The opinion of the court was delivered by: Yvette Kane United States District Judge
Before the Court are motions to dismiss Plaintiff's Amended Complaint filed by Defendants Roger Thomas and Joseph P. Sallemi. (Doc. Nos. 20, 22.) The motions have been fully briefed and are ripe for disposition. For the reasons that follow, the motions will be granted.
Plaintiff was confined in the York County Prison as an ICE detainee from July 9, 2004 to December 16, 2004. (Doc. No. 6 at ¶ 2.) On July 12, 2004, Plaintiff informed a nurse in the York County Prison about a spinal pain resulting from bullet fragments that remained in or near Plaintiff's spinal column. (Id. at ¶ 18.) In response, the nurse recommended that Plaintiff be placed on a bottom bunk and be scheduled to see a physician. (Id.) On July 14 and 15, 2004, Plaintiff was treated by a physician assistant who prescribed medication to treat Plaintiff's discomfort. The physician assistant told Plaintiff that he could not recommend surgery at this time. (Id. at ¶¶ 19-20.)
On August 23, 2004, Plaintiff submitted a complaint to the Inmate Complaint Review System. Subsequently, ICE approved Plaintiff's request for a surgical consultation with an orthopedic surgeon. (Id. at ¶ 22.) On October 1, 2004, Plaintiff was evaluated by an orthopedic surgeon who refused to perform surgery due to fear of further neurological complications. (Id. at ¶ 23.) Plaintiff appealed the surgeon's decision to Defendant Thomas, and requested to see another specialist for a second opinion. Defendant Thomas denied Plaintiff's appeal and Deputy Warden Dennis Bowen concurred in the denial.
Plaintiff initiated this civil action by a petition for writ of habeas corpus filed on March 21, 2005. Plaintiff filed an amended complaint on April 6, 2005 alleging violations of the Federal Civil Rights Act, 42 U.S.C. § 1983. (Doc. No. 6.) In the Amended Complaint, Plaintiff asserts a claim for violation of his constitutional right to be free from cruel and unusual punishment pursuant to the Eighth Amendment of the United States Constitution against the following Defendants: Roger Thomas, Deputy Warden of York County Prison; Joseph Sallemi, Officer in Charge of Immigration and Customs Enforcement ("ICE") at York County Prison; and Donald Monica, District Director of ICE.*fn1
(Id.) On April 29. 2005, the Court ordered the action to be docketed as a civil rights matter and directed the Clerk of Court to serve Plaintiff's Amended Complaint upon Defendants. (Doc. No. 12.) Defendants have moved to dismiss the claims against them for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. Nos. 20, 22.)
A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). When considering a motion to dismiss, the court accepts as true all factual allegations contained in the complaint and views them in the light most favorable to the plaintiff. United States Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). The plaintiff is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that those elements exist." Kost, 1 F.3d at 183 (citations omitted). A court should grant a motion to dismiss only if it appears the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985) (citations omitted).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is properly granted when, taking all factual allegations and inferences as true, the moving party is entitled to judgment as a matter of law. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). The burden is on the moving party to show that no claim has been stated. Johnsrud v. Carter, 620 F.2d 29, 33 (3d Cir. 1980). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, "a court need not credit a complaint's 'bald assertions' or 'legal conclusions' when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 908 (3d Cir. 1997). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Lake v. Arnold, 112 F.3d 682, 688 (3d Cir. 1997) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)).
To prevail in an action under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a right secured by the Constitution or the laws of the United States. In addition, a plaintiff must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988) (citations omitted); Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000). Plaintiff has alleged that Defendants acted under color of law to violate his Eighth Amendment right to be free from cruel and unusual treatment. (Doc. No. 6 at ¶ 15.) Plaintiff contends that he received insufficient and improper medical care for his back injury. Specifically, Plaintiff alleges that Defendants failed to provide him with a surgeon who was willing to perform surgery to remove the metallic fragments in and around his spinal column. (Doc. No. 6 at ¶¶ 23-26.) The Defendants have moved to dismiss the Complaint for failure to state a claim upon which relief can be granted. (Doc. Nos. 20, 22.)
In order to establish a violation of the Eighth Amendment right to adequate medical care, a plaintiff must show (a) a serious medical need, and (b) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97, 104-5 (1976)). A medical need is serious if it "has been diagnosed by a physician as requiring treatment or . . . is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth County Corr. Inst'l Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). Plaintiff has established that he has an injury to his back in that he has bullet fragments in and around his spinal column. Defendants do not dispute that this is a serious injury that requires medical attention. The question, therefore, is whether Defendants were deliberately indifferent to Plaintiff's serious medical needs.
Deliberate indifference is a "subjective standard of liability consistent with recklessness as that term is defined in criminal law." Nicini v. Morra, 212 F.3d 798, 811 (3d Cir. 2000) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The United States Supreme Court has held that finding a prison official liable for violating a prisoner's Eighth Amendment rights requires proof that the official "knows of and disregards an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. 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." Id. The Third Circuit has found deliberate indifference "in situations where 'necessary medical treatment is delayed for non-medical reasons'" or ...