Opinion
1:10-cv-2509.
July 6, 2011
MEMORANDUM
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R R") of Magistrate Judge Malachy E. Mannion (Doc. 24), filed on March 20, 2011, which recommends that the Motions to Dismiss of Defendants Tom Toolan and Laura Fishel (Doc. 17) and Dominick DeRose (Doc. 21) be granted on the basis that Plaintiff's Complaint fails to state a claim upon which relief can be granted. Objections to the R R were due by June 24, 2011, and to date none have been filed. Accordingly, this matter is ripe for our review. For the reasons that follow, the R R will be adopted in its entirety and this matter shall be dismissed.
By Order dated June 9, 2011 (Doc. 26), we granted the Plaintiff's Motion for Extension of Time to File Objections. (Doc. 25). Despite being granted an enlargement of time, Plaintiff has failed to file any objections to the R R.
I. BACKGROUND
Plaintiff Anthony Haskins ("Plaintiff" or "Haskins"), currently an inmate at the State Correctional Institution at Camp Hill, Pennsylvania filed this action on December 9, 2010 alleging that he received inadequate medical treatment at the hands of the Defendant. Plaintiff's allegations arise out of a series of dental treatments he received from Defendant Fishel.
Following service of the Complaint, the Defendants filed the above-referenced Motions to Dismiss. (Docs. 17 and 21). Plaintiff never filed an opposition to either Motion. Thus, on May 20, 2011, Magistrate Judge Mannion issued the instant R R recommending that the Plaintiff's Complaint be dismissed for failure to state a claim upon which relief can be granted. As noted above, none of the parties have interposed objections to the R R and it is accordingly ripe for review.
II. STANDARDS OF REVIEW
A. Review of Magistrate Judge's Report
When, as here, no objections are made to a magistrate judge's report and recommendation, the district court is not statutorily required to review the report before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the Third Circuit, however, "the better practice is to afford some level of review to dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d 874, 878 (3d. Cir. 1987). "[T]he court need only satisfy itself that there is no clear error on the face of the record in order to accept recommendations." Fed.R.Civ.P. 72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating "the failure of a party to object to a magistrate's legal conclusions may result in the loss of the right to de novo review in the district court"); Tice v. Wilson, 425 F. Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa. 1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court's examination of this case confirms the Magistrate Judge's determinations.
B. Rule 12(b)(6) Standard
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim 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." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that `raise a right to relief above the speculative level. . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more than "a sheer possibility." Iqbal, 129 S.Ct. At 1949. "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).
Under the two-pronged approach articulated in Twombly and later formalized in Iqbal, a district court must first identify all factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557. Such allegations are "not entitled to the assumption of truth" and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss. Iqbal, 129 S.Ct. at 1950. Next, the district court must identify "the `nub' of the . . . complaint — the well-pleaded, nonconclusory factual allegation[s]." Id. Taking these allegations as true, the district judge must then determine whether the complaint states a plausible claim for relief. See id.
However, "a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips, 515 F.3d at 231 (citing Twombly, 127 S.Ct. 1964-65, 1969 n. 8). Rule 8 "does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Id. at 234.
III. DISCUSSION
Magistrate Judge Mannion determines that Plaintiff's Complaint fails to state an Eighth Amendment deliberate indifference claim against any of the Defendants because his allegations simply express his dissatisfaction with the treatment he received and he does not allege conduct on the behalf of the Defendants that rises to the level of deliberate indifference. It is well-established that an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim. See Gindraw v. Dendler, 967 F. Supp. 833, 836 (E.D. Pa. 1997). A review of Plaintiff's Complaint reveals that he has proffered no substantive allegations that indicate the Defendants' conduct rose to the level of a civil rights violation. Accordingly, his Complaint fails to state a claim upon which relief can be granted.
As we have already mentioned, neither Defendants nor the Plaintiff have filed objections to this R R. Because we agree with the sound reasoning that led the Magistrate Judge to the conclusions in the R R, we will adopt the R R in its entirety. With a mind towards conserving judicial resources, we will not rehash the reasoning of the Magistrate Judge; rather, we will attach a copy of the R R to this document, as it accurately reflects our consideration and resolution of the casesub judice. An appropriate Order shall issue.
REPORT AND RECOMMENDATION
For the convenience of the reader of this document in electronic format, hyperlinks to the court's record and to authority cited have been inserted. No endorsement of any provider of electronic resources is intended by the court's practice of using hyperlinks.
Presently pending before the court are: (1) an unopposed motion to dismiss the plaintiff's complaint filed on behalf of defendants Toolan and Fishel, ("Primecare defendants"), (Doc. No. 17), and (2) an unopposed motion to dismiss the plaintiff's complaint filed on behalf of defendant DeRose, (Doc. No. 21). Based upon the court's review of the record, it is recommended that both motions be denied in part and granted in part, and the plaintiff's complaint be dismissed.
