The opinion of the court was delivered by: Judge Munley
Plaintiff Ronald Ray Rager ("Rager"), a state inmate incarcerated at the State Correctional Institution at Retreat, Hunlock Creek, Pennsylvania ("SCI-Retreat"), commenced this civil action on March 17, 2010. (Doc. 1.) The matter is presently proceeding via an amended complaint filed on November 3, 2010. (Doc. 27.) Ripe for disposition is a motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on behalf of defendants Prison Health Services, Inc. ("PHS"), and Jennifer Porta ("Porta"). (Doc. 30.) For the reasons set forth below, the motion will be granted. In addition, the complaint against Dr. Nebloni ("Nebloni") will be dismissed pursuant to Federal Rule of Civil Procedure 4(m) due to Rager's failure to effect service on him within 120 days of the filing of the amended complaint.
A. Allegations of the Amended Complaint*fn1
In February of 2008, while incarcerated at SCI-Retreat, Rager began experiencing pain in his groin area and, upon self-examination, he discovered a lump. (Doc. 27, at 5, ¶¶ 14-15.) On February 22, 2008, he was examined by physician's assistant defendant Porta. (Id. at ¶ 17.) During the exam, he informed defendant Porta about the lump in his groin area. Defendant Porta ordered an ultrasound and it was discovered that Rager had "two epidydmal cysts." (Id. at ¶¶ 18-19.) Defendant Porta prescribed Ibuprofen for pain. (Id. at ¶ 20.)
The pain persisted and worsened. (Id. at ¶ 21.) He returned to sick call on March 11, 2008, at which time defendant Porta ordered a second ultrasound. (Id. at ¶ 22.) According to Rager, the results of the second ultrasound revealed that the cysts were not malignant. (Id. at ¶ 23.) "Despite [my] efforts to obtain treatment to either remove the cysts or ease the pain, treatment was not approved due to the fact that the cysts were not malignant." (Id. at ¶ 29.) He contends that the denial of any type of procedure to shrink or remove the cysts subjects him to constant and unbearable pain. (Doc. 27, at 6, ¶ 30.)
Rager has a bladder control problem which requires him to wear adult diapers. (Doc. 27, at 4, ¶ 1.) On his initial intake into the Pennsylvania Department of Corrections, he was issued washable and disposable adult diapers, plastic underwear to wear over them, and protective underwear. (Id. at ¶ 2.) In November 2009, while incarcerated at SCI- Retreat, the Health Care Administrator discontinued the adult diapers and replaced them with C-Fold paper towels. (Id. at ¶ 8.) He has made several requests to be provided with the rescinded supplies and all requests have been denied. (Id. at ¶¶ 10-13.)
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must "accept as true all [factual] allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff." Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is generally limited in its review to the facts contained in the complaint, it "may also consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide "the defendant notice of what the . . . claim is and the grounds upon which it rests." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plaintiff must present facts that, if true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the complaint should include "a short and plain statement of the claim showing that the pleader is entitled to relief"); Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (explaining that Rule 8 requires more than "an unadorned, the-defendant unlawfully-harmed-me accusation"); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege facts sufficient to "raise a right to relief above the speculative level"). Thus, courts should not dismiss a complaint for failure to state a claim if it contains "enough factual matter (taken as true) to suggest the required element. This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 550 U.S. at 556).
Courts are cautioned that because of this liberal pleading standard, a plaintiff should generally be granted leave to amend before dismissing a claim that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). The federal rules allow for liberal amendments in light of the "principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal quotations omitted). However, leave to amend under Rule 15 may be denied in cases of (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice; or (4) futility of amendment. See Foman, 371 U.S. at 182; see also Arthur v. Maersk, Inc., 434 F.3d 196, 204-05 (3d Cir. 