Opinion
Civil Action 23-109J
03-22-2024
DOUGLAS E. HUMPHREY, Plaintiff, v. PA. DEPT. OF CORRECTIONS; UNIT MANAGER WITT; RNS CREVLING SUED IN THEIR OFFICIAL AND/OR INDIVIDUAL CAPACITITES, JOINTLY AND SEVERALLY, Defendants.
Mark R. Hornak Chief Judge
REPORT AND RECOMMENDATION RE: ECF NO. 33
Maureen P. Kelly Magistrate Judge
I. RECOMMENDATION
Plaintiff Douglas E. Humphrey (“Humphrey”) filed this civil rights action against the Pennsylvania Department of Corrections (“DOC”), Unit Manager Rebecca Witt (“Witt”), and Registered Nurse Supervisor Crevling (“Crevling”) (collectively, “Defendants”). Humphrey alleges that Defendants deprived him of access to a preferred prison gym, the prison library, and chapel services in violation of the United States Constitution and federal law. ECF No. 20.
Pending before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint. ECF No. 33. For the reasons that follow, it is recommended that the Motion to Dismiss be granted with leave to permit Humphrey one final opportunity to amend his Complaint to correct the identified pleading deficiencies only as to those claims dismissed without prejudice.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
Humphrey is an inmate housed in a skilled care medical unit at SCI - Laurel Highlands. ECF No. 20 at 1. Because of a mobility impairment, Humphrey has used a wheelchair for several years. Id. In 2018, Humphrey had a “fem to fem” bypass to remedy poor circulation in his legs. He asserts that regular exercise was recommended by his treating physician. Id. ¶¶ 1-2. At that time, Humphrey was housed in E Block of the facility, and he had access to both the prison gym and to exercise equipment located in his housing block. Id. He was also employed in E Block's laundry and worked for the activities department officiating board games during the COVID lockdown. Id. ¶¶ 3, 6.
On April 12, 2022, Humphrey was injured when his wheelchair flipped over while he was returning from the gym. Id. ¶ 9. He was diagnosed with a herniated disc in his neck that was surgically repaired in November 2022 with the insertion of screws and plates. Recovery required the prolonged use of a neck brace. Id. ¶ 12. After the accident but prior to surgical intervention, Humphrey continued to work in the E Block laundry until July 17, 2022, when Defendant Witt ordered that Humphrey be removed from the position. Id. ¶ 10. The following day, a physician issued an order stating that Humphrey was “medically unemployable.” Id. ¶ 11. Humphrey asserts that Witt removed him from his laundry detail before a physician designated him as medically unemployable and as a result, he lost the opportunity to continue to be paid during his medical restriction. Id. ¶¶ 101-106. Humphrey alleges that he was unlawfully terminated and denied pay because of his disability. Id. ¶¶ 99, 107.
On February 2, 2023, Humphrey spoke to Defendant Witt about the procedure to release medical records and to return to work in the laundry after completing anticipated post-operative physical therapy. Id. ¶ 14. At that time, Humphrey continued to use a wheelchair and a cervical collar. The next day, Defendant Witt moved Plaintiff from E Block to A Block. Id. ¶ 15. Both blocks are medical units, but A Block inmates need more intensive care than E Block inmates. Id. Humphrey filed a grievance related to his move, which was denied. Id. ¶¶ 16-18.
On February 15, 2023, Humphrey sent a request to Defendant Crevling, acting Chief Health Care Administrator at SCI - Laurel Highlands, for permission to go the prison gym for meetings related to the Inmate General Welfare Fund. Id. ¶¶ 8, 19. He did not receive a response.
At the end of February, Humphrey's neck brace was removed, and he began physical therapy. He was moved back to E Block on March 10, 2023, but unit officers would not permit him to travel to the prison gym. Id. ¶¶ 21-25. Humphrey again wrote to Defendant Crevling to complain that he was prevented from going to the gym for Inmate General Welfare Fund meetings. Defendant Crevling referred Humphrey to Defendant Witt, who informed Humphrey that she had “nothing to do with this.” Id. ¶¶ 25-27. Humphrey forwarded Witt's response to Crevling.
Humphrey asserts that on April 7, 2023, he was medically cleared to return to “modified work,” and to resume going to the gym. Defendant Witt tried to move Humphrey to D Block but was prevented from doing so because Humphrey uses an air mattress. Humphrey asked Witt if any jobs were available, and Witt responded that Humphrey should “write to employment for block work.” Id. ¶¶ 31-33.
At some point, Humphrey returned to the prison gym twice a week to exercise his legs on gym equipment unavailable on E Block. Id. ¶ 150. In May 2023, he resumed physical therapy sessions twice a week. Id. ¶ 151. Witt learned that Humphrey was exercising in the prison gym and told Humphrey he was not permitted in the gym. Humphrey informed Witt that he was medically cleared, and Witt responded, “we'll see about that.” Id. ¶¶ 153-56. Humphrey interpreted Witt's statement as a threat.
Soon after, “Defendant Witt and Medical” informed E Block officers that skilled care inmates were no longer permitted to leave the housing unit to use the prison library, attend chapel services, or to use the prison gym because they are not medically cleared to do so. Id. ¶ 169. Humphrey learned about these limitations on June 7, 2023, when he was told that he could no longer use the prison gym because he was housed in a skilled care medical unit. Id. ¶ 157. Humphrey asserts that Witt directed two corrections officers to issue a misconduct to Humphrey for violating the gym restriction, but both declined. Id. ¶¶ 159-63. Humphrey contends that the threat of potential discipline was retaliatory, and that Witt interfered with and delayed his recovery by foreclosing access to specific exercise equipment available in the prison gym. Id. ¶ 166. Plaintiff filed a grievance related to the limits on his access to prison facilities, which was denied. Id. ¶ 17577.
