Sonsini, II v. Lebanon County et al

Filing 22

MEMORANDUM (Order to follow as separate docket entry) re 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Alexa Loyola, Robert J. Phillips, Roberta Barrette, Nasar/Nisir, Eric G. Folton, William Ames, Jamie Woglemuth, Robert J. Karnes, Lebanon County, Rebecca Davis, Kane, Eby, Jo Ellen Litz, Anthony J. Hauck. (See memo for complete details.) Signed by Magistrate Judge Susan E. Schwab on 2/16/21. (ki)

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 1 of 67

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RENALDO JOHN SONSINI, II
Plaintiff,
v.
LEBANON COUNTY, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:

CIVIL NO: 1:20-CV-00392
(Magistrate Judge Schwab)

MEMORANDUM OPINION
I. Introduction.
Claiming that his rights were violated in numerous ways while he was a
prisoner at the Lebanon County Correctional Facility, the plaintiff, Renaldo John
Sonsini, II, has sued 22 defendants as well as an undetermined number of John and
Jane Doe defendants. Currently pending is a motion to dismiss filed by fourteen of
the defendants. For the reasons discussed below, we will grant in part and deny in
part that motion to dismiss. We will also dismiss without prejudice the other
defendants who have not been served. And we will grant Sonsini leave to file a
second amended complaint.

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 2 of 67

II. Background and Procedural History.
Sonsini began this case in the Court of Common Pleas of Lebanon County,
Pennsylvania. On March 6, 2020, those defendants who had been served removed
the case to this court pursuant to 28 U.S.C. § 1441(a).
Sonsini had previously filed in this court a complaint identical to the one in
this case. See Sonsini v. Lebanon County, 1:19-CV-02232 (M.D. Pa.). During a
conference call with the parties on March 23, 2020, we discussed why Sonsini had
two identical pending cases, and Mr. Sonsini agreed that he would dismiss Sonsini
v. Lebanon County, 1:19-CV-02232 (M.D. Pa.), and proceed with this case.
Sonsini later voluntarily dismissed Sonsini v. Lebanon County, 1:19-CV-02232
(M.D. Pa.).
On May 14, 2020, Sonsini filed an amended complaint in this case naming
the following defendants: (1) Lebanon County, Pennsylvania; (2–4) Robert J.
Phillips, William Ames, and Jo Ellen Litz, Lebanon County Commissioners;
(5) Jamie Wolgemuth, Lebanon County Administrator; (6) Robert J. Karnes, the
Warden of the Lebanon County Correctional Facility (“LCCF”); (7) Anthony J.
Hauck, Deputy Warden for Treatment at the LCCF; (3) Jacqueline Matias; former
LPN Medical Supervisor at the LCCF; (9) Brenda Cresini, former Business
Manager at the LCCF; (10) Eric G. Folton, Culinary Supervisor at the LCCF;
(11) Correctional Officer Kane, a culinary assistant at the LCCF; (12) Dr. Pevin
2

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 3 of 67

Powers, a former contract psychiatrist at the LCCF; (13) Sarah Ardire, a former
contract psychologist at the LCCF; (14) Rebecca Davis, a correctional counselor at
the LCCF; (15) John Santoni; a former sergeant at the LCCF; (16) Alexa Loyola, a
correctional officer at the LCCF; (17) Ahmed Nasr, a correctional officer at the
LCCF;1 (18) Angela Garbaz, a former nurse at the LCCF; (19) Roberta Barrette, a
nurse at the LCCF; (20) Tammy (last name unknown), a nurse or former nurse at
the LCCF; (21) Officer Eby, a correctional officer at the LCCF; and (22) Timothy
Clements, former Deputy Warden of Operations at the LCCF. Doc. 12 at 1–3,
¶¶ 1–22. Sonsini also names as John/Jane Does defendants an unspecified number
of “unknown nurses/medical staff” and “unknown corrections officers.” Id. at 3,
¶¶ 23–24. He names the defendants in both their official and individual capacities.
Id. at 4.
Although Sonsini is currently incarcerated at the State Correctional
Institution at Greene, his claims arise from his confinement at the LCCF from
October 13, 2016, to March 25, 2017. Id. at 17, ¶ IV.A. He alleges the following
facts in his amended complaint.
Sonsini is serving a one-to-five year sentenced imposed by the Court of
Common Pleas of Lebanon County. Id. at 4, ¶¶ I.A., I.B. On October 13, 2016, he

In his amended complaint, Sonsini identified this defendant as “Nasar/Nasir.”
Doc. 12 at 2. The defendants identify this defendant as Ahmed Nasr. Doc. 14 at 1.
3
1

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 4 of 67

was admitted to the LCCF from the State Correctional Institution at Camp Hill
(“SCI Camp Hill”). Id. at 6, ¶ IV.1.

Housing Assignment and Medical Issues.
Upon his admission to the LCCF, Sonsini informed the intake correctional
officer on the 8-4 shift about his “medical disability/restriction(s)” regarding his
housing assignment. Id. Stating that Sonsini would be speaking to someone from
the medical department later, the intake officer refused to listen to Sonsini’s
concerns regarding his housing assignment. Id.
Later that day, Sonsini spoke to defendant Garbaz about his “medical
disability/restriction(s)” with regard to his housing assignment and with regard to
his dietary restrictions. Id. at 6, ¶ IV.2. Garbaz said she would check Sonsini’s
medical file that was transferred with him. Id. Garbaz gave Sonsini two “Special
Needs Requisition Slips.” Id. at 6, ¶ IV.3. One of those slips dealt with Sonsini’s
dietary restrictions, and it stated, “no chicken, and no fish,” and “d/t allergies
documented” by SCI Camp Hill. Id. The other slip stated “bottom bunk status per”
SCI Camp Hill. Id. Garbaz initialed those slips and dated them October 13, 2016.
Id. After Sonsini pointed out that Garbaz had not included “no turkey and no
pork” on the dietary slip, Garbaz responded that the LCCF does not serve pork and

4

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 5 of 67

it is serves turkey only on Thanksgiving. Id. Sonsini also told Garbaz that he
cannot “navigate stairs per bottom/current/Level tier status.” Id.
After speaking with Garbaz, Sonsini was sent to a block located downstairs,
where he was assigned a top bunk. Id. at 7, ¶ IV.4. Sonsini explained to an
unknown correctional officer on that block that he should not be housed there, but
instead he should be housed in the infirmary, the Medical Housing Unit, or even
the Restricted Housing Unit. Id. He asked the officer to contact someone. Id. But
even though Sonsini showed the officer “the pink slip for the bottom bunk status,”
the officer ignored Sonsini’s pleas for a different housing assignment. Id. Sonsini
was then told that “quarantines” were to report upstairs to the gym for recreation
and showers. Id. at 7, ¶ IV.5.
At about 5:15 p.m. on October 13, 2016, Sonsini slipped and fell on a puddle
of water in the gym. Id. at 7, ¶ IV.5.A. According to Sonsini, the culinary
department stores items in the gym and staff from that department as well as the
correctional officers assigned to the control station are responsible for ensuring that
the area is safe. Id. at 9, ¶¶ IV.5.G, 5.H. After other inmates informed staff that
Sonsini fell, unknown corrections officers responded and alerted the medical
department. Id. at 7, ¶ IV.5.B. Unknown medical staff arrived with a wheelchair.
Id. Sonsini told the medical staff and the corrections officers that there was
something wrong with his knee/leg and that he was in severe pain. Id. Staff helped
5

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 6 of 67

Sonsini into the wheelchair and took him to the medical department where it was
determined that he should go to the hospital. Id. From the medical department,
Sonsini was wheeled down to the intake area, and two unknown corrections
officers escorted Sonsini down two flights of stairs and across a parking lot to a
transport van. Id. at 7, ¶ IV.5.C.
The unknown corrections officer who transported Sonsini to the hospital
made Sonsini get into the van and then out of the van at the hospital on his own. Id.
And even though the officer was aware of Sonsini’s injury and the pain that he was
experiencing, the officer made Sonsini walk into the emergency room of the
hospital. Id. at 7–8, ¶ IV.5.C.
X-rays taken at the hospital showed that Sonsini had bone spurs around his
right knee cap. Id. at 8., ¶ IV.5.D. According to Sonsini, he already had muscle
loss and nerve damage, and the slip and fall in the gym set back the progress he
had made during the physical therapy that he had endured just to be able to bend
his knee after a prior surgery. Id. Although hospital staff wanted to prescribe
Sonsini a knee brace, the unknown correctional officer said Sonsini would not be
allowed to keep a knee brace. Id. The officer also said that the LCCF Medical
Supervisor (defendant Matias) would not allow a compression sleeve or ace
bandage, and she may not allow or approve pain medication. Id. The hospital

6

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 7 of 67

prescribed Sonsini Ibuprofen 600 mg. to be taken four times a day for pain and
discomfort. Id.
When Sonsini returned to the LCCF from the hospital, he was not helped up
the two flights of steps to the intake area, and unknown staff ordered him to return
to his original housing assignment. Id. at 8, ¶ IV.5.E. Staff refused his pleas to be
reassigned to a different housing unit due to his injuries. Id.
Sonsini returned to his cell where he was assigned the top bunk. Id. at 8,
¶ IV.5.F. But because he could not get into his bunk, he pulled his mattress to the
floor to sleep. Id. An unknown correctional officer doing rounds later ordered
Sonsini to get off the floor and into his bunk or else receive a misconduct report.
Id. According to Sonsini, “[t]his caused severe bruises on [his] hips, abdomen,
legs and arms.” Id. And Sonsini, who had problems sitting, standing, and walking,
did not receive his medication for days. Id.
On the 12-8 shift on November 10, 2016, Sonsini did not receive his
psychiatric and pain medications. Id. at 9, ¶ IV.7. On November 14, 2016, in
response to Sonsini’s inquiry about why he was not getting his medication, an
unknown corrections officer said it was a holiday and medical staff was not
available. Id. Sonsini asked the officer if he had medical training since he was
handing out medications, and the officer explained that nurses make up the
medication packets to be handed out. Id. Sonsini told the officer that he had not
7

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 8 of 67

had his medication for four days, and he asked the officer to check with the
medical department about his medication, but the officer said there was nothing he
could do. Id. The officer also refused Sonsini’s request for some pain medication
for the severe pain he was experiencing in his knee and leg. Id.
Sonsini wrote to defendant Matias numerous times about not receiving his
medication. Id. at 9, ¶ IV.7.A. She responded that Sonsini’s Zoloft “was
discontinued due to refusals on November 10, 2016” and that Sonsini should
submit another sick-call request for his Ibuprofen prescription to be refilled. Id.
Sonsini submitted requests and sick-call requests to have his medications
refilled. Id. at 9, ¶ IV.7.B. And, on November 21, 2016, he filed a grievance
complaining about medical negligence. Id. Sonsini complained that Dr. Yocum
was to review his x-rays and notify him of a course of action, but he never saw or
heard from Dr. Yocum. Id. Defendant Matias denied Sonsini’s grievance. Id.
Sonsini then filed an appeal of that denial to defendant Karnes, who never
responded. Id. at 10, ¶ IV.7.C, 12, ¶ IV.11. Sonsini does not have a copy of his
appeal to Karnes because defendant Davis would not allow him to make a copy
prior to filing. Id. at 10, ¶ IV.7.C.
On December 13, 2016, Sonsini submitted a sick-call request to be seen by
Dr. Powers or the “Psych. Department to be seen for depression, anxiety, P.T.S.D,
etc. and to have [his] medication reissued.” Id. at 10, ¶ IV.7.D. This was not
8

