applying the Rule 12(b)(6) standard to assess a proceeding filed in forma pauperis under § 1915(e)(2)(B)
How later courts described this case
- applying the Rule 12(b)(6) standard to assess a proceeding filed in forma pauperis under § 1915(e)(2)(B)
- alleging security officials told plaintiff to wait for termination of their investigation before starting a claim but never notified plaintiff their investigation ended, thereby making the procedure unavailable to plaintiff
- holding that a plaintiff-inmate must exhaust his or her administrative remedies
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
EDWARD R. GARZA, JR. :
Plaintiff, :
:
v. : CIVIL ACTION NO. 21-1179
:
WELLPATH MEDICAL, et al. :
Defendants. :
MEMORANDUM
RUFE, J. March 20, 2023
Plaintiff Edward R. Garza, proceeding pro se, has filed this lawsuit regarding the
conditions of his confinement and medical care he received at State Correctional Institution
Chester (“SCI Chester”). Defendants now move to dismiss the Fifth Amended Complaint. For
the reasons described below, Lieutenant Brill and former Corrections Officer Adams’ Motion to
Dismiss is denied, Wellpath Medical and John Nicholson, PA’s Motion to Dismiss is granted,
and Bah Rahmatullah, LPN’s Motion to Dismiss is granted.1
I. BACKGROUND
Garza initiated this case by submitting a letter Complaint that was docketed as the
original Complaint in this action.2 While that complaint was being screened, as required by 28
1 Lieutenant Brill and former Corrections Officer Adams are collectively referred to as the “Commonwealth
Defendants,” while Wellpath Medical, John Nicholson, PA, and Bah Rahmatullah, LPN are collectively referred to
as the “Medical Defendants” in this Memorandum.
2 Compl. [Doc. No. 1].
U.S.C. § 1915(e)(2)(B), Garza submitted an Amended Complaint,3 a Second Amended
Complaint,4 and a Third Amended Complaint, which was submitted twice.5
By Order dated December 20, 2021, the Court determined that Garza could not afford to
pay the filing fee in this action and granted him leave to proceed in forma pauperis pursuant to
28 U.S.C. § 1915, and stated that the case was subject to screening pursuant to 28 U.S.C. §
1915(e)(2)(B). By Memorandum and Order dated December 28, 2021, the Court screened
Garza’s Third Amended Complaint, the most recently filed pleading at the time. The Third
Amended Complaint alleged deliberate indifference to Garza’s serious medical needs and
conditions of confinement, and named the following Defendants: (1) Kenneth Eason, acting
Superintendent of SCI Chester; (2) Paul G. Little of Wellpath Medical Contractors, the “head
doctor” at SCI Chester; (3) Crozer-Chester Medical Center; and (4) John Wetzel, who served as
Secretary of Pennsylvania Department of Corrections at all periods relevant in the Third
Amended Complaint. The Court dismissed the Third Amended Complaint for failure to state a
claim pursuant to 28 U.S.C. § 1915(e)(2)(B).6 The Court granted Garza leave to file a Fourth
3 Am. Compl. [Doc. No. 12].
4 Second Am. Compl. [Doc. No. 22].
5 Third Am. Compl. [Doc. Nos. 35, 37].
6 Specifically, the Court dismissed the claims against Crozer-Chester Medical Center with prejudice, holding that
Garza failed to allege that Crozer-Chester Medical Center was a state actor subject to liability under 42 U.S.C. §
1983. The Court dismissed the claims against Superintendent Eason and Secretary Wetzel without prejudice,
holding that Garza did not plead allegations describing how either defendant was personally involved in the alleged
constitutional violations, nor did he allege that either defendant maintained a policy, practice, or custom that violated
his rights. Finally, the Court dismissed the claims against Dr. Little without prejudice, holding that Garza failed to
plead that Dr. Little was personally involved in the alleged violations of his constitutional rights. As Dr. Little was
sued in both his official and individual capacities, the Court construed the official capacity claims against his
employer, Wellpath Medical. The Court found that the Third Amended Complaint did not state a plausible claim
against Wellpath Medical and denied the claim without prejudice. See generally Mem. of Dec. 28, 2021 [Doc. No.