Humphrey's allegations conflict with a June 7, 2023, memorandum attached to the Amended Complaint. ECF No. 20-1 at 14. The memorandum was prepared by “J. Greenwall,” a prison activities department employee, and states that Humphrey was not to use the prison gym due to his status as a skilled care inmate. Id. Humphrey's grievance, also attached to the Amended Complaint, complains that he was informed by “Mr. Fraley” that he was no longer allowed in the gym. Id. at 19. Witt is not mentioned in the grievance where Humphrey broadly asserts that the denial of gym access is unjustified and therefore must be retaliatory. Id. In her response to the grievance (also attached to the Amended Complaint), Witt states that weight and cardio equipment is available for use in Humphrey's housing unit and that his restriction is “due partially to injuries that were sustained while you were en route to the gymnasium. Hence, the provisions that are in place are for your safety and wellbeing.” Id. The grievance denial was upheld through final review by the DOC Chief Grievance Officer. Id. at 20.
On August 24, 2023, the Superintendent at SCI - Laurel Highlands issued a memo stating that inmates housed on A and E Blocks would be permitted to access off-unit services if medical clearance was requested by the inmate and granted by medical staff. Id. ¶ 179. To maintain inmate safety, inmates who could be medically compromised by leaving the unit would need to continue to utilize the services provided on the unit. Id. Humphrey alleges that this directive did not resolve the inequality of services provided on the unit as compared to services provided to general population inmates. Id. ¶ 182. Humphrey complains that religious services, bible study programs, and educational classes are available in other areas of the prison but are not offered in the skilled nursing units, and that the in-unit law library does not include word processors, copy machines, or a copy of DOC policies. Id. ¶ 183. In addition, exercise equipment available in A or E Block is “inferior” to the equipment available to the general prison population. Humphrey asserts that such differences are discriminatory and violate the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. § 794.
In the Amended Complaint, Humphrey brings fifteen claims against Defendants arising out of his 35-day move from E Block to A Block and the limitations on his access the prison gym, library, and religious services. ECF No. 20.
• Count I: First Amendment retaliation claim against Defendant Witt in her personal capacity related to assigning Humphrey to A Block for 35 days. Id. ¶¶ 35-51.
• Count II: Eighth Amendment deliberate indifference to medical needs claim against Defendant Witt in her personal capacity resulting from inadequacy of unit gym equipment. Id. ¶¶ 52-75.
• Count III: Fourteenth Amendment - Equal Protection claim against Defendant Witt in her personal capacity. Id. ¶¶ 76-96.
• Court IV: ADA and RA claims against Defendant Witt in her official capacity. Id. ¶¶ 97109.
• Count V: Eighth Amendment deliberate indifference to medical needs against Defendant Crivling in his personal capacity. Id. ¶¶ 110-26.
• Count VI: Fourteenth Amendment - Equal Protection claim against Defendant Crevling in his personal capacity. Id. ¶¶ 127-131.
• Count VII: ADA and RA claims against Defendant Crevling in his official capacity. Id. ¶¶ 132-43.
• Count VIII: ADA and RA claims against the DOC. Id. ¶¶ 144-48.
• Count IX: First Amendment retaliation claim against Defendant Witt in her personal capacity related to prohibiting Humphrey from using the prison gym and threatening disciplinary proceedings. Id. ¶¶ 149-67.
• Count X: First Amendment retaliation claim against Defendant Witt in her personal capacity related to issuing a blanket prohibition barring skill care inmates from participating in off-unit activities without medical clearance. Id. ¶¶ 168-73.
• Count XI: ADA and RA claims against Witt in her official capacity related to the requirement that skilled care inmates obtain medical clearance to participate in off-unit activities. Id. ¶¶ 174-88.
• Count XII: Discrimination on the basis of disability against Defendant Witt in her official capacity related to barring skilled care inmates from participating in off-unit activities. Id. ¶¶ 189-91.
• Count XIII: Fourteenth Amendment - Equal Protection claim against Defendant Witt in her personal capacity for failing to permit Humphrey to participate in off-unit activities, but allowing other skilled care inmates to do so. Id. ¶¶ 192-93.
• Count XIV: Emotional Distress claim against Defendant Witt in her personal capacity related to assigning Humphrey to A Block for 35 days, threatening Humphrey with disciplinary action if he went to the prison gym, and barring him from going to the prison gym. Id. ¶¶ 194-95.
• Count XV: ADA and RA conspiracy claim against Defendant Witt and “Medical” in their official capacity for prohibiting Humphrey from using off-unit facilities. Id. ¶¶ 196-200.Humphrey seeks compensatory and punitive damages on each claim and, as to his ADA and RA claims against the DOC, injunctive relief to “make A Block, E Block and D Block all ADA and RA compliant.” Id. at 23-24.
For ease of reference, the Court identifies each claim as a separate count in accordance with Rule 10(b) of the Federal Rules of Civil Procedure (“If doing so would promote clarity, each claim founded on a separate transaction or occurrence--and each defense other than a denial--must be stated in a separate count or defense.”). Fed.R.Civ.P. 10.
Humphrey filed a Motion for a Preliminary Injunction and Temporary Restraining Order to obtain immediate relief from the restrictions to access off-unit prison services. ECF No. 4. After supplemental briefing addressing each of Humphrey's claims, the Court denied the motion because Humphrey failed to meet his burden to show that he is likely to succeed on the merits of any claim or that “he is likely to suffer immediate irreparable injury with respect to his claims regarding inadequate access to religious, law library, and gym services at SCI Laurel-Highlands, as would support the grant of the extraordinary relief he seeks.” ECF No. 27 at 15.
Defendants responded to the Amended Complaint with the pending Motion to Dismiss and brief in support. ECF Nos. 33, 34. Humphrey filed a response in opposition with exhibits related to medical care and his prison grievances. ECF No. 37.
