Brown v. G. Clemens

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

BERLIN VANARDO BROWN,

Plaintiff, CIVIL ACTION NO. 3:22-cv-01067

v. (SAPORITO, J.)

CCPM G. CLEMENS, et al.,

Defendants.

MEMORANDUM

Appearing through counsel, the plaintiff, Berlin Vanardo Brown,

commenced this federal civil rights action by filing his original, fee-paid

complaint on July 7, 2022. Doc. 1. In that original complaint, Brown

named a long list of state correctional and parole officials as defendants,

seeking an award of damages for a series of events that caused him to be

incarcerated beyond his original anticipated parole date, although he was

released from custody before the expiration of his maximum sentence.

Brown’s original complaint asserted the following claims: (a) a

§ 1983 Fourteenth Amendment due process claim based on the

decertification of his original parole release date, which resulted in his

incarceration for an additional period of 14 months after that date; (b) a

§ 1983 Eighth Amendment claim based on the decertification of his

original parole release date, causing him to serve an additional 14

months in prison, which he contended was cruel and unusual

punishment; (c) a § 1983 Eighth Amendment claim based upon a strip

search conducted by prison officials on December 15, 2020; (d) a § 1983

First Amendment retaliation claim in which he contended that his parole

release date was decertified in retaliation for his filing of a PREA

complaint about that strip search; and (e) a disability discrimination

claim under Title II of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12131 , and Section 504 of the Rehabilitation Act of 1973

(“RA”), 29 U.S.C. § 794, in which he contended that his parole release

date was decertified due to “Covid disability” and “military disability.”

For relief, the plaintiff sought an award of compensatory and punitive

damages.

On September 25, 2023, we granted the defendants’ motion to

dismiss the original complaint. All of the claims asserted in the plaintiff’s

original complaint were dismissed for failure to state a claim upon which

relief could be granted, pursuant to Fed. R. Civ. P. 12(b)(6). Further

finding that any amendment would be futile, we dismissed the plaintiff’s

claims without leave to amend. Doc. 18; Doc. 19.1

The plaintiff filed a timely Rule 59(e) motion for reconsideration,

which we denied on December 13, 2023. Doc. 24.2

The plaintiff then appealed the dismissal of his original complaint.

On appeal, the plaintiff limited his arguments to his decertification

claims—his § 1983 Fourteenth Amendment due process claim concerning

parole decertification, his § 1983 Eighth Amendment cruel and unusual

punishment claim concerning parole decertification, and his ADA and RA

claims concerning parole decertification. , No. 23-

3213, 2024 WL 4601681, at *1 (3d Cir. Oct. 29, 2024) (“Brown only

appeals the claims concerning the decertification decision.”).3 With

respect to our dismissal of Brown’s § 1983 claims based on parole

1 , No. 3:22-cv-01067, 2023 WL 6216717

(M.D. Pa. Sept. 25, 2023), , No. 23-3213, 2024

WL 4601681 (3d Cir. Oct. 29, 2024).

2 , No. 3:22-cv-01067, 2023 WL 9016391

(M.D. Pa. Dec. 13, 2023).

3 In doing so, Brown waived his § 1983 Eighth Amendment claim

based on the December 2020 strip search and his § 1983 First

Amendment retaliation claim. , 1 F.3d 176, 182

(3d Cir. 1993); , 399 F.3d 197, 222 (3d Cir.

2005) (“It is well settled that an appellant’s failure to identify or argue an

issue in his opening brief constitutes waiver of that issue on appeal.”)

(citing , 1 F.3d at 182).

decertification, arising under the Fourteenth Amendment and the Eighth

Amendment, the Third Circuit affirmed our decision to dismiss these

claims with prejudice. at *2. With respect to our dismissal of

Brown’s disability discrimination claims based on parole decertification,

arising under the ADA and the RA, the Third Circuit agreed with our

dismissal of these claims as pleaded in the original complaint, but found

that dismissal leave to amend on the basis that amendment

would be futile was error. (“Although Brown’s initial complaint

failed to state claims cognizable under the ADA and RA, it is possible that

Brown could replead the specifics of his alleged disabilities to

demonstrate a plausible claim. As a result, Brown should have been

afforded the opportunity to amend his claims under the ADA and RA to

cure the pleading deficiencies noted by the District Court.”) (footnote

omitted). The Third Circuit affirmed our ruling on the Fourteenth and

Eighth Amendment claims, vacated our ruling with respect to the ADA

and RA claims, and remanded the case with instructions to dismiss the

ADA and RA claims leave to amend. at *3.

