Court would disregard as a legal conclusion as instructed by our Court of Appeals in Fowler, or whether Plaintiffs refer to the numerous specific factual allegations documented in other paragraphs of the Complaint. The Complaint thus fails to state a claim upon which relief may be granted as to the second element as well. Because the Court concludes that the Complaint fails to state a legally sufficient Eighth Amendment claim, Count V will be dismissed as to both Defendants. Furthermore, because amendment would be futile as to this claim because there are no further facts under the circumstances which could establish an Eighth Amendment violation as a matter of law (particularly as to the issue of incarcerated status), see Phillips v. Cnty. of Allegheny, 515 F.3d 224, 236 (3d Cir.2008) (<HOLDING>), the dismissal of that Count will be with
recognizing that use of curative or limiting instructions is within the district courts discretion holding harmless an inadmissible comment as prejudicial effect was removed by district courts curative instruction holding that retransfer to district court would be futile where district court determined it was without jurisdiction to hear plaintiffs claim holding that district courts must permit curative amendments unless an amendment would be inequitable or futile holding that it would be inequitable to allow a town to deny a permit based on a new ordinance after the property owner was denied a permit three times and brought suit to determine the validity of the prior ordinance