Talbert v. Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES TALBERT, :

Plaintiff : CIVIL ACTION NO. 3:21-1669

v. : (JUDGE MANNION)

DEP’T. OF CORR., et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

On September 28, 2021, Plaintiff, Charles Talbert, an inmate confined

at the State Correctional Institution, Camp Hill (“SCI-Camp Hill”),

Pennsylvania, filed the above caption civil rights action, pursuant to 42

U.S.C. §1983. (Doc. 1). The action proceeds via an amended complaint,

which was filed on December 9, 2021. (Doc. 21). Plaintiff raises two claims;

a retaliation claim for the filing of Civil Action No. 21-cv-1231 and a claim of

deliberate indifference to his serious medical needs with respect to his

digestive and back issues. Id. The named Defendants are the Department of

Corrections (“DOC”); John Wetzel, former DOC Secretary; Margaret Gordon,

DOC Dietary Management Services Specialist; and the following SCI-Camp

Hill employees: Superintendent Harry, Unit Manager Ritchey, Officer

Benning, Health Care Administrator Herb, and Dr. Voorstad. Id.

On January 13, 2022, Plaintiff filed a “motion to withdraw”, in which

Plaintiff requests to “withdraw all First and Fourteenth Amendment claims

that he has against Defendants Laurel Harry, Brad Ritchy and Officer

Benning and thus, dismiss all claims against them.” (Doc. 42). Thus, the

Court will dismiss Plaintiff’s retaliation claim against the Defendants and they

will be dismissed from the above captioned action. Accordingly, Plaintiff’s

motion for sanctions (Doc. 30) against these Defendants will be dismissed

as moot.

Presently before the Court are remaining Defendants’ motions to

dismiss, (Docs. 53, 56) as well as various other motions filed by Plaintiff,

including a motion to file a second amended complaint, (Doc. 63) and two

motions for temporary restraining orders and preliminary injunctions. (Docs.

24, 84). The motions are all ripe for disposition. For the reasons that follow,

the Court will grant Defendants’ motions to dismiss, deny Plaintiff’s motion

to file a second amended complaint, deny Plaintiff’s motions for preliminary

injunctive relief and dismiss Plaintiff’s remaining motions.

II. ALLEGATIONS IN AMENDED COMPLAINT

Plaintiff’s “health care claims” allege the following:

Plaintiff has been diagnosed and treated for more than 10 years

with:

A. A faulty digestive system due to the surgical removal

of his colon, which causes food nutrients to not properly

absorb into his system unless being fed in proper

quantitative portions.

B. Excruciating lower-back muscle spasms, caused by 2

herniated discs.

Defendants DOC, Wetzel and Gordon are constitutionally

obligated to establish and maintain policies and procedures for

all inmates to receive therapeutic diets that are medically

appropriate for the inmates needs. However, the DOC, Wetzel

and Gordon has failed to establish a policy or procedure for

inmates with serious digestive medical conditions such as

Plaintiff’s to receive therapeutic diets like all other inmates with

serious medical conditions receive.

On or about August 20, 2021, Plaintiff had went to Holy Spirit

Hospital in Camp Hill, Pennsylvania and after being properly

evaluated, diagnosed, and treated, the treating physician had

instructed Defendants Herb and Voorstad to provide Plaintiff with

both:

A. Flexeril muscle relaxants for his aforesaid chronic and

acute lower back muscle spasms.

B. “Double portions” of food ongoing to ensure that he

retained proper nutrition.

However, Herb, Voorstad and Gordon had knowingly and gross

negligently failed to honor the hospital’s orders and in so doing

deprived Plaintiff of a medical prescribed and a medically

required therapeutic double portion diet.

Voorstad and Herb had failed to provide Plaintiff his prescribed

Flexeril muscle relaxants for no medical reasoning and due to

this specific medication allegedly not being part of the DOC’s

formulary list of medications.

As a proximate result of the DOC, Wetzel, Gordon, Herb and

Voorstad’s aforesaid acts and omissions, Plaintiff:

A. Was denied equal access to therapeutic food diets as

other similarly situated in violation of his Fourteenth

Amendment Constitutional right.

B. Was denied equal access to food services in violation

of Title II of the Americans with Disabilities Act.

C. Was discriminated against on account of his digestive

disability.

