The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
SARAH SCHIAVONE, et al.,
Plaintiffs, CIVIL ACTION NO. 3:21-CV-01686
v. (MEHALCHICK, M.J.)
LUZERNE COUNTY, et. al.,
Defendants.
MEMORANDUM
This is a civil rights action initiated upon the filing of a complaint by Plaintiffs Sarah
Schiavone and Mickayla Meredick (collectively, “Plaintiffs”) on September 2, 2021, in the
Court of Common Pleas of Luzerne County against Defendants Luzerne County; Correct
Care Solutions, LLC (“CCS”); and Wellpath, LLC (“Wellpath”) (collectively,
“Defendants”).1 (Doc. 1-4, at 2). Plaintiffs filed this action as Administrators of the Estate of
Hailey Povisil (the “Decedent”). On September 30, 2021, Defendants removed this action to
this Court. (Doc. 1). Plaintiffs filed an amended complaint on January 20, 2022, alleging that
Defendants violated the Decedent’s Eighth and Fourteenth Amendment rights, the
Americans with Disabilities Act (“ADA”), and the Rehabilitation Act (“RA”). (Doc. 13, at
14-18). Now pending before the Court are two motions to dismiss filed by Defendants. (Doc.
15; Doc. 21). On February 3, 2022, Defendants CCS and Wellpath (collectively the “Medical
1 In the original complaint, Plaintiffs also named Defendant Melissa Yankovich. (Doc.
1-4, at 3). The amended complaint intentionally omitted Defendant Yankovich from the
pleadings and she was subsequently terminated from this action. (Doc. 13, at 2).
Defendants”) filed a motion to dismiss. (Doc. 15). Defendant Luzerne County filed a partial
motion to dismiss on March 10, 2022. (Doc. 21). For the reasons stated herein, the Medical
Defendants’ motion to dismiss is DENIED in part and GRANTED in part, and Defendant
Luzerne County’s motion to dismiss is DENIED.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiffs allege a violation of the Decedent’s constitutional rights under the Eighth
and Fourteenth Amendments, pursuant to 42 U.S.C. § 1983, along with violations of the
ADA and the RA. (Doc. 13, at 14-18). While incarcerated at the Luzerne County
Correctional Facility (“LCCF”), the Decedent committed suicide due to the effects of her
withdrawal symptoms from her heroin addiction. (Doc. 13, at 10). Plaintiffs contend that
LCCF failed to implement a policy in order to reduce the frequent suicides in its inmates; that
the Defendants did not implement any type of procedures for addiction withdrawal and that
their access to mental health for prisoners was inadequate; that multiple female inmates
suffered from drug-related deaths and suicide in the months prior to the Decedent’s death and
that Defendants failed to inquire as to why or take action to prevent these deaths; and that the
mental health, addiction, and suicide prevention policies of Defendants were
unconstitutional. (Doc. 13, at 2-10, 13-14). Plaintiffs describe the circumstances leading to the
Decedent’s suicide, including Defendants’ awareness of the Decedent’s heavy drug use, the
Decedent’s medical history, the Decedent’s actions, and the Defendants’ premature release
of the Decedent into general population after being placed on suicide watch. (Doc. 13, at 10-
12). Plaintiffs seek compensatory damages against Defendants in addition to punitive
damages against the Medical Defendants. (Doc. 13, at 18).
On February 3, 2022, the Medical Defendants filed a motion to dismiss. (Doc. 15). On
March 10, 2022, Defendant Luzerne County filed a partial motion to dismiss.2 (Doc. 21). The
motions have been fully briefed and are ripe for disposition. (Doc. 15; Doc. 16; Doc. 19; Doc.
20; Doc. 21; Doc. 22; Doc. 23).
II. LEGAL STANDARD
Defendants seek dismissal of Plaintiffs’ complaint under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. (Doc. 15; Doc. 21). Rule 12(b)(6) authorizes a defendant to move
to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first
take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions
which are not entitled to the assumption of truth, and finally determine whether the
complaint’s factual allegations, taken as true, could plausibly satisfy the elements of the legal
claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule
12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well
as “documents incorporated into the complaint by reference, and matters of which a court
may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should
“begin by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff
must provide some factual ground for relief, which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
2 Luzerne County only challenges Plaintiffs’ ADA and RA claims. (Doc. 22, at 3).
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal
conclusions…’” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In
re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). The court also
need not assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated
Gen. Contractors of Cal. v. Cal. St. Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to
a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting
Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in
the complaint, and any reasonable inferences that can be drawn therefrom are to be construed
in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d
1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for
which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.
