The opinion of the court was delivered by: Chief Magistrate Judge Lisa P. Lenihan
MEMORANDUM OPINION ON DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT
The Motion to Dismiss filed by Defendants Mardi I. Vincent ("Vincent"), a correctional institution Superintendent, and Salvatore Cardenza ("Cardenza"), a correctional institution Sergeant, (also collectively "Defendants"), in this prisoner's Eighth Amendment and Americans with Disabilities Act ("ADA") discrimination action will be denied, as the Amended Complaint states cognizable and plausible claims, as more fully set forth below.
II. Factual and Procedural History
Plaintiff (AWarren@) filed his Complaint pro se in October, 2008. The initial Complaint alleged a claim of excessive force under the Eighth Amendment and an Equal Protection claim. The Defendants filed a Motion for Judgment on the Pleadings. The Court filed a Reporting Recommendation recommending that the Equal Protection claim be dismissed but that Plaintiff be given leave to amend. He filed an Amended Complaint on October 30, 2009, following which his Equal Protection claim was dismissed but the remainder of Defendants' Motion for Judgment on the Pleadings was denied.
The case proceeded through discovery and was ready for trial. The Court then granted Plaintiff's Motion for appointment of pro bono counsel. The Court initiated a search for pro bono counsel on May 13, 2010. Current counsel agreed to represent Plaintiff, entering an appearance on April 21, 2011. At the request of new counsel, discovery was reopened and a trial date scheduled. Counsel for Plaintiff filed a motion for leave to file an amended complaint on July 28, 2011. This motion was opposed by Defendants but granted in part and denied in part by the Court on September 22, 2011. The Amended Complaint was filed on September 29, 2011, followed by this Motion.
As amended the Complaint alleges that Plaintiff has been physically and verbally harassed, threatened, denied food and medical treatment, and physically assaulted and injured by prison guards employed at his place of confinement, the State Correctional Institution at Laurel Highlands ("SCI Laurel"). Warren, a prisoner in the Restricted Housing Unit ("RHU"), alleges that this conduct has followed and is in retaliation for an altercation between himself and two prison guards (Officers Lester and Wilt) in December, 2007.*fn1 He identifies multiple communications to SCI Laurel administration and then-Superintendent Vincent, beginning in February, 2008, informing them of: (a) specific untoward, abusive and threatening conduct by specific guards; (b) his belief that his physical safety is in jeopardy (prior to and after sustaining a broken finger - allegedly purposefully inflicted by Defendant Cardenza while Plaintiff was pinned to the ground during a cell extraction - in May, 2008, for which requisite surgical treatment was delayed for approximately a month); and (c) his repeated requests that he be transferred to another facility for his protection in accordance with general policies and procedures. SCI Laurel has responded in writing to Plaintiff's complaints and communications, (a) asserting that his complaints regarding specific guard conduct are unsubstantiated/uncorroborated, his concerns for his safety are unmerited, and his diabetes and need for dialysis necessitates his continued incarceration at SCI Laurel because no other State correctional institution has dialysis equipment;*fn2 and (b) admonishing him to direct his attention to conformance/compliance to improve the conditions of his incarceration.*fn3 Plaintiff further alleges that Superintendent Vincent responded to his May, 2008 broken finger by saying "They broke your finger; you got what you deserved." See Amended Complaint at 5.*fn4
Plaintiff's Amended Complaint brings claims under the Eighth Amendment and Title II of the ADA, 42 U.S.C. Section 12132. The newly added claims are a failure to protect claim against Defendant Vincent and the ADA claim. Presently pending is Defendants' Motion to Dismiss both.
III. Motion to Dismiss Standard
A motion to dismiss is an appropriate means of challenging the legal sufficiency of the Complaint. See, e.g., Sturm v. Clark, 835 F.2d 1009, 111 (3d Cir. 1987). It is to be granted where the Complaint fails to set forth facts stating "a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007). See also Ashcroft v. Iqbal, 129 S. Ct.1937, 1949 (May 18, 2009) (citing Twombly, 550 U.S. at 555-57). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Supreme Court has further explained that "[t]he plausibility standard is not akin to a 'probability requirement', but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
In Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. Aug. 18, 2009), the United States Court of Appeals for the Third Circuit described the Rule 12(b)(6) standard in light of Twomblyand Iqbal:
After Iqbal, it is clear that . . . all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible. This then 'allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' The Supreme Court's ruling in Iqbal emphasizes that ...