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Shelton v. Malewski

April 12, 2007

THOMAS SHELTON, PLAINTIFF,
v.
B.G. MALEWSKI, DR. STERLING, DONNA JONES, R.N., DR. KOZEROSKI, RON SLIUKA, MAJOR MILLER, AND SUPERINTENDENT R. SHANNON, DEFENDANTS



The opinion of the court was delivered by: John E. Jones III United States District Judge

MEMORANDUM AND ORDER

Judge Jones

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is Defendants' Motion to Dismiss the Complaint ("the Motion")(doc. 16) filed on January 26, 2007 by Defendants Barbara G. Malewski, Donna Jones, Major Joseph Miller, Deputy Lamas and Robert Shannon (collectively "moving Defendants").

For the following reasons, the Motion shall be denied in part and granted in part.

PROCEDURAL HISTORY

Plaintiff Thomas Shelton, ("Plaintiff" or "Shelton"), a former inmate confined at the State Correctional Facility at Frackville, Pennsylvania ("SCIFrackville") commenced the instant action by filing a complaint (doc. 1) with this Court on November 8, 2006 against the following named Defendants: Robert Shannon, the Superintendent of SCI-Frackville, Barbara Malewski, the Corrections Health Care Administrator ("CHCA") of SCI-Frackville, Joseph Miller, Major of Guards at SCI-Frackville, Deputy Lamas, Deputy of Centralized Services at SCIFrackville, Donna Jones, Acting Corrections Health Care Administrator ("ACHCA") of SCI-Frackville, Dr. Sterling, resident physician at SCI-Frackville, Dr. Kozeroski, Oncologist at SCI-Graterford, and Ron Sliuka, a contracted Physician's Assistant.

The moving Defendants filed the instant Motion on January 26, 2007. The Motion has been fully briefed by the parties and is therefore ripe for our review.

STANDARD OF REVIEW

In considering a motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6), a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d3 310 (3d Cir. 1986).

FACTUAL BACKGROUND

In September 2005, Shelton underwent a prostate specific antigen ("PSA") test and his resulting PSA score was six. (Complaint, ¶¶1-2). On November 3, 2005, Shelton was sent to Mount Hope Medical Center for further evaluation. (Complaint, ¶4). Shelton was seen by Dr. Pujara, who ordered that Shelton undergo a prostate biopsy. (Complaint, ¶5). The biopsy was cancelled because Shelton's correctional officer escort was approximately three hours late for the appointment. (Complaint, ¶7). On January 17, 2006, a prostate biopsy was finally conducted by Dr. Pujara at the Mount Hope Medical Center. (Complaint, ¶8). After the biopsy, Plaintiff was seen by Dr. Sterling, who informed Plaintiff that the biopsy revealed cancer with a "Gleason system" grading score of seven. (Complaint, ¶10).

From January through February of 2006, Plaintiff signed up for sick call several times in relation to his condition. Plaintiff alleges that each time he met with Defendant Sliuka, a physician's assistant, who yelled and cursed at Plaintiff and dismissed Plaintiff's complaints of discomfort and pain as meritless. Plaintiff alleges that Defendant Sliuka would refuse to sign Plaintiff up for doctor sick call, thereby preventing Plaintiff from speaking directly with a doctor. (Complaint, ¶¶12-13).

On February 24, 2006, Plaintiff sent a letter to the Deputy of Centralized Services, Deputy Lamas, to complain of the treatment he received. Plaintiff alleges that the letter was forwarded to Defendant CHCA Malewski. (Complaint, ΒΆΒΆ 14-15). On March 27, 2006, ...


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