The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
Plaintiff Cheryl S. brings this action alleging, inter alia,
that Defendants Gordian Ehrlacher, Lewis Polk, Joan Crowe,
Barbara Schellhorn, Harris Gubernick, and Willis Morton (all of
whom are sued in their official and individual
capacities),*fn1 and the County of Bucks ("the County")
violated her rights under the First Amendment to the United
States Constitution, the Rehabilitation Act of 1973, and Sections
26 and 28 of Article I of the Pennsylvania Constitution while she
was incarcerated at Bucks County Correctional Facility
("BCCF").*fn2 Presently before the Court are Defendants' motions to dismiss these claims pursuant to
Rule 12(b)(6).*fn3 For the reasons set out below, Defendants'
motions are granted.
Plaintiff alleges that while she was incarcerated at BCCF, she
regularly came into contact with an inmate who was infected with
methicillin resistant staphylococcus ("MRSA"), but that the BCCF
staff never informed Plaintiff of the other inmate's condition.
(Compl. ¶ 12.) As a result, Plaintiff was infected with MRSA.
(See id. ¶ 13.) BCCF staff refused to treat Plaintiff's
condition on the grounds that such treatment would be too
expensive, and they accused her of engaging in unprotected sexual
activity with infected female inmates. (Id. ¶¶ 13-14.) When a
physician requested permission to treat Plaintiff with
intravenous medication, he was refused by Defendants Crowe and
Morton, who also denied requests from Plaintiff's mother to pay
for the treatment. (Id. ¶¶ 16, 18.) In August 2002, Plaintiff
obtained a court order directing Defendants to permit her to see
an infectious disease specialist. (Id. ¶ 19.) After seeing this
specialist, Plaintiff was placed in a solitary confinement cell
because BCCF had no medical housing. (Id. ¶ 20.) The cell was
wet, moldy, and mildewed, all of which aggravated her condition.
(Id.) She was given only a bottle of antibacterial soap and a
bottle of bleach as cleaning supplies. (Id. ¶ 21.) As a result
of this treatment, Plaintiff, who has since been released from BCCF,
suffered serious physical and mental harm, including a permanent
hole in her septum. (Id. ¶ 17.)
When deciding a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6), the court may look only to the facts
alleged in the complaint and its attachments. Jordan v. Fox,
Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.
1994). The court must accept as true all of the factual
allegations pleaded in the complaint and draw all reasonable
inferences in favor of the non-moving party. Bd. of Trs. of
Bricklayers & Allied Craftsmen Local 6 of N.J. Welfare Fund v.
Wettlin Assocs., Inc., 237 F.3d 270, 272 (3d Cir. 2001). A
motion to dismiss will only be granted if it is clear that relief
cannot be granted to the plaintiff under any set of facts that
could be proven consistent with the complaint's allegations.
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (citing
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Plaintiff does not contest the dismissal of her First Amendment
and Rehabilitation Act claims. (Pl.'s Resp. to Defs.' Mot. to
Dismiss at 1 (hereinafter "Pl.'s First Resp."); Pl.'s Resp. to
Defs.' Ehrlacher, Polk, Crowe, and Schellhorn's Mot. to Dismiss
at 1 n. 1 (hereinafter "Pl.'s Second Resp.").) Thus, the only
issue in dispute concerns Plaintiff's claims under the
Plaintiff asserts claims under two sections of the state
constitution. First, she cites Article I, § 26, which is the
state equivalent of the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. Love v. Borough of
Stroudsburg, 597 A.2d 1137, 1139 (Pa. 1991) ("The equal
protection provisions of the Pennsylvania Constitution are
analyzed . . . under the same standards used . . . when reviewing
equal protection claims under the Fourteenth Amendment to the
United States Constitution."). Defendant argues, inter alia, that
money damages are not available under § 26.
