Opinion
1:23-CV-00116-SPB-RAL
05-24-2024
JHEN SCUTELLA, Plaintiff v. ERIE COUNTY PRISON; WEXFORD HEALTH SERVICES; DEPUTY WARDEN BRYANT; MIKEY HOLMAN; JOHN DOE (DENTIST); LOUISE (DENTAL ASSISTANT); AND MICHELLE EARLEY (MEDICAL SUPERVISOR), Defendants
SUSAN PARADISE BAXTER United States District Judge
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS THE COMPLAINT ECF NOS. 31, 34
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Pending before the Court are two motion to dismiss Plaintiffs Complaint pursuant to Fed.R.Civ.P. 12(b)(6): the first filed on behalf of the Erie County Prison (“ECP), Deputy Warden Bryant, and Deputy Warden Michael Holman (collectively the “Corrections Defendants”) (ECF No. 31), and the second filed on behalf of Wexford Health Services (“Wexford”), and Medical Supervisor Michelle Earley (collectively, the “Medical Defendants”) (ECF No. 34). It is respectfully recommended that both motions be GRANTED. It is also respectfully recommended that Plaintiffs claims against Dental Assistant Louise and John Doe be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
IL Report
A. Introduction and Procedural History
Plaintiff Jhen Scutella initiated this pro se civil rights action based on allegedly deficient dental care he received during his detention at ECP in early 2023. See ECF No. 7. Scutella claims that the Defendants violated his First, Eighth, and Fourteenth Amendment rights under the United States Constitution and engaged in harassment, terroristic threats, and intentional infliction of emotional distress (“IIED”) in violation of Pennsylvania state law. See id. ¶¶ 24-29.
It appears from Scutella's court filings that he was released from ECP in or around January 2024. See ECF Nos. 30,37.
The Corrections Defendants responded to the Complaint with a motion to dismiss and a brief in support of their motion. ECF Nos. 31 (motion), 32 (brief). Thereafter, the Medical Defendants similarly filed a motion to dismiss and supporting brief. ECF Nos. 34 (motion), 35 (brief). Scutella has responded to both motions with a single response (ECF No. 38) and brief in opposition (ECF No. 39).
Corrections Defendants appended to their motion to dismiss Criminal Docket 2034-2018 (ECF No. 31-2) and Criminal Docket 465-2023 (ECF No. 31-3).
Medical Defendants' motion to dismiss is filed only on behalf of Wexford and Earley and omits reference to Louise. ECF No. 34 (“AND NOW, come the Defendants, Wexford Health Sources, Inc. and Michelle Earley, by and through their counsel. .. file the within Motion to Dismiss Plaintiffs Complaint...”); ECF No. 35 (same). C.f., ECF No. 35 (signature line states that attorneys represent all three defendants). However, counsel purportedly represents all three defendants. See ECF Nos. 17. Despite this erroneous oversight, the undersigned finds the claims against Louise eligible for dismissal under § 1915(e)(2) and § 1915A's screening provisions for the reasons stated below.
B. Standard of Review
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When considering a Rule 12(b)(6) motion to dismiss, the court must accept as true all well-pled factual allegations in the complaint and view them in a light most favorable to the plaintiff. See U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The “court[] generally consider[s] only the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim” when considering the motion to dismiss. Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In re Burlington Coat Factory Sec. Litig, 114 F.3d 1410, 1426 (3d Cir.1997)).
In making its determination under Rule 12(b)(6), the court is not opining on whether the plaintiff is likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice, and Procedure § 1216, pp. 235-36 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint should only be dismissed pursuant to Rule 12(b)(6) if it fails to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570 (rejecting the traditional Rule 12(b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 (1957)).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. See Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as explained in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions disguised as factual allegations. See Twombly, 550 U.S. at 555; McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”). Put another way, in assessing a motion to dismiss, while the Court must view the factual allegations contained in the pleading at issue as true, the Court is “not compelled to accept unwarranted inferences, unsupported conclusions or legal conclusions disguised as factual allegations.” Baraka v. McGreevey, 481 F.3d 187, 211 (3d Cir. 2007). Expounding on the Twombly!Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
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.”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
Finally, because Scutella is proceeding pro se, the complaint must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969).
C. Material Facts
The Court accepts the following factual allegations of the Complaint as true for purposes of this motion to dismiss.
On February 7, 2023, Scutella was placed in ECP for a “probation detainer pending” the “outcome of misdemeanor charges.” ECF No. 7, ¶ 17. Thereafter, Scutella developed “sores and lesions in his mouth” and back molar pain because the enamel on his teeth had eroded and left his nerves and roots exposed. Prior to his detention, a dentist had applied “Glumer” “over the[se] exposed nerves and roots” to “stop[] the pain and discomfort” they caused. Id.
At his subsequent dentist appointment “sometime in March,” Defendant Dental Assistant Louise told him “that the Dental department only extract[ed] teeth and” did not have the equipment to apply Glumer or clean his teeth. Id. ¶ 14. Louise explained that he therefore could not “do anything for [Scutella's] swollen and bleeding gums,” “the sores the plaque [wa]s creating,” or his “exposed roots and nerves.” Id. Scutella replied that when “this happened before,” he “sued them.” Id.
Approximately one week later, Scutella met with the Special Review Committee (“SRC”), which consisted of Defendant Dep. Warden Bryant, additional prison officials, “and other unnamed Wexford employees.” Id. They advised him that he “was on the list to see the Dentist and . . . not to ‘throw around' words like grievance and lawsuit.” Id.