Upon receipt of the mandate, we entered an order dismissing the

plaintiff’s ADA and RA claims for failure to state a claim, but with leave

to file an amended complaint limited to claims of disability

discrimination under Title II of the ADA and Section 504 of the RA. Doc.

37.

On December 18, 2024, the plaintiff filed his amended complaint.

Doc. 38. The amended complaint names the very same long list of state

correctional and parole officials as defendants as had been named in the

original complaint.4 It alleges additional details regarding the nature of

the plaintiff’s prior military service and service-connected disability, the

nature and duration of the plaintiff’s COVID symptoms, the policies and

process involved in the state parole board’s decision to grant him early

parole, the inmate misconduct proceedings against him that later formed

the purported basis of parole decertification, the policies and process

4 The named defendants are: (1) G. Clemens, PREA coordinator at

SCI Camp Hill; (2) Parole Agent Patia, a parole agent assigned to SCI

Dallas; (3) Correctional Officer Bennings, a correctional officer at SCI

Camp Hill; (4) Counselor Rhoades, a corrections counselor at SCI Camp

Hill; (5) Superintendent L. Harry, superintendent of SCI Camp Hill;

(6) Superintendent Ransom, superintendent of SCI Dallas; (7) Tonya

Heist, grievance coordinator at SCI Camp Hill; (8) Keri Moore, chief

grievance officer for the state department of corrections; (9) Schealey

Layton, a state parole agent; (10) Parole Supervisor Bittner; (11) Deborah

Carpenter, secretary of the state parole board; and (12) John Wetzel,

secretary of corrections. All are sued in both their personal and official

capacities.

involved in decertification of his parole, and inmate grievance

proceedings in which the plaintiff complained about the parole

decertification and about the December 2020 strip search. The amended

complaint asserts the following claims: (a) in Count One, a disability

discrimination claim under Title II of the ADA and Section 504 the RA,

in which the plaintiff contends that decertification of parole because of

his COVID infection constituted a failure to provide reasonable

accommodation with respect to his COVID-related disability; (b) in Count

Two, a disability discrimination claim under Title II of the ADA and

Section 504 of the RA, in which he contends that the conduct of the

December 2020 strip search in a common area without utilizing available

privacy booths constituted a failure to provide reasonable accommodation

with respect to his military service-connected disability of PTSD

involving sexual trauma; (c) in Count Three, a § 1983 First Amendment

retaliation claim in which he contends that his parole release date was

decertified in retaliation for his complaints about the parole

decertification, which further constitutes a denial of his First

Amendment right of access to courts; and (d) in Count Four a § 1983 First

Amendment retaliation claim in which he contends that his parole

release date was decertified in retaliation for his complaints about the

December 2020 strip search, which further constitutes a denial of his

First Amendment right of access to courts. For relief, the plaintiff seeks

an award of compensatory and punitive damages.

The defendants have filed a Rule 12(b)(6) motion to dismiss the

amended complaint for failure to state a claim upon which relief can be

granted. Doc. 39. The motion is fully briefed and ripe for decision. Doc.

40; Doc. 41.

I. FACTUAL ALLEGATIONS

According to the amended complaint, Brown was incarcerated at

SCI Dallas, a state prison located in Luzerne County, Pennsylvania, in

2020. He is a United States Navy veteran whose service included time

aboard a ship during the Persian Gulf War. He was honorably discharged

in 1994 with a 70% disability for post-traumatic stress disorder involving

sexual trauma. In October 2022, after this lawsuit was filed, his military

disability rating was increased to 100%.

In 2017, Brown was convicted of possession of a controlled

substance and sentenced to serve 4½ to 9 years in state prison. He was

incarcerated at SCI Dallas, located in Luzerne County, Pennsylvania.

On July 20, 2020, Brown was granted early parole under a

recidivism risk reduction program, with an anticipated release date of

November 26, 2020.

