The opinion of the court was delivered by: Judge Caputo
The plaintiff in this action is a state prisoner proceeding pro se. He brought this action under 42 U.S.C. § 1983 alleging that he has not received appropriate medical care. Magistrate Judge J. Andrew Smyser reviewed the case pursuant to 28 U.S.C. § 1915A and recommends its dismissal for failure to state a claim upon which relief can be granted. (Doc. No. 11.) He concludes that permitting the plaintiff to amend would be futile because "this is a case in which the plaintiff has been prescribed treatment and merely disagrees with that treatment."
The plaintiff objects to the report and recommendation and moves for leave to amend his complaint*fn1 and for the appointment of counsel. (Docs. No. 16, 18.) For the reasons explained below, the report and recommendation will be adopted in part. The complaint will be dismissed, but the plaintiff will have the opportunity to amend. The request for appointed counsel will be denied.
Plaintiff Marvin Kennedy is a state prisoner. After experiencing pain and noticing blood while using the bathroom, he requested a medical appointment.
At the appointment, someone named Julie examined him and diagnosed him as having hemorrhoids. As an initial course of treatment she prescribed ointment and ibuprofen, telling him that she would contact him for a follow-up appointment to see if the treatment was working. Mr. Kennedy was never called back down.
The treatment did not work. When he complained to corrections officers about blood in his underwear, they had him bathe three times per day "d[ue] to medical not wanting to call me down or put me on the call out." Because of his pain, he has trouble sleeping, does not want to eat, and is unable to leave his cell for daily activities. Months have gone by and Mr. Kennedy's complaints have gone unaddressed.
He filed this complaint and is proceeding pro se and in forma pauperis. Pursuant to 28 U.S.C. § 1915A, the magistrate judge reviewed the complaint and wrote a report and recommendation. The magistrate judge recommends dismissing the complaint for failure to state a claim on the grounds that Mr. Kennedy "at most raises an issue of [medical] negligence" and that "mere disagreement" with his course of treatment does not rise to the level of an Eighth Amendment violation.
Mr. Kennedy objects to the report and recommendation. He argues that his complaint alleges facts supporting a claim of deliberate indifference to serious medical needs. He additionally requests leave to amend and the appointment of counsel.
A. Scope of Review of Magistrate Judge's Report and Recommendation
Where objections to the magistrate judge's report are filed, those portions of the report to which objection are made are reviewed de novo.Because adoption of the report represents a final decision of the district court, the district judge should "afford some level of review to dispositive legal issues raised by the report" even where there are no objections. Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987). The extent of review is committed to the discretion of the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985). Here, the Court is reviewing the entire report and recommendation de novo.
Under 28 U.S.C. § 1915A,*fn3 a court shall review a complaint filed by a prisoner in a civil action and dismiss the complaint if it is frivolous, malicious, or fails to state a claim upon which relief may be granted. In determining whether a complaint fails to state a claim, the court uses the standards applied under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
To state a claim, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The complaint need only give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, more is required than labels, conclusions, and a formulaic recitation of the elements of a cause of action. Id. "A complaint has to 'show' such an entitlement with its facts." Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009). "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
In deciding whether to dismiss, a court must determine whether the complaint "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. To withstand a motion to dismiss, a complaint must state a claim to relief "that is plausible on its face." Id. The facial plausibility requirement has been described:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"
Id. (internal citations omitted).
Pro se filings are to be construed liberally and are held "to less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se litigants must be granted leave to file a curative amended complaint, even when they do not seek leave, "unless such an amendment would be inequitable or futile." Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). "Futility" means that an amended complaint would likewise fail to state a claim upon which relief could be granted. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) (citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). "In assessing 'futility,' the district court applies the same standard of legal sufficiency as applies under Rule 12(b)(6)." Id. Under this standard, "[t]he District Court determines futility by taking all pleaded allegations as true and viewing them in the light most favorable to the plaintiff." Great Western Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 175 (3d Cir. 2010) (quoting Winer Family Trust v. Queen, 503 F.3d 319, 330--31 (3d Cir. 2007)). In general, whenever "the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962).
Under 42 U.S.C. § 1983, a person who, under color of state law, deprives another of any "rights, privileges, or immunities secured by the Constitution and laws" is liable to the party. A defendant in a § 1983 action must have been personally involved in the alleged deprivations; "liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845 F.2d 1195, 1201 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981)). "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge or acquiescence, however, must be made with appropriate particularity." Id. (citing Boykins v. Ambridge Area Sch. District, 621 F.2d 75, 80 (3d Cir. 1980) (civil rights complaint adequate where it states time, place, persons responsible)).
In the present action, Mr. Kennedy brings a claim against prison officials on the grounds that they denied him medical treatment in violation of ...