PERRY v. FADDIS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AVERY MIGUEL PERRY, SR., : CIVIL ACTION

Plaintiff :

:

v. : NO. 22-CV-4012

:

OFFICER MELANIE FADDIS, et al., :

Defendants :

M E M O R A N D U M

NITZA I. QUIÑONES ALEJANDRO, J. JANUARY 10, 2023

Currently before the Court is an Amended Complaint filed by Plaintiff Avery Miguel Perry,

Sr., a self-represented litigant, against three Officers of the Lower Providence Police Department

— Officer Melanie Faddis, Officer Andrew Millard and Sergeant Matthew Kuhnert — and the

“Lower Providence EMS Paramedics.” Perry raises claims pursuant to 42 U.S.C. § 19831 and the

Americans with Disabilities Act (“ADA”) based on a traffic stop during which he claims his rights

were violated. Since Perry’s Amended Complaint is essentially identical to his initial Complaint,

the Court will dismiss the Amended Complaint for failure to state a claim for the same reasons it

dismissed Perry’s initial Complaint.

I. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

In a November 30, 2022 Memorandum and Order, the Court granted Perry leave to proceed

in forma pauperis and dismissed his Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for

failure to state a claim. (ECF Nos. 11 & 12.) The dismissal was without prejudice to Perry filing

1 Perry also indicated, by checking a box on the form complaint he used to prepare his pleading, that he

intends to raise claims pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971). (ECF No. 14 at 3.) Bivens provides a federal cause of action for damages against

federal actors in highly limited circumstances. Egbert v. Boule, 142 S. Ct. 1793, 1799-1800 (2022); Ziglar

v. Abbasi, 137 S. Ct. 1843, 1854 (2017). Since Perry did not sue any federal actors, it appears he checked

this box erroneously because there is no legal basis for a Bivens claim here.

an amended complaint in the event he could cure the defects in his claims. Perry v. Faddis, No.

22-4012, 2022 WL 17340472, at *8 (E.D. Pa. Nov. 30, 2022) (“In light of Perry’s pro se status,

he will be given an opportunity to file an amended complaint in the event he can cure the defects

in his claims set forth above.”). Perry filed an amended complaint, which is currently pending

before the Court. As noted above, the amended complaint is essentially identical to Perry’s initial

Complaint.2 However, the Court will recount the operative facts here.

Perry alleges that in either the late hours of October 4, 2022 or the early hours of October

5, 2022, he went for a drive at night because he had “a very difficult and emotional day.” (ECF

No. 15 at 1.)3 At some point during his drive, Perry was pulled over by Officer Millard. (Id.)

When Perry inquired as to the reason for the stop, Officer Millard told Perry he was pulled over

“for some sort of lack of insurance/tag violation.” (Id.) Officer Millard asked Perry for his

“information.” (Id.) As in his initial Complaint, Perry is unclear about what documents, if any,

he provided to Officer Millard. However, Perry alleges that he had his fiancé on the phone via

“FaceTime,” and that his fiancé represented that she had “any/all paperwork in regards to [the]

vehicle and [its] history and that any supposed incorrect record(s) they had available had indeed

previously been rectified and that the insurance is indeed up to date and had been for quite some

time.” (Id. at 1-2.)

Perry provided Officer Millard with his name and birthdate and informed the officer that

he “suffer[s] from mental health disabilities.” (Id. at 2.) At some point, Officer Faddis approached

2 Perry’s Amended Complaint refers to a “Memorandum” he filed the same day, which articulates the facts

giving rise to his claims. (ECF Nos. 14 & 15.) The Court considers these two documents together to

comprise the Amended Complaint. Perry also filed a Motion to Proceed In Forma Pauperis, which will be

denied as unnecessary because Perry has already been granted leave to proceed in forma pauperis in this

case.

3 The Court adopts the pagination supplied by the CM/ECF docketing system.

the car with a flashlight and asked Perry some questions, to which he responded that he “had

already given any/all current available information to the initial Officer” and that he “suffer[s]

from mental health.” (Id.) Officer Faddis responded that she had not spoken to the “initial Officer”

and asked whether Perry was in possession of drugs or firearms, to which Perry responded in the

negative. (Id.)

