The opinion of the court was delivered by: Judge Conner
Plaintiff Philip Carpenter ("Carpenter"), a state inmate incarcerated at the State Correctional Institution at Dallas, Pennsylvania ("SCI-Dallas"), commenced this civil action on December 15, 2008. The matter is presently proceeding via an amended complaint filed on July 22, 2009. (Doc. 39.) Ripe for disposition are motions to dismiss filed on behalf of a number of named defendants pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 (Docs. 40, 42, 68, 74.) Specifically, a motion was filed on behalf of Physician's Assistant Dan O'Brien ("O'Brien") on July 29, 2009. (Doc. 40.) On August 11, 2009, Keefe Group Incorporated ("Keefe") filed its motion. (Doc. 42.) Defendants Prison Health Care Industries ("Prison Health Care"), Dr. Bohinski ("Bohinski"), and Cheryl Wisniewski ("Wisniewski") filed a motion on December 10, 2009. (Doc. 68.) Finally, defendant Dr. Jesse ("Jesse") joined (Doc. 74) in the motions filed on behalf of Keefe (Doc. 42) and Prison Health Care, Bohinski, and Wisniewski (Doc. 40). The motions will be granted in part and denied in part.
I. Allegations of the Amended Complaint
Carpenter has been incarcerated at SC I-Dallas, and housed on F-Block for the past twenty-three years. (Doc. 39, at 1.) He alleges that there is a contractual agreement between the State of Pennsylvania and Keefe whereby Keefe provides all commissary items to all state correctional facilities. (Id. at 19, ¶ 37.) Further, all prisoners are "required to purchase any and all commissary items which the D.O.C. approved (sic) from Defendants Keefe Group, Inc." (Id. at 19, ¶ 38.)
He alleges that at some time prior to December 14, 2006, he purchased from the commissary a "shower shoe" supplied by Keefe. (Doc. 39, at 20, ¶ 40.) On December 14, 2006, he slipped and fell in the shower area of F-Block when the strap on one of his shower shoes snapped in an overcrowded shower area causing him neck, back, head and shoulder injuries.
Carpenter pursues seven causes of action as a result as a result of this incident and events that transpired thereafter. In his first cause of action, he asserts that all defendants have failed to provide him the protection he is due under the Americans with Disabilities Act. (Doc. 39, at 27.) Specifically, he alleges that there are no slip guards or handrails present in the shower area of F-Block that could have prevented or mitigated his injury. (Id. at ¶ 95.) He next asserts that the policies and practices of defendants constituted cruel and unusual punishment in violation of the Institutionalized Persons Act found at 42 U.S.C. § 2000dd. (Id. at 28, ¶ 100.)
The third cause of action is an Eighth Amendment claim alleging that the conditions of his incarceration constitute cruel and unusual punishment as follows:
Plaintiff, during his time of being housed in SCI Dallas has watched the gradual deterioration of conditions to the point where he has been housed in a cell for numerous winters with no heat, breakdowns in hot water, feces backing up into the cells from adjacent cells because of inadequate plumbing systems to accommodate the overpopulation of SCI Dallas. Plaintiff has observed inmates dying in cells because there were no emergency call buttons to contact officers, and plaintiff himself has had to wake up from seizures where he could not get help because the guards [sic] office was too far away for him to yell.
Plaintiff has been exposed to numerous instances of disease outbreaks where entire blocks within SCI Dallas had to be quarantined because of various outbreaks of highly contagious diseases, and had to get water out of trash cans for days because of break downs in the plumbing systems due to overcrowding. (Id. at 2.) He contends that "the wholesale warehousing of prisoners has created egregious hazards that are detrimental to the safety and well being of the plaintiff on a daily basis and are the direct result of the negligible (sic) action on the part of all defendants." (Id. at 28, ¶ 102.)
He also is pursing an Eighth Amendment claim of deliberate indifference to his medical needs against moving defendants following his fall in the shower. (Id. at 20-22, ¶¶ 42-62.) He alleges that Prison Health Care deprived him of his right to be free from cruel and unusual punishment "in that they failed to provide competent staff to provide medical care under a contractual agreement." (Id. at 11, ¶ 16.) He further alleges the following:
Plaintiff has been denied competent medical treatment for the injuries he has sustained wherein the defendants never even actually gave him a physical examination after the injuries he sustained. Plaintiff was not put under observation after sustaining head, neck, and back injuries. He was given nothing for pain management after staff were repeatedly told that the pharmacy of the institution did not have any of his already prescribed medications. Therefore, plaintiff was left to lay in a cell in pain for three days, with no pain management medication, without heat in his cell in freezing temperatures, with no call button to call for help in case of major complications or the onset of a seizure for which he was being treated prior to sustaining the injuries claimed.