41].
2
Amended Complaint “in the event he [could] cure the defects outlined [in the Memorandum] and
state a plausible claim against a defendant personally involved in the alleged violations of his
constitutional rights.”7
Garza filed his Fourth Amended Complaint on January 10, 2022, and days later, filed yet
another “Amended Complaint” on January 14, 2022. As noted in the Court’s Order dated May
18, 2022, Garza’s Fifth Amended Complaint—the most recently filed amended pleading—is the
operative pleading in this case.
II. FACTUAL ALLEGATIONS8
Garza, who was formerly incarcerated at SCI Chester, filed this civil rights action
pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights with respect to his
conditions of confinement at SCI Chester and the medical care he received. The following
Defendants are named in the Fifth Amended Complaint: (1) the City of Chester;9 (2) Wellpath
7 Mem. of Dec. 28, 2021 [Doc. No. 41] at 15.
8 The facts set forth in this Memorandum are taken from Garza’s Fifth Amended Complaint. See Fifth Am. Compl.
[Doc. No. 45].
9 In an Order dated May 18, 2022, the Court dismissed Garza’s claims against the City of Chester for failure to state
a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), as the Fifth Amended Complaint named the City of Chester as a
Defendant only in the caption but did not contain any substantive allegations against the City of Chester. See Order
of May 18, 2022 [Doc. No. 49].
3
Medical; (3) John Nicholson, PA;10 (4) Bah Rahmatullah, LPN; (5) former Correctional Officer
Adams; and (6) Lieutenant Brill.
Garza alleges that sometime prior to February 23, 2021, he suffered an ankle fracture that
impacted his ability to walk. On February 23, 2021, Garza was transferred to SCI Chester, where
Rahmatullah gave him crutches for his injury. After speaking with Adams about his injury,
Garza alleges that Adams “didn’t care” about his condition and “forced [him] to go onto the top
tier with crutches.”11 Garza also alleges that he asked for a sergeant or “someone that was higher
in rank” but was denied, and that his fellow inmates “helped [him] up to the top tier.”12
On February 25, 2021, Garza alleges that he met with Nicholson, who came to Garza’s
cell on the top tier and examined his ankle. Garza also asserts that he spoke with Brill, who
informed him that he “would be moving to the bottom tier where [he] would be safe and where
[he] would be medically cleared for.”13
On the evening of February 25, 2021, Garza “was given a phone call” sometime between
8:00 and 8:15 pm.14 Garza claims that he “approached the steps with [his] crutches and [he] fell
from the top tier landing unconcious [sic] hurting [his] spine and breaking [his] right hand.”15
10 John Nicholson, PA avers that he is incorrectly identified as “Dr. Nicholson” in Garza’s Fifth Amended
Complaint.
11 Fifth Am. Compl. [Doc. No. 45] at ECF page 4.
12 Fifth Am. Compl. [Doc. No. 45] at ECF page 4.
13 Fifth Am. Compl. [Doc. No. 45] at ECF page 4.
14 Fifth Am. Compl. [Doc. No. 45] at ECF page 5.
15 Fifth Am. Compl. [Doc. No. 45] at ECF page 5.
4
Garza was then taken to the Crozer-Chester Medical Center, where he was allegedly sexually
sodomized in the presence of “a crowd” of unnamed correctional officers.16 Garza asserts that he
“left that hospital without any cast for [his] hand and without any help whatsoever for [his]
back.”17 Finally, Garza contends that he “used the prisoner grievance procedure available at SCI
Chester to try and solve the problem.”18
Garza seeks (1) a declaration that Defendants violated his Constitutional rights;19 (2) a
preliminary and permanent injunction directing Nicholson and Rahmatullah to provide “physical
therapy for [his] spine and to correct the break in [his] right hand and correctly set [his]
fracture”;20 (3) compensatory damages in the amount of $500,000 against each defendant, jointly
and severally; (4) punitive damages in the amount of $500,000 against each defendant; and (5)
Garza’s costs in this suit.
III. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), the Court must determine whether the
complaint contains “sufficient factual matter, accepted as true, to state a claim to relief that is
16 Fifth Am. Compl. [Doc. No. 45] at ECF page 5.
17 Fifth Am. Compl. [Doc. No. 45] at ECF pages 4, 5.
18 Fifth Am. Compl. [Doc. No. 45] at ECF page 5.
19 As stated in this Court’s Memorandum and Opinion dated December 28, 2021, “[d]eclaratory judgment is
inappropriate solely to adjudicate past conduct” and is also not “meant simply to proclaim that one party is liable to
another.” See Corliss v. O’ Brien, 200 F. App’x 80, 84 (3d Cir. 2006) (per curiam) (citations omitted); see also
Andela v. Admin. Off. of U.S. Cts., 569 F. App’x 80, 83 (3d Cir. 2014) (per curiam) (“Declaratory judgments are
meant to define the legal rights and obligations of the parties in the anticipation of some future conduct.”).
Accordingly, Garza’s request for a declaration that his rights were violated is improper and will be dismissed.
20 Fifth Am. Compl. [Doc. No. 45] at ECF page 5.
5
plausible on its face.”21 “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.”22 Conclusory allegations are not sufficient to state a claim.23 As
Garza is proceeding pro se, the Court construes his allegations liberally.24
IV. DISCUSSION
The Court understands Garza to allege two types of Eighth Amendment violations: (1)
deliberate indifference to serious medical needs, and (2) deliberate indifference to the conditions
of confinement.25 Tort claims alleging violations of constitutional rights may be brought in
federal court under Section 1983 of Title 42 of the United States Code. “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.”26 “A defendant in a civil rights action must have personal involvement
21 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted); see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999) (applying the Rule 12(b)(6) standard to assess a proceeding filed in forma pauperis under §
1915(e)(2)(B)).
22 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)).
23 Iqbal, 556 U.S. at 678.
24 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)).
25 See Fifth Am. Compl. [Doc. No. 45] at ECF pages 2-4.
26 West v. Atkins, 487 U.S. 42, 48 (1988).
6
in the alleged wrongs” to be liable.27 In other words, “[b]ecause vicarious liability is inapplicable
to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.”28
A. The Commonwealth Defendants’ Motion to Dismiss
The Commonwealth Defendants move to dismiss the claims against them on the grounds
that Garza failed to exhaust his administrative remedies, as required by the Prison Litigation
Reform Act (“PLRA”). The PLRA provides, in relevant part, that “[n]o action shall be brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”29 However, if prison staff prevents a prisoner from
taking advantage of administrative procedures, then that procedure is not considered
“available.”30
In support of their motion to dismiss, the Commonwealth Defendants attach the
Declaration of Madeline A. Quinn, the Faculty Grievance Coordinator for SCI Chester (the
27 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988); see also Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir.
2020) (quoting Rode, 845 F.2d at 1207) (“Personal involvement requires particular ‘allegations of personal direction
or of actual knowledge and acquiescence.’”).
28 Iqbal, 556 U.S. at 676.
29 42 U.S.C. § 1997e(a); see also Booth v. Churner, 206 F.3d 289, 300 (3d Cir. 2000) (holding that a plaintiff-inmate
must exhaust his or her administrative remedies).
30 See Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002) (alleging security officials told plaintiff to wait for
termination of their investigation before starting a claim but never notified plaintiff their investigation ended,
thereby making the procedure unavailable to plaintiff).