On November 21, 2020, a few days before his anticipated parole

release date, Brown began to feel ill. On November 22, 2020, Brown

tested positive for COVID and was transferred to the gymnasium at SCI

Dallas to quarantine with about 100 other inmates who had also tested

positive for COVID. Brown subsequently developed symptoms of COVID

as well, including a fever, congestion, loss of sense of smell and taste,

night sweats, diarrhea, and chills.

On November 23 or 24, 2020, while quarantined in the gymnasium,

a parole agent, defendant Patia, asked if he had a ride home for his

anticipated release on November 26, 2020. Brown told her that he didn’t

have a ride, but instead would take a Greyhound bus home to York,

Pennsylvania. Patia told him that Greyhound would not transport

anyone who had tested positive for COVID.

On November 25, 2020, Patia returned to the gymnasium to ask

Brown what he was going to do. Brown told Patia that he couldn’t get a

ride home, but chose instead to wait until his 14-day quarantine period

expired and then take the bus home.5

After two weeks in quarantine, Brown tested negative for COVID

and was returned to his cell. But many of his symptoms continued,

including respiratory congestion, shortness of breath, loss of taste and

smell, and difficulty breathing.6 Shortly thereafter, he was informed by

an unidentified correctional officer that, as part of a statewide

departmental COVID response plan, he and all other inmates who had

tested positive for COVID would be transferred to a single institution,

SCI Camp Hill in Cumberland County, Pennsylvania.

On December 14, 2020, Patia told Brown that SCI Camp Hill would

honor his parole release date.

On December 15, 2020, Brown was transferred to SCI Camp Hill.

5 The facts recited in this paragraph were alleged in the original

complaint, but omitted from the amended complaint. Although the

original complaint has been superseded by a subsequent pleading and

rendered of no legal effect, we may take judicial notice of factual

admissions in the superseded pleading, which is part of the public record.

, 210 F.2d 437, 440 (6th Cir. 1954)

(“[P]leadings withdrawn or superseded by amended pleadings are

admissions against the pleader in the action in which they were filed.”);

, No. 19-cv-00657, 2020 WL

6866262, at *1 n.1 (M.D. Pa. Jan. 23, 2020) (taking judicial notice of

factual admissions in superseded pleadings).

6 Brown alleges that these symptoms continued even after his

arrival at Camp Hill.

Upon arrival, he was subjected to a strip search, along with seven other

inmates. Despite Brown’s complaints, the correctional officer conducting

the search, defendant Bennings, declined to permit the inmates to use

nearby “privacy booths” with curtains and dividers.7 Brown initially

refused to get naked in front of the other seven inmates, but relented

when Bennings threatened disciplinary action and possible solitary

confinement for any inmates who refused to cooperate. Brown alleges

that the strip search triggered his PTSD, causing anxiety, homicidal

thoughts, and depression. Brown further alleges that he suffered

numerous panic attacks in the following week, and his panic attacks

continued throughout the remainder of his period of incarceration.

On December 22, 2020, Brown’s parole release date was

“decertified” by a parole agent, defendant Layton, without notice or a

hearing. The initial basis given for decertification was Brown’s receipt of

two class 2 misconduct citations.8 Brown previously had been found

7 The strip search is alleged to have taken place in a “common area.”

Although omitted from the allegations of the amended complaint, the

original complaint acknowledged that the strip search was, in fact,

conducted behind a curtain, although it appears that the eight inmates

were exposed to one another during the strip search. note 5.

8 Brown alleges that his decertification for receiving two class 2

guilty of a class 2 misconduct offense on two separate occasions, in

October 2019 and July 2020.9 On December 27, 2020, Brown filed a

grievance about this decertification of his anticipated parole release date.

In response, the grievance was denied and Brown was informed that his

parole release date had been decertified due to his July 2020 misconduct

and because he had not completed the “T.C. Violence” program.10 Brown

appealed that grievance denial to the facility and statewide levels, where

the response was upheld. He alleges that decertification of his parole

release date exacerbated his PTSD.

About two months after arriving at SCI Camp Hill, Brown once

again tested positive for COVID, and he once again quarantined in a

misconducts was at odds with the departmental regulations governing

the recidivism risk reduction program. Those regulations provided that

an eligible inmate could be certified for early parole release so long as he

received no more than one class 1 misconduct or two misconducts of any

class within the preceding twelve months.