When the plaintiff reported to sick call on the following day of sustaining injuries during his fall in the overcrowded shower area, staff specifically stated, "Oh, you're okay. You're not hurt so stop taking up my time!". . . . Then, to make matter worse, the Physician's Assistant denied him permission to see a doctor and merely ordered X-Rays of the "wrong" area of his body. An area he knew that the plaintiff had not sustained injuries in order to be vindictive.
The medical staff didn't even review his files at any time to see that the plaintiff had previously been being treated because of two injures he had sustained to his head. (Doc. 39, at 2-3, ¶ 2.) He further alleges that defendant Wisniewski never did a physical examination, ordered x-rays for regions of his body that were not injured, and ignored his complaints of pain and of the conditions he was experiencing in his cell on F-block. (Id. at 21, ¶¶ 53- 56.) Likewise, defendant O'Brien never examined him, ignored his past medical history and his requests for pain medication. (Id. at 22, ¶¶ 57-58, 60-61.) Upon discovering that the wrong areas were x-rayed, O'Brien ordered new x-rays, which confirmed the sustained injuries. (Id. at ¶ 59.)
Carpenter alleges that defendant Bohinski, as the head doctor at SCI-Dallas, ignored his repeated complaints and instead "referred him back to the same individuals who were acting directly against the plaintiff's rights. This showed deliberate indifference and a direct failure to provide competent medical care. . . ." (Id. at 12-13, ¶ 19.) He also alleges that in evaluating his single cell status, defendant Jesse denied him "adequate and competent psychological treatment in that she showed deliberate indifference to the plaintiff's psychological needs." (Id. at 14, ¶ 23.)
Causes of action four and five raise Fourteenth Amendment equal protection and First Amendment retaliation claims, respectively. (Id. at 29, ¶¶ 103-06.) Carpenter also avers that he was denied due process when his single cell status was revoked. The allegations in support of these claims are as set forth below:
Defendants have also engaged in retaliatory actions by threatening the plaintiff and falsifying misconduct charges to impede the plaintiff's efforts to raise the claims set forth above, and by taking the plaintiff's single cell status and housing him with other inmates in a cell that was never built to house two people in furtherance of their retaliation of the plaintiff for pursuing the above claims. Plaintiff was denied due process in the taking of a single cell status he has had for over twenty years solely on the basis of retaliation and to further the cruel and unusual hazards engendered in the current prison overcrowding that resulted in plaintiff's injuries. Plaintiff was further denied equal protection where he was not granted a meaningful review in accordance with the policies set forth by the DOC. Instead the plaintiff was told by the psychology staff (defendant Dr. Jesse) that they were not reviewing his record because they could not find them and because they had too many cases to waste time even looking for them, and when the plaintiff expressed his concern for his safety because he had already been raped once, was cruelly told, "we have a don't ask don't tell policy in regard to rape", by a psych deparptment [sic] staff member who interviewed him "after" his single cell had already been taken in violation of DOC Policy.
When plaintiff began to file complaints about this matter he was mysteriously issued a misconduct that he was never issued, and called to a hearing on it before defendant Gaylen Miller (F-Block Unit Manager) and told that he was guilty because he said so and because he liked to run his mouth and get guys to help him file paperwork. Plaintiff was never given notice, had documents falsified to intimidate him by claiming that plaintiff plead guilty when he did not and was done an [sic] retaliation for his redress of grievances regarding violations of his civil rights. (Doc. 39, at 6-7.) He also states that he has been "threatened to stop pursuing this instant case in retaliation for bringing these matters before the court." (Id. at 2.)
In the sixth cause of action, entitled "Commercial Trade Violations", he seeks to impose liability on defendants based on the sale of defective shower shoes. (Doc. 39, at 30-31, ¶ 108.) He alleges that despite numerous complaints, defendants continued to sell the items with total disregard for the health and well being of the rights of individuals to be free from hazardous materials and materials that contain defects. (Id. at 31, ¶ 108.)
The seventh cause of action contains a RICO claim based on what Carpenter describes as a "monopoly in trade . . . created . . . via policies of government entities limiting trade to exclusive parties in violation of commercial law, Constitutional Law and 42 U.S.C. § 1983." ((Doc. 39, at 30, ¶ 109.)
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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 173 L.Ed.2d 868 (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 ...