The Motion to Dismiss is ripe for consideration.
B. STANDARD OF REVIEW
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). The complaint must “state a claim to relief that is plausible on its face” by providing facts which “permit the court to infer more than the mere possibility of misconducts,” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009), and “raise a right to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In assessing the plaintiff's claims, “the Court must accept all non-conclusory allegations in the complaint as true, and the non-moving party ‘must be given the benefit of every favorable inference.'” Mergl v. Wallace, No. 2:21-CV-1335, 2022 WL 4591394, at *3 (W.D. Pa. Sept. 30, 2022) (quoting Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) and Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). “However, the Court ‘disregard[s] threadbare recitals of the elements of a cause of action, legal conclusions, and conclusory statements.'” Mergl, 2022 WL 4591394, at *3 (quoting City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872, 878-79 (3d Cir. 2018) and James v. City of Wilkes-Barre, 700 F.3d 675, 681 (3d Cir. 2012)).
Where, as here, the plaintiff is proceeding pro se, the allegations in the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-21 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1962). “Yet ‘pro se litigants still must allege sufficient facts in their complaints to support a claim.'” Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (quoting Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45 (3d Cir. 2013)).
C. DISCUSSION
Humphrey brings this action pursuant to 42 U.S.C. § 1983. To impose liability under 42 U.S.C. § 1983, a plaintiff “must establish that [he] was deprived of a federal constitutional or statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). Defendants do not challenge their role as state actors but contend that Humphrey has not alleged facts that would establish that he was deprived of a federal constitutional or statutory right. ECF No. 34. The Court addresses each of Humphrey's claims as follows.
1. First Amendment - Retaliation (Counts I, IX, X) (Witt)
Humphrey alleges that Witt retaliated against him in violation of his First Amendment rights. “To state a First Amendment retaliation claim, a prisoner plaintiff must allege (1) that the conduct which led to the alleged retaliation was constitutionally protected; (2) that he suffered some adverse action at the hands of the prison officials; and (3) a causal link between the [protected conduct] and the adverse action [in that the] conduct was a substantial or motivating factor in the decision to take that action.” Oliver v. Roquet, 858 F.3d 180, 190 (3d Cir. 2017) (quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (quotation marks omitted); White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir. 1990)). An adverse action is one sufficient to “deter a person of ordinary firmness from exercising his First Amendment rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (internal quotations and citations omitted). The third element, causation, requires a plaintiff to establish either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendants to prove by a preponderance of the evidence that they “would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.” Carter v. McGrady, 292 F.3d 152, 158 (3d Cir. 2002) (quoting Rauser, 241 F.3d at 334).
The facts alleged by Humphrey in his Amended Complaint fail to state the required elements of a First Amendment retaliation claim. Therefore, it is recommended that the Court dismiss each of the claims at Counts I, IX, and X.
At Count I, Humphrey alleges that Witt retaliated against him by moving him from E Block to A Block for 35 days because he “spoke to Defendant Witt about releasing some medical records,” and “getting his job back in the laundry after completing his physical therapy.” ECF No. 20 ¶ 36. Defendants contend that these allegations are insufficient to support an inference that Humphrey was engaged in a constitutionally conduct activity and therefore do not state a claim for the violation of his First Amendment rights. ECF No. 34 at 5. The Court agrees. Humphrey's request for information about medical records and employment is not equivalent to a grievance that invokes his right to petition, and Humphrey does not claim that his conversation with Witt amounts to the exercise of any other constitutional right. Compare Mack v. Warden Loretto FCI, 839 F.3d 286, 300 (3d Cir. 2016) (oral grievance is constitutionally protected), with Martin v. Wetzel, No. 1:18-CV-00215, 2021 WL 2926005, at *18 (W.D. Pa. July 12, 2021) (a prisoner's request for a meeting is not constitutionally protected activity for purposes of a retaliation claim); Mullin v. Balicki, No. 11-247, 2019 WL 2315044, at *4 (D.N.J. May 31, 2019) (“while the filing of official grievances regarding medical care constitutes protected activity, Plaintiff does not cite any cases - and the Court is unaware of any - in which the mere verbal request for medical care by a prisoner constitutes protected activity for the purposes of a First Amendment retaliation claim.”).
Moreover, assuming without deciding that a 35-day move from E Block to A Block is a sufficient “adverse action” to support a First Amendment retaliation claim, Humphrey fails to allege any facts that plausibly infer that his request for information was a substantial or motivating factor in the decision to move him. Thus, the third element of a retaliation claim is also lacking. Because Humphrey fails to state a First Amendment retaliation claim arising out of his move from E Block to A Block, it is recommended that the Court dismiss Humphrey's retaliation claim at Count I of the Amended Complaint.
At Count IX, Humphrey alleges that Defendant Witt retaliated against him by denying him access to the prison gym as of June 7, 2023. ECF No. 20 ¶ 154. At that time, Humphrey was participating in physical therapy twice a week, and he sought to use the prison gym four days a week to access equipment not available on E Block. Id. ¶¶ 151, 154. Humphrey asserts that Witt directed corrections officers to issue a misconduct because Humphrey went to the gym, but both officers declined. As alleged in the Amended Complaint, Humphrey did not receive a misconduct. At Count X, Humphrey alleges that Witt again retaliated against him by issuing a directive to Block Officers that skilled care inmates were not allowed off the housing unit for services or gym sessions because they are not medically cleared to do so. Id. ¶¶ 169.
Defendants argue that Counts IX and X of the Amended Complaint fail to state a retaliation claim because Humphrey does not allege that he engaged in “constitutionally protected conduct.” ECF No. 34 at 5. Defendants further assert that alleged threats to issue a misconduct do not constitute “adverse action” to state a claim under the First Amendment. Id. Humphrey responds that Witt's directive in June 2023 barring him from the prison gym and her threats to issue a misconduct resulted from an unspecified exercise of his right to free speech. ECF No. 37 at 17-20.