9 On one occasion, the amended complaint contains a scrivener’s

error, referring to the July 2020 misconduct as having occurred in 2019.

Elsewhere, the amended complaint refers to it having occurred in 2020,

and the original complaint contained multiple references to it as having

occurred in July 2020. note 5.

10 Brown alleges that this finding was contradicted by a “green

sheet” provided to him when initially certified for early parole release in

July 2020. The green sheet cited “participation in and completion of

institutional programs” as one criterion in support of certification.

prison gym for a two week period. After his quarantine period, Brown

tested negative for COVID, but his symptoms lingered.

On March 15, 2021, Brown filed a grievance about the strip search

that had occurred on December 15, 2020. On March 21, 2020, the facility

grievance coordinator rejected the grievance as incorrectly filed, and she

forwarded it to the prison’s PREA (Prison Rape Elimination Act)

coordinator for investigation. Brown appealed this grievance to the

facility and statewide levels for review as well, where the response was

upheld.

On May 18, 2021, the PREA investigation resulted in a

determination that his complaint about the strip search was

unsubstantiated.

On April 26, 2021, Brown again filed a grievance about

decertification of his parole release date, but the grievance was rejected

as untimely. Brown appealed to the facility and statewide levels for

review, but the rejection of this grievance was upheld.

On June 10, 2021, Brown filed a grievance alleging that his parole

release date was decertified in retaliation for his complaint about the

strip search, but the grievance was rejected as untimely. Brown appealed

to the facility and statewide levels for review, but the rejection of this

grievance was upheld.

On January 12, 2022, Brown was released on parole, 14 months

after his original anticipated parole release date.11

II. LEGAL STANDARD

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). “Under Rule 12(b)(6), a

motion to dismiss may be granted only if, accepting all well-pleaded

allegations in the complaint as true and viewing them in the light most

favorable to the plaintiff, a court finds the plaintiff’s claims lack facial

plausibility.” , 643 F.3d 77, 84 (3d Cir.

2011) (citing , 550 U.S. 544, 555–56

(2007)). In deciding the motion, the court may consider the facts alleged

on the face of the complaint, as well as “documents incorporated into the

11 Both the original complaint and the amended complaint contain

an obvious scrivener’s error, alleging that Brown was released on parole

on January 12, 2021. Based on the other facts alleged, including events

occurring within prison after January 12, 2021, as well as the

representations of counsel in both sides’ motion papers, it is clear that

Brown was actually released on parole on January 12, 2022.

complaint by reference, and matters of which a court may take judicial

notice.” , 551 U.S. 308, 322

(2007). Although the court must accept the fact allegations in the

complaint as true, it is not compelled to accept “unsupported conclusions

and unwarranted inferences, or a legal conclusion couched as a factual

allegation.” , 719 F.3d 160, 165 (3d Cir. 2013) (quoting

, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is it required

to credit factual allegations contradicted by indisputably authentic

documents on which the complaint relies or matters of public record of

which we may take judicial notice. , 741 Fed.

App’x 88, 91 n.3 (3d Cir. 2018); , 246 F.

Supp. 3d 1058, 1075 (E.D. Pa. 2017); , 568 F.

Supp. 2d 579, 588–89 (W.D. Pa. 2008).

III. DISCUSSION

The defendants have moved to dismiss the amended complaint in

its entirety. The defendants contend that Counts Two, Three, and Four

should be dismissed because these claims are merely retitled versions of

claims asserted in the original complaint, which were previously

dismissed with prejudice and either affirmed or waived on appeal, and

because they exceed the limited scope of leave to amend granted by this

court at the instruction of the court of appeals. The defendants contend

that Count One should be dismissed because the amended complaint fails

to allege sufficient facts to state a plausible disability discrimination

claim under the ADA or the RA.

A. Counts Two, Three, and Four

On appeal, the plaintiff limited his arguments to his claims

concerning parole decertification under the Fourteenth Amendment, the

Eighth Amendment, and the ADA and RA. He did not challenge our

dismissal of his Eighth Amendment strip search claim or his First

Amendment retaliation claim. The Third Circuit affirmed our dismissal

with prejudice of the plaintiff’s Fourteenth Amendment and Eighth

Amendment parole decertification claims. It agreed with our

determination that the original complaint failed to state cognizable ADA

and RA parole decertification claims, but disagreed with our finding that

any amendment would be futile, remanding these claims with

instructions to dismiss them with leave to amend.

