The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.
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
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.
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).
To state a claim under § 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 ...