President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).
The plausibility determination is context-specific and does not impose a heightened pleading
requirement. Schuchardt, 839 F.3d at 347.
III. DISCUSSION
The Medical Defendants argue that Plaintiffs fail to allege that they were deliberately
indifferent to the Decedent’s serious medical needs and her vulnerability to suicide. (Doc. 16,
at 6-12). Additionally, the Medical Defendants and Defendant Luzerne County state that
Plaintiffs fail to assert a claim under the ADA or RA because the Plaintiffs seek redress for
denial of medical treatment and the Decedent was not a qualified individual with a disability.
(Doc. 16, at 12-15; Doc. 22, at 13). Further, Defendant Luzerne County states that Plaintiffs’
ADA and RA claims fail as the Decedent was not denied benefits due to her disability. (Doc.
22, at 13). In response, Plaintiffs submit that they sufficiently allege that (1) the Decedent had
a particular vulnerability to suicide, the Medical Defendants knew she was at risk, and were
reckless and deliberately indifferent to her risk; (2) that the Medical Defendants were
deliberately indifferent to the Decedent’s serious medical needs; and (3) that the Decedent
was a qualified individual with a disability and that Defendants discriminated against and
failed to accommodate her due to her drug addiction. (Doc. 19, at 15-19, 21-25; Doc. 23, at
5-13).
A. DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEED
In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme
Court held that deliberate indifference to serious medical needs of prisoners violates the
Eighth Amendment. To state a claim for deliberate indifference to a medical need, a plaintiff
must show “(1) a serious medical need, and (2) acts or omissions by prison officials that
indicate deliberate indifference to that need.” Natale v. Camden Cnty. Corr. Facility, 318
F.3d 575, 582 (3d Cir. 2003) (citations omitted). A prison employee acts with deliberate
indifference to an inmate’s serious medical need when the employee “knows of and disregards
an excessive risk to inmate health or safety; the official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must also
draw that inference.” Ponzini v. PrimeCare Med., Inc., 269 F. Supp. 3d 444, 503 (M.D. Pa. 2017)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Defendants do not argue that Decedent did not allege a serious medical need, but
move to dismiss the claims against them on the grounds that Plaintiffs fail to allege that the
Medical Defendants were deliberately indifferent to that need.3 To survive the Medical
Defendants’ motion to dismiss, Plaintiffs “must allege facts from which it can reasonably be
inferred that the defendant acted with deliberate indifference to [the Decedent’s] serious
medical needs.” See Rivera v. PA Diebert, No. 3:13-CV-01399, 2016 WL 4771104, at *5 (M.D.
Pa. Aug. 17, 2016) (citing Estelle, 429 U.S. at 106; Groman v. Township of Manalapan, 47 F.3d
628, 637 (3d Cir. 1995)), report and recommendation adopted, No. CV 3:13-1399, 2016 WL
4734683 (M.D. Pa. Sept. 12, 2016).
Viewing the factual allegations as true and in a light most favorable to the Plaintiffs,
the Court finds that Plaintiffs have alleged sufficient facts to survive the Medical Defendants’
motion to dismiss this claim. Plaintiffs allege that the Medical Defendants knew the Decedent
has mental health issues, that she had been hospitalized, that they failed to document
Decedent’s medical issues or help her, that they knew of her past hospitalizations for mental
illnesses and that they knew of her past suicidal ideations and also ignored her requests for
help. (Doc. 13, at 10-12). Plaintiffs assert that “CCS assessed [the Decedent]’s need for a
3 Plaintiffs sufficiently allege that Decedent had a serious medical need. Plaintiffs
allege that the Decedent suffered from a serious medical need in that she was experiencing
withdrawals from her opioid use disorder. (Doc. 13, at 14-15); see U.S. ex rel. Walker v. Fayetter
Cty., Pa., 599 F.2d 573, 576 (3d Cir. 1979) (prisoner alleged a deliberate indifference to serious
medical need when he informed the prison officials of his heroin addiction, did not receive a
medical examination within 48 hours, and experienced severe withdrawal symptoms).