D. Was denied access to prescribed treatment in

violation of his Eighth Amendment Constitutional right.

E. Suffered and continues to suffer from unnecessary

excruciating muscle spasms along with hunger pain and

malnutrition.

F. Aggravation to his preexisting mental health issues,

mental anguish, and intentional infliction of emotional

distress.

(Doc. 21 at 4-6). For relief, Plaintiff “demands judgment against Defendants

DOC, Wetzel, Gordon, Herb and Voorstad, for violations of Title II of the

Americans with Disabilities Act, and the Eighth Amendment, for an amount

in excess of $1,000,000.00 punitive damages, costs, fees and a preliminary

injunction.” Id.

III. Motion to Dismiss

Federal notice and pleading rules require the complaint to provide the

defendant notice of the claim and the grounds upon which it rests. See

Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff

must present facts that, accepted as true, demonstrate a plausible right to

relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that

the pleader is entitled to relief,” a complaint may nevertheless be dismissed

under Federal Rule of Civil Procedure 12(b)(6) for its “failure to state a claim

upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the court

accepts as true all factual allegations in the complaint and all reasonable

inferences that can be drawn from them, viewed in the light most favorable

to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show

that their claims are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The plausibility

standard requires more than a mere possibility that the defendant is liable

for the alleged misconduct: “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has

alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” See

Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a

district court must take when reviewing a 12(b)(6) motion: (1) identify the

elements that a plaintiff must plead to state a claim; (2) identify any

conclusory allegations contained in the complaint that are “not entitled” to the

assumption of truth; and (3) determine whether any “well-pleaded factual

allegations” contained in the complaint “plausibly give rise to an entitlement

to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)

(internal citations and quotation marks omitted). The Third Circuit has

specified that in ruling on a Rule 12(b)(6) motion to dismiss for failure to state

a claim, “a court must consider only the complaint, exhibits attached to the

complaint, matters of public record, as well as undisputedly authentic

documents if the complainant's claims are based upon these documents.”

See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d

Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful

that a document filed pro se is “to be liberally construed.” See Estelle v.

Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully

pleaded,” must be held to “less stringent standards than formal pleadings

drafted by lawyers” and can be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support

of his claim that would entitle him to relief. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972).

IV. DISCUSSION

Section 1983 is the vehicle by which private citizens may seek redress

for violations of federal constitutional rights committed by state officials. See

42 U.S.C. §1983. The statute states, in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper

proceeding for redress.

Id. “Section 1983 is not a source of substantive rights,” but is merely a means

through which “to vindicate violations of federal law committed by state

actors.” See Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa.

2004) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002)). To state

a cause of action under Section 1983, a plaintiff must allege that: (1) the

conduct complained of was committed by persons acting under color of state

law; and (2) the conduct violated a right, privilege, or immunity secured by

the Constitution or laws of the United States. See Harvey v. Plains Twp.

Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005) (quoting West v. Atkins, 487

U.S. 42, 48 (1988)).

A. Claims Against Defendant DOC

Plaintiff names the DOC as a Defendant in this action. The DOC,

however, is immune from suit in federal court pursuant to the Eleventh

Amendment. See Kreutzberger v. Pa. Dep’t of Corr., 684 F. App’x 107, 108

(3d Cir. 2017); Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir. 2000).

Moreover, even if the Eleventh Amendment did not bar Plaintiff’s claims

against the DOC, the DOC is also not a “person” that can be sued under

§1983. See Will v. Mich. Dep’t of St. Pol., 491 U.S. 58, 70 (1989); Pettaway

v. SCI Albion, 487 F. App’x 766, 768 (3d Cir. 2012). The Court, therefore,

will grant Defendants’ motion to dismiss the DOC as a named Defendant.

B. Claims Against Defendant Wetzel

For a §1983 claim to survive a motion to dismiss, the plaintiff must

sufficiently allege that the defendant was personally involved in the act or

acts that the plaintiff claims violates his rights. See Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988); see also Solan v. Ranck, 326 F. App’x

97, 100 (3d Cir. 2009).

Here, it appears that Plaintiff seeks to proceed against Defendant

Wetzel based upon his supervisory position as Secretary of the DOC.