The Court agrees that Humphrey fails to allege facts sufficient to state a plausible claim for relief. Humphrey's grievance against Witt in February 2023 related to changing his cell block and contained an assertion that she made the change because “she is being manipulated and bamboozled by one of the laundry workers on E Block.” ECF No. 20-1 at 2. The Amended Complaint does not set forth any facts showing sufficient temporal proximity or any other causal connection between his February grievance and the memorandum drafted by an activities department employee four months later that restricted his use of prison gym. The exhibits attached to the Amended Complaint show that the restriction was ordered because Humphrey sustained a severe spinal injury when his wheelchair flipped over while traveling to the prison gym. Thus, Humphrey fails to allege facts that plausibly infer that his constitutionally protected conduct was a substantial factor in the decision to bar him from other areas of the facility.
In addition, Humphrey fails to state a claim for retaliation related to Witt's alleged threat to issue a misconduct if Humphrey violated the gym restriction. See Naranjo v. Walter, No. 223435, 2023 WL 5928506, at *3 (3d Cir. Sept. 12, 2023) (non-precedential) (while the Third Circuit has not decided in a precedential opinion whether a threat alone can be a sufficiently adverse action to support a retaliation claim, the issue need not be addressed where the threat “closely resembles a warning” not to violate prison rules. In that event, a “vague threat is insufficient evidence from which a jury could conclude that [the plaintiff] suffered from an adverse action.”). The Amended Complaint makes clear that Humphrey was not issued a misconduct and that any threat was akin to a warning that discipline could follow a violation of a clear instruction to not use the prison gym. Thus, Humphrey fails to plead facts supporting a required element of any First Amendment retaliation claim and his claims at Counts I, IX and X should be dismissed without prejudice.
2. Eighth Amendment - Deliberate Indifference to Medical Needs (Counts II & V) (Witt & Crevling)
In Count II, Humphrey alleges that after his “fem to fem” bypass surgery, “the Doctor's office” recommended that he exercise regularly, and that he “attend physical therapy for an extended period of time.” ECF No. 20 at 9. He contends that Witt's decision to move him to A Block interfered with the recommendation that he exercise because A Block gym equipment was available only 2 hours per day, 5 days per week. Id. at 7. Humphrey further alleges Witt knew he used exercise equipment more often on E Block, that he needed exercise to avoid serious injury, and that the inability to exercise more regularly resulted in cramps and muscle spasms. Id. at 8. Thus, Humphrey alleges Witt was deliberately indifferent to his medical needs.
At Count V, a nearly identical claim is asserted against Defendant Crevling based on his status as the Chief Health Care Administrator, and Crevling's failure to return Humphrey to E Block. Humphrey asserts that Crevling was deliberately indifferent to his serious health-related needs that required him to be returned to E Block. Id. at 12-13.
Defendants seek the dismissal of both claims because Humphrey fails to allege facts sufficient to demonstrate that his Eighth Amendment rights were violated. ECF No. 34 at 6-7. Defendants rely on the Opinion resolving Humphrey's Motion for Temporary Restraining Order and Chief District Judge Hornak's conclusion that Humphrey failed to demonstrate “that he [was] prescribed a treatment plan as a matter of medical care via gym usage.” ECF No. 27 at 11 (citing Trainor v. Wellpath, No. 1:20-cv-225, 2023 WL 2603196 (W.D. Pa. Mar. 22, 2023)). Humphrey responds that Witt knew he had been encouraged by an outside physician to remain active and to exercise.ECF No. 37 at 4, 9-11. Thus, the restrictions allegedly imposed by Witt on his access to preferred exercise equipment contradicted a doctor's recommendations and have resulted in the exacerbation of his pain, numbness, and discomfort. Id.
Count V is directed at Crevling, yet Humphrey's response to the Motion to Dismiss discusses only Witt's alleged misconduct. ECF No. 37 at 9-11. Thus, Humphrey appears to have abandoned his deliberate indifference claim against Crevling. See Dreibelbis v. Scholton, 274 Fed.Appx. 183, 185 (3d Cir. 2008) (affirming district court's finding of waiver as to an argument where plaintiff had opportunity to address it in his opposition brief but failed to do so).
The Court agrees that Humphrey's allegations fall far short of the required elements of an Eighth Amendment claim for deliberate indifference to a serious medical need.
To establish a violation of his constitutional right to adequate medical care, a plaintiff must allege facts that demonstrate: (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need exists when a “failure to treat can be expected to lead to substantial and unnecessary suffering.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). Deliberate indifference requires allegations capable of “showing that defendant acted with a ‘sufficiently culpable state of mind.'” Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). “[T]he 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 the inference.” Wilson v. Burks, 423 F. App'x. 169, 173 (3d Cir. 2011) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “Generally, deliberate indifference occurs when prison authorities deny reasonable requests for medical treatment, thus exposing the inmate ‘to undue suffering or the threat of tangible residual injury' or, knowing of the need for medical care, intentionally refuse to provide it.” Washington v. Rozich, 734 Fed.Appx. 798, 800 (3d Cir. 2018) (citation omitted).
When a prisoner has received some amount of medical treatment, it is difficult to establish deliberate indifference, because prison officials are afforded considerable latitude in the diagnosis and treatment of prisoners. Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993). Allegations of mere negligent treatment or even medical malpractice do not trigger the protections of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). The Third Circuit has explained:
“Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state tort law.” United States ex rel. Walker v. Fayette County, 599 F.2d 573, 575 n.2 (3d Cir. 1979) (internal quotations and citation omitted). Deference is given to prison medical authorities in the diagnosis and treatment of patients, and courts “disavow any attempt to second-guess the propriety or adequacy of a particular course of treatment ... [which] remains a question of sound professional judgment.” Inmates
of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)) (alterations in original).Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017).
