The opinion of the court was delivered by: Judge Conner
Plaintiff Philip Carpenter ("Carpenter"), a state inmate incarcerated at the State Correctional Institution at Dallas, Pennsylvania ("SCI-Dallas"), commenced this civil action on December 15, 2008. The matter is presently proceeding via an amended complaint filed on July 22, 2009. (Doc. 39.) Ripe for disposition is the motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on behalf of Commonwealth defendants Edward Rendell, Jeffrey A. Beard, Sharon M. Burks, Dorina Varner, Robin Lucas, Mark D. Goldberg, Alan B. Fogel, Tom Leskowski, Kevin Miskell, James T. Wynder, Vincent Mooney, James McGrady, Norman Demming, Edward Kneiss, Galen Miller, Michael Kloptoski, and Irene Bezdiecki*fn1 . (Doc. 79.) For the reasons set forth below, the motion will be granted in part and denied in part.
I. Allegations of the Amended Complaint
Carpenter has been incarcerated at SCI-Dallas, and housed on F-Block for the past twenty-five years. (Doc. 39, at 1.) Some time prior to December 14, 2006, he allegedly purchased from the commissary a "shower shoe" supplied by commissary vendor Keefe Group, Incorporated.*fn2 (Doc. 39, at 20, ¶ 40.) On December 14, 2006, he slipped and fell in the shower area of F-Block when the strap on one of his shower shoes snapped in an overcrowded shower area causing him neck, back, head and shoulder injuries.
Carpenter pursues seven causes of action as a result of this incident and the events that transpired thereafter. In his first cause of action, he asserts that all defendants have failed to provide him the protection he is due under the Americans with Disabilities Act "ADA"). (Doc. 39, at 27, ¶¶ 93-98.) Specifically, he alleges that there are no slip guards, or handrails present in the shower area of F-Block that could have prevented or mitigated his injury. (Id. at ¶ 95.)
He next asserts that the policies and practices of defendants constitute cruel and unusual punishment in violation of the Institutionalized Persons Act found at 42 U.S.C. § 2000dd. (Id. at 28, ¶ 100.)
The third cause of action is an Eighth Amendment claim alleging that the prison conditions constitute cruel and unusual punishment, lodged against defendants Rendell, Beard, Demming, Kneiss, Wynder, Mooney, McGrady and Miller as follows:
Plaintiff, during his time of being housed in SCI Dallas has watched the gradual deterioration of conditions to the point where he has been housed in a cell for numerous winters with no heat, breakdowns in hot water, feces backing up into the cells from adjacent cells because of inadequate plumbing systems to accommodate the overpopulation of SCI Dallas. Plaintiff has observed inmates dying in cells because there were no emergency call buttons to contact officers, and plaintiff himself has had to wake up from seizures where he could not get help because the guards [sic] office was too far away for him to yell.
Plaintiff has been exposed to numerous instances of disease outbreaks where entire blocks within SCI Dallas had to be quarantined because of various outbreaks of highly contagious diseases, and had to get water out of trash cans for days because of break downs in the plumbing systems due to overcrowding. (Id. at 1-2, ¶1.) He contends that "the wholesale warehousing of prisoners has created egregious hazards that are detrimental to the safety and well being of the plaintiff on a daily basis and are the direct result of the negligible action on the part of all defendants named." (Id. at 28, ¶ 102.
He also is pursing an Eighth Amendment claim of deliberate indifference to his medical needs following his fall in the shower. (Id. at 20-22, ¶¶ 42-62.) He alleges the following:
Plaintiff has been denied competent medical treatment for the injuries he has sustained wherein the defendants never even actually gave him a physical examination after the injuries he sustained. Plaintiff was not put under observation after sustaining head, neck, and back injuries. He was given nothing for pain management after staff were repeatedly told that the pharmacy of the institution did not have any of his already prescribed medications. Therefore, plaintiff was left to lay in a cell in pain for three days, with no pain management medication, without heat in his cell in freezing temperatures, with no call button to call for help in case of major complications or the onset of a seizure for which he was being treated prior to sustaining the injuries claimed.
When the plaintiff reported to sick call on the following day of sustaining injuries during his fall in the overcrowded shower area, staff specifically stated, "Oh, you're okay. You're not hurt so stop taking up my time!". . . . Then, to make matter worse, the Physician's Assistant denied him permission to see a doctor and merely ordered X-Rays of the "wrong" area of his body. An area he knew that the plaintiff had not sustained injuries in order to be vindictive.