On remand, we entered an order dismissing the plaintiff’s ADA and

RA parole decertification claims with leave to file an amended complaint.

But that leave to amend was expressly limited to repleading the

plaintiff’s claims of disability discrimination under the ADA and the RA.

The plaintiff timely filed his amended complaint, but Counts Two, Three,

and Four essentially replead the plaintiff’s previously dismissed strip

search and retaliation claims, which were abandoned by the plaintiff on

appeal.

In Counts Three and Four, the plaintiff has asserted § 1983 First

Amendment retaliation claims based on Brown’s complaints and

grievances about the parole decertification decision and about the

December 2020 strip search. The amended complaint also asserts,

without any further articulation, that this retaliatory conduct constitutes

a denial of Brown’s First Amendment right of access to the courts as

well.12 Neither Count Three nor Four asserts a disability discrimination

claim under the ADA or the RA. Thus, Counts Three and Four exceed the

expressly limited scope of leave to amend granted by this court and may

12 Notably, the amended complaint does not allege any actual

injury—i.e., that Brown lost a chance to pursue a nonfrivolous or

arguable underlying claim—nor that Brown had no other remedy for the

lost claim other than the present action, both essential elements of a

§ 1983 access-to-courts claim. , 536 F.3d

198, 205–06 (3d Cir. 2008).

be dismissed as unauthorized amendments.

, 375 Fed. App’x 254, 260 (3d Cir. 2010) (finding the district court

had discretion to dismiss an amended complaint that exceed that

permissible scope of amendment);

, 473 F.3d 506, 524 (3d Cir. 2007) (“The rejection of an

unapproved amended complaint is not an abuse of discretion.”);

, No. 3:15-CV-01461, 2017 WL 7053976, at *10 (M.D. Pa.

Nov. 30, 2017) (citing and ); , No. 3:15-

CV-00910, 2017 WL 6508716, at *5 (M.D. Pa. Oct. 30, 2017) (same);

, 335 F. Supp. 3d 402, 410 (W.D.N.Y. 2018) (“Since

this claim exceeds the limited scope of Plaintiffs’ leave to amend, the

Court would be justified in dismissing the claim on this ground.”);

, 116 F. Supp. 3d 1104, 1125 (C.D. Cal.

2015) (striking unauthorized claims where court had previously granted

only limited leave to amend); , 924 F.

Supp. 364, 367–68 (N.D.N.Y. 1996) (dismissing unauthorized claims

where court had previously granted only limited leave to amend).

Although Count Two might arguably fall within the scope of leave

to amend as articulated in our order because it asserts disability

discrimination claims under the ADA and RA, it is nonetheless barred by

the law of the case doctrine. In his prior appeal to the Third Circuit, the

plaintiff limited his arguments to his claims concerning parole

decertification, abandoning any claims concerning the strip search.

, 2024 WL 4601681, at *1 (“Brown only appeals the claims

concerning the decertification decision.”); note 3.

It is well established that, if an issue was not previously raised in

an appellant’s brief, it is deemed to be waived on appeal, and thus, an

alternative theory of recovery that was not before an appellate court

cannot be remanded to the lower court.

, 812 F.2d 81, 88 (3d Cir. 1987) (“An issue that is not addressed in

an appellant’s brief is deemed waived on appeal. Appellants’ alternative

theory of recovery was not before this court in the earlier appeal;

, it could not be remanded to the district court.”) (citation omitted);

, 372 F.3d 193, 203 (3d Cir.

2004) (“We have consistently rejected . . . attempts to litigate on remand

issues that were not raised in a party’s prior appeal and that were not

explicitly or implicitly remanded for further proceedings.”);

, 832 F.2d 798, 802 n.2 (3d Cir. 1987) (“[A] party

waives a contention that could have been but was not raised on a prior

appeal . . . .”) (internal quotation marks omitted);

, 511 F. Supp. 2d 518, 528–29 (E.D. Pa. 2007) (“Under the law of the

case doctrine, matters that could have been raised in an appeal are

waived upon remand.”) (citing , 372 F.3d at 203).

