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Eric Houston v. Doctor Kisek

December 3, 2010

ERIC HOUSTON,
PLAINTIFF,
v.
DOCTOR KISEK,*FN1 DEFENDANT



The opinion of the court was delivered by: (Chief Judge Kane)

MEMORANDUM

This civil rights action pursuant to 42 U.S.C. § 1983 was filed by Eric Houston, at the time an inmate confined at the Luzerne County Correctional Facility ("LCCF"), Pennsylvania. Named as the sole Defendant is Gunnar Kosek, D.O., a doctor at LCCF. Presently pending is a motion to dismiss the complaint filed by Kosek on June 23, 2010. (Doc. No. 12.) For the reasons that follow, the motion to dismiss will be deemed unopposed and granted.

I. Allegations in Complaint

On November 6, 2009, Plaintiff was confined at the LCCF pursuant to a probation violation. He states that prior to his incarceration he had been in a serious accident and was receiving treatment for injury sustained to his back, neck and shoulders. Upon incarceration he informed the prison infirmary of his accident and need for medical care. (Doc. No. 1, Compl. at 2.) Thereafter, Plaintiff states he signed a release provided to him by the prison that would enable the prison to obtain medical information from his outside doctors located in Philadelphia. (Id. at 3.) When the prison failed to receive a reply, Plaintiff states that he filed a grievance. (Id.) Plaintiff states that he filed a grievance. Shortly thereafter, Plaintiff was called to the prison infirmary by the nurse supervisor whom he claims screamed at him and had him sign another release form. Two days later, Plaintiff states he was asked to provide phone numbers for the Philadelphia doctors. On January 18, 2009, Plaintiff alleges he was told that the phone numbers he had given were wrong. Plaintiff states he then filed another grievance. He states that the nurse supervisor at the prison yelled at him again, and had him sign a third release form. He states, however, that he was placed on 300 mgs of Nurontin because the prison was able to obtain his prescription from the pharmacy he used prior to his incarceration.

Plaintiff states that he later put in a request to see the prison doctor because he was experiencing pain. After speaking with Plaintiff, Doctor Kosek prescribed Flexiril. However, Plaintiff states that when he saw Kosek, an actual examination was not conducted. As such, Plaintiff states he filed a grievance against Kosek. From January 19, 2010, through April 9, 2010, Plaintiff maintains that he put in several requests to see the prison doctor, but had yet to see him at the time he initiated the instant action. He claims that on April 8, 2010, he was told that he would see the doctor, but he never did because the doctor left early. However, he does state that the doctor did "up his meds the Nurontin." Another grievance was filed against Kosek because Plaintiff wanted to be seen by the doctor and have his medications adjusted. (Id. at 5.)

The instant complaint was filed on April 13, 2010. In the complaint Plaintiff states that he seeks to "get the doctor for medical malpractice." (Id. at 4.) He wishes to receive monetary compensation for his pain and suffering, and wants Doctor Kosek to lose his job at the prison. On May 21, 2010, Plaintiff was released on parole from LCCF. (Doc. No. 15.)

II. Procedural History

On April 20, 2010, the Court issued an order directing service of the complaint on Doctor Kosek, the sole named Defendant. (Doc. No. 8.) On May 25, 2010, Plaintiff filed a Notice of Change of Address with the Court. He stated that he was now released on parole and provided the following new address: 5432 B Sansom Street, Philadelphia, Pennsylvania, 19139. (Doc. No. 9.) He further requested a copy of the complaint in this action. On June 15, 2010, a copy of the complaint was mailed to Plaintiff at his new address. (Doc. No. 10.)

On June 23, 2010, Defendant filed a motion to dismiss the complaint in this action. (Doc. No. 12.) A brief in support of the motion was filed on July 1, 2010. (Doc. No. 13.) Plaintiff thereafter failed to file a timely brief in opposition to the motion. As such, the Court issued an order on October 4, 2010, directing Plaintiff to file his opposition brief within fourteen (14) days. He was warned that his failure to do so may result in the motion being deemed unopposed and granted or the case being dismissed for failure to prosecute. (Doc. No. 16.) Despite the Court's order, Plaintiff has failed to file his opposition brief or seek an enlargement of time within which to do so. In fact, the last time the Court received contact from Plaintiff was on May 25, 2010, when he provided notice of his release on parole and his new address.

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 ...


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