The opinion of the court was delivered by: Magistrate Judge Baxter
District Judge McLaughlin
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
It is respectfully recommended that Defendant's motion to dismiss second amended complaint or, in the alternative, motion for summary judgment [Document # 28] be granted and the case closed.
A. Relevant Procedural History
On June 14, 2007, Plaintiff Nathan Allen Armstrong, a prisoner incarcerated at the State Correctional Institution at Albion, Pennsylvania ("SCI-Albion"), commenced this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Named as Defendants in Plaintiff's original complaint were: Lynda Maruschak, registered dental hygienist at SCI-Albion ("Maruschak"); Nancy Giroux, Deputy Superintendent at SCI-Albion ("Giroux"); Maxine Overton, Health Care Administrator at SCI-Albion ("Overton"); Prison Health Services, Inc. ("PHS"); and Department of Corrections ("DOC"). [Document # 5]. On November 9, 2007, Plaintiff filed an amended complaint, adding Marilyn S. Brooks, former Superintendent at SCI-Albion ("Brooks"), as a Defendant, and essentially restating the allegations of his original complaint. [Document # 11].
On November 15, 2007, Plaintiff filed a motion to dismiss PHS as a Defendant in this case, which motion was granted by this Court on November 19, 20007. [Document ## 16, 18].
The remaining Defendants subsequently filed a motion to dismiss Plaintiff's amended complaint on December 11, 2007, arguing that Plaintiff has failed to exhaust his administrative remedies. [Document # 21]. In response to this motion, Plaintiff filed a second amended complaint against Defendant Overton only, and asked that all other previously named Defendants be terminated from this case. [Document # 27]. As a result, Defendants' motion to dismiss was dismissed, without prejudice to their right to re-file all or part of said motion in response to Plaintiff's second amended complaint.
In his second amended complaint, Plaintiff alleges that Defendant Overton was deliberately indifferent to his serious dental needs in violation of his Eighth Amendment rights, and was medically negligent in failing to provide adequate dental care. (Document # 27 at p. 5). As relief for his claims, Plaintiff seeks injunctive relief, in the form of an order requiring the immediate "fixing" of his dental cavities. (Id. at p. 6).
On January 8, 2008, Defendant Overton filed a motion to dismiss second amended complaint or, in the alternative, motion for summary judgment, again arguing that Plaintiff has failed to exhaust his administrative remedies. [Document # 28]. Despite being given ample time to do so, Plaintiff has failed to file a response to this motion. This matter is now ripe for consideration.
Rule 8(a) of the Federal Rules of Civil Procedure states that a pleading must set forth a claim for relief which contains a short and plain statement of the claim showing that the pleader is entitled to relief. A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Estelle v. Gamble, 429 U.S. 97 (1976). The issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). As the United States Supreme Court recently held in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (May 21, 2007), a complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at ___, 1974 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). The court must accept as true all allegations of the complaint and all reasonable factual inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). The Court, however, need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. ...