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 9 of 67

Sonsini’s first such request. According to Sonsini, “[a]s of December 13, 2016,
[he had] submitted four (4) requests to Dr. Powers [and] Sarah Ardire, three (3) to
medical supervisor-LPN, Jacqueline Matias and Deputy Warden of treatmentAnthony Hauck.” Id. at 10, ¶ IV.7.E. On December 16, he submitted another
request to Dr. Powers about being seen and having his medication reissued. Id.
On December 28, 2016, Sonsini received a response from defendant Ardire
to a request he has sent a month earlier; the response stated, “We will schedule you
to meet with Dr. Powers, as soon as we can.” Id. at 10, ¶ IV.7.D. Also on
December 28, 2016, Sonsini asked defendant Garbaz about the status of his
medications and his sick-call requests and about copying his medical file. Id. at 10,
¶ IV.7.F. Garbaz told him to contact defendant Matias. Id. Sonsini explained that
he had done so numerous times and Matias either does not respond or does not
correct the issues. Id.
On December 29, 2016, Sonsini wrote to defendant Matias about obtaining a
copy of his medical file, which he wanted so that he had proof regarding his
requests and the denial of those requests by staff, including defendant Hauck. Id. at
10, ¶ IV.7.G. Sonsini also asked his counselor—defendant Davis—for copies of
his sick-call requests. Id. at 11. ¶ IV.7.H. Davis denied that request, and she
refused to help Sonsini obtain his medical records. Id. at 11, ¶ IV.7.H., 7.I. She
also denied Sonsini’s request to personally deliver one of his request slips to
9

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 10 of 67

defendant Matias. Id. at 11, ¶ IV.7.I. Davis did, however, provide Sonsini an
envelope for his paperwork, and she said she would drop the envelope in Matias’s
box. Id. According to Sonsini, defendant Matias did not respond to any of his
requests after he submitted his grievance on November 21, 2016. Id.
On January 23, 2017, Sonsini “wrote a Letter(s) to the county
commissioners, Mr. Phillips, Mr. Ames, and Mrs. Litz and county administratorMr. Wolgemuth about the issues taking place at the Lebanon County Correctional
Facility.” Id. at 11, ¶ IV.8. He never received a response. Id. at 11, ¶ IV.8, 12,
¶ IV.11.
Later in January 2017, Sonsini sent a request to defendant Hauck requesting
that defendant Matias call him to the medical department so that he could have his
medical file copied. Id. at 11, ¶ IV.7.J. Hauck responded, “We are not copying
your medical file unless we receive a court order to do so signed by a judge.” Id.
On February 16, 2017, defendant Barrette refused to give Sonsini his
medication, stating that it was too early. Id. at 11, ¶ IV.9. Sonsini explained that he
was to get his medication every four to six hours, that his last dose was at 12:12
p.m., that it was now 5:35 p.m., and that he was in pain. Id. Nurse Barrette just
walked away. Id.
According to Sonsini, from March 9, 2017, to March 24, 2017, he asked the
nurses every day for medication, but he never got any. Id. at 12, ¶ IV.10.C. On
10

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 11 of 67

March 20, 2017, he asked defendant Nurse Tammy for a pain reliever for the pain
and discomfort he was having. Id. at 12, ¶ IV.10.D. She denied that request, and
she told Sonsini that if he wanted pain medication, he should submit a sick-call
request to have it reinstated. Id.
According to Sonsini, the events at the LCCF between October 13, 2016,
and March 25, 2017, “caused complications with his P.T.S.D., mental health
condition, increased depression, stress and unnecessary pain, swelling and
discomfort in his knee, leg and back, and other numerous injuries as a result of the
accident and subsequent housing issues.” Id. at 13, ¶ IV.11.B.

Cell Search and Disciplinary Proceeding.
On March 8, 2017, Sonsini’s cell was searched, and a packet of medication
with his name on it was found. Id. at 12, ¶ IV.10. The medication was the
Ibuprofen that Sonsini had been prescribed, which was to be taken as needed four
times a day, every four to six hours. Id. Sonsini received a misconduct report for
having the medication in his cell. Id. According to Sonsini, he had the medication
in his cell because the medical staff was inconsistent about giving him his
medication. Id. Sonsini was taken to the Segregated Housing Unit for pre-hearing
confinement, where he was assigned a top bunk. Id. at 12, ¶ IV.10.A.
A couple of days later, defendant Hauck presided over Sonsini’s disciplinary
hearing. Id. at 12, ¶ IV.10.B. Hauck found Sonsini guilty of possession of
11

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 12 of 67

contraband, sentenced him to 20 days in the Segregated Housing Unit, and charged
him a $25 administrative fee. Id.

Dietary Issues.
In addition to complaining about his housing issues and medical care,
Sonsini complains about the diet that he received while at the LCCF from October
13, 2016, to March 25, 2017. As set forth above, when he first arrived at the
LCCF, defendant Garbaz gave him a Special Needs Requisition Slip regarding his
diet that stated, “no chicken, and no fish,” and “d/t allergies documented” by SCI
Camp Hill. Id. at 6, ¶ IV.3. He contends, however, that defendants Folton and
Kane refused to provide “an alternative or bland tray[.]” Id. at 13, ¶ IV.12.A.
Sonsini received an “alternative tray” for lunch on February 7, 2017, but for
dinner that same day he was refused such a tray. Id. at 14, ¶ IV.12.B. More
specifically, after a correctional officer called for an “alternative or bland tray” for
Sonsini, defendant Folton told the officer that if Sonsini did not eat the food on the
tray he had been given, “it was on [him].” Id. Sonsini then asked two unknown
correctional officers to grab him anything from the kitchen that did not have meat
so that he could eat something. Id. The officers, however, said Sonsini “was
burnt.” Id.
On February 16, 2017, Sonsini spoke to defendant Santoni about his dietary
status. Id. at 14, ¶ IV.12.C. Sonsini asked Santoni to speak to defendant Folton
12

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 13 of 67

and/or defendant Kane about providing him with an “alternative or bland tray”
because of his dietary restrictions. Id. Santoni replied that he would not speak to
anyone about a special tray. Id. And after Sonsini told Santoni that he was
violating his First and Eighth Amendment rights, Santoni declared, “Your rights
are not being violated because you’re receiving food and . . . you do not get a say
in what you get to eat.” Id. at 14, ¶ IV.12.D. Sonsini asked Santoni to at least have
the culinary staff not put meat on his tray, but again Santoni refused. Id. Two
unknown correctional officers were working on the control block and defendant
Eby was working in central control when Sonsini was not provided with an
“alternative or bland tray” on February 17, 2017. Id. at 14, ¶12.C.
During the first week of March 2017, unknown nurses called Sonsini to the
medical department, and they told him that his alternative meal will be a small can
of Ensure that will be given to him every morning at about 3:00 a.m. at a cost to
him of $3.00 per can. Id. at 14, ¶ IV.12.F. According to Sonsini, being woken up
at 3:00 a.m. interfered with his sleep and caused him to suffer physical, mental,
and emotional distress. Id. at 15, ¶ IV.12.G. Sonsini received 22 cans of ensure,
but he was not provided with three cans while he was in the SHU. Id. at 14,
¶ IV.12.F.
According to Sonsini, defendants Matias, Folton, Karnes, Hauck, Phillips,
Ames, Litz, and Wolgemuth, as well as other officers and staff, “were notified
13

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 14 of 67

and/or aware of my dietary restrictions of not eating fowl, fish or pork.” Id. at 13,
¶ IV.12. But, Sonsini asserts, no one stepped in and did anything. Id. at 14,
¶ IV.12.E. And because the defendants failed to provide him a diet in accord with
his dietary restrictions, Sonsini was able to eat only approximately 215–220 of the
480 meals served during his five months at the LCCF. Id. at 13, ¶ IV.12.A. This
caused him “depression, fatigue, stress, vomiting, nausea and weight loss.” Id.

Legal Mail/Phone Call.
Sonsini also complains about problems with his mail when he was at the
LCCF. On December 15, 2016, Sonsini sent letters to the Lebanon County Clerk
of Court and a magisterial district judge, and on December 30, 2016, he sent letters
to Attorney Brian Deiderick and the Lebanon County Clerk of Court. Id. at 15,
¶ IV.13, 13.A. According to Sonsini, based on a docket sheet of his case, those
letters were never received by the intended recipients, although other letters that he
sent to Deiderick and the County Clerk of Court on other dates were received. Id.
15, ¶ IV.13, 13.A, 13.C. Sonsini concludes that this shows that the letters at issue
were not sent through the “inner-office mail system, which is standard protocol for
all mail addressed to the courthouse.” Id. at 15, ¶ IV.13.C. Sonsini asserts that he
is not the only person to which this happened. Id. And he suggests that there were
also problems with mail sent through the postal service. Id. He contends that

14

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 15 of 67

“[s]omehow, someway, or by someone legal mail is being lost, or destroyed . . . .”
Id.
Sonsini asked Correctional Officer Mease who was responsible for the
outgoing legal mail, and Mease said that “six (6) block” and the LCCF office
manager are responsible for all “inner-office (Legal mail).” Id. at 16, ¶ IV.13.D.
At that time, defendant Cresini held the position of LCCF office manager, and she
was responsible for all legal mail going to the courthouse. Id. In February 2017,
Sonsini requested that defendant Cresini provide him a record of his outgoing
correspondence. Id. at 16, ¶ IV.13.F. She provided him with dates for letters
Sonsini had sent; those dates did not include December 15, 2016, or December 30,
2016, the dates Sonsini alleges that he sent letters that the intended recipients never
received. Id.
On February 6, 2107, Sonsini wrote to defendant Davis requesting to be
allow a call to Attorney Deiderick. Id. at 16, ¶ IV.13.E. The next day, Davis
responded: “We do not do personal calls.” Id. According to Sonsini, the call “was
to [his] attorney for legal purposes, not personal.” Id.
Sonsini contends that the actions and inaction of the staff at the LCCF
constituted “a continued campaign of harassment, create[d] governmental
interference, clear due process violations, civil rights violations, denial of legal
means/remedy, right to access to the courts and other constitutional legal
15

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 16 of 67

violations.” Id. at 16, ¶ IV.13.G. And, according to Sonsini, this affected his legal
case and influenced the amount of time he is incarcerated as well as causing him
physical, emotional, and mental suffering. Id.
Sonsini brings federal claims as well as state law claims. More specifically,
he brings claims under 42 U.S.C. § 1983 for purported violations of the First, Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. He
also brings claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12131 et seq., and the Rehabilitation Act (“RA”), 29 U.S.C. § 701 et seq. He
brings state law claims for premises liability, negligence, civil conspiracy, and
violations of the Pennsylvania Constitution. Sonsini seeks injunctive relief and
attorney fees as well as nominal, compensatory, and punitive damages. Id. at 23–
24.
Sonsini and the defendants who have been served in this case—defendants
Lebanon County, Phillips, Ames, Litz, Wolgemuth, Karnes, Hauck, Folton,
Loyola, Eby, Kane, Davis, Nasr, and Barrette (“the Lebanon County
Defendants”)2—consented to proceed before a magistrate judge pursuant to 28
U.S.C. § 636(c), and the case was referred to the undersigned. Currently pending
is a motion to dismiss filed by the Lebanon County Defendants. That motion has
been fully briefed. For the reasons discussed below, we will grant in part and deny
2

Because these defendants refer to themselves as the Lebanon County
Defendants, see doc. 14 at 1, we will also refer to them as such.
16

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 17 of 67

in part that motion. We will also dismiss the unserved defendants. And we will
grant Sonsini leave to file a second amended complaint.