7
“Quinn Declaration”).31 The Quinn Declaration states that Garza filed two grievances relating to
his fall, but neither was appealed.32 The Commonwealth Defendants assert that “[w]ithout
having appealed his grievances to [Secretary's Office of Inmate Grievances and Appeals
(“SOIGA”)], a final determination was never issued by SOIGA for the relevant grievances.”33 In
his opposition to the Motion to Dismiss, Garza submits multiple new exhibits, alleges that Quinn
“purposely botche[d] the grievance process,” and avers that he attempted to appeal through
Deputy Aponte.34
A plaintiff only fails to state a claim for relief for failure to exhaust when non-exhaustion
is apparent from the face of the Complaint.35 On a motion to dismiss, courts generally may not
consider evidence presented outside of the pleadings without converting the motion to a
summary judgment motion,36 though courts may consider “undisputedly authentic document[s]
that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff’s claims are based on
the document.”37 Nevertheless, a court cannot consider “copies of [a plaintiff’s] grievances and
appeals, the Department of Corrections’ responses to them, [or] declarations from grievance
31 Quinn Decl. [Doc. No. 57-1].
32 Quinn Decl. [Doc. No. 57-1] at ¶¶ 9-11.
33 Commw. Defs.’ Mem. L. Supp. Mot. Dismiss [Doc. No. 57] at 8 (citation omitted).
34 Pl.’s Opp. Commw. Defs.’ Mot. Dismiss [Doc. No. 65] at ECF pages 7, 8, 11.
35 See Jones v. Bock, 549 U.S. 199, 216 (2007).
36 Fed. R. Civ. P. 12(d); Pension Benefits Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir.1993).
37 Pension Benefits Guar. Corp, 998 F.2d at 1196.
8
coordinators.”38 “Even if the grievances, appeals, and responses are indisputably authentic . . .
declarations are evidentiary materials that cannot be considered on a motion to dismiss.”39
Accordingly, the Court does not determine at this time whether Garza properly exhausted
his administrative remedies, which is the only issue raised by the Commonwealth Defendants.
As the Commonwealth Defendants have not addressed the merits of the Fifth Amended
Complaint, and the Court does not determine whether exhaustion is satisfied, the Motion to
Dismiss is denied.
B. The Medical Defendants’ Motions to Dismiss40
The Medical Defendants move to dismiss both on the merits and on the grounds that
Garza failed to exhaust his administrative remedies. They submit the Verification of Keri Moore
from SOIGA, which asserts that there are no grievance records appealed to final review
involving Wellpath Medical or Nicholson (the “Moore Verification”).41 As discussed above, the
Court cannot consider the Moore Verification at the motion to dismiss stage.42 Accordingly, the
Court will consider the merits of the claims against the Medical Defendants.
38 Berry v. Klem, 283 F. App’x 1, 3-4 (3d Cir. 2008).
39 Id. at 4.
40 The Medical Defendants have submitted two motions to dismiss: one of behalf of Wellpath Medical and
Nicholson, and one on behalf of Rahmatullah. Given that Nicholson and Rahmatullah are both employees of
Wellpath Medical, the Court considers the motions together.
41 Moore Verification [Doc. No. 63-3].
42 Moreover, the Court notes that the Moore Verification only pertains to Wellpath Medical and Nicholson, and not
Rahmatullah. While Rahmatullah is an employee of Wellpath Medical, Garza could have filed a grievance
specifically naming her and not Wellpath Medical.
9
1. Deliberate Indifference to Serious Medical Needs
To state a constitutional claim based on the failure to provide medical treatment, a
prisoner must allege facts indicating that prison officials were deliberately indifferent to his
serious medical needs.43 “A medical need is serious . . . if it is one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a lay person would easily
recognize the necessity for a doctor’s attention.”44 Deliberate indifference is properly alleged
“where the prison official (1) knows of a prisoner’s need for medical treatment but intentionally
refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or
(3) prevents a prisoner from receiving needed or recommended medical treatment.”45 Allegations
of medical malpractice and mere disagreement regarding proper medical treatment are
insufficient to establish a constitutional violation.46
The allegations against the Medical Defendants are brief. The Fifth Amended Complaint
alleges that Rahmatullah gave Garza crutches after he transferred to SCI Chester. In his
opposition to her motion to dismiss, Garza further argues that “[b]ecause Bah Rahmatullah
administered crutches without the proper housing instructions and orders, Garza almost lost his
life falling down the steps.”47 Garza also claims that Rahmatullah “has administered medications
43 See Farmer v. Brennan, 511 U.S. 825, 835 (1994).
44 Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quotations omitted).
