United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION 
PARADISE BAXTER United States Magistrate Judge.
Relevant Procedural History
February 11, 2016, Plaintiff Jorge Harris, an inmate at the
State Correctional Institution at Albion, Pennsylvania
("SCI Albion"), filed a pro se civil
rights complaint pursuant to 42 U.S.C. § 1983, Title II
of the Americans with Disabilities Act ("ADA"), and
the Rehabilitation Act ("Rehab Act"). Plaintiff
subsequently filed an amended complaint on January 6, 2017,
which supersedes the original complaint and is the operative
pleading in this case. [ECF No. 23]. Named as Defendants are
the following individuals employed by the Pennsylvania
Department of Corrections ("DOC"), most of whom are
staff members at SCI Albion: Superintendent Nancy Giroux
("Giroux"); Deputy Melinda L. Adams
("Adams"); Deputy Michael R. Clark
("Clark"); Deputy Barry R. Smith
("Smith"); Counselor Nichole Norton
("Norton"); COl Benjamin Beringer
("Beringer"); Hearing Examiner Ryan Szylewski
("Szylewski"); Grievance Coordinator Ronnie
Martucci ("Martucci"); Unit Manager Bryan E.
Flinchbaugh ("Flinchbaugh"); Intelligence Captain
Earl J. Jones ("Jones"); Acting Major of Unit
Management Melanie Kosinski ("Kosinski"); and DOC
Secretary Wetzel ("Wetzel").
amended complaint contains three causes of action. Count I is
a First Amendment retaliation claim asserting that Defendants
retaliated against him for filing grievances and inmate
requests by unjustifiably confining him in the restricted
housing unit ("RFJU") for almost four months,
refusing his numerous requests for reasonable accommodations
for his disabilities, and subjecting him to constant verbal
and emotional abuse. (ECF No. 23, Amended Complaint, at
¶¶ 104-111). Count II is a claim under both the
Rehab Act and the ADA asserting that Defendants discriminated
against him and refused to provide reasonable accommodations
on account of his disabilities. (Id. at ¶¶
112-118). Count III is an Eighth Amendment claim arising from
his confinement in the RHU for 108 days. (Id. at
January 20, 2017, Defendants filed a motion to dismiss
Plaintiffs amended complaint [ECF No. 25] on the following
grounds: (i) Plaintiff has failed to show the personal
involvement of Defendants Giroux, Clark, Adams, Smith,
Norton, Szelewski, Martucci, Flinchbaugh, Jones, Kosinski,
and Wetzel, in any of the alleged wrongdoing; (ii) Plaintiff
has failed to state a claim against Defendant Beringer
related to the filing of false misconduct reports; (iii)
Plaintiff has otherwise failed to state causes of action upon
which relief may be granted; and (iv) Plaintiffs claims
against Defendants in their official capacities are barred by
Eleventh Amendment immunity. [ECF No. 26]. Plaintiff has
since filed a brief in opposition to Defendants' motion.
[ECF No. 28]. This matter is now ripe for consideration.
Relevant Factual History
is completely blind in his right eye and suffers from
bilateral hearing loss, having no hearing in his left ear and
75% hearing loss in his right ear. (ECF No.23, Amended
Complaint, at ¶ 2). Plaintiffs partial blindness
occurred during his prior incarceration at SCI-Albion, which
resulted in Plaintiff filing suit against SCI-Albion
officials and employees that ultimately led to a negotiated
monetary settlement. (Id. at ¶¶ 3, 33).
Approximately two years after his prior release from
SCI-Albion in June 2013, Plaintiff was convicted of violating
his parole and was sent back to SCI-Albion on May 11, 2015.
(Id. at ¶¶ 34-38). Upon his return to
SCI-Albion, Plaintiff was placed in the RHU, where he
remained for a period of 108 days. (Id. at
¶¶ 5-7, 44). Plaintiff alleges that he was
originally told he was placed in the RHU pending medical
clearance, but was informed ten days later that he was being
kept in the RHU because of a lack of bed space in general
population. (Id. at ¶¶ 45-46).
29, 2015, Plaintiff submitted a request to Defendant Smith
that he be given a Z-code, which denotes single cell status
in general population. (Id. at ¶ 49). Defendant
Norton was allegedly responsible for processing the necessary
paperwork to obtain the Z-code. (Id. at ¶ 51).
