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Ozoroski v. Maue

July 10, 2009

STANLEY N. OZOROSKI, PLAINTIFF
v.
DR. FREDERICK R. MAUE, WEXFORD HEALTH SOURCES, INC., PRISON HEALTH SERVICES, INC., DR. ADAM A. EDELMAN, MARVA CERULLO, CECILIA VELASQUEZ, CHERYL CANTEY, AND GAUDENZIA, D.R.C., DEFENDANTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

(Judge Conner)

MEMORANDUM

Stanley Ozoroski brings this civil rights action pursuant to 42 U.S.C. § 1983, alleging that he was denied access to adequate medical treatment during his incarceration at the state correctional facilities at Rockview and Mahoney, and during his treatment at the Gaudenzia Drug Rehabilitation Center in Philadelphia. Presently before the court is a motion to dismiss (Doc. 71) the third amended complaint (Doc. 68), filed by defendants Gaudenzia, D.R.C. ("Gaudenzia"), Cecilia Velasquez ("Velasquez"), and Cheryl Cantey ("Cantey"). For the reasons that follow, the motion will be granted in part and denied in part.

I. Statement of Facts*fn1

The allegations in this matter date back to November 1993, when plaintiff Stanley Ozoroski ("Ozoroski")-who was then an inmate at the Pennsylvania state correctional facility at Rockview ("SCI Rockview")-underwent what he characterizes as an erroneously performed exploratory laparoscopy. (Doc. 68 ¶¶ 19-20.) Ozoroski purportedly suffered severe physical complications arising from this procedure and claims that over a period of several years, he was repeatedly denied adequate medical treatment by physicians, administrators, and health service providers under contract with the Pennsylvania Department of Corrections ("DOC"). The court detailed the allegations levied against each of these defendants in its memorandum dated February 18, 2009. (See Doc. 63.) An exhaustive recitation of those allegations is unnecessary for purposes of the instant motion, and the court will thus restrict its focus to the averments concerning Gaudenzia, Velasquez, and Cantey.

In December 2006, Ozoroski was transferred from the state correctional facility at Mahoney ("SCI Mahoney") to the Gaudenzia Drug Rehabilitation Center of Philadelphia, administered by defendant Gaudenzia. (Doc. 68 ¶ 102.) Prior to his transfer, Ozoroski was examined by Dr. Kenneth Widom of the Geisinger Medical Center, who purportedly recommended that Ozoroski undergo abdominal surgery to alleviate pain and complications persisting from previous medical procedures.

(Id. ¶ 101.) Dr. Widom advised Ozoroski to contact him after Ozoroski's transfer to Gaudenzia was finalized in order to schedule an operation. (Id.)

Ozoroski arrived at Gaudenzia and notified his medical supervisor, Ms. Marsh, that he needed to use the telephone in order to arrange an appointment with Dr. Widom. (Id. ¶ 102.) Ms. Marsh purportedly denied him access to a telephone. (Id.) Ozoroski's unit manager at Gaudenzia, Mr. Means, and his counselor, Joe Williams, also refused Ozoroski's requests to use the telephone. (Id. ¶ 103.) Ozoroski claims that Marsh, Means, and Williams each refused his requests pursuant to a directive issued by Velasquez and Cantey. (See id.) On January 11, 2007, Ozoroski met with Gaudenzia employee Ernie Bellos ("Bellos"). After Ozoroski explained that other Gaudenzia staff members had denied him access to the telephones, Bellos assisted Ozoroski in his attempt to contact Dr. Widom. (Id. ¶¶ 108-112.) From January 2007 to October 2007, Ozoroski attended several appointments at a veterans' hospital, which eventually culminated in abdominal surgery in October 2007. (Id. ¶ 119.) The operation required the removal of 50% of Ozoroski's intestinal tract. (Id. ¶ 120.)

On January 14, 2008, Ozoroski commenced this action by filing a complaint. (Doc. 1.) The complaint alleged, inter alia, that Gaudenzia, Velasquez, and Cantey acted with deliberate indifference to Ozoroski's medical needs and deprived him of adequate medical care. (Id. ¶ 105.) At the time when Ozoroski prepared his complaint, he was scheduled for transfer from Gaudenzia to the veterans' hospital in Lebanon, Pennsylvania. After filing, however, he was allegedly returned to SCI Mahoney, where he is currently incarcerated. (Doc. 68 ¶ 171.) Ozoroski subsequently amended his complaint in order to include allegations of the retaliatory transfer. (Doc. 7 ¶¶ 161-63.)

Gaudenzia, Velasquez, and Cantey moved to dismiss Ozoroski's second amended complaint on May 21, 2008. (See Doc. 37.) The court granted this motion on February 19, 2009, (see Doc. 63), but permitted Ozoroski leave to amend. On March 17, 2009, Ozoroski filed a third amended complaint, which included additional factual averments intended to address the deficiencies identified in the court's dismissal memorandum. (Compare Doc. 68, with Doc. 31.) Gaudenzia, Velasquez, and Cantey moved to dismiss the third amended complaint on April 6, 2009. (Doc. 71.) That motion has been briefed and is now ripe for disposition.

II. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).

Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) (explaining that Rule 8 requires more than "an unadorned, the-defendant-unlawfully-harmed-me accusation"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead 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 ...


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