Ealy v. Briggs

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

VERNON L. EALY, JR., : No. 3:24-CV-0126

Plaintiff :

: (Judge Munley)

V. :

CHRISTOPHER SCHELL, et al.,

Defendants : SCRA

□□□□□□□□□□□□□□□□□□□□□□□□□□ ED DEDEDE □□ DEDLELI DED LELELEELE SLIDELL LILELLILEDELIS @ 1: 2024s □□□□□□□

MEMORANDUM 2 □□

Pol “DEPUTY □□□□□

Plaintiff Vernon L. Ealy, Jr., initiated the above-captioned pro se action

under 42 U.S.C. § 1983," alleging constitutional violations by officials at two

county prisons. The court dismissed Ealy’s initial complaint for failure to state a

claim upon which relief may be granted but provided him leave to amend. Ealy

then filed an amended complaint limited to his claims against officials at Dauphin

County Prison regarding insufficient medical care. Upon screening under 28

U.S.C. § 1915A(a), the court will dismiss in part Ealy’s amended complaint.

BACKGROUND

In his amended complaint, Ealy asserts that he is a pretrial detainee and

that he was transferred to Dauphin County Prison (DCP) on July 11, 2023. (Doc.

21 79] 1, 10). He avers that, upon arrival at DCP, he was “sent to medical” for an

1 Section 1983 creates a private cause of action to redress constitutional wrongs committed by

state officials. The statute is not a source of substantive rights; it serves as a mechanism fo

vindicating rights otherwise protected by federal law. See Gonzaga Univ. v. Doe, 536 U.S. 273

284-85 (2002).

intake. (Id. J 10-11). There, “Intake Nurse Jane Doe” gathered his mental and

physical health information while another nurse took his vitals. (Id. 11). Ealy

recounts that he informed Intake Nurse Doe of his medications, told her about his

preexisting health conditions, and requested that he be continued on “bottom

bunk / bottom tier” status due to his chronic foot issues. (Id. Jf] 12-14).

According to Ealy, Intake Nurse Doe responded by telling him that it was required

to sign a medical release form so that his treatment could be continued from his

prior prison and that “any previous medications” or previously diagnosed health

conditions “would not apply” at DCP and Ealy would “have to start fresh.” (Id. J

15). Ealy was subsequently housed on A-unit, located in the dayroom, and

assigned to the bottom bunk. (Id. {J 16).

The following day, Ealy was moved from A-unit to a different cell block and

assigned to the top bunk by an unknown corrections officer. (Id. 17). Ealy

claims that he immediately informed the officer about his physical disabilities and

the officer told him to put in a sick-call slip to medical about the situation. (Id.)

Ealy avers that he promptly filled out a sick-call slip as directed. (Id.) However,

because he remained assigned to the top bunk, Ealy recounts that he had to

climb up and down from the top bunk without the use of a chair or ladder,

causing pain in his feet and legs. (Id. J 18).

On July 13, 2023, Ealy was moved to F-unit and assigned to the top tier of

cells (cell #21) and the top bunk in that cell. (Id. {| 19). He maintains that he

again spoke to a corrections officer about his physical limitations and the

problems he was experiencing with the top-bunk assignments. (Id.) Ealy alleges

that the corrections officer contacted medical about his claims and reported back

to Ealy that the medical department had “denied his request” (presumably to be

changed to bottom-tier and bottom-bunk status). (Id.)

Ealy alleges that he struggled for two weeks by having to climb stairs every

day and by “jumping up and down on the hard concrete floor” to reach his top

bunk. (Id. ] 20). He claims that the medical department did not answer any of

his sick-call slips, even though he filed “multiple complaints.” (Id. {fj 20, 21).

Ealy further alleges that being assigned to the top tier and top bunk resulted in

him developing a hernia. (Id. Jf] 22, 34).

In another section of his amended complaint, Ealy alleges that—sometime

in August 2023—he suffered a stroke at DCP. (ld. J{] 27, 28). He once again

claims that he “put in sick-call slips” that went unanswered for two weeks

following the alleged stroke. (Id. ] 28). He also avers that he began to have

swelling in his legs and submitted more sick-call requests that went unanswered.

