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Dawn Marie Ball v. Dr. Famiglio

March 31, 2011

DAWN MARIE BALL,
PLAINTIFF,
v.
DR. FAMIGLIO, ET AL., DEFENDANTS



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

MEMORANDUM

Plaintiff Dawn Marie Ball is an inmate confined at the State Correctional Institution at Cambridge Springs, Pennsylvania. She filed this civil rights action pursuant to 42 U.S.C. § 1983 on April 14, 2008. The matter proceeds on a second amended complaint filed on March 12, 2010, naming twenty-eight (28) Defendants. (Doc. No. 86.) Before the Court for consideration are Plaintiff's fourth and fifth requests for the appointment of counsel (Doc. Nos. 87, 110), and motion for injunctive relief (Doc. No. 88). Also pending are motions to dismiss the second amended complaint filed by three (3) groups of Defendants. (Doc. Nos. 91, 93 and 96.) For the reasons that follow, the motions for counsel and for injunctive relief will be denied. The motion to dismiss filed by Defendants Wood and Shiptowski will be granted. The motions to dismiss filed by the remaining Defendants will be granted in part and denied in part.

I. Background

Named as Defendants in the second amended complaint are twenty-eight employees at the State Correctional Institution at Muncy (SCI-Muncy), Pennsylvania, Plaintiff's former place of confinement. The bulk of the complaint sets forth claims of inadequate medical and dental care spanning the period of August of 2006 through October of 2008. Also alleged are claims of excessive force and retaliation. The allegations contained in Plaintiff's complaint follow.

According to Plaintiff's complaint, Plaintiff was refused medical treatment for approximately two months beginning on August 28, 2006, by Defendants Fabian and Himmelsbach. Plaintiff did ultimately receive a fifteen minute consultation with a physical therapist, after which she was told to sign up for sick call if she needed further treatment. Between approximately November of 2006 and April of 2007, Plaintiff signed up to see the therapist, but Defendants Himmelsbach, Fabian, Brown, and Diggan refused her requests. As a result of the alleged inattention, Plaintiff claims that her hand and foot are permanently "messed up" and that she walks with a limp. Plaintiff further alleges that these same Defendants took Plaintiff's wheelchair and cane from her in early 2007. Due to Defendants' actions, Plaintiff asserts that she suffered excruciating pain and falls when she was forced to walk the prison campus. In addition, at some point between January and April of 2007, Himmelsbach issued a "no smoking roommate" order for Plaintiff, but Defendant Lieutenant Boyer allegedly refused to follow the order.

Beginning on August 28, 2006, Plaintiff claims that Defendant Nelms, the prison dentist, refused to order "partials" for Plaintiff. Plaintiff states that she may have problems in the future because her back tooth has too much stress on it without the "partials." Nelms also allegedly refuses to perform a root canal on one of Plaintiff's teeth, and wants to pull it. From November of 2006 through April of 2008, Defendant Nicola, the dental hygienist, refused to put Plaintiff on the list to have her teeth cleaned. Although the American Dental Association recommends teeth cleanings every six months, Nicola informed Plaintiff that cleanings are administered every two (2) years due to prison overcrowding and the lack of available transportation. As a result, Plaintiff complains that her expensive porcelain veneers are now yellow. She further states that Dr. Famiglio told her that she has gingivitis, and that from April of 2007 through April of 2008, Nelms refused her requests for dental sick call. In addition, Plaintiff asserts that at times between August of 2007 and April of 2008, Defendant Pinard refused to allow her to brush her teeth.

According to Plaintiff, Dr. Famiglio refused to provide her with x-rays and other medical treatment for her back, hand, ankles, knee, hips, and toes from August of 2007 through April of 2008. As punishment for "misbehaving," Famiglio also allegedly stopped medical orders he had previously issued, and refused to go over the results of Plaintiff's medical tests with her. On one occasion between August and October of 2008, Famiglio had Plaintiff held down so that blood could be drawn from her without a court order. Plaintiff alleges that the blood was drawn from the groin area in the presence of male officers. She also claims that Famiglio refused to treat "pimply things all over [her] arms, back, buttocks, and legs." The complaint further states that he refused to perform a complete physical despite Plaintiff's claims she looked sickly and had lost over 100 pounds.

Beginning in April of 2007, Plaintiff claims Defendants B. Mensch, N. Mensch, Jarrett, Boyer, Otte and Welshans (Chance) gave her the wrong medications and dosages. They also crushed her medication without being ordered to do so. Defendant Eagan is alleged to have refused Plaintiff medical treatment and sick call when she signed up. Defendant DiLella is claimed to have refused Plaintiff's medication as "punishment." Plaintiff further claims that following an assault by staff members in August of 2007, Defendants Mensch, Mensch, Jarrett, Saar, Ragar, and Johnson refused to call medical or treat Plaintiff. Defendant Smith refused to make arrangements to have Plaintiff taken to medical appointments from the RHU to the main prison campus. Also, Defendant Gamble refused to go over Plaintiff's medical records with her because she was in the RHU. Beginning in August of 2007, Defendants Little (Stroup) and Ms. Johnson refused to put Plaintiff on the list to have her eyes checked and get glasses. She claims her eyesight has now deteriorated.