Supervisors, however, “may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat superior.” See

Iqbal, 556 U.S. at 676. The Third Circuit has noted that there are two theories

of supervisory liability applicable to claims brought pursuant to §1983: (1) “a

supervisor may be personally liable under §1983 if he or she participated in

violating the plaintiff’s rights, directed others to violate them, or, as the person

in charge, had knowledge of and acquiesced in his subordinates’ violations”;

and (2) policymakers may also be liable under § 1983 “if it is shown that such

defendants, ‘with deliberate indifference to the consequences, established

and maintained a policy, practice[,] or custom which directly caused [the]

constitutional harm.’” See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det.

Ctr., 372 F.3d 572, 586 (3d Cir. 2004). With respect to the second theory of

liability, the plaintiff must allege that “(1) existing policy or practice creates

an unreasonable risk of constitutional injury; (2) the supervisor was aware

that the unreasonable risk was created; (3) the supervisor was indifferent to

that risk; and (4) the injury resulted from the policy or practice.” See Merring

v. City of Carbondale, 558 F. Supp. 2d 540, 547 (M.D. Pa. 2008) (citing

Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)).

In the instant case, Plaintiff’s amended complaint fails to set forth

plausible supervisory liability claims against Defendant Wetzel. Plaintiff fails

to allege facts indicating that Defendant Wetzel personally witnessed staff

denying Plaintiff necessary medical treatment and condoned or acquiesced

in this behavior. Likewise, there are no facts suggesting that Defendant

Wetzel directed staff members to not provide an appropriate diet or

medication to Plaintiff. While supervisors cannot encourage constitutional

violations, a supervisor has “no affirmative constitutional duty to train,

supervise or discipline so as to prevent such conduct.” See Chinchello v.

Fenton, 805 F.2d 126, 133 (3d Cir. 1986). The Court, therefore, agrees that

Plaintiff has failed to set forth a plausible supervisory liability claim against

Defendant Wetzel and all claims against him will be dismissed.

C. Exhaustion

Pursuant to the Prison Litigation Reform Act (“PLRA”), a prisoner must

pursue all available avenues of relief through the applicable grievance

system before initiating a federal civil rights action. See 42 U.S.C. §1997e(a);

Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust

irrespective of the forms of relief sought and offered through administrative

avenues.”). Section 1997e provides, in relevant part, that “[n]o action shall

be brought with respect to prison conditions under [S]ection 1983 of this title,

or any other [f]ederal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” See 42 U.S.C. §1997e(a). The exhaustion requirement is

mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see

also Booth, 532 U.S. at 742 (holding that the exhaustion requirement of the

PLRA applies to grievance procedures “regardless of the relief offered

through administrative procedures”).

The Third Circuit has further provided that there is no futility exception

to Section 1997e’s exhaustion requirement. See Nyhuis v. Reno, 204 F.3d

65, 75-76 (3d Cir. 2000). Courts have typically required across-the-board

exhaustion by inmates seeking to pursue claims in federal court. See id.

Additionally, courts have interpreted this exhaustion requirement as

including a procedural default component, holding that inmates must fully

satisfy the administrative requirements of the inmate grievance process

before proceeding with a claim in federal court. See Spruill v. Gillis, 372 F.3d

218 (3d Cir. 2004); see also Oriakhi v. United States, 165 F. App’x 991, 993

(3d Cir. 2006) (providing that “there appears to be unanimous circuit court

consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement

by exhausting administrative remedies after the filing of the complaint in

federal court”). Courts have also concluded that inmates who fail to complete

the prison grievance process in a full and timely manner are barred from

subsequently litigating claims in federal court. See, e.g., Bolla v. Strickland,

304 F. App’x 22 (3d Cir. 2008).

This broad rule favoring full exhaustion allows for a narrowly defined

exception; if the actions of prison officials directly caused the inmate’s

procedural default as to a grievance, the inmate will not be required to

comply strictly with this exhaustion requirement. See Camp v. Brennan, 219

F.3d 279 (3d Cir. 2000). However, courts also recognize a clear “reluctance

to invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the

statute requires.” See Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002).

Thus, an inmate’s failure to exhaust will be excused only “under certain

limited circumstances,” see Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir.

2005), and an inmate may defeat a claim of failure to exhaust only by

showing “he was misled or that there was some extraordinary reason he was

prevented from complying with the statutory mandate.” See Warman, 49 F.

