Opinion
Civil Action 22-188J
05-31-2023
ANIBAL ROMAN, Plaintiff, v. GEORGE M. LITTLE, et al., Defendants.
Honorable J. Nicholas Ranjan, District Judge
REPORT AND RECOMMENDATION RE: ECF NOS. 25, 39 AND 43
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Anibal Roman (“Plaintiff'), an inmate incarcerated at the State Correctional Institution at Laurel Highlands (“SCI-Laurel Highlands”), brings this action arising out of allegations that Defendants have violated his Eighth and Fourteenth Amendment rights and Title II of the Americans with Disabilities Act (“ADA”) based on their failure to place him on the kidney transplant list. ECF No. 23.
Presently before the Court is a Motion to Dismiss filed by Defendants George M. Little (“Little”) and Kevin Ransom (“Ransom”) (the “Corrections Defendants”). ECF No. 25. Also before the Court is a Motion to Dismiss filed by the Pennsylvania Department of Corrections (“DOC”), ECF No. 39, and Plaintiffs Motion to Voluntarily Dismiss One Defendant from Suite [sic] (“Motion to Dismiss the DOC”), ECF No. 43.
For the following reasons, it is respectfully recommended the Court grant in part and deny in part the Corrections Defendants' Motion to Dismiss, ECF No. 25. It is further recommended that the Court grant Plaintiffs Motion to Dismiss the DOC, ECF No. 43, and thus deny the DOC's Motion to Dismiss, ECF No. 39, as moot.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Amended Complaint
Plaintiffs claims originate from his incarceration at the State Correctional Institution at Dallas (“SCI-Dallas”). Plaintiff has sued contract medical personnel (Doctors Prince and Salameh), as well as the Superintendent of SCI-Dallas (Ransom), Acting Secretary of the DOC (Little), and the DOC. ECF No. 23 ¶¶ 4-8.
Little was Acting Secretary of the DOC when Plaintiff filed his Amended Complaint. As of January 2023, Laurel R. Harry is the Acting Secretary of the DOC.
In the operative Amended Complaint, Plaintiff claims that his civil rights have been violated because he was not added to the “kidney transplant list of transplant candidates.” Id. ¶ 17. Plaintiff alleges that he received a donor kidney in 2000, prior to his incarceration. Id. ¶¶ 13-14. In 2021, Defendants Prince and Salameh told Plaintiff that his blood work revealed that “his kidney transplant is failing,” and that he would soon be on dialysis. Id. ¶ 16.
On December 13, 2021, Plaintiff alleges that he was seen by Doctors Prince and Salameh for a medical visit. Id. ¶ 17. In response to his request to be placed on the kidney transplant list, both physicians said “no,” stating that neither of them had seen an inmate receive a transplant, and that “the [DOC] will not allow transplant [sic] due to the status of being an inmate . . . .” Id. ¶¶ 17-18. They explained that if Plaintiff was allowed to receive a transplant, it would mean that other inmates could receive transplants too. Id. ¶ 18.
On December 21, 2021, Plaintiff was seen by an outside physician “who conducted the fistula surgery on Roman's left arm so Roman can receive life saving dialysis treatment.” Id. ¶ 19.
On February 26, 2022, Plaintiff was seen by Dr. Prince and a physician's assistant for a sick call visit. Id. ¶ 35. Plaintiff asked to be provided with his blood type and other information so that he could find a kidney donor match, explaining that his friends and family would be willing to donate a kidney. Dr. Prince refused and said that it was up to Dr. Salameh and the DOC. Id. ¶¶ 35-36.
Doctors Salameh and Prince again denied a similar request during a March 7,2022 medical visit, with Dr. Salameh explaining that it would be hard to approve a kidney transplant because of the cost compared to dialysis. Id. ¶¶ 37-38.
Plaintiff alleges that his kidney failed in March 2022, at which time he was transferred from SCI-Dallas to SCI-Laurel Highlands to receive dialysis. Id. ¶ 40.
Based on these allegations, Plaintiff claims that Defendants violated his Eighth and Fourteenth Amendment rights, as well as Title II of the ADA. Id. ¶ 45. He seeks injunctive, declaratory, and compensatory relief. Id. ¶¶ 47-50. The Corrections Defendants are sued in their individual and official capacities. Id. ¶¶ 4, 7.