Here, the allegations in the Amended Complaint fail to plausibly establish that Witt or Crevling were aware of and disregarded Humphrey's need for medical treatment. Humphrey alleges he was under the consistent care of outside medical professionals and had a treatment plan in place that included recovery time and long-term physical therapy. Even accepting as true Humphrey's allegations that a physician recommended that he stay active and exercise, nowhere does he allege that a medical professional identified the use of specific gym equipment (or any gym equipment) as the only means to accomplish that goal or, critically, that either Witt or Crevling was aware that Humphrey's prescribed treatment plan required access to his preferred exercise equipment. Thus, the facts do not support an inference that either Witt or Crevling interfered with prescribed or necessary medical treatment through the facility safety requirement that he use the exercise equipment located on A or E Block. Because Humphrey fails to allege facts sufficient to establish that Defendants were deliberately indifferent to his serious medical needs, it is recommended that the Court dismiss without prejudice Humphrey's Eighth Amendment claims at Counts II and V.
3. Fourteenth Amendment - Equal Protection (Counts III, VI, XIII) (Witt & Crevling)
At Count III, Humphrey asserts that Witt violated his Fourteenth Amendment right to equal protection by singling him out and imposing a 35-day move from E Block to A Block without a rational or legitimate basis. ECF No. 20 at 9-10. Humphrey also asserts an equal protection claim against Crevling at Count VI, based on his role as an administrator “ultimately responsible” for medical housing assignments. Id. at 13. At Count XIII, Humphrey alleges an equal protection claim against Witt for allowing some skilled nursing inmates to travel to the education building, but not him. Id. at 21.
Under the equal protection clause of the Fourteenth Amendment, “persons who are similarly situated should be treated in the same manner.” Tillman v. Lebanon Cnty. Corr. Facility, 221 F.3d 410, 423 (3d Cir. 2000) (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)). A plaintiff may bring an equal protection claim under two legal theories: (1) by alleging a defendant treated him differently from other similarly situated individuals because of his membership in an identifiable or protected class, such as race, religion, sex, or national origin, Mack v. Warden Loretto FCI, 839 F.3d 286, 305, n.112 (3d Cir. 2016); or (2) in a “class of one,” by alleging a defendant treated him differently from others similarly situated for arbitrary or irrational reasons, Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 243 (3d Cir. 2008)).
Humphrey is proceeding on a “class-of-one” theory as to each claim. ECF No. 20 ¶¶ 77, 128, 193. To make out an equal protection claim as a “class of one,” he must show that he was “intentionally treated differently from others similarly situated and that there [was] no rational basis for the difference in treatment.” Vill. of Willowbrook, 528 U.S. at 564. Defendants move to dismiss each of Humphrey's equal protection claims because he fails to allege facts supporting a plausible inference that he was treated differently than other similarly situated injured and wheelchair-bound inmates or that a rational basis was lacking for the limitations placed on him. ECF No. 34 at 7-9.
To be “similarly situated,” parties must be “alike in all relevant aspects.” Startzell v. City of Philadelphia, Pennsylvania, 533 F.3d 183, 203 (3d Cir. 2008) (internal quotation marks omitted). At the motion to dismiss stage, Humphrey must allege facts sufficient to establish the existence of similarly situated parties. Perano v. Twp. of Tilden, 423 Fed.Appx. 234, 238 (3d Cir. 2011). Here, as argued by Defendants, Humphrey fails to allege that when he was moved from E Block to A Block, there were other skilled nursing inmates who were recovering from a significant injury and confined to a wheelchair but allowed to remain on E Block. ECF No. 34 at 9. Humphrey responds with the conclusory statement that he was similarly situated to other inmates on E Block because there were some inmates who needed more care, and some who needed less. ECF No. 37 at 6. Humphrey further argues that a paraplegic inmate was moved from A Block to E Block, and then moved back to A Block because of the inmate's need to use a shower bed. Id. This allegation clarifies that inmates with serious mobility issues who, like Humphrey, could not safely be accommodated on E Block were moved to A Block. Thus, accepting the facts alleged in the Amended Complaint as true, Humphrey has not alleged facts that plausibly infer that he was treated differently than similarly situated inmates.
Humphrey's allegations also establish that any alleged difference in treatment is supported by a rational basis. The bar is not high. “[I]f there is any reasonably conceivable state of facts that could provide a rational basis for the classification,” the policy survives. Stradford v. Sec'y Pennsylvania Dep't of Corr., 53 F.4th 67, 77 (3d Cir. 2022) (quoting F.C.C. v. Beach Commc'ns, Inc., 508 U.S. 307, 313 (1993)). Humphrey alleges that he suffered a serious accident due to his mobility impairment and then presented additional risks attendant with his use of a cervical collar during treatment and recovery. These facts present a nonarbitrary rational basis for DOC officials to temporarily move Humphrey to A Block where more care was available, and to temporarily restrict his off-unit access to services. Because Humphrey cannot sustain an equal protection claim under the facts alleged in the Amended Complaint, it is recommended that the Court dismiss without prejudice Humphrey's equal protection claims at Counts III, VI, and XIII.
4. ADA and RA Claims (Counts IV, VII, VIII, XI, XII) (Witt, Crevling, and DOC)
Humphrey alleges three claims arising under the ADA and RA against Witt and Crevling in their personal and official capacities, a claim against the DOC related to the alleged denial of services and activities because of a disability, and a stand-alone claim against Witt in her official capacity for discrimination based on his disability.