On December 9, 2010, the plaintiff, currently an inmate at the State Correctional Institution, Camp Hill, Pennsylvania, filed the instant civil rights action pursuant to 42 U.S.C. § 1983 in which he alleges that he received inadequate medical treatment. (Doc. No. 1). On the same day, the plaintiff filed the appropriate application to proceed in forma pauperis, (Doc. No. 2), and authorization form, (Doc. No. 3). As a result, a financial administrative order was issued. (Doc. No. 6).
By order dated January 10, 2011, it was directed that process issue. (Doc. No. 7).
On February 23, 2011, the Primecare defendants filed their motion to dismiss the plaintiff's complaint, (Doc. No. 17), along with a brief in support thereof, (Doc. No. 18).
On March 25, 2011, defendant DeRose filed his motion to dismiss the plaintiff's complaint, (Doc. No. 21), along with a brief in support thereof, (Doc. No. 22).
As of the date of this report, the plaintiff has failed to respond to either of the pending motions to dismiss. In light of the plaintiff's pro se status, however, the motions will be give a merits review pursuant to Stackhouse v. Mazurkiewicz, 951 F.2d 29 (3d Cir. 1991).
The defendants' motions to dismiss are brought pursuant to the provisions of Fed.R.Civ.P. 12(b)(6). In deciding a motion to dismiss brought pursuant to Rule 12(b)(6), the court must accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). If the facts alleged by the plaintiff are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," dismissal of the complaint is inappropriate. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007). See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (explaining 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"). However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. at 1950 (quoting Twombly, 550 U.S. at 555 ). Moreover, a simple recitation of the elements of a cause of action supported by nothing more than conclusory statements is insufficient. Id. at 1949 (citing Twombly, 550 U.S. at 555 ).
A pro se complaint should be construed liberally, Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003), and "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)). Before dismissing such a complaint as merely deficient, a court must grant leave to amend. See, e.g.,Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).
In his complaint, the plaintiff allege that, on August 15, 2010, he had a tooth pulled and the dentist, defendant Fishel, left the root inside of his mouth. The plaintiff indicates that he was given pain medication and was told that defendant Fishel would return to schedule an appointment for the plaintiff to see an oral surgeon.
On September 12, 2010, when defendant Fishel had not returned, the plaintiff alleges that he filed a grievance to see an oral surgeon. He indicates that during the time of his initial treatment and the time of his grievance he continuously received pain pills and antibiotics.
When no response was received to his initial grievance, on November 1, 2010, the plaintiff alleges that he filed a second grievance indicating that he was in "excruciating pain" and that he was getting headaches. Three days later, on November 4, 2010, the plaintiff was seen by defendant Fishel for follow-up. At that time, the plaintiff alleges that defendant Fishel informed him that his condition was not such that he needed to see an oral surgeon. The plaintiff alleges that defendant Fishel, as well as defendant Toolan, informed him that the root would dissolve or push out on its own.
In his complaint, the plaintiff alleges that the defendants acted with deliberate indifference to his medical needs in violation of his Eighth Amendment rights. He is seeking declaratory and injunctive relief, as well as compensatory and punitive damages. The plaintiff requests in his complaint that the court consider his claims "even though the prison grievance system was not completed."
In their motion to dismiss the plaintiff's complaint, the Primecare defendants argue that the plaintiff's complaint should be dismissed because he has admittedly failed to exhaust his administrative remedies and because he has failed to state a claim upon which relief can be granted.
Initially, with respect to the defendants' argument that the plaintiff failed to exhaust his administrative remedies, the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), provides that "no action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prisons, or other correctional facility until such administrative remedies as are available are exhausted."
Here, the plaintiff's complaint makes a plausible claim that he exhausted his administrative remedies. Although he indicates that the grievance process was not complete, he also alleges that he filed various grievances to which he never received a response. Assuming these facts to be true, as the court must do on a motion to dismiss, this is sufficient for exhaustion purposes. See Carter v. Morrison, 2007 WL 4233500 (E.D.Pa. Nov. 28, 2007) ("a plaintiff who files grievances and receives no response has exhausted his or her remedies"). As such, the Primecare defendants' motion to dismiss the plaintiff's complaint for failure to exhaust his administrative remedies should be denied.
For the convenience of the reader, the Court has attached copies of unpublished opinions cited within this document.
The Primecare defendants also argue that the plaintiff has failed to sufficiently state an Eighth Amendment claim upon which relief can be granted. Here, the court agrees.