2. Procedural History
Plaintiff began this action on October 11, 2022 in the United States District Court for the Middle District of Pennsylvania by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 1. This case was transferred to this Court on October 21, 2022. ECF No. 8. The Court granted the IFP Motion on October 24, 2022, and Plaintiffs Complaint was filed on the same date. ECF Nos. 10 and 11.
Plaintiff filed an Amended Complaint on November 25, 2022, adding the DOC as a Defendant. ECF No. 23. Defendants Prince and Salameh filed an Answer to Plaintiff s Amended Complaint. ECF No. 28.
3. Motions to Dismiss
On December 8, 2022, the Corrections Defendants filed a Motion to Dismiss and Brief in Support. ECF Nos. 25 and 26. Plaintiff filed a response in opposition. ECF No. 31.
On March 14, 2022, the DOC also filed a Motion to Dismiss and Brief in Support. ECF Nos. 39 and 40. Rather than file a response, Plaintiff moved to voluntarily dismiss the DOC as a defendant. ECF No. 43.
The Motions to Dismiss are now ripe for consideration.
B. STANDARD OF REVIEW
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys, v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist, 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atl. Corp, v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[factual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face,” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v, MacDougall, 454 U.S. 364 (1982); U.S, ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner . .. may be inartfully drawn and should ... be read ‘with a measure of tolerance'”); Freeman v. Department of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds')', see also Nami v, Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim .. . they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a Pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
1. The Corrections Defendants' Motion to Dismiss
a. ADA Claim
Plaintiff brings a claim against Defendants under Title II of the ADA. To state a claim under Title II of the ADA, 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.” Furgess v. Pa. Dep't of Corr., 933 F.3d 285, 28889 (3d Cir. 2019).
In support of the Motion to Dismiss, the Corrections Defendants argue that Plaintiff fails to state an ADA claim because he does not allege any facts showing he was “excluded from participation in or denied the benefits of' any of the prison's “services, programs, or activities” as a result of his kidney disease. The Corrections Defendants assert that medical decisions, like this, fall outside the scope of the ADA. ECF No. 26 at 6-7.
In response, Plaintiff argues that he sufficiently pleads an ADA claim based on allegations that he has been denied a medically required kidney transplant because of the cost. ECF No. 31 at 4.
Upon review, Plaintiff fails to state a claim upon which relief can be granted. Plaintiff claims that he was denied access to a certain medical treatment, a kidney transplant, for his kidney disease. But “the ADA prohibits disability-based discrimination, ‘not inadequate treatment for the disability.'” Kokinda v. Pa. Dep't of Corr., 663 Fed.Appx. 156, 159 (3d Cir. 2016) (quoting Simmons v, Navajo Cnty., Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010), overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016)) (citations omitted); see also Dukes v. Wood, No. 21-857, 2022 WL 446380, at *11 (W.D. Pa. Feb. 14, 2022) (“[T]he failure to provide medical treatment to a disabled prisoner while perhaps raising Eighth Amendment concerns in certain circumstances, does not constitute an ADA violation”) (quoting Rashad v. Doughty, 4 App'x 558, 560 (10th Cir. 2001)). Here, Plaintiff claims that he was denied adequate medical treatment for his kidney disease. He does not allege that he was discriminated against because of his disability, and he does not otherwise allege that the Corrections Defendants acted with a discriminatory motive in creating or enforcing the policy at issue. For these reasons, he fails to state a plausible claim under the ADA. Therefore, the Court should grant the Corrections Defendants' Motion to Dismiss as to Plaintiff s ADA claim.
b. Eighth/Fourteenth Amendment Claims
Plaintiff also brings claims under the Eighth and Fourteenth Amendments for deliberate indifference to his medical needs. ECF No. 23 ¶ 13. Prison officials are required to “provide humane conditions of confinement,” and must take “reasonable measures to guarantee the safety of inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted). “For prisoners incarcerated following a conviction, the government's obligation arises out of the Eighth Amendment's prohibition on cruel and unusual punishment.” Cameron v. Bouchard, 815 Fed.Appx. 978, 984 (6th Cir. 2020); see also Murray v. Keen, 763 Fed.Appx. 253, 255 (3d Cir. 2019). When a pretrial detainee is challenging the conditions of his confinement, the claim arises instead under the Due Process Clause of the Fourteenth Amendment. See E.D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (citing Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir. 2008)).
