Banniger v. Delbianco et al

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY BANNIGER,
Plaintiff
v.
PAUL DELBIANCO, et al.
Defendants.
CIVIL ACTION NO. 3:25-CV-00530
(MEHALCHICK, J.)
MEMORANDUM
Before the Court are motions to dismiss the complaint for failing to state a claim filed
by Defendants in this action. (Doc. 22; Doc. 24). For the following reasons, the Court will
grant the motion to dismiss filed by Medical Defendants and grant in part the motion to
dismiss filed by Department of Corrections (“DOC”) Defendants. The Court will dismiss all
claims without prejudice except those claims raised against Defendant Wagman. The Court
will also grant Plaintiff Anthony Banniger (“Banniger”) an opportunity to amend his
complaint.
I. BACKGROUND AND PROCEDURAL HISTORY
Banniger, an inmate currently housed at the State Correctional Institution Frackville
(“SCI-Frackville”), initiated this action by filing a complaint that was received and docketed
by this Court on March 24, 2025 raising multiple claims under 42 U.S.C. § 1983. (Doc. 1).
This complaint names the following thirteen defendants: (1) Paul Delbianco, M.D.
(“DelBianco”); (2) Peter Baddick, M.D. (“Baddick”); (3) Malhi Raiender, Doctor
(“Raiender”); (4) Malanie Wagman, LPN (“Wagman”); (5) Jacklyn Talasky, PA
(“Talasky”); (6) Gabby Smith, Nurse (“Smith”); (7) William Knappenberger, RN
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(“Knappenberger”); (8) S. McCorkle, CHCA; (9) Bernard Maret, M.D. (“Maret”); (10) Mark
Mascari, Physician (“Mascari”); (11) Kyle Mummey, LPN (“Mummey”); (12) J. Rivello,
Warden/Facility Manager (“Rivello”); and (13) Gabrielle Smith, Nurse1. (Doc. 1, at 3-7).
Banniger states that all the events in the complaint took place at SCI-Frackville and SCI-
Huntingdon. (Doc. 1, at 8).
Banniger alleges that in September of 2022 while housed at SCI-Huntingdon, he began
filing sick calls complaining about his feet because he was experiencing shooting pain up his
legs to his lower back and interfering with his daily functions such as walking. (Doc. 1, at 9).
On February 20, 2024, Banniger was seen at Advanced Orthopedics and Podiatry, where a
doctor prescribed him foot gel, bone cushions, and stated that Banniger needed to be seen
back in four to eight weeks for additional x-rays and to discuss surgery. (Doc. 1, at 9). He
states that he was seen by Defendants Talasky, Smith, DelBianco, and Malhi who prescribed
him medication the he alleges was not effective instead of following the prescribed treatment
plan from Advanced Orthopedics and Podiatry. (Doc. 1, at 9).
Banniger alleges that he had x-rays done at SCI-Huntingdon that “did not come back
normal at all,” and Defendant Rivello’s statements in the Facility Manager’s response to his
grievance was done to “cover up medical sadistic intentions and behavior.” (Doc. 1, at 9). He
states that Defendant DelBianco gave him a cane instead of following his prescribed treatment
plan from Advanced Orthopedics and Podiatry. (Doc. 1, at 9).
1 Defendants’ waiver of service identified Gabby and Gabrielle Smith as the same
individuals, bringing the total defendants to twelve. (Doc. 15).
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Banniger states that he filed a grievance that got denied on February 6, 2024 and July
5, 2024 and a second grievance that was denied on July 11th and later accepted on December
24th. (Doc. 1, at 9).
Banniger states that five days later, he was transferred to SCI-Frackville, where he
continued complaining and filing sick calls. (Doc. 1, at 9). He alleges that he was treated by
Defendants Baddick, Mummey, and Knappenberger with medication that he had already
taken and was ineffective and did not follow the prescribed treatment. (Doc. 1, at 9-10). He
further alleges that Defendant Wagman discontinued the use of his cane. (Doc. 1, at 10).
Banniger states that while at SCI-Huntingdon and SCI-Frackville his foot consultation
was denied by Defendants Maret, Mascari, and McCorkle. (Doc. 1, at 10).
Banniger states that he filed a grievance against all defendants listed in the complaint.
