Opinion
Civil Action 21-846
07-16-2021
ZACHARY R. GRAHAM, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF HEALTH DIVISION OF VITAL RECORDS, Defendant.
ECF No. 5
Arthur J. Schwab, District Judge.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that all of the claims raised in the Complaint filed by Plaintiff Zachary R. Graham (“Plaintiff”) be pre-service dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) as frivolous or malicious, and for failure to state a claim upon which relief may be granted.
It is further recommended that Plaintiff be given leave to amend her claims under the American with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”), as well as to amend her Fourteenth Amendment Equal Protection claim to allege sufficient facts to state a claim against a proper defendant, if she is able to do so.
Plaintiff has requested to be referred to using feminine pronouns and appellations. ECF No. 6. As a matter of courtesy, this Court shall do so. ECF No. 7.
II. REPORT
A. Factual and Procedural Background
Plaintiff is a state prisoner currently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania. Plaintiff initiated this matter by submitting a Motion and Declaration in Support of Motion to Proceed in Forma Pauperis (“IFP”) and Complaint, which were received by this Court on July 1, 2021. ECF No. 1. The IFP motion was granted July 8, 2021, ECF No. 3, and the Complaint was filed on July 11, 2021, ECF No. 5.
In the Complaint, Plaintiff alleges that she suffers from gender dysphoria, which causes her “severe constant depression, anxiety, nervousness, fear, panic attacks, low self esteem, self hate thought, urges and compulsions to self harm, self castrate and or suicide.” ECF No. 5 at 9. While not stated in the Complaint itself, Plaintiff alleges in her Motion to Proceed Using Feminine Pronouns and Titles, ECF No. 6, which was submitted along with the Complaint, ECF No. 1, that she has been receiving feminizing hormones for a year. See also Graham v. Dep't of Transp., No. 21-449 (W.D. Pa. filed Apr. 8, 2021), ECF No. 8 ¶¶ 31-32 (alleging that Plaintiff has been receiving hormone replacement therapy and “feminizing medications” since April of 2020).
Courts are permitted to take judicial notice of matters of public record, prior judicial opinions, and official court records. See, e.g., McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009); Carlev v. Wheeled Coach, 991 F.2d 1117, 1126 (3d Cir. 1993) (citing Gov't of Virgin Islands v. Testamark, 528 F.2d 742, 743 (3d Cir. 1976)). Accordingly, this Court takes judicial notice of Plaintiff's allegations in her complaint in Graham v. Department of Transportation, No. 21-449, as well as those in her Motion to Proceed Using Feminine Pronouns and Titles in the present matter.
Plaintiff alleges that, on January 15, 2021, she sent the necessary forms and $20.00 fee to the Pennsylvania Department of Health Division of Vital Records (“Defendant”) in order to obtain a new birth certificate. ECF No. 5 at 7. Plaintiff does not indicate that any forms were completed by third parties. Additionally, the allegations of fact in the Complaint support the conclusion that that she filled out the forms herself. Id. (“I filled the form out as instructed . . .”).
On the forms, Plaintiff indicated that she wished to change her gender marker on her birth certificate from “male” to “female.” Additionally, she submitted a cover letter along with her request, in which she reiterated her desire to do so. Id. She further alleges that “this letter informed [Defendant] of the risks [Plaintiff] face[s] without a change in gender markers.” Id. Plaintiff indicates that a copy of this cover letter was attached to the Complaint as Exhibit One, see id., but no such exhibit accompanied the Complaint.
Plaintiff alleges that, on March 19, 2021, she received a new birth certificate, but that her gender marker had not been changed to “female.” Id. Plaintiff sent a follow-up letter to Defendant regarding the same, in which she also underscored her medical need, “the risks [she] faced[, ]” and how other states allow changes to the gender markers on birth certificates that they issue. Id. at 8. In the second letter, she accused Defendant of violating her rights. Id. As of the date of filing of the Complaint, Defendant had not responded to that letter. Id. Plaintiff states that the second letter is attached to the Complaint as Exhibit Two, but no such exhibit accompanied the Complaint.
