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Cabello v. Grace

December 9, 2008

DAVID CABELLO, PLAINTIFF
v.
JAMES L. GRACE, SUPERINTENDENT, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

Plaintiff, David Cabello, an inmate confined at SCIHuntingdon, Huntingdon, Pennsylvania, filed this pro se 42 U.S.C. § 1983 action asserting that he was denied adequate medical care for his type II diabetes, and subjected to retaliation after he complained about that care. (Doc. 32 and 32-2, Am. Compl.).

Cabello has named as defendants the following present and former Department of Corrections (DOC) employees stationed at SCIHuntingdon as defendants: former Superintendent James Grace, present Superintendent Raymond Lawler, and Corrections Health Care Administrator (CHCA) Mary Lou Showalter. Also named as defendants are the following contract medical care providers (the medical defendants): Physician's Assistant (PA) Angela Auman, Dr. Olga Beresgovskava, Dr. Luis Araneda, and Dr. Joseph Romeo.*fn1

Presently before the court is the DOC defendants' Motion to Dismiss the Amended Complaint based on the statute of limitations and Cabello's failure to state a claim against them.*fn2

The DOC Defendants have filed a Motion to Stay Discovery (doc. 52) pending our disposition of their motion.

For the following reasons, the DOC defendants' motion to dismiss will granted and their motion to stay dismissed as moot.

II. Standard of Review

In considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), we must accept as true the factual allegations in the complaint and construe any inferences to be drawn from the allegations in the plaintiff's favor. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). Detailed factual allegations are not required, id. at 231 (quoting Bell Atlantic Corp. v. Twombly, U.S. , , 127 S.Ct. 1955, 1974, 167 L.Ed.2d. 929 (2007)), but the complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, U.S. at , 127 S.Ct. at 1974. "[M]ore than labels and conclusions" are required. Id. at , 127 S.Ct. at 1964-65.

Additionally, pro se pleadings are to be construed liberally, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972), and pro se litigants are to be granted leave to file a curative amended complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). However, a complaint which sets forth facts affirmatively demonstrating that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002).

III. Background

In his Amended Complaint, Cabello alleges he was diagnosed with type II diabetes by Dr. Beresgovskava and prescribed two tablets of Metformin, generically known as glucophage, daily.

(Doc. 32, Am. Compl. at R. 2.)*fn3 Dr. Beresgovskava also told Cabello that various psychotropic medication he had received "for wrong diagnosis of mental illness likely increased the chances of [him] developing diabetes." (Id.)

On May 7, 2006, Cabello, via a request slip to Dr. Beresgovskava, claimed to be experiencing a metallic taste as a side effect to the Metformin. He did not know the exact nature of the metallic taste because he had been sick for the past week. (Id.)

On July 17, 2006, Cabello went to sick call because he was experiencing "flu like symptoms." (Id. at R. 3.) He told PA Auman that on two occasions he had awakened in the middle of the night vomiting, dizzy, lightheaded, confused and extremely thirsty. He also told PA Auman that he had lost his Metformin when he was released from the institution's restricted housing unit (RHU). Although Cabello asked to see a doctor, PA Auman refused his request and failed to check his vitals, temperature or blood sugar. PA Auman then issued Cabello a misconduct for being in an ...


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