The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge J. Andrew Smyser (Doc. 91), filed on March 4, 2011, which recommends that we grant Defendant David Ball's ("Defendant" or "Dr. Ball") motion to dismiss or for summary judgment. (Doc. 75). Plaintiff Garland Miller ("Plaintiff" or "Miller") filed objections to the R&R (Doc. 95) on March 21, 2011. Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R, grant the moving Dr. Ball's motion to dismiss, and close this case.
I. PROCEDURAL AND FACTUAL BACKGROUND
The facts and background of this case are familiar to the parties and the Court, thus we shall only recite the facts salient to Defendant's instant motion. Plaintiff, a prisoner confined at the United States Penitentiary at Lewisburg ("USPLewisburg") from December 2008 to April 2009 and confined at the Allenwood Low Security Correctional Institution ("LSCI-Allenwood") from April 2009 to the present filed, pro se, this 42 U.S.C. § 1983and Bivens*fn1 action on November 10, 2009. (Doc. 1). Plaintiff is a medical doctor who practiced medicine in private practice in Louisiana for 24 years prior to his federal incarceration on a tax evasion conviction.
Plaintiff alleges that he has both resolved and unresolved health conditions including posterior tibial tendonitis, hyperlipidemia, hypertriglyceridemia, hypertension, benign prostate hypertrophy, rectal bleeding, gastritis, anxiety and depression while in administrative segregation, and torn meniscus of the left knee. Prior to incarceration, Plaintiff had previously taken prescribed Celebrex for pain. Since his incarceration, Plaintiff has not received Celebrex, even though he requested the medication for knee pain.
The particular allegations lodged by Plaintiff against Dr. Ball are as follows:
Dr. Ball, a medical doctor and orthopedic surgeon, under contract or working for the BOP told [the Plaintiff] that he thinks that [the Plaintiff] had torn his medial meniscus in his left knee when [he] fell getting down from the top bunk, but said that while Celebrex was a good medicine, it was not on the BOP forumlary, and that he could not give him this drug. Instead, he gave [the Plaintiff] a cortisone injection in his knee in order to relieve pain, swelling and inflammation. This injection posed a risk of infection. (Doc. 1, p. 10). These are the extent of the allegations against Dr. Ball in the Plaintiff's complaint.
On June 1, 2010, the moving Defendants filed a motion to dismiss and for summary judgment. (Doc. 30). After full briefing, Magistrate Judge Smyser issued the instant R&R, which is the subject of our present review.
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts "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." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to Rule 12(b)(6), a court generally should consider only the allegations in the complaint, as well as "documents that are attached to or submitted with the complaint, . . . and any matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain a short and plain statement of the claim showing that the pleader is entitled to relief, "in order to give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual allegations, it must contain "sufficient factual matter, accepted as true, to 'state claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ---, ---, 129 S. Ct. 1937, 1949 (2009). To survive a motion to dismiss, a civil plaintiff must allege facts that 'raise a right to relief above the speculative level . . . ." Victaulic Co. v. Tieman, 499 F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to satisfy the plausibility standard, the complaint must indicate that defendant's liability is more ...