On March 16, 2023, Scutella met with Dentist Doe a second time. Doe “took an x-ray and” repeated that “they only do extractions.” Id. ¶ 18. Scutella attempted to grieve this issue, but he “was never given a grievance and was threatened with harassment charges or disciplinary action by” Defendant Dep. Warden Holman. Id., ¶ 14.
Nine days later, Scutella “told medical, ‘my gums are still bleeding and sore and I'd like a grievance because they were not going to do anything to help.'” Id. On April 3, Scutella “e-mailed Medical and informed them of sore, bleeding teeth with severe pain in back teeth.” Id. Three days later, Scutella asked for another grievance. In response, Holman called Scutella “entitled” and accused him of “seeking special treatment.” Id. ¶ 20. The next day, April 7, Scutella “emailed the counselor and told her [he] wanted a grievance due to no treatment for exposed roots and nerves, bleeding gums, very sensitive, sore teeths [sic] and plaque causing open sores and lesions.” Id. ¶ 15.
Sometime later, the SRC met with Scutella again. They asked Scutella “why [he] did not take care of [his] teeth on the street” and “when and where [his] last [d]entist appointment was,” as if to imply that they should not “treat [him] with proper medical care” “if [he] did not take care of [his] teeth on the street.” Id. ¶ 21. At this meeting, Bryant also “harried” Scutella “for exercising [his] 1st Amendment rights,” and “[Scutella] was aggressively told that [he was] doing all this to file lawsuits” and “that [he] do[es] not take care of [his] health and hygiene on the streets.” Id. The SRC also told him that “[he] would see the [d]entist again” and that “the course of action [wa]s for [him] to buy Sensodyne toothpaste” to treat his dental issues. Id.
Scutella subsequently met with Dentist Doe a third time; Earley and Louise were present as well. At this appointment, Doe reiterated his instruction to use Sensodyne and “agreed that if [they] were at his office/practice location, he would apply Glumer as treatment but” he could not do so at the prison. Id. ¶ 23.
Since Scutella's first dentist appointment, “the sores and lesions have become worse,” his “gum-line is beginning to recede and expose [his] jaw line,” he “spit[s] up blood every morning from [his] gums,” and he is in “unbearable pain,” especially when he eats and drinks. Id. ¶¶ 19, 23.
D. Plaintiffs Legal Claims
The Complaint asserts the following claims:
• Monell claim against ECP for violating Scutella's Eighth Amendment rights by acting with deliberate indifference to his serious medical needs;
• a civil rights conspiracy claim against Bryant, Earley, Louise, and Dentist Doe for conspiring to provide him with deliberately indifferent dental care;
• a civil rights conspiracy claim against Wexford and ECP for conspiring to deprive Scutella of his civil rights;
• a First Amendment access to courts claim against all Defendants;
• a Monell claim against Wexford and ECP for failing to provide Scutella with the “higher standard of treatment” owed to pretrial detainees under the Fourteenth Amendment, ECF No. 7, ¶ 26;
• a state law IIED claim against Wexford and ECP for “intentionally causing emotional distress and actual physical injury,” id. ¶ 29;
• and state law claims of harassment and terroristic threats against Holman. See id. ¶¶ 2429.
E. Analysis
Corrections Defendants raise the following arguments in support of their motion to dismiss the Complaint: (1) ECP “is not an entity capable of being sued as a party in civil rights litigation”; (2) the facts alleged are insufficient to state an Eighth Amendment deliberate indifference to serious medical needs claim, civil rights conspiracy claim, or state law harassment, terroristic threats, and IIED claims; (3) Scutella fails to establish a violation of his First Amendment rights because he “does not have a constitutional right to grieve conditions of confinement”; (4) the facts fail to state a claim against Erie County for ECP officials' alleged misconduct; and (5) Scutella “has improperly demanded a sum certain of unliquidated damages.” ECF No. 32, pp. 6, 8.
Medical Defendants argue that the facts alleged are insufficient to state a constitutional claim against (1) Earley for acting with deliberate indifference to Scutella's serious dental needs; (2) a Monell claim against Wexford for a policy, custom, or practice that caused deliberate indifference to his serious dental needs; and (3) state law claims of harassment, terroristic threats, and IIED. See ECF No. 35.
The undersigned will address these arguments in turn, as well as the sufficiency of the Complaint to state a claim against Louise and Dentist Doe pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
The Complaint is subject to sua sponte screening for dismissal pursuant to 28 U.S.C. § 1915(e)(2) because Scutella is proceeding in forma pauperis (“IFP”) and seeks redress from a governmental employee and entity. See e.g., Hoye v. Allegheny Cnty. Med. Dep't, 2023 WL 7304825, at *2 (W.D. Pa. Sept. 26, 2023), report and recommendation adopted, 2023 WL 7124580 (W.D. Pa. Oct. 30, 2023). Section 1915(e)(2) requires the federal courts to review complaints filed by persons who are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). See also Hoye, 2023 WL 7304825, at *2 n.3 (citing Douris v. Middletown Twp., 293 Fed.Appx. 10, 132 (3d Cir. 2008) (non-precedential) (noting that the statute's reference to prisoners in § 1915(a)(1) “appears to be a mistake” because IFP status is “afforded to all indigent persons, not just prisoners.”); Atamian v. Burns, 236 Fed.Appx. 753, 754 (3d Cir. 2007) (non-precedential) (“the provisions of § 1915(e) apply to all in forma pauperis complaints, not simply those filed by prisoners.”)). The determination of whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6). D'Agostino v. CECOMRDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
1. Scutella cannot assert a Section 1983 or IIED claim against ECP.
Scutella contends that “ECP has a custom/policy of violating” the Eighth Amendment, conspired with Wexford to violate his constitutional rights, and did not provide him with the standard of care owed to a pretrial detainee in violation of the Fourteenth Amendment. ECF No. 7, ¶ 24. See id. ¶¶ 26, 28. Scutella also asserts an IIED claim against ECP for “intentionally causing emotional distress and actual physical pain.” Id. ¶ 29. Corrections Defendants argue that Scutella cannot state a claim against ECP for which relief can be granted for his alleged injuries. They are correct.