With Perry’s fiancé still on the phone, Officers Millard and Faddis asked Perry to exit the

vehicle so they could talk, and Perry did so. (Id.) Officer Millard allegedly stated that “there was

a discrepancy in regards to the insurance of the vehicle and that [Perry’s] license was suspended.”

(Id.) Perry claims that he and his fiancé objected and attempted to “explain the circumstances and

provide the correct, up to date information & records” but that Officer Faddis allegedly prevented

him from doing so by “scream[ing]” at him, “‘Avery! Avery! Stop talking. It’s suspended and out

of date so just stop.’” (Id.)

Perry alleges that he was feeling “overwhelmed, disrespected, slighted, anxious and

battling a P.T.S.D triggering event” so he attempted to approach Sergeant Kuhnert, the supervisory

officer on the scene, to plead his case. (Id.) Sergeant Kuhnert allegedly “scream[ed]” at Perry to

“get back,” which Perry alleges caused him to stand “confused, perplexed and [in an] anxiety

induced stupor.” (Id.) Perry continued speaking to Sergeant Kuhnert, explaining that he and his

fiancé sought “to present the vindicating information but that [he] could not emotionally, mentally

and physical[ly] operate under [the] intimidating, frightening and abusive methods of supposed

‘Administration of Justice,’” to which he claims Sergeant Kuhnert responded “in a mocking tone”

by asking whether he should call the paramedics. (Id. at 2-3.)

Perry responded in the affirmative, claimed that his rights were being violated and he “felt

threatened and intimidated,” he “didn’t appreciate this behavior,” and he “elaborated further details

of [his] private and protected mental health information.” (Id. at 3.) Officer Faddis responded that

Perry’s rights were not being violated, allegedly coupled with a “sly snicker,” and Sergeant

Kuhnert informed Perry that his vehicle would be towed if he could not find someone to pick it

up. (Id.) Perry then explained family and financial difficulties he was experiencing and

“exclaimed” that his cell phone was running low on battery power with his fiancé “still present on

the phone and still verbally and with documentation attempt[ing] to produce vindicating evidence”

but he was allegedly “met with the most adverse, opposite, discriminatory actions.” (Id.) Perry’s

cell phone lost power and although Sergeant Kuhnert offered to charge the phone in the police

vehicle for Perry, Perry declined the offer because he preferred to charge the phone himself “under

police supervision.” (Id.) He also “continued to enlighten” Sergeant Kuhnert about his personal

family circumstances. (Id.)

When the paramedics arrived, Perry requested that he be able to discuss his “private and

protected by hippa [sic] mental/emotional health disabilities and relative information” away from

the “eavesdropping” officers, but was told no.4 (Id.) Perry alleges that the paramedics repeatedly

screamed at him to remove his hands from his pockets, to which he responded that he was not a

threat and asked to have an officer search him. (Id. at 3-4.) Officer Millard thus conducted a “pat

down” search of Perry, which revealed nothing but Perry’s cell phone. (Id. at 4.) According to

Perry, the paramedics refused to provide their names or writing implements. (Id.) Perry refused

to leave with the paramedics because he did not feel safe with them and requested an “alternative

provider” from Sergeant Kuhnert. (Id. at 4.) Perry claims he was screamed at and mocked, and

4 To the extent Perry sought to bring claims under the Health Insurance Portability and Accountability Act

(“HIPAA”), any such claims are dismissed because HIPAA does not provide for a private cause of action.

See, e.g., Beckett v. Grant, No. 19-3717, 2022 WL 485221, at *3 (3d Cir. Feb. 17, 2022) (per curiam)

(“HIPAA does not provide a private cause of action.”) (citing Meadows v. United Servs., 963 F.3d 240, 244

(2d Cir. 2020)).

that he was told the paramedics who were present were his only option. (Id.) Ultimately, the

paramedics departed, and Perry finally permitted Sergeant Kuhnert to charge his phone at the

Sergeant’s behest. (Id. at 5.)

It appears a tow truck arrived shortly thereafter and towed Perry’s car before Perry had the

opportunity to call his fiancé to see if she could pick him up. (Id.) Perry noticed that the license

plate had been removed from the car and was told that officers were “taking the key, plate [and]

issuing a traffic violation of some sort.”5 (Id.) Officer Millard offered to give Perry a ride home.