Count IV asserts that Witt discriminated against Humphrey when she directed that he be removed from his employment in the E Block laundry one day before a physician's directive. He claims this resulted in the loss of pay until he was cleared to begin working again. ECF No. 20 at 11. Count VII asserts ADA and RA claims against Crevling arising out of the reduced number of hours Humphrey could access exercise equipment on A Block (10 hours weekly versus 12 hours daily on E Block) and his inability to attend meetings in the gym. Id. at 14-15. Count VIII alleges ADA and RA claims against the DOC based on differences in exercise equipment and access on A Block. Id. at 15. Count XI asserts ADA and RA claims against Witt related to the short-term restriction to off-unit services for the period June 12, 2023, through September 8, 2023, the date Humphrey was medically cleared to leave his unit. ECF No. 19-1 ¶ 19. Count XII asserts a duplicative claim for discrimination against Witt for restricting Humphrey from off-unit gym, library, and chapel, and for failing to post the restrictions on Humphrey's housing block. Id. at 20-21.
The ADA “require[s] public entities[ ] ... to provide, in all of their programs, services, and activities, a reasonable accommodation to individuals with disabilities.” Furgess v. Pennsylvania Dep't of Corr., 933 F.3d 285, 287 (3d Cir. 2019). “State prisons fall squarely within the statutory definition of ‘public entity,'” and therefore must provide “services, programs, or activities” in accordance with the ADA's requirements. Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Modern prisons provide “recreational ‘activities,' medical ‘services,' and educational and vocational ‘programs.'” Id. The phrase “service, program, or activity” under Title II of the ADA, like “program or activity” under Section 504 of the RA, is “extremely broad in scope and includes anything a public entity does.” Disability Rts. New Jersey, Inc. v. Comm'r, New Jersey Dep't of Human Servs., 796 F.3d 293, 301 (3d Cir. 2015). Thus, in this case, housing, exercise equipment and access, libraries, and religious services all qualify as services, programs, or activities, under the broad statutory definition. 42 U.S.C. § 12132. Furgess, 933 F.3d at 291 (holding that prison showers fall within scope of definition of program). As to each service or program,
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.” Thus, to state a claim under Title II of the ADA, plaintiffs must demonstrate that: (1) they are qualified individuals; (2) with a disability; and (3) they were excluded from participation in or denied the benefits of the services, programs, or activities of a public entity, or were subjected to discrimination by any such entity; (4) by reason of their disability. Where compensatory damages are sought, a plaintiff must also show intentional discrimination under a deliberate indifference standard. The elements of a claim under the RA are the same, except that the plaintiff must also show that the program in question received federal dollars.Durham v. Kelley, 82 F.4th 217, 225 (3d Cir. 2023). To show intentional discrimination under the deliberate indifference standard, “[a] claimant must allege ‘(1) knowledge that a federally protected right is substantially likely to be violated ... and (2) failure to act despite that knowledge.'” Id. at 226.
Defendants contend that Humphrey fails to state a claim under the ADA or RA because he had access to gym equipment on both A Block and E Block and his claim related to the cessation of his work assignment is “speculative at best.” ECF No. 34 at 10-11. Defendants also argue that the ADA “does not cover a prisoner's claim that he suffered workplace discrimination on the basis of a disability.” Id. (citing Neisler v. Tuckwell, 807 F.3d 225, 227 (7th Cir. 2015)(distinguishing between a vocational program and a routine prison job). Humphrey responds that his employment claim is properly asserted under 42 U.S.C. § 12112(a) and that the exercise equipment offered in on A Block and E Block is not equal to that offered in the prison gym. Thus, he asserts that he has established a violation of both the ADA and RA. ECF No. 37 at 7-8, 14.
Upon review, it is recommended that the Court dismiss with prejudice Humphrey's ADA and RA claims against Witt and Crevling in their individual capacities. Most courts “have held that Title II does not authorize suits against government officers in their individual capacities.” Miller v. Little, No. 22-4264, 2023 WL 3674336, at *8 (E.D. Pa. May 25, 2023) (citing Bowens v. Wetzel, 674 Fed.Appx. 133, 136 (3d Cir. 2017) (per curiam) (“[T]he District Court could have properly followed the holdings of those circuits which have concluded that there is no individual damages liability under Title II of the ADA, which provides an additional basis to affirm the dismissal of this claim.”)); see also Kokinda v. Pennsylvania Dep't of Corr., 779 Fed.Appx. 938, 942 (3d Cir. 2019) (per curiam) (“Kokinda's claims for individual damages liability under Title II of the ADA fail for the simple reason that there is no such liability.”).
Humphrey's RA claims against Witt and Crevling in their individual capacities also should be dismissed with prejudice because the Third Circuit has held that employees of federally funded entities are not subject to individual liability under the RA. Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002) (“Because the individual defendants do not receive federal aid, Emerson does not state a claim against them under the Rehabilitation Act.”).
Humphrey's official capacity claims against Witt and Crevling related to exercise equipment access (Counts IV and VII) should be dismissed with prejudice because they are duplicative of his claims against their employer, co-Defendant DOC (Count VIII).
[C]ourts have held that, “[g]enerally, the proper defendant for a Title II ADA claim is the public entity or an individual who controls or directs the functioning of the public entity....” Miller, 2023 WL 3674336, at *8. At the same time, courts have expressed the view that the preferred defendant is the public entity. See id. (holding that “[b]ecause ADA claims asserted against individual prison officials named in their official capacities are really claims against the DOC, all ADA claims asserted against the individually-named DOC Defendants [should be dismissed] as duplicative of the claim against the DOC”) (citing Emerson v. Thiel College, 296 F.3d 184, 189 (3d Cir. 2002)); Robinson v. Pennsylvania Dep't of Corr., 2022 WL 970760, at *4 (E.D. Pa. Mar. 31, 2022) (dismissing official capacity ADA claims against individual defendants as “duplicative” to claims against the DOC); Dews v. Link, 2021 WL 2223795, at *3 (E.D. Pa. June 2, 2021) (“[W]here the plaintiff simultaneously sues the state entity that employs the individual defendants, the claims against the individuals may be dismissed as duplicative of the claims against the state.”). Thus, the Court construes the Complaint as asserting a Title II violation against the DOC.Graziano v. Pennsylvania Dep't of Corr., No. 1:22-cv-00163, 2023 WL 6389756, at *30 (W.D. Pa. Sept. 30, 2023).
