The opinion of the court was delivered by: Stengel, J.
Kevin McCarthy alleges that Bucks County, two Sheriff's Department employees (one unknown), the County's Department of Health Director, two physicians (one unknown), and the County's Department of Corrections Director used excessive force and denied him proper medical treatment while he was incarcerated. Defendants have filed motions to dismiss*fn1 the second amended complaint in this § 1983*fn2 case. For the reasons that follow, I will grant the motions in part and deny them in part.
When he turned himself into the Bristol Township police department in Bucks County, Kevin McCarthy suffered from a condition called RSD.*fn3 He was then turned over to the custody of Bucks County Sheriff's Department. Before the Sheriff's office employees took McCarthy to prison, Bristol Township officers told Sheriff's Department employee Thomas French not to cuff McCarthy's left hand because-due to his RSD-it would cause pain. French ignored this instruction and placed handcuffs tightly on McCarthy's left hand during the 50-minute trip to the Bucks County prison. During the ride, French ignored McCarthy's complaints about his condition and the pain caused by the handcuffs.
During the first days of his incarceration, McCarthy's left hand became red and swollen. He sought medical care, but was denied on multiple occasions by employees of the Bucks County Department of Health. The delay in treatment caused "extreme pain, disability, infection, festering, and severe injury, requiring surgery resulting in an open wound, exacerbation of his RSD causing temporary paralysis," and the need for multiple physical therapies. (Second Amended Compl. ¶ 26.)
On March 17, 2006, McCarthy was taken to Abington Hospital because his arm was severely swollen. An argument between Dr. Davis or John Doe 3 and hospital staff prevented him from being admitted. McCarthy was then transported to Doylestown hospital where he was told that immediate surgery to relieve pressure from the infection caused by the handcuffing was required. One doctor said McCarthy's arm featured "most likely the worst abscess I have seen in my career." (Second Amended Compl. ¶ 31).
McCarthy alleges that even after his hospital visit and his report of excessive force, defendants deprived him of his constitutional rights by failing to report, investigate or treat his injuries. He alleges (upon information and belief) that his injuries resulted from the policies, or lack thereof, concerning his treatment by the Sheriff's Department, the Department of Corrections and the Department of Health of Bucks County.
McCarthy's second amended complaint contains the following five causes of action against the defendants including a § 1983 claim,*fn4 negligence, assault / battery, intentional infliction of emotional distress and a claim for punitive damages.
The defendants moved to dismiss Counts I, II (only as to John Doe 1), IV(only as to John Doe 1) and "VI" (only as to John Doe 1) of the second amended complaint.
II. MOTION TO DISMISS STANDARD
The purpose of a motion to dismiss is to test the legal sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993); Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss, courts must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996). The complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The statement must provide defendant with "fair notice of what the...claim is and the grounds upon which it rests."Bell Atlantic Corp. v. Twombly,---U.S.---, 127 S.Ct. 1955, 1964 (2007); see also D.P. Enterprises. v. Bucks County Community College., 725 F.2d 943, 944 (3d Cir. 1984). Twombly's plausibility paradigm has been extended by the Third Circuit to civil rights actions under § 1983. See Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (stating that Rule 8 "requires a'showing' rather than a blanket assertion.").
At this stage, however, establishing that no possible claim has been presented is the defendants' burden. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). Yet courts will not accept as true "bald assertions" or "vague and conclusory allegations." See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pa. Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995).
To establish a claim under § 1983, a plaintiff must allege (1) a deprivation of a federally protected right, and (2) commission of the deprivation by one acting under color of state law. Lake v. Arnold, 112 F.3d 682, 689 (3d Cir.1997). See 42 U.S.C. § 1983. There is state action where a defendant's "official character is such as to lend the weight of the State to his decisions." Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982). The focus of § 1983, therefore, is "misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." Davidson v. O'Lone, 752 F.2d 817, 826 (3d Cir. 1984), aff'd, 474 U.S. 344 (1986). Section 1983 provides remedies for deprivations of ...