App’x at 368.

In the absence of competent proof that an inmate was misled by

corrections officials, or some other extraordinary circumstances warranting

a departure from strict compliance with the exhaustion requirement, courts

frequently reject inmate requests for their failure to exhaust to be excused.

An inmate, therefore, may not excuse a failure to comply with these

grievance procedures in a timely manner by simply claiming that his efforts

constituted “substantial compliance” with this statutory exhaustion

requirement. See Harris, 149 F. App’x at 59. Furthermore, an inmate may

not avoid this exhaustion requirement by merely alleging that the

administrative policies were not clearly explained to him. See Warman, 49

F. App’x at 368. Consequently, an inmate’s confusion regarding

these grievances procedures does not, alone, excuse a failure to exhaust.

See Casey v. Smith, 71 F. App’x 916 (3d Cir. 2003); see also Marsh v.

Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that

‘ignorance of the law, even for an incarcerated pro se petitioner, generally

does not excuse prompt filing.’” (citations omitted)).

The Supreme Court has considered what renders administrative

remedies unavailable to an inmate such that a failure to exhaust may be

excused. See Ross v. Blake, 136 S. Ct. 1850 (2016). The Court noted “three

kinds of circumstances in which an administrative remedy, although officially

on the books, is not capable of use to obtain relief.” See id. at 1859. First, an

administrative procedure is not available “when (despite what regulations or

guidance materials may promise) it operates as a simple dead end—with

officers unable or consistently unwilling to provide any relief to aggrieved

inmates.” See id. Second, a procedure is not available when it is “so opaque

that it becomes, practically speaking, incapable of use.” See id. Finally, a

procedure is unavailable when “prison administrators thwart inmates from

taking advantage of a grievance process through machination,

misinterpretation, or intimidation.” See id. at 1860. However, “once the

defendant has established that the inmate failed to resort to administrative

remedies, the onus falls on the inmate to show that such remedies were

unavailable to him.” See Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir.

2018). The Third Circuit established that:

to defeat a failure-to-exhaust defense based on a

misrepresentation by prison staff, an inmate must show (1) that

the misrepresentation is one which a reasonable inmate would

be entitled to rely on and sufficiently misleading to interfere with

a reasonable inmate’s use of the grievance process, and (2) that

the inmate was actually misled by the misrepresentation.

Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020).

Defendant Voorstad moves for dismissal of Plaintiff’s complaint based

on Plaintiff’s failure to properly exhaust administrative remedies prior to

bringing the instant action. (Doc. 54 at 3-7). In support of this argument,

Defendant submits a copy of Plaintiff’s grievance history from January 6,

2020 through November 29, 2021. (Doc. 54-2 at 21-38). Out of the 191

grievances filed during this time frame, only four were appealed to final

review before the Secretary’s Office of Inmate Grievance and Appeals. Id.

All four were filed in 2020, well before the filing of the instant action on

September 28, 2021. Id. Out of the four that were appealed to final review,

only one was filed while Plaintiff was housed at SCI-Camp Hill1, and it

concerned a misconduct Plaintiff received on January 28, 2020. Id. Thus, it

appears from Plaintiff’s own grievance history that he has failed to exhaust

to final review any claims contained within his amended complaint.

Plaintiff does not refute this. In fact, in his brief in opposition, Plaintiff

acknowledges that on August 24, 2021 he filed Grievance No. 942277,

complaining about health care, specifically, that Defendant Voorstad was not

“complying with hospital instructions and ordering Plaintiff twice the normal

portion of food ongoing and Flexeril muscle relaxants for Plaintiff’s digestive

system and lower back conditions.” (Doc. 65 at 4). He claims that Nurse

Supervisor Hanna Trostle stated in her August 26, 2021 initial grievance

1 The other three grievances appealed to final review dealt with

“problems with staff,” commissary and mail and were filed while Plaintiff was

housed at SCI-Dallas and SCI-Phoenix. Id.