(Id. 31). When the swelling intensified to the point where it began to cause

ambulation problems, Ealy was escorted to the medical department. (ld. JJ 31,

32). There he encountered Head Nurse “Jane Doe,” who was alarmed by the

swelling and consulted with PrimeCare Doctor “John Doe” about sending Ealy to

an outside hospital for treatment. (Id. 32). According to Ealy, Dr. Doe denied

this referral request. (Id.) Ealy was given two EKGs, a walking cane, and an

extra blanket for his legs and sent back to his cell. (Id.)

Ealy claims that in October 2023 he was finally transferred to an outside

hospital for treatment. (Id. 33). He maintains that if DCP medical department

personnel had treated him appropriately or more promptly, his injuries could have

been prevented. (Id.) He sues five defendants: Intake Nurse Jane Doe, Head

Nurse Jane Doe, PrimeCare Doctor John Doe, Health Service Administrator

Lensbower, and PrimeCare Medical, Inc. (PrimeCare). (Id. If] 4-8). He seeks a

declaration that his constitutional rights were violated, as well as compensatory

and punitive damages. (Id. at pp. 5-6).

ll. STANDARD OF REVIEW

Courts are statutorily obligated to review, “as soon as practicable,”

unrepresented prisoner complaints targeting governmental entities, officers, or

employees. See 28 U.S.C. § 1915A(a). One basis for dismissal at the screening

stage is if the complaint “fails to state a claim upon which relief may be

granted[.]” 28 U.S.C. § 1915A(b)(1). This language closely tracks Federal Rule

of Civil Procedure 12(b)(6). Accordingly, courts apply the same standard to

screening a pro se prisoner complaint for sufficiency under Section 1915A(b)(1)

as they utilize when resolving a motion to dismiss under Rule 12(b)(6). See

Grayson v. Mayview State Hosp., 293 F.3d 103, 109-10 & n.11 (3d Cir. 2002);

O’Brien v. U.S. Fed. Gov't, 763 F. App’x 157, 159 & n.5 (3d Cir. 2019) (per

curiam) (nonprecedential); cf. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.

2000).

In deciding a Rule 12(b)(6) motion to dismiss, courts should not inquire

“whether a plaintiff will ultimately prevail but whether the claimant is entitled to

offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236

(1974): see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The court must

accept as true the factual allegations in the complaint and draw all reasonable

inferences from them in the light most favorable to the plaintiff. See Phillips v.

Cnty. of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008). In addition to the facts

alleged on the face of the complaint, the court may also consider “exhibits

attached to the complaint, matters of public record, as well as undisputedly

authentic documents” attached to a defendant’s motion to dismiss if the plaintiff's

claims are based upon these documents. Mayer v. Belichick, 605 F.3d 223, 230

(3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., 998

F.2d 1192, 1196 (3d Cir. 1993)).

When the sufficiency of a complaint is challenged, the court must conduct ¢

three-step inquiry. See Connelly v. Lane Constr. Corp., 809 F.3d 780, 787 (3d

Cir. 2016) (internal citations and quotation marks omitted) (footnote omitted). At

step one, the court must “tak[e] note of the elements [the] plaintiff must plead to

state a claim.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)

(alterations in original)). Second, the court should distinguish well-pleaded

factual allegations—which must be taken as true—from mere legal conclusions,

which “are not entitled to the assumption of truth” and may be disregarded. ld.

(quoting Iqbal, 556 U.S. at 679). Finally, the court must review the presumed-

truthful allegations “and then determine whether they plausibly give rise to an

entitlement to relief.” Id. (quoting Iqbal, 556 U.S. at 679). Deciding plausibility is

a “context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Iqbal, 556 U.S. at 681.

Because Ealy proceeds pro se, his pleadings are to be liberally construed

and his amended complaint, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers[.]” Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (citations omitted). This is particularly true when

the pro se litigant, like Ealy, is incarcerated. See Dooley v. Wetzel, 957 F.3d

366, 374 (3d Cir. 2020) (citation omitted).