mental health referral as ‘urgent.’ But CCS did not follow up and provide the mental health
referral or treatment.” (Doc. 13, at 11-12). Plaintiffs assert that “Defendants chose to leave
[the Decedent] suffering without appropriate medication for her entire time in LCCF. Because
appropriate medication was not provided to [the Decedent] in a timely fashion, she chose to
end her own life to stop the unbearable pain she was feeling.” (Doc. 13, at 15).
Accordingly, the Medical Defendants’ motion to dismiss Plaintiffs’ Eighth
Amendment claim regarding deliberate indifference to a serious medical need is denied.
B. DELIBERATE INDIFFERENCE TO VULNERABILITY TO SUICIDE
Deliberate indifference to risk of suicide is a more fact-specific application of the
standard discussed above. Stuart v. Pierce, 2022 WL 605821, at *6 (D. Del. 2022). Under the
Eighth Amendment, the suicide of a person in correctional custody may support recovery
under 42 U.S.C. § 1983. Diorio v. Harry, 2022 WL 3025479, at *3 (3d Cir. 2022); Colburn v.
Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) (citations omitted) (“Colburn II”). A
plaintiff must show that state officials were deliberately or recklessly indifferent to the risk of
suicide. Id.; Farmer, 511 U.S. at 828 (citations omitted) (“A prison official's ‘deliberate
indifference’ to a substantial risk of serious harm to an inmate violates the Eighth
Amendment.”). This showing entails demonstrating: (1) that the person who committed
suicide had a particular vulnerability to suicide; (2) that the custodial official knew or should
have known about; and (3) that the custodial official acted with deliberate or reckless
indifference to the person's particular vulnerability. Palakovic v. Wetzel, 854 F.3d 209, 218 (3d
Cir. 2017) (citations omitted). These three elements are conjunctive, so the absence of one is
fatal to the claim. Id.; Colburn II, 946 F.2d at 1026–27 (disposing of a deliberate indifference
claim where the custodial official did not know or have reason to know of the decedent's
particular vulnerability to suicide). As stated, “the vulnerability to suicide framework is
simply a more specific application of the general rule . . . requir[ing] that prison officials not
be deliberately indifferent to the serious medical needs of prisoners.” Palakovic, 854 F.3d at
222 (citing Estelle, 429 U.S. at 104).
1. Particular Vulnerability to Suicide
A particular vulnerability to suicide “speaks to the degree of risk inherent in the
detainee's condition.” Diorio v. Harry, 2022 WL 3025479, at *3–4 (3d Cir. 2022); quoting
Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 320 (3d Cir. 2005) (citation and internal quotation
marks omitted). In order to satisfy particular vulnerability, there must be a “strong likelihood,
rather than a mere possibility, that self-inflicted harm will occur.” Woloszyn, 396 F.3d at 320.
The risk must be so obvious that a layperson would easily recognize the necessity for
preventative action. Palakovic, 854 F.3d at 222 (quoting Colburn II, 946 F.2d at 1025).
Plaintiffs sufficiently allege that the Decedent demonstrated a particular vulnerability
to suicide. (Doc. 13, at 10-15). Plaintiffs state that the Decedent suffered from severe mental
health issues include bipolar with depression and anxiety, “had been hospitalized for her
mental illnesses at least five times in the previous six to seven years,” had contemplated
suicide less than a year prior to her incarceration, and was a victim of sexual abuse or rape.