First, a prison “is not a ‘person' and therefore, cannot be held liable for constitutional violations through § 1983.” Scutella v. Erie Cnty. Prison, 2020 WL 4904587, at *6 (W.D. Pa. Aug. 20, 2020). See also Barnes v. Erie Cty. Prison Admin., 2020 WL 4450297, at *3 (W.D. Pa. Aug. 3, 2020) (citing Lenhart v. Pennsylvania, 528 Fed.Appx. 111, 114 (3d Cir. 2013)) (concluding that district court properly dismissed claims against county prison because even though “[a] local governmental agency may be a ‘person' for purposes of § 1983 liability, [the county prison] is not a person capable of being sued within the meaning of § 1983”) (internal citations omitted). ECP thus lacks the capacity to be sued for the alleged violations of Scutella's constitutional rights. Second, “a prison cannot form the necessary intent to engage in” an intentional violation of Scutella's state rights. Jones v. Erie Cnty. Prison, 2022 WL 3236939, at *2 (W.D. Pa. July 11, 2022), report and recommendation adopted, 2022 WL 3228113 (W.D. Pa. Aug. 10, 2022) (“[Plaintiffs] state law claim is subject to dismissal because a prison cannot form the necessary intent to engage in a battery.”). As such, Scutella cannot assert a viable IIED claim against ECP. Accordingly, all claims asserted against ECP should be dismissed with prejudice and ECP should be stricken as a party defendant. See, e.g, Bros. v. Lawrence Cnty. Prison Bd, 2008 WL 146828, at *5 (W.D. Pa. Jan. 14, 2008) (citing Cairns v. Franklin Mint Co., 24 F.Supp.2d 1013 (C.D. Cal. 1998) (moving to strike improper party defendant)).
2. The facts alleged are insufficient to support a claim of deliberate indifference to Scutella's serious medical needs.
Scutella appears to base his Eighth and Fourteenth Amendment claims and civil rights conspiracy claims upon the assertion that ECP staff acted with deliberate indifference to his serious dental needs. See ECF No. 7, ¶ 24. Corrections and Medical Defendants contend that these claims must be dismissed because the Complaint fails to demonstrate any Defendant's deliberate indifference. The undersigned agrees.
As a prefatory matter, the undersigned notes that the Corrections Defendants dispute Scutella's assertion that he was a pretrial detainee at the time of his allegedly inadequate medical care. They argue that he was actually a sentenced individual. However, for the reasons explained below, this is a distinction without a difference in this case because the Complaint fails to establish that he received constitutionally deficient dental treatment and care regardless of his status.
The Due Process Clause of the Fourteenth Amendment applies to pretrial detainees' claims of inadequate medical care, while the Eighth Amendment applies only “after [the State] has secured a formal adjudication of guilt in accordance with due process of law.” City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (quoting Ingraham v. Wright, 430 U.S. 651, 671-72 n.40 (1977)). To state a claim under the Eighth Amendment, an inmate must allege: (1) a serious medical need; and (2) behavior on the part of prison officials constituting deliberate indifference to that need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Fourteenth Amendment, however, protects pretrial detainees from “any and all punishment.” Montgomery v. Aparatis Dist. Co., 607 Fed.Appx. 184, 187 (3d Cir. 2015). The Court of Appeals for the Third Circuit has emphasized that while the Estelle analysis can inform the Fourteenth Amendment analysis applicable to pretrial detainees, the Eighth and Fourteenth Amendment standards are not identical. See Hubbard v. Taylor, 399 F.3d 150, 165-66 (2005) (citing Bell v. Wolfish, 441 U.S. 520, 535 (1979)); Montgomery v. Ray, 145 Fed.Appx. 738, 740 (3d Cir. 2005) (holding that “the Eighth Amendment only acts as a floor for due process inquiries into medical and non-medical conditions of pretrial detainees” and vacating and remanding district court's entry of summary judgment for defendant premised on Estelle analysis of pretrial detainee's inadequate medical care claim for consideration under the Fourteenth Amendment standard); City of Revere, 463 U.S. at 244 (holding that “the due process rights of a [pre-trial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner”). That said, “[t]here is an open question” in the context of the provision of medical care “of ‘how much more protection [detainees] should receive' under the Fourteenth Amendment” than sentenced individuals under the Eighth Amendment. Mattern v. City of Sea Isle, 657 Fed.Appx. 134, 138 n.5 (3d Cir. 2016) (quoting Kost v. Kozakiewicz, 1 F.3d 176, 188 n. 10 (3d Cir. 1993)). See Evans v. Columbia Cnty., 2024 WL 115202, at *4 (M.D. Pa. Jan. 10, 2024) (“The Third Circuit's standard for evaluating a pretrial detainee's claim of inadequate medical treatment under the Due Process Clause is not entirely clear.”) (citation omitted).
Compare King v. County of Gloucester, 302 Fed.Appx. 92, 96 (3d Cir. 2008) (citing Bell, 441 U.S. 520) (the proper inquiry of a pretrial detainee's alleged denial of medical care is whether it “was ‘imposed for the purpose of punishment or whether it [was] an incident of some other legitimate governmental purpose'”) with Thomas v. City of Harrisburg, 88 F.4th 275, 281 n.23 (3d Cir. 2023) (“Because the Fourteenth Amendment affords pretrial detainees protections at least as great as those available to inmates under the Eighth Amendment, we will review Sherelle Thomas's claims for failure to render medical care under the Fourteenth Amendment by applying the same standard used to evaluate claims brought under the Eighth Amendment.”). In this case, the Court need not define the precise contours of the applicable standard because the Complaint fails to demonstrate a violation of Scutella's rights under either the Fourteenth or Eighth Amendment.
