The opinion of the court was delivered by: United States Magistrate Judge Susan Paradise Baxter.
A. Relevant Procedural History
Plaintiff Andrew C. Bickel, a prisoner formerly incarcerated*fn1 at the Crawford County Correctional Facility ("CCCF"), brings this action under the Civil Rights Act of 1871, 42 U.S.C. § 1983 against: Judge Gordon R. Miller ("Judge Miller"), Chairman of the Crawford County Prison Board ("Prison Board"); Tim Lewis, Warden at CCCF ("Lewis"); Morris Wade ("Wade"), Jack Preston ("Preston"), and Sherman Allen ("Allen"), Crawford County Commissioners and members of the Prison Board; Vantage LTC Partnership d/b/a Care Apothecary (incorrectly identified by Plaintiff as "Vantage CCCF Healthcare Provider")("Vantage"); and Judy Urey, a nurse practitioner ("Urey").*fn2 (Defendants Miller, Lewis, Wade, Preston, and Allen are collectively referred to herein as "CCCF Defendants")
Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs in violation of his rights under the eighth and fourteenth amendments to the United States Constitution, and violated his "right to a grievance system."*fn3
On April 9, 2009, Defendant Vantage filed a motion to dismiss, contending that Plaintiff has failed to state a claim upon which relief may be granted against it. [Document # 37]. The CCCF Defendants filed their own motion to dismiss on May 22, 2009, arguing that Plaintiff has failed to exhaust his administrative remedies and, alternatively, has failed to state a claim upon which relief may be granted against them. [Document # 44]. Plaintiff has filed briefs in opposition to both motions. [Document ## 46 and 52]. This matter is now ripe for consideration
B. Relevant Factual History
Plaintiff was transferred from the Erie County Prison to CCCF on or about May 21, 2008. (Complaint at ¶ 15). Plaintiff was not screened by CCCF's medical staff until May 23, 2008, at which time Plaintiff gave a "Nurse Brenda" two separate lists of medication: one listing medications Plaintiff received from outside physicians, and one containing a list of medications Plaintiff "thought he received at Erie County Prison." (Id. at ¶¶ 16-19). Plaintiff also informed "Nurse Brenda" that he had "two damage that were causing him severe pain," apparently referring to a protruding disk in the L4-L5 area of his spine that caused him to experience constant pain in his lower back, groin, knee and ankle. (Id. at ¶¶ 20-22). Plaintiff requested his prescribed pain medication, but was told by "Nurse Brenda" that CCCF did not keep any prescription pain medication on hand and that "medical may not be able to get [his] medication because of Memorial Day weekend." (Id. at ¶¶ 23-26). As a result, Plaintiff alleges that he "received no substantial pain medication for over seven (7) days leaving him in torturus [sic] pain.... (Id. at ¶ 30).
On June 27, 2008, Plaintiff saw a nurse and told her that he suffered a "new injury" to his back when he moved a "heavy day room table" the day before. (Id. at ¶¶ 33-34). Yet, Plaintiff alleges that the medical staff let him "suffer with no doctor to examine [him]." (Id. at ¶ 35). Plaintiff complains that he "has been reduced to limited walking caused by stabbing spasms of pain in [his] back, groin, and leg, with no feeling in his feet." (Id. at ¶ 37). As a result, Plaintiff states that he "has been confined to sitting in a hard plastic chair, having to extend his damaged leg straight out to help reduce pain." (Id. at ¶ 38). In addition, Plaintiff alleges that he suffers "extreme tightness and pain in [his] head and face, causing [him] to lose clear vision, and loss of depth perception...." (Id. at ¶ 39). Nonetheless, Plaintiff complains that he was never seen by a doctor, physician assistant, or "psych doctor," during his time at CCCF. (Complaint at ¶¶ 27, 42, 48).
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 95 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937 (May 18, 2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
The Court need not 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 556, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 556. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a 'showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 22, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "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 232, quoting Twombly, 550 U.S. at 556 n.3.
Recently, the Third Circuit expounded on the Twombly/Iqbal/Phillips line of cases:
To prevent dismissal, all civil complaints must now set out sufficient factual matter to show that the claim is facially plausible. This then allows the court to draw the reasonable inference that the defendant is liable for the alleged misconduct.
After Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The district court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a district court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. As the Supreme Court instructed in Iqbal, where 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. This plausibility requirement will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.
Fowler v. UPMC Shadyside, ___ F.3d. ___, ___, 2009 WL 2501662, at * 4-5 (3d Cir. Aug. 18, 2009).
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" Haines v. Kerner, 404 U.S. 519, 520-521(1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.
1. The Exhaustion Requirement of the Prison Litigation Reform Act
The Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), provides: no action shall be brought with respect to prison conditions under section 1983 of this title ... by a prisoner confined in any jail, prisons, or other correctional facility until such administrative remedies as are available are exhausted.
The requirement that an inmate exhaust administrative remedies applies to all inmate suits regarding prison life, including those that involve general circumstances as well as particular episodes. Porter v. Nussle, 534 U.S. 516 (2002). See also Concepcion v. Morton, 306 F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion must be completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992). Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all the available remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136 (Unpublished Opinion) (10th Cir. May 8, 1997).*fn4 The exhaustion requirement is not a technicality, rather it is federal law which federal district courts are required to follow. Nyhuis, 204 F.3d at 73 (by using language "no action shall be brought," Congress has "clearly required exhaustion"). There is no "futility" exception to the administrative exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) citing Nyhuis, 204 F.3d at 78.
According to the U.S. Supreme Court, the PLRA requires "proper exhaustion," meaning that a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006) ("Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules ..."). Importantly, the exhaustion requirement may not be satisfied "by filing an untimely or otherwise procedurally defective ... appeal." Id.
A plaintiff need not affirmatively plead exhaustion, but exhaustion is an affirmative defense which is waived if not properly presented by a defendant. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002) (holding that "no provision of the PLRA requires pleading exhaustion with particularity," while construing the PLRA requirements in light of the Supreme Court decision in Swierkiewicz v. Sorema, N.A., 53 ...