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Cieniawa v. White

July 13, 2010

JASON CIENIAWA, PLAINTIFF
v.
DR. DENTIST DAVID WHITE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Plaintiff Jason Cieniawa ("plaintiff"), a state inmate formerly incarcerated at the State Correctional Institution at Camp Hill, initiated this civil rights action on November 2, 2009 (Doc. 1), naming as defendants Dr. David White, Unknown Dental Assistant, Unknown Nursing Staff, Officers Shaffer, Fordyce, Baptist, Tuso, Hunsburger, Troutman, Kotula and unknown guards, Hearing Examiners Moslak and Reisinger and other unknown members of the hearing examiner committee, Superintendent Palakovich, Captain John Horner, Rob Volciak, Health Care Administrator Teresa Law and "all other officials unknown." (Doc. 1.) Service has been effected on all named defendants except Officer Shaffer, whose waiver of service was returned unexecuted on January 8, 2010, with a notation that no such officer is located at Camp Hill. (Doc. 20.) Service has not been made on the unknown defendants.

There are a number of motions presently ripe for disposition. Initially, the court will address the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on behalf of Troutman, Kotula, Moslak, Reisinger, Palakovich, Horner, Volciak, Law, White, Fordyce, Baptist, Tuso and Hunsburger. (Doc. 26.) The following miscellaneous motions filed by plaintiff will then be entertained: Motion for Order (Doc. 35); Motion for Leave to file an Amended Complaint (Doc. 36); Motion to Appoint Counsel (Doc. 37); and Motion to Compel Pre-trial Discovery (Doc. 38).

I. Motion to Dismiss

A. 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, 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

Plaintiff first alleges that Dr. David White, an unknown nurse, and unknown dental assistant, denied him adequate medical care based on the following events:

1. Dr. David proformed [sic] oral sergary [sic] on a tooth that he was broke off close to the gum line and was abscessed. No X-Ray was ever taken. Dr. David White broke the tooth off below the gum line trying to remove it, the unknown assistant told Dr. David White to call oral sergeant [sic]. Dr. David White refused and ordered [sic] unknown assistant to retrieve surgical tools. Dr. David White proformd [sic] oral sergary [sic] knowing he was not licensed or exspiranced [sic] to do so knowing the risk to the plaintiff's health and well being. Dr. Dentist David White denied proper medical care after he was questioned by the plaintiff about his actions while Dr. David White told plaintiff it was not important, he has to get the bleeding, infection and allergic reaction to penicillin under control.

Date of oral sergary [sic] 8-13-09 at 0830 hours.

Date of questing [sic] involving bleeding, infection, pain, allergic reaction 8-17-09 at approx. 0800 to 1500 hours.

Dr. David White caused plaintiff swelling, pain, infection from 8-13-09 till approx. 9-11-09 due to his actions, denial of proper medical, etc.

2. Unknown Dental Assistant who conspired with Dr. David White to proform [sic] said acts as Defendant David White on date 8-13-09.

3. Unknown nures [sic] that denied medical attention from 8-13-09 to 9-11-09. (Doc. 1, at 2, ¶¶ 1-3.) In addition, plaintiff alleges that during the course of the grievance review process, defendants Palakovich and Law, Voliak conspired to cover up the wrongs committed by Dr. White.

During the same time period, plaintiff alleges that defendants Shaffer, Troutman, Kotula, and Hunsburger conspired to deny him yard, showers, meals, and medical attention, spit dead and alive bugs in his food, and placed glass in his food and that defendant Horner ignored his complaints regarding these actions.

He also contends that defendant Shaffer physically assaulted him on or about September 5, 2009, by slamming his head into a wall while he was handcuffed behind his back and that defendant ...


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