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July 26, 2004.

CHERYL S., Plaintiff,
COUNTY OF BUCKS, et al., Defendants.

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 Pennsylvania Constitution.

  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 ...

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