(Id.) Perry reluctantly obliged and was patted down by Officer Millard before he got in the car.

(Id.) Within an hour of Perry’s arrival back home, his fiancé sent proof of insurance and

unspecified “vindicating paperwork” to the police station. (Id.) Perry claims that it was

“depressing to be treated in such a degrading, disrespectful, unethical, immoral, unappreciated,

violating, intimidating, aggressive and recklessly abusive” manner. (Id. at 6.)

Perry alleges that his constitutional rights and rights under the ADA were infringed during

these events. He seeks damages and an investigation. (Id.) Notably, Perry was charged in Traffic

Court with two summary offenses as a result of the traffic stop, namely: (1) driving while his

operating privilege was suspended or revoked, in violation of 75 Pa. Cons. Stat. § 1543(a); and (2)

operating a vehicle following suspension of registration in violation of 75 Pa. Cons. Stat. § 1371(a).

See Commonwealth v. Perry, MJ-38120-TR-0002007-2022 & MJ-38120-TR-0002008-2002. He

was found guilty of both offenses after a summary trial on December 13, 2022. Id. This was not

the first time Perry was charged with driving while his license was suspended or revoked. See

Commonwealth v. Perry, MJ-38111-TR-0000357-2020.

5 Perry and his fiancé ultimately recovered the license plate the next day. (ECF No. 15 at 7.)

II. STANDARD OF REVIEW

Since Perry is proceeding in forma pauperis, 28 U.S.C. § 1915(e)(2)(B)(ii) requires the

Court to dismiss the Amended Complaint if it fails to state a claim. Whether a complaint fails to

state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to

dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d

236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains

“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). “At this early stage of the

litigation,’ ‘[the Court will] accept the facts alleged in [the pro se] complaint as true,’ ‘draw[] all

reasonable inferences in [the plaintiff’s] favor,’ and ‘ask only whether [that] complaint, liberally

construed, . . . contains facts sufficient to state a plausible [] claim.’” Shorter v. United States, 12

F.4th 366, 374 (3d Cir. 2021) (quoting Perez v. Fenoglio, 792 F.3d 768, 774, 782 (7th Cir. 2015)).

Conclusory allegations do not suffice. Iqbal, 556 U.S. at 678. As Perry is proceeding pro se, the

Court construes his allegations liberally. Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021)

(citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).

III. DISCUSSION

A. Section 1983 Claims

The vehicle by which federal constitutional claims may be brought in federal court is 42

U.S.C. § 1983. “To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the alleged

deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S.

42, 48 (1988). Perry’s Amended Complaint is best construed as raising claims under the Fourth

Amendment, the First Amendment, and the Fourteenth Amendment in connection with the traffic

stop and related events.6 These claims fail for the same reasons Perry’s identical claims in his

initial Complaint failed. Perry, 2022 WL 17340472, at **3-6.

1. Fourth Amendment Claims7

The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.

It is well-settled that the temporary detention of an individual during a traffic stop is a “seizure”

of “persons” under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 809-10 (1996).

Where police have directly witnessed a traffic violation, a traffic stop is a reasonable seizure under

the Fourth Amendment. See United States v. Moorefield, 111 F.3d 10, 12 (3d Cir. 1997) (“[A]

traffic stop is lawful under the Fourth Amendment where a police officer observes a violation of

the state traffic regulations.”); see also Kansas v. Glover, 140 S. Ct. 1183, 1191 (2020) (traffic

stop was lawful where “[u]nder the totality of the circumstances of this case, Deputy Mehrer drew

an entirely reasonable inference that Glover was driving while his license was revoked”).

“A seizure for a traffic violation justifies a police investigation of that violation.” Rodriguez

v. United States, 575 U.S. 348, 354 (2015). “[T]he tolerable duration of police inquiries in the

traffic-stop context is determined by the seizure’s ‘mission’ — to address the traffic violation that

6 The Court understands Perry to be pursuing § 1983 claims only against the Officers. To the extent Perry

also intended to raise § 1983 claims against the paramedics, either in an individual or official capacity or

as an entity, those claims are dismissed as inadequately pled and, thus, not plausible.