In Graham v. Dep't of Transportation, No. 21-449, Plaintiff alleged that “[o]n 3-19-2021 plaintiffs [sic] new birth certificate came. On this birth certificate the gender marker says ‘F' or female (See Exhibit Four).” ECF No. 8 ¶ 37. Exhibit Four to the complaint in that lawsuit consists of a cover sheet, in which Plaintiff states that her new birth certificate “says her gender markers says ‘F' or Female[, ]” but she does not include a copy of the same. ECF No. 8-4. Plaintiff further states that “[t]his exhibit is currently unavailable due to the prison refusing to provide it.” Id. ¶ 2. While this Report and Recommendation does not turn on this discrepancy between the allegations in the present lawsuit and those in the complaint in Civil Action No. 21-449, the undersigned makes note of same for the sake of completeness.
In addition, Plaintiff alleges that that she cut her own wrists about two months after sending the second letter. Id.
As a result of the above-alleged acts and omissions, Plaintiff asserts that Defendant violated her rights under the Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States, and she seeks redress pursuant to 42 U.S.C. § 1983. Id. at 4. Plaintiff also claims violations of the ADA and the RA. Id. Plaintiff seeks, inter alia, declaratory and injunctive relief. Id. at 11.
B. Applicable Legal Standard
28 U.S.C. § 1915 establishes the criteria for allowing an action to proceed IFP. Section 1915(e) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The standard for reviewing a complaint under Section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also Banks v. Mozingo, No. 08-004, 2009 WL 497572, at *6 (W.D. Pa. Feb. 26, 2009). Under that Rule, dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is “conceivable, ” because a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). “‘Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.'” Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).
That said, when reviewing the complaint, it is not proper for a court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged.” Assoc'd Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983).
C. Legal Analysis
1. Plaintiff fails to state an Eighth Amendment claim.
In Section II of the Complaint, “Basis for Jurisdiction, ” Plaintiff checked the box indicating that she is bringing a claim against state or local officials. ECF No. 5 at 3. In the attachment for Section II.B., Plaintiff simply states “Eighth Amendment claim for deliberate indifference to serious medical needs.” Id. at 4. Plaintiff does not allege that Defendant has any official authority over Plaintiff's conditions of confinement, and a fair reading of the Complaint does not support any inference of the same.
Following extensive research, the undersigned could find no consensus in the case law establishing whether, or under what circumstances, liability for an Eighth Amendment violation may apply to a non-prison official, such as Defendant.
As discussed by United States District Judge Wendy Beetlestone in the context of qualified immunity:
Here, there is neither controlling authority nor a robust consensus of cases of persuasive authority establishing that a non-prison official, like Nealon, may be held liable for failing to protect an inmate where the non-prison official has no authority over the conditions of the prisoner's confinement. Giddings v. Joseph Coleman Ctr., 473 F.Supp.2d 617, 627 (E.D. Pa. 2007) (Brody, J.), aff'd, 278 Fed.Appx. 131 (3d Cir. 2008) (finding the law “not clearly established as to whether a parole officer must be able to determine, based on a single, initial encounter, whether a parolee was actually suicidal”). Indeed, the few cases that address the issue point in different directions. Compare Vanordern v. Bannock Cty., 2016 WL 3566197, at *2 (D. Idaho June 27, 2016) (holding police officers could not be held liable on a deliberate indifference claim where the officers “were no longer involved in [the plaintiff's] custody”), with Williams v. Bd. of Ct. Comm'rs of Grady Cty., 2014 WL 5039821, at *5 (W.D. Okla. Oct. 8, 2014) (holding plaintiff stated a plausible deliberate indifference claim against two police officers for not alerting prison officials that plaintiff was a suicide risk); cf. Van Smith v. Franklin, 286 Fed.Appx. 373, 374-75 (9th Cir. 2008) (holding that plaintiff could not state a deliberate indifference claim against officials that “had no official influence over the
conditions of Plaintiff's confinement, ” but also noting that said officials “relayed Plaintiff's safety concerns to the appropriate officials at the jail”). The smattering of conflicting, non-binding authority has not “placed the ... constitutional question beyond debate, ” Ashcroft [v. al-Kidd, 563 U.S. 731, 742 (2011)], such that an official, like Nealon, would have been on notice that he had an obligation to protect a prisoner in Plaintiff's position. Accordingly, Nealon is entitled to qualified immunity, and Plaintiff's Eighth Amendment claim against Nealon will be dismissed.Shirey v. Ladonne, No. CV 18-4960, 2019 WL 1470863, at *12 (E.D. Pa. Apr. 3, 2019).