III. Pleading and Motion-to-Dismiss Standards.
In accordance with Fed. R. Civ. P. 12(b)(6), the court may dismiss a
complaint for “failure to state a claim upon which relief can be granted.” When
reviewing a motion to dismiss under Rule 12(b)(6), “[w]e must accept all factual
allegations in the complaint as true, construe the complaint in the light favorable to
the plaintiff, and ultimately determine whether plaintiff may be entitled to relief
under any reasonable reading of the complaint.” Mayer v. Belichick, 605 F.3d 223,
229 (3d Cir. 2010). In making that determination, we “consider only the
complaint, exhibits attached to the complaint, matters of public record, as well as
undisputedly authentic documents if the [plaintiff’s] claims are based upon these
documents.” Id. at 230.
“A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a).” I.H. ex rel. D.S. v. Cumberland Valley Sch.
Dist., 842 F. Supp. 2d 762, 769–70 (M.D. Pa. 2012). “Under Federal Rule of Civil
Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the
claim showing that the pleader is entitled to relief.’” Ashcroft v. Iqbal, 556 U.S.
662, 677–78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). The statement required by
Rule 8(a)(2) must give the defendant fair notice of the nature of the plaintiff’s
17

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 18 of 67

claim and of the grounds upon which the claim rests. Erickson v. Pardus, 551 U.S.
89, 93 (2007). Detailed factual allegations are not required, but more is required
than “labels,” “conclusions,” or “a formulaic recitation of the elements of a cause
of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “In other
words, a complaint must do more than allege the plaintiff’s entitlement to relief.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). “A complaint has
to ‘show’ such an entitlement with its facts.” Id.
In considering whether a complaint fails to state a claim upon which relief
can be granted, the court “‘must accept all facts alleged in the complaint as true
and construe the complaint in the light most favorable to the nonmoving party.’”
Krieger v. Bank of Am., N.A., 890 F.3d 429, 437 (3d Cir. 2018) (quoting Flora v.
Cty. of Luzerne, 776 F.3d 169, 175 (3d Cir. 2015)). But a court “need not credit a
complaint’s bald assertions or legal conclusions when deciding a motion to
dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). A
court also need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff
has not alleged.” Associated Gen. Contractors of Cal. v. California State Council
of Carpenters, 459 U.S. 519, 526 (1983).
Following Twombly and Iqbal, a well-pleaded complaint must contain more
than mere legal labels and conclusions. Rather, it must recite factual allegations
sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere
18

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 19 of 67

speculation. In practice, consideration of the legal sufficiency of a complaint
entails a three-step analysis:
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.”
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (footnote and
citations omitted) (quoting Iqbal, 556 U.S. at 675, 679).
A complaint filed by a pro se litigant is to be liberally construed and
“‘however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.’” Erickson, 551 U.S. at 94 (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Nevertheless, “pro se litigants still must allege
sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina,
Inc., 704 F.3d 239, 245 (3d Cir. 2013).

IV. Discussion.
Federal Rule of Civil Procedure 10(b) provides, in part, that “[i]f doing so
would promote clarity, each claim founded on a separate transaction or occurrence
. . . must be stated in a separate count or defense.” Here, Sonsini has not set forth
his claims in separate counts, and his failure to do so makes it difficult to follow
his amended complaint. Nevertheless, construing the amended complaint liberally
19

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 20 of 67

because Sonsini is proceeding pro se, we have done our best to identify his claims
as to the Lebanon County Defendants.
The amended complaint contains both federal and state law claims. The
Lebanon County Defendants focus mainly on the federal claims, and we start with
those claims.

A. Federal Claims.
1. 42 U.S.C. § 1983 Claims.
In his amended, Sonsini claims that the defendants violated his First, Fifth,
Sixth, Eighth, and Fourteenth Amendment rights. His constitutional claims are
properly brought under 42 U.S.C. § 1983. “Section 1983 imposes civil liability
upon any person who, acting under the color of state law, deprives another
individual of any rights, privileges, or immunities secured by the Constitution or
laws of the United States.” Shuman v. Penn Manor School Dist., 422 F.3d 141, 146
(3d Cir. 2005). Section 1983 “does not create any new substantive rights but
instead provides a remedy for the violation of a federal constitutional or statutory
right.” Id. To establish a claim under § 1983, the plaintiff must establish a
deprivation of a federally protected right and that this deprivation was committed
by a person acting under color of state law. Woloszyn v. County of Lawrence, 396
F.3d 314, 319 (3d Cir. 2005).

20

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 21 of 67

a. Lebanon County.
Lebanon County contends that Sonsini has failed to state a viable § 1983
claim against it. We agree.
A municipality, such as Lebanon County, cannot be held liable under 42
U.S.C. § 1983 for the unconstitutional acts of its employees on a theory of
respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691
(1978). Rather, “under § 1983, local governments are responsible only for ‘their
own illegal acts.’” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting
Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) (emphasis in original)).
“[A] § 1983 claim against a municipality may proceed in two ways.” Forrest v.
Parry, 930 F.3d 93, 105 (3d Cir. 2019). One way for a plaintiff to present a claim
against a municipality is to allege “that an unconstitutional policy or custom of the
municipality led to his or her injuries.” Id. Another way for a plaintiff to present a
claim against a municipality is to allege that his injuries “were caused by a failure
or inadequacy by the municipality that ‘reflects a deliberate or conscious choice.’”
Id. (quoting Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)).
To plead a claim against a municipality under the policy-or-custom strand of
municipal liability, “a plaintiff must allege that ‘a [local] government’s policy or
custom . . . inflict[ed] the injury’ in question.” Estate of Roman, 914 F.3d at 798
(quoting Monell, 436 U.S. at 694). ‘“Policy is made when a decisionmaker
21

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 22 of 67

possess[ing] final authority to establish municipal policy with respect to the action
issues an official proclamation, policy, or edict.’” Id. (quoting Andrews v. City of
Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990) (alteration in original) (internal
quotation marks omitted)). ‘“Custom, on the other hand, can be proven by
showing that a given course of conduct, although not specifically endorsed or
authorized by law, is so well-settled and permanent as virtually to constitute law.’”
Id. (quoting Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990)).
“To satisfy the pleading standard, [a plaintiff] must identify a custom or
policy, and specify what exactly that custom or policy was.” McTernan v. City of
York, 564 F.3d 636, 658 (3d Cir. 2009). “Although a policy or custom is necessary
to plead a municipal claim, it is not sufficient to survive a motion to dismiss.”
Estate of Roman, 914 F.3d at 798. “A plaintiff must also allege that the policy or
custom was the ‘proximate cause’ of his injuries.” Id.
Here, Sonsini has not alleged facts from which it can reasonably be inferred
that a policy or custom of Lebanon County violated his rights. In fact, Sonsini
alleges nothing in this regard.
Another way for a plaintiff to present a claim against a municipality is to
allege that his or her injuries “were caused by a failure or inadequacy by the
municipality that ‘reflects a deliberate or conscious choice.’” Forrest, 930 F.3d at
105 (quoting Estate of Roman, 914 F.3d at 798). “The latter avenue arose in the
22

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 23 of 67

failure-to-train context, but applies to other failures and inadequacies by
municipalities, including those related to supervision and discipline of its . . .
officers.” Id.
A plaintiff asserting a municipal liability claim based on a failure or
inadequacy of training, supervision, or discipline “need not allege an
unconstitutional policy.” Estate of Roman, 914 F.3d at 798. Rather, he must show
that the municipality’s failure to train, supervise, or discipline “its employees
‘reflects a deliberate or conscious choice.’” Id. (quoting Brown v. Muhlenberg
Twp., 269 F.3d 205, 215 (3d Cir. 2001)). In this regard, the plaintiff must show “a
failure or inadequacy amounting to deliberate indifference on the part of the
municipality.” Forrest, 930 F.3d at 106. “This consists of a showing as to whether
(1) municipal policymakers know that employees will confront a particular
situation, (2) the situation involves a difficult choice or a history of employees
mishandling, and (3) the wrong choice by an employee will frequently cause
deprivation of constitutional rights.” Id.
Here, Sonsini has not alleged facts from which it can reasonably be inferred
that a failure or inadequacy of training, supervision, or discipline by Lebanon
County caused a violation of his rights. Again, Sonsini alleges nothing in this
regard.

23

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 24 of 67

In sum, the amended complaint fails to state a 42 U.S.C. § 1983 claim upon
which relief can be granted against Lebanon County.

b. The Lebanon County Defendants in their Official Capacities.
In addition to naming Lebanon County as a defendant, Sonsini names the
Lebanon County Defendants as defendants in their official capacities.
Official-capacity suits are “only another way of pleading an action against
an entity of which an officer is an agent.” Monell, 436 U.S. at 690, n. 55. In an
official-capacity suit, the entity of which the officer is an agent is the real party in
interest. Kentucky v. Graham, 473 U.S. 159, 166 (1985). “There is no longer a
need to bring official-capacity actions against local government officials, for under
Monell, supra, local government units can be sued directly for damages and
injunctive or declaratory relief.” Id. at 167 n.14. “[B]ecause official capacity
claims against an individual defendant are duplicative of claims brought against a
municipality, ‘courts sitting in the Third Circuit have dismissed defendants sued in
their official capacity when the same claims are made against the municipality.’”
Rankin v. Majikes, No. 3:CV-14-699, 2014 WL 6893693, at *6 (M.D. Pa. Dec. 5,
2014) (quoting Dubas v. Olyphant Police Dep’t, No. 3:11-CV-1402, 2012 WL
1378694, at *4 (M.D. Pa. Apr. 20, 2012)); see also Whitehurst v. Lackawanna
Cty., No. 3:17-CV-00903, 2020 WL 6106616, at *7 (M.D. Pa. Mar. 5, 2020)
24

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 25 of 67

(recommending that claims against county defendants in their official capacities be
dismissed as redundant “pursuant to the Court’s inherent authority to control its
docket and avoid duplicative claims” where county is also named as a defendant),
report and recommendation adopted, 2020 WL 6083409 (M.D. Pa. Oct. 15,
2020).
Here, given that Sonsini named Lebanon County in his amended complaint,
the 42 U.S.C. § 1983 claims against the Lebanon County defendants in their
official capacities are redundant of the claims against Lebanon County. Moreover,
as set forth above, the amended complaint fails to state a § 1983 claim upon which
relief can be granted against Lebanon County. Thus, is necessarily follows that the
amended complaint fails to state a § 1983 claim upon which relief can be granted
against the Lebanon County Defendants in their official capacities.
The Lebanon County Defendants have not moved to dismiss the § 1983
claims against them in their official capacities. But the court has the authority “on
its own” to dismiss a claim brought by a prisoner with respect to prison conditions
under federal law for failure to state a claim upon which relief can be granted. See
42 U.S.C. § 1997e(c)(1). Pursuant to that authority, we will dismiss the § 1983
claims against the Lebanon County Defendants in their official capacities.3

3

We will dismiss the § 1983 claims on this basis only against the Lebanon County
Defendants in their official capacities. Below, we discuss the § 1983 claims
25

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 26 of 67

c. The Lebanon County Defendants in their individual/personal
capacities.
The individual Lebanon County Defendants contend that the § 1983 claims
against them should be dismissed.