7 The Fourth Amendment applies to pretrial detentions of liberty by law enforcement. See Manuel v. City

of Joliet, Ill., 137 S. Ct. 911, 919 (2017) (“If the complaint is that a form of legal process resulted in pretrial

detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth

Amendment.”). Therefore, the Fourth Amendment governs the analysis of Perry’s claims related to his

detention by police. Albright v. Oliver, 510 U.S. 266, 274 (1994) (“The Framers considered the matter of

pretrial deprivations of liberty and drafted the Fourth Amendment to address it.”); Betts v. New Castle Youth

Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (discussing the “more-specific-provision rule” pursuant to

which claims should be analyzed under the standards relevant to the more specific provision of the

Constitution under which that claim falls, rather than under the Due Process Clause).

warranted the stop, and attend to related safety concerns.” Id. (internal citations omitted).

“Typically such inquiries involve checking the driver’s license, determining whether there are

outstanding warrants against the driver, and inspecting the automobile’s registration and proof of

insurance.” Id. at 355; see also 75 Pa. Cons. Stat. § 6308(b). “These checks serve the same

objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely

and responsibly.” Rodriguez, 575 U.S. at 355. The length of any additional investigation and

detention after a traffic stop must be supported by reasonable suspicion based on the facts and

circumstances confronting the officer. United States v. Hurtt, 31 F.4th 152, 159 (3d Cir. 2022).

In the Amended Complaint, Perry again asserts only that he was pulled over “for some sort

of lack of insurance/tag violation.” (ECF No. 15 at 1.) The Court took note in the Memorandum

dismissing Perry’s original Complaint that he failed to allege that the officers had no basis for

perceiving a traffic violation at the time of the stop.8 Perry, 2022 WL 17340472, at *4. He has

failed to provide any more specific allegations about the nature of the traffic stop, specifically

whether or not the officers directly witnessed a traffic violation. As noted above, a violation of

traffic laws observed by an officer, such as an expired registration sticker on a car’s license plate,

is a permissible reason for a traffic stop. Perry’s failure to allege that the officers lacked reasonable

suspicion to believe a violation had occurred, coupled with the fact that he entered a guilty plea to

driving a vehicle with an expired registration, renders any Fourth Amendment claim based on the

initial stop not plausible.9

8 The precise violation for which Perry was pulled over is unclear. The Amended Complaint suggests there

was an issue with the vehicle’s registration or that the officers at least perceived an issue with the

registration, but Perry does not provide additional details.

9 The Court understands Perry to be claiming only that, following the stop, he was able to prove that the

insurance for the vehicle complied with the relevant laws based on paperwork in possession of his fiancé,

who was not present on the scene but was available by phone. Perry is less specific about whether he is

alleging that the registration for the car complied with relevant traffic laws when he alludes to unspecified

“vindicating information.” Regardless, he was charged with driving while his license was suspended, and

Turning to the duration of the stop, the Complaint makes clear that in the course of the

initial stop for the expired registration sticker, the officers learned that Perry’s license had been

suspended. Although Perry alleges that his fiancé had documents related to the car, and that he

repeatedly attempted to explain as much to the officers on the scene, he never alleges that he had

a valid license or that the officers were incorrect when they claimed he was driving without a valid

license. Indeed, he was ultimately convicted of driving on a suspended license. In any event, since

the only reasonable inference that can be drawn from the Amended Complaint is that the officers

stopped Perry for driving without a valid registration and then learned he was also driving without

a valid license, it was reasonable for them to further detain Perry until plans could be made for the

car because Perry could not lawfully operate the vehicle.10 See Commonwealth v. Jackson, 273

A.3d 1033 (Pa. Super. Ct 2022.) (unpublished table disposition), appeal denied, 282 A.3d 373

(Pa. 2022) (upon learning that the driver he pulled over for tinted windows, a traffic code violation,

lacked a valid license, “Trooper Fleisher had the additional reasonable suspicion that he needed to

extend the traffic stop while he investigated whether Appellant or someone else was capable of

driving the vehicle”). In sum, Perry’s Amended Complaint also fails to allege a Fourth

Amendment violation based on the duration of his detention by police officers on October 4 or 5,

2022.11 See generally Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (“Because the

driving a car with an expired registration, rather than any issue with insurance paperwork possessed by

Perry’s fiancé. Accordingly, the Amended Complaint does not plead a plausible basis for concluding that

the initial traffic stop violated the Fourth Amendment. See generally Iqbal, 556 U.S. at 678 (“Where a

complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line

between possibility and plausibility of entitlement to relief.” (internal quotations omitted)).