response that “although she couldn’t find it in Plaintiff’s discharge paperwork

from the hospital, any mention as to instructions for double portions, ‘it was

recommended that the Plaintiff eat small meals more frequently and to use

commissary as the meals between breakfast, lunch and dinner provided by

the DOC’.” Id. Plaintiff states that “even though [he] was denied an order for

double portions, he was given medical permission to buy commissary food,

to which was ‘the action taken to resolve the issue of Plaintiff’s digestive

system condition.” Id. Thus, he claims that he was “content with having

access to food from the commissary vendor, since he could choose what

foods to purchase” and that “at the time of being denied double portions, he

had no reason to appeal.” Id. However, he alleges that “when the Plaintiff

was denied access to commissary by the DOC, Plaintiff was well beyond his

time to appeal” and that “if [he] knew that the DOC wouldn’t honor their own

medical staff’s recommendations”, he “would have reasonably appealed.” Id.

Thus, Plaintiff believes that the failure to exhaust “is of no logical fault of his

own.” Id. Unfortunately, Plaintiff’s belief that the further pursuit of the

administrative process was futile or needless because he was satisfied with

his situation as of August 26, 2021, the date of the initial grievance response,

does not excuse his failure to exhaust his available administrative remedies.

Rather, as the foregoing discussion demonstrates, Plaintiff is only excused

from failing to appeal to final review prior to bringing his federal claim if he

can demonstrate that the administrative review process was “unavailable.”

The circumstances described by Plaintiff do not demonstrate that the DOC’s

administrative remedy process was unavailable to him. He does not suggest

Defendants interfered with his ability to complete all three tiers of the DOC’s

administrative remedy process; instead, he admits to terminating his

grievance appeal efforts because he believed he obtained a favorable

outcome with respect to being able to purchase items to satisfy his diet from

the commissary. Thus, the full prison administrative remedy process was

available to Plaintiff. However, because he chose not to appeal, file an

extension of time to appeal or even file a new grievance regarding his

medical issues, does not make the grievance procedure unavailable to

Plaintiff under Ross. The PLRA requires full and proper exhaustion prior to

the initiation of Plaintiff’s claims in federal court, and this Court cannot excuse

compliance with those requirements. The Court, therefore, finds that Plaintiff

failed to exhaustion administrative remedies with respect to any claim raised

in his amended complaint. Having determined that dismissal of Plaintiff’s

claims is proper because he failed to exhaust his administrative remedies,

the Court need not address the merits of Plaintiff’s claims.

D. Leave to Amend

Rule 15(a) of the Federal Rules of Civil Procedure provides:

(1) Amending as a Matter of Course. A party may amend its

pleading once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is

required, 21 days after service of a responsive pleading or 21

days after service of a motion under Rule 12(b), (e), or (f),

whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its

pleading only with the opposing party's written consent or the

court's leave. The court should freely give leave when justice so

requires.

Fed. R. Civ. P. 15(a). Plaintiff’s motion is governed by Rule 15(a)(2). Under

that subsection, while leave should be given freely, district courts have the

discretion to deny a motion for leave to amend where it is apparent from the

record that: (1) there is undue delay, bad faith or dilatory motive; (2) the

amendment would be futile; or (3) the amendment would prejudice the other

party. See Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000). Amendment is

futile “if the amended complaint would not survive a motion to dismiss.”

Budhun v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 259 (3d Cir. 2014).

Plaintiff’s motion for leave to file a second amended complaint (Doc.

63) will be denied. Plaintiff’s proposed second amendment complaint again

raises the same denial of medical needs contained in his amended

complaint, specifically, the alleged denial “a therapeutic diet program to meet

[his] medical needs.” (Doc. 64-1). As Plaintiff’s grievance history reveals, and

Plaintiff, himself, confirms, Plaintiff has failed to exhaust his administrative

remedies with respect to these claims. Thus, Plaintiff, despite his arguments

to the contrary, had an administrative remedy available to him to challenge

his medical needs. Given this, there is no reason to excuse Plaintiff’s failure

to exhaust his administrative remedies and leave to amend would thus be

futile. Thus, Plaintiff’s motion to file a second amended complaint will be

denied.

E. ADA Claim

Plaintiff raises a claim under the Americans with Disabilities Act, 42

U.S.C. §12101 et seq. (“ADA”) based on not getting double portions of food

and Flexeril. (Doc. 21).

The ADA claims against the named defendants fail as a matter of law.