(i). Defendants Phillips, Ames, Litz, and Wolgemuth.
Defendants Phillips, Ames, Litz, and Wolgemuth contend that the amended
complaint fails to state a 42 U.S.C. § 1983 claim against them because Sonsini has
not alleged that they were personally involved in the alleged violation of his
constitutional rights.
“In advancing any § 1983 claim against prison officials, a plaintiff may not
rely solely on a respondeat superior theory of liability.” Dooley v. Wetzel, 957
F.3d 366, 374 (3d Cir. 2020). “Rather, a plaintiff must aver facts to show the
defendants’ personal involvement in the alleged misconduct.” Id. In other words,
“each Government official, his or her title notwithstanding, is only liable for his or
her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). And so, a
constitutional deprivation cannot be premised merely on the fact that the defendant
was a supervisor when the incidents set forth in the complaint occurred. See
Alexander v. Forr, 297 F. App’x 102, 104–05 (3d Cir. 2008). Rather, “[b]ecause
vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead
against the individual Lebanon County Defendants in their individual or personal
capacities.
26

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 27 of 67

that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
The Third Circuit has “recognized that ‘there are two theories of supervisory
liability, one under which supervisors can be liable if they established and
maintained a policy, practice or custom which directly caused the constitutional
harm, and another under which they can be liable if they participated in violating
plaintiff's rights, directed others to violate them, or, as the persons in charge, had
knowledge of and acquiesced in their subordinates’ violations.’” Parkell v.
Danberg, 833 F.3d 313, 330 (3d Cir. 2016) (quoting Santiago v. Warminster Twp.,
629 F.3d 121, 129 n.5 (3d Cir. 2010)).
“Where a supervisor with authority over a subordinate knows that the
subordinate is violating someone’s rights but fails to act to stop the subordinate
from doing so, the factfinder may usually infer that the supervisor ‘acquiesced’ in
(i.e., tacitly assented to or accepted) the subordinate’s conduct.” Robinson v. City
of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997) (footnote omitted), abrogated on
other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).
“A plaintiff makes sufficient allegations of a defendant’s personal involvement by
describing the defendant’s participation in or actual knowledge of and
acquiescence in the wrongful conduct.” Chavarriaga v. New Jersey Dep’t of Corr.,
806 F.3d 210, 222 (3d Cir. 2015).
27

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 28 of 67

Defendants Phillips, Ames, Litz, and Wolgemuth construe the § 1983 claims
against them as claims that they failed to respond to Sonsini’s grievances. And
they cite Castillo v. Does, No. 3:15-CV-00910, 2016 U.S. Dist. LEXIS 129018
(M.D. Pa. Sep. 20, 2016), report and recommendation adopted, 2016 U.S. Dist.
LEXIS 143400 (M.D. Pa. Oct. 17, 2016), for the proposition that an official’s
failure to respond to an inmate’s letter or grievance is insufficient to impose
liability. In that case, the court stated that “neither the filing of a grievance or
participation in the ‘after-the-fact’ review of a grievance is sufficient to establish
personal involvement.” Id. at *23 (M.D. Pa. Sep. 20, 2016).
It is true that “[t]he ‘after-the-fact’ review of a grievance, or an inmate’s
dissatisfaction with a grievance response, do not establish the involvement of
officials and administrators in any underlying constitutional deprivation.” Stuart v.
Murray, No. 1:18-CV-0430, 2020 WL 6710209, at *6 (M.D. Pa. Nov. 16, 2020);
see also Brooks v. Beard, 167 F. App’x 923, 925 (3d Cir. 2006) (“Although the
complaint alleges that Appellees responded inappropriately to Brooks’s later-filed
grievances about his medical treatment, these allegations do not establish
Appellees’ involvement in the treatment itself.”). But in some circumstances, a
grievance may be enough to put an official on notice of an alleged continuing
violation of a prisoner’s rights, and, therefore, may show actual knowledge of an
alleged constitutional violation and acquiescence in the events forming the basis of
28

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 29 of 67

a prisoner’s claims. See Johnson v. Wireman, 809 F. App’x 97, 100, 100 n.20 (3d
Cir. 2020) (refusing to dismiss two defendants for lack of personal involvement in
claims that the prisoner’s religious rights were being violated based, in part, on
their responses to his grievances; noting that the prisoner did not merely allege that
the defendants “denied the grievances, which would amount to an impermissible
respondeat superior theory of liability”; and suggesting that the grievances and
responses were enough to sufficiently allege actual knowledge and acquiescence);
Parkell, 833 F.3d at 337 n.14 (“Our oft-cited holding in Rode v. Dellarciprete, 845
F.2d 1195, 1208 (3d Cir. 1988) that the mere filing of a grievance does not show
actual knowledge by a supervisor is not applicable, as Phelps’s letters show that he
actually had reviewed the grievances.”); Diaz v. Palakovich, 448 F. App’x 211,
215 (3d Cir. 2011) (holding that summary judgment for the defendants was
improper where the defendants had knowledge through the grievance process of an
alleged ongoing practice of improper handling of the plaintiff’s mail and the
defendants failed to take corrective action); Sutton v. Rasheed, 323 F.3d 236, 249–
50 (3d Cir. 2003) (concluding that summary judgment was not warranted as to a
defendant who received from the prisoner a letter, styled as a final appeal of a
grievance, who referred the issue to another, and who then responded by denying
the grievance appeal); Atkinson v. Taylor, 316 F.3d 257, 270-271 (3d Cir. 2003)
(refusing to hold as a matter of law that correspondence or conversations with
29

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 30 of 67

prison officials do not constitute sufficient evidence of actual knowledge and
acquiescence).
Here, Sonsini alleges that on January 23, 2017, he “wrote a Letter(s) to the
county commissioners, Mr. Phillips, Mr. Ames, and Mrs. Litz and county
administrator-Mr. Wolgemuth about the issues taking place at the Lebanon County
Correctional Facility.” Doc. 12 at 11, ¶ IV.8. He never received a response. Id. at
11, ¶ IV.8, 12, ¶ IV.11. He also alleges that defendants Phillips, Ames, Litz, and
Wolgemuth, among others “were notified and/or aware of my dietary restrictions
of not eating fowl, fish or pork.” Id. at 13, ¶ IV.12. And Sonsini claims that these
defendants “[d]id not intervene when notified about conditions and treatment.” Id.
at 17–18, ¶¶ IV.C.1–C.5.
Although allegations that officials were notified about an ongoing
constitutional violation but failed to intervene to stop the violation may in some
circumstance be enough to allege personal involvement, here Sonsini’s allegations
in this regard are too general to do so. Given Sonsini’s allegation that he “wrote a
Letter(s)” to Phillips, Ames, Litz, and Wolgemuth, id. at 11, ¶ IV.8, it is not clear
whether he wrote only one letter or more than one letter. It is also not clear to
whom specifically the letter or letters were sent. Further, although Sonsini alleges
that he wrote about “the issues taking place at the Lebanon County Correctional

30

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 31 of 67

Facility,” id., Sonsini complains about many issues that arose at the LCCF, and he
does not specify as to which issues he wrote to these defendants.
Moreover, “[a]cquiescence requires both contemporaneous knowledge of the
alleged wrongdoing and direct supervisory authority over the subordinate actor.”
Ali v. Benning, No. 1:18-CV-1068, 2020 WL 1233576, at *3 (M.D. Pa. Mar. 13,
2020). Here, Sonsini alleges that defendants Phillips, Ames, Litz, and Wolgemuth
allowed violations of the Constitution to occur at the LCCF, and, he contends,
“[t]his includes but not limited to, civil conspiracy, negligence, Americans with
Disabilities Act (ADA).” Doc. 12 at 17–18, ¶¶ IV.C.1–C.5. But Sonsini does not
allege anything regarding whether defendants Phillips, Ames, Litz, and
Wolgemuth had direct supervisory authority over the staff at the LCCF who
allegedly violated his rights, and it is not clear from his amended complaint exactly
for which of his many alleged violations he is seeking to hold these defendants
liable. Thus, we conclude that the amended complaint fails to state a 42 U.S.C.
§ 1983 claim upon which relief can be granted against defendants Phillips, Ames,
Litz, and Wolgemuth.

(ii). Defendant Karnes.
Defendants Karnes also contends that the § 1983 claims against him should
be dismissed because Sonsini has not alleged that he was personally involved in
the alleged violation of his constitutional rights. Karnes also relies on Castillo,
31

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 32 of 67

2016 U.S. Dist. LEXIS 129018, for the proposition that an official’s failure to
respond to an inmate’s letter or grievance is insufficient to impose liability. But, as
set forth above, a grievance may be enough to put an official on notice of an
alleged continuing violation of a prisoner’s rights, and, therefore, may show actual
knowledge of an alleged constitutional violation and acquiescence in the events
forming the basis of a prisoner’s claims.
Sonsini alleges that in December of 2016, he appealed the denial of his
grievance concerning “medical negligence” to defendant Karnes, but defendant
Karnes did not respond. Doc. 12 at 9, ¶ IV.7.B, 10, ¶ IV.7.C, 12, ¶ IV.11. He also
alleges that defendant Karnes and others “were notified and/or aware of [his]
dietary restrictions of not eating fowl, fish or pork.” Id. at 13, ¶ IV.12. And more
generally, he alleges that Karnes and other “were made aware of [his]
condition(s).” Id. at 14, ¶ IV.12.E. Sonsini further contends that Karnes “[d]id not
intervene when notified of conditions and treatment.” Id. at 18, ¶ IV.C.6.
Here again, we conclude that Sonsini’s allegations are too general to show
personal involvement in the alleged violations of Sonsini’s constitutional rights.
Although Sonsini alleges that he appealed the denial of his grievance concerning
“medical negligence” to defendant Karnes, negligence is not enough to show a
constitutional violation. See Farmer v. Brennan, 511 U.S. 825, 835 (1994) (holding
that deliberate indifference, which is a required element of an Eighth Amendment
32

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 33 of 67

claim, “describes a state of mind more blameworthy than negligence”); Daniels v.
Williams, 474 U.S. 327, 328 (1986) (holding a state official’s negligent act
“causing unintended loss of or injury to life, liberty, or property” does not
implicate the Due Process Clause). And although Sonsini alleges that Karnes was
“notified and/or aware” of his dietary restrictions, in addition to failing to allege
how Karnes was notified or how he became aware of his dietary restrictions,
Sonsini fails to allege that Karnes was aware that he was not receiving a diet in
accordance with those restrictions. And the amended complaint does not contain
sufficient factual allegations to show that defendant Karnes was personally
involved in any of the other alleged violations of Sonsini’s constitutional rights.
In sum, Sonsini has not alleged facts from which it can reasonably be
inferred that defendants Karnes was personally involved in the alleged violation of
his rights. Thus, we conclude that the amended complaint fails to state a 42 U.S.C.
§ 1983 claim upon which relief can be granted against defendant Karnes.