10 “Since [the officers] could investigate further, they were also justified in ordering [Perry] out of the car

for their own protection during the brief detention required for that investigation.” United States v. Hackett,

173 F. App’x 164, 165 (3d Cir. 2006) (citing Moorefield, 111 F.3d 10, 13-14 (3d Cir. 1997)).

11 It follows that the Amended Complaint also fails to state a claim based on the towing of Perry’s vehicle.

Relevant here, Pennsylvania law provides that when a law enforcement officer verifies that a person is

plaintiffs here have not nudged their claims across the line from conceivable to plausible, their

complaint must be dismissed.”).

2. First Amendment Claims

Perry also asserts a First Amendment claim. As with his initial Complaint, the basis for

this claim is Perry’s allegation that when he and his fiancé attempted to present records related to

the car to Officer Millard, Officer Faddis “continuously screamed” at him, “Avery! Avery! Stop

talking. It’s suspended and out of date so just stop,” which Perry contends prevented him from

“articulat[ing] in a comprehensible manner.” (ECF No. 15 at 2.) It appears that Perry is claiming

his ability to speak was chilled by Officer Faddis’s response. However, he thereafter presented

operating a motor vehicle while his operative privilege is suspended or revoked, “the law enforcement

officer shall immobilize the vehicle or combination or, in the interest of public safety, direct that the vehicle

be towed and stored by the appropriate towing and storage agent . . . .” 75 Pa. Cons. Stat. § 6309.2. The

Amended Complaint indicates that Perry was given an opportunity to arrange for someone to retrieve the

car but that his cell phone could not make calls because it lost battery power and he initially refused to

permit a police officer to charge the phone (something that was offered to him) without him being present.

Since the Amended Complaint alleges that the officers learned Perry was operating a vehicle while his

license was suspended, it was permissible for them to tow the car pursuant to Pennsylvania law. See Sheller

v. City of Philadelphia, No. 11-2371, 2012 WL 4754820, at *6 (E.D. Pa. Oct. 5, 2012) (explaining that the

language of the statute “provides law enforcement officers with the option to tow based on their

determination of the interest of public safety”). Notably, the law provides for a means by which the owner

or a lienholder of any vehicle can retrieve the vehicle. 75 Pa. Cons. Stat. § 6309.2(d). To the extent Perry

is raising a procedural due process claim based on the towing of his vehicle, he does not explain why these

post-deprivation procedures are insufficient to provide any process due. See Mancini v. Northampton Cty.,

836 F.3d 308, 315 (3d Cir. 2016) (“Fundamentally, procedural due process requires notice and an

opportunity to be heard” in a meaningful time and manner) (citing Mathews v. Eldridge, 424 U.S. 319, 333

(1976)); Mawson v. Pittston City Police Dep’t, No. 16-00400, 2017 WL 4324840, at *15 (M.D. Pa. Jan.

20, 2017), report and recommendation adopted, No. 16-0400, 2017 WL 4366446 (M.D. Pa. Sept. 28, 2017)

(concluding, in the towing context, that “[c]ourts have recognized that a state-law conversion or replevin

case provides an adequate post-deprivation remedy in situations of seized property”). The Amended

Complaint also falls short of stating a plausible claim based on the seizure of Perry’s license plate. See

Olarte v. Cywinski, No. 12-632, 2012 WL 3757649, at *6 (M.D. Pa. Aug. 28, 2012) (“We agree with

defendant that Pennsylvania law provided plaintiff with adequate post-deprivation remedies [when officer

towed her car and sent her license plate to PennDot]. Courts have found that Pennsylvania law provides for

such adequate remedies through replevin and conversion claims.”). As noted above, Perry was able to

quickly recover the license plate. See supra n. 5.

his case to Sergeant Kuhnert by “adamantly profess[ing] that [he and his fiancé] were trying to

present vindicating information.” (Id.)

