The opinion of the court was delivered by: Judge Caputo
On March 18, 2010, Plaintiff, John Ruff, an inmate confined at the Coal Township State Correctional Institution (SCI-Coal Township), Coal Township, PA, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 relating to the events of October 23, 2007, claiming he was improperly treated for a rib fracture. Doc. 1, Compl. Almost two years after the injury, after experiencing an "abnormal grown with moderate pain," an x-ray of his rib was taken, and a fracture discovered. Id. Named as defendants are the following individuals: Physician Assistant (PA) Brian Davis; PA Jesse Colabine; Dr. Michael Weisner; and X-ray Technician David Sabbar.*fn1
Presently before the Court is the medical defendants' motion to dismiss the amended complaint based on lack of personal involvement; failure to state an Eighth Amendment claim of deliberate indifference; and the statute of limitations. For the following reasons, the medical defendants' motion will be granted and the amended complaint dismissed without leave to amend due to futility.
On a motion to dismiss, "[w]e '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.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted case omitted). To survive a motion to dismiss, a complaint must allege sufficient facts "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). If a party does not "nudge [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, U.S. , , 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
Pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). Pro se litigants 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). However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
On or about October 23, 2007, Mr. Ruff injured his rib and was examined by PA Brian Davis at the SCI-Coal Township medical unit. Doc. 17-1, Am. Compl. at p. 1.*fn2 PA Davis did not properly examine him and did not order an x-ray of his rib. Id. On October 20, 2009, PA Colabine ordered an x-ray of Plaintiff's rib due to his complaints of moderate pain and an abnormal growth on his rib cage. Doc. 1, Compl. at p. 2; and Doc. 17-1 at p. 1. David Sabbar, a non-medical defendant, is the x-ray technician who took the October 2009 x-ray of Mr. Ruff's ribs. Doc. 15 at p. 1; Doc. 17-1 at p. 1. Sabbar advised Mr. Ruff that a fracture had occurred. Doc. 17-1 at p.1. Dr. Michael Weisner then examined the x-ray and informed Mr. Ruff that a rib fracture had occurred and that "if the pain kept occurring it would have to be rebroken and corrected. Id.
John Ruff asks that Sabbar, Dr. Weisner and PA Colabine be called as witnesses in this matter because "[t]he actions of Brain (sic) Davis, P.A. may have caused future harm to the plaintiff that resulted in moderate pain . . . also the misdiagnosis may have resulted in permanent abnormalities of the injured area." Id. at p. 2. He seeks declaratory and monetary relief in the form of compensatory and punitive damages for the "misdiagnosis of plaintiff's rib injury". Id.
A. Lack of Personal Involvement of PA Colabine, Dr. Weisner and X-ray Technician Sabbar.
"A defendant in a civil rights action must have personal involvement in the alleged wrongs" to be liable. Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988)). Each named defendant must be shown, through the complaint's allegations, to have been personally involved in the events or occurrences upon which the plaintiff's claims are based. Id. A civil rights complaint must state time, place, and responsible person. Id. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Rode, 845 F.2d at 1207-08; see Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Liability in a civil rights action cannot be predicated solely on the doctrine of respondeat superior. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)(claims brought under 42 U.S.C. § 1983 cannot be premised on a theory of respondeat superior)(citing Rode, 845 F.2d at 1207). Thus, individual liability can be imposed under Section 1983 only if the state actor played an "affirmative part" in the alleged misconduct. Rode, 845 F.2d at 1208. Merely alleging that an individual defendant had personal knowledge or involvement in depriving the plaintiff of his rights is insufficient to establish personal involvement. Id.
Mr. Ruff claims that PA Davis failed to properly evaluate and treat his initial rib injury in October 2007. He does not suggest that PA Colabine, David Sabbar or Dr. Weisner had any involvement in the events that occurred in October 2007. Rather, their only alleged involvement comes almost two years after the initial injury and identifies how each one of them in some way led to the diagnostic testing and medical evaluation which discovered the improperly healed rib fracture. The Amended Complaint does not assert that Colabine, Sabbar or Weisner had any personal involvement in denying him medical attention ...