The opinion of the court was delivered by: Judge Munley
Before the court is Defendant Correctional Care, Inc.'s (hereinafter "CCI") motion to dismiss and to strike. The matter has been briefed and is ripe for disposition.
Years before the events at issue, Plaintiff Rudy Garafola suffered injuries to his hip which necessitated surgery and the insertion of a partial artificial hip. (Doc. 33, Amended Complaint ¶ 8). In June 2006, plaintiff was sentenced to serve time in the Lackawanna County Correctional Facility (hereinafter "LCCF") for a parole violation. (Id. at ¶ 11). Upon arrival, plaintiff informed personnel of the LCCF that he had had a hip replacement and needed a bottom bunk as opposed to a top bunk. (Id. at ¶ 12).
The policy of Defendant Lackawanna County and LCCF policy is not to enforce bunk assignment. Therefore, even if an inmate is assigned a bottom bunk, this assignment is not enforced. (Id. at ¶ ¶ 13 - 14). As a result, plaintiff used a top bunk at LCCF. (Id. at ¶ 16). No ladders are provided to the top bunks. In order to get off of the bunk each morning, plaintiff had to climb down as best he could and make a partial jump to the floor. (Id. at ¶ 17). This jump repeated day after day caused severe strain to, and the eventual breaking of, plaintiff's hip. (Id. at ¶ ¶ 17-18).
Plaintiff asserts that the prison doctor, Defendant Edward Zaloga, D.O., and Defendant CCI, the entity that contracted to provide medical care to LCCF inmates, were deliberately indifferent to his serious medical needs.
Plaintiff thus filed the instant case. Plaintiff filed the original complaint and then an amended complaint. The amended complaint was comprised of the following three counts: 1) Violation of the Eighth Amendment prohibition of cruel and unusual punishment and the Fourteenth Amendment guarantee of due process against Defendant Lackawanna County; 2) the same as count I except against Defendants Zaloga and CCI; 3) Negligence and gross negligence against Defendants Zaloga and CCI. The first two counts are filed pursuant to 42 U.S.C. § 1983, and the third count is filed under Pennsylvania state tort law. Plaintiff seeks monetary damages, including punitive damages, attorney's fees and costs.
Defendants CCI and Zaloga filed motions to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. We denied the motions except with regard to the substantive due process claim under the Fourteenth Amendment and respondeat superior liability. We granted leave to the plaintiff to plead properly a cause of action with regard to respondeat superior liability.
Plaintiff filed a second amended complaint on November 21, 2008. (Doc. 57). Defendant CCI then filed the instant motion to dismiss and to strike, bringing the case to its present posture. We will address each issue separately.
As this case is brought pursuant to 42 U.S.C. § 1983 for constitutional violations we have jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). We have supplemental jurisdiction over the plaintiff's state law claims pursuant to 28 U.S.C. § 1367.
First we will discuss Defendant CCI's motion to dismiss, which is filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Standard of review
When a 12(b)(6) motion is filed, the sufficiency of a complaint's allegations are tested. The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in ...