(Doc. 13, at 11). Further, upon her admission to LCCF, the Decedent was placed on suicide
watch for three days, needed an urgent mental health referral or treatment, and was begging
for help. (Doc. 13, at 11-12). In addition to her mental health needs, the Decedent was
suffering from severe opioid withdrawals and was exhibiting signs of agitation. (Doc. 13, at
10-12). As “[a] particular individual’s vulnerability to suicide must be assessed based on the
totality of the facts presented,” the Court finds that, at this stage in the proceeding, Plaintiffs
have alleged that the Decedent demonstrated a particular vulnerability to suicide. See
Palakovic, 854 F.3d at 230; see also Nealman v. Laughlin, No. 1:15-CV-1579, 2016 WL 4539203,
at *8 (M.D. Pa. Aug. 31, 2016) (noting that while psychotic behavior by itself does not signal
a particular vulnerability to suicide, such behavior in coalescence with a history of depression,
mental health hospitalizations, and a prior suicide may constitute sufficient evidence of a
particularized vulnerability to suicide); Estate of Kempf v. Washington Cty., 2018 WL 4354547,
at *16 (W.D. Pa. Sept. 12, 2018) (finding, at the summary judgment stage, that the plaintiff
has demonstrated that the decedent presented a particular vulnerability to suicide “beyond
mere drug withdrawal” as he had just been released from the hospital with suicidal plans,
been diagnosed with depression and opiate dependence, was categorized as high suicide risk
needing to see a psychiatrist, and placed on suicide watch for two days); Mullin v. Balicki, No.
11-CV-247, 2019 WL 2315044, at *5 (D.N.J. May 31, 2019) (finding that a “documented
history of suicidal behavior [along with a history of mental illness and other suggestions]
clearly indicates that there was a ‘strong likelihood, rather than a mere possibility that self
inflicted harm would occur.’”); Stuart v. Pierce, No. 17-934, 2022 WL 605821, at *6 (D. Del.
Feb. 24, 2022) (decedent that had been placed on suicide watch and presented other
indications of suicidal tendencies demonstrated a particular vulnerability to suicide).
2. Subjective Knowledge
Next, the plaintiff must show subjective knowledge of the vulnerability or that the
official should have known that the detainee was particularly vulnerable. Colburn II, 946 F.2d
at 1024-25. To establish that an official “should have known” of a prisoner's vulnerability to
suicide, the risk must be “so obvious that a lay person would recognize the necessity for
preventative action.” Stuart v. Pierce, 2022 WL 605821, at *6 (D. Del. 2022); Colburn v. Upper
Darby Twp., 946 F.2d 1017, 1025, 1026–27 (3d Cir. 1991) (holding the vulnerability to suicide
was not obvious where the plaintiff swallowed pills but otherwise lacked a documented
history of self-harm). “Should have known,” in this context, goes beyond knowledge with
ordinary prudence, or negligence, but is less than subjective appreciation of the
risk. Colburn II, 946 F.2d at 1025.
Plaintiffs sufficiently allege that the Medical Defendants knew or should have known
of her particular vulnerability to suicide. (Doc. 13, at 10-15). Plaintiffs state facts that
demonstrate that the Medical Defendants knew of the Decedent’s vulnerability to suicide.
(Doc. 13, at 10-12). Plaintiffs allege that the Decedent indicated her extreme use and
dependency on heroin and exhibited visible agitation when she soiled herself, vomited on
herself, and was forced to keep warm by wrapping her mattress around herself. (Doc. 13, at
10-11). Further, Plaintiffs allege that the Medical Defendants knew of the Decedent’s mental
health needs, her hospitalization record, her contemplation of suicide, and her history of
abuse. (Doc. 13, at 11). Finally, Plaintiffs allege that the Medical Defendants assessed the
Decedent’s mental health needs as urgent and placed her on suicide watch for three days.
(Doc. 13, at 11-12). At this stage of the proceeding, Plaintiffs sufficiently allege that the
Medical Defendants knew or should have known that the Decedent was at risk for suicide.
(Doc. 13, at 10-12); see Palakovic, 854 F.3d at 222-23.
3. Deliberate Indifference
Once a plaintiff demonstrates that there was a particular vulnerability to suicide, which
custodial officials knew or should have known about, the plaintiff must then show that the
custodial officials acted with deliberate indifference in failing to prevent the harm that
occurred. Diorio v. Harry, 2022 WL 3025479, at *6 (3d Cir. 2022); Colburn II, 946 F.2d at 1023.
Deliberate or reckless indifference is a willingness to ignore a foreseeable danger to the
detainee's vulnerability, or conscience-shocking behavior in unhurried situations. Kedra v.