Finally, Plaintiff contends that Defendants Wood and Shiptowski, both prison psychiatrists, refused to order the correct medications for her, and as a result she was unstable for a long time. Although she told Defendants what medication would work, they refused to order it or get her psychiatric records from the doctor who treated her prior to confinement. Based on the foregoing, Plaintiff seeks declaratory, injunctive, compensatory, and punitive relief.*fn1

II. Discussion

A. Motions for Counsel

Currently pending are Plaintiff's fourth and fifth requests for the appointment of counsel. (Doc. Nos. 87, 110.) She filed her fourth motion for counsel on the same day that she filed the second amended complaint. In the motion, she cites many of the same reasons in support of her motion as she has offered before: her limited access to the law library, her psychological problems, her inability to afford her own lawyer, the limitations incarceration inflicts upon her, and several others. The fifth request for counsel pending is part of Plaintiff's brief in response to Defendants Wood and Shiptowski's motion to dismiss. It is a general request for counsel and does not contain supporting reasons. The Court will not repeat the standard used in deciding these motions since it has been thoroughly set forth in addressing Plaintiff's earlier motions for counsel.

Many of the reasons given by Plaintiff in support of the pending motions have been previously addressed and rejected by the Court. The only new arguments set forth are with respect to Plaintiff's "failing" vision, interference by prison employees with her legal materials, and her inability to obtain paper and envelopes to mail documents to the Court. These new arguments do not persuade the Court that the appointment of counsel is warranted at this time. First, Ball is no longer confined at SCI-Muncy. As such, any problems she may have been experiencing with the SCI-Muncy staff are no longer an issue. Further, to the extent that she claims she has difficulty obtaining writing supplies, the docket in this case as well as the others presently pending before this Court reveal no difficulty is accessing paper and mailing documents. While Plaintiff claims that her vision is failing, her submissions suggest that she is clearly capable of preparing and submitting documents to the Court. In addition, to the extent that she claims that Defendants are thwarting her efforts to obtain an eye exam and corrective lens, her allegations are moot because she is no longer confined at SCI-Muncy. For these reasons, the pending requests for the appointment of counsel will be denied, but without prejudice.

B. Motion for Injunctive Relief

Plaintiff has filed a motion seeking injunctive relief based upon Defendants' continuing unconstitutional actions as set forth in the complaint. (Doc. No. 88.) She specifically references Defendants failure to provide her with eye care. She claims that the failure of the Court to issue an order directing Defendants to schedule her for an eye appointment will result in the further deterioration of her vision. In her brief in support of injunctive relief, she also seeks an order directing Defendants to provide her with dental care in the form of partials and teeth cleaning. (Doc. No. 89 at 1.) For the reasons that follow, the motion will be denied.

An injunction is an "extraordinary remedy" that is never awarded as of right. Winter v. Natural Resources Defense Council, 555 U.S. 7, 129 S. Ct. 365, 375 (2008). The Third Circuit Court of Appeals has outlined four factors that a court ruling on a motion for a preliminary injunction must consider: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably injured by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. Rogers v. Corbett, 468 F.3d 188, 192 (3d Cir. 2006); Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir. 2001); see also United States v. Bell, 238 F. Supp. 2d 696, 699 (M.D. Pa. 2003). These same factors are used to determine a motion for a temporary restraining order. Bieros v. Nicola, 857 F. Supp. 445, 446 (E.D. Pa. 1994). It is the moving party that bears the burden of satisfying these factors. Adams v. Freedom Forge Corp., 204 F.3d 475, 486 (3d Cir. 2000). While each factor need not be established beyond a reasonable doubt, they must combine to show the immediate necessity of injunctive relief. Stilp v. Contino, 629 F. Supp. 2d 449, 457 (M. D. Pa. 2009), citing Swartzwelder v. McNeilly, 297 F.3d 228, 234 (3d Cir. 2002). The moving party must produce evidence sufficient to convince the court that all four factors favor injunctive relief, and the court must endeavor to balance all four factors. However, as a practical matter, likelihood of success on the merits and irreparable injury are the most important factors. See Am. Tel. & Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1427 & n. 8 (3d Cir. 1994).

Without unnecessary elaboration, Plaintiff has failed to make a clear showing that there is a likelihood of success on the merits, and that she will suffer irreparable injury if her motion is denied. First, her request for injunctive relief is now moot based upon her transfer to SCI-Cambridge Springs. As set forth earlier, it is well established that where a plaintiff seeks injunctive relief against prison officials whose control he is no longer subject to or against a prison in which he is no longer housed, there is no longer a live controversy and a court cannot grant that injunctive relief. See Abdul-Akbar, 4 F.3d at 206; Fortes, 19 F. Supp. 2d at 326. Moreover, the motion is simply a reiteration of the pending second amended complaint. Clearly Plaintiff has an adequate remedy at law, as she is ...


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