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Liverman v. Gubernik

December 30, 2008

DARRYL LIVERMAN, PLAINTIFF,
v.
HARRIS GUBERNIK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Slomsky, J.

MEMORANDUM AND ORDER

I. INTRODUCTION

Before the Court are Motions of Defendants Harris Gubernik, Terrance Moore, Lillian Budd, Kenneth Estepp, James Brandt, James F. Cawley, Stephen Shantz and Dale Haring to Dismiss Plaintiff Darryl Liverman's Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (Doc. Nos. 28, 31, and 43). Plaintiff Liverman has also filed a Motion for Summary Judgment against all Defendants (Doc. No. 35) and a Motion for a Preliminary Injunction (Doc. No. 59).

In his Amended Complaint, Plaintiff brings a claim under 42 U.S.C. § 1983 against various Department of Corrections and Bucks County Correctional Facility (BCCF) officials for violation of his Eighth Amendment rights. Plaintiff alleges that Defendants violated his right to be free from cruel and unusual punishment by failing to provide Plaintiff with adequate mental health care. Plaintiff alleges that he has been diagnosed with Bi-Polar Disorder and that Defendants were deliberately indifferent to his serious medical needs by failing to provide medication to stabilize Plaintiff's mental health condition.

Plaintiff alleges that upon being brought to BCCF on February 29, 2008, he told the officers in reception that he had Bi-Polar Disorder. He was given a psychiatric classification and was placed on "watch." (Pl. Compl. at 1). Plaintiff then spoke to an unidentified social worker in the mental health unit. Plaintiff said he took "Abilify" for treatment of his Bi-Polar Disorder. (Id. at 2) On March 4, 2008, Plaintiff met with Dr. Kenneth Estepp for a psychiatric evaluation. (Id. at 3.) Plaintiff alleges that he told Dr. Estepp that Plaintiff was diagnosed with Bi-Polar Disorder and was proscribed Abilify "on the street" for treatment of that condition. (Id. at 3.) Plaintiff alleges Dr. Estepp told Plaintiff that Plaintiff's medication could not be confirmed, and that Dr. Estepp refused to prescribe any medication for treatment of Plaintiff's Bi-Polar Disorder. (Id. at 3.) Plaintiff alleges that he told Dr. Estepp that Plaintiff was having "racy" thoughts, was in a manic state, and was getting only two hours of sleep per night. (Id. at 3.)

In his response to the Motion to Dismiss filed by Defendants Harris Gubernik, Director of the Bucks County Department of Corrections, Terrance Moore, Warden of BCCF, and Lillian Budd, Plaintiff states that on March 8, 2008, Plaintiff informed Defendants Gubernik and Moore via a "grievance" and "green slip" that Plaintiff's requests for mental health treatment were being ignored. (Pl.'s Resp. in Opp'n to Defs. Mot. to Dismiss 2.) Plaintiff alleges that Defendants Gubernik's and Moore's failure to respond to these complaints demonstrate deliberate indifference to Plaintiff's serious medical needs. (Id.)

On April 3, 2008, Plaintiff met with Dr. James Brandt, Dr. Estepp's supervisor at BCCF. (Pl. Compl. at 3.) Plaintiff alleges that he told Dr. Brandt that Plaintiff was being denied treatment for his Bi-Polar Disorder and that Dr. Brandt failed to provide medication. (Id. at 3.) Plaintiff further alleges that he informed James Cawley, whom Plaintiff alleges is the "Chairman for the Bucks County Commissioners" of the violation of his Eighth Amendment rights, but Mr. Cawley also failed to order treatment. (Id. at 4.)

On April 28, 2008, Plaintiff asked Lillian Budd, whom Plaintiff alleges is the "Assistant Warden of Treatment,"*fn1 to provide medication for the treatment of his Bi-Polar Disorder, but Ms. Budd failed to do so. (Id. at 4.)

On May 8, 2008, Plaintiff appeared before Judge Rea Boylan in the Bucks County Court of Common Pleas and requested that he be committed to Norristown State Hospital for psychiatric treatment. (Id. at 4.) Judge Boylan granted Plaintiff's request on May 8 and committed Plaintiff to Norristown State Hospital for a period of no longer than sixty (60) days. (Id. at 4.) Plaintiff alleges that his public defender, Defendant Stephen Shantz, failed to forward Judge Boylan's Order to Dr. Brandt, who was in charge of Plaintiff's transfer from BCCF to Norristown State Hospital. (Id. at 4.) Plaintiff further alleges that he contacted Dale Haring, Plaintiff's case manager, Ms. Budd, and Mr. Cawley, because as of July 18, 2008, Plaintiff had not yet been transferred to Norristown State Hospital. (Id. at 4.) Plaintiff alleges that Mr. Shantz has shown deliberate indifference to Plaintiff's serious medical needs by failing to forward Judge Boylan's Order to the appropriate officials at BCCF. (Id. at 4.)