(Doc. 1 at 10).
Based on these alleged facts, Banniger brings First Amendment retaliation claims and
Eighth Amendment deliberate indifference to a series medical need claim2. (Doc. 1, at 11).
On June 30, 2025, the Court granted Banniger in forma pauperis status and ordered
waiver of service forms be sent to Defendants. (Doc. 12). Defendants Talasky, Mascari.
Baddic, Smith, Mummey, Delbianco, Raiender, and Maret (collectively known as the
“Medical Defendants”) returned a waiver of service form on July 14, 2025. (Doc. 15).
Defendants McCurkle, Knappenberger, Rivello, and Wagman (collectively known as the
“DOC Defendants”) filed a waiver of service on July 31, 2025. (Doc. 17).
2 A claim of deliberate indifference to a serious medical need falls under the cruel and
unusual punishment. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Therefore, the Court does
not view Banniger’s claims of “deliberate indifference cruel and unusual punishment” as
separate claims. (Doc. 1, at 11).
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On September 8, 2025, Medical Defendants filed a motion to dismiss for failure to
state a claim with a brief in support. (Doc. 22; Doc. 23). On September 29, 2025, DOC
Defendants filed a motion to dismiss for failure to state a claim. (Doc. 24). DOC Defendants
filed a brief in support on November 12, 2025. (Doc. 31). Banniger filed briefs in opposition
to the pending motions in December of 2025. (Doc. 38; Doc. 40).
The Court will now address the pending motions to dismiss.
II. JURISDICTION AND VENUE
The Court has jurisdiction over Plaintiff’s 42 U.S.C. § 1983 action pursuant to 28
U.S.C. § 1331, which allows a district court to exercise subject matter jurisdiction in civil cases
arising under the Constitution, laws, or treaties of the United States. Venue is proper in this
district because the alleged acts and omissions giving rise to the claims occurred at SCI-
Frackville and SCI-Huntingdon, located in Schuylkill County and Cumberland County,
Pennsylvania, both of which are in this district. See 28 U.S.C. § 118(b).
III. STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move
to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.
12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first
take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions
which are not entitled to the assumption of truth, and finally determine whether the
complaint’s factual allegations, taken as true, could plausibly satisfy the elements of the legal
claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule
12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well
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as “documents incorporated into the complaint by reference, and matters of which a court
may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
After recognizing the required elements which make up the legal claim, a court should
“begin by identifying pleadings that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff
must provide some factual ground for relief, which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal
conclusions’ . . . .” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting
In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a
court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen.
Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
A court must then determine whether the well-pleaded factual allegations give rise to
a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting
Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals
Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in
the complaint, and any reasonable inferences that can be drawn therefrom are to be construed
in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d
1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for
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which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.
President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).
The plausibility determination is context-specific and does not impose a heightened pleading
requirement. Schuchardt, 839 F.3d at 347.
Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded
complaint must recite factual allegations that are sufficient to raise the plaintiff’s claimed right
to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a
cause of action. There is no requirement that the pleading be specific or probable. Schuchardt,
839 F.3d at 347 (citing Phillips v. Cty. of Allegheny, 515 F.3d 224, at 233-234 (3d Cir. 2008).
Rule 8(a) requires a “showing that ‘the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson
v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Fed. R. Civ. P. 8(a)(2)); see also Phillips, 515 F.3d
at 233 (citing Twombly, 550 U.S. at 545).
With the aforementioned standards in mind, a document filed pro se is “to be liberally
construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully
pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers”
and can only be dismissed for failure to state a claim if it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Further, the Third Circuit has instructed
that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must
permit a curative amendment, unless an amendment would be inequitable or futile. Grayson
v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
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IV. DISCUSSION
The complaint in this case is filed under 42 U.S.C. § 1983. (Doc. 1, at 1). Section 1983
is the vehicle by which private citizens may seek redress for violations of federal constitutional
rights committed by state officials. See 42 U.S.C. § 1983. The statute states, in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983.
“Section 1983 is not a source of substantive rights,” but is merely a means through
which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S.
273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that:
(1) the conduct complained of was committed by persons acting under color of state law; and
(2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of
the United States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005)
(quoting West v. Atkins, 487 U.S. 42, 48 (1988)).