Consistent with the finding of the district court in Shirey, this Court finds no case law to support an Eighth Amendment claim against Defendant, as it is a government agency having no relationship with Plaintiff, and a non-prison official with no authority over Plaintiff's conditions of confinement. Accordingly, the Eighth Amendment claim should be dismissed for failure to state a claim.
Nonetheless, given the recognized lack of case law on this issue, and for purposes of this Report and Recommendation only, the Court will err on the side of caution and conduct an alternative analysis. As such, even if it is presumed that Defendant as a non-prison official bears the same responsibility for Plaintiff's medical needs as a prison official charged with Plaintiff's custody and care, Plaintiff still fails to state an Eighth Amendment claim against Defendant.
Conditions of confinement violate the Eighth Amendment's prohibition of cruel and unusual punishment if they satisfy two criteria. First, the conditions “must be, objectively, sufficiently serious” such that a “prison official's act or omission ... result[s] in the denial of the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations and internal quotation marks omitted). Only “extreme deprivations” are sufficient to make out a conditions of confinement claim. Hudson v. McMillen, 503 U.S. 1, 8-9 (1992). A plaintiff must prove that the deprivation is sufficiently serious when viewed within the context of “contemporary standards of decency.” Helling v. McKinney, 509 U.S. 25, 36 (1993). Second, the official responsible for the challenged conditions must exhibit a “sufficiently culpable state of mind, ” which “[i]n prison-conditions cases . . . is one of deliberate indifference to inmate health or safety.” Farmer, 511 U.S. at 834 .
The deliberate indifference standard has been defined as requiring that “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837.
[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.... The Eighth Amendment does not outlaw cruel and unusual “conditions”; it outlaws cruel and unusual “punishments.” Id. at 838 (emphasis added). This reasoning is grounded in the axiom that “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.” Id. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation marks, emphasis, and citations omitted)).
Additionally, “prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 845. Thus, a prison official - or, in this case, a state official - may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. “Only unnecessary and wanton infliction of pain or deliberate indifference to the serious medical needs of prisoners are sufficiently egregious to rise to the level of a constitutional violation.” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir 2004) (internal quotations omitted).
In the instant case, the asserted basis for Plaintiff's Eighth Amendment claim is alleged indifference to her serious medical need vis-a-vis her gender dysphoria. ECF No. 5 at 7-9. Plaintiff's claim fails.
First, Plaintiff admits in her Motion to Proceed Using Feminine Pronouns and Titles, ECF No. 6, that she receives medication for her gender dysphoria, and has for a year. Id. at 1. This is reinforced by the allegations of fact in Plaintiff's recently-filed complaint in Graham v. Department of Transportation, No. 21-449, in which she alleges that she has been receiving hormone replacement therapy and “feminizing medications” since April of 2020. Id. at ECF No. 8 ¶¶ 31-32. There is no allegation in the instant Complaint or elsewhere in the record to contradict the fact that Plaintiff is receiving medical treatment for her gender dysphoria, and nothing to on the record supports a finding to the contrary.
Presuming that Defendant bears the same responsibility to Plaintiff as a prison official responsible for her custody and care, it is well-established that a prison official that that is not alleged to be a medical professional cannot be deliberately indifferent to a serious medical need “simply because [that official] failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.” Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). Here, Plaintiff's allegations of fact do not support the conclusion that Defendant is a medical professional, and it is indisputable that Plaintiff was receiving medical care. Thus, Plaintiff cannot show deliberate indifference on the part of Defendant.
Second, Plaintiff has not plausibly pleaded that the inability to change one's gender marker on a birth certificate deprives her of “the minimal civilized measure of life's necessities[, ]” Farmer, 511 U.S. at 834, or that the same qualifies as cruel and unusual punishment. Id. at 838.
Accordingly, Plaintiff's Eighth Amendment claim should be dismissed. Moreover, based on the facts alleged, it is clear that amendment would be futile, and dismissal should be with prejudice. Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
2. Plaintiff's constitutional claims against Defendant Pennsylvania Department of Health Division of Vital Records should be dismissed.
Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... 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. Therefore, to state a claim under Section 1983, a plaintiff must allege: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged deprivation was committed or caused by a person amenable to suit under § 1983 and acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
Simply put, Defendant Pennsylvania Department of Health Division of Vital Records is an arm of the Commonwealth of Pennsylvania - and thus not a “person” within the meaning of Section 1983, and should be dismissed from any claim arising under the Eight and Fourteenth Amendments. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (state not person under Section 1983).
Based on the facts that are alleged in the Complaint, amendment appears to be futile, and dismissal of all constitutional claims against Defendant should be with prejudice. See Fletcher-Harlee Corp., 482 F.3d at 251.
3. Plaintiff fails to state a claim under the ADA and the RA.
In Section II.B. of the Complaint, Plaintiff lists “Americans with Disabilities Act and Rehabilitation Act” as a claim. ECF No. 5 at 4. In Section IV.D. of the Complaint, Plaintiff asserts that “Defendant knew of Plaintiff's serious medical need also known as a disability, and thus they excluded Plaintiff from participation in a service, activity, and program, thus violating the Amercians [sic] with Disabilitys [sic] Act and Rehabilitation Act.” Id. at 9. These two claims fail as well.
Title II of the ADA provides as follows:
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.42 U.S.C. § 12132.
In considering this language, the United States Court of Appeals for the Third Circuit has explained that, in order to state a claim under Title II, the plaintiff must allege that: (1) she is a qualified individual with a disability; (2) she was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities; and (3) such exclusion, denial of benefits, or discrimination was by reason of her disability. Brown v. Deparlos, 492 Fed.Appx. 211, 215 (3d Cir. 2012) (emphasis added). See also Kokinda v. Dep't of Corr., No. 2:16-CV-1580-MRH-CRE, 2017 WL 3897378, at *8-9 (W.D. Pa. Aug. 9, 2017), report and recommendation adopted as modified, No. 2:16-CV-1580-MRH-CRE, 2017 WL 3912350 (W.D. Pa. Sept. 5, 2017), aff'd, 779 Fed.Appx. 944 (3d Cir. 2019).
Similarly, Section 504 of the Rehabilitation Act provides, in pertinent part, that:
[n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.29 U.S.C.A. § 794(a). In order to state a claim under the Rehabilitation Act, Plaintiff must prove that: 1) she is disabled; 2) that she is “otherwise qualified [, ]” [with or without reasonable accommodations, ] for the benefit sought or for participation in the program; 3) that she was excluded from participation in, denied the benefit of, or subject to discrimination “solely by reason of ... [her] disability;” and 4) that the program or activity receives federal financial assistance. Bowers v. NCAA, 9 F.Supp.2d 460, 490 (D.N.J. 1998) (citing cases). In other words,
[t]he elements of a Rehabilitation Act claim are “identical” to that of an ADA claim, Rodriguez v. City of New York, 197 F.3d 611, 618 (2nd Cir.1999), except that under the Rehabilitation Act, the defendant must have discriminated against the plaintiff “solely” because of the plaintiff's disability, whereas under the ADA, it is enough if the plaintiff's disability was a motivating factor in the discrimination.Spychalsky v. Sullivan, No. CV010958, 2003 WL 22071602, at *6 (E.D.N.Y. Aug. 29, 2003); see also In re Allegheny Health, Educ. & Rsch. Found., 321 B.R. 776, 795-96 (Bankr. W.D. Pa. 2005).
Plaintiff alleges that her gender dysphoria is the disability at issue in these claims, and that this disability was known by Defendant. ECF No. 5 at 9. Plaintiff further alleges that, because Defendant allegedly knew of her disability, “they excluded [P]laintiff from participated in a service, activity, and program . . .” Id. But this allegation as to the reason for the exclusion is conclusory, and not plausible on its face.” Twombly, 550 U.S. at 570. See also Iqbal, 556 U.S. at 678.
One factor undermining the plausibility of Plaintiff's ADA and RA claims is that Pennsylvania explicitly allows adults to change their gender designation on a birth certificate by filling out a form, checking the appropriate box, and submitting it along with the appropriate fee.In order to change one's gender designation, one also must submit a letter from one's treating physician, but the contents required in such a letter are unclear on the face of the form. The form additionally contains a specific field where the information to be modified is to be entered, and includes a return mailing address for the “Pa. Department of Health Bureau of Health Statistics and Registries” in Harrisburg, Pennsylvania.