As noted above, to establish a violation of his constitutional rights to adequate medical care, Scutella must first demonstrate that he had a serious medical need. See e.g., Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need exists when a “failure to treat can be expected to lead to substantial and unnecessary suffering.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). 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.” Young v. Kazmerski, 266 Fed.Appx. 191, 193 (3d Cir. 2008) (quoting Monmouth County Corr. Inst'I Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987)). Deliberate indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a 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 “persistent conduct in the face of resultant pain and risk of permanent injury.” White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
Regarding the first element, the facts alleged in the Complaint adequately support an inference that Scutella's dental condition constituted a serious medical condition. ECF No. 7, ¶ 17. Scutella avers that he had “sores and lesions” and “exposed nerves and roots” and bleeding gums. He alleges that these conditions were causing him serious pain and discomfort, particularly when he ate and drank. Courts have found similar conditions sufficient to support the existence of a serious medical need. See Kiehlmeier-Stratton v. Wexford Health Sources, Inc., 2023 WL 2384142, at *4 (W.D. Pa. Mar. 6, 2023) (“Plaintiff['s] allegation] that he suffered prolonged tooth pain, infection, swelling, bone pain, debilitating headaches, and tooth loss” satisfied the “serious medical need” prong of his deliberate indifference claim.); Oke v. Biggins, 2019 WL 6702142, at *3 (W.D. Pa. Nov. 15, 2019) (plaintiff had cavity that caused him severe pain interfering with his ability to sleep, eat, and drink) report and recommendation adopted, 2019 WL 6701455 (W.D. Pa. Dec. 9, 2019); Nolen v. Tolnay, 2020 WL 4736250, at *2 (W.D. Pa. Aug. 14, 2020) (decay of his remaining wisdom tooth constitutes a serious medical need); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (dental condition that interfered with inmate plaintiffs ability to eat constituted a serious medical need).
In contrast to the sufficiency of Scutella's dental need, the pleading is inadequate to support a finding that the care he received for this need amounted to an unjustified “punishment” under the Fourteenth Amendment or “deliberate indifference” under the Eighth Amendment. It appears from the Complaint that Scutella received at least four dentist appointments within the first two or so months of his detention. Dental Assistant Louise saw him first promptly upon his complaints to Medical, and Dentist Doe saw him after each of his SRC meetings. His appointments included dental examinations and an x-ray, and Dentist Doe prescribed him Ibuprofen, a saltwater rinse, and Sensodyne toothpaste. See id. ¶ 24; ECF No. 39, p. 4 (repeating that this treatment plan). After each appointment, the SRC would meet with Scutella to review his dental needs and treatment plan. The SRC also scheduled Scutella for his initial and followup appointments with Dentist Doe. See ECF No. 7, ¶ 7. The Complaint's account of his repeated, and prompt, visits and consultations with dental and prison staff, along with the recommendation of Sensodyne, Ibuprofen, and saltwater cleaning to treat his dental needs, belie a finding that his dental care was so deficient as to amount to “punishment” under the Fourteenth Amendment, let alone deliberate indifference under the Eighth Amendment.
While “there are circumstances in which some care is provided yet it is insufficient to satisfy constitutional requirements,” this is not one of those times. Palakovic v. Wetzel, 854 F.3d 209, 228 (3d Cir. 2017). These circumstances include, for example, where prison officials, “with deliberate indifference to the serious medical needs of the inmate, opt for ‘an easier and less efficacious treatment' of the inmate's condition.” Id. (quoting Westv. Keve, 571 F.2d 158, 162 (3d Cir. 1978)) (internal citation omitted). Similarly, prison officials may not 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 County Corr. Inst. Inmates, 834 F.2d at 346 (internal citation omitted)), or intentionally refuse to provide care where the need for such care is acknowledged, id. (citing Ancata v. Prison Health Servs., 769 F.2d 700, 704 (11th Cir. 1985)). Notably, however, “[a]llegations of negligent treatment are medical malpractice claims, not constitutional violation claims.” Estelle, 429 U.S. 97.
Scutella argues that the individual Defendants “refused to treat [him] properly” because the dental staff “d[id] not have the equipment” to “provide [G]lumer” or a teeth cleaning “to remove the plaque which [wa]s causing the sores.” Id. ¶¶ 24, 17. Scutella contends that prior to ECP, his gums were treated with “Glumer,” and that Dentist Doe “agreed that if [they] were at his office/practice location he would apply Glumer as treatment but” he “c[oud] not at ECP.” Id. ¶ 23. Scutella maintains that a saltwater rinse, Ibuprofen, and Sensodyne are “not a substantial treatment” for his “diagnosis.” Id. ¶ 24.