The two pending motions to dismiss argue the Benniger failed to state a claim under
42 U.S.C. § 1983 and seek a dismissal of the claims raised against all Defendants. (Doc. 22;
Doc. 24).
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A. MEDICAL DEFENDANTS’ MOTION TO DISMISS
1. First Amendment Claims
Benniger raises First Amendment retaliation claims generally in his complaint. (Doc.
1, at 11). Therefore, the Court will treat this as raising retaliation claims against all Medical
Defendants.
It is well-settled that prison officials may not retaliate against an inmate because he
exercises his right of access to the courts. Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 2015).
A prisoner asserting a retaliation claim must allege the following elements: (1) he engaged in
constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a
person of ordinary firmness from exercising his constitutional rights; and (3) the
constitutionally protected conduct was “a substantial or motivating factor” for the adverse
action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); see also Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003). The filing of a lawsuit or a prison grievance constitutes protected
activity under the First Amendment. Fantone, 780 F.3d at 191.
In his complaint, Benniger alleges that he filed a grievance that was denied on
February 6, 2024 and July 5, 2024. (Doc. 1, at 9). He did not specify the individuals named
as the subject of that grievance. Benniger also alleges that he has filed a grievance that was
denied on July 11th and approved on December 24th and was then transferred to SCI-Frackville
five days later. (Doc. 1, at 9). Again, he does not name the subject of this grievance. In his
final factual allegation in the complaint, Benniger states that he filed a grievance against “the
medical department on all defendant’s listed in complaint” for the First and Eighth
Amendment claims. (Doc. 1, at 10).
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Here, each alleged grievances associated with the Medical Defendants fails to state a
retaliation claim. The first two grievances discussed do not identify the subject of the
grievances. This Court has repeatedly refused to find a causal connection when the alleged
perpetrator of the retaliatory activity was not the subject of the constitutionally protected
activity. See Calloway v. Bauman, No. 2:20-cv-2337, 2022 WL 4357468, at *9 (M.D. Pa. Sep.
20, 2022) citing Victor v. Lawler, 2010 WL 5014555, at *5 (M.D. Pa. Dec. 3, 2010), aff'd, 565
F. App’x 126 (3d Cir. 2014); also citing Evans v. Rozum, 2009 WL 5064490, at *22 (W.D. Pa.
Dec. 17, 2009) (“There is no apparent reason why [the moving defendants] would want to
retaliate against Plaintiff for filing a lawsuit against others.”); also citing Royster v. Beard, 308
F. App’x 576, 579 (3d Cir. 2009) (affirming summary judgment in favor of defendant on
plaintiff’s claim that he was retaliated against by a defendant who was not the target of his
protected activity). Additionally, there are no alleged facts to support the implied conclusion
that these grievances resulted in retaliation in the form of Benniger being transferred to SCI-
Frackville. Benniger makes no allegations that the Medical Defendants were part of the
decision to have him transferred. Therefore, Benniger has failed to state a retaliation claim
under the First Amendment and his claims will be dismissed without prejudice.
Turning to the final allegation, that Benniger filed a grievance against the whole
medical department and all defendants named in the complaint, the Court finds that he has
failed to allege any retaliatory action following the filing of this grievance. Therefore, this too
fails to state a First Amendment claim, and Medical Defendants’ motion to dismiss will be
granted as to the First Amendment claims.
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2. Eighth Amendment Claims
Prison officials violate the Eighth Amendment when they act with deliberate
indifference to a prisoner’s serious medical needs. See Estelle, 429 U.S. at 104–05. To sustain
a constitutional claim under the Eighth Amendment for inadequate medical treatment, a
plaintiff must make (1) an objective showing that his medical needs were serious, and (2) a
subjective showing that the defendants were deliberately indifferent to those medical needs.
See Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017). A serious medical need is
“one that has been diagnosed by a physician as requiring treatment or is so obvious that a lay
person would easily recognize the necessity for a doctor’s attention.” Monmouth Cty. Corr.
Inst'l Inmates v. Lanzaro, 834 F.2d 326, 346–47 (3d Cir. 1987) (citation omitted). A prison
official is deliberately indifferent when he or she “knows of and disregards an excessive risk
to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994).
