W.D. Pa. Aug. 16, 2017), report & recommendation adopted, 2017 WL 3910494 (W.D. Pa. Sept. 7, 2017). Neither the DOC nor the individual defendants are municipalities against whom a Monell claim can be brought. See id. (dismissing Monell claim against DOC). For these reasons, the Court should grant the Motion to Dismiss relative to Plaintiffs Monell claim in Count IV.
3. ADA/Rehabilitation Act Claims (Count V)
In Count V, Plaintiff asserts a disability discrimination claim pursuant to Title II of the ADA, 42 U.S.C. § 12132. She also asserts a parallel claim under the Rehabilitation Act, 29 U.S.C.§ 794(a).
Plaintiff does not specify under which Title of the ADA she is proceeding. Because the correctional facility where Plaintiff is incarcerated is a “public entity” subject to Title II of the ADA, the Court considers Plaintiff's claim under Title II. See Harris v. Lanigan, No. 11-1321, 2012 WL 983749, at *4 (D.N.J. March 22, 2022).
a. Eleventh Amendment immunity
The Court first considers whether the ADA/Rehabilitation Act claims should be dismissed against the DOC based on Eleventh Amendment immunity.
(1) ADA claim
While the DOC shares in the Commonwealth's immunity, as discussed, this immunity is not absolute and may be abrogated by an Act of Congress. To determine whether such immunity has been abrogated, the Court considers “first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.” Tennessee v. Lane, 541 U.S. 509, 517 (2004) (quoting Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72 (2000)); see also Nev. Dept, of Hum. Res, v. Hibbs, 538 U.S. 721,726(2003).
The first element is satisfied here. “Congress unequivocally expressed its intent to abrogate sovereign immunity for claims brought under Title II of the ADA.” Geness v. Admin. Off, of Pa-Courts, 974 F.3d 263, 270 (3d Cir. 2020) (citing United States v. Georgia, 546 U.S. 151, 154 (2006)).
In considering whether the second element is satisfied, “courts analyzing whether Congress validly abrogated sovereign immunity for a Title II claim against a state or state entity must conduct a ‘claim-by-claim' analysis.” Id. (citing Georgia, 546 U.S. at 159). This analysis involves a three-part test: “(1) which aspects of the States' alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” Id. (quoting Georgia, 546 U.S. at 159).
Upon review, the Court should not dismiss Plaintiffs ADA claim against the DOC on this basis. Although Defendants broadly assert that the DOC is entitled to Eleventh Amendment immunity, they do not substantively brief whether such immunity applies to Plaintiffs ADA claim and do not address this required three-part test. Because Defendants have not established that the DOC enjoys Eleventh Amendment immunity relative to Plaintiffs ADA claim, the Motion to Dismiss should be denied on this basis.
(2) Rehabilitation Act claim
As for Plaintiffs Rehabilitation Act claim, “the Supreme Court has recognized § 504 of the Rehabilitation Act, following the 1986 amendment, to be an ‘unambiguous waiver of the State's Eleventh Amendment immunity.'” Koslow v. Pennsylvania, 302 F.3d 161, 170 (3d Cir. 2002) (finding that DOC waived immunity for Rehabilitation Act claims by accepting federal funds). Therefore, the Court should also deny the Motion to Dismiss Plaintiffs Rehabilitation Act claim against the DOC on this basis.
b. Failure to State a Claim
Defendants also argue that Count V should be dismissed because Plaintiff fails to state a claim under either the ADA or Rehabilitation Act. ECF No. 28 at 13-15. Defendants argue that mere allegations of inadequate medical care, as here, do not establish a claim under either statute. Id. at 15.
In response, Plaintiff argues that gender dysphoria is a qualifying disability under the ADA and Rehabilitation Act. ECF No. 36 ¶ 29. She argues that Defendants did not accommodate her disability by not providing and interfering with her medical services. Id. ¶¶ 28-30.
In Count V, Plaintiff is proceeding under the ADA and Rehabilitation Act. Both statutes “have the same standard for determination of liability” and are “to be interpreted consistently.” Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012) (citing McDonald v. Pa. Dep't of Pub. Welfare, Polk Ctr., 6 F.3d 92, 95 (3d Cir. 1995); Donahue v. Consol. Rail Corp., 224 F.3d 226 (3d Cir. 2000)). To state a claim under either statute, a plaintiff must allege that she “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 [her] disability.” Furgess v. Pa. Dep't of Corr., 933 F.3d 285, 288-89 (3d Cir. 2019). “Access to prescription medications is part of a prison's medical services and thus is one of the ‘services, programs, or activities' covered by the ADA.” Kiman v. New Hampshire Dep't of Corr., 451 F.3d 274, 287 (1st Cir. 2006) (citing U.S, v. Georgia, 546 U.S. 151, 157 (2006)).