On July 2, 2008, Plaintiff again met with Dr. Brandt to request medication for his BiPolar Disorder and to request that his transfer to Norristown State Hospital be effectuated. (Id. at 5.) Dr. Brandt did not provide medication and told Plaintiff that he would be transferred to Norristown State Hospital in September of 2008.*fn2 (Id. at 5.)

All Defendants have filed a Motion to Dismiss Plaintiff's Amended Complaint. For the reasons that follow, Defendants' Motions to Dismiss will be denied in part and granted in part.

II. STANDARD OF REVIEW

When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), courts must "'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)) (stating that this statement of the Rule 12(b)(6) standard remains acceptable following the U.S. Supreme Court's decision in Bell Atlantic Co. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). To withstand a motion to dismiss under Rule 12(b)(6), "'[f]actual allegations must be enough to raise a right to relief above the speculative level.'" Id. at 232 (quoting Twombly, 127 S.Ct. at 1965). Thus, "'stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element." Id. at 234 (quoting Twombly, 127 S.Ct. at 1965); see also Wilkerson v. New Media Tech. Charter Sch., Inc., 522 F.3d 315, 322 (following Phillips). This standard "simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 S.Ct. at 1965) (quotations omitted).

When deciding a motion to dismiss under Rule 12(b)(6), a court may properly consider the factual allegations contained in the complaint, exhibits attached thereto, documents referenced therein, matters of public record, and undisputedly authentic documents attached as exhibits to the defendants' motion to dismiss if the plaintiff's claims are based on those documents. Pension Benefit Guar. Corp. v. White Consol. Indus. Inc., 998 F.2d 1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994).

III. DISCUSSION

Plaintiff claims that Defendants violated Plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution by failing to provide medical treatment for Plaintiff's mental health disorder. In order to state a claim based upon the Eighth Amendment for failure to provide medical care under 42 U.S.C. § 1983, Plaintiff must allege facts that show that each Defendant was deliberately indifferent to Plaintiff's serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Spruill v. Gillis, 372 F.3d 218, 235 (3rd Cir. 2004); Despaigne v. Corlew, 89 F. Supp. 2d 582, 587 (E.D. Pa. 2000) ("Denial of medical care constitutes a constitutional violation where a prison official has been deliberately indifferent to the serious medical needs of an inmate."). Deliberate indifference is more than just negligence or medical malpractice; the standard is met only where the doctor is "intentionally inflicting pain on a prisoner." Id. (quoting White v. Napoleon, 897 F.2d 103, 109 (3rd Cir. 1990)). In order for a prison supervisor to be liable under Section 1983, the supervisor must have been a "moving force" behind the alleged constitutional violation. Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). However, "where prison authorities deny reasonable requests for medical treatment, and such denial exposes the inmate to undue suffering or the threat of tangible residual injury," the prisoner may state a claim under Section 1983. Id.

A. Actual Injury

In order to recover for mental or emotional injury suffered while in prison, the Prison Litigation Reform Act requires that Plaintiff make "a prior showing of physical injury." 42 U.S.C. § 1997e(e) (1996). Plaintiff has made no showing that he suffered any physical injury as a result of the alleged actions of Defendants, and his Amended Complaint will be dismissed. In his Amended Complaint, Plaintiff has only alleged that he was having "racy" thoughts, was in a manic state, and was getting only two hours of sleep per night. These claims appear to cover mental or emotional injury. Without a showing of physical injury, Plaintiff may not succeed on any of his claims for damages and his Amended Complaint must be dismissed. 42 U.S.C. § 1997e(e) (precludes damages relief for mental injury without a prior showing of physical injury); see also Toussaint v. Good, 276 Fed. Appx. 122, 125 (3d Cir. Pa. 2008).*fn3

Since the Court cannot conclude that Plaintiff would be unable to make such a showing, Plaintiff will be granted leave to file a Second Amended Complaint against certain Defendants. Plaintiff must allege some factual matter showing actual physical injury in order for his Second Amended Complaint to withstand a Rule 12(b)(6) challenge. Because Plaintiff does not state a claim under Section1983 against Defendants, but may be able to do so against ...


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