In its opinion and mandate, the Third Circuit remanded the

plaintiff’s ADA and RA disability discrimination claims concerning parole

decertification only, with instructions to permit the plaintiff to file an

amended complaint to correct the pleading deficiencies we had identified

in our prior decision dismissing the original complaint. The plaintiff did

so, and the remanded disability discrimination claims are articulated in

Count One of the amended complaint. But Count Two, newly asserting

an alternative theory of recovery for disability discrimination based on

the December 2020 strip search, was waived on appeal, and thus it is

waived here on remand as well.13

Accordingly, we will dismiss Counts Two, Three, and Four of the

13 This same rationale applies to Counts Three and Four to the

extent they assert alternative theories of recovery for his original § 1983

First Amendment retaliation claim, which was waived on appeal as well.

note 3.

amended complaint as unauthorized amendments and as having been

waived on appeal.

B. Count One

In Count One, the plaintiff has repleaded his ADA and RA disability

discrimination claims concerning parole decertification. The defendants

have moved to dismiss this repleaded count for failure to state a claim

upon which relief can be granted.

As a threshold matter, we first note that the plaintiff’s ADA and RA

claims are asserted against the several defendants in both their official

personal capacities. But there simply is no individual liability for

damages under Title II of the ADA or Section 504 of the RA, thus the

plaintiff’s personal-capacity ADA and RA disability discrimination claims

must be dismissed for failure to state a claim. , No. 19-

3078, 2023 WL 118470, at *1 n.2 (3d Cir. Jan. 6, 2023) (per curiam) (“To

the extent that [the plaintiff] brought ADA claims against the individual

DOC defendants, we note that there is no liability under that Act for

individual employees.”); , 779 Fed. App’x 944,

949 (3d Cir. 2019) (per curiam) (“[C]laims for individual damages liability

under Title II of the ADA fail for the simple reason that there is no such

liability.”); , 613 Fed. App’x 163, 169–70 (3d

Cir. 2015) (affirming dismissal of personal-capacity claims against

individual defendants because they were not public entities subject to

suit under the ADA or the RA); , 486 F.3d

791, 804 (3d Cir. 2007) (“[S]uits may be brought pursuant to Section 504

[of the RA] against recipients of federal financial assistance, but not

against individuals.”); , No. 22-cv-04625, 2023

WL 8283173, at *6 (E.D. Pa. Nov. 30, 2023) (“State officials sued in their

individual capacities cannot be sued under Title II of the ADA or the

RA.”); , No. 1:22-CV-00163, 2023 WL

6389756, at *30 (W.D. Pa. Sept. 30, 2023) (“Title II [of the ADA] does not

authorize suits against government officers in their individual

capacities.”). Thus, the plaintiff’s ADA and RA disability discrimination

claims brought against the several individual defendants in their

personal capacities will be dismissed for failure to state a claim.

We further note that the plaintiff’s ADA and RA claims seek both

compensatory punitive damages. But punitive damages are simply

not an available remedy under either Title II of the ADA or Section 504

of the RA. , 536 U.S. 181, 189–90 (2002) (holding

that punitive damages may not be awarded in suits brought under Title

II of the ADA or Section 504 of the RA); , 2023 WL 118470,

at *1 n.2 (“[P]unitive damages are not available under Title II of the

ADA.”); , 486 F.3d at 804 (“The remedies for violation of Section 504

[of the ADA] . . . include compensatory damages, injunctive relief, and

other forms of relief traditionally available in suits for breach of contract.

Punitive damages are not available.”) (citation omitted). Thus, the

plaintiff’s ADA and RA disability discrimination claims for punitive

damages will be dismissed for failure to state a claim.

What remains, then, are the plaintiff’s ADA and RA disability

discrimination claims against the several individual defendants in their

official capacities. The plaintiff’s ADA claims against the individual

defendants in their official capacities are tantamount to lodging these

claims against the state itself, since it is the real party in interest.

, No. 1:20-cv-10, 2023 WL 5416559, at *4 n.7 (W.D.