Title II of the ADA 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.” 42 U.S.C. §12132; see

Bowers v. National Collegiate Athletic Assn, 475 F.3d 524, 553 n.32 (3d Cir.

2007). Individual Defendants such as Wetzel, Dr. Voorstad, Beth Herb, and

Margaret Gordon, are not public entities within the meaning of Title II of the

ADA and, therefore, are not subject to suit. See Emerson v. Thiel Coll., 296

F.3d 184, 189 (3d Cir. 2002) (individuals are not subject to liability under

“Titles I or II of the ADA, which prohibit discrimination by employers and

public entities respectively.”). Moreover, providing inadequate medical care,

even if related to a disability and even if such conduct amounts to negligence,

is not actionable discrimination under the ADA. See Iseley v. Beard, 200 F.

App’x 137, 142 (3d Cir. 2006) (citing Bryant v. Madigan, 84 F.3d 246, 249

(7th Cir. 1996)). “The ADA prohibits disability-based discrimination, not

inadequate treatment for the disability.” Kokinda v. Pennsylvania Dep’t of

Corr., 663 F. App’x 156, 159 (3d Cir. 2016).

Finally, Plaintiff’s allegations fail to support the fourth element that such

denial or discrimination was “by reason of his disability.” Brown v. Deparlos,

492 F. App’x 211, 215 (3d Cir. 2012) (affirming dismissal of claim under ADA

where plaintiff's complaint “merely asserts that defendants violated the ADA

and fails to allege any facts that demonstrate that the alleged inadequate or

improper medical care he received was because of a disability.”). Allegations

that “Defendants acted with malice against Plaintiff based on his having a

disability” is conclusory and unsupported by specific factual allegations from

which a plausible inference of discriminatory animus can be drawn. See, e.g.,

Mitchell v. Walters, No. 2:10-cv-1061, 2010 WL 3614210, at *6 (D.N.J. Sept.

8, 2010) (holding that, to survive a motion to dismiss, a claim of

discrimination must be based on more than “suspicion, speculation and

conclusory assertions”). Accordingly, Defendants’ motions to dismiss

Plaintiff’s ADA claims will be granted.

F. Equal Protection

The Equal Protection Clause requires all persons “similarly situated” to

be treated alike by state actors. See City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 439 (1985). Traditionally, “[i]n order to establish a prima facie

case of discrimination under the Equal Protection Clause, [plaintiffs] need[ ]

to prove that they were members of a protected class [such as race or

gender] and that they received different treatment than that received by

similarly-situated individuals.” Oliveira v. Twp. of Irvington, 41 F. App’x 555,

559 (3d Cir. 2002).

However, where a plaintiff alleges that he alone “has been

intentionally treated differently from others similarly situated and that there is

no rational basis for the difference in treatment,” he may raise a “class of

one” equal protection claim. Engquist v. Or. Dep’t of Agric., 553 U.S. 591,

598 (2008). To maintain such a claim, a plaintiff must establish that he has

been irrationally singled out for disparate treatment. See id. “[A]t the very

least, to state a claim under [a class of one theory], a plaintiff must allege

that (1) the defendant treated him differently from others similarly situated,

(2) the defendant did so intentionally, and (3) there was no rational basis for

the difference in treatment.” Mosca v. Cole, 217 F. App’x 158, 164 (3d Cir.

2007) (nonprecedential). When alleging the existence of similarly situated

individuals, plaintiffs “cannot use allegations ... that amount to nothing more

than ‘conclusory, boilerplate language’ to show that he may be entitled to

relief,” and “bald assertion[s] that other[s] ... were treated in a dissimilar

manner” will not suffice. Young v. New Sewickley Twp., 160 F. App’x 263,

266 (3d Cir. 2005) (nonprecedential) (citing Evancho v. Fisher, 423 F.3d 347,

353 (3d Cir. 2005)).

As an initial matter, neither prisoners nor indigent individuals constitute

a suspect class. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 317 (3d Cir.

2011). Thus, Plaintiff fails to allege that he is a member of a suspect class.

Moreover, Plaintiff fails to allege facts suggesting that he was intentionally

treated differently from other similarly situated SCI-Camp Hill inmates.

Plaintiff’s allegations amount to nothing more than conclusory language and

bald assertions. See Young, 160 F. App'x at 266. The Court will grant

Defendants’ motions to dismiss Plaintiff’s Fourteenth Amendment equal

protection claim.

