The opinion of the court was delivered by: Judge Conner
Carl A. Knight ("Knight"), a federal inmate incarcerated at the Federal Correctional Institution at Allenwood ("FCI-Allenwood"), White Deer, Pennsylvania, commenced this Bivens*fn1 action on January 13, 2009, alleging that defendants were deliberately indifferent to his medical needs in violation of the Eighth Amendment.*fn2 (Doc. 1.) Named as defendants are the following: Warden David J. Ebbert ("Ebbert"); Jay Miller ("Miller"), Medical Officer; Debra Spotts ("Spotts"), Assistant Health Services Administrator; James Brady ("Brady"), former Clinical Director; and Ronald Laino ("Laino"), Health Services Administrator. Presently ripe for disposition is defendants' motion to dismiss and for summary judgment. (Doc. 16.) For the reasons that follow, the motion to dismiss will be granted in part and denied in part and the motion for summary judgment will be granted.
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 (quoting Twombly, 550 U.S. at 556). Under this liberal pleading standard, courts should generally grant plaintiffs leave to amend their claims before dismissing a complaint that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).
B. Allegations of the Complaint*fn3
On or about March 2007, Knight began experiencing "painful abnormal growth(s) on the back of his head" which were determined to be "sebaceous cysts. . . ." " (Doc. 2, at 4, ¶ 1.) On October 23, 2007, he was examined by an outside surgeon. Defendant Spotts documented in the medical notes that the surgeon recommended that antibiotics be administered, that Knight be seen by a dermatologist, and that the cysts be surgically removed. (Id. at ¶ 3.) On April 21, 2008, because he still had not received the surgery, he informally requested that he see a dermatologist and be scheduled for surgery. He indicates that prior to filing the request, he went to health services twice. He also personally spoke with the warden, defendant Ebbert, concerning his condition. (Doc. 2, at 12.) He was notified on April 22, 2008, that he would be scheduled for removal of the bumps "in [the] near future." (Id. at 13.) On April 24, 2008, he filed an administrative claim regarding the delay of medical treatment. (Id. at 14.) Over a year had passed since he was first diagnosed, the growth had grown to three growths, and his pain was getting worse. He was again advised on May 23, 2008, that he was "scheduled to have surgery in the near future." (Id. at 15.) He appealed to the regional level on June 2, 2008. (Id. at 16.) On July 3, 2008, he was informed that although the surgery, which was scheduled for June 27, 2008, did not occur, the surgery would be rescheduled for a later date. (Doc. 2, at 17.) In response to his Central Office Administrative Remedy Appeal, he was advised as follows:
Relevant portions of your medical record have been reviewed which reveal you have been evaluated by clinical staff and by a consultant surgeon and diagnosed with sebaceous cysts. Sebaceous cyst generally do not require treatment, however, yours have become infected in the past. When your cysts showed signs of infection, staff provided appropriate medical care with antibiotics. On August 19, 2008, the Clinical Director informed you that surgery would be primarily for cosmetic reasons and instructed you to follow-up at sick call with any infectious concerns. The Clinical Director [defendant Brady] has currently deferred surgical intervention. The record reflects you are receiving medical care and treatment in accordance with Bureau of Prisons' policy. (Id. at 19.)
Knight expressed concerns over the lack of treatment to defendants Miller, Laino, and Ebbert. He states that he "continues to suffer in extreme pain and sever[e] swelling of the deformed growths to which are now multiple boils with puss within them to the point of where staff allow him to wear a head covering the majority of the day but offer no treatment to which has been recommended yet denied by the defendants named herein." (Doc. 2, at 6, ¶ 10.)
Defendants seek to dismiss the Bivens claims seeking monetary damages against defendants in their official capacities. (Doc. 17, at 7-9.) Sovereign immunity protects the Government from suit except when it has explicitly waived that immunity. United States v. Bein, 214 F.3d 408, 413 (3d Cir. 2000). The waiver must be "express[ed] unequivocally in statutory text and will not be implied. Id. (citing Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2096, 135 L.Ed.2d 486 (1996)). "[S]overeign immunity advances a jurisdictional bar which a party may raise at any time, even on appeal, and which [a] court may raise sua sponte." Id. at 412.
"An action against government officials in their official capacities constitutes an action against the United States; and Bivens claims against the United States are barred by sovereign immunity. . . ." Lewal v. Ali, 289 F. App'x 515, 516 (3d Cir. 2008) (non precedential) (citing FDIC v. Meyer, 510 U.S. 471, 483, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Jaffee v. United States, 592 F.2d 712, 717 (3d Cir.1979)). Inasmuch as the plaintiff seeks monetary damages against all defendants in their official capacities, the claims must be dismissed on grounds of sovereign immunity. This court is barred from hearing claims against government officials in their official capacity unless Congress has expressly waived immunity, which it has not. See Chinchello v. Fenton, 805 F.2d 126, 130 n. 4 (3d Cir. ...