The opinion of the court was delivered by: Chief Judge Kane
This civil rights action pursuant to 42 U.S.C. § 1983 was filed by Claudio Hernandez, an inmate confined at all relevant times at the State Correctional Institution at Smithfield (SCI-Smithfield), Pennsylvania. At the time the action was initiated, Hernandez proceeded pro se. He is now represented in this matter.*fn1 Named as Defendants are the SCI-Smithfield Medical Department and the following individuals who were employed at SCI-Smithfield at the relevant time: John A. Palakovich, Superintendent; Victoria Kormanic, Deputy Superintendent; and George Weaver, Health Care Administrator. Ronald Long, M.D., a physician at SCI-Smithfield, is also named as a Defendant. Other Defendants named are Holy Spirit Hospital and "John Doe," a surgeon at Holy Spirit Hospital. Presently pending are three separate motions to dismiss filed on behalf of Holy Spirit Hospital (Doc. No. 19), the Corrections Defendants (Doc. No. 21), and Dr. Long (Doc. No. 22). For the reasons that follow, the motions to dismiss will be granted, but Plaintiff will be afforded the opportunity to submit an amended complaint in this action with respect to Defendants Long and the Corrections Defendants.
I. Allegations in Complaint
The complaint submitted by Plaintiff in this action is confusing to follow in many respects.*fn2 However, in construing the document liberally, he appears to set forth the following claims. Plaintiff alleges that he was injured as a result of a routine surgery performed on March 23, 2004, at Holy Spirit Hospital in Harrisburg, Pennsylvania, for "catera" to remove a liquid fluid out of his left eye.*fn3 He was referred for the surgery by Defendant Long. (Doc. 1, Compl. at 4.) Following the operation Plaintiff had approximately six (6) follow-up visits with the ophthalmologist specialist at Holy Spirit Hospital, and was prescribed several different eye drops. During his last visit he was informed by the specialist that his left eye would become smaller than his other eye, and that the eye was losing its color. This unidentified specialist also informed Plaintiff that his eye was no longer useful, and would have to be removed in the near future. Following his last visit with this doctor, Plaintiff states he was referred to another specialist who prescribed a set of glasses to protect his good (right) eye. (Id.)
On September 20, 2004, Plaintiff's eye became infected, and he was taken to Blair County Hospital where he was treated by Dr. Batissan. Penicillin was prescribed to treat the infection, and Plaintiff was told that his left eye would have to be removed, and replaced with an artificial eye. Plaintiff claims that "all this started from just a liquid fluid which needed to be drained from [his] eye which [he] was told was routine surgery." (Id.)
On October 29, 2004, Plaintiff states he was prescribed another eye drop to use until surgery was scheduled. On December 16, 2004, he was taken to see Dr. John Shietrome who was going to remove the "Lent and Pupil" of his left eye. The date of January 7, 2005, was scheduled to perform this operation. However, Plaintiff alleges that the operation never took place because he refused to sign a "waiver of causation form." He refused to do so without first having counsel review the waiver. According to Plaintiff, the waiver would have relieved the Department of Corrections of liability with respect to his eye. Due to his refusal to sign the waiver, Plaintiff maintains that SCI-Smithfield refused to provide medical coverage for the surgery. As a result, he claims that the surgery was not performed and he lost complete sight in his left eye.
Based on the foregoing allegations, Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Specifically, he argues that Defendants knew of the obvious danger to him if his eye remained untreated, yet they failed to treat him in an adequate and timely manner. He challenges the prescription of eye drops that failed and, according to Plaintiff, caused the infection and the ultimate loss of his eyesight. He also challenges the failure to recommend the needed surgery earlier and, instead, provide a "band aid" form of treatment in the form of eye drops and darkened glasses. (Id. at 9.) He challenges "the doctor's" intentional and deliberate neglect in failing to remove the infected lent and pupil which caused the loss of his sight, as well as diminished the sight in his good eye. (Id.) He further argues that Defendants were deliberately indifferent when they denied him the surgery to remove the lent and pupil that would have saved his sight if performed timely. In addition to the above claims, Plaintiff also sets forth state claims of negligence, medical malpractice and intentional infliction of emotional distress. As relief he seeks compensatory and punitive damages, costs and attorneys fees.
The complaint in this action was filed in August of 2005. Along with the complaint, a motion seeking the appointment of counsel was submitted. On September 29, 2005, an order granting Plaintiff's motion to proceed in forma pauperis was granted, and service of the petition was directed on the named Defendants. In December of 2005, motions to dismiss the complaint were filed by three separate groups of Defendants: (1) Holy Spirit Hospital; (2) the Corrections Defendants; and (3) Dr. Long. Thereafter, orders were issued by the Court denying Plaintiff's request for counsel, and granting a request for enlargement of time within which to oppose Defendants' motions to dismiss. (Doc. Nos. 30, 31.) On January 31, 2006, the Court received a letter from inmate Phillip Quinn requesting counsel on behalf of Plaintiff.*fn4
When Plaintiff failed to respond to the Defendants' motions to dismiss, the Court issued an order on February 28, 2006, dismissing the complaint pursuant to Fed. R. Civ. P. 41(b) for failure to comply with a court order. (Doc. No. 36.) Following Plaintiff's appeal, the United States Court of Appeals for the Third Circuit appointed counsel on Plaintiff's behalf. The Court of Appeals found that before dismissing a case as a sanction for failure to follow a court order, courts are required to consider the factors set forth in Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863 (3d Cir. 1984). (Doc. No. 68.) As such, this Court's order of February 28, 2006 was vacated, and the matter remanded for further proceedings. Following the issuance of the Third Circuit's mandate Plaintiff submitted briefs in opposition to Defendants' previously filed motions to dismiss. Reply briefs were thereafter filed. The motions are now before the Court for consideration.
III. Motion to Dismiss Standard
Fed. R. Civ. P. 12(b)(6) authorizes the dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), the court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). The court is not limited to evaluating the complaint alone. It may also consider documents attached to the complaint and matters of public record. McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009)(citing Lum v. Bank of America, 361 F.3d 217, 221 n.3 (3d Cir. 2004)).
While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), to survive a motion to dismiss a complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed. 2d 868 (2009)(quoting Twombly, 550 U.S. at 556). "[L]abels and conclusions" are not enough, Twombly, 550 U.S. at 555, and a court "'is not bound to accept as true a legal conclusion couched as a factual allegation.'" Id., 127 S.Ct. at 1965 (quoted case omitted).
In resolving a motion to dismiss, the court conducts "a two-part analysis." Fowler, 578 F.3d at 210. First, the court separates the factual elements from the legal elements and disregards the legal conclusion. Id. at 210-11. Second, the court "determine[s] whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.'" Id. at 211 (quoted case omitted).
However, '[a] document filed pro se is to be liberally construed," Erickson v. Pardus, 551 U.S. 89, 94 (2007)(quoted case and internal quotation marks omitted), and " a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Id., 127 S.Ct. at 2200 (quoted case and internal quotation marks omitted). Pro selitigants are to be granted leave to file a curative amended complaint "even when a plaintiff does not seek leave to amend," unless such an amendment would be inequitable or futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). But a complaint that sets forth facts which affirmatively ...