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November 3, 2005.


The opinion of the court was delivered by: KEITH PESTO, Magistrate Judge


Plaintiff is incarcerated and has filed a complaint alleging that he has been injured by inadequate medical care provided to him by defendants. Plaintiff makes two distinct claims: 1) a federal claim under 42 U.S.C. § 1983 that his civil rights under the Eighth Amendment were violated by defendants and 2) a state law claim that defendants committed medical malpractice. Upon review of the motions to dismiss, and screening the complaint pursuant to 28 U.S.C. § 1915A, I dismiss the federal civil rights portion of the complaint for failure to state a claim. Whether plaintiff has a claim for medical malpractice under Pennsylvania state law is better determined in the state courts. Because there are no viable federal claims and this matter is at the preliminary stages, there is no reason for this court to exercise pendent and supplementary jurisdiction under 28 U.S.C. § 1367, and supplemental jurisdiction is declined under Section 1367(c). To comply with the transfer provisions of 42 Pa.C.S. § 5103(b), plaintiff should be given a reasonable time to file a complaint in the appropriate Court of Common Pleas. Because plaintiff alleges that he will be released from incarceration by the end of this year, and may need time to obtain counsel to prosecute a medical malpractice action, the time in which plaintiff must file any complaint in state court is extended to March 31, 2006.


  Under Fed.R.Civ.P. 12 (b) (6), the court must accept as true the facts alleged in the complaint and construe them in a light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal is only appropriate where "it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). At the same time, the court cannot supply missing allegations of fact, accept legal conclusions as allegations of fact, or draw unsupportable inferences from the allegations of fact. See Morse v. Lower Merion School District, 132 F.3d 902, 905 (3d Cir. 1997).

  As a sentenced prisoner, plaintiff advances his federal claim under the Supreme Court's interpretation of the Eighth Amendment in Estelle v. Gamble, 429 U.S. 97, 106 (1976):

  In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.

  The Supreme Court has defined the "deliberate indifference" element of an Estelle v. Gamble claim to require willful disregard:

  [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

  Farmer v. Brennan, 511 U.S. 825, 837 (1994). Contrary to defendant Gehl's first affirmative defense, a medical care provider can be a "prison official" for purposes of liability, see West v. Atkins, 487 U.S. 42 (1988). Normally, however, a prison official who is not a physician is not a medical care provider. As the Court of Appeals for the Third Circuit has explained,

  [A]bsent a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, a non-medical prison official . . . will not be chargeable with the Eighth Amendment scienter requirement of deliberate indifference.

  Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). See also Farmer, supra, 511 U.S. at 844:

  [I]t remains open to the officials to prove that they were unaware even of an obvious risk to inmate health or safety. That a trier of fact may infer knowledge from the obvious, in other words, does not mean that it must do so. Prison officials charged with deliberate indifference might show, for example, that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent. In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.


  Plaintiff's complaint alleges that he suffered an injury to his right ankle in 1987 that caused him discomfort, and that after he complained of pain while incarcerated in 2002, defendant Richard Gehl, an orthopedic surgeon, examined him as a consulting specialist hired by the Pennsylvania Department of Corrections. Gehl suggested that an ankle fusion would be the best treatment option, plaintiff agreed, and surgery was approved by the Pennsylvania Department of Corrections. In January 2003, plaintiff underwent ankle fusion surgery (open reduction internal fixation) at Mercy Providence Hospital, performed by defendant Gehl and a Dr. Moyer. This involved closing the incision with staples. On or about January 18, 2003, Gehl discharged plaintiff with a temporary cast on his ankle, scheduled to be removed (apparently with the staples) after two weeks. On ...

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