The medical staff didn't even review his files at any time to see that the plaintiff had previously been being treated because of two injures he had sustained to his head. (Doc. 39, at 2-3, ¶ 2.) He specifically states that defendant Bezdziecki, or "Nurse Irene," denied him access to competent medical care in that he repeatedly told her that he was in pain and that he did not have pain medication available to him. (Doc. 39, at 13, ¶ 22.) He alleges that she "failed to give [him] a physical examination, did no initial testing, and told [him] there was nothing wrong with him." (Id.) He also alleges that defendant Fogel, as the person responsible for overseeing all medical care provided by Prison Health Care Industries, allowed substandard care to be administered to inmates. (Id. at 11, ¶ 15.) Defendants Ginnochetti and Leskowski acquiesced in the denial of medical care by failing to rectify the situation via the grievance review process. (Id. at 12, ¶¶ 17-18.)
Causes of action four and five raise Fourteenth Amendment equal protection and due process claims and First Amendment retaliation claims, respectively. (Id. at 29, ¶¶ 103-06.) The allegations in support of these claims are as set forth below:
Defendants have also engaged in retaliatory actions by threatening the plaintiff and falsifying misconduct charges to impede the plaintiff's efforts to raise the claims set forth above, and by taking the plaintiff's single cell status and housing him with other inmates in a cell that was never built to house two people in furtherance of their retaliation of the plaintiff for pursuing the above claims. Plaintiff was denied due process in the taking of a single cell status he has had for over twenty years solely on the basis of retaliation and to further the cruel and unusual hazards engendered in the current prison overcrowding that resulted in plaintiff's injuries. Plaintiff was further denied equal protection where he was not granted a meaningful review in accordance with the policies set forth by the DOC. Instead the plaintiff was told by the psychology staff (defendant Dr. Jesse) that they were not reviewing his record because they could not find them and because they had too many cases to waste time even looking for them, and when the plaintiff expressed his concern for his safety because he had already been raped once, was cruelly told, "we have a don't ask don't tell policy in regard to rape", by a psych deparptment [sic] staff member who interviewed him "after" his single cell had already been taken in violation of DOC Policy.
When plaintiff began to file complaints about this matter he was mysteriously issued a misconduct that he was never issued, and called to a hearing on it before defendant Gaylen Miller (F-Block Unit Manager) and told that he was guilty because he said so and because he liked to run his mouth and get guys to help him file paperwork. Plaintiff was never given notice, had documents falsified to intimidate him by claiming that plaintiff plead guilty when he did not and was done an [sic] retaliation for his redress of grievances regarding violations of his civil rights. (Doc. 39, at 6-7, ¶ 2.) He avers that his single cell status was revoked due to the actions or inactions of defendants Miller and Miskell. (Id. at 16, ¶¶ 24, 31) He further asserts that defendants Burks, Varner, Lucas, Wynder and Kloptoski failed to investigate and act upon information in grievances concerning the revocation of his single cell status.
In the sixth cause of action, entitled "Commercial Trade Violations", he seeks to impose liability on defendants based on the sale of defective shower shoes. (Doc. 39, at 30-31, ¶ 108.) He alleges that despite numerous complaints, defendants continued to sell the items with total disregard for the health and well being of the rights of individuals to be free from hazardous materials and materials that contain defects. (Id. at 31, ¶ 108.) He specifically alleges that defendant Goldberg had a duty to ensure that all products sold were compliant with Federal Trade Commission Guidelines.
The seventh cause of action contains a RICO claim based on what Carpenter describes as a "monopoly in trade . . . created . . . via policies of government entities limiting trade to exclusive parties in violation of commercial law, Constitutional Law and 42 U.S.C. § 1983." ((Doc. 39, at 30, ¶ 109.)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (explaining that Rule 8 requires more than "an unadorned, the-defendant unlawfully-harmed-me accusation"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).
Courts are cautioned that because of this liberal pleading standard, a plaintiff should generally be granted leave to amend before dismissing a claim that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The federal rules allow for liberal amendments in light of the "principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal quotations omitted). However, leave to amend under Rule 15 may be denied in cases of (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice; or (4) futility of amendment. See Foman, 371 U.S. at 182; see also Arthur v. Maersk, Inc., 434 F.3d 196, 204-05 (3d Cir. 2006) (stating that "leave to amend must generally be granted unless equitable considerations render it otherwise unjust"); see also Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (stating "absent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless denial can be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment") (citations and internal quotation marks omitted); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (summarizing factors to consider under Rule 15).
A. Americans With Disabilities Act
Title II of the Americans With Disabilities Act ("ADA") provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."
42 U.S.C. § 12132. As used in Title II of the ADA, "public entity" is defined as: "(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act [49 U.S.C.S. § 24102(4) ] )." 42 U.S.C. § 12131(a). State prisons fall squarely within the ...