45 Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
46 Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).
47 Pl.’s Mot. Opp. Rahmatullah’s Mot. Dismiss [Doc. No. 86] at ECF page 5.
10
to Garza on more than one occasion.”48 With respect to Nicholson, Garza alleges that he visited
Garza’s cell and examined his ankle. In his opposition to the motion to dismiss, Garza further
alleges that Nicholson “would be the SECOND defendant to contact and physically deal with
inmate Garza,” and that he allowed “Garza to ‘keep the crutches’ and even providing Garza with
a ‘chair’ in the cell to better accommodate inmate Garza’s condition.”49 Garza argues that
“Nicholson clearly knew that Garza had a condition that indeed required assistance since Garza
had a history with the Dept. of Corrections since ‘2014’ whereas Garza always had an assisted
walking device . . . .”50
Critically, the Fifth Amended Complaint is devoid of allegations that either Nicholson or
Rahmatullah: (1) knew of Garza’s need for medical treatment but intentionally refused to
provide it; (2) delayed necessary medical treatment based on a non-medical reason; or (3)
prevented Garza from receiving needed or recommended medical treatment.51 Rather, it appears
that Nicholson and Rahmatullah provided Garza with additional accommodations for his ankle
injury. Further, there are no allegations that Nicholson or Rahmatullah had any personal
involvement in, or awareness of, Garza’s injuries after he fell down the stairs, or the subsequent
events that took place at Crozer-Chester Medical Center. To the extent that Garza argues he
should have received additional care for his spine and back, it appears from the Fifth Amended
48 Id.
49 Pl.’s Mot. Opp. Defs.’ Mot. Dismiss [Doc. No. 67] at ECF page 3.
50 Id.
51 See Rouse, 182 F.3d at 197.
11
Complaint that the hospital staff determined that no care was necessary.52 This is a difference in
medical opinion, which does not amount to an Eighth Amendment violation.53 Thus, the Fifth
Amended Complaint does not state a claim that Nicholson or Rahmatullah were deliberately
indifferent to Garza’s medical needs.
Garza’s claims against Wellpath Medical also fail. Wellpath Medical is “a private health
company providing service to inmates,” which “cannot be held responsible for the acts of its
employees under a theory of respondeat superior or vicarious liability.”54 In order to hold
Wellpath liable for a constitutional violation under § 1983, the plaintiff must allege that the
provider had “a relevant . . . policy or custom, and that the policy caused the constitutional
violation [he] allege[s].”55 Garza appears to name Wellpath as a defendant because it employs
the medical providers at SCI Chester such as Nicholson and Rahmatullah. However, he did not
cure the deficiency in his Third Amended Complaint56 and failed to identify any relevant policy
that caused him constitutional injury. Because there are no specific allegations directed against
Wellpath, the claims against Wellpath will be dismissed.
52 See Fifth Am. Compl. [Doc. No. 45] at ECF page 5.
53 See Spruill, 372 F.3d at 235.
54 Sims v. Wexford Health Sources, 635 F. App’x 16, 20 (3d Cir. 2015) (quotations omitted).
55 Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (citing Bd. of Cnty. Comm’rs v. Brown,