As with the initial Complaint, the Amended Complaint suggests that Perry was not chilled

by Officer Faddis’s directive that he stop talking since he was shortly thereafter able to present his

case to Sergeant Kuhnert.12 See Fleck v. Trustees of Univ. of Pennsylvania, 995 F. Supp. 2d 390,

406 (E.D. Pa. 2014) (“When a party shows no change in behavior, he can show no chilling of his

First Amendment right to free speech.”). In any event, the Complaint does not support an inference

that the police took any adverse action against Perry because of his speech. See Funayama v. City

of Philadelphia, No. 13-2667, 2015 WL 1608437, at *3 (E.D. Pa. Apr. 10, 2015) (“When a plaintiff

alleges that police conduct had a chilling effect, plaintiff must establish the elements of a First

Amendment retaliation claim.”); see also Est. of Smith v. Marasco, 318 F.3d 497, 512 (3d Cir.

2003) (to establish a retaliation claim, a plaintiff must show: “(1) that [he or she] engaged in

protected activity; (2) that the government responded with retaliation; and (3) that the protected

activity was the cause of the retaliation”). Accordingly, Perry has not stated a plausible First

Amendment claim.

3. Equal Protection Claims

The Court also understands Perry to be raising an Equal Protection claim based on his

allegation that he was discriminated against “based on disability(ies).” (ECF No. 14 at 5.) “The

Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to any

person within its jurisdiction the equal protection of the laws,’ which is essentially a direction that

all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr.,

12 The Amended Complaint also fails to support an inference that Perry could have established he had a

valid license, and his conviction for driving on a suspended license reflects that he would not have been

able to do so.

473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). Plaintiffs pursuing

an equal protection claim must allege that they were purposefully discriminated against, in that

“they received different treatment from that received by other individuals similarly situated.”

Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 151 (3d Cir. 2005) (emphasis in

original); Wilson v. Schillinger, 761 F.2d 921, 929 (3d Cir. 1985) (a litigant must show “intentional

or purposeful discrimination” to establish an equal protection violation). “Persons are ‘similarly

situated’ for purposes of an equal protection claim when ‘they are alike in all relevant aspects.’”

Startzell v. City of Philadelphia, 533 F.3d 183, 203 (3d Cir. 2008) (emphasis omitted).

Perry has not stated a plausible equal protection claim because he has not alleged that he

was treated differently from similarly situated individuals. Nor has he alleged facts from which a

plausible inference could be raised that his treatment was a result of intentional discrimination due

to a disability or disabilities. Additionally, to the extent Perry alleges that he was racially profiled,

this allegation is entirely conclusory and wholly unsupported by any facts in the Amended

Complaint. See Santos v. Sec’y of D.H.S., 532 F. App’x 29, 34 (3d Cir. 2013) (per curiam)

(holding that a pleading was properly dismissed where “the amended complaint assert[ed] blanket,

non-specific allegations that Santos was treated differently because of his race and/or gender” and

did not include “specific allegations illustrating how Santos was treated differently than those

similarly situated”). In other words, as with the claims in Perry’s initial Complaint, any equal

protection claims are not plausible.

B. ADA Claims

Perry also asserts claims under Title II of the ADA, which provides that “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.”13 42 U.S.C. § 12132. To state a claim under Title II of the

ADA, Perry must allege that: “‘(1) he is a qualified individual; (2) with a disability; (3) who was

excluded from participation in or denied the benefits of the services, programs, or activities of a

public entity, or was subjected to discrimination by any such entity; (4) by reason of his

disability.’” Geness v. Cox, 902 F.3d 344, 361 (3d Cir. 2018) (quoting Haberle v. Troxell, 885

F.3d 170, 178-79 (3d Cir. 2018)). To allege that he is a “qualified individual with a disability,”

Perry must allege that he has a “disability” which is defined as “a physical or mental impairment

that substantially limits one or more major life activities of such individual. . . .” 42 U.S.C. §

12102(1)(A). “[M]ajor life activities include, but are not limited to, caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,

breathing, learning, reading, concentrating, thinking, communicating, and working.” Id. at §

12102(2)(A). The ADA can apply to police conduct in the context of an arrest. Haberle, 885 F.3d

at 180 (“[W]e believe that the ADA can indeed apply to police conduct during an arrest.”).

