The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
This is a civil rights action filed pursuant to
42 U.S.C. § 1983. Plaintiff, Ian Sean Wood, is an inmate currently confined
in the State Correctional Institution, Coal-Township,
Pennsylvania. He complains of incidents which occurred at his
former place of confinement, the Rockview State Correctional
Institution, Bellefonte, Pennsylvania ("SCI-Rockview"). Named as
defendants in the complaint are Dr. Joseph Romeo, Dr. John J.
Schietroma, and the SCI-Rockview Medical Administration.*fn1 Plaintiff claims that after being attacked by another inmate on
December 3, 2002, defendants were deliberately indifferent to his
serious medical needs resulting from an alleged injury to his
face and eye, in violation of his Eighth Amendment rights. (Doc.
No. 1, complaint). Presently before the court is a motion dismiss
the complaint, filed by defendant Schietroma (Doc. No. 11), and a
motion to dismiss and for summary judgment,*fn2 filed by
defendant Romeo (Doc. No. 22). These motions have been fully
briefed and are ripe for disposition. For the reasons that
follow, the motions will be granted.
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
courts generally consider only the allegations in the complaint,
exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim. See In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). All
material allegations of the complaint must be accepted by the Court as true and construed in favor of the
plaintiff. Allah vs. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000); Shaev vs. Saper, 320 F.3d 373, 375 (3d Cir. 2003). Claims
may be dismissed pursuant to a Rule 12(b)(6) motion only if the
plaintiff cannot demonstrate any set of facts that would entitle
him to relief. Conley vs. Gibson, 355 U.S. 41, 45-46 (1957); Lum
vs. Bank of America, 361 F.3d 217, 223 (3d Cir. 2004). However,
the Court is not required to accept legal conclusions, either
alleged or inferred, from the pleaded facts. Morse vs. Lower
Merion School District, 132 F.3d 902, 906 (3d Cir. 1997). In Nami
vs. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), the Court of Appeals
for the Third Circuit added that when considering a motion to
dismiss based on failure to state a claim, a court should "not
inquire whether the plaintiffs will ultimately prevail, only
whether they are entitled to offer evidence to support their
claims." When an unrepresented party is confronted by a motion to
dismiss, the deciding court must be mindful of the well-settled
principle that pro se complaints should be liberally construed,
Haines vs. Kerner, 404 U.S. 519, 520 (1972), and that pro se
litigants are to be granted leave to file a curative amended
complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be
inequitable or futile. Alston vs. Parker, 363 F.3d 229, 235 (3d
Cir. 2004). However, a complaint that sets forth facts which
affirmatively demonstrate that the plaintiff has no right to
recover is properly dismissed without leave to amend. Grayson vs.
Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002); see
also Estelle vs. Gamble, 429 U.S. 97, 107-108 (1976).
With respect to a motion for summary judgment, Federal Rule of
Civil Procedure 56(c) requires the court to render summary
judgment ". . . forthwith if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c). "[T]his standard
provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson vs.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original). A disputed fact is "material" if proof of its existence or
nonexistence would affect the outcome of the case under
applicable substantive law. Anderson, 477 U.S. at 248; Gray vs.
York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An
issue of material fact is "genuine" if the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.