Il. DISCUSSION

Ealy’s amended complaint sounds primarily in the Fourteenth Amendment,

deliberate indifference to serious medical needs concerning the alleged lack of

appropriate medical care at DCP. It appears that Ealy is also asserting a state-

law claim of negligence with respect to DCP medical staff's failure to transfer him

to a hospital following his stroke and high blood pressure. (See Doc. 21 ¥ 40).

However, it is unclear whether Ealy intends to assert a claim of professional

negligence (/.e., medical malpractice) or simple negligence.

Ealy’s amended complaint, like his original complaint, is deficient in many

respects. The court will discuss each of his pleading deficiencies in turn.

A. “Person” for Section 1983

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege “the

violation of a right secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a person acting under

color of state law.” Rehberg v. Paulk, 566 U.S. 356, 361 (2012) (citing Imbler v.

Pachtman, 424 U.S. 409, 417 (1976) (citing 42 U.S.C. § 1983)). Only “persons”

are subject to suit under Section 1983, and entities such as prisons, agencies,

and private businesses do not qualify as “persons.” See Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 64-65, 71 (1989); Slagle v. Cnty. of Clarion, 435 F.3d

262, 264 n.3 (3d Cir. 2006) (affirming on other grounds and observing that district

court properly “dismissed Clarion County Jail as a defendant in this case,” □

quoting district court’s reasoning that “‘it is well established in the Third Circuit

that a prison is not a “person” subject to suit under federal civil rights laws’”);

Stankowski v. Farley, 487 F. Supp. 2d 543, 554 (M.D. Pa. 2007) (finding that

PrimeCare Medical is not a “person for purposes of Section 1983” and thus not

subject to liability under that statute); see also Fischer v. Cahill, 474 F.2d 9971,

992 (3d Cir. 1973) (holding that “New Jersey Prison Medical Department” was a

state agency and not a “person” under Section 1983); Ali v. Ann Klein Forensic

Cir., No. 21-CV-316, 2022 WL 138084, at *3 (D.N.J. Jan. 14, 2022) (finding that

state hospital “is not a ‘person’ within the meaning of § 1983”).

Ealy again attempts to sue PrimeCare Medical, Inc., alleging generally that

it failed to provide adequate medical care for him. PrimeCare, however, is not a

“person” capable of taking unconstitutional action and therefore Ealy has failed to

assert a viable Section 1983 claim against this business entity. Moreover, Ealy

does not allege an unconstitutional policy or custom by PrimeCare such that a

Section 1983 suit could be maintained against Dauphin County by suing

PrimeCare. See, e.g., Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-

84 (3d Cir. 2003). Ealy merely alleges that PrimeCare failed to “properly train the

prison medical staff at DCP,” which is a legal conclusion that is bereft of plausible

facts and therefore may be disregarded. See Connelly, 809 F.3d at 787. Thus,

any Section 1983 claim against PrimeCare will again be dismissed pursuant to

28 U.S.C. § 1915A(b)(1) for failure to state a claim for relief.

B. Personal Involvement

It is well established that, in Section 1983 actions, liability cannot be

“oredicated solely on the operation of respondeat superior.” Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted); see also

Ashcroft v. Iqbal, 556. U.S. 662, 676 (2009) (affirming same principle in Bivens

context). Rather, a Section 1983 plaintiff must plausibly plead facts that

demonstrate the defendant’s “personal involvement in the alleged misconduct.”

Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020). Personal involvement can

include direct wrongful conduct by a defendant, but it can also be demonstrated

through evidence of “personal direction” or “actual knowledge and

acquiescence”; however, such averments must be made with particularity. Id.

(quoting Rode, 845 F.2d at 1207). Furthermore, it is equally settled that

involvement in the post-incident grievance process alone does not give rise to

Section 1983 liability. See id. (affirming dismissal of claims against prison

officials for lack of personal involvement when officials’ “only involvement” was

“their review and denial of [plaintiff]’s grievance”); Lewis v. Wetzel, 153 F. Supp.