Schroeter, 876 F.3d 424, 446 (3d Cir. 2017) (quoting Morse, 132 F.3d at 910; Vargas v. City of
Phila., 783 F.3d 962, 973 (3d Cir. 2015)). Acting with deliberate indifference to a risk of suicide
“is to recklessly disregard a substantial risk of serious harm.” Palakovic, 854 F.3d at 227
(citation and internal quotation marks omitted). The necessary behavior is more than a mere
“negligent failure to recognize the high risk of suicide.” Colburn II, 946 F.2d at 1025; see
also Palakovic, 854 F.3d at 224 n.15 (declining to precisely define the terms) and Woloszyn, 396
F.3d at 320–21 (same).
Viewing the factual allegations as true and in a light most favorable to the Plaintiffs,
the Court finds that Plaintiffs have alleged sufficient facts to survive the Medical Defendants’
motion to dismiss this claim. Plaintiffs allege that the Medical Defendants knew the Decedent
has mental health issues, that she had been hospitalized, that they failed to document
Decedent’s medical issues or help her, that they knew of her past hospitalizations for mental
illnesses and that they knew of her past suicidal ideations and ignored her requests for help.
(Doc. 13, at 10-12). Plaintiffs assert that “CCS assessed [the Decedent]’s need for a mental
health referral as ‘urgent’ but CCS did not follow up and provide the mental health referral or
treatment.” (Doc. 13, at 11-12). Plaintiffs further assert that “Defendants chose to leave [the
Decedent] suffering without appropriate medication for her entire time in LCCF. Because
appropriate medication was not provided to [the Decedent] in a timely fashion, she chose to
end her own life to stop the unbearable pain she was feeling.” (Doc. 13, at 15). Plaintiffs state
that the Medical Defendants assessed the Decedent for mental health treatment, labeled her
needs urgent and removed her from suicide watch within three days of her admission without
providing follow-up mental health care before her release into general population. (Doc. 13,
at 11-12). Additionally, Plaintiffs contend that the Medical Defendants’ lack of adequate
policies and customs regarding mental health care and addiction withdrawal demonstrate a
reckless and deliberate indifference to the Decedent’s needs. (Doc. 13, at 7-10). Plaintiffs
allege that the Medical Defendants did not amend the policies when multiple female inmates
had committed suicide and had they “engage[d] in proper policies and training . . . [the
Decedent] would be alive today.” (Doc. 13, at 13-14). They further allege Plaintiffs state that
the Medical Defendants’ “policies and customs concerning inmate suicide were
unconstitutional, in that the policy and custom was that anti-suicide policies and training were
a waste of time and money.” (Doc. 13, at 9). Plaintiffs allege that the Medical Defendants’
“policies and customs concerning inmate suicide were unconstitutional, in that despite
repeated suicides and related deaths . . . such untimely deaths were a simple fact of life which
did not require investigation, assessment or prevention of future inmate deaths.” (Doc. 13, at
9-10). Plaintiffs allege that the Medical Defendants viewed “anti-suicide policies and training
[as] a waste of time and money” (Doc. 13, at 9) and that, had the Medical Defendants properly
trained its staff on the policies recommended by the suicide expert or after the 2017 suicides
and deaths of other inmates at LCCF, the Decedent would still be alive. (Doc. 13, at 14).
Viewing the factual allegations as true and in a light most favorable to the Plaintiffs,
and in consideration of the applicable standards the Court must apply when considering a
motion to dismiss, the Court finds that Plaintiffs have alleged sufficient facts to survive the
Medical Defendants’ motion to dismiss. As such, the Medical Defendants’ motion to dismiss
Plaintiffs’ Eighth Amendment claim regarding deliberate indifference to a vulnerability to
suicide is denied.
C. ADA AND RA CLAIMS
In addition to asserting claims under § 1983, Plaintiffs also bring claims under the
ADA and the RA. (Doc. 13, at 16-18). Defendants submit that Plaintiffs fail to state a claim
under the ADA or RA because the complaint “cannot be plausibly interpreted to allege that
it was because of [the Decedent’s] addiction and mental health issues [that] she was denied
essential services.” (Doc. 16, at 12; Doc. 22, at 13). Specifically, Defendants argue that
Plaintiffs’ claims regarding the medical care of the Decedent do not give rise to an ADA
violation and, due to the Decedent’s active drug use, she was not a qualified individual under
the ADA. (Doc. 16, at 12-15; Doc. 22, at 13-15). Plaintiffs respond that the Decedent was a
qualified individual with a disability under the ADA and RA and that their allegations
regarding the care she received are sufficient to assert claims under the ADA and RA. (Doc.