Because Plaintiff was a prisoner in the custody of the DOC, his claim must be made and addressed under the Eighth Amendment. ECF No. 23 ¶ 3. Therefore, the Court should find that Plaintiff fails to state a Fourteenth Amendment claim against any defendant, and it considers Plaintiffs remaining claims under the Eighth Amendment.
The Court also notes that under the “more-specific-provision rule,” “if a constitutional claim is covered by a specific constitutional provision”-here, the Eighth Amendment-“the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process.” Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249,260 (3d Cir. 2010).
(1) Lack of Personal Involvement
In support of the Motion to Dismiss, the Corrections Defendants argue that Plaintiff s claim should be dismissed because he does not allege their personal involvement in any underlying wrong. The Corrections Defendants argue that Plaintiff only sued them based on their positions as Superintendent of SCI-Dallas and Acting Secretary of the DOC, and they had no alleged involvement in Plaintiffs medical decisions. ECF No. 26 at 5.
In his response in opposition, Plaintiff argues that his claim does not arise out of his day-to-day medical treatment; instead, he is claiming that the DOC has a policy that prohibits inmates, like him, from being placed on an organ transplant list. ECF No. 31 at 2-3.
In a civil rights claim, as here, individual government defendants must have personal involvement in the alleged wrongdoing and “may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior." Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014), rev'd on other grounds, Taylor v. Barkes, 135 S.Ct. 2042 (2015) (quoting Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012)); see also Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014). “Rather, state actors are liable only for their own unconstitutional conduct.” Barkes, 766 F.3d at 316.
Although supervisors cannot be held liable pursuant to a theory of respondeat superior, the United States Court of Appeals for the Third Circuit has identified “two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates.” Id., First, a supervisor may be personally liable under § 1983 if he “‘participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced' in the subordinate's unconstitutional conduct.” Id. (quoting Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Second, a supervisor-defendant is liable if he “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” Id. (quoting A.M. ex rel. J.M.K. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
Upon review, the Court should not grant the Motion to Dismiss Plaintiffs Eighth Amendment claims on this basis. Plaintiff contends that doctors refused to place him on the kidney transplant list based on DOC policy. ECF No. 25 ¶¶ 18, 32, 36. He also contends that Little and Ransom were responsible for executing DOC policy in their supervisory roles. Id. ¶¶ 4, 7. Construing Plaintiffs Pro se Complaint liberally, Plaintiff sufficiently pleads that the Corrections Defendants were personally involved by establishing or maintaining a policy that caused his harm. Accordingly, the Court should deny the Motion to Dismiss Plaintiff's Eighth Amendment claims based on lack of personal involvement.
(2) Failure to State a Claim
The Corrections Defendants also argue that Plaintiff fails to state a viable Eighth Amendment claim. There are no allegations showing deliberate indifference, they argue, because Plaintiff was under the care of medical professionals. The Corrections Defendants also refer the Court to a DOC policy that outlines the procedure for qualifying inmates to obtain an organ transplant. Even if Plaintiff is claiming this policy was not followed here, the Corrections Defendants argue, mere failure to comply with DOC policy does not amount to a constitutional violation. ECF No. 26 at 8-10.
In response, Plaintiff argues that he states a valid claim arising out of a policy-based refusal to put him on the kidney transplant list. He asserts that prison officials may not deny him appropriate medical care simply because of cost. ECF No. 31 at 2-3.
In order to establish a violation of Plaintiff s constitutional right to adequate medical care, the evidence must show: (1) a serious medical need; and (2) acts or omissions by Defendants that indicate a deliberate indifference to that need. Natale v. Camden Cnty. Corr. Fac., 318 F.3d 575, 582 (3d Cir. 2003).