Pa. Feb. 14, 2023). Similarly, the plaintiff’s RA claims against the

individual defendants in their official capacities are tantamount to

lodging these claims against the state agencies that employ the

individual defendants—the Pennsylvania Department of Corrections and

the Pennsylvania Board of Probation and Parole—as it is the agencies

who are the public entities that received federal financial assistance, not

the individual defendants themselves.

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. Section 504 of the RA provides that “[n]o otherwise

qualified individual with a disability . . . shall, solely by reason of her or

his disability, be excluded from participation in, be denied the benefits of,

or be subject to discrimination under any program or activity receiving

Federal financial assistance.” 29 U.S.C. § 794(a).

Claims under the ADA and the RA are generally subject to the same

substantive standard.14 , 613 Fed. App’x at 166–67 (“The

14 To make out a claim under the RA, a plaintiff must establish the

same elements as under the ADA, but he or she must also prove that the

program in question received federal funding. ,

734 F.3d 229, 235 n.10 (3d Cir. 2013). Moreover, the causation elements

of the ADA and the RA differ in that the “RA allows a plaintiff to recover

if he or she were deprived of an opportunity to participate in a program

on the basis of a disability, while the ADA covers discrimination on

the basis of disability, even if there is another cause as well.” at 235–

ADA and the Rehabilitation Act have the same standard for liability and

are to be interpreted consistently.”) (citing

, 675 F.3d 266, 274 (3d Cir. 2012);

, 729 F.3d 248, 260 (3d Cir. 2013) (“The same standards govern

both the RA and the ADA claims.”);

, 475 F.3d 524, 535 n.12 (3d Cir. 2007) (“Although the language of

the ADA and Rehabilitation Act differs, the standards for determining

liability under the two statutes are identical.”). “To state a claim under

either the ADA or the RA, [a plaintiff] must allege that he is 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.” , 933 F.3d 285,

288–89 (3d Cir. 2019); , 82 F.4th 217, 225 (3d

Cir. 2023); , 827 Fed. App’x 184, 187 (3d

Cir. 2020) (citing , 475 F.3d at 553 n.32).

But the plaintiff faces an additional hurdle under the ADA and the

RA. He “must also show intentional discrimination under a deliberate

36 (emphasis added). But both statutes require plaintiffs to prove “that

they were treated differently based on the protected characteristic,

namely the existence of their disability.” at 236.

indifference standard because he seeks compensatory damages.”

, 933 F.3d at 289; , 82 F.4th at 226; ,

827 Fed. App’x at 187; , 729 F.3d at 261 (“[C]laims for

compensatory damages under § 504 of the RA and § 202 of the ADA also

require a finding of intentional discrimination.”); at 263 (“[A] showing

of deliberate indifference may satisfy a claim for compensatory damages

under § 504 of the RA and § 202 of the ADA.”). To plead deliberate

indifference, an ADA or RA claimant must allege “(1) knowledge that a

harm to a federally protected right is substantially likely, and (2) a failure

to act upon that likelihood.” , 729 F.3d at 263 (internal

quotation marks omitted); , 82 F.4th at 226; ,

827 Fed. App’x at 187.

In previously analyzing Brown’s parole decertification claims under

§ 1983, we concluded that he had failed to state a claim in the context of

the First, Eighth, and Fourteenth Amendments. , 2023 WL

6216717, at *2 (“[I]t is well settled that the United States Constitution

does not create a protected liberty interest in a pre-release expectation of

parole. . . . Absent a protected liberty interest, the complaint fails to state

a cognizable procedural due process claim.”); at *3 (“[M]ere failure to

allow a prisoner to be released on parole before his maximum sentence

expires does not state an Eighth Amendment claim.”); at *3–4

(dismissing First Amendment retaliation claim for failure to allege

causal link where the allegedly retaliatory parole decertification occurred

the alleged constitutionally protected conduct). Those rulings were

either affirmed or waived on appeal, and thus constitute law of the case.

, 2024 WL 4601681. Based on this, it is clear that the plaintiff

cannot rely on the parole decertification decision to satisfy the

requirement that he allege “knowledge that a harm to a federally

protected right is substantially likely.” , 82 F.4th at 226;

, 827 Fed. App’x at 187; , 729 F.3d at 263.