This issue is apparently one of first impression, and the Court
therefore hesitates to interpret the state constitution if doing
so may be avoided. Such interpretation is easily avoided in this
case, for Plaintiff's Complaint does not properly state a claim
for violation of her equal protection rights. "In order to
properly state an equal protection claim, a plaintiff must allege
that he is receiving different treatment from that received by
other similarly situated individuals." Myers v. Ridge,
712 A.2d 791, 799 (Pa. Commw. 1998) (citing Capital Cities Media,
Inc. v. Chester, 797 F.2d 1164 (3d Cir. 1986)). Even when every
allegation in the Complaint is accepted as true and all
reasonable inferences drawn therefrom, Plaintiff has not alleged
that she was treated differently than similarly-situated
prisoners. In fact, she makes no allegations whatsoever regarding
the treatment of other inmates. Therefore, Plaintiff has failed
to meet even the minimal requirements of notice pleading, under
which she must set out a "statement of the claim showing that
[she] is entitled to relief." FED. R. CIV. P. 8(a). Thus, the
Court grants Defendants' motion to dismiss Plaintiff's § 26 claim
pursuant to Rule 12(b)(6) without reaching the issue of whether
monetary damages may be obtained under that section.*fn4 Regarding § 28, which prohibits gender-based discrimination,
both parties note that there is substantial disagreement
regarding whether this section permits a private right of action.
The Third Circuit has stated, in dicta, that there is a private
right of action under § 28. Pfeifer v. Marion Ctr. Area Sch.
Dist., 917 F.2d 779, 789 (3d Cir. 1990). Nonetheless, the
district courts in Pennsylvania are split on this issue. Compare
Barrett v. Greater Hatboro Chamber of Commerce, Inc., Civ. No.
02-4421, 2003 WL 22232869, at *4, 2003 U.S. Dist. LEXIS 15498, at
*11-12 (E.D. Pa. Aug 19, 2003) (Tucker, J.) (finding private
right of action), Imboden v. Chowns Communications,
182 F. Supp.2d 453, 458 (E.D. Pa. 2002) (Kauffman, J.), and Kemether
v. Pa. Interscholastic Athletic Ass'n, Inc., 15 F. Supp.2d 740,
755 (E.D. Pa. 1998) (Yohn, J.), with E.E.O.C. v. Dan Lepore &
Sons Co., Civ. No. 03-5462, 2004 WL 569526, at *2, 2004 U.S.
Dist. LEXIS 4842, at *7-8 (E.D. Pa. Mar. 15, 2004) (Davis, J.)
(finding no private right of action), Ryan v. Gen. Mach.
Prods., 277 F. Supp.2d 585, 595, (E.D. Pa. 2003) (Baylson, J.),
Kelleher v. City of Reading, Civ. No. 01-3386, 2001 WL 1132401,
at *2-3, 2001 U.S. Dist. LEXIS 14958, at *9-10 (E.D. Pa. Sept.
24, 2001) (Padova, J.), Dooley v. City of Philadelphia,
153 F. Supp.2d 628, 663 (E.D. Pa. 2001) (Reed, J.), Lees v. W. Greene
Sch. Dist., 632 F. Supp. 1327, 1335 (W.D. Pa. 1986), and
Pendrell v. Chatham Coll., 386 F. Supp. 341 (W.D. Pa. 1974). As
noted above regarding § 26, however, where the state courts have
not decided a state constitutional issue, this Court generally
declines to address the issue, if possible. In this case, the
constitutional issue need not be addressed because, as with § 26,
Plaintiff's Complaint provides no basis on which Defendants could
be found to have violated § 28, for there is no allegation of any kind that male and female inmates at BCCF
were treated differently. Thus, the Court grants Defendants'
motion to dismiss for failure to state a claim and declines to
decide whether § 28 provides a private cause of action.*fn5
For the reasons state above, Defendants' motions to dismiss
Plaintiff's Rehabilitation Act, First Amendment, and Pennsylvania
Constitutional claims are granted. Thus, the only claims
remaining are those brought under the Eighth Amendment and for
medical malpractice. An appropriate Order follows. ORDER
AND NOW, this 26th day of July, 2004, upon
consideration of Defendants' Motions for Summary Judgment
(Document Nos. 4 & 6) and Plaintiff's responses thereto, it is
hereby ORDERED that:
Defendants' Motions to Dismiss are GRANTED. Plaintiff's First
Amendment, Rehabilitation Act, and state ...