(iii). Defendant Hauck.
Sonsini alleges that defendant Hauck presided over his disciplinary hearing,
found him guilty of possession of contraband, sentenced him to 20 days in the
Segregated Housing Unit, and imposed a $25 administrative fee. Doc. 12 at 12,
¶ IV.10.B. Sonsini fails to allege, however, what defendant Hauck did not or did

33

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 34 of 67

not do that allegedly violated his constitutional rights in connection with the
disciplinary hearing. Thus, the amended complaint fails to state a 42 U.S.C.
§ 1983 claim upon which relief can be granted against defendant Hauck with
respect to the disciplinary hearing.
Sonsini also alleges that defendant Hauck refused his request for a copy of
his medical records. Sonsini has not alleged, however, what constitutional
provision Hauck violated or how he was harmed by Hauck failing to provide him a
copy of his medical records. See Hearns v. Johnson, No. CV 16-3284 (JLL), 2016
WL 4690386, at *6 (D.N.J. Sept. 6, 2016) (observing that the court is not aware of
a “federal constitutional right requiring that a state prisoner be provided with
copies of his medical files upon request”); Hetzel v. Swartz, 909 F. Supp. 261, 263
(M.D. Pa. 1995) (finding due process claim that prisoner was denied a copy of his
medical records meritless). Thus, the amended complaint fails to state a 42 U.S.C.
§ 1983 claim upon which relief may be granted against defendant Hauck based on
Hauck not copying Sonsini’s medical records.
Defendant Hauck contends that any other § 1983 claims against him should
be dismissed because Sonsini has not alleged that he was personally involved in
the alleged violation of his constitutional rights. As to Hauck, unlike with the
other defendants discussed above, we conclude that although Sonsini’s allegations
are not a model of clarity, he has alleged enough to show that Hauck was aware
34

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 35 of 67

that Sonsini allegedly was not receiving medical care and medication and Hauck
failed to act to correct such. In this regard, Sonsini alleges that on December 13,
2016, he submitted a sick-call request to be seen by Dr. Powers or the “Psych.
Department to be seen for depression, anxiety, P.T.S.D, etc. and to have [his]
medication reissued.” Doc. 12 at 10, ¶ IV.7.D. This was not Sonsini’s first such
request. According to Sonsini, “[a]s of December 13, 2016, [he had] submitted
four (4) requests to Dr. Powers [and] Sarah Ardire, three (3) to medical supervisorLPN, Jacqueline Matias and Deputy Warden of treatment-Anthony Hauck.” Id. at
10, ¶ IV.7.E. On December 16, he submitted another request to Dr. Powers about
being seen and having his medication reissued. Id. And, on December 29, 2016,
Sonsini wrote to defendant Matias about obtaining a copy of his medical file,
which he wanted so that he had proof regarding his requests and the denial of those
requests by staff, including defendant Hauck. Id. at 10, ¶ IV.7.G. Construing the
amended complaint liberally, as we must because Sonsini is proceeding pro se, we
conclude that Sonsini has sufficiently alleged that Hauck was aware of an ongoing
denial of medical treatment to Sonsini and that by failing to act, he acquiesced in
that alleged failure to provide medical treatment.
Sonsini also alleges, as he did in connection with the other defendants, that
defendant Hauck was “notified and/or aware” of his dietary restrictions. But again,
in addition to failing to allege how Hauck was notified or how he became aware of
35

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 36 of 67

his dietary restrictions, Sonsini fails to allege that Hauck was aware that he was not
receiving a diet in accordance with those restrictions. And the amended complaint
does not contain sufficient factual allegations to show that defendant Hauck was
personally involved in any of the other alleged violations of Sonsini’s
constitutional rights other than the denial of medical care.
In sum, the amended complaint alleges that defendant Hauck was personally
involved in the alleged ongoing failure to provided him with medical care, but the
amended complaint otherwise fails to state a 42 U.S.C. § 1983 claim upon which
relief can be granted against defendant Hauck.

(iv). Defendant Barrette.
Defendant Barrette, a nurse at the LCCF, contends that the amended
complaint fails to state an Eighth Amendment claim against her upon which relief
can be granted.
“An inmate must rely on prison authorities to treat his medical needs; if the
authorities fail to do so, those needs will not be met.” Estelle v. Gamble, 429 U.S.
97, 103 (1976). For a plaintiff to allege a viable Eighth Amendment medical
claim, he must allege facts from which it can reasonably be inferred that the
defendant acted with deliberate indifference to his serious medical needs. Id. at
104; see also Groman v. Township of Manalapan, 47 F.3d 628, 637 (3d Cir. 1995)
(“Failure to provide medical care to a person in custody can rise to the level of a
36

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 37 of 67

constitutional violation under § 1983 only if that failure rises to the level of
deliberate indifference to that person’s serious medical needs.”). This is a two-part
inquiry: “a plaintiff must make (1) a subjective showing that ‘the defendants were
deliberately indifferent to [his or her] medical needs’ and (2) an objective showing
that ‘those needs were serious.’” Pearson v. Prison Health Serv., 850 F.3d 526,
534 (3d Cir. 2017) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)).
A medical need is serious if it “has been diagnosed by a physician as
requiring treatment” or if it “is so obvious that a lay person would easily recognize
the necessity for a doctor’s attention.” Monmouth Cnty. Corr. Institutional Inmates
v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F.
Supp. 456, 458 (D.N.J. 1979), aff’d, 649 F.2d 860 (3d Cir. 1981) (table)).
Additionally, “if ‘unnecessary and wanton infliction of pain’ results as a
consequence of denial or delay in the provision of adequate medical care, the
medical need is of the serious nature contemplated by the eighth amendment.” Id.
(quoting Estelle, 429 U.S. at 103). Further, “where denial or delay causes an
inmate to suffer a life-long handicap or permanent loss, the medical need is
considered serious.” Id.
Deliberate indifference is a subjective standard. Farmer, 511 U.S. at 840.
“To act with deliberate indifference to serious medical needs is to recklessly
disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330
37

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 38 of 67

(3d Cir. 2009). To act with deliberate indifference, the prison official must have
known of the substantial risk of serious harm and must have disregarded that risk
by failing to take reasonable measures to abate it. Farmer, 511 U.S. at 837. “[T]he
official must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw the inference.” Id.
The mere misdiagnosis of a condition or medical need, or negligent
treatment provided for a condition, is not actionable as a constitutional claim
because medical malpractice is not a constitutional violation. See id. at 835
(holding that “deliberate indifference describes a state of mind more blameworthy
than negligence”); Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (“Allegations
of medical malpractice are not sufficient to establish a Constitutional violation.”);
Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 192 n. 2 (3d Cir. 2002) (noting that
allegations of medical malpractice, absent evidence of a culpable state of mind, do
not constitute deliberate indifference under the Eighth Amendment). Instead,
deliberate indifference represents a much higher standard, one that requires
“obduracy and wantonness, which has been likened to conduct that includes
recklessness or a conscious disregard of a serious risk.” Rouse, 182 F.3d at 197
(quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
“Indeed, prison authorities are accorded considerable latitude in the
diagnosis and treatment of prisoners.” Durmer v. O’Carroll, 991 F.2d 64, 67 (3d
38

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 39 of 67

Cir. 1993) (citations omitted). And courts will “disavow any attempt to second
guess the propriety or adequacy of a particular course of treatment . . . [which]
remains a question of sound professional judgment.” Palakovic v. Wetzel, 854 F.3d
209, 228 (3d Cir. 2017) (quoting Inmates of Allegheny County Jail v. Pierce, 612
F.2d 754, 762 (3d Cir. 1979)). “Mere disagreement as to the proper medical
treatment does not support an Eighth Amendment claim.” Caldwell v. Luzerne
Cnty. Corr. Facility Mgmt. Employees, 732 F. Supp. 2d 458, 472 (M.D. Pa. 2010).
Thus,”[w]here a prisoner has received some amount of medical treatment, it
is difficult to establish deliberate indifference, because prison officials are afforded
considerable latitude in the diagnosis and treatment of prisoners.” Palakovic, 854
F.3d at 227. “Nonetheless, there are circumstances in which some care is provided
yet it is insufficient to satisfy constitutional requirements.” Id.
The Third Circuit has found deliberate indifference where a prison official:
“(1) knows of a prisoner’s need for medical treatment but intentionally refuses to
provide it; (2) delays necessary medical treatment based on a non-medical reason;
or (3) prevents a prisoner from receiving needed or recommended medical
treatment.” Rouse, 182 F.3d at 197. The Third Circuit has also held that
“[n]eedless suffering resulting from the denial of simple medical care, which does
not serve any penological purpose . . . violates the Eighth Amendment.” Atkinson,
316 F.3d at 266. “For instance, prison officials may not, with deliberate
39

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 40 of 67

indifference to the serious medical needs of the inmate, opt for ‘an easier and less
efficacious treatment’ of the inmate’s condition.” Palakovic, 854 F.3d at 228
(quoting West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978). “Nor may ‘prison
authorities deny reasonable requests for medical treatment . . . [when] such denial
exposes the inmate to undue suffering or the threat of tangible residual injury.’” Id.
(quoting Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326,
346 (3d Cir. 1987)). Thus, “[a] ‘failure to provide adequate care . . . [that] was
deliberate, and motivated by non-medical factors’ is actionable under the Eighth
Amendment, but ‘inadequate care [that] was a result of an error in medical
judgment’ is not.” Parkell, 833 F.3d at 337 (quoting Durmer, 991 F.2d at 69).
The amended complaint contains factual allegations regarding only one
interaction Sonsini had with defendant Barrette.4 Sonsini alleges that on February
4

Sonsini also alleges:
Roberta Barrette-Individual/Official Capacities, allowed and/or
took part in violation(s) of the Constitution of the United States
and the Constitution of the Commonwealth of Pennsylvania at
L.C.C.F. This includes but not limited to, civil conspiracy,
negligence, Americans with Disabilities Act, Rehabilitation
Act. Did not intervene or rectify issues when notified.
Refused/denied proper medical treatment/needs.
Refused/denied adequate nutrition. Denied Due Process.

Doc. 12 at 20, ¶19. These are legal conclusions, which we need not accept when
deciding a motion to dismiss. The only factual allegations in the amended
complaint concerning defendant Barrette concern the one interaction on February
16, 2017, regarding Sonsini’s medication.
40

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 41 of 67

16, 2017, defendant Barrette refused to give him his medication, stating that it was
too early. Doc. 12 at 11, ¶ IV.9. Sonsini explained that he was to get his
medication every four to six hours, that his last dose was at 12:12 p.m., that it was
now 5:35 p.m., and that he was in pain. Id. Nurse Barrette just walked away. Id.5
“[P]rofessional disagreement about the appropriate level of prescription pain
medication” does not amount to deliberate indifference. Parkell, 833 F.3d at 339.
Nor do isolated instances of delay in providing medication without more amount to
deliberate indifference. See Ayala v. Terhune, 195 F. App’x 87, 91 (3d Cir. 2006)
(concluding that “sporadic delays (not exceeding four days at any one time) in
providing prescription medication to Ayala in 2002–2003, do not amount to
deliberate indifference on the part of the named defendants”); Spencer v. Varano,
No. 3:17-CV-2158, 2018 WL 3352655, at *8 (M.D. Pa. July 9, 2018) (observing
that disagreement regarding the times when medication was administered failed to
state a constitutional upon which relief can be granted).
Here, the alleged one-time disagreement between Sonsini and defendant
Barrette about the timing of the administration of his medication is insufficient to
In his brief, Sonsini asserts that defendant Barrette “on more than one occasion”
was deliberately indifferent and negligent. “Although a court on a motion to
dismiss ordinarily ‘must accept the allegations in the complaint as true,’ it is not
compelled to accept assertions in a brief without support in the pleadings.”
Chavarriaga, 806 F.3d at 232 (quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d
Cir. 2013)). “After all, a brief is not a pleading.” Id. Thus, we do not accept the
factual assertions in Sonsini’s brief that do not appear in his amended complaint.
5

41

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 42 of 67

raise an inference that Barrette was deliberately indifferent to a serious medical
need of Sonsini. Thus, the amended complaint fails to state an Eighth Amendment
claim against defendant Barrette upon which relief can be granted.
Sonsini also mentions that Fifth Amendment in his amended complaint. It is
not clear from the amended complaint, however, against whom Sonsini is
attempting to assert a Fifth Amendment claim. But in his brief, Sonsini mentions
that Fifth Amendment in connection with, among others, defendant Barrette.
The Fifth Amendment provides, in pertinent part, that “[n]o person shall . . .
be deprived of life, liberty, or property, without due process of law.” U.S. Const.
amend. V. The Due Process Clause of the Fifth Amendment, however, applies
only to the federal government and federal officials. Shoemaker v. City of Lock
Haven, 906 F. Supp. 230, 237 (M.D. Pa. 1995). “It does not apply to the acts or
conduct of the states, their agencies, subdivisions, or employees.” Id.
Accordingly, the Fifth Amendment is not applicable in this case because the
defendants here, including defendant Barrette, are not federal actors. Thus, the
complaint fails to state a Fifth Amendment claim upon which relief can be granted
against defendant Barrette or any of the other defendants.