19, at 21-25).
Title II of the ADA prohibits discrimination by public entities, including state prisons.
Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 208-09 (1996). The ADA provides, in relevant part,
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.”4 42 U.S.C. § 12132.
Section 504 of the RA similarly states that “[n]o otherwise qualified individual with a
4 The pleading requirements of ADA and RA claims are substantially similar, but the
RA applies exclusively to entities that receive federal funding. CG v. Pennsylvania Dep't of Educ.,
734 F.3d 229, 235 & n.10 (3d Cir. 2013). “States . . . waive their Eleventh Amendment
immunity to RA claims when they accept federal funds.” Haybarger v. Lawrence Cty. Adult Prob.
& Parole, 551 F.3d 193, 199 (3d Cir. 2008). Plaintiff has alleged that Defendants are entities
that receive federal funding. (Doc. 13, at 18)
disability in the United States . . . 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.” 29 U.S.C. § 794(a). “The
‘substantive standards for determining liability [under the ADA and Rehabilitation Act] are
the same.’” Gibbs v. City of Pittsburgh, 989 F.3d 226, 229 (3d Cir. 2021) (quoting McDonald v.
Pa. Dep't of Pub. Welfare, Polk Ctr., 62 F.3d 92, 95 (3d Cir. 1995)). Thus, the Court “address[es]
both claims in the same breath.” Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ.,
587 F.3d 176, 189 (3d Cir. 2009); see also Strickland v. Delaware Cty., No. CV 21-4141, 2022
WL 1157485, at *2 (E.D. Pa. Apr. 19, 2022). Additionally, a plaintiff can advance a
discriminatory theory under the ADA or RA based on a failure to accommodate. See
McPherson v. Cty. of Dauphin, No. 1:19-CV-01865, 2020 WL 1558206, at *2 (M.D. Pa. Mar.
24, 2020) (citing Muhammad v. Court of Common Pleas, 483 Fed. Appx. 759, 763 (3d Cir. 2012)).
“[A] prison’s refusal to accommodate inmates’ disabilities ‘in such fundamentals as mobility,
hygiene, medical care, and virtually all other prison programs’ constitutes a denial of the
benefits of a prison’s services, programs, or activities under Title II.” Furgess v. Pennsylvania
Dep't of Corr., 933 F.3d 285, 290 (3d Cir. 2019).
To state a claim under either the ADA or the RA, Plaintiffs must allege that the
decedent was a qualified individual with a disability, who was precluded from participating
in a program, service, or activity, or otherwise was subject to discrimination, by reason of his
disability. Furgess v. Pennsylvania Department of Corrections, 933 F.3d 285, 288–89 (3d Cir.
2019); see also Haas v. Wyoming Valley Health Care Sys., 553 F. Supp. 2d 390, 396 (M.D. Pa.
2008) (quotations omitted); see also Pierce v. Pitkins, 520 F. App’x 64, 67 (3d Cir. 2013).
However, “the ADA does not create a federal cause of action for prisoners challenging the
medical treatment provided for their underlying disabilities.” Hubbard v. Taylor, 452 F. Supp.
2d 533, 544 (D. Del. 2006), aff'd, 538 F.3d 229 (3d Cir. 2008).
1. Medical Defendants
Although not addressed in their brief in support, the Medical Defendants argue in their
reply brief that they are not “a public entity” as defined by the ADA and RA. (Doc. 20, at 7).
Specifically, the Medical Defendants contend that the Third Circuit and other courts in this
circuit have held that a private corporation that contracts with a public entity cannot be
considered itself a public entity. (Doc. 20, at 7); see also Mathews v. Pa Dep’t of Corr., 613 F.
App’x 163, 170 (3d Cir. 2015). Plaintiffs contend that the Medical Defendants are implicated
in claims under the ADA and RA because the Medical Defendants were acting as agents of
Luzerne County, a public entity. (Doc. 19, at 20-21). Plaintiffs further submit that the Medical
Defendants “acted as an agent of public entity” and should be considered a public entity for
ADA and RA purposes. (Doc. 19, at 16); see 613 F. App’x at 170.