However, “[p]rison medical authorities are given considerable latitude in the diagnosis
and treatment of medical problems of inmates 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.’” Byrd v. Shannon, No. 1:09-CV-1551, 2010 WL
5889519, at *4 (M.D. Pa. Nov. 24, 2010) (quoting Inmates of Allegheny County Jail v. Pierce, 612
F.2d 754, 762 (3d Cir.1979)). Mere disagreement over proper treatment does not state a claim
upon which relief can be granted. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990);
Monmouth Cty. Corr. Inst'l Inmates, 834 F.2d at 346 (“Courts, determining what constitutes
deliberate indifference, have consistently held that mere allegations of malpractice do not raise
issues of constitutional import. . . Nor does mere disagreement as to the proper medical
treatment support a claim of an eighth amendment violation.”).
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Here, Benniger alleges that on February 20, 2024, the providers at Advanced
Orthopedics and Podiatry prescribed him foot gel, bone cushions, and imaging four to eight
weeks later. (Doc. 1, at 9). He alleges that Defendants Talasky, Smith, Delbianco, and Malhi
failed to follow this prescribed treatment and that he filed a grievance alleging such that was
denied on February 6, 2024. (Doc. 1, at 9). Here, the timing of Benniger’s alleged grievance
denial predates the date of the prescribed treatment. Therefore, there is an issue with timing
and the required element of knowledge discussed in Farmer. By February 6, 2024, Defendants
could not have followed a treatment plan that was prescribed on February 20, 2024.
Therefore, all Eighth Amendment claims from treatment that predated the February 20, 2024
visit to Advanced Orthopedics and Podiatry will be dismissed without prejudice.
As to Defendants Baddick and Mummey, Benniger alleges that they gave him
medication that he had already taken and was ineffective and did not follow the prescribed
treatment. (Doc. 1, at 9-10). Benniger does not allege that these Defendants denied him
treatment, but that he disagrees with the treatment he received. (Doc. 1, at 9-10). This is
insufficient to state an Eighth Amendment deliberate indifference claim. See Monmouth Cty.
Corr. Inst’l Inmates, 834 F.2d at 346.
Banniger states that while at SCI-Huntingdon and SCI-Frackville his foot consultation
was denied by Defendants Maret and Mascari. (Doc. 1, at 10). Defendants allege that there
is no evidence that these Defendants met Banniger. (Doc. 23, at 15-16). However, this Court
is limited to considering the facts alleged on the face of the complaint, as well as “documents
incorporated into the complaint by reference, and matters of which a court may take judicial
notice.” Tellabs, Inc., 551 U.S. at 322. Furthermore, the Court is take the complaint’s factual
allegations as true when assessing the sufficiency of a complaint on a Rule 12(b)(6) motion.
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Burtch, 662 F.3d at 221. Therefore, the Court cannot consider evidence as to whether or not
these Defendants interacted with Banniger at this stage in litigation.
Turning to the facts alleged in the complaint: “[w]here at Huntingdon and Frackville
they state that my foot consultation was denied by Bernard Maret, Mascari Mark and S.
Mccorkle,” the Court finds that Banniger has alleged a denial of medical care. (Doc. 10, at
10). However, he did not allege that Defendants Maret and Mascari had any knowledge of
his allegedly serious medical need prior to denying his consultation. (Doc. 1, at 10). Therefore,
Banniger has failed to state a claim for deliberate indifference to a serious medica need, and
the claims will be dismissed without prejudice.
The Court finds that Banniger has failed to state a claim as to the Medical Defendants.
Therefore, the Court will grant the Medical Defendants’ motion to dismiss.
B. DOC DEFENDANTS’ MOTION TO DISMISS
As with Medical Defendants, Banniger has alleged First Amendment retaliation and
Eighth Amendment deliberate indifference claims against DOC Defendants. (Doc. 1).
1. First Amendment
As set forth above, Banniger does not specify who he raises the First Amendment
retaliation claim against. Therefore, the Court will address any potential claims against all
DOC Defendants.