Thus, he has failed to “show intentional discrimination under a

deliberate indifference standard because he seeks compensatory

damages.” , 933 F.3d at 289.

In his brief, Brown points to no other federally protected right in

connection with this remaining claim of disability discrimination.

Instead, he argues that he is not required to allege intentional

discrimination because his repleaded ADA and RA claims are based on a

failure to provide reasonable accommodation for his alleged disabilities

rather than purposeful discrimination.15

, 483 Fed. App’x 759, 764 (3d Cir. 2012) (per

curiam) (“A failure-to-accommodate claim differs from other ADA claims

in that the ADA does not require a failure-to-accommodate plaintiff to

show that his injury was the result of purposeful discrimination.”); at

763 (“To make out such a claim, a plaintiff must show that the

accommodation he seeks is reasonable, i.e., that it is ‘necessary to avoid

15 The plaintiff’s brief asserts that, “[t]o establish an ADA [or RA]

claim[,] a plaintiff need not allege intentional discrimination, rather he

must show that ‘but for the failure to accommodate, he would not be

deprived of the benefit he seeks.’” Pl. Br. Opp’n 3, Doc. 41. In support, the

plaintiff cites to a California federal district court decision,

, 16 F. Supp. 2d 1134, 1136 (N.D.

Cal. 1998). But that quotation does not come from , and the

decision does not support the plaintiff’s statement in any manner. It is

not an incorrect statement of law, however: A Westlaw search for the

quoted language reveals an unpublished per curiam decision by the Third

Circuit that contains the quoted language,

, 483 Fed. App’x 759, 764 (3d Cir.

2012) (per curiam) (noting that, under the ADA, “the plaintiff must

demonstrate that, but for the failure to accommodate, he would not be

deprived of the benefit he seeks”), and reported decisions by this district

court, , 963 F. Supp. 2d 400, 413 (M.D. Pa.

2013) (quoting , 483 Fed. App’x at 764), and another district

court within this circuit,

, 970 F. Supp. 2d 303, 314 (D.N.J. 2013) (same), as well. Notably,

however, all three decisions involved requests for , a

remedy Brown does not seek, presumably because any such request

would be moot in light of his release from prison prior to filing this action.

discrimination on the basis of disability.’”) (citation omitted).

But binding circuit precedent is clear on the matter: An ADA or RA

claim for compensatory damages requires allegations of intentional

discrimination under a deliberate indifference standard. ,

933 F.3d at 289; , 729 F.3d at 261–62. The assertion of

a failure to accommodate claim does not relieve the plaintiff of this

requirement. , 714 F.

Supp. 3d 471, 481 (M.D. Pa. 2024) (“Plaintiff suggests that its claim need

not allege intentional discrimination, because it is based on a failure to

accommodate. But to the extent Plaintiff seeks compensatory damages

under Title II, it does need to allege intentional discrimination.”)

(citations omitted).16

Thus, the plaintiff’s ADA and RA disability discrimination claims

for compensatory damages will be dismissed for failure to state a claim.

16 A failure to accommodate may be sufficient to show a of

Title II of the ADA or Section 504 of the RA, which may in turn support

an award of injunctive relief, but the particular remedy at issue here—

an award of compensatory damages—requires a showing of intentional

discrimination under a deliberate indifference standard, no matter what

theory of liability is advanced by the plaintiff. , 729

F.3d at 262.

C. Leave to Amend

The Third Circuit has instructed that if a civil rights 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. , 293 F.3d 103, 108

(3d Cir. 2002). This instruction applies equally to plaintiffs and

those represented by counsel. , 363 F.3d 229, 235 (3d Cir.

2004). In this case, based on the facts alleged in the amended complaint,

it is clear that any further amendment would be futile with respect to the

plaintiff’s disability discrimination claims under Title II of the ADA and

Section 504 of the RA, particularly in light of the plaintiff’s failure to cure

the pleading deficiencies of his original complaint. Thus, the amended

complaint will be dismissed leave to amend.

IV. CONCLUSION

For the foregoing reasons, the defendants’ motion to dismiss the

amended complaint will be granted, and the plaintiff’s amended

complaint will be dismissed with prejudice.

An appropriate order follows.

Dated: August 21, 2025

JOSEPH F. SAPORITO, JR.

United States District Judge