The opinion of the court was delivered by: Judge McClure
On April 28, 2008, plaintiff Jonathan Clark, pro se, an inmate at the Lebanon County Correctional Facility in Lebanon, Pennsylvania, filed the instant civil action pursuant to 42 U.S.C. § 1983 against defendants Warden Kearnes, Nurse Debra Hosler, Officer Dilger, CPL Williams, and Anthony Hauck. Clark alleges that defendants forced him to take his own blood after a nurse was unable to do so after several attempts.
On May 5, 2008, we conducted a screening of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). We concluded that the complaint did not state a claim against defendant Kearnes, as he was not mentioned anywhere in plaintiff's factual allegations. Therefore, we dismissed the complaint as to defendant Kearnes and ordered service on the remaining defendants.
On June 19, 2008, defendants Hosler, Dilger, Williams, and Hauck filed a motion to dismiss. (Rec. Doc. No. 13.) Opposing and reply briefs have been filed and the matter is ripe for disposition. For the following reasons, the court will deny the motion. Additionally, we will seek counsel for plaintiff.
I. Motion to Dismiss Standard
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should only be dismissed if, accepting as true all of the allegations in the complaint, plaintiff has not plead enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1960 (2007).
The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.
II. Allegations in the Complaint
The following allegations are taken from plaintiff's complaint. (Rec. Doc. No. 1.) On February 26, 2008, at the Lebanon County Correctional Facility, defendant Williams called plaintiff down to the medical facility. (Id. at 2.) When he arrived, nurse Hosler unsuccessfully attempted to extract a blood sample. (Id. at 2.) According to plaintiff, "She said my veins were too blown out, so Officer Dilger said, 'Let him get it. I'm sure he'll succeed at it.' So nurse Hosler handed me the needle. I said to her, 'I don't think I should do this. I'm still withdrawing from drugs. She told me to just do it. So I did. I felt pressured to do it. Since Mr. Hauck kept saying if I didn't do it he will send me back to the blocks because of my attitude." (Id. at 2) (spelling and punctuation corrected from original). Plaintiff contends that his arm has hurt since this incident occurred.
III. Defendants' Motion to Dismiss
In their motion, defendants construe plaintiff's claims as being brought under the Fourth and Fourteenth Amendments. Specifically, they contend that plaintiff has failed to state a Fourth Amendment claim because the taking of blood samples is not an illegal search. (Rec. Doc. No. 14, at 5-7.) Furthermore, they contend that plaintiff has failed to state a Fourteenth Amendment claim because under an Excessive Force theory because he has failed to plead that defendants acted sadistically to cause him harm and only de minimus force was used. (Id. at 7-10.) Finally, they contend that the complaint fails to state a claim against defendant Williams because "Defendant Williams is alleged to have done nothing more than call plaintiff to the medical facility." (Id. at 3.)
As to defendants' arguments under the Fourth Amendment, we note that in his opposition brief, plaintiff concedes that the taking of blood samples does not violate the Fourth Amendment and states that his claim is based on the Eighth Amendment based on his allegations that defendants forced him to take his own blood. (Rec. Doc. No. 17, at 3.) Therefore, because plaintiff's claim ...