42

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 43 of 67

(v). Defendants Loyola, Nasr, and Eby.
Defendants Loyola and Nasr contend that the amended complaint fails to
state a 42 U.S.C. § 1983 claim upon which relief can be granted against them
because the amended complaint contains no properly pleaded factual allegations
against them. Sonsini identifies defendants Loyola and Nasr as correctional
officers at the LCCF. Doc. 12 at 2, ¶¶ 16, 17. And he makes conclusions regarding
their liability. As to defendant Loyola, Sonsini concludes:
Alexa Loyola-Individual/Official capacities, violated the
Constitution of the United States and the Constitution of the
Commonwealth of Pennsylvania at L.C.C.F. This includes but
not limited to, civil conspiracy, negligence, harassment, abuse.
Did not intervene or rectify issues when notified.
Refused/Denied adequate nutrition. Refused/Denied medical
treatment/needs. Denied Due Process.
Id. at 20, ¶ IV.C.16. Similarly, as to defendant Nasr, Sonsini
concludes:
Correctional Officer known as Nasar or Nasir,Individual/Official capacities, allowed and/or took part in
violation(s) of the Constitution of the United States and the
Constitution of the Commonwealth of Pennsylvania at L.C.C.F.
Did not intervene or rectify issues when notified.
Refused/Denied adequate nutrition. Refused/Denied medical
treatment/needs. Took part in harassment.
Id. at 20, ¶ IV.C.17.
Sonsini fails, however, to allege any facts as what defendants Loyola and
Nasr actually did or did not do that violated his rights. For example, he does not
allege how they allegedly harassed him, how they denied him medical treatment,
43

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 44 of 67

or how that denied him adequate nutrition. Because the amended complaint
contains no well-pleaded factual allegations regarding defendants Loyola and Nasr,
the amended complaint fails to state a 42 U.S.C. § 1983 claim upon which relief
can be granted against them.6
Similarly, Sonsini identifies defendant Eby as a correctional officer at the
LCCF. Doc. 12 at 3, ¶ 21, and he makes conclusions regarding Eby’s liability:
Correctional Officer, EBY-Individual/official capacities,
allowed and/or took part in violation(s) of the Constitution of
the United States and the Constitution of the Commonwealth of
Pennsylvania at L.C.C.F. This includes but not limited to, civil
conspiracy, negligence, premises liability. Did not intervene or
rectify issues when notified. Did not properly inspect gym of
hazards. Refused/Denied adequate nutrition. Denied Due
Process.
Id. at 21, ¶ IV.C.21. Sonsini also alleges that defendant Eby was working in
central control on February 17, 2017, when he was not provided with an
“alternative or bland tray.” Id. at 14, ¶ IV.12.C. But Sonsini does not allege facts
from which it can reasonably be inferred that defendant Eby was personally

6

Sonsini includes additional factual assertions in his brief regarding defendants
Loyola and Nasr. As noted above, see supra. n.5, we do not accept factual
assertions in Sonsini’s brief that do not appear in his amended complaint. We do
note, however, that in his brief Sonsini suggests that defendant Loyola violated the
Fourth Amendment in connection with the search of his cell. In the event that
Sonsini files a second amended complaint, he should be aware that “prisoners have
no legitimate expectation of privacy” in their cells, and “the Fourth Amendment’s
prohibition on unreasonable searches does not apply in prison cells.” Hudson v.
Palmer, 468 U.S. 517, 530 (1984).
44

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 45 of 67

involved in denying him an appropriate tray on that date. And because “[i]n
advancing any § 1983 claim against prison officials, a plaintiff may not rely solely
on a respondeat superior theory of liability,” Dooley, 957 F.3d at 374, Eby cannot
be liable under § 1983 merely because he was working in central control when an
alleged violation of Sonsini’s right occurred. Thus, the amended complaint fails to
state a 42 U.S.C. § 1983 claim against defendant Eby upon which relief can be
granted.7

(vi). Defendants Folton and Kane.
Defendants Folton and Kane, members of the LCCF culinary staff, contend
that the amended complaint fails to state a 42 U.S.C. § 1983 claim upon which
relief can be granted against them. Folton and Kane concede that Sonsini alleges
that they knew of his dietary restrictions and failed to provide him with alternative
meals. Doc. 15 at 9. They contend, however, that because Sonsini does not allege
that his dietary restrictions were motivated by a sincerely held religious belief, he
fails to state a First Amendment claim upon which relief can be granted. True.
But it does not appear that Sonsini has attempted to plead a First Amendment

7

Sonsini includes additional factual assertions in his brief regarding defendant
Eby, but we again note, see supra. nn.5, 6, we do not accept the factual assertions
in Sonsini’s brief that do not appear in his amended complaint.
45

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 46 of 67

claim based on his diet. Rather, as defendants Folton and Kane acknowledge,
Sonsini “suggests his dietary restrictions were medically-based.” Doc. 15 at 9.
As set forth above, to state an Eighth Amendment claim upon which relief
can be granted,8 a plaintiff must allege facts from which it can reasonably be
inferred that the defendant acted with deliberate indifference to his serious medical
needs. Estelle, 429 U.S. at 104 (1976). “[A] special diet [can] constitute a serious
medical need.” Molley v. CFG Health Sys., No. CIV.A. 10-5266 NLH, 2012 WL
1134817, at *4 (D.N.J. Apr. 3, 2012). Defendants Folton and Kane contend,
however, that Sonsini fails to state an Eighth Amendment claim upon which relief
can be granted because he has not alleged that a medical professional ordered his
dietary restrictions and he has not alleged any medical condition requiring such
restrictions. See doc. 15 at 9–10 (citing Molley, 2012 WL 1134817, at *4
(“Although it is possible that a special diet could constitute a serious medical need,

8

In his brief, Sonsini does not focus on his constitutional claims. Rather, he
asserts that defendants Folton and Kane (as well as defendant Eby) “are
responsible for the safety conditions in the gym where the plaintiff slipped and fell
in a puddle of water in the middle of the gym floor, this being part of the
premises.” Doc. 20 at 3. And he contends, “Defendant’s should be held
accountable for Tort Action(s) of Negligence, Passive Negligence, Civil
Conspiracy, Premises Liability, Personal Liability, Vacarious [sic] liability,
Secondary Liability, Americans with Disabilities Act and/or the Rehabilitation
Act.” Id. Given that Sonsini is proceeding pro se and construing the amended
complaint liberally, we nevertheless construe the amended complaint as attempting
to state an Eighth Amendment claim against defendants Folton and Kane based on
his diet.
46

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 47 of 67

plaintiff has not stated why he needed to be on that diet or what medical condition
he has that would necessitate such a diet. Accordingly, plaintiff has not plead
sufficient facts in support of a claim for deliberate indifference to serious medical
needs in violation of the Eighth Amendment.”)).
But Sonsini alleges facts suggesting that his dietary restrictions were
prescribed by a nurse due to his allergies. Sonsini alleges that on the day that he
arrived at the LCCF, he spoke to defendant Garbaz, a nurse, about his “medical
disability/restriction(s)” with regard to his housing assignment and with regard to
his dietary restrictions. Doc. 12 at 6, ¶ IV.2. Garbaz said she would check
Sonsini’s medical file that was transferred with him. Id. Garbaz gave Sonsini two
“Special Needs Requisition Slips.” Id. at 6, ¶ IV.3. One of those slips dealt with
Sonsini’s dietary restrictions, and it stated, “no chicken, and no fish,” and “d/t
allergies documented” by SCI Camp Hill. Id. Garbaz initialed that slip and dated it
October 13, 2016. Id. After Sonsini pointed out that Garbaz had not included “no
turkey and no pork” on the dietary slip, Garbaz responded that the LCCF does not
serve pork and it is serves turkey only on Thanksgiving. Id.
Pointing to the allegations regarding defendant Garbaz, defendants Folton
and Kane contend that it was a prison nurse who allegedly refused to put Sonsini
on a special diet in the first place, and, according to Folton and Kane, they cannot
be deliberately indifferent for failing to intervene in medical decisions made by
47

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 48 of 67

medical providers. But accepting the factual allegations in the amended complaint
as true and construing those allegations in a light favorable to the plaintiff, as we
must when deciding a motion to dismiss, the amended complaint can reasonably be
construed as alleging that defendant Garbaz did in fact approve Sonsini’s special
diet and provided Sonsini documentation of such. And given that Sonsini alleges
that Folton and Kane knew of his dietary restrictions, but they failed to provide
him with alterative meals in accordance with those restrictions, the amended
complaint states an Eighth Amendment medical claim upon which relief can be
granted against defendants Folton and Kane.

(vii). Defendant Davis.
Defendant Davis contends that the amended complaint fails to state a 42
U.S.C. § 1983 claim against her upon which relief can be granted. She asserts that
the majority of Sonsini’s allegations regarding her are that she refused to provide
him with clerical support, including making copies of his medical records and
other documents. And she contends that failing to make such copies is not a
constitutional violation. In response, Sonsini asserts that he does not dispute that
defendant Davis was not legally required to make copies for him, and he included
such allegations in his amended complaint to inform the court and the defense “in
case [he] was asked to provide proof of action(s) taken for discovery purposes.”

48

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 49 of 67

Doc. 20 at 4. Given that Sonsini disclaims any intent to hold defendant Davis
liable for failing to make copies for him, we move on to Sonsini’s other factual
allegations regarding defendant Davis.
Sonsini alleges that defendant Davis denied his request to personally deliver
one of his request slips to defendant Matias. Doc. 12 at 11, ¶ IV.7.I. Davis did,
however, provide Sonsini an envelope for his paperwork, and she said she would
drop the envelope in Matias’s box. Id. This simply does not rise to the level of a
constitutional violation.
Sonsini also alleges that on February 6, 2107, he wrote to defendant Davis
requesting to be allowed a call to Attorney Deiderick. Id. at 16, ¶ IV.13.E. The
next day, Davis responded: “We do not do personal calls.” Id. According to
Sonsini, the call “was to [his] attorney for legal purposes, not personal.” Id. Based
on these allegations and construed liberally, the amended complaint may be seen as
asserting an access-to-the courts claim,9 a First Amendment, and a Sixth
Amendment claim against defendant Davis based on not allowing this telephone
call.

