The opinion of the court was delivered by: Judge McClure
On February 5, 2009, plaintiff Angelique Brickell commenced this civil action by filing a complaint against defendants Clinton County Prison Board; the County of Clinton; Thomas Bossert, the Chairman of the Clinton County Prison Board and a Clinton County Commissioner; Thomas Duran, the Warden of the Clinton County Correctional Facility (hereinafter "CCCF"); Jacqueline Motter, a Deputy Warden of the CCCF; David Harkey, a Deputy Warden of the CCCF; Harold Yost, Jr., a Clinton County Commissioner; Richard Kyle, a Clinton County Commissioner; Michele Sweeley, a Clinton County employee; and Charles Ankney, the Clinton County Sheriff. Also named in the complaint were John Doe I and John Doe II, who were both officers of the Clinton County Sheriff's Department, and John Doe III, another Clinton County employee. In her complaint, Brickell alleged that defendants violated 42 U.S.C. §1983 by creating a state danger (counts I, II, III, and IV) and by having a policy, custom, and/or practice of failing to protect (counts V, VI, VII, and VIII). (Rec. Doc. No. 1). On April 6, 2009, this court issued an order granting Brickell's counsel's unopposed motion to withdraw as her counsel. (Rec. Doc. No. 6). On May 1, 2009, Brickell's new counsel filed a notice of appearance with this court. (Rec. Doc. No. 7). Defendants Kyl, Sweeley, Ankney, Clinton County Prison Board, Bossert, Duran, Motter, Harkey, County of Clinton, and Yost filed a Motion to Dismiss, with an accompanying brief in support, on May 4, 2009. (Rec. Doc. No. 9, 10). This court, on May 13, 2009, granted an extension for plaintiff to file a response to defendant's motion to dismiss. (Rec. Doc. No. 13). On May 29, 2009, this court approved a joint stipulation, which required that plaintiff file an amended complaint on or before June 15, 2009. (Rec. Doc. No. 15). Plaintiff filed an amended complaint against all defendants on June 16, 2009, which included two counts: an allegation that the defendants' actions constituted a deprivation of civil rights under §1983 (count I) and an allegation that the risks posed to plaintiff constituted a state-created danger violative of §1983 (count II). (Rec. Doc. No. 16). The effect of the filing of the amended complaint was to render as moot the defendants' motion to dismiss. (Rec. Doc. No. 15).
On June 25, 2009, defendants filed a new Motion to Dismiss and brief in support thereof. (Rec. Doc. Nos. 17 and 18). In response, on July 10, 2009, plaintiff filed a brief in opposition to the defendants' Motion to Dismiss. (Rec. Doc. No. 19). On July 23, 2009, defendants filed a reply brief. (Rec. Doc. No. 24).
The matter is now ripe for disposition.
Now, for the following reasons, we will grant in part and deny in part defendants' Motion to Dismiss.
I. Motion to Dismiss Standard
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). "The tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183.
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1949. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).
A complaint should only be dismissed if, accepting as true all of the allegations in the complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1960 (2007). "Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950. In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading. Hellmann v. Kercher, 2008 U.S. Dist. LEXIS 54882, 4 (W.D. Pa. 2008). Federal Rule of Civil Procedure 8 "'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964, (2007) (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, 2008 U.S. Dist. LEXIS at 4-5. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - - but it has not "shown" - - "that the pleader is entitled to relief." Iqbal, 129 S.Ct. at 1950, citing Fed. R. Civ. P. 8(a). The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.
II. Allegations in the Complaint
Taking as true all of the allegations in the complaint, the facts are as follows. At the time of the allegations in the complaint, plaintiff Brickell was incarcerated in the CCCF. Defendant Clinton County was the owner of the CCCF, and defendant Clinton County Prison Board was comprised of defendants Bossert, Yost, Kyle, and Ankney. The Clinton County Prison Board was empowered by statute to supervise the operation of the CCCF, and defendants Ankney and John Doe I and John Doe II were authorized to move inmates to medical appointments or court hearings from the CCCF.
While incarcerated at the CCCF, Brickell was assigned to work in the facility's kitchen. To keep food that had been cooked warm, the CCCF used "upright warmers"; on February 10, 2007, it was Brickell's duty to move a container of "hot ham grease and green beans" from the stove to the "upright warmers." As Brickell was placing the grease and green beans on the top shelf of the warmers, the container of grease and beans slid back toward her. The "hot ham grease, broth and green beans" spilled over Brickell's ear, neck, shoulder, and chest. Brickell was later taken by John Doe I and John Doe II to the Lock Haven Hospital Emergency Room.
While at the emergency room, a physician informed Brickell to care for her burns by covering them with bandages and Silvadene cream. Brickell also alleges that the physician recommended that John Doe I and John Doe II should transport her back to the hospital the following day for additional treatment. Brickell was not taken to the hospital the following day, and it is her allegation that she received no further "medical treatment, first aid supplies, bandages, or clean linens" while at the CCCF.
Brickell claims that, as a result of the February 10, 2007 incident, she obtained "first, second and third degree ...