Anderson, 477 U.S. at 257; Brenner vs. Local 514, United
Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283,
1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material
fact, the court must view the facts and all reasonable inferences
in favor of the nonmoving party. Moore vs. Tartler, 986 F.2d 682
(3d Cir. 1993); Clement vs. Consolidated Rail Corporation,
963 F.2d 599, 600 (3d Cir. 1992); White vs. Westinghouse Electric
Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid
summary judgment, however, the nonmoving party may not rest on
the unsubstantiated allegations of his or her pleadings. When the
party seeking summary judgment satisfies its burden under Rule
56(c) of identifying evidence which demonstrates the absence of a
genuine issue of material fact, the nonmoving party is required
by Rule 56(e) to go beyond the pleadings with affidavits, depositions, answers to
interrogatories or the like in order to demonstrate specific
material facts which give rise to a genuine issue. Celotex
Corporation vs. Catrett, 477 U.S. 317, 324 (1986). The party
opposing the motion "must do more than simply show that there is
some metaphysical doubt as to the material facts." Matsushita
Electric Industrial Co. vs. Zenith Radio, 475 U.S. 574, 586
(1986). When Rule 56(e) shifts the burden of production to the
nonmoving party, that party must produce evidence to show the
existence of every element essential to its case which it bears
the burden of proving at trial, for "a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Celotex,
477 U.S. at 323. See Harter vs. G.A.F. Corp., 967 F.2d 846, 851 (3d
On the morning of December 3, 2002, plaintiff was struck in the
left eye with a combination lock when he was attacked by another
inmate. (Doc. No 1, complaint). He sustained serious bodily harm
to his face and left eye. Id. He was immediately taken to the
SCI-Rockview Medical Department, where at 9:50 a.m., he was evaluated by physician's assistant Bridget Kelly
("PA Kelly"). (Id., Doc. No. 28, Ex. A, Progress Notes dated
12/3/02). PA Kelly ordered Motrin for pain, ice for swelling,
x-rays and around the clock observation. (Doc. No. 28, Ex. A,
Progress Notes dated 12/3/04, Ex. C, Physician's Orders dated
12/3/04). Plaintiff was monitored on an hourly basis by the
nursing staff. Id. At 3:30 pm, he was seen by Dr. Symons. Id.
Dr. Symons ordered a CT Scan, which was performed on the morning
of December 4, 2002. (Doc. No. 28, Ex. A, Progress Notes dated
12/3/02, Ex. B, copy of CT. Scan). The CT Scan confirmed multiple
left sided facial fractures including "a blow-out fracture of the
left orbital floor suspicious for entrapment of orbital contents.
On December 4, 2002, Dr. Symons ordered an ophthalmology exam
and a referral to Dr. Schietroma, noting "plastic/ocular
reconstruction." (Doc. No. 28, Ex. A, Progress Notes dated
12/4/02). He also ordered plaintiff to remain in the infirmary.
(Doc. No. 28, Ex. C, Physician's orders dated 12/5/02).
On December 6, 2002, plaintiff was seen by Dr. Fisher, an
ophthalmologist. (Doc. No. 28, Ex. B, Consultation Record dated
12/4/02). Dr. Fisher recommended that plaintiff be seen immediately by an oral surgeon and that he have a retinal
consult. Id. Dr. Fisher told plaintiff that he could not
perform the type of surgery that plaintiff needed, but that his
partner, Dr. Schietroma, could. (Doc. No. 1, complaint at p. 2).
On December 8, 2002, Dr. Symons spoke with Dr. Collins, who
explained that plaintiff had a prior injury in the early 1990's
which had required extensive reconstruction involving the left
orbit and left ethmoid sinus, and because of the extent of the
current injury, plaintiff should be referred, as soon as
possible, to Dr. Schietroma, an Ophthalmic Plastic and
Reconstructive Surgeon, in Camp Hill, Pennsylvania. (Doc. No. 28,
Ex. A, Progress Notes dated 12/9/02).
On December 10, 2002, plaintiff was transferred from
SCI-Rockview to SCI-Camp Hill, in anticipation of his surgery.
(Doc. No. 28, Ex. C, Physician's Orders dated 12/10/02). Upon
entry into SCI-Camp Hill, plaintiff was admitted into the
infirmary under around the clock observation. Id.
On December 11, 2002, plaintiff was transported to Pinnacle
Health Hospital, where Dr. Schietroma repaired plaintiff's left
orbital floor and medial wall fractures with a metal mesh implant, as well as tamponed a CSF (Cerebrospinal Fluid) leak
with free orbital fat. (Doc. No. 28, Ex. B, Operative ...