# Scott, Jr. v. Pennsylvania Department of Corrections

> District Court, M.D. Pennsylvania · May 1, 2024

URL: https://www.frixlaw.com/law-library/cases/10414697

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 1, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10414697

## How later opinions describe it (automated extraction)

- holding that Title VII and ADA claims cannot be brought through a “back door to the federal courthouse” via 42 U.S.C. § 1983, and noting that Title VII and ADA claims are intended to impose liability on employers, not individuals
- noting in dicta that “there appears to be no individual liability for damages under Title I of the ADA”
- noting in dicta that “neither the ADA nor 12 U.S.C. § 1831j permit individual damages liability on the part of employees”

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
EARNEST SCOTT, JR.,

Plaintiff CIVIL ACTION NO. 3:24-CV-00335

v. (MEHALCHICK, J.)

PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, et al.

Defendants.

MEMORANDUM
Presently before the Court is pro se Plaintiff Earnest Scott, Jr.’s (“Scott”) response to
its April 2, 2024 Order to Show Cause detailing the imminent danger he faces if his complaint
is not allowed to proceed in forma pauperis. (Doc. 11.) Because Scott has pled that he is in
imminent danger of further health complications should his diabetes not be accommodated,
the Court will allow him to proceed in forma pauperis in this action. Additionally, the Court
will screen his complaint pursuant to 28 U.S.C. § 1915(e) and dismiss some of the claims he
brings under the Americans with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”).
The Court will grant Scott an opportunity to amend his complaint prior to serving the
remaining parties associated with the surviving claims.
I. BACKGROUND AND PROCEDURAL HISTORY
On February 27, 2024, the Court received and docketed a complaint from Scott, an
inmate at the State Correctional Institution in Huntingdon, Pennsylvania (“SCI-
Huntingdon”) against twenty-nine defendants, pursuant to 42 U.S.C. § 1983. (Doc. 1). Scott
filed an uncertified motion to proceed in forma pauperis on February 29, 2024. (Doc. 4).
Following an Administrative Order requiring a filing fee or a certified motion to proceed in
forma pauperis, Scott filed a certified motion to proceed in forma pauperis on March 7, 2024.
(Doc. 7).
On April 2, 2024, the Court entered an order to show cause detailing Scott’s prior
filings with the Eastern and Western Districts of Pennsylvania and the Prison Litigation

Reform Act’s (“PLRA”) “three strikes” rule. (Doc. 9). The Court found that an electronic
search of his publicly available court records on PACER demonstrated that Scott had
accumulated “three strikes” within the meaning of 28 U.S.C. § 1915(g).1 (Doc. 9).
The statutory text of the “three strikes rule” provides that:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil
action or proceeding under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the grounds that it
is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical
injury.

28 U.S.C. § 1915(g). Therefore, the Court gave Scott an opportunity to show cause as to why
he had not accumulated “three strikes” or demonstrate that he was under imminent danger
of serious physical injury. (Doc. 9).
On April 15, 2024, the Court received and docketed Scott’s response and
accompanying documents. (Doc. 11.) Scott does not challenge the three-strikes assessed

1 The three strikes include: Scott v. Robinson, No. 2:18-cv-02115-TJS, ECF No. 8 (E.D.
Pa. Jun. 20, 2018) (dismissed with prejudice “pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), for
failure to state a claim”); Scott v. Close, No. 3:21-cv-00046-SLH-KAP, ECF No. 47 (W.D. Pa
Apr. 21, 2022) (adopting a report and recommendation to dismiss the amended complaint
with prejudice as “insufficient to state a claim of deliberate indifference”); Scott v. Mooney, No.
3:21-cv-00116-SLH-KAP, ECF No. 24 (W.D. Pa. May 5, 2022) (adopting a report and
recommendation to dismiss the complaint because “Plaintiff has failed to state a claim upon
which relief can be granted”).
against him, but alleges that he is facing imminent harm of serious physical injury. (Doc. 11).
The Court will now address Scott’s response and screen his complaint.
II. MOTION TO PROCEED IN FORMA PAUPERIS
Scott alleges that he faces imminent danger of serious physical injury. (Doc. 11). “[A]
prisoner may invoke the ‘imminent danger’ exception only to seek relief from a danger which

is ‘imminent’ at the time the complaint is filed.” Abdul-Akbar v. McKelvie, 239 F.3d 307, 312
(3rd Cir. 2001). Someone whose danger has passed cannot reasonably be described to be in
imminent danger. Abdul-Akbar, 239 F.3d at 313. Furthermore, to invoke this exception to the
three-strikes rule, a prisoner must make specific and credible allegations as to the imminent
danger. See Ball v. Famiglio, 726 F.3d 448, 470 (3d Cir. 2013).
Here, Scott alleges that his Type 1 Diabetes being unaccommodated at the SCI-
Huntingdon can result in severe physical harm, including loss of vision, loss of limbs, and
diabetic ketoacidosis. (Doc. 11, at 2.) Therefore, the court will grant his motion to proceed in
forma pauperis and screen his complaint pursuant to 28 U.S.C. § 1915(e).