“The right of access to the courts is sourced from both ‘the First and Fourteenth
Amendments,’ and is typically framed as a due process right in the inmate context,
but in other contexts as ‘an aspect of the First Amendment right to petition the
Government for redress of grievances[.]’” Jutrowski v. Twp. of Riverdale, 904 F.3d
280, 295 n.17 (3d Cir. 2018) (citations omitted).
9

49

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 50 of 67

“It is now established beyond doubt that prisoners have a constitutional right
of access to the courts.” Bounds v. Smith, 430 U.S. 817, 821 (1977). There are two
general categories of actionable federal claims based upon an alleged denial of
access to the courts. Christopher v. Harbury, 536 U.S. 403, 413 (2002).
The first category is forward-looking claims. Id. The essence of such a
claim is that official action is frustrating the plaintiff in preparing or filing a legal
action at the present time. Id. The opportunity to litigate “has not been lost for all
time, however, but only in the short term; the object of the denial-of-access suit,
and the justification for recognizing that claim, is to place the plaintiff in a position
to pursue a separate claim for relief once the frustrating condition has been
removed.” Id.
The second category is backward-looking claims. Id. at 413–14. Such a
claim does not look forward to future litigation, “but backward to a time when
specific litigation ended poorly, or could not have commenced, or could have
produced a remedy subsequently unobtainable.” Id. at 414 (footnotes omitted).
“The ultimate object of these sorts of access claims, then, is not the judgment in a
further lawsuit, but simply the judgment in the access claim itself, in providing
relief obtainable in no other suit in the future.” Id.
The ultimate justification for recognizing each kind of access claim is the
same. Id. “Whether an access claim turns on a litigating opportunity yet to be
50

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 51 of 67

gained or an opportunity already lost, the very point of recognizing any access
claim is to provide some effective vindication for a separate and distinct right to
seek judicial relief for some wrong.” Id. at 414–15. The right of access to the
courts “is ancillary to the underlying claim, without which a plaintiff cannot have
suffered injury by being shut out of court.” Id. at 415. Therefore, a plaintiff must
establish an actual injury by identifying a nonfrivolous, arguable underlying claim
blocked or lost by the alleged denial of access to the courts. Id. The underlying
cause of action, whether anticipated or lost, is an element of the access claim. Id.
In the prison setting, “the injury requirement is not satisfied by just any type
of frustrated legal claim.” Lewis v. Casey, 518 U.S. 343, 354 (1996). Rather, in the
prison setting, actual injury is the loss of, or inability to pursue, a nonfrivolous
claim that relates to a challenge, direct or collateral, to an inmate’s conviction or
relates to a challenge to the conditions of confinement. Id. at 354–55. “Impairment
of any other litigating capacity is simply one of the incidental (and perfectly
constitutional) consequences of conviction and incarceration.” Id. at 355 (italics in
original).
Sonsini does not allege that because he was not allowed to call Attorney
Deiderick one time, he lost or was unable to pursue a nonfrivolous claim relating to
his conviction or to a challenge to his conditions of confinement. Thus, the
amended complaint fails to state an access-to-the-courts claim upon which relief
51

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 52 of 67

can be granted because Sonsini does not allege that he was actually injured by
defendant Davis’s refusal of the phone call.
Similarly, the amended complaint fails to state a Sixth Amendment claim
upon which relief can be granted. The Sixth Amendment, which provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence,” U.S. Const. amend. VI. The Sixth
Amendment is only implicated in the criminal context. See Wolff v. McDonnell,
418 U.S. 539, 576 (1974) (“As to the Sixth Amendment, its reach is only to protect
the attorney-client relationship from intrusion in the criminal setting . . . .”). Here,
Sonsini does not allege that the phone call had any connection to a criminal case or
that he was injured in connection with a criminal case because of the defendant
Davis’s refusal to allow the phone call. Thus, the amended complaint fails to state
a Sixth Amendment claim upon which relief can be granted.
The amended complaint also fails to state a First Amendment free speech
claim upon which relief can be granted. Prisoners have a “right to communicate
with people outside prison walls, and ‘a telephone provides a means of exercising
this right.’” Almahdi v. Ashcroft, 310 F. App’x 519, 522 (3d Cir. 2009) (quoting
Valdez v. Rosenbaum, 302 F.3d 1039, 1048 (9th Cir.2002)). But prisoners do not
have a right to ‘“unlimited telephone use,’ and reasonable restrictions on telephone

52

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 53 of 67

privileges do not violate their First Amendment rights.” Id. (quoting Washington v.
Reno, 35 F.3d 1093, 1100 (6th Cir.1994)).
Here, Sonsini complains that he was denied a telephone call on one
occasion. Such a one-time denial of a phone call without more does not violate the
First Amendment. See Mckinney v. Cucinella, No. 15-7442 (KM) (MAH), 2016
WL 3191241, at *4 (D.N.J. June 2, 2016) (concluding that the plaintiff not being
“permitted a phone call to one particular person on one particular day” “does not
rise to the level of a constitutional violation”); Nelson v. D.C., 928 F. Supp. 2d
210, 215 (D.D.C. 2013) (“The fact that the Plaintiff was denied one telephone call
and stationery for the brief time that he was in the Safe Cell fails to implicate the
First Amendment's right of free speech or right to redress grievances.”).
In sum, the amended complaint fails to state a 42 U.S.C. § 1983 claim upon
which relief can be granted against defendant Davis.

2. The ADA and RA.
Sonsini mentions the ADA and RA in his amended complaint. In their brief
in support of their motion to dismiss, the Lebanon County defendants do not
address Sonsini’s ADA and RA claims. In their reply brief, however, they contend
that Sonsini’s claims under the ADA and RA should be dismissed. “A reply brief
is not the appropriate forum in which to raise new issues and the court need not

53

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 54 of 67

address issues raised for the first time therein.” Bell v. Lackawanna Cty., 892 F.
Supp. 2d 647, 688 n.41 (M.D. Pa. 2012). Although the Lebanon County
defendants did not properly raise their argument in their brief in support, we will
nevertheless dismiss the ADA and RA claims under our authority to dismiss a
claim brought by a prisoner with respect to prison conditions under federal law for
failure to state a claim upon which relief can be granted. See 42 U.S.C.
§ 1997e(c)(1).
“Congress enacted the ADA in 1990 as a ‘clear and comprehensive national
mandate’ designed to eliminate discrimination against individuals with physical
and mental disabilities across the United States.” McGann v. Cinemark USA, Inc.,
873 F.3d 218, 221 (3d Cir. 2017) (quoting 42 U.S.C.A. § 12101(b)(1)). Title II of
the 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 (1). Similarly, Section 504 of the RA
provides that “[n]o otherwise qualified individual with a disability . . . shall, solely
by reason of her or his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.” 29 U.S.C. § 794(a). “With limited
exceptions, the same legal principles govern ADA and RA claims.” C.G. v.
54

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 55 of 67

Pennsylvania Dep’t of Educ., 734 F.3d 229, 235 (3d Cir. 2013) (footnote
omitted).10 Thus, we analyze the ADA and RA claims together under the rubric of
the ADA.
To establish “a claim under Title II of the ADA, a person ‘must demonstrate:
(1) he is a qualified individual; (2) with a disability; (3) [who] was excluded from
participation in or denied the benefits of the services, programs, or activities of a
public entity, or was subjected to discrimination by any such entity; (4) by reason
of his disability.’” Haberle v. Troxell, 885 F.3d 170, 178–79 (3d Cir. 2018)
(quoting Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 553 n.32 (3d Cir.
2007)).
Both the ADA and the RA prohibit “discrimination on the basis of disability
without requiring exclusion per se.” Chisolm v. McManimon, 275 F.3d 315, 330
(3d Cir. 2001) (italics in original). Under the ADA and RA, a qualified disabled
person “‘must be provided with meaningful access’” to the program. C.G., 734
F.3d at 237 (quoting Alexander v. Choate, 469 U.S. 287, 301 (1985)). Both the
ADA and the RA also require reasonable accommodations for the disabled.

“Causation standards are different under the ADA and RA—under the RA, the
disability must be the sole cause of the discriminatory action, while the ADA only
requires but-for causation.” Furgess v. Pennsylvania Dep’t of Corr., 933 F.3d 285,
291 n.25 (3d Cir. 2019). Another “difference between the ADA and RA is that to
bring a claim under the RA, a plaintiff must show that the allegedly discriminating
entity receives federal funding.” C.G., 734 F.3d at 235 n.10.
10

55

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 56 of 67

Muhammad v. Court of Common Pleas of Allegheny Cnty., 483 F. App’x 759, 763
(3d Cir. 2012) (stating that “a plaintiff can assert a failure to accommodate as an
independent basis for liability under the ADA and RA”).
Although Sonsini mentions the ADA and RA throughout his amended
complaint, the amended complaint does not contain a count setting forth a claim
under the ADA and RA. And Sonsini does not clearly allege that he had a
disability or what the disability was. He also does not allege from what services,
programs, or activities for which he was qualified he was excluded. In other
words, Sonsini does not specify the conduct that forms the basis of his ADA and
RA claims. Thus, the amended complaint does not put the defendants on notice of
the basis of Sonsini’s ADA and RA claims. Accordingly, the amended complaint
fails to state an ADA and RA claim upon which relief can be granted.
As discussed below, we will grant Sonsini leave to file a second amended
complaint. Should Sonsini filed a second amended complaint and should he
include an ADA or RA claim, Sonsini should note that “[o]nly public entities are
subject to Title II” of the ADA. City & Cty. of San Francisco, Calif. v. Sheehan,
575 U.S. 600 (2015). Thus, individuals cannot be liable under Title II of the ADA.
Ndaula v. Clinton Cty. Corr. Facility, No. 1:20-CV-1160, 2020 WL 4570000, at *4
(M.D. Pa. Aug. 7, 2020). Nor can individuals be liable under Section 504 of the
RA. A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 804 (3d Cir. 2007) (“Suits may
56

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 57 of 67

be brought pursuant to Section 504 against recipients of federal financial
assistance, but not against individuals.”).

B. State Law Claims.
In their brief in support of their motion to dismiss, the Lebanon County
defendants do not address any of Sonsini’s state law claims. In their reply brief,
however, they contend that Sonsini’s claims under the Pennsylvania Constitution
should be dismissed because no private cause of action exists under the
Pennsylvania Constitution.11 Again, as set forth above, “[a] reply brief is not the
appropriate forum in which to raise new issues and the court need not address
issues raised for the first time therein.” Bell, 892 F. Supp. 2d at 688 n.41.
Nevertheless, because “[n]o Pennsylvania statute establishes, and no Pennsylvania
court has recognized, a private cause of action for damages under the Pennsylvania
Constitution,” Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442
F. App’x 681, 687–88 (3d Cir. 2011), we will dismiss Sonsini’s claims for

Because the Lebanon County Defendants do not address any of Sonsini’s state
law claims other than the claims under the Pennsylvania Constitution, neither do
we.
11

57

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 58 of 67

compensatory damages under the Pennsylvania Constitution with prejudice.12
Nominal damages, however, may be available under the Pennsylvania
Constitution. O’Donnell v. Cumberland Cty., 195 F. Supp. 3d 724, 730 (M.D. Pa.
2016). Thus, we will not dismiss Sonsini’s request for nominal damages.13

C. Unserved Defendants.
In their reply brief, the Lebanon County Defendants contend the court
should dismiss all the other defendants under Fed. R. Civ. P. 4(m) because they
have not been served.14 Rule 4(m) of the Federal Rules of Civil Procedure
provides, in pertinent part:
If a defendant is not served within 90 days after the
complaint is filed, the court—on motion or on its own after
notice to the plaintiff—must dismiss the action without
prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff shows good cause
for the failure, the court must extend the time for service for an
appropriate period.