Upon review, the Court should find that Plaintiff fails to state a claim under Title II of the ADA or Rehabilitation Act against Kulick in his individual capacity. “[I]ndividual defendants, sued in their individual capacities, are not liable under Title II of the ADA because they are not ‘public entities' within the meaning of the ADA.” Wojnarowski v. Wetzel, No. 19-174, 2020 WL 8513503, at *10 (W.D. Pa. Nov. 10, 2020) (citing Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002)). “The same holds true for individual defendants under Section 504 of the [Rehabilitation Act].” Id. (citing 29 U.S.C. § 794). Accordingly, Plaintiff is unable to state a claim against Kulick in his individual capacity.
However, the Court should not dismiss the ADA and Rehabilitation Act claims to the extent they are asserted against the DOC and Kulick in his official capacity. At this preliminary stage, Plaintiff sufficiently pleads allegations that state a claim. Plaintiff claims that she was prescribed necessary medication to treat her gender dysphoria. Defendants do not dispute that Plaintiff suffers from a qualifying disability under the relevant statutes, or that this medication was required for her treatment.
Despite Plaintiffs repeated requests, Defendants refused to give her access to this medication. As pleaded, Defendants' alleged refusal to provide her with a prescribed medication is not a medical “judgment” subject to differing opinion-it is an “outright denial of medical services.” See Kiman. 451 F.3d at 287. Therefore, the Court should grant the Motion to Dismiss Plaintiffs ADA and Rehabilitation Act claims in Count V against Kulick in his individual capacity, but it should deny the Motion to Dismiss Count V against the DOC and Kulick in his official capacity.
4. State Law Claims
Plaintiff also asserts claims under Pennsylvania law for medical malpractice (Count VI), professional liability (Count VII) and negligence (Count VIII).
a. Claims against the DOC (Counts VI, VII and VIII)
Defendants argue that Plaintiffs state law tort claims against the DOC should be dismissed because the DOC is immune from suit from pendent or supplemental state law claims under the Eleventh Amendment. ECF No. 28 at 5.
In response, Plaintiff argues that she can sue state agencies for injunctive or declaratory relief. ECF No. 36 at 5.
Upon review, the Court should dismiss Plaintiffs state law tort claims in Counts VI, VII and VIII against the DOC on this basis. As discussed, the DOC is entitled to Eleventh Amendment immunity from suit. There are no exceptions to Eleventh Amendment immunity for Plaintiff s state law tort claims. As this Court has recognized, Pennsylvania has not consented to be sued in federal court, and “it is not aware of any statute by which Congress has expressly abrogated Pennsylvania's Eleventh Amendment immunity from being sued in [f]ederal court for state law claims.” Davis v. Pa. Dep't of Corr., No. 05-1558, 2006 WL 2927631, at *4 (W.D. Pa. Oct. 12, 2006). As a result, the Eleventh Amendment bars Plaintiffs state law tort claims against the DOC. Therefore, the Motion to Dismiss should be granted relative to Counts VI, VII and VIII against the DOC.
b. Claims against Kulick (Counts VI and VII)
Plaintiff also asserts a claim for negligence against Kulick in Count VIII. However, Defendants do not specifically move to dismiss this claim.
(1) Medical Malpractice (Count VI)
As for Plaintiffs medical malpractice claim in Count VI, Defendants argue this claim should be dismissed because Plaintiff does not assert a claim against any medical providers, and she did not file a certificate of merit. ECF No. 28 at 15-16.
Plaintiff does not address this claim in her Response. ECF No. 36.
To state a prima facie claim for medical malpractice, Plaintiff must establish (1) a duty owed by a medical practitioner to her patient; (2) a breach of that duty; (3) that the breach of that duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) damages suffered by the patient that were a direct result of that harm. McDonald-Witherspoon v. City of Phila., 481 F.Supp.3d 424, 451 (E.D. Pa. 2020).
Upon review, Plaintiff does not bring this claim against a medical practitioner. Therefore, the Motion to Dismiss Count VI should be granted as to Kulick.
(2) Professional Liability (Count VII)
Defendants construe Plaintiff's “professional liability” claim in Count VII as a claim for professional negligence. In support of the Motion to Dismiss, Defendants argue that this claim should be dismissed because Plaintiff does not bring her claim against any individual with whom Plaintiff had a professional relationship involving professional judgment, and she did not file a certificate of merit. ECF No. 28 at 17-18.
Plaintiff does not specifically address this claim in her response. ECF No. 36.
Upon review, the Court should dismiss Count VII. It is not clear what specific tort claim Plaintiff is attempting to bring as a “professional liability” claim, and she does not address this claim in her Response.
