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Damian Henry v. Todd Buskirk

February 21, 2011


The opinion of the court was delivered by: Stengel, J.


Damian Henry has filed claims under the Eighth Amendment and the Americans with Disabilities Act alleging that numerous medical and prison officials at the Northampton County Prison were deliberately indifferent to his handicap and other medical needs. Defendants PrimeCare Medical, Inc., the corporation contracted by the prison to provide health services for inmates, and Dr. Victoria Gessner, have filed motions to dismiss Mr. Henry's claims against them.


The allegations of Mr. Henry's complaint are as follows: he was shot seven times on March 22, 2007 and, as a result, was injured in his lower back and right leg and suffered a shattered right ankle and shattered right [tibia] bone." Compl. ¶ 7. He had two surgeries to correct his injuries and was moved to Northampton County Prison ("Prison") on September 17, 2007, "in between scheduled appointments for medical treatment" and before he could undergo required additional surgery for a bone graft in his right tibia. Id.

¶¶ 8-10. When he arrived at the Prison, he was assigned to the Medical Housing Unit because he was in a leg cast and walked with crutches. Id. at ¶ 11. On September 21, 2007, he met with Dr. Victoria Gessner,*fn2 and told her of his existing injuries and the need for a bone graft to his right tibia. Id. at ¶ 12. Mr. Henry signed a release so that Dr. Gessner could obtain his medical records from the hospitals in which he received medical treatment before arriving at the prison, and as a result, she "knew the extent of [his] existing injuries and his need for further surgery and therapy as ordered by physicians at those hospitals." Id. at ¶ 14. Despite her knowledge of his conditions, Dr. Gessner cleared Mr. Henry to be housed in the general prison population, "exposing him to unsafe and dangerous conditions within the prison, having to navigate with crutches two tier levels up two flights of stairs." Id. at ¶ 16.

On or about September 27, 2007, Mr. Henry fell going down the stairs while on his way to take a shower in the Medical Housing Unit, reinjuring his back, hip, leg, neck, and head and temporarily losing consciousness. Id. at ¶¶ 20, 22. As a result of this accident, he was admitted to St. Luke's Hospital, where doctors ordered that upon his return to the prison he should remain in the Medical Housing Unit for observation. Id. at ¶ 23-24. On September 28, 2007, Dr. Gessner saw Mr. Henry and "overruled" the St. Luke's recommendation that he remain in the Medical Housing Unit, sending him back to the general population. Id. at ¶ 25. She also "took the neck brace that was [prescribed] to him for no reason." Id. On October 6, 2007, Dr. Gessner "cleared [Mr. Henry] to shower in the shower area on the tier knowing that the condition of the shower area was not handicap accessible[.]" Id. at ¶ 30. From November 2007 through March of 2008, Mr. Henry slipped and fell numerous times in the shower area Dr. Gessner had ordered that he use. Id. at ¶ 47.

In January of 2008, Mr. Henry had an anxiety attack due to the post-traumatic stress disorder which resulted from his being shot. He "submitted several [requests] to the medical department to see the psychiatrist but was never called to see anyone." Id. at ¶ 43.


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all plausible inferences in favor of the plaintiff. Id.; see also D.P. Enters. v. Bucks County Cmty. Coll., 725 F.2d 943, 944 (3d Cir. 1984).

It remains true that the Federal Rules of Civil Procedure do not require a plaintiff to plead in detail all of the facts upon which he bases his claim. Rather, the Rules require "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). A complaint must, however, "allege facts suggestive of [the proscribed] conduct," Twombly, 550 U.S. at 564, and it must contain enough factual matters to suggest the required elements of the claim or to "raise a reasonable expectation that discovery will reveal evidence of" those elements. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Neither "bald assertions" nor "vague and conclusory allegations" are accepted as true. See Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Sterling v. Southeastern Pennsylvania Transp. Auth., 897 F. Supp. 893 (E.D. Pa. 1995).

In assessing the merits of a motion to dismiss, courts must be careful to recognize that their duty to accept allegations as true does not apply to legal conclusions. See Ashcroft v. Iqbal, - - U.S. - -, 129 S.Ct. 1937, 1949 (2009). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950 (emphasis added). In recognition of these principles, courts must first identify those allegations in a complaint that are mere conclusions and are not entitled to the assumption of truth and then consider whether the complaint's factual allegations plausibly suggest an entitlement to relief. Iqbal, 129 S.Ct. at 1950 (emphasis added).


A. Eighth Amendment Deliberate Indifference Claims Government bodies and state actors may be sued under Section 1983 for

constitutional rights violations. A Section 1983 claim based on a violation of the Eighth Amendment's prohibition of unnecessary and wanton infliction of pain arises where prison officials or doctors exhibit deliberate indifference to serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976). An Eighth Amendment claim will arise from the deliberate indifference of (1) prison doctors in their response to the prisoner's needs; (2) prison guards intentionally denying or delaying access to medical care; or (3) prison staff intentionally interfering with medical treatment once it is prescribed. Id. at 104-05.A deliberate indifference claim has two components: an objective component under which the plaintiff must show that denial of care itself was serious or that it had ...

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