And, as explained in this Report, Humphrey fails to state a claim for the violation of any constitutional right. Thus, sovereign immunity bars his ADA claims for compensatory damages. Lewald v. Pennsylvania Dep't of Corr., No. 22-CV-04625, 2023 WL 8283173, at *6 (E.D. Pa. Nov. 30, 2023), citing Durham v. Kelly, 82 F.4th at 228-29 (“. ADA lawsuits against state entities are barred by sovereign immunity, except where a plaintiff successfully alleges constitutional violations.”). As a result, Humphrey's ADA claims for compensatory damages should be dismissed.
Humphrey's claims for compensatory damages under the RA against the DOC are not barred by sovereign immunity given Congress's “unambiguous waiver of the State's Eleventh Amendment immunity.” Id. (quoting Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 172 (3d Cir. 2002)). But to sustain his claims under the RA, Humphrey must allege facts to show that “solely by reason of ... his disability,” he was excluded from the participation in or denied the benefits of or subjected to discrimination as related to exercise programs offered at SCI - Laurel Highlands. 29 U.S.C. § 794(a).
Thus, left for resolution are: (1) Humphrey's ADA and RA claims against the DOC related to alleged disparities in exercise equipment: (2) his ADA and RA claims against Witt and Crevling in their official capacities related to the alleged denial of access to library and religious services; and (3) his ADA and RA claim against Witt in her official capacity related to employment.
Detailed review of the pleadings and exhibits attached thereto reveals that Humphrey cannot establish that any denial of a service or benefit was because of his disability or solely by reason of his disability as required by the ADA and RA. Instead, as reflected in the Amended Complaint, he was excluded from the prison gym and off-unit services for safety reasons after he suffered serious injury when his wheelchair flipped over, while he awaited extensive surgical intervention, and then during his recovery, when he required long-term cervical collar use while he remained confined to a wheelchair. After the cervical collar was removed, he returned to E Block and began physical therapy. The allegations of the Amended Complaint make clear that throughout this time, “Humphrey was not denied a service because he had substitute gym access in the form of in-Unit exercise equipment.” ECF No. 27 at 12; see also, Amended Complaint, ECF No. 20 ¶¶ 138, 139,145, and exhibits to Amended Complaint, ECF No. 20-1 at 3 (“[e]xercise equipment is available to you on A Block”); ECF No. 20-1 at 15 (“ as you are fully aware, there is weight and cardio equipment for use on all of the medical units. I know that you are aware of this, as I have personally observed you using the equipment.”). Thus, DOC provided Humphrey reasonable accommodation for exercise activities in each assigned housing unit, as required by both the ADA and RA.
DOC has provided Humphrey access to library and religious services since September 2023. Therefore, Humphrey's claim for injunctive relief is moot and should be dismissed with prejudice. ECF No. 27 at 5 (citing ECF No. 19-1 ¶ 8). Humphrey's claim for compensatory damages under the RA or ADA for these services fairs no better given his failure to allege any facts suggesting that he requested access to religious or library services and was denied reasonable accommodation. See ECF No. 20 at 19-20; Anderson v. Bickell, 754 Fed.Appx. 113, 119 n.5 (3d Cir. 2018) (absent factual allegations that restrictions to library access impeded the pursuit of a non-frivolous claim and therefore violated the First Amendment, a claim for compensatory damages under the ADA is not stated).
Humphrey also presents ADA and RA disability discrimination claims related to the loss of employment and pay resulting from Witt's email removing him from his laundry job one day before a physician separately declared Humphrey “medically unemployable.” ECF No. 20 ¶¶ 10, 11, 97-109. Defendants argue that he fails to state a claim under Title II of the ADA or Section 504 of the RA. ECF No. 34 at 10. Humphrey responds that his claim at Count IV is asserted under Title I of the ADA, 42 U.S.C. § 12112(a), and he has alleged a prima facie claim of employment discrimination. ECF No. 37 at 7.
To the extent that Humphrey relies on Title I of the ADA, he fails to state a claim for relief because that provision does not apply to the employment of prisoners. See e.g., Murdock v. Washington, 193 F.3d 510, 512 (7th Cir. 1999) (finding that Title I did not apply because plaintiff was “an inmate of the prison, not an employee or job applicant”); Neisler, 807 F.3d at 228 (same). If not otherwise precluded, a Title I claim for monetary damages also would be barred by the Eleventh Amendment. Id. at 228.
If Humphrey intends to proceed under Title II of the ADA or the RA, he also fails to allege a plausible claim for relief. First, Title II of the ADA “does not cover a prisoner's claim that he suffered workplace discrimination on the basis of a disability.” Id. at 227 (concluding that a typical prison job is not a service or program). Second, as set forth in the Amended Complaint, Humphrey alleges that Witt's directive resulted in his removal from the laundry for, at best, 24 hours (from July 17, 2022, to July 18, 2022), and he does not allege that he was scheduled to work that day. After that date, the restriction was imposed by a non-party physician. ECF No. 20 ¶ 11. Thus, as pleaded, Witt had no personal involvement in the alleged violation of the ADA and RA related to Humphrey's employment status, and a claim is not stated against her. Rode v. Dellaciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“[a] defendant in a civil rights action must have personal involvement in the alleged wrongs”); Davis v. Smith, No. 3:21-135, 2022 WL 20304584, at *5 (W.D. Pa. July 22, 2022) (failure to identify personal involvement in alleged deprivation fails to state a plausible claim for discrimination based on disability).