First, Banniger alleges that Defendant Wagman discontinued the use of his cane “in
retaliation to a previous situation I had with her and another C.O. who I had to put a
grievance in on.” (Doc. 1, at 10). This meets the factors of a First Amendment retaliation
claim: (1) he participated in protected conduct by filing a grievance against Defendant
Wagman; (2) he suffered an adverse action in the form of being deprived his allegedly
medically necessary assistance device; and (3) the filing of the grievance was “a substantial or
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motivating factor” for the adverse action. See Rauser, 241 F.3d at 333. While the factual
allegations are sparse, they are sufficient to but Defendant Wagman on notice as the claim
raised against her. See Erickson, 551 U.S. at 93-94. Therefore, this First Amendment claim will
not be dismissed.
In contrast, the only potentially relevant claim as to the remaining DOC Defendants
is Banniger’s general allegation the he filed a grievance against the whole medical department
and all defendants named in the complaint. (Doc. 1, at 10). Again, the Court finds that he has
failed to allege any retaliatory action following the filing of this grievance. Therefore, this fails
to state a retaliation claim and such claims raised against the remaining DOC Defendants will
be dismissed without prejudice.
2. Eighth Amendment
DOC Defendants seek the dismissal of the Eighth Amendment deliberate indifference
to a serious medical need claims. (Doc. 31).
Banniger alleges that Defendant Wagman discontinued the use of his cane. (Doc. 1,
at 10). DOC Defendants do not challenge the Eighth Amendment claim against Wagman.
(Doc. 31). Here, the alleged discontinuation of the cane without justification arguably meets
the elements of an Eighth Amendment deliberate indifference claim as Banniger alleges that
he had a serious medical need that was being treated with the use of a cane, and that cane
was taken from him in retaliation. Therefore, the motion to dismiss will be denied as to the
Eighth Amendment claim against Defendant Wagman.
As to the remaining DOC Defendants, Banniger alleges that he was treated by
Defendant Knappenberger with medication that he had already taken and was ineffective and
did not follow the prescribed treatment. (Doc. 1, at 9-10). He also alleges that while at SCI-
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Huntingdon and SCI-Frackville his foot consultation was denied by Defendant McCorkle.
(Doc. 1, at 9-10). These allegations are identical to those raised against Medical Defendants,
which were dismissed above. For the same rationale, the Court will dismiss these claims
against Defendants Knappenberger and McCorkle.
Banniger also alleges that he had x-rays done at SCI-Huntingdon that “did not come
back normal at all,” and Defendant Rivello made statements in the Facility Manager’s
response to his grievance in order to “cover up medical sadistic intentions and behavior.”
(Doc. 1, at 9). “Participation in the after-the-fact review of a grievance or appeal is not enough
to establish personal involvement.” Rode v. Dellarciprete,845 F.2d 1195, 1208 (3d Cir. 1988)
(finding the filing of a grievance is not enough to show the actual knowledge necessary for
personal involvement); see also Brooks v. Beard, No. 05-3196, 2006 WL 332547, 167 F. App’x
923, 925 (3d Cir. Feb. 14, 2006) (holding that a state prisoner’s allegation that prison officials
and administrators responded inappropriately, or failed to respond to a prison grievance, did
not establish that the officials and administrators were involved in the underlying allegedly
unconstitutional conduct). Banniger’s allegation against Defendant Rivello is limited to his
actions in reviewing a grievance. Therefore, the Court will grant DOC Defendants’ motion
to dismiss as to the claim against Defendant Rivello.
V. CONCLUSION
For the reasons set forth above, the Court will grant Medical Defendants’ motion to
dismiss and dismiss all First Amendment retaliation and Eighth Amendment deliberate
indifference claims against Medical Defendants without prejudice. The Court will grant DOC
Defendants’ motion to dismiss in part and deny it in part. The First Amendment retaliation
claims and Eighth Amendment deliberate indifference claims against Defendants
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Knappenberger, McCorkle, and Rivello will be dismissed without prejudice. The First
Amendment retaliation claim and the Eighth Amendment deliberate indifference claim
against Defendant Wagman for the discontinued use of the cane will not be dismissed.
The Court will grant Banniger an opportunity to amend his complaint pursuant to
Grayson, 293 F.3d at 108. Any amended complaint will be titled “Amended Complaint,” be
filed under the above captioned case number, and raise all claims including those that
survived the above motions to dismiss.
An appropriate order follows.
Dated: February 18, 2026 s/ Karoline Mehalchick
KAROLINE MEHALCHICK
United States District Judge
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