Opinion
Civil Action 21-449 Re: ECF 8
05-13-2021
ZACHARY R. GRAHAM, Plaintiff, v. PENNSYLVANIA DEPARTMENT OF TRANSPORTATION; PENNSYLVANIA DEPARTMENT OF CORRECTIONS; YASSMIN GRAMIN, in his official capacity; and PATRICK HOMER, in his official capacity, Defendants.
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 the following 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) and frivolous or malicious, and for failure to state a claim upon which relief may be granted:
• All claims against Defendants Pennsylvania Department of Corrections and Pennsylvania Department of Transportation;
• All claims against Defendant Patrick Homer; and • All claims arising under the Eighth Amendment, the Americans with Disabilities Act and the Rehabilitation Act.
It is further recommended that the sole remaining claim - Plaintiff's Fourteenth Amendment Equal Protection claim against Defendant Yassmin Gramin - not be pre-service dismissed at this time.
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 April 8, 2021. ECF No. 1. In response to a deficiency order issued on April 12, 2021, ECF No. 2, Plaintiff files a second motion to proceed IFP. ECF No. 4. The motion was granted on April 27, 2021, ECF No. 7, and the Complaint was filed on the same date, ECF No. 8.
In the Complaint, Plaintiff alleges that she suffers from gender dysphoria, for which she has been receiving hormone replacement therapy and “feminizing medications” since April of 2020. ECF No. 8 ¶¶ 18 and 31-32. Plaintiff wishes to change the gender designation marker on her driver's license from “male” to “female”. Id. ¶ 33. Plaintiff states that she was provided a printout by her counselor, an employee of Defendant Pennsylvania Department of Corrections. The printout was titled “Gender Designation Options on PennDOT Driver's Licenses and Photo ID Cards” and included “Frequently Asked Questions.” ECF No. 8-1 at 3. The information sheet informed Plaintiff that she must complete a specific form and stated that her “gender designation change must be completed in person at a PennDOT Driver License Center.” ECF No. 8 ¶ 33; see also ECF No. 8-1.
Plaintiff has requested to be referred to using feminine pronouns and appellations. ECF No. 10. As a matter of courtesy, this Court shall do so. ECF No. 14.
This allegation is consistent with instructions on form DL-32, which is available on the Pennsylvania Department of Transportation's website. See https://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDL%20Form/DL-32.pdf (last visited. May 12, 2021). Courts are permitted to take judicial notice of documents attached to the complaint, 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)). It is appropriate for this Court to take judicial notice of this form and the instructions for completing the form.
Plaintiff sent multiple letters to Defendant Pennsylvania Department of Transportation and Defendant Yassmin Gramin - presumably an employee of Defendant Pennsylvania Department of Transportation - demanding to be allowed to change the gender designation on her driver's license without appearing in person. One such correspondence included a copy of an updated birth certificate gender-marked “F” for female. Id. ¶ 34-37. See also ECF Nos. 8-2 and 8-3. Defendant Patrick Homer signed the receipt of one of Plaintiff's letters. ECF No. 8-3 at 2 and 6.
Based on these allegations, Plaintiff asserts that her rights under the Eighth and Fourteenth Amendments to the United States Constitution have been violated, and she seeks redress pursuant to 42 U.S.C. § 1983. Plaintiff also asserts violations of the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”). ECF No. 8 ¶¶ 18-25 and 28-30. Plaintiff further asserts a “Monell claim” against Defendants. Id. ¶¶ 26-28. Plaintiff seeks only injunctive and declaratory relief. Id. ¶¶ 6-7. Plaintiff threatens self-harm if she does not receive the relief that she seeks. ECF No. 8-8 ¶ 10.
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. Analysis
1. Plaintiff fails to state a Monell claim.
Plaintiff attempts to assert a self-styled “Monell claim” against Defendants. ECF No. 8 ¶¶ 26-27; see also Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978). But each Defendant is either a Pennsylvania state agency, or an employee of Pennsylvania state agency sued only in their individual capacities. Id. at 1 and ¶¶ 11-15.
“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 F. App'x. 175, 177 (3d Cir. 2014) (citing Monell, 436 U.S. at 694). “Monell was ‘limited to local government units which are not considered part of the State for Eleventh Amendment purposes . . . .” Quern v Jordan, 440 U.S. 332, 338 (1979) (quoting Monell, 436 U.S. at 690 n. 54). Because each Defendant is part of a state government - and not a local government - Plaintiff's Monell claim should be dismissed. Further, as it is apparent that Plaintiff cannot cure this defect in her putative Monell claim, leave to amend would be futile, and dismissal should be with prejudice. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
2. Plaintiff fails to state an Eighth Amendment claim.
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 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.
In the instant case, the asserted basis for Plaintiff's Eighth Amendment claim is alleged indifference to her serious medical need - vis-à-vis her gender dysphoria. ECF No. 8. It is unclear from the Complaint against which particular Defendant that Plaintiff asserts this claim. However, with respect to each Defendant, Plaintiff's claim fails.
