United States District Court, W.D. Pennsylvania, Pittsburgh.
MEMORANDUM OPINION 
CYNTHIA REED EDDY CHIEF UNITED STATES MAGISTRATE JUDGE
Quintez Talley, has brought this lawsuit against the
Pennsylvania Department of Corrections (“DOC”),
DOC Secretary John Wetzel, Captain “Shredder, ”
and Lt. Morris (collectively referred to as the
“Commonwealth Defendants”) and Dr. Pushkalai
Pillai, a psychiatrist, under 42 U.S.C. § 1983 and
Titles II and V of the Americans With Disabilities Act
(“ADA”), 42 U.S.C. §§ 12131-12165. He
also brings a state law claim of assault and battery against
Lt. Morris and a state law claim of medical malpractice
against Dr. Pillai. The Complaint filed at ECF No. 7 is the
motions to dismiss are pending before the Court: (i) the
motion to dismiss filed by the Commonwealth Defendants (ECF
No. 25), and (ii) the motion to dismiss filed by Defendant
Pillai (ECF No. 28), which was converted in part to a motion
for summary judgment only on the issue of exhaustion. Talley
has responded in opposition to each motion. (ECF Nos. 32 and
37). Dr. Pillai filed a reply brief (ECF No. 38), to which
Talley filed a Sur-Reply. (ECF No. 41). The matter is ripe
for resolution. For the reasons that follow, the motions will
be granted and this case will be dismissed with prejudice.
events giving rise to this lawsuit occurred on August 8,
2016, while Talley was housed at SCI-Greene. On that day,
Talley was housed in a psychiatric observation cell
(“POC”) after claiming to be suicidal. During Dr.
Pillai's daily rounds, Talley asked to be moved to the
Mental Health Unit (“MHU”). Dr. Pillai refused
and told Talley that if he “continued to be suicidal,
she'd send him back to the Restricted Housing Unit
(RHU).” Complaint at ¶ 10. Later that same day,
Lt. Morris came to Talley's POC cell to move him to the
RHU, but Talley refused to be moved stating that he was
suicidal. Lt. Morris then spoke to Dr. Pillai who told him to
move Talley to a RHU cell with a camera so that he could be
observed. Lt. Morris told Talley what Dr. Pillai had said,
but Talley continued not to comply. At that point, Lt. Morris
threatened to spray Talley with OC spray as part of planned
use of force if Talley would not voluntarily exit his cell.
Capt. Shraderthen spoke with Talley, but did not
overrule Dr. Pillai's directive to move him to a RHU cell
with a camera. When Talley saw an extraction team assembling
ready to use force to remove him from the POC cell, he said
he was no longer suicidal and came out of the POC cell
voluntarily. Talley alleges that Secretary Wetzel maintains
policies which disregard the care of mentally ill patients.
Talley seeks compensatory and punitive damages, as well as
injunctive and declaratory relief.
applicable inquiry under Federal Rule of Civil Procedure
12(b)(6) is well settled. A court may dismiss all or part of
an action for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). The
complaint must plead “factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). The
plaintiff must allege facts that indicate “more than a
sheer possibility that a defendant has acted
unlawfully.” Id. Pleading only “facts
that are ‘merely consistent with' a defendant's
liability” is insufficient and cannot survive a motion
to dismiss. Id. (quoting Twombly, 550 U.S.
conclusory recitation of the elements of a cause of action is
not sufficient. Phillips v. Cty. of Allegheny, 515
F.3d 224, 233 (3d Cir. 2008). The plaintiff must allege facts
necessary to make out each element. Id. (quoting
Twombly, 550 U.S. at 563 n.8). In other words, the
complaint must contain facts which, if proven later, support
a conclusion that the cause of action can be established. In
assessing the sufficiency of a complaint, a court must: (1)
identify the elements of the causes of action; (2) disregard
conclusory statements, leaving only factual allegations; and
(3) assuming the truth of those factual allegations,
determine whether they plausibly give rise to an entitlement
to relief. Palakovic v. Wetzel, 854 F.3d 209, 220
(3d Cir. 2017) (internal quotation marks and citations
omitted) (quoting Burtch v. Millberg Factors, Inc.,
662 F.3d 212, 221 (3d Cir. 2011)).
United States Court of Appeals for the Third Circuit has held
that, in civil rights cases, a court must give a plaintiff
the opportunity to amend a deficient complaint - regardless
of whether the plaintiff requests to do so - when dismissing
a case for failure to state a claim, unless doing so would be
inequitable or futile. See Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir.
The Complaint fails to state a claim against the
Excessive Force Claims
Complaint, Talley alleges that Defendants Morris, Shrader,
and the U/K Defendants violated his rights under the
“excessive force” clause of Article I, Section 13
of the Pennsylvania Constitution. Complaint at ¶ 32.
Talley, however, represents in his brief in opposition to the
Commonwealth Defendants' motion to dismiss, that he has
voluntarily agreed to dismiss this claim. Br. at n. 7 (ECF
No. 32). Therefore this claim is dismissed.
Title II of the ADA Claim
II of the ADA provides, in relevant part, “that no
qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be
denied the benefit of the services, programs, or activities
of a public entity,  or be subjected to discrimination by any
such entity.” 42 U.S.C. § 12132. Title II of the
ADA does not apply to individuals in their individual
capacities. Plaintiff states that his claim against Secretary
Wetzel “is being brought against Defendant Wetzel in
his ‘official' capacity, i.e., against his office
(Defendant DOC).” Pl's Br. at 4-5.
Commonwealth Defendants argue that, not only are they
entitled to Eleventh Immunity on this claim, but Talley's
claim has no merit. The Court agrees with the Commonwealth
Defendants, and finds that, even assuming arguendo
that Talley's claims are not barred by the Eleventh
Amendment, this claim has no merit. To state a claim, Talley
has to allege that (1) he is a qualified individual with a
disability; (2) that he was excluded from participation in or
denied benefits of DOC's services, programs, or
activities; and (3) such exclusion, denial of benefits, or
discrimination was by reason of his disability. Furgess
v. Pa Dep't of Corr., 933 F.3d 285 (3d Cir. 2019).
argues that he is a “qualified individual with a
disability” and that the POC and MHU provide
“services and/or programming / placement, ”
Complaint at ¶ 23, which were denied to him when he was
moved to the RHU. Even if Talley could show that he has a
qualifying disability, he has alleged no facts describing
what programs he was excluded from and he alleges no facts
which show that such purported exclusion was on account of
any mental health disability. Brown v. Pa. Dep't of
Corr., 290 Fed.Appx. 463, 467 (3d Cir. 2012) (quoting 42
U.S.C. § 12132) (stating that a plaintiff must allege
facts “sufficient to show that he was excluded
‘by reason of his disability.”). Simply stated,
Talley does not allege facts making out a plausible claim of
discrimination due to his mental illness. Therefore, this
claim will be dismissed.
Title V of the ADA and First Amendment ...