III. 28 U.S.C. § 1915A SCREENING
Under 28 U.S.C. § 1915A, the Court is obligated, prior to service of process, to screen
a civil complaint in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep’t of Corr., 230 Fed.
App’x 195, 197 (3d Cir. 2007) (not precedential). The Court must dismiss the complaint if it
fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1); Mitchell v.
Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010). The Court has a similar obligation with
respect to actions brought in forma pauperis. See 28 U.S.C. § 1915(e)(2). In this case, because
Scott is a prisoner suing a governmental employee and brings his suit in forma pauperis, both
provisions apply. In performing this mandatory screening function, a district court applies the
same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Mitchell, 696 F. Supp. 2d at 471; Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579,
588 (W.D. Pa. 2008).

Rule 12(b)(6) of the Federal Rules of Civil Procedure 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 amended
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
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 Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor
need the court assume that a plaintiff can prove facts that the plaintiff has not alleged.
Associated Gen. Contractors of Cal. v. California State 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 amended 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 United States, 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.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded
complaint must recite factual allegations sufficient to raise the plaintiff’s claimed right to relief
beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of

action. There is no requirement that the pleading be specific or probable. Schuchardt, 839 F.3d
at 347 (citing Phillips v. County of Allegheny, 515 F.3d at 224, 233-234 (3d Cir. 2008). Rule 8(a)
requires a “showing that ‘the pleader is entitled to relief, in order to give the defendant fair
notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551
U.S. 89, 93-94 (2007) (quoting Fed. R. Civ. P. 8(a)(2)); see also Phillips, 515 F.3d at 233 (citing

Iqbal, 550 U.S. at 545).
With the aforementioned standards in mind, a document filed pro se is “to be liberally
construed.” 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 only be dismissed for failure to state a claim if it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.
Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Further, 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 State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
IV. DISCUSSION
In his complaint, Scott raises claims under the ADA, RA, the Eighth Amendment, the
First Amendment, and the Fourteenth Amendment. The Court will focus on the ADA and
RA claims, which fail to state a claim, and provide Scott and opportunity to cure his defective
pleadings.
Scott raises an ADA claim against the Pennsylvania Department of Corrections
(“DOC”) and seventeen individuals premised on two alleged disabilities: (1) mental health
disorders and (2) Type 1 Diabetes. (Doc. 1). He also refers to a violation of the RA. (Doc. 1,
at 7-8). Under Title II of the ADA, “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. To establish a claim under Title II of the ADA, a plaintiff must allege that:
“(1) he is a qualified individual with a disability; (2) he was either excluded from participation

in or denied the benefits of some public entity's services, programs, or activities; and (3) such
exclusion, denial of benefits, or discrimination was by reason of his disability.” McPherson v.
County of Dauphin, No. 19-1865, 2020 WL 1558206, at *2 (M.D. Pa. Mar. 24, 2020). The RA
requires the same showing but applies only to “any program or activity receiving Federal
financial assistance” and requires a plaintiff to demonstrate that their disability was the sole
reason for the discrimination, not merely one reason. 29 U.S.C. § 794(a); CG v. Pa. Dep't Educ.,
734 F.3d 229, 235–36 (3d Cir. 2013).
“[D]ecisions about a prisoner’s medical treatment generally do not give rise to a claim
under the ADA.” Nunez v. Prime Care Health, Inc., No. 19-CV-859, 2019WL1400466, at*1n.3

(E.D. Pa. Mar. 27, 2019) (collecting cases). These claims would inevitably fail because the
ADA and RA “prohibit[ ] 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)
(quotation omitted). However, a plaintiff may demonstrate a cognizable claim under the
ADA and the RA if they allege a disabled detainee was denied a reasonable accommodation
that would have granted them meaningful access to prison activities and programs, including
those that implicate medical care. McDonald-Witherspoon v. City of Philadelphia, 481 F. Supp.
3d 424, 439 (E.D. Pa. 2020), aff'd, No. 21-1019, 2021 WL 6101246 (3d Cir. Dec. 21, 2021).
A. INDIVIDUAL LIABILITY
While Scott clearly brings his ADA and RA claims against the DOC, he also appears
to bring the same ADA and RA claims against seventeen individual defendants: (1) Laurel R.
Harry, (2) John Rivello, (3) John Kohler, (4) Jill Spyker, (5) W. House, (6) Christina Loy, (7)
Micheal Strait, (8) Michelle Ivicie, (9) Scott Klinefetter, (10) Sean McCorkle, (11) Jon