First, Plaintiff admits in the Complaint that she receives medication for her medical condition, and has for over a year. Id. ¶¶ 31-32. There is no allegation that any Defendant has denied or withheld her medication. See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir 2004) (“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.”) (internal quotations omitted).
Second, Plaintiff has not plausibly pleaded that the requirement to appear in person at a driver's license center is a denial of “the minimal civilized measure of life's necessities[, ]” Farmer, 511 U.S. at 834, or that the same requirement 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. See Fletcher-Harlee Corp., 482 F.3d at 251.
3. Plaintiff's constitutional claims against Defendants Pennsylvania Department of Corrections and Pennsylvania Department of Transportation 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, Defendants Pennsylvania Department of Corrections and Pennsylvania Department of Transportation are arms of the Commonwealth of Pennsylvania - and thus not “persons” within the meaning of Section 1983, and should be dismissed. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (state not person under Section 1983). Further, based on the facts that are alleged in the Complaint, amendment appears to be futile, and dismissal of all claims against these Defendants should be with prejudice. See Fletcher-Harlee Corp., 482 F.3d at 251.
4. Plaintiff fails to state a claim against Defendant Patrick Homer.
The only mention of Defendant Patrick Homer in the Complaint or the documents submitted therewith is that he signed for a letter sent by Plaintiff. ECF No. 8-3 ¶ 1. But failure to review or respond to a grievance or other correspondence is not sufficient to state a claim for a constitutional violation under Section 1983. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 1988). Instead, the Complaint is utterly lacking in any factual allegations which, if true, would support the conclusion that Defendant Patrick Homer was involved in any sort of deprivation of Plaintiff's rights. See Twombly, 550 U.S. at 570; see also Iqbal, 556 U.S. at 678. Accordingly, all claims against him should be dismissed. Additionally, based on the allegations in the Complaint, it appears that amendment would be futile, and dismissal should be with prejudice. See Fletcher-Harlee Corp., 482 F.3d at 251.
5. Plaintiff fails to state a claim under the ADA and the RA.
Plaintiff's ADA and RA claims also fail as a matter of law.
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's claims under the ADA and the RA fail at least because she cannot show that she was denied any benefits, or faced any discrimination, based on a disability. Instead, according to the allegations in the Complaint, it is the fact of Plaintiff's incarceration - and nothing else - that prevents her from appearing in person to submit the required form to change the gender designation marker on her driver's license. ECF No. 8 ¶¶ 38-39; see also ECF No. 8-2 at 4 (“In this document it says a gender designation change mush be completed in person at a PennDOT Driver License Center. Due to my incarceration I am unable to do this. So I am writing to you because I would like to know if we can work something out where I can change my gender markers from “M” to “F” while I am still incarcerated.”).
Simply put, incarceration is not a disability. See, e.g., Smith v. Ketchem, No. CIV.A. 1:01CV176, 2002 WL 32096623, at *6 (N.D. W.Va. Mar. 20, 2002), aff'd, 45 Fed.Appx. 254 (4th Cir. 2002); see also 29 U.S.C. § 705(20) (adopting the ADA's definition of an “individual with a disability” with additional exceptions). Furthermore, the RA explicitly excludes “transsexualism” from its definition of an “individual with a disability” under Section 794. 29 U.S.C. § 705(20)(F). Accordingly, these claims should be dismissed. Because amendment would be futile, dismissal should be with prejudice.
6. Plaintiff's Equal Protection claim against Defendant Yassmin Gramin in her official capacity.
The Complaint does not explain who Defendant Yassmin Gramin is, or why Plaintiff would seek sue her. However, the undersigned takes judicial notice that “Yassmin Gramian” is the name of the current Pennsylvania Secretary of Transportation. It is presumed that the Defendant Yassmin “Gramin” in the Complaint refers to her.
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 Corrs., 31 F.3d 727, 731 (8th Cir.1994).
The undersigned recommends that this claim not be screened and pre-service dismissed under Section 1915 at this time. This recommendation should not be construed to preclude Defendant Yassmin “Gramin” from responding to the Complaint in any manner permitted by the Federal Rules of Civil Procedure, including the filing of a motion to dismiss.
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that the following claims raised in the Complaint be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) and frivolous or malicious, and for failure to state a claim upon which relief may be granted:
• All claims against Defendants Pennsylvania Department of Corrections and Pennsylvania Department of Transportation;
• All claims against Defendant Patrick Homer; and
• All claims arising under the Eighth Amendment, the Americans with Disabilities Act, and the Rehabilitation Act.
It is further recommended that the sole remaining claim - Plaintiff's Fourteenth Amendment Equal Protection claim against Defendant Yassmin Gramin in her official capacity - not be screened at this time.
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.