Scutella's subjective belief that proper treatment of his dental issues included a teeth cleaning and “Glumer” does not state an Eighth Amendment claim for deliberate indifference. Generally, the failure to receive preventative care like a teeth cleaning does not alone amount to constitutionally deficient medical treatment because it implies a lack of serious medical need. See Ball v. Famiglio, 2011 WL 1304614, at *8 (M.D. Pa. Mar. 31, 2011) (citing Brooks v. Padula, 2010 WL 3257937, at *6 (D.S.C. June 24, 2010)) (“A teeth cleaning is not usually considered to be a serious medical/dental condition. Rather, a professional teeth cleaning is a preventative procedure.”); Taylor v. Cnty. of Chester, 2023 WL 8358345, at *7 n.5 (E.D. Pa. Nov. 30, 2023) (“To the extent Taylor alleges that he was not provided a ‘teeth cleaning' as a matter of preventative dental care, he has not described a serious medical need, so any constitutional claims based on this allegation are not plausible.”); Henry v. York Cnty., 2022 WL 696469, at *4 (M.D. Pa. Mar. 8, 2022) (“the allegation regarding failure to receive teeth cleanings fails to state an Eighth Amendment deliberate indifference claim.”). See also Vaughn v. Cambria Cnty. Prison, 709 Fed.Appx. 152, 155 (3d Cir. 2017) (per curiam) (“dental health care claim” would be futile to amend) (citing Hallett v. Morgan, 296 F.3d 732, 746 (9th Cir. 2002) (observing that “the lack of routine teeth cleaning” did not establish deliberate indifference to serious medical needs)). And the Complaint does not support that Scutella's failure to receive his desired treatment “resulted in any life-threatening medical problem or serious injury.” Ball, 2011 WL 1304614, at *8 (no deliberate indifference because “Plaintiff has failed to allege that the denial of her request to receive dental cleanings has resulted in any life-threatening medical problem or serious injury”) (citing James v. O'Sullivan, 62 Fed.Appx. 636, 639 (7th Cir. 2003) (requiring a prisoner to show “that the prison's denial of hygiene and cleaning supplies constituted an objectively excessive risk to health and safety” to state an Eighth Amendment claim); McCoy v. Willis, 2008 WL 4221745, at *4 (D.S.C. Sept. 15, 2008) (concluding the denial of a dental cleaning does not violate the Eighth Amendment where plaintiff failed to provide evidence that the denial of dental cleaning caused him to suffer life-threatening medical problem or serious injury)).
The facts alleged also fail to support an inference that Dental Assistant Louise, Dentist Doe, and the other dental staff “exercised no professional judgment” and “simply opted for ‘an easier and less efficacious treatment of the inmate's condition' than what was medically appropriate.” Kiehlmeier-Stratton, 2023 WL 2384142, at *7 (quoting Palakovic, 854 F.3d at 228) (“A viable claim is stated where the facts alleged support an inference that the dentist exercised no professional judgment but simply opted for ‘an easier and less efficacious treatment of the inmate's condition' than what was medically appropriate.”). The Complaint does not convey Dentist Doe or Louise's belief that Scutella required Glumer and a teeth cleaning to treat his dental needs. Hence, the Complaint does not support a plausible inference that Dentist Doe offered him Sensodyne, Ibuprofen, and a salt-water rinse as an easier and cheaper alternative to a referral for an outside dentist. C.f. Kiehlmeier-Stratton, 2023 WL 2384142, at *7 (Plaintiffs allegations that Dentist Kohler offered only to extract his affected teeth despite acknowledging his immediate need for dental fillings and that such restorative care was medically appropriate “support[ed] a plausible inference of deliberate indifference” because “[e]xtraction of otherwise repairable teeth was allegedly the easier option” since “it did not require” a referral “to an outside dentist” or an “upgrade to ECP dental facilities or equipment.”). Further, Dentist Doe's contemplation of the dental treatment he would have offered at his clinic does not render the treatment he provided at ECP medically inappropriate. Nor do the allegations support that Dental Assistant Louise and Dentist Doe's treatment of Scutella's dental needs was devoid of professional judgment. Moreover, though their dental care may have been constrained by ECPs dental equipment, Scutella “does not have a constitutional right to unlimited medical care of his choosing, free from all considerations of cost.” Winslow v. Prison Health Servs., 406 Fed.Appx. 671, 675-76 (3d Cir. 2011). This is not a case where the factual allegations support that medical or dental personnel recognized the immediate need for specific treatment, but prison officials denied the treatment for nonmedical reasons. Compare Scutella v. Erie Cnty. Prison, 2020 WL 571065, at *4 (W.D. Pa. Feb. 5, 2020) (preliminary injunction granted where plaintiffs dental records, including the notes entered by the attending dentist and other providers, consistently indicated that plaintiffs impacted wisdom tooth required prompt medical attention, including evaluation and potential treatment by an oral surgeon).
Scutella was dissatisfied with the treatment he received, but his dissatisfaction does not support a deliberate indifference claim. See Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases) (“an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.”). Such complaints fail as constitutional claims because “prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners,” Durmer, 991 F.2d at 67 (citations omitted), and “the exercise by a doctor of his professional judgment is never deliberate indifference,” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.”)). Based upon these principles, “courts have consistently rejected Eighth Amendment claims where,” like here, “an inmate has received some level of medical care.” Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018) (quoting Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)). See also Wisniewski v. Frommer, 751 Fed.Appx. 192, 195-96 (3d Cir. Oct. 3, 2018) (noting that “there is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'”) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017)). As such, Scutella has failed to show that Louise and Dentist Doe's dental care and treatment constituted a violation of his rights under the Eighth or Fourteenth Amendments.
The allegations of the Complaint also fail to demonstrate that medical administrator Earley and non-medical prison officials Holman and Bryant acted with deliberate indifference to his serious dental needs. ‘“To state an Eighth Amendment claim of deliberate indifference against' a corrections healthcare administrator, [Scutella] must show that she ‘possessed actual knowledge or a reason to believe that prison doctors or their assistants [were] mistreating (or not treating) him.'” Trainor v. Wellpath, et al., 2021 WL 3913970, at *10 (W.D. Pa. Sept. 1, 2021) (citing Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)) (internal citations omitted). Scutella avers that Earley was present at his dental appointments and participated in his SRC meetings. She thus knew that he was receiving consistent dental treatment and care. Because the Complaint does not allow for the inference that this dental treatment was deficient, Earley cannot be liable for acting with deliberate indifference to his dental needs. Nor can Holman and Bryant, as “a non-medical prison official will generally be justified in believing that the prisoner is in capable hands” when the individual “is under the care of medical experts.” Spruill v. Gillis, 312 F.3d 218, 236 (3d Cir. 2004). Accordingly, the deliberate indifference claim against Earley, Holman, and Bryant should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) and against John Doe and Louise pursuant to § 1915(e)(2)(H).