In summary, Humphrey fails to allege facts at Counts IV, VII, VIII, XI, or XII sufficient to state a claim under the ADA or RA for injunctive relief or compensatory damages. Therefore, it is recommended that the Court dismiss without prejudice each of Humphrey's ADA, RA, and discrimination claims.
5. Infliction of Emotional Distress (Count XIV) (Witt)
Defendants also seek to dismiss Humphrey's claim against Witt for “Continuing Emotional Harm” as barred by sovereign immunity. ECF No. 34 at 11-12 (citing 1 Pa. C.S. § 2310 and 42 Pa. C.S. § 8522). To that end, Defendants assert that Humphrey's factual allegations establish that Witt was acting within the scope of her employment when she allegedly caused him to suffer emotional harm and that no statutory exception to sovereign immunity applies. As such, Defendants argue that dismissal of this claim is warranted. Id. Humphrey appears to concede that he cannot maintain his claim given his failure to address Defendants' Motion to Dismiss in this regard.
Upon review, the Court agrees that Humphrey's claim for emotional distress is barred by Pennsylvania's broad sovereign immunity statute. See Hill v. Barnacle, 655 Fed.Appx. 142, 148 (3d Cir. 2016) (district court properly dismissed claims of intentional infliction of emotional distress as barred by Pennsylvania law, 1 Pa. C.S. § 2310, where alleged actions were necessarily committed in the scope of prison employment and not among the types of conduct as to which the Commonwealth has waived sovereign immunity). Thus, it is recommended that the Court dismiss with prejudice Humphrey's claim for emotional distress at Court XIV.
6. Conspiracy (Count XV)
Finally, at Count XV, Humphrey presents a claim against Witt and unidentified medical personal in their official capacities for conspiracy to violate his rights under the United States Constitution and the ADA and RA by depriving him access to the prison gym on June 7, 2023. ECF No. 20 ¶¶ 196-201. Defendants move to dismiss Humphrey's conspiracy claim because he fails to state a plausible discrimination claim under the ADA or RA claim against any Defendant and has not identified the “medical” staff against whom he brings this claim. ECF No. 34 at 13. Plaintiff opposes the Motion to Dismiss and seeks to clarify that his conspiracy claim is asserted pursuant to 42 U.S.C. § 1985(3) against Defendant Witt and Defendant Crevling - as the identified “medical” staff member - for an alleged conspiracy to violate his rights under the ADA, RA, and applicable regulations thereunder. ECF No. 37 at 22-23.
The Amended Complaint and Humphrey's brief in opposition to the Motion to Dismiss confirm that Humphrey's conspiracy claim under Section 1985(3) is against Witt and “Medical” staff in their official capacities only. ECF No. 20 at 22; ECF No. 37 at 22-3. Claimed violations of Section 1985(3) against individual prison staff members sued in their official capacities are barred by the Eleventh Amendment. Kokinda v. Pa. Dep't of Corr., 779 Fed.Appx. at 948 Thus, it is recommended that the Court dismiss with prejudice Humphrey's Section 1985(3) conspiracy claim at Count XV.
To the extent that Humphrey asserts a conspiracy claim against any defendant in his or her individual capacity, the allegations in the Amended Complaint fail to state a claim. The United States Supreme Court has “emphasized that because § 1985(3) requires the ‘intent to deprive of equal protection, or equal privileges and immunities,' a claimant must allege ‘some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action' in order to state a claim.” Farber v. City of Paterson, 440 F.3d 131, 135 (3d Cir. 2006) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). “There are two distinct aspects to the ‘class-based invidiously discriminatory animus' which, we now know, will support a § 1985(3) claim- the first is defined by form, and the second by function. Thus, a plaintiff must allege both that the conspiracy was motivated by discriminatory animus against an identifiable class and that the discrimination against the identifiable class was invidious. Id. at 137 (citing Aulson v. Blanchard, 83 F.3d 1, 4-5 (1st Cir. 1996)). In addition, to assert that a conspiracy has occurred, a plaintiff must submit “specific factual allegations of combination, agreement, or understanding among all or between any defendants to plot, plan, or conspire to carry out the alleged chain of events.” Moore v. Solanco Sch. Dist., 471 F.Supp.3d 640, 660 (E.D. Pa. 2020) (quoting Germantown Cab Co. v. Philadelphia Parking Auth., C. A. No. 14-4686, 2015 WL 4770722, at *10 (E. D Pa. Aug. 12, 2015)).
Here, nothing in the Amended Complaint supports an inference that the restrictions on Humphrey's access to the prison gym or the alleged inequality in exercise equipment in Blocks A and E were motivated by discriminatory animus against Humphrey because he was disabled. Humphrey's conclusory allegations also fall far short of supporting a plausible inference of an agreement or concerted effort between Witt and Crevling to harm him. As such, it is further recommended that any conspiracy claim in a defendant's individual capacity be dismissed.
7. 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 State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Here, as to those claims the Court has recommended be dismissed without prejudice, Humphrey may be in possession of additional facts to support his allegations. Therefore, it is recommended that Humphrey be afforded an opportunity to file a Second Amended Complaint to correct the substantial pleading deficiencies identified in this Report only as to claims dismissed without prejudice. The Court should further instruct Humphrey that a Second Amended Complaint must be filed within thirty days, must fully allege every claim he wishes to pursue against all parties, and must be a pleading that stands by itself without reference to the original or amended complaint. Young v. Minnick, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992).
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant Defendants' Motion to Dismiss the Amended Complaint.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties may file written objections within fourteen days of the date of this Report, or seventeen days within the date of this Report for unregistered ECF Users. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days in accordance with Local Civil Rule 72.D.2.