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PETRICHKO v. KURTZ

June 23, 1999

DANIEL SCOTT PETRICHKO, PLAINTIFF,
v.
DAVID KURTZ, WARDEN, GENE BERDINERE, DEPUTY WARDEN, NICHOLAS MARTYAK, M.D., AND SCOTT RIZZARDI, CORRECTIONAL OFFICER, DEFENDANTS.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.

  MEMORANDUM

Presently before the Court is the motion of defendants David Kurtz, Warden ("Kurtz"), Gene Berdinere, Deputy Warden ("Berdinere"), and Scott Rizzardi, Correctional Officer ("Rizzardi") (collectively "the institutional defendants") to dismiss the second amended complaint (Document No. 21) pursuant to Federal Rule of Civil Procedure 12(b)(6) and the answer of pro se plaintiff Daniel Scott Petrichko ("Petrichko") thereto (Document No. 22). Based on the following analysis, the motion of the institutional defendants will be granted in part and denied in part.

I. Background*fn1

Petrichko filed a complaint in this Court alleging claims under 42 U.S.C. § 1983 that the defendants violated his rights under the Eighth Amendment. Petrichko was an inmate at the Schuylkill County Prison at the time of the events alleged in his complaint. Specifically, he alleges that on July 30, 1997, another inmate pushed him into a steel pole which dislocated his shoulder. (Second Amended Complaint at 1). Petrichko alleges that he asked Rizzardi, the guard on duty, to go to the hospital, but Rizzardi told Petrichko that there were not enough personnel to take him to the hospital at that time. (Second Amended Complaint ¶ 2). Rizzardi then purportedly instructed another inmate to relocate Petrichko's shoulder. (Second Amended Complaint ¶ 3). Petrichko alleges that although Nicholas Martyak, the prison doctor ("Martyak"), came to the prison every Wednesday and Friday, the plaintiff was refused permission by Kurtz to see Martyak until August 15, 1997. (Second Amended Complaint ¶ 10). Specifically, Petrichko alleges, Kurtz ignored multiple written requests submitted between July 30, 1997 and August 15, 1997 by Petrichko for medical treatment. (Second Amended Complaint ¶ 10).

Petrichko was transferred to Luzerne County Prison on August 29, 1997, where he remained until September 19, 1997. (Second Amended Complaint ¶¶ 11, 13). At Luzerne, he alleges to have had X-rays taken and to have been prescribed Naprosyn for his shoulder pain. (Second Amended Complaint ¶¶ 11, 12). He alleges that he left Luzerne County Prison before the results of the X-rays came back. (Second Amended Complaint ¶ 13). Petrichko purports that when he returned to Schuylkill County Prison, he informed the nurse that X-rays had been taken and asked to see the prison doctor. (Second Amended Complaint ¶¶ 13, 14). He alleges that he was denied permission to see Dr. Martyak at that time. (Second Amended Complaint ¶ 14). He further alleges that the supervisor on duty at this time, Deputy Warden Berdinere, refused to give him ice for the swelling in his left shoulder. (Second Amended Complaint ¶ 21). Petrichko left for S.C.I. Camp Hill on October 2, 1997, where he saw a bone specialist and had more X-rays taken on October 29, 1997. The specialist allegedly informed Petrichko that the delay in his medical treatment had caused a permanent injury to his left shoulder. (Second Amended Complaint ¶ 26). Petrichko alleges that all of the defendants acted with deliberate indifference in failing to provide medical care for his shoulder injury. (Second Amended Complaint ¶ 31).

On July 1, 1998 Petrichko filed a complaint against the institutional defendants and Martyak, alleging a violation of his constitutional rights under 42 U.S.C. § 1983. On August 31, 1998, after learning of defendant Martyak's death, Petrichko filed a motion to amend the complaint so as to add the estate of Martyak, and on October 1, 1998, the institutional defendants and the estate of Martyak filed a motion to dismiss. This Court, in a Memorandum and Order ("Order") dated January 6, 1999, denied Petrichko's motion to amend the complaint by adding Martyak's estate and dismissed the complaint as to Martyak. The Court also dismissed the complaint as to the institutional defendants without prejudice to the right of Petrichko to file an amended complaint alleging that the institutional defendants knew that there was a substantial risk of serious harm to the defendant. Petrichko filed this amended complaint on January 25, 1999. It is this "Second Amended Complaint" (Document No. 20) which is the object of the instant motion to dismiss.

The institutional defendants move to dismiss the allegations against them on the grounds that: (1) any and all action taken by the institutional defendants with respect to Petrichko's medical care were reasonable and justified and Petrichko's claims are based on a difference of opinion between Petrichko and the defendants as to how he should have been treated (Motion to Dismiss the Second Amended Complaint at 3), (2) Petrichko's allegations relating to his medical treatment do not constitute deliberate indifference (Motion to Dismiss the Second Amended Complaint at 3), (3) Petrichko fails to set forth any relevant facts in support of these allegations (Motion to Dismiss the Second Amended Complaint at 3), (4) liability cannot be imposed on Defendants Kurtz and Berdinere for negligent supervision or training of Defendant Rizzardi because the doctrine of respondeat superior may not be employed to impose § 1983 liability on a supervisor for the conduct of a subordinate which violates constitutional rights (Memorandum of Law in Support of Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint at 6), (5) the institutional defendants are immune from suit under § 1983 (Motion to Dismiss the Second Amended Complaint at 3), and (6) the complaint is frivolous in that there is no factual basis for any of the claims made by Petrichko (Motion to Dismiss the Second Amended Complaint at 3).

Petrichko responds to the motion of the institutional defendants by arguing that the institutional defendants are not immune, that his claims are not frivolous, and that the actions of the institutional defendants in delaying his care constitute deliberate indifference. (Answer to Defendants' Motion to Dismiss at 14, 16, 17).

II. Legal Standard for a Motion to Dismiss

Rule 12(b) of the Federal Rules of Civil Procedure provides that "the following defenses may at the option of the pleader be made by motion: (6) failure to state a claim upon which relief can be granted." In deciding a motion to dismiss under Rule 12(b)(6), a court must take all well pleaded facts in the complaint as true and view them in the light most favorable to the plaintiff. See Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969).

The Federal Rules of Civil Procedure require only notice pleading. See Fed. R.Civ.P. 8(a) (providing that pleadings should contain "a short and plain statement of the claim showing that the pleader is entitled to relief"). Because Petrichko's complaint is pro se, it 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 doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal quotes omitted).

III. Analysis

To state a claim under ยง 1983 for violation of the Eighth Amendment based on inadequate medical care, a plaintiff must demonstrate that the defendants exhibited "deliberate indifference to [his] serious medical needs." Estelle, 429 U.S. at 104, 97 S.Ct. 285. The necessary inquiry, therefore, is bifurcated: the ...


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