Plaintiff alleges that, although the process for obtaining a
Z-code usually takes only two to three weeks, Defendant
Norton delayed the process for nearly three months.
he was in the RHU, Plaintiff alleges that he was "denied
access to assistive devices, personal hygiene opportunities
(showers, shaves, etc.), exercise opportunities, and phone
calls to family members or attorneys." (Id. at
¶ 8). In particular, Plaintiff alleges that he was not
given access to a hearing aid for his right ear until
November 2016. (Id. at ¶ 61). Plaintiff also
alleges that he was subjected to verbal and emotional abuse
in the form of racial epithets and food tampering.
(Id. at ¶ 9).
Standard of Review
motion to dismiss filed pursuant to Rule 12(b)(6) must be
viewed in the light most favorable to the plaintiff and the
complaint's well-pleaded allegations must be accepted as
true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
A complaint must be dismissed pursuant to Rule 12(b)(6) if it
does not allege "enough facts to state a claim to relief
that is plausible on its face." Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007) (rejecting the
traditional 12(b)(6) standard set forth in Conlev v.
Gibson. 355 U.S. 41 (1957)). See also Ashcroft v.
Iqbal, 556 U.S. 662 (2009) (specifically applying
Twombly analysis beyond the context of the Sherman
need not accept inferences drawn by a plaintiff if they are
unsupported by the facts set forth in the complaint. See
California Pub. Emps'. Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 146 (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. Twombly. 550 U.S. at 555, citing
Papasan v. Allain, 478 U.S. 265, 286 (1986); see
also McTernan v. City of York, Pennsylvania, 577
F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions"). A
plaintiffs factual allegations "must be enough to raise
a right to relief above the speculative level."
Twombly, 550 U.S. at 556, citing 5 C.
WRIGHT & A. MILLER, FEDERAL Practice and Procedure §
1216, pp. 235-36 (3d ed. 2004). Although the United States
Supreme Court ("Supreme Court") does "not
require heightened pleading of specifics, [the Court does
require] enough facts to state a claim to relief that is
plausible on its face." Twombly, 550 U.S. at
other words, at the motion to dismiss stage, a plaintiff is
"required to make a 'showing' rather than a
blanket assertion of an entitlement to relief."
Smith v. Sullivan, No. 07-528, 2008 WL 482469, at *1
(D. Del. Feb. 19, 2008), quoting Phillips v. County of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "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. at556n.3).
Third Circuit has expounded on the Twombly/Iqbal
line of cases. To determine the sufficiency of a complaint
under Twombly and Iqbal, the court must
follow three steps:
First, the court must 'tak[e] note of the elements a
plaintiff must plead to state a claim.' Second the court
should identify allegations that, 'because they are no
more than conclusions, are not entitled to the assumption of
truth.' Finally, 'where there are well-pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement for relief
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221
(3d Cir. 2011), quoting Santiago v.Warminster Twp,
629 F.3d 121, 130 (3d Cir. 2010).
purpose of a motion to dismiss is to test the sufficiency of
a complaint, not to resolve disputed facts or decide the
merits of the case." Tracinda Corp. v.
DaimlerChrysler AG, 197 F.Supp.2d 42, 53 (D. Del. 2002),
citing Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir.1993). Indeed, the Supreme Court has held that a
complaint is properly dismissed under Rule 12(b)(6) when it
does not allege "enough facts to state a claim to relief
that is plausible on its face, " Twombly, 550
U.S. at 570, or when the factual content does not allow the
court "to draw the reasonable inference that the
defendant is liable for the misconduct alleged."
Iqbal, 556 U.S. at 678. The question is not whether
the plaintiff will prevail in the end. Rather, the question
"is whether the plaintiff is entitled to offer evidence
in support of his or her claims." Swope v. City of
Pittsburgh, 90 F.Supp.3d 400, 405 (W.D. Pa. 2014),
citing Oatway v. Am. Int'l Grp., Inc., 325 F.3d
184, 187 (3d Cir. 2003).
Official Capacity Claims
assert that, to the extent Plaintiff is suing them in their
official capacities for monetary damages, they are immune
from suit under the Eleventh Amendment. The Court agrees.
well settled that suits for damages by individuals against
state governments, state agencies, or state officers acting
in their official capacities are barred by the Eleventh
Amendment. See Kentucky v. Graham, 473 U.S. 159,
165-67 (1985) (holding that claims for damages against a
state officer acting in his official capacity are barred by
the Eleventh Amendment); Chittister v. Dep't of
Community and Economic Development, 226 F.3d 223 (3d
Cir. 2000) (holding that individuals are barred from seeking
monetary damages from state governments or state agencies).