The Third Circuit held that “a private corporation is not a public entity merely because
it contracts with a public entity to provide some service.” Matthews, 613 F. App’x at 170.
Further, “[c]ourts reviewing whether an entity is an instrumentality of the state have
concluded the term instrumentality “refers to governmental units or units created by them.”
MGJ v. Sch. Dist. of Philadelphia, Civ.A. No. 17-318, 2017 WL 2277276, at *10 n.109 (E.D.
Pa. May 25, 2017) (citing Langston v. Milton S. Hershey Med. Ctr., No. 15-02027, 2016 WL
1404190, at *11, *31 (M.D. Pa. Apr. 11, 2016)) (quoting Edison v. Douberly, 604 F.3d 1307,
1310 (11th Cir. 2010)); see also Keifer, 2017 WL 3142279, at *3. A private entity contracting to
provide health care services to prisons in the Commonwealth of Pennsylvania is not an
instrumentality of the state. See Whitehurst v. Lackawanna Cty., No. 3:17-cv-009032020 WL
6106616, at *11 (M.D. Pa. Mar. 5, 2020); Keifer v. PrimeCare Medical, Inc., No. 16-6620, 2017
WL 3142279, at *3 (E.D. Pa. July 24, 2017). The Court finds the Third Circuit’s ruling in
Matthews and the Eastern District’s ruling in Keifer persuasive.
As the Medical Defendants are not considered a public entity for purposes of the ADA
and RA, their motion to dismiss these claims is granted.
2. Luzerne County
Luzerne County argues that Plaintiffs’ allegations concerning their ADA and RA fail
because they are seeking redress under the ADA for denial of medical treatment, because the
Decedent was not a qualified individual with a disability, and because Luzerne County did
not deny the Decedent benefits “by reason of” her disability. (Doc. 16, at 13; Doc. 22, at 11).
Plaintiffs state that the Decedent was a qualified individual with a disability because the
Medical Defendants were “required to provide appropriate health services to” the Decedent.
(Doc. 19, at 22). Finally, Plaintiffs state that Defendants failed to reasonably accommodate
the Decedent’s propensity for suicide, addiction, and withdrawals. (Doc. 23, at 5-6, 9).
At this stage in the proceeding, Plaintiffs sufficiently allege that the Decedent was a
qualified individual. The ADA and RA “contain carve-outs stating that individuals are not
deemed ‘qualified’ if they are “‘currently engaging in the illegal use of drugs’ when the
‘covered entity . . . acts on the basis of’ the plaintiff's drug addiction.” See New Directions
Treatment Servs. v. City of Reading, 490 F.3d 293, 308–09 (3d Cir. 2007) (citing 42 U.S.C. §
12210(a); 29 U.S.C. § 705(20)(C)(i)). The question of whether drug use is effectively ongoing
or a serious problem is a fact-bound inquiry best left to the district courts requiring details of
the Decedent’s treatment and drug history. See New Directions, 490 F.3d at 310. Further, the
statutory exception “was intended to ensure that employers could discharge employees who
were actually under the influence while at work and that employers could not discharge
employees who were recovering addicts but were, at the time of any personnel action, drug
free.” See New Directions, 490 F.3d at 309 (quoting Brown v. Lucky Stores, Inc., 246 F.3d 1182,
1188 (9th Cir. 2001 (quoting H.R.REP. NO. 101–596, at 62 (1990), U.S. Code Cong. &
Admin. News 1990, pp. 565, 570–571 (Conf.Rep.)). Luzerne County argues that “Plaintiffs
have not stated a claim because the [complaint] cannot be plausibly interpreted to allege that
it was because of [the Decedent’s] addiction and mental health issues that she was denied
essential services.” (Doc. 23, at 13). However, Defendants also state that the Decedent was
not a qualified individual under the ADA because of her current use of illegal drugs. (Doc.
16, at 12-15; Doc. 22, at 13-15). The determination of whether the Decedent was a qualified
induvial is best left for analysis at a later stage in the proceeding. See McKissick v. Cty. of York,
No. 1:09-CV-1840, 2011 WL 5117621, at *3 (M.D. Pa. Oct. 25, 2011). Thus, the Court
declines to find that the Decedent was not a qualified individual at this stage.