Monetary damages, such as those sought by Perry, are not available under the ADA absent

a showing of intentional discrimination. Id. at 181. “To prove intentional discrimination, an ADA

claimant must prove at least deliberate indifference, and to plead deliberate indifference, a claimant

must allege (1) knowledge that a federally protected right is substantially likely to be violated and

(2) failure to act despite that knowledge.” Id. (internal citation and ellipses deleted). A plaintiff

13 The term “public entity” is defined by the ADA as “any State or local government” as well as “any

department, agency, special purpose district, or other instrumentality of a State or States or local

government.” 42 U.S.C. § 12131(1). Since Title II of the ADA does not provide for individual liability,

the Court construes Perry’s claims as raised only against the Officers in their official capacities and the

Lower Providence EMS Paramedics as an entity. See Kokinda v. Pennsylvania Dep’t of Corr., 779 F.

App’x 938, 942 (3d Cir. 2019) (per curiam) (“Kokinda’s claims for individual damages liability under Title

II of the ADA fail for the simple reason that there is no such liability.”); Bowens v. Wetzel, 674 F. App’x

133, 136 (3d Cir. 2017) (per curiam) (“[T]he District Court could have properly followed the holdings of

those circuits which have concluded that there is no individual damages liability under Title II of the ADA,

which provides an additional basis to affirm the dismissal of this claim.”).

can plead deliberate indifference in two ways: “first, by alleging facts suggesting that the existing

policies caused a failure to adequately respond to a pattern of past occurrences of injuries like the

plaintiffs,’ or, second, by alleging facts indicating that [plaintiff] could prove that the risk of

cognizable harm was so great and so obvious that the risk and the failure to respond will alone

support finding deliberate indifference.” Id. (internal quotation marks and ellipses deleted).

As with his initial Complaint, although Perry vaguely alludes to “mental health” and

“disabilities” he allegedly shared with the officers and paramedics, he does not clearly identify

these disabilities or describe how they impact any of his major life activities. Perry, 2022 WL

17340472, at *7. Absent clearer allegations, Perry falls short of alleging a disability under the

ADA. But even assuming he alleged a disability, Perry has again failed to allege that those

disabilities were the “‘but for’ cause of the deprivation or harm he suffered,” Haberle, 885 F.3d at

179, or that he was intentionally discriminated against because of those disabilities. Indeed, there

are no allegations in the Amended Complaint suggesting a pattern of past occurrences like Perry’s,

nor are there allegations supporting a plausible inference that the relevant local entities faced a

great and obvious risk of harm to disabled individuals such as Perry to which they failed to respond.

Furthermore, with regard to the claim against the paramedics, it was Perry’s choice not to pursue

any care, so any exclusion from services was based on his own decision. See Douris v. New Jersey,

500 F. App’x 98, 101 (3d Cir. 2012) (per curiam) (affirming dismissal of plaintiff’s claims where

plaintiff “was not excluded from the courthouse; rather, he chose not to enter”). In sum, Perry’s

allegations about disability discrimination are conclusory and fall woefully short of establishing

deliberate indifference for the same reasons the allegations in his initial Complaint fell short. See

Perry, 2022 WL 17340472, at *7 (dismissing Perry’s ADA claims); Evans v. President of Thomas

Jefferson Univ. Hosp., No. 22-1371, 2022 WL 2916685, at *5 (E.D. Pa. July 25, 2022) (dismissing

complaint where plaintiff did “not allege whether or how his alleged disability impacts his daily

living, and his conclusory allegations that he was subject to discrimination because of his disability

are not sufficient to state a plausible claim”).

IV. CONCLUSION

For the foregoing reasons, the Court will grant Perry leave to proceed in forma pauperis,

and dismiss his Amended Complaint for failure to state a claim. The Court concludes that further

attempts at amendment would be futile, especially since Perry’s Amended Complaint was

essentially identical to his initial Complaint. See Jones v. Unknown D.O.C. Bus Driver & Transp.

Crew, 944 F.3d 478, 483 (3d Cir. 2019) (amendment by pro se litigant would be futile when litigant

“already had two chances to tell his story”). An Order follows, which dismisses this case.

NITZA I. QUIÑONES ALEJANDRO, J.