3. The facts are insufficient to support a civil rights conspiracy claim.
Scutella next asserts that Defendants conspired to deny him proper medical treatment. To properly plead a civil rights conspiracy claim, the plaintiff must allege: “1) the specific conduct that violated the plaintiffs rights, 2) the time and the place of the conduct, and 3) the identity of the officials responsible for the conduct.” Sanchez v. Coleman, 2014 WL 7392400, at *9 (W.D. Pa. Dec. 11, 2014) (citing Oatess v. Sobolevitch, 914 F.2d 428, 431 n.8 (3d Cir. 1990)). Critical to this claim is the complaint's “factual allegations of combination, agreement, or understanding among all or between any of the defendants [or coconspirators] to plot, plan, or conspire to carry out the alleged chain of events.” Id. (quoting Spencer v. Steinman, 968 F.Supp. 1011, 1020 (E.D. Pa. 1997)). See also Loftus v. Southeastern Pa. Transp. Auth., 843 F.Supp. 981, 987 (E.D. Pa. 1994) (“[w]hile the pleading standard under [Fed. R. Civ. Proc.] Rule 8 is a liberal one, mere incantation of the words ‘conspiracy' or ‘acted in concert' does not talismanically satisfy the Rule's requirements”). Bare allegations that “[d]efendants engaged in a concerted action of a kind not likely to occur in the absence of agreement” are insufficient. Id. It is likewise “insufficient to allege that ‘the end result of the parties' independent conduct caused plaintiff harm or even that alleged perpetrators of the harm acted in conscious parallelism.” Parness v. Christie, 2015 WL 4997430, at * 11 (D.N.J. Aug. 19, 2015) (quoting Desposifo v. New Jersey, 2015 WL 2131073, at *14 (D.N.J. May 5, 2015)).
Scutella avers that Bryant, Earley, Louise, and John Doe conspired to act with deliberate indifference to his serious dental needs because “[t]hey all are aware of diagnosis and needed treatment but obviously refused to treat me properly” and Wexford and ECP conspired to deny him “proper treatment due to saving money.” ECF No. 7, ¶¶ 24, 28. With respect to the deprivation of Scutella's rights, the pleading fails to establish that any Defendant acted with deliberate indifference to Scutella's serious dental needs, as discussed above. Even if the facts were sufficient to plead a constitutional violation, the Complaint is devoid of facts alluding to the time, place, and conduct that constituted the Defendants' supposed conspiracy. See Reed v. Harpster, 506 Fed.Appx. 109, 111 (3d Cir. 2012) (citing Young v. Kann, 926 F.2d 1396, 1405 n.16 (3d Cir. 1991) (affirming dismissal of conspiracy claims based upon mere suspicion and speculation)). The singular allegations of the individual Defendants and Wexford and ECP's alleged conspiracies are merely conclusory and thus, cannot state a claim for relief. Further, the civil rights claim against Wexford cannot proceed because the Complaint cannot assert a civil rights conspiracy claim against ECP for the reasons explained above. Accordingly, the civil rights conspiracy claim against the individual Defendants should be dismissed without prejudice and the civil rights conspiracy claim against Wexford and ECP should be dismissed with prejudice.
4. The facts are insufficient to support a First Amendment claim.
The Complaint next asserts a First Amendment violation based on ECP Staffs alleged “failure to provide grievances.” ECF No. 7, ¶ 25. But “a prisoner has no constitutional right to a grievance procedure.” Rivera v. Pa. Dep't of Corr., 346 Fed.Appx. 749, 751 (3d Cir. 2009) (per curiam) (citation omitted); see also Jackson v. Gordon, 145 Fed.Appx. 774, 777 (3d Cir. 2005) (per curiam) (citation omitted). Further, “the state creation of [a grievance] procedure does not create any federal constitutional rights.” Wilson v. Horn, 971 F.Supp. 943, 947 (E.D. Pa. 1997), affd, 142 F.3d 430 (3d Cir. 1998) (alteration added). Although a prison official's failure to provide an inmate with a grievance form may excuse the individual's failure to exhaust administrative remedies, the official's conduct does not support a First Amendment claim. See Reavis v. Poska, 2010 WL 2511379, at *4 (W.D. Pa. May 7, 2010) (citing Rivera, 346 Fed.Appx. at 751). Scutella's First Amendment claim based on the denial of a grievance form must therefore be dismissed.
Scutella likewise fails to assert a violation of his First Amendment right to seek redress from the government. To prevail on an access to courts claim, a plaintiff must show: (1) “that they suffered an ‘actual injury' in that they lost a chance to pursue a ‘nonfrivolous' or ‘arguable' underlying claim”; and (2) that they have “no other ‘remedy that may be awarded as recompense' for the lost claim other than in the present denial of access suit.” Id. at 205-06 (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Here, Scutella has failed to plausibly plead that Defendants' conduct has prevented him from pursuing a non-frivolous or meritorious claim, since he is currently litigating the claim at issue. Accordingly, the First Amendment claims based on the denial of a grievance form should be dismissed with prejudice.