Deliberate indifference requires a showing that the official “knows of and disregards an excessive risk to inmate health or safety.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). In the medical context, “[d]eliberate indifference may be manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury,... or ‘persistent conduct in the face of resultant pain and risk of permanent injury.'” Josey V. Beard, No. 06-265, 2009 WL 1858250, at *6 (W.D. Pa. June 29, 2009) (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990) (internal citations omitted)).
Non-medical prison officials are not “considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) (quoting Durmer, 991 F.3d at 69). Rather, if an inmate is being cared for by medical experts, “a nonmedical prison official will generally be justified in believing that the prisoner is in capable hands.” Id. Thus, “absent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a nonmedical prison official... will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.” Id.
Upon review, there is no dispute that Plaintiffs kidney disease is a serious medical need. At this preliminary stage, Plaintiff sufficiently pleads facts showing the Corrections Defendants were deliberately indifferent to that medical need. Based on DOC policy, he allegedly was denied necessary medical treatment (the ability to receive a kidney transplant) for non-medical reasons. He sufficiently pleads that the Corrections Defendants are responsible for this policy, and thus would have known that prison doctors were not providing appropriate care. Based on these allegations, Plaintiff states a plausible claim under the Eighth Amendment. For these reasons, the Motion to Dismiss Plaintiffs Eighth Amendment claim should be denied.
c. Declaratory and Injunctive Relief
The Corrections Defendants also argue in support of the Motion to Dismiss that Plaintiff s claims for declaratory and injunctive relief should be dismissed as moot because he is no longer incarcerated at SCI-Dallas. ECF No. 26 at 7-8. Plaintiff does not specifically address this argument in his response. ECF No. 31.
Upon review, the Court should grant the Motion to Dismiss on this basis as to Ransom. As the Corrections Defendants point out, “[a]n inmate's transfer from the facility complained of generally moots the equitable and declaratory claims.” Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). Ransom is the Superintendent of SCI-Dallas, where Plaintiff is no longer incarcerated. Plaintiff does not plead any facts suggesting that Ransom enacts or enforces policy at Plaintiff s current institution, SCI-Laurel Highlands. For these reasons, Plaintiffs request for equitable relief as to Ransom should be dismissed as moot.
As for Little, Plaintiff sues him in his capacity as Acting Secretary of the DOC. Plaintiff alleges that Little is responsible for enacting DOC policy and overseeing all DOC facilities. Because Plaintiff claims that he is still incarcerated at a DOC facility and is still precluded from the kidney transplant list, the Corrections Defendants have not shown that this request for equitable relief is moot. Thus, the Court should deny the Motion to Dismiss Plaintiff s claims for injunctive and declaratory relief as to Little.
For the reasons discussed below, however, the current Acting Secretary of the DOC, Laurel R. Harry, should be substituted relative to Plaintiffs claims against Little in his official capacity.
d. Official Capacity Claims
(1) Substitution of Parties
Plaintiff brings claims against Little and Ransom in their individual and official capacities. Although Little was Acting Secretary of the DOC when Plaintiff filed this lawsuit, he is no longer serving in that role. Laurel R. Harry (“Harry”) is now Acting Secretary of the DOC. For that reason, it is recommended that Harry, in her official capacity, be substituted as a party for Little, in his official capacity. Fed.R.Civ.P. 25(d) (“An action does not abate when a public officer who is a party in an official capacity ... ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party.”).
(2) Eleventh Amendment Immunity
In support of the Motion to Dismiss, the Corrections Defendants also argue that Plaintiff s Section 1983 claims against them in their official capacities should be dismissed because they are barred by Eleventh Amendment immunity. ECF No. 26 at 5-6. Plaintiff does not specifically address this argument in his response. ECF No. 31.
The Corrections Defendants ask the Court to dismiss all claims against them in their official capacity in the subheading of this argument, however, they only specifically request that Plaintiff s claims brought under Section 1983 be dismissed in the body of the argument and do not substantively brief Eleventh Amendment immunity in the context of Plaintiff s ADA claim.