Altemus, (12) Erica Benning, (13) Tiffany Frackler, (14) Erin Brown, (15) Sean Bresnahan,
(16) Jessica Cousins, and (17) Robert Gimble.
The Court acknowledges that the Third Circuit has not directly answered the question
of whether there can be individual liability under Title II. See Brown v. Deparlos, 492 F. App’x
211, 215 n.2 (3d Cir. 2012) (nonprecedential) (“This Court has yet to address individual
liability under Title II of the ADA[.]”). However, nearly all of the Third Circuit’s decisions
regarding personal liability under the majority of ADA’s other titles point toward the absence
of individual liability. See Kokinda, 779 F. App’x at 942 (nonprecedential) (finding that
plaintiff’s claims “for individual damages liability under Title II of the ADA fail for the simple

reason that there is no such liability”); see also Williams v. Pa. Human Relations Comm'n, 870
F.3d 294, 299 & n.27 (3d Cir. 2017) (holding that Title VII and ADA claims cannot be brought
through a “back door to the federal courthouse” via 42 U.S.C. § 1983, and noting that Title
VII and ADA claims are intended to impose liability on employers, not individuals); Fasano
v. Fed. Reserve Bank of N.Y., 457 F.3d 274, 289 (3d Cir. 2006) (noting in dicta that “neither the
ADA nor 12 U.S.C. § 1831j permit individual damages liability on the part of employees”);
Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (noting in dicta that “there appears
to be no individual liability for damages under Title I of the ADA”); Emerson v. Thiel Coll.,
296 F.3d 184, 189 (3d Cir. 2002) (finding that individual defendants did not own, lease, or
operate Thiel College and thus were “not subject to individual liability under Title III of the
ADA”); N'Jai v. Floyd, 386 F. App'x 141, 144 (3d Cir. 2010) (nonprecedential) (noting
individual defendant could not be held liable under ADA); Wardlaw v. Phila. Street's Dep't, 378
F. App’x 222, 225 (3d Cir. 2010) (nonprecedential) (explaining that plaintiff’s ADA claims

“were not actionable against the individual defendants”). Additionally, other circuit courts of
appeals have found no individual liability under Title II. See Garcia v. S.U.N.Y. Health Scis. Ctr.
of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005
n.8 (8th Cir. 1999) (en banc).
In contrast, the Third Circuit has made a clear finding that individual defendants are
not liable under the Rehabilitation Act. Emerson, 296 F.3d at 189. The Court will follow the
Third Circuit’s trend and dismiss all ADA and RA claims against individuals with prejudice.
B. STATUS CHANGE CLAIMS
Unlike the seventeen individuals identified above, the DOC is a public entity that can
be held liable under the ADA and RA.2 See Pennsylvania Department of Corrections v. Yeskey, 524

U.S. 206, 208-13 (1998). First, Scott alleges that the DOC converted his D-code status to a C-
code status without the required inter-active process, and the conversion was in retaliation for
filing lawsuits and grievances while housed at SCI-Huntingdon. (Doc. 1, at 7-8, 10). Later on
in the complaint, Scott also alleges the conversion was discrimination based on his disability.
(Doc. 1, at 15). Therefore, the element of an ADA and RA claim at issue in the complaint is
causation.

2 Liability under the RA is also contingent on the DOC receiving Federal financial
assistance under the 29 U.S.C. § 794(a). However, because the Court finds no liability under
the RA based on other grounds, the Court will not address this requirement at this time.
While the existence of an alternative cause may not be fatal to an ADA claim, the
causation requirement of the RA requires disability to be the sole cause of discrimination. CG
v. Pennsylvania Dept. of Educ., 734 F.3d 229, 236-37 (3d Cir. 2013). Therefore, the RA claim
against the DOC based on the change in the status will be dismissed without prejudice and

the ADA claim will survive screening.
C. DIABETIC ACCOMMODATIONS CLAIMS
Turning to Scott’s alleged disability based on Type 1 Diabetes and the denied
accommodations, the Court highlights that the requested accommodations are akin to
medical treatment and not accommodations under the ADA. Scott alleges that his request to
be accommodated with three to four times a day insulin and blood sugar checks and two 500
calorie snack bags a day were denied. (Doc. 1, at 9). He also alleges that these
accommodations are necessary to avoid continued increase in his diabetic symptoms. (Doc.
1, at 9). However, “decisions about a prisoner’s medical treatment generally do not give rise
to a claim under the ADA.” Nunez, 2019 WL 1400466, at *1 n.3. Medically required diets

and routine blood sugar checks are akin to medical treatment and not evidence of
discrimination. Therefore, the ADA and RA claims raised against the DOC based on the
denial of his requested accommodations for additional snacks and routine blood sugar checks
will be dismissed without prejudice.
V. CONCLUSION
The Court will grant the motions to proceed in forma pauperis (Doc. 4; Doc. 7) and file
the complaint (Doc. 1). The court will dismiss all ADA and RA claims against individuals,
all RA claims raised in the complaint, and the ADA claim raised against the DOC for not
accommodating his diabetic diet and blood sugar testing. The Court will afford Scott the
opportunity to amend the complaint prior to service on the remaining parties. Should Scott
fail to timely amend the complaint, the case will proceed solely on the remaining claims.
An appropriate Order shall issue.

Dated: May 1, 2024 s/ Karoline Mehalchick
KAROLINE MEHALCHICK
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414697. Public record. Not legal advice.