3d 678, 696-97 (M.D. Pa. 2015) (collecting cases); Brooks v. Beard, 167 F. App’x

923, 925 (3d Cir. 2006) (nonprecedential); Alexander v. Gennarini, 144 F. App’x

924, 925 (3d Cir. 2005) (nonprecedential) (explaining that prisoner's claims

against certain defendants were “properly dismissed” because the allegations

against them “merely assert their involvement in the post-incident grievance

process’).

Ealy sues Health Service Administrator Lensbower, but he does not allege

any personal involvement by this Defendant. Lensbower is mentioned only in

Ealy’s defendant-identification section and in the claims for relief. (See Doc. 21

17 6, 37-43). These paragraphs, however, do not allege personal involvement by

Lensbower; rather, they group most or all Defendants together and claim that

Defendants collectively provided deficient medical care. (See id. If] 37-43).

Because Lensbower did not have any personal involvement in the allegedly

unconstitutional conduct, the claims against him must be dismissed under

Section 1915A(b)(1) as well.

C. Official Capacity Claims

Ealy sues all Defendants in their individual and official capacities. (See id.

4-8). Suing Defendants in their official capacities is akin to suing Dauphin

County itself. See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55

(1978). To assert a Section 1983 claim against a county by way of an official

capacity claim against a county employee, a plaintiff must identify a policy or

custom fairly attributable to the municipality that caused him constitutional injury.

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Id. at 690-91. He must also plausibly plead facts showing that each Defendant is

a decisionmaker endowed with authority to promulgate or establish an official

custom or policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)

(explaining that a decision to adopt a particular course of action made by the

“government’s authorized decisionmakers’” represents an act of official

government policy (emphasis added)); McTernan v. City of York, 564 F.3d 636,

658 (3d Cir. 2009) (noting that plaintiff failed to “allege conduct by a municipal

decisionmaker’ in his attempt to assert municipal Section 1983 liability).

As noted above, Ealy has not identified a policy promulgated by any

Defendant, nor has he plausibly alleged that any Defendants would have

decision-making authority to establish a custom or policy. Accordingly, all official

capacity claims will again be dismissed pursuant to Section 1915A(b)(1).

D. Fourteenth Amendment Medical Indifference

The gravamen of Ealy’s amended complaint is alleged deliberate

indifference to serious medical needs. Ealy was a pretrial detainee at the time of

the events, so his claims implicate the Due Process Clause of the Fourteenth

Amendment rather than the Eighth Amendment’s cruel-and-unusual-punishment

provision. However, it does not appear that the United States Court of Appeals

for the Third Circuit has established or adhered to a different standard with

respect to Fourteenth Amendment pretrial detainee medical care claims versus

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those raised by incarcerated individuals under the Eighth Amendment. See

Thomas v. City of Harrisburg, 88 F.4th 275, 281 & n.23 (3d Cir. 2023) (applying

Eighth Amendment standard to pretrial detainee’s medical care claim); see also

Parker v. Butler Cnty., 832 F. App’x 777, 780 & n.1 (3d Cir. 2020)

(nonprecedential) (applying Eighth Amendment standard to pretrial detainee

medical care claim while acknowledging Fourteenth Amendment is source of

right); Miller v. Steele-Smith, 713 F. App’x 74, 76 n.1, 78 (3d Cir. 2017)

(nonprecedential) (same); Goode v. Giorla, 643 F. App’x 127, 129 & n.3 (3d Cir.

2016) (nonprecedential) (same); Edwards v. Northampton Cnty., 663 F. App’x

132, 136-37 (3d Cir. 2016) (nonprecedential) (citing Natale v. Camden Cnty Corr.

Facility, 318 F.3d 575, 581 (3d Cir. 2003)). Accordingly, the court will apply

existing Eighth Amendment jurisprudence to Ealy’s Fourteenth Amendment

medical indifference claims.

In the context of prison medical care, the Eighth Amendment “requires

prison officials to provide basic medical treatment” to incarcerated individuals.