5. The Complaint fails to assert a Monell claim against Wexford based on an alleged violation of Scutella's constitutional rights.
The Medical Defendants also argue that to the extent Scutella is alleging that an unconstitutional policy or custom attributable to Wexford Health resulted in a constitutional violation, such a claim fails because Scutella has not pled a constitutional injury or identified a policy, custom, or practice responsible for such injury. A Section 1983 claim against Wexford cannot proceed “under a theory of respondeat superior or vicarious liability.” Natale, 318 F.3d at 583 (citing Monell v. Departent of Social Services, 436 U.S. 658, 691 (1978)). However, a nongovernment entity performing a state function, such as Wexford, may be held liable for § 1983 constitutional violations if while acting under color of state law, the entity knew of and acquiesced in the deprivation of a plaintiffs rights. See Monell, 436 U.S. at 694-95. To establish liability regarding a private corporation, the plaintiff must show that the entity, with “deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [plaintiffs] constitutional harm.” Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989), cert, denied, 493 U.S. 1044 (1990). A plaintiff may demonstrate this “§ 1983 claim against in two ways:” either by asserting that “an unconstitutional policy or custom of the [corporation] led to his or her injuries,” or that the injuries “were caused by a failure or inadequacy by the municipality that reflects a deliberate or conscious choice.” Forrest v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (citing Estate of Roman v. City of Newark, 914 F.3d 789, 798 (3d Cir. 2019)) (internal citations omitted).
Although “[t]he latter avenue arose in the failure-to-train context,” this approach “applies to other failures and inadequacies by municipalities, including those related to supervision and discipline of its police officers.” Forrest, 930 F.3d at 105 (citing Roman, 914 F.3d at 798-99 (“[Plaintiff] has not pled a municipal policy ... [but] has ... adequately pled that the City failed to train, supervise, and discipline its police officers.”)).
The touchstone of the § 1983 action “is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution.” Monell, 436 U.S. at 690. As a threshold matter, the insufficiency of Scutella's allegations to state a constitutional claim against the individual Defendants preclude a claim that a policy, practice, or custom caused an individual Defendant's constitutional violation. Absent plausible allegations of a constitutional violation, a plaintiff cannot allege that a company's official policy is responsible for the conduct that caused the alleged constitutional violation and thus cannot succeed on a Section 1983 claim. See Zucal v. Cnty. of Lehigh, 660 F.Supp.3d 334, 353 (E.D. Pa. 2023) (“An underlying constitutional violation is required for a plaintiff to prevail on a Monell claim.”) (citing Mulholland v. Gov't Cnty. of Berks, Pa., 706 F.3d 227, 238, n.15 (3d Cir. 2013) (“It is well-settled that, if there is no violation in the first place, there can be no derivative municipal claim”)). And, even if his dental treatment “somehow amounted to deliberate indifference, [Wexford] cannot be held responsible under a theory of vicarious liability.” Parked, 682 Fed.Appx. at 160 (citing Parked v. Danberg, 833 F.3d 313, 338 (3d Cir. 2016).
Scutella's allegations also fail to identify a policy, custom, or practice that resulted in a constitutional violation. Policy is created “when a ‘decision-maker possessing] final authority to establish a municipal policy with respect to the action' issues an official proclamation, policy, or edict.” McTernan v. City of York, PA, 564 F.3d at 658 (3d Cir. 2009) (quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990)). This “decision-maker” must have “final, unreviewable discretion to make a decision or take an action,' and who is or is not a policymaker is determined by reference to state law.” Ginyard v. Del-Prete, 2021 WL 3476601, at *5 (W.D. Pa. July 9, 2021) (quoting Andrews, 895 F.2d at 1481), report and recommendation adopted, 2021 WL 3472150 (W.D. Pa. Aug. 6, 2021). When conduct cannot be attributed to company policy, it can become corporate custom when it is “so widespread as to have the force of law.” Bd. of County Comm 'rs of Bryan County, 520 U.S. 397, 404 (1997).
The allegations fail to show that Wexford was deliberately indifferent to Scutella's dental needs or that its policies or customs caused its employees to be deliberately indifferent to his needs. Scutella generally claims that Wexford and ECP provided him improper treatment “to sav[e] money.” ECF No. 7, ¶ 29. This assertion does not implicate a policy or widespread conduct; rather, it portrays Scutella's perception of his dental treatment and belief as to the reason for his treatment. Scutella's contention that Louise and Dentist Doe told him that they do not have the equipment to apply Glumer or clean his teeth is equally unavailing. Neither Louise nor John Doe are decision-makers and Scutella has not pled that ECP dental staff routinely denied inmates these procedures at the behest of a decision maker. Nor does the Complaint indicate that Dental Staff's inability to apply Glumer or conduct a teeth cleaning frequently result in the deprivation of inmates' constitutional rights. See Forrest, 930 F.3d at 106 (citation omitted) (a Plaintiff asserting a claim “predicated on a failure or inadequacy has the . . . demanding requirement of demonstrating a failure or inadequacy amounting to deliberate indifference on the part of the municipality”). Accordingly, Scutella cannot demonstrate Wexford's Monell liability for a violation of his constitutional rights.
Corrections Defendants argue that Scutella may have intended to assert a claim against Erie County for the alleged constitutional violations, and if so, has failed to demonstrate “any specific policy, practice or custom of Erie County that was unconstitutional or that violated Mr. Scutella's rights.” ECF No. 32, p. 18. The undersigned agrees. Scutella's general assertion that ECP “has a custom of restraint and medical neglect” and policy of “violating 8th Amendment which allows for a Monell claim” does not suffice as identification of a policy, custom, or practice. ECF No. 7, ¶¶ 6, 24. Scutella's failure to plausibly plead a constitutional violation also hinders his ability to assert a claim against ECP under Monell. Thus, the Corrections Defendants are entitled to the dismissal of Scutella's Monell claim to the extent Scutella asserts such a claim against Erie County.