The form is available on the internet at https://www.health.pa.gov/topics/Documents/Certificates%20and%20Records/Request%20to%2 0Modify%20an%20Adult%27s%20Birth%20Record.pdf (last Visited July 13, 2021) and a copy of the same is attached to this Report as Appendix 1. The undersigned takes judicial notice of the existence of this form, as well as the contents thereof.
In contrast, Plaintiff indicates that she filled out the forms herself - and does not mention the required physician's letter. She also alleges that a cover letter was necessary “so they don't [sic] think I marked the wrong [gender marker] box by accident[, ]” which is at odds with the form's explicit field for including information that is to be modified. Further, Plaintiff states that she sent the form to Defendant Pennsylvania Department of Health Division of Viral Records, for which she provides an address in New Castle, not the “Pa. Department of Health Bureau of Health Statistics and Registries” in Harrisburg. ECF No. 5 at 2 and 7.
Based on Plaintiff's factual allegations, the content of the publicly-available form used to modify a Pennsylvania birth certificate, and the discrepancies between the two, Plaintiff's allegations of fact do not plausibly state that her disability - instead of failing to submit the correct form and/or required physician's letter - was the reason that her request to change her gender marker was not granted. Additionally, Plaintiff does not allege that her disability interfered with the requirements of the correct form - including the physician's letter.
For at least these reasons, Plaintiff's claims arising under the ADA and the RA should be dismissed. However, because amendment would not necessarily be futile, dismissal should be without prejudice to leave to amend, if it is appropriate to do so.
4. Plaintiff's Equal Protection claim
The Equal Protection Clause of the Fourteenth Amendment exists to protect similarly situated individuals from disparate treatment under the law or by some other state action. Artway v. Att'y Gen. of New Jersey, 81 F.3d 1235, 1267 (3d Cir. 1996). The Equal Protection Clause “is not a command that all persons be treated alike but, rather, ‘a direction that all persons similarly situated should be treated alike.'” Id. (quoting City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). “Treatment of dissimilarly situated persons in a dissimilar manner by the government does not violate the Equal Protection Clause.” Klinger v. Dep't of Corr., 31 F.3d 727, 731 (8th Cir.1994).
In order to state a claim under the Equal Protection Clause, a plaintiff must, as a threshold matter, allege facts supporting the conclusion that:
(1) the complaining person, compared with others similarly situated, was selectively treated, and (2) the selective treatment was motivated by an intention to discriminate on the basis of impermissible considerations, such as race or religion, to punish or inhibit the exercise of constitutional rights, or by a malicious or bad faith intent to injure the person.Sabatini v. Reinstein, No. 99-2393, 1999 WL 636667, at *2 (E.D. Pa. Aug. 20, 1999) (internal quotations omitted); see also Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995). It is incumbent on one asserting a Fourteenth Amendment equal protection claim to show the existence of some purposeful discrimination. McClesky v. Kemp, 481 U.S. 279, 292 (1987).
The class alleged by Plaintiff in this case is inmates. See ECF No. 5 at 9 (“Other states allows [sic] incarcerated to change their gender markers, thus defendants [sic] know this and still denied plaintiff to change her gender markers thus violating the Equal Protection Clause of the Fourteenth Amendment.”). However, it is well-recognized that prisoners are not a suspect class for the purposes of Equal Protection. See, e.g., Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir. 2001). Further, for the reasons stated above in Part II.C.3, supra, Plaintiff's allegations of fact to not plausibly support the conclusion that some impermissible reason underlaid Plaintiff's gender marker not being changed, rather than Plaintiff filling out an incorrect form or failing to submit a note from her physician.
Accordingly, Plaintiff has failed to state an Equal Protection claim, and the same should be dismissed. Out of an abundance of caution, Plaintiff should be granted leave to amend this claim, and to name a proper defendant, if appropriate.
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that the claims raised in the Complaint filed by Plaintiff Zachary R. Graham (“Plaintiff”) be pre-service dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) as frivolous or malicious, and for failure to state a claim upon which relief may be granted.
It is further recommended that Plaintiff be given leave to file an amended complaint, to properly allege ADA and RA claims and to properly allege a Fourteenth Amendment Equal Protection claim to allege sufficient facts to state these claims against a proper defendant, if she is able to do so.
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 days thereafter in accordance with Local Civil Rule 72.D.2.
Hon. Arthur J. Schwab, United States District Judge.