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Cooper v. Diggs

June 24, 2009

TROY COOPER, PLAINTIFF,
v.
MICHELLE DIGGS, PHYSICIAN ASSISTANT; CHRIS MEYERS, PHYSICIAN ASSISTANT; LOUIS FOLINO, SUPERINTENDENT; ROXANNE BURGWINKEL; CINDY AULTMAN, NURSE; STEVE CRISTINI, COUNSELOR; M. CAPOZZA, DEPUTY SUPERINTENDENT; JOE BROWN, LPN , DEFENDANTS.



The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay

Re: Dkt. Nos. [97] & [106]

MEMORANDUM OPINION

Troy Cooper ("Plaintiff") is currently serving sentences on two convictions*fn1 in the Department of Corrections ("DOC") facility at SCI-Greene. Plaintiff has filed a civil rights complaint against eight remaining Defendants. Six of those Defendants are DOC employees (collectively, "the DOC Defendants"), all of whom are represented by the Pennsylvania Attorney General's office. The remaining two defendants, namely, Physician's Assistant Michelle Diggs and Physician's Assistant Chris Meyers, are independent contractors (collectively, "the Contractor Defendants") providing medical care at SCI-Greene, where all of the complaint's allegations occurred. Both sets of Defendants have filed motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).

Plaintiff's pro se complaint essentially alleges three separate incidents that give rise to this case. First, Plaintiff alleges that on March 3, 2006, he repeatedly requested medical attention for an asthma attack, but was not seen and treated by the nurse for roughly two hours. When Plaintiff questioned why it took so long to respond to his requests for medical attention, Nurse Aultman allegedly responded with "you have to stop with those grievances." Dkt. [96] at 4, ¶ 14.*fn2 Plaintiff concluded from this remark that the two-hour delay was done in retaliation for the grievance (No. 143089) he filed previously, wherein he complained about SCI-Greene's medical department. Plaintiff then filed a new grievance (No. 147836) concerning this allegedly retaliatory two-hour delay in treatment.

Second, Plaintiff alleges that on July 3, 2007, he was scheduled to seen by medical personnel, but when he asked a guard about going for his appointment, the guard allegedly responded that Defendant P.A. Diggs did not want to see Plaintiff. Dkt. [96] at 5, ¶21. Later on that same day, Plaintiff again experienced an asthma attack. He used his inhaler but received no relief from it. He then made several requests for medical attention but was not attended to for roughly four hours. Plaintiff again concluded the delay stemmed from a previous grievance filed on June 19, 2007 (No. 191514), wherein he complained about the medical department. Dkt. [96] at 5-6, ¶24; id. at 6, ¶27; id. At 7, ¶37.

The third "incident" giving rise to this case is Plaintiff's complaint that from September 15, 2006 until February 7, 2008, he was denied Program Review Committee ("PRC") hearings, required to be held every 90 days, in order to review Plaintiff's placement in the RHU. Plaintiff alleges that he was deliberately denied such reviews in retaliation for complaints and grievances which Plaintiff had filed against Defendant Cristini, identified by Plaintiff as a Counselor.

Plaintiff also alleges a conspiracy against all of the Defendants.

Plaintiff contends that the foregoing states a claim for violations of his Eighth Amendment right to be free of medical deliberate indifference, First Amendment right to be free of retaliation and his Fourteenth Amendment procedural due process rights.

Standard of Review and the PLRA

As the United States Supreme Court recently held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may properly be dismissed pursuant to Fed. R. Civ. P. 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570 (rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).*fn3 Under this standard, the court must, as a general rule, accept as true all factual allegations of the complaint and all reasonable inferences must be viewed in the light most favorable to plaintiff. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir. 1985). Nevertheless, under the 12(b)(6) standard, a "court need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by, 275 F.3d 1187 (9th Cir. 2001). Nor must the Court accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 554 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

In addition to the complaint, courts may consider matters of public record and other matters of which a court may take judicial notice, court orders, and exhibits attached to the complaint when adjudicating a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.2 (3d Cir. 1994). In addition, the Court of Appeals in Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004), held that a "defendant may submit an indisputably authentic [document] to the court to be considered on a motion to dismiss[.]"

The question to be resolved is: whether, taking the factual allegations of the complaint, which are not contradicted by the indisputably authentic exhibits and matters of which judicial notice may be had, and taking all reasonable inferences to be drawn from those uncontradicted factual allegations of the complaint, are the "factual allegations . . . enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact[.]" Twombly, 550 U.S. at 555-556. Or put another way, a complaint may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

In addition, because Plaintiff was a prisoner at the time of the filing of this civil action,*fn4 and because he named governmental entities or employees thereof as defendants, the screening provisions of the Prisoner Litigation Reform Act ("PLRA") found at 28 U.S.C. § 1915A apply herein. In addition, because he complains about "prison conditions," the screening provisions of 42 U.S.C. § 1997e apply, as do the screening provisions of 28 U.S.C. § 1915(e), given that he was granted in forma pauperis status to pursue this suit. The court's obligation to dismiss a complaint under the PLRA screening provisions for complaints that fail to state a claim is not excused even after defendants have filed a motion to dismiss. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n.6 (9th Cir. 2000). Hence, if there is a ground for dismissal which was not relied upon by a defendant in a motion to dismiss, the court may nonetheless sua sponte rest its dismissal upon such ground pursuant to the screening provisions of the PLRA. See Lopez; Dare v. U.S., CIV.A.06-115E, 2007 WL 1811198, at *4 (W.D.Pa. June 21, 2007), aff'd, 264 Fed.Appx. 183 (3d Cir. 2008).

All parties have consented to the plenary exercise of jurisdiction by the undersigned. Dkt. ...


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