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). To state an Eighth

Amendment deliberate indifference claim regarding inadequate medical care, a

plaintiff must plausibly allege that “(1) he had a serious medical need, (2) the

defendants were deliberately indifferent to that need; and (3) the deliberate

indifference caused harm to the plaintiff.” Durham v. Kelley, 82 F.4th 217, 229

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(3d Cir. 2023) (citation omitted); see also Natale v. Camden Cnty. Corr. Facility,

318 F.3d 575, 582 (3d Cir. 2003). A serious medical need is “one that has been

diagnosed by a physician as requiring treatment or one that is so obvious that a

lay person would easily recognize the necessity for a doctor’s attention.”

Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.

1987).

Deliberate indifference by prison officials may be evidenced by intentional

refusal to provide care known to be medically necessary, delayed provision of

medical treatment for non-medical reasons, denial of prescribed medical

treatment, and denial of reasonable requests for treatment resulting in

unnecessary suffering or risk of injury. See Durmer v. O’Carroll, 991 F.2d 64, 68

n.11 (3d Cir. 1993) (quoting Lanzaro, 834 F.2d at 346). Deliberate indifference

to serious medical needs is an exacting standard, requiring a showing of

“unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104

(1976) (citation omitted). Claims sounding in mere medical negligence will not

suffice. Rouse, 182 F.3d at 197.

In his amended complaint, Ealy has plainly identified serious medical

needs. But like his initial complaint, his allegations fail to plausibly allege

deliberate indifference by the named Defendants. The court will review Ealy’s

allegations against each Defendant in turn.

42

Ealy first asserts that he informed Intake Nurse Jane Doe about his

prescription medications, preexisting health conditions, and bottom-bunk needs.

He then admits that he was assigned to a bottom bunk in his first cell assignment

after this intake. Such allegations, of course, do not evince deliberate

indifference to serious medical needs.

It appears that Ealy’s principal complaint about Intake Nurse Doe is that

she failed to properly perform her duties after the intake and that collection of the

intake information and medical release forms had to be repeated two weeks later

by a nurse practitioner. (See Doc. 21 J 25). According to Ealy, the nurse

practitioner complained that she was “always having to redo the work” of Intake

Nurse Doe. (Ild.) These allegations, at most, sound in professional negligence,

i.e., medical malpractice. They simply do not rise to the level of a constitutional

infringement. Ealy, however, has not asserted a professional negligence claim

against Intake Nurse Doe for her purportedly deficient intake performance.

_ Ealy next targets Head Nurse Jane Doe. But his allegations against this

Defendant do not come close to stating a claim for negligence, let alone for

deliberate indifference. Ealy avers that, when he presented with swollen legs at

the medical department, this nurse immediately contacted a doctor and sought to

transfer Ealy to an outside hospital. When the overseeing physician declined the

transfer, she performed multiple EKGs, prescribed Ealy a walking cane, and

1A

gave him an extra blanket for his legs. These actions do not reflect deliberate

indifference or negligence; in fact, they show the opposite.

The final person Ealy sues for deficient medical care is PrimeCare Doctor

John Doe. Yet the only facts alleged involving this physician are that, when

Head Nurse Doe contacted him regarding Ealy’s swollen legs, he denied her

request to transfer Ealy to an outside hospital and instead told her to “just keep

an eye on [him].” (Id. 32). Again, such allegations do not implicate a

constitutional violation. After all, it is well settled that mere disagreement as to a

medical provider's professional judgment or treatment plan does not rise to the

level of a constitutional infringement. See Lanzaro, 834 F.2d at 346 (explaining

that “mere disagreement as to the proper medical treatment” does not “support a

claim of an eighth amendment violation”); see also Pearson v. Prison Health

Serv., 850 F.3d 526, 535 (3d Cir. 2017) (“Because ‘mere disagreement as to the

proper medical treatment’ does not ‘support a claim of an eighth amendment

violation,’ when medical care is provided, we presume that the treatment of a

prisoner is proper absent evidence that it violates professional standards of

care.” (internal citation omitted)); Brown v. Borough of Chambersburg, 903 F.2d

274, 278 (3d Cir. 1990) (“[l]t is well established that as long as a physician

exercises professional judgment his behavior will not violate a prisoner’s

constitutional rights.”).