Next, the Court must determine whether Plaintiffs allege that the Decedent was
“otherwise qualified for participation in the program or activity, or for the position sought;
[and that] [s]he was excluded from the position sought, denied the benefits of, or subject to
discrimination under the program or activity solely by reason of his or her [disability].” Haas,
553 F. Supp. 2d, 396. The Third Circuit has ruled that allegations of inadequate medical
treatment are distinct from disability-based discrimination under the ADA. See, e.g., Kokinda
v. Pa. Dep't of Corr., 663 F. App'x. 156, 159 (3d Cir. 2016). However, other courts in this Circuit
have differentiated claims that allege inadequate medical care from claims that allege a denial
of access to medication. See McPherson, 2020 WL 1558206, at *4 (denial of access to
prescription medication was adequate to assert a violation under the ADA); Kloss v. Correct
Care Sols., No. 1:18-CV-0025, 2018 WL 6268270, at *4 n.4 (W.D. Pa. Oct. 31, 2018) (stating
that “[d]enying access to medications is not, however, a medical judgment or medical
negligence, and such claims can be actionable under the ADA”), report and recommendation
adopted sub nom. CV 18-25, 2018 WL 6266921 (W.D. Pa. Nov. 30, 2018); see also McKissick v.
Cty. of York, No. 1:09-CV-01840, 2010 WL 1930132, at *7 (M.D. Pa. Mar. 19, 2010) (allowing
an ADA claim to proceed where prison officials refused to provide a detainee with
methadone).
Plaintiffs contend that due to the decedent’s mental health issues and drug addiction
she was denied access to Luzerne County’s medical programs including providing her with
necessary medications and reasonable accommodations. (Doc. 13, at 16). “Modern prisons
provide inmates with many recreational ‘activities,’ medical ‘services,’ and educational and
vocational ‘programs,’ all of which at least theoretically ‘benefit’ the prisoners (and any of
which disabled prisoners could be ‘excluded from participation in’).” Yeskey, 524 U.S. at 210;
see also Furgess, 933 F.3d at 290 (“[T]he Supreme Court has stated that a prison's refusal to
accommodate inmates’ disabilities ‘in such fundamentals as mobility, hygiene, medical care,
and virtually all other prison programs’ constitutes a denial of the benefits of a prison's
services, programs, or activities....” (citing United States v. Georgia, 546 U.S. 151, 157 (2006)));
Strickland, 2022 WL 1157485, at *3. As Plaintiffs have alleged that Luzerne County deprived
the Decedent of the facility’s medical services including access to medication and failed to
accommodate her needs during her withdrawal from opioids, Plaintiffs claims are sufficient
to allege a claim under the ADA at this stage in the proceeding. See McPherson, 2020 WL
1558206, at *4; Strickland, 2022 WL 1157485, at *3.
Plaintiffs have sufficiently alleged a claim under the ADA and RA against Defendant
Luzerne County. Defendant Luzerne County’s motion to dismiss is denied, and the Medical
Defendants’ motion to dismiss is granted as to Plaintiffs’ ADA and RA claims. (Doc. 16, at
13; Doc. 22, at 11).
D. LEAVE TO AMEND
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure
to state a claim, the district court must permit a curative amendment unless an amendment
would be inequitable or futile. Grayson v. Mayview St. Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave to
amend.’” In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 564 F. App'x 672, 673 (3d Cir.
2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). The Court
declines to grant Plaintiffs leave to amend their complaint regarding their ADA and RA
claims against the Medical Defendants as they are not public entities under the ADA, and
amendment is futile.
IV. CONCLUSION
Based on the foregoing, Medical Defendants’ motion to dismiss (Doc. 15) is
GRANTED in part and DENIED in part, and Defendant Luzerne County’s motion to
dismiss is DENIED (Doc. 21). Defendants are to file answers to the amended complaint
within 21 days. An appropriate Order follows.
BY THE COURT:
Date: August 5, 2022 s/ Karoline Mehalchick
KAROLINE MEHALCHICK
Chief United States Magistrate Judge