6. Scutella cannot assert a cause of action for terroristic threats or harassment, and he fails to state an IIED claim against any Defendant.
Finally, Scutella brings state law claims of “harassment,” “terroristic threats,” and IIED. Scutella's claim of harassment is not recognized as an independent civil cause of action in Pennsylvania. See Scutella v. Cousins, 2016 WL 8677254, at *3 (W.D. Pa. Aug. 19, 2016) (citing Keahey v. Bethel Township, 2012 WL 478936, at *12 (E.D. Pa. 2012) (citing Sobel v. Winguard, 531 A.2d 520, 522-23 (Pa. Super. 1987))), report and recommendation adopted, 2016 WL 5402718 (W.D. Pa. Sept. 28, 2016). See also DeAngelo v. Fortney, 357 Pa. Super. 127, 132 (Pa. Super. 1986) (“Pennsylvania courts have not heretofore recognized a separate tort of harassment. We decline to do so in the instant case ...”). Scutella's attempt to invoke Pennsylvania criminal statute 18 Pa. C.S. § 2706 in order to provide him with a private civil cause of action for terroristic threats is unavailing, as the statute does not “evince a legislative purpose of granting a private cause of action or otherwise satisfy the criteria for establishing a private right of action.” Bros. v. Lawrence Cnty. Prison Bd., 2008 WL 146828, at *15 (W.D. Pa. Jan. 14, 2008) (citing D'Errico v. DeFazio, 763 A.2d 424 (Pa. Super. 2000)) (setting forth the analysis to determine whether criminal statutes provide a private cause of action). These claims should therefore be dismissed with prejudice.
Nor does verbal harassment “rise to a rise to the level of a constitutional violation.” McKay v. U.S. Dep't of Justice. 2010 WL 4358404, at * 1 n.1 (3d Cir. Nov. 4, 2010).
Scutella also fails to state an IIED claim. To state and sustain a claim for IIED, Scutella must allege and show that the Defendants' conduct was “(1) extreme and outrageous (2) intentional or reckless, and (3) caused severe emotional distress.” Shumate v. Twin Tier Hosp., LLC, 655 F.Supp.2d 521, 541 (M.D. Pa. 2009) (citing Livingston v. Borough of Edgewood, 2008 WL 5101478 at *6 (W.D. Pa. 2008) (citing Hargraves v. City of Philadelphia, 2007 WL 1276937 (E.D. Pa. April 26, 2007)). Pennsylvania courts have defined “extreme and outrageous conduct” as conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Id. (quoting Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745, 754 (1998) (citing Buczek v. First Nat'l Bank of Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122, 1125 (Pa. Super. Ct. 1987)). Scutella avers that “defendants are intentionally causing” him “emotional distress and actual physical pain.” ECF No. 7, ¶ 29. This is a legal conclusion that alone cannot support a cause of action for IIED. Further, the Complaint does not ascribe conduct to any Defendant that could be interpreted as “extreme and outrageous.” Accordingly, the IIED claim should be dismissed against all Defendants.
7. Scutella cannot request a sum certain as compensatory damages.
Defendants contend that Scutella's demand for $250,000 in compensatory damages must be stricken from his Complaint based on Local Rule 8 of the Local Rules of Civil Procedure. Defendants are correct. Local Rule 8 states that “[n]o party shall set forth in a pleading originally filed with this Court a specific dollar amount of unliquidated damages” except in certain circumstances which do not apply in the instant case. See LCvR 8. Scutella's demand for specific unliquidated damages must therefore be stricken. See, e.g., Massey v. Holman, 2019 WL 3997845, at *7 (W.D. Pa. July 23, 2019), report and recommendation adopted, 2019 WL 3997280 (W.D. Pa. Aug. 23, 2019) (citing Ramsier v. Allegheny County, 2016 WL 890603, at * 10 (W.D. Pa. Mar. 9, 2016) (invoking Local Rule 8 to strike plaintiffs demand for unliquidated damages))
F. Leave to Amend
The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the Court should 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). The Court may deny leave to amend where there is “undue delay, bad faith[,] or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). And though “the grant or denial of an opportunity to amend is within the discretion of the District Court,” it may not “outright refus[e] to grant the leave without any justifying reason appearing for the denial.” Id. These instructions are equally applicable to pro se litigants and those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
In this case, it would be futile to allow Scutella to amend his constitutional and state law claims against ECP, as well as his First Amendment claims based upon the denial of a grievance and state law harassment and terroristic threats claims. These claims should therefore be dismissed with prejudice. It is possible, however, that the deficiencies in the remaining claim for unconstitutional dental care may be cured by amendment. Therefore, this claim should be dismissed without prejudice and with leave to file an amended complaint.
III. Conclusion
For the foregoing reasons, it is respectfully recommended that both the Corrections Defendants' motion to dismiss and the Medical Defendants' motion to dismiss be GRANTED.
It is specifically recommended that the Court (1) dismiss with prejudice the claims against ECP, the First Amendment claims based upon the denial of a grievance, and the state law harassment and terroristic threats claims; (2) dismiss the remaining constitutional claim based on deficient dental care without prejudice and with leave to file an amended complaint; and (3) to the extent any claim survives ultimate dismissal, strike Scutella's request for compensatory damages in a sum certain. If Scutella fails to file an amended complaint within the time set by the Court, it is further recommended that the dismissal of his remaining constitutional claim based on deficient dental care and this action be dismissed with prejudice.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties may seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may waive appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).