Under Pennsylvania law, however, a certificate of merit is required to be filed within sixty days after the complaint “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard . . . .” Pa. R.C.P. 1042.3. Rule 1042.3 is a substantive law, which must be applied by federal courts. Crawford v. McMillan, 660 Fed.Appx. 113, 116 (3d Cir. 2016) (citing Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 264-65 (3d Cir. 2011)). Plaintiff did not file a certificate of merit, nor does she provide a reasonable excuse for failing to do so. Therefore, the Court should also grant the Motion to Dismiss as to the professional liability claim in Count VII relative to Kulick. See id. (dismissing “professional negligence” claim based on failure to file certificate of merit).
5. Ex Parte Young Claim (Count IX)
In Count IX, Plaintiff pleads a claim of “Ex Parte Young.” ECF No. 13 at 5. As Defendants point out, this is not a cause of action. Rather, this refers to a United States Supreme Court decision, Ex Parte Young, 209 U.S. 123 (1908), which relates to a private plaintiffs ability to sue a state actor for prospective relief and, if successful, stop a state from taking illegal action. Thus, while Ex Parte Young is a well-recognized legal doctrine, it is not an independent claim. Therefore, the Motion to Dismiss should be granted as to Count IX.
Plaintiff does not address this claim in her Response. ECF No. 36.
6. Qualified Immunity
Finally, Defendants argue that the Court should dismiss all claims against Kulick because he is entitled to qualified immunity. Defendants argue there are no allegations that Kulick knowingly violated any clearly established right, given that “Plaintiffs allegations show just how much medical care [s]he was receiving, without interruption by Defendant Kulick,” and “Kulick maintains that he gave Plaintiff her medication.” ECF No. 28 at 6-7.
In response, Plaintiff argues that it is clearly established that deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment. ECF No. 36 ¶ 15 (citing Estelle v. Gamble, 429 U.S. 260 (1976)).
Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). There is a two-step inquiry into whether qualified immunity applies: (1) whether the official's conduct violated a constitutional or federal right; and (2) whether the right at issue was clearly established. Saucier v. Katz, 533 U.S. 194,201 (2001), abrogated in part by Pearson v. Callahan, 555 U.S. 223 (2009).
Based on the foregoing analysis, Plaintiffs sole remaining statutory or constitutional claim against Kulick in his personal capacity is the Eighth Amendment claim in Count I for deliberate indifference to serious medical needs. Therefore, the Court limits this discussion to Count I.
Upon review, the Court should not grant the Motion to Dismiss based on qualified immunity. For the reasons discussed above, Plaintiff sufficiently pleads that Kulick violated her Eighth Amendment rights in Count I by repeatedly withholding her prescribed medication and by lying in grievance responses that he had returned the medication. It is well-established that a prison official violates an inmate's Eighth Amendment rights by “intentionally denying or delaying access to medical care or interfering with treatment once prescribed.” Estelle, 429 U.S. at 104-105.
Although Defendants argue that Plaintiff received medical care without interruption by Kulick, and that Kulick gave her the HRT medication, this is not supported by the allegations in the Complaint. In her Complaint, Plaintiff claims that Kulick falsely represented that he returned her HRT medication, and that officials intentionally withheld this medication. At this preliminary stage, the Court must accept well-pleaded allegations in the Complaint as true. Based on Plaintiff's allegations, she sufficiently pleads that Kulick has violated her clearly established Eighth Amendment rights. Therefore, the Motion to Dismiss should be denied on the basis of qualified immunity.
D, CONCLUSION
For the reasons discussed, it is respectfully recommended that the Court should grant in part and deny in part Defendants' Motion to Dismiss, ECF No. 27.
The Court should dismiss the following claims against all Defendants:
1. Eighth Amendment failure to protect claim (Count II);
2. Eighth Amendment claim for inadequate training and failure to follow training, policies and procedures (Count III);
3. Monell claim (Count IV);
4. Medical malpractice (Count VI);
5. Professional liability (Count VII); and
6. Ex Parte Young (Count IX).
The Court also should dismiss the following claims against the DOC, only:
1. Eighth Amendment claim for deliberate indifference to serious medical needs (Count I); and
2. Negligence (Count VIII).
Finally, the Court should dismiss Plaintiffs ADA/Rehabilitation Act claims (Count V) against Kulick in his individual capacity, only.
The Motion to Dismiss should be denied as to the following claims:
1. Eighth Amendment claim for deliberate indifference to serious medical needs (Count I) against Kulick;
2. ADA/Rehabilitation Claims (Count V) against the DOC and Kulick in his official capacity; and
3. Negligence clam (Count VIII) against Kulick.
“If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Because it appears that leave to amend would be futile for the reasons discussed above, the Court should dismiss these claims with prejudice.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.
Honorable Arthur J. Schwab, United States District Judge.