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September 2, 2005.

IAN SEAN WOOD, Plaintiff
DR. ROMEO, et al., Defendants.

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.

  Standard of Review

  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 Cir. 1992).

  Statement of Facts

  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. Id.

  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 ...

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