A5

Furthermore, Ealy has not alleged that Dr. Doe’s refusal to transfer Ealy to

an outside hospital resulted in harm, the third element of a medical indifference

claim. At the point by which Dr. Doe was contacted by Head Nurse Doe, Ealy

concedes that he had already suffered the purported hernia and stroke. He does

not include any allegations that Dr. Doe’s transfer denial caused him additional

harm.

In sum, Ealy’s amended complaint does not plausibly plead a claim of

medical indifference as to any specified Defendant. Nevertheless, it does appear

that Ealy could state a Fourteenth Amendment claim against one or more

unspecified providers in the medical department at Dauphin County Prison. For

example, Ealy alleges that the “medical department” denied his reasonable

requests for bottom-tier and bottom-bunk placement for several weeks, resulting

in ahernia. (Doc. 21 Jf 17, 19, 20, 21, 34). He further alleges that after

suffering a stroke in August 2023, his multiple requests for medical treatment

2 To the extent that Ealy attempts to assert a negligence claim against Dr. Doe, (see Doc. 21 §

40), he has not done so. Initially, Ealy’s claim must be construed as a professional negligence

claim (rather than a simple negligence claim) because it concerns a question involving medica

judgment and “the conduct at issue constituted an integral part of the process of rendering

medical treatment.” See Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir.

2007) (nonprecedential) (quoting Ditch v. Waynesboro Hosp., 917 A.2d 317, 322, 323 (Pa

Super. Ct. 2007)). Yet simply alleging that Dr. Doe should have sent him to an outside hospita

for his leg swelling but did not is insufficient to state a medical malpractice claim □□□□

Pennsylvania law. Ealy has not plausibly alleged that this conduct was a departure from

generally accepted standards of medical care, proximately caused him harm, or resulted ir

actual damages. See Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003)

(citation omitted).

146

went unanswered. (Id. 28). Additionally, Ealy contends that when he was

experiencing high blood pressure and leg swelling, he put in “more sick call slips

that went unanswered.” (Id. 7 31). Ealy does not assert (likely because he does

not know) who ignored or rejected these requests for treatment, but such

clains—if alleged against an appropriate, identified defendant—could be

cognizable under Section 1983.

The court, therefore, will permit this lawsuit to proceed on an individual

capacity Fourteenth Amendment medical deliberate indifference claim against a

“John Doe” or “Jane Doe” defendant in Dauphin County Prison’s medical

department who ignored or rejected Ealy’s alleged requests for bottom-bunk

placement and for medical treatment in or around July and August 2023. Limited

discovery will be permitted to identify an appropriate medical department

defendant (or defendants) in this case. If no appropriate prison official can be

identified through discovery, the court will be constrained to dismiss this case

under Federal Rule of Civil Procedure 4(m) because no service of process can

be effectuated.

E. Leave to Amend

Generally, “plaintiffs who file complaints subject to dismissal under [the

Prison Litigation Reform Act of 1995] should receive leave to amend unless

amendment would be inequitable or futile.” Grayson, 293 F.3d at 114. Further

17

leave to amend will be denied, as Ealy has failed to plausibly plead most of his

claims even after “amendments previously allowed.” See Foman v. Davis, 371

U.S. 178, 182 (1962); Jones v. Unknown D.O.C. Bus Driver & Transp. Crew, 944

F.3d 478, 483 (3d Cir. 2019) (concluding that, where inmate plaintiff “has already

had two chances to tell his story,” providing “further leave to amend would be

futile”). This case will proceed on Ealy’s individual capacity Fourteenth

Amendment claim against the yet-to-be-identified prison medical provider (or

providers) who allegedly ignored or rejected Ealy’s requests for bottom-bunk

placement and above-referenced medical treatment.

IV. CONCLUSION

Based on the foregoing, the court will dismiss in part Ealy’s amended

complaint pursuant to 28 U.S.C. § 1915A\(b)(1) for failure to state a claim upon

which relief may be granted. Ealy’s Fourteenth Amendment medical indifference

claim may proceed, for now, against the yet-to-be-identified medical provider or

providers at Dauphin County Prison, on the condition that at least one proper

defendant is able to be determined through pre-service discovery. An

appropriate Order follows.

Date: Uf ‘BY a URT: [)

AA

JUDGESULA “oy

United/States Distri

18