G. Motions for Preliminary Injunctive Relief

Also pending before the Court are Plaintiff’s motion for temporary

restraining order and motion for preliminary injunction in which Plaintiff

requests the Court order that “Defendants refrain from denying Plaintiff

access to the commissary vendor to purchase food items” (Doc. 25) and that

Defendants “cease and desist all forms of retaliation against Plaintiff for the

filing of this civil action.” (Doc. 84).

In determining whether to grant a preliminary injunction, a court must

consider whether the party seeking the injunction has satisfied four factors:

“1) a likelihood of success on the merits; 2) he or she will suffer irreparable

harm if the injunction is denied; 3) granting relief will not result in even greater

harm to the nonmoving party; and 4) the public interest favors such relief.”

Bimbo Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir. 2010)

(quoting Miller v. Mitchell, 598 F.3d 139, 145 (3d Cir. 2010) ). See also Fed.

R. Civ. P. 65. Because a preliminary injunction is an extraordinary remedy,

the party seeking it must show, at a minimum, a likelihood of success on the

merits and that they likely face irreparable harm in the absence of the

injunction. See Adams v. Freedom Forge Corp., 204 F.3d 475, 484 (3d Cir.

2000); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir. 1989). Where the requested

preliminary injunction “is directed not merely at preserving the status quo

but ... at providing mandatory relief, the burden on the moving party is

particularly heavy.” Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980).

Thus, a request for any form of mandatory prospective relief in the prison

context “must always be viewed with great caution because judicial restraint

is specially called for in dealing with the complex and intractable problems of

prison administration.” Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).

Additionally, there must be “a relationship between the injury claimed

in the party’s motion and the conduct asserted in the complaint.” Little v.

Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); see also Adams v. Freedom

Forge Corp., 204 F.3d 475, 489-90 (3d Cir. 2000) (affirming denial of

injunction where plaintiffs’ harm was “insufficiently related to the complaint

and [did] not deserve the benefits of protective measures that a preliminary

injunction affords”).

As the Third Circuit made clear in Ball v. Famiglio, 396 Fed.Appx. 836,

837-38 (3d. Cir. 2010), a plaintiff fails to meet the requirements for injunctive

relief when the individuals whose conduct he hopes to enjoin are not named

as defendants in the action and the relief sought is completely unrelated to

the allegations in the complaint. Moreover, as this Court noted in Kates v.

Bledsoe, 2012 WL 6721069 at *2 (M.D. Pa. 2012), no preliminary injunction

should ever be granted on grounds not raised in the complaint since there

is—by the very absence of the issue in the complaint—no likelihood of

success on the merits.

Because Plaintiff failed to exhaust his administrative remedies with

respect to his therapeutic diet claim, he cannot establish a likelihood of

success on the merits, and his motion requesting Defendants refrain from

denying Plaintiff access to the commissary vendor to purchase food items to

satisfy his therapeutic diet must be denied. Cf. Hankins v. Temple Univ.

(Health Scis. Ctr.), 829 F.2d 437, 438 n.1 (3d Cir. 1987) (holding “motion for

a preliminary injunction [is] rendered moot by the issuance of the district

court’s final order on the merits”); Hardy v. Shaikh, No. 1:18-CV-1707, 2019

WL 1756535, at *6 (M.D. Pa. Apr. 19, 2019) (motion for preliminary injunction

mooted by determination that plaintiff “failed to exhaust his administrative

remedies”).

Additionally, based on Plaintiff’s failure to prevail on the merits of the

instant civil rights action and the fact that Plaintiff’s “Emergency Petition to

Cease and Desist Retaliation” for filing the instant action bears no relation to

the amended complaint in the instant action, the Court will deny Plaintiff’s

“Emergency Petition to Cease and Desist Retaliation.”

VI. CONCLUSION

For the foregoing reasons, the Court will grant Plaintiff’s motion to

dismiss Defendants Harry, Ritchy and Benning from the above captioned

action, grant Defendants’ motions to dismiss Plaintiff’s complaint, deny

Plaintiff’s motion to file a second amended complaint, and deny Plaintiff’s

motions for injunctive relief.

A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: April 22, 2022

21-1669-01