The Eleventh Amendment generally precludes private individuals from bringing suit against a state, or one of its agencies, in federal court. Sheffer v. Centre Cnty., No. 4:18-cv-2080, 2019 WL 2621836, at *4 (M.D. Pa. May 23,2019) (citing U.S. Const. Amend. XI; Pennhurst State Sch. & Hosp., v. Halderman, 465 U.S. 89 (1984)). This is a jurisdictional bar, which applies regardless of the relief sought, including claims brought in equity. Id. (citing Pennhurst, 465 U.S. at 100).
In an official-capacity suit against individual defendants, as here, the entity of which the defendant is an agent is the real party in interest. Kentucky v. Graham, 473 U.S. 159, 169 (1985). As a result, claims against state officials in their official capacities for damages are treated as suits against the state and are barred by the Eleventh Amendment. Christ the King Manor, Inc, v. Sec'y U.S. Dep't of Health & Human Servs., 730 F.3d 291, 318 (3d Cir. 2013); Nelson v. Com. of Pa. Dep't of Pub. Welfare, 244 F.Supp.2d 382, 391 (E.D. Pa. 2002).
Such immunity is not absolute, however, and is “subject to three primary exceptions: (1) congressional abrogation, (2) waiver by the state, and (3) suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law.” Pa. Fed'n of Sportsmen's Clubs, Inc, v. Hess, 297 F.3d 310, 323 (3d Cir. 2002).
Upon review, the Court should dismiss Plaintiffs Eighth Amendment claim against Ransom in his official capacity. Plaintiff brings his Eighth Amendment claims under 42 U.S.C. § 1983. Eleventh Amendment immunity bars this claim, and no exception to immunity applies. In particular, “[t]he Commonwealth of Pennsylvania has not waived its immunity in § 1983 civil rights cases (42 Pa.C.S.A. § 8521) and Congress did not abrogate state immunity in general in enacting civil rights legislation, including § 1983.” O' Hara v. Ind. Univ, of Pa., 171 F.Supp.2d 490,495 (W.D. Pa. 2001). And for the reasons discussed, Plaintiff does not plead any viable claim for prospective injunctive or declaratory relief as to Ransom. As noted, Ransom serves at the Superintendent at SCI-Dallas, where Plaintiff is no longer incarcerated.
However, the Court should not dismiss Plaintiff s claims against Harry, as substituted for Little, in her official capacity. Eleventh Amendment immunity does not bar suits against individual state officers for prospective injunctive and declaratory relief to end an ongoing violation of federal law. Because Plaintiff asserts a viable claim for injunctive relief against Harry in her official capacity, the Court should not dismiss this claim.
In sum, the Court should grant the Corrections Defendants' Motion to Dismiss as to Plaintiffs ADA claim and any claims for injunctive or declaratory relief against Ransom. “If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Because the Court cannot say that Plaintiff would be unable to plead any cognizable ADA claim, he should be granted leave to amend to the extent he is able to cure the deficiencies identified herein.
2. Motions to Dismiss as to the DOC
The DOC has also moved to dismiss the claims against it. ECF No. 39. Plaintiff does not oppose this motion, and he has separately moved to voluntarily dismiss his claims against the DOC. ECF No. 43.
Upon review, the Court should grant Plaintiffs unopposed Motion to Dismiss the DOC. Because Plaintiff has voluntarily dismissed his claims against the DOC, the DOC's Motion to Dismiss should be denied as moot.
D. CONCLUSION
For the reasons discussed, it is respectfully recommended that the Court grant in part and deny in part the Corrections Defendants' Motion to Dismiss, ECF No. 25. The Court should grant the Motion to Dismiss as to: (1) Plaintiffs ADA claim, and (2) Plaintiffs request for declaratory and injunctive relief as to Ransom. The Court should deny the Motion to Dismiss in all other respects. Plaintiff should be granted leave to amend as appropriate.
In addition, the Court should grant Plaintiffs Motion to Dismiss the DOC, ECF No. 43. The Court should deny the DOC's Motion to Dismiss, ECF No. 39, as moot.
Finally, the Court should substitute Harry for Little as a defendant relative to Plaintiff s claims against Little in his official capacity as Acting Secretary of the DOC. Little should remain a defendant as to Plaintiffs claims against him in his individual capacity.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. 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 thereafter in accordance with Local Civil Rule 72.D.2.