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Fetters v. Beregovskaya

January 11, 2007


The opinion of the court was delivered by: Judge Muir

Complaint Filed 05/17/2006



Plaintiff, Thomas Ray Fetter, an inmate formerly confined in the State Correctional Institution, Huntingdon, Pennsylvania ("SCI-Huntingdon"), filed the above captioned civil rights action pursuant to 42 U.S.C. § 1983.*fn1 He complains that defendants have been deliberately indifferent to his serious medical needs, in violation of his Eighth Amendment rights. (Doc. No. 1, complaint). Named as defendants in the complaint are Dr. Beregovskaya, SCI-Huntingdon Medical Director, and Prison Health Services, a private contract services health care provider. Presently before the court is defendants' motion to dismiss the plaintiff's complaint. (Doc. No. 14). The motion is fully briefed, and is ripe for disposition. For the reasons set forth below, defendants' motion to dismiss will be granted.

Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of claims that fail to assert a basis upon which relief can be granted. See FED. R. CIV. P. 12(b)(6).

When deciding a motion to dismiss for failure to state a claim, the court is required to accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). "The complaint will be deemed to have alleged sufficient facts if it adequately put[s] the defendant on notice of the essential elements of the plaintiff's cause of action." Id. The court will not dismiss a complaint for failure to state a claim unless it appears beyond a doubt that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Consistent with these principles, the court must grant leave to amend before dismissing a claim that is merely deficient. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

Factual Allegations of Plaintiff's Complaint

Plaintiff states that he suffers from "Hepatitis C, impaired liver function, IBS, and painful diverticular disease." (Doc. No. 1, complaint ). He claims while housed at SCI-Somerset from November, 2004 through February 2005, he was prescribed Tylenol #3 codeine, Motrin 400mg and Metamucil "which afforded plaintiff pain control and bowel function of a normal nature, without excessive diarrhea." Id.

In February, 2005, plaintiff was transferred to SCIHuntingdon, where he came under the care of Dr. Beregovskaya. Id. Initially, Dr. Beregovskaya prescribed "Codeine Sulfate 30mg BID, Lomotil 25mg BID, and Metamucil to treat plaintiff's IBS, and painful diverticular disease." Id. Plaintiff states that "these medications controlled plaintiff's symptoms and pain and were ordered for plaintiff thru August 2005." Id.

On August 3, 2005, plaintiff had a verbal dispute with a prison guard. Id. Plaintiff states that the guard "threatened to use his influence with medical to have plaintiff's pain control stopped, to 'learn him something'". Id.

On August 12, 2005, plaintiff claims that Dr. Beregovskaya came to see plaintiff in the RHU. Id. She told plaintiff that his pain medications would be reduced by 50% for thirty days and then discontinued, without giving any reason for doing so. Id. Plaintiff states that he was then prescribed Ultram, a substitute pain medication. Id. Plaintiff's other treatments and medications remained the same.

In October, 2005, Dr. Beregovskaya sent plaintiff to a hospital for a liver biopsy and started plaintiff on Interferon/Ribauarin therapy for plaintiff's Hepatitis C. Id. In December, 2005, Dr. Beregovskaya again sent plaintiff to a hospital for a CT scan of plaintiff's abdomen. Id. After each of these trips to the hospital, plaintiff states that he "complained to defendant, Dr. Beregovskaya about being in bad pain after defecation, which lasts for hours." Id. He claims that he "repeatedly told defendant, Dr. Beregovskaya that Ultram was not helping control his pain, and asked to be put back on codeine ordered by specialist, Allen Snyder, M.D., in November, 2004, or given an effective substitute" and that Dr. Beregovskaya "denied plaintiff each time." Id.

Plaintiff further claims that in December 2005, after returning from the hospital CT scan, plaintiff experienced a bursting sensation in his lower left abdomen, and started experiencing frequent and painful urination, as well as a dry mouth, which symptoms he claims continue to the present. Id. Plaintiff also states that beginning in late February, 2006, and continuing to the present, he experiences pain and swelling in his feet and legs after lying in bed for any ...

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