The opinion of the court was delivered by: BY THE COURT; JAMES T. GILES
Plaintiff brings this 42 U.S.C. § 1983 action against a prison doctor and the director of a prison hospital, alleging that the medical treatment provided to him violated the eighth amendment to the United States Constitution. Defendant Johnson has moved to dismiss the complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. Plaintiff, who is proceeding pro se, has not submitted a response to defendant's motion. Nevertheless, for the reasons stated below, the motion is denied.
I. STANDARD FOR A MOTION TO DISMISS
Dismissal of a complaint pursuant to Rule 12(b)(6) is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984). All factual allegations in the complaint and all reasonable inferences that may be drawn from the complaint are to be viewed in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1969); D.P. Enterprises, Inc. v. Bucks County Community College, 725 F.2d 943, 944 (3d Cir. 1984).
In order to state a claim under 42 U.S.C. § 1983, plaintiff must show that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) the conduct deprived him of rights, privileges or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Defendant Johnson does not dispute the assertion that he was acting under color of state law for the purposes of § 1983 liability.
His motion to dismiss challenges the legal sufficiency of the complaint only with respect to its allegations that he deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States.
Prison systems have a constitutional duty under the eighth amendment to provide prisoners with adequate health care. See, e.g., Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). However, mere allegations of negligent medical malpractice do not present a constitutional violation. In order to succeed in a § 1983 action claiming inadequate medical treatment, plaintiff must show more than negligence on the part of his prison doctor, he must show that the doctor exhibited "deliberate indifference" to a serious medical need. Estelle, 429 U.S. at 104-06; Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987), cert. denied, 486 U.S. 1006, 100 L. Ed. 2d 195, 108 S. Ct. 1731 (1988).
The complaint alleges in pertinent part:
9. Plaintiff reported on sick call at SCI-Graterford regarding "special diet" for medical reasons.
10. Plaintiff was seen by Dr. Johnson, who knew or should have known that, according to plaintiff's prison medical records he suffers from ulcers and torn tissues in his stomach.
11. Defendant Johnson refused/denied plaintiff of a special diet for a period of approximately eighteen months.
12. Denial of affording plaintiff a special diet showed deliberate indifference to ...