The Eighth Amendment is violated with respect to the provision of medical care where a defendant acts with "deliberate indifference" to a plaintiff's "serious medical needs." See Estelle v. Gamble, 429 U.S. 97, 104 (1976). A prison official acts with deliberate indifference when he or she "knows of and disregards an excessive risk to inmate health or safety." Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Deliberate indifference may be evidenced by an intentional refusal to provided care, delayed provision of medical treatment for non-medical reasons, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or by persistent conduct in the face of resultant pain and risk of permanent injury, White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
However, the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim. Estelle, 429 U.S. at 106 . "Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). In the prison context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate.Clark v. Doe, 2000 WL 1522855, at *2 (E.D.Pa. Oct. 13, 2000) ("courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care"). In fact, courts within the Third Circuit have consistently rejected Eighth Amendment claims that are based upon the level of professional care that an inmate received. See, e.g., Ham v. Greer, 269 F. App'x 149 (3d Cir. 2008); Bronson v. White, 2007 WL 3033865 (M.D.Pa. Oct. 15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D.Pa. 1997). Thus, on an Eighth Amendment claim, any attempt to second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts since such determinations remain a question of sound professional medical judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
An inmate's dissatisfaction with a course of medical treatment, standing alone, also does not give rise to a viable Eighth Amendment claim. See Taylor v. Norris, 36 Fed. Appx. 228, 229 (8th Cir. 2002) (deliberate indifference claim failed when it boiled down to a disagreement over recommended treatment and decision not to schedule a doctor's appointment); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir. 1996) (inmate's disagreement with course of treatment fell short of demonstrating deliberate indifference). "[T]he exercise by a doctor of his professional judgment is never deliberate indifference." Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D.Pa. 1997) (citations omitted).
Here, there is no indication of deliberate indifference on the part of the Primecare defendants. In fact, the only claim of involvement by defendant Toolan was that he agreed with defendant Fishel that the root would either dissolve or push out by itself. As to defendant Fishel, according to the plaintiff's complaint, she performed the procedure and provided the plaintiff with pain medication. Although she indicated that she would return to schedule the plaintiff for a consult with an oral surgeon, she did not. Instead, she followed up with the plaintiff and, upon examination, opined that the plaintiff did not need an oral surgeon consult. In the meantime, while the plaintiff was awaiting the follow-up, his complaint indicates that he was provided with pain medication and antibiotics. There is no indication from the plaintiff's complaint that defendant Fishel was made aware of the grievances filed by him in which he indicated that he was having pain and headaches due to his condition. In light of all of this, there is no indication that defendant Fishel was deliberately indifferent to the plaintiff's medical needs. Instead, it appears that the plaintiff is simply disagreeing with the treatment provided by defendant Fishel. On this basis, his complaint should be dismissed.
With respect to the motion to dismiss filed on behalf of defendant DeRose, he too argues that the plaintiff's complaint should be dismissed for his failure to exhaust administrative remedies. For the reasons set forth above, defendant DeRose's motion to dismiss on this basis should be denied.
Moreover, defendant DeRose argues that the plaintiff has failed to state a claim against him upon which relief can be granted in that the plaintiff has failed to set forth any allegations in the body of his complaint which would indicate that defendant DeRose violated the plaintiff's constitutional rights.
To state a claim under § 1983, the plaintiff must show that the defendants, acting under color of state law, deprived him of a right secured by the Constitution or laws of the United States.42 U.S.C. § 1983; Morse v. Lower Merion School District, 132 F.3d 902 (3d Cir. 1997); Maine v. Thiboutot, 448 U.S. 1 (1980). Liability under § 1983 is personal in nature and can only follow personal involvement in the alleged wrongful conduct shown through specific allegations of personal direction or of actual knowledge and acquiescence. Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Moreover, relief cannot be granted against a defendant pursuant to § 1983 based solely on the theory ofrespondeat superior or the fact that the defendant was the supervisor or superior of the person whose conduct actually deprived the plaintiff of one of his federally protected rights under color of state law. Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976); Goode v. Rizzo, 506 F.2d 542, 550 (3d Cir. 1974), rev'd on other grounds, Rizzo v. Goode, 423 U.S. 362 (1976).
Upon review of the plaintiff's complaint, other than naming defendant DeRose in the caption of his complaint, the plaintiff has failed to set forth any allegations with respect to him. It would appear that the plaintiff is attempting to name defendant DeRose based upon a theory of respondeat superior. As such, defendant DeRose's motion to dismiss the plaintiff's complaint should be granted on this basis.
On the basis of the foregoing, IT IS RECOMMENDED THAT:
(1) the Primecare defendants' unopposed motion to dismiss the plaintiff's complaint, (Doc. No. 17 ), be DENIED to the extent it is argued that the plaintiff failed to exhaust his administrative remedies and GRANTED to the extent it is argued that the plaintiff has failed to state a claim upon which relief can be granted; and
(2) defendant DeRose's unopposed motion to dismiss the plaintiff's complaint, (Doc. No. 21 ), be DENIED to the extent that it is argued that the plaintiff failed to exhaust his administrative remedies and GRANTED to the extent that it is argued that the plaintiff has failed to state a claim upon which relief can be granted.
NOTICE
Any party may obtain a review of the magistrate judge's above proposed determination pursuant to Rule 72.3, M.D.PA, which provides:72.3 REVIEW OF REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGES ADDRESSING CASE DISPOSITIVE MOTIONS
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.