520 U.S. 397, 404 (1997)).
56 See Mem. of Dec. 28, 2021 [Doc. No. 41] at 12 n.59.
12
2. Deliberate Indifference to Conditions of Confinement
With respect to Garza’s prison condition allegations, the Medical Defendants argue that
Garza cannot establish claims against them under the Americans with Disability Act (“ADA”)57
or the Rehabilitation Action (“RA”).58 However, the Court understands the Fifth Amended
Complaint as asserting claims of deliberate indifference to conditions of confinement—
specifically, that they failed to prevent harm to him, given that he was housed on the top tier
despite needing crutches.59 “In order to state such a claim, an ‘inmate must show that he is
incarcerated under conditions posing a substantial risk of serious harm.’” 60 More specifically, to
satisfy this requirement:
(1) objectively, the alleged deprivation must have been “sufficiently serious,” in
that the “inmate must show that he is incarcerated under conditions posing a
substantial risk of serious harm;” and (2) subjectively, the prison official must have
had a “sufficiently culpable state of mind” manifesting “deliberate indifference” to
the inmate’s health or safety.61
57 “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.
58 “No otherwise qualified individual with a disability…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. § 794(a).
Under the ADA or the RA, a plaintiff must allege that “(1) he is a qualified individual; (2) [he has] a disability; (3)
he 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;” and (4) that such denial or discrimination was by
reason of his disability. Bowers v. NCAA, 475 F.3d 524, 553 n.32 (3d Cir. 2007).
59 See Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005).
60 Ridgeway v. Smock, No. 20-200E, 2021 WL 1725045, at *7 (W.D. Pa. Apr. 7, 2021) (quoting Farmer v. Brennan,
511 U.S. 825, 834 (1994)), R. & R. adopted by 2021 WL 1723207 (W.D. Pa. Apr. 30, 2021).
61 Spillman v. Kollman, No. 18-1568, 2019 WL 4930141 (M.D. Pa. Oct. 7, 2019) (quoting Farmer, 511 U.S. at 834).
13
In this case, Garza merely alleges that Rahmatullah gave him crutches and that Nicholson
inspected his ankle. Garza does not set forth any allegations that Rahmatullah or Nicholson had
any involvement in determining the appropriate housing assignment for him. There are no
allegations that Rahmatullah knew he was assigned to the top tier. To the extent Garza argues
that Nicholson, once he visited his cell, should have requested he be assigned to a lower tier, this
argument does not hold water. Indeed, Brill informed Garza that he would be moving to a lower
tier. Finally, Garza has not identified any policy of Wellpath Medical’s that contributed to the
alleged conditions of confinement. Accordingly, the Fifth Amended Complaint does not state a
claim of deliberate indifference to conditions of confinement as to the Medical Defendants.
3. Sexual Discrimination
Garza makes a brief reference to “sexual discrimination” in the Fifth Amended
Complaint.62 The Medical Defendants argue that there are no allegations of any discrimination;
the only allegations regarding anything sexual in nature are the events at Crozer-Chester Medical
Center, but Garza does not allege that any of the Medical Defendants were involved. While
Garza refers to “sexual discrimination,” the Fifth Amended Complaint is devoid of allegations
describing discrimination. Accordingly, any sex discrimination claim that Garza may purport to
assert also fails.
62 See Fifth Am. Compl. [Doc. No. 45] at ECF page 5.
14
V. MOTION TO STRIKE
Wellpath Medical and Nicholson’s Motion to Strike Garza’s sur-reply is dismissed as
moot, as the arguments raised in Garza’s sur-reply do not impact the Court’s decision on their
Motion to Dismiss.
V. CONCLUSION
For the foregoing reasons, the Commonwealth Defendants’ Motion to Dismiss is denied,
Wellpath Medical and Nicholson’s Motion to Dismiss is granted, Rahmatullah’s Motion to
Dismiss is granted, and Wellpath Medical and Nicholson’s Motion to Strike Garza’s Sur-Reply
is dismissed as moot. Garza’s Motion to Oppose Defendants’ Motion to Dismiss the Fifth
Amended Complaint and Motion to Oppose Defendant Bah Rahmatullah’s Motion to Dismiss,
which the Court construes as Garza’s responses in opposition to the Motions to Dismiss, are
dismissed as moot. An order will follow.
15