“Although monetary relief is barred for claims under the Pennsylvania
Constitution, equitable remedies are available.” Id. As discussed below, however,
Sonsini’s claims for equitable relief are moot given that he is no longer
incarcerated at the LCCF.
12

13

Sonsini requests nominal damages in the amount of $75,000 from each
defendant. Nominal damages, however, are limited to $1.00. Nicholas v.
Pennsylvania State Univ., 227 F.3d 133, 146 (3d Cir. 2000).
14

The Lebanon County Defendants contend that they did not raise this argument
in their opening brief because at the time they filed that brief, the 90-days period
for service under Fed. R. Civ. P. 4(m) had not yet expired.
58

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 59 of 67

More than 90 days have passed since the case was removed to this court and
defendants Matias, Cresini, Powers, Ardire, Santoni, Garbaz, Clements, Nurse
Tammy, and the John and Jane Doe defendants have not been served. Given, this
we will dismiss these defendants without prejudice.
Should Sonsini again name any of these defendants in a second amended
complaint, we note that although the plaintiff is usually “responsible for having the
summons and complaint served within the time allowed by Rule 4(m),” Fed. R.
Civ. P. 4(c)(1), when a plaintiff is authorized to proceed in forma pauperis under
28 U.S.C. § 1915, the court must order the United States Marshal to make service,
Fed. R. Civ. P. 4(c)(3). Here, Sonsini has not been granted leave to proceed in
forma pauperis under 28 U.S.C. § 1915, but he was granted leave to proceed in
forma pauperis in the state court before the defendants removed the case to this
court. See doc. 1-6 at 12. If Sonsini names any of the unserved defendants in a
second amended complaint, he may move to proceed in forma pauperis under 28
U.S.C. § 1915, and if he is granted leave to proceed in forma pauperis under 28
U.S.C. § 1915, and if he identifies the defendants sufficiently so that the Marshal
can make service, we will order the Marshal to make service.

59

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 60 of 67

D. Relief Sought.
The Lebanon County Defendants contend that Sonsini’s requests for
injunctive relief, punitive damages, and attorney’s fees should be dismissed.

1. Injunctive Relief.
The Lebanon County Defendants contend that Sonsini’s requests for
injunctive relief are moot because he is no longer incarcerated at the LCCF. We
agree.
Article III of the Constitution limits the judicial power of the United States
to “cases” and “controversies.” U.S. Constitution, art. III, § 2. “This case-orcontroversy limitation, in turn, is crucial in ‘ensuring that the Federal Judiciary
respects the proper—and properly limited—role of the courts in a democratic
society.’” Plains All Am. Pipeline L.P. v. Cook, 866 F.3d 534, 539 (3d Cir. 2017)
(quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). “And courts
enforce it ‘through the several justiciability doctrines that cluster about Article III,’
including ‘standing, ripeness, mootness, the political-question doctrine, and the
prohibition on advisory opinions.’” Id. (quoting Toll Bros., Inc. v. Twp. of
Readington, 555 F.3d 131, 137 (3d Cir. 2009)).
This case involves mootness, which is “a doctrine that ‘ensures that the
litigant’s interest in the outcome continues to exist throughout the life of the
lawsuit,’” and which “is ‘concerned with the court’s ability to grant effective
60

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 61 of 67

relief.’” Hamilton v. Bromley, 862 F.3d 329, 335 (3d Cir. 2017) (quoting Freedom
from Religion Found. Inc. v. New Kensington Arnold Sch. Dist., 832 F.3d 469, 476
(3d Cir. 2016), and Cty. of Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d
Cir. 2001)). “[F]ederal courts may adjudicate only actual, ongoing cases or
controversies,” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990), and “[i]t is a
basic principle of Article III that a justiciable case or controversy must remain
‘extant at all stages of review, not merely at the time the complaint is filed.’”
United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (quoting Arizonans for
Official English v. Arizona, 520 U.S. 43, 67 (1997)). “Federal courts may not
‘decide questions that cannot affect the rights of litigants in the case before them’
or give ‘opinion[s] advising what the law would be upon a hypothetical state of
facts.’” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (quoting Lewis, 494 U.S. at
477).
“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’
for purposes of Article III—‘when the issues presented are no longer “live” or the
parties lack a legally cognizable interest in the outcome.’” Already, LLC v. Nike,
Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)).
In other words, “a case is moot if ‘developments occur during the course of
adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or
prevent a court from being able to grant the requested relief.’” Hamilton, 862 F.3d
61

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 62 of 67

at 335 (quoting Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698–99 (3d Cir.
1996)).
Once a prisoner who is complaining about his conditions of confinement is
transferred from the prison about which he is complaining, the court cannot grant
him meaningful prospective relief because he would not benefit from that relief.
Thus, with limited exceptions not present here, his claims for injunctive and
declaratory relief are moot. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir.
2003) (stating that “[a]n inmate’s transfer from the facility complained of generally
moots the equitable and declaratory claims”); Marshall v. Pa. Dep’t of Corr., 499
F. App’x 131, 134 (3d Cir. 2012) (concluding that because Marshall “asked for an
injunction that restrains SCI–Mahanoy officials from violating his civil rights, but
he has now been transferred out from under their control[,] . . . the District Court
was unable to fashion any form of meaningful relief against these defendants, and
thus the motion for injunctive relief was moot”).
Here, because Sonsini is no longer incarcerated at the LCCF, his requests for
declaratory and injunctive relief are moot, and those claims will be dismissed with
prejudice.

62

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 63 of 67

2. Punitive Damages.
The Lebanon County Defendants contend that Sonsini’s request for punitive
damages should also be dismissed. Again, the defendants do not address Sonsini’s
state law claims. Rather, they address only his constitutional claims brought under
42 U.S.C. § 1983. And so, we do the same.
“A claim for punitive damages under Section 1983 requires allegations that
the defendant acted with “a reckless or callous disregard of, or indifference to, the
rights and safety of other.’” Doe by Brown v. Harrisburg Sch. Dist., No. 1:19-CV1027, 2020 WL 4584372, at *7 (M.D. Pa. Aug. 10, 2020) (quoting Keenan v. City
of Philadelphia, 983 F.2d 459, 469-470 (3d Cir. 1983)). “Thus, the punitivedamages inquiry requires an assessment of the defendant’s state of mind.” Id. And
it “requires a careful look at the unique facts of each case.” Id. Considering “the
fact-intensive nature of the inquiry, courts in this district often defer punitive
damages questions until after discovery.” Id. (citing cases)
Here, the only 42 U.S.C. § 1983 claims against the Lebanon County
Defendants that we have determined survive the motion to dismiss are Eighth
Amendment claims against defendants Folton, Kane, and Hauck. With respect to
defendant Hauck, Sonsini alleges that Hauck was aware that Sonsini was not
receiving medical care and medication and Hauck failed to act to correct such.
And Sonsini alleges that Folton and Kane were aware of his dietary restrictions,
63

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 64 of 67

but they failed to provide him a diet in conformity with those restriction, and, as a
result, he was only able to eat less than half of the meals served to him while he
was at the LCCF. Given these allegations, we cannot say as a matter of law that
Sonsini is not entitled to punitive damages. Thus, we will not dismiss Sonsini’s
request for punitive damages against defendants Folton, Kane, and Hauck.15

3. Attorney’s Fees.
A pro se litigant is not entitled to attorney’s fees. Kay v. Ehrler, 499 U.S.
432, 438 (1991). Sonsini is proceeding pro se. Thus, he is not entitled to
attorney’s fees. Accordingly, we will dismiss his request for attorney’s fees with
prejudice.

E. Leave to Amend.
“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must
permit a curative amendment unless such an amendment would be inequitable or
futile.” Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008). In a
civil rights action, the court “must provide the plaintiff with this opportunity even
if the plaintiff does not seek leave to amend.” Id.
Should Sonsini filed a second amended complaint, we do note, however, that “a
municipality is immune from punitive damages under 42 U.S.C. § 1983.” City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Nor are punitive
damages against the County available under the ADA or Section 504 of the RA.
Doe v. Cty. of Ctr., PA, 242 F.3d 437, 457 (3d Cir. 2001).
64
15

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 65 of 67

Here, except as to Sonsini’s requests for injunctive and declaratory relief and
attorney’s fees and his claim for compensatory damages under the Pennsylvania
Constitution, we cannot say that amendment would be inequitable or futile in this
case. Thus, we will grant Sonsini leave to file a second amended complaint. But
because Sonsini is no longer incarcerated at the LCCF, he may not include claims
for injunctive or declaratory relief in any second amended complaint. And because
he is proceeding pro se, he may not include a claim for attorney’s fees in any
second amended complaint. Further, because there is not a private cause of action
for compensatory damages under the Pennsylvania Constitution, he may not
include such a claim in any second amended complaint.
Any second amended complaint must be titled as a second amended
complaint and must contain the docket number of this case. Fed. R. Civ. P. 10(a).
Sonsini “is advised that any [second] amended complaint must be complete in all
respects.” Young v. Keohane, 809 F. Supp. 1185, 1198 (M.D. Pa. 1992). “It must
be a new pleading which stands by itself as an adequate complaint without
reference to the complaint already filed.” Id. “Also in general, an amended
pleading—like [any second] amended complaint here—supersedes the earlier
pleading and renders the original pleading a nullity.” Palakovic v. Wetzel, 854 F.3d
209, 220 (3d Cir. 2017). In other words, if a second amended complaint is filed,
the first amended complaint will have no role in the future litigation of this case.
65

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 66 of 67

Any second amended complaint must also comply with the pleading
requirements of the Federal Rules of Civil Procedure, including the requirements
that a complaint contain “a short and plain statement of the grounds for the court’s
jurisdiction,” “a short and plain statement of the claim,” and “a demand for the
relief sought.” Fed. R. Civ. P. 8(a)(1)–(3). Further, “[e]ach allegation must be
simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). “A party must state its claims
or defenses in numbered paragraphs, each limited as far as practicable to a single
set of circumstances.” Fed. R. Civ. P. 10(b). And “each claim founded on a
separate transaction or occurrence . . . must be stated in a separate count.” Id.
Any amended complaint must also comply with Fed. R. Civ. P. 20(a)(2),
which provides, in pertinent part, the defendants may be joined in one action “if:
(A) any right to relief is asserted against them jointly, severally, or in the
alternative with respect to or arising out of the same transaction, occurrence, or
series of transactions or occurrences; and (B) any question of law or fact common
to all defendants will arise in the action.”

V. Summary.
For the foregoing reasons, we will grant in part and deny in part the Lebanon
County Defendants’ motion to dismiss the amended complaint. We will dismiss
all the 42 U.S.C. § 1983 claims against Lebanon County and the Lebanon County
66

Case 1:20-cv-00392-SES Document 22 Filed 02/16/21 Page 67 of 67

Defendants in their official capacities. We will also dismiss all the 42 U.S.C.
§ 1983 claims against the following defendants in their individual/personal
capacities: Phillips, Ames, Litz, Wolgemuth, Karnes, Barrette, Loyola, Nasr, Eby,
and Davis. We will dismiss all the 42 U.S.C. § 1983 claims against defendant
Hauck except the claim against defendant Hauck based on an ongoing denial of
medical care. We will dismiss all the 42 U.S.C. § 1983 claims against defendants
Folton and Kane except the Eighth Amendment claim that they failed to provide
him a diet in accordance with medical needs. We will dismiss the ADA and RA
claims against all the defendants. We will dismiss with prejudice the claims for
compensatory damages based on the Pennsylvania Constitution, but we will not
dismiss the claims for nominal damages based on the Pennsylvania Constitution.
We will dismiss the following defendants because they have not been properly
served: Matias, Cresini, Powers, Ardire, Santoni, Garbaz, Clements, Nurse
Tammy, and the John and Jane Doe defendants. We will dismiss the claims for
injunctive and declaratory relief and attorney’s fees with prejudice. Finally, except
as to the claims for injunctive and declaratory relief and attorney’s fees, we will
grant Sonsini leave to file a second amended complaint. An appropriate order will
be issued.

S/Susan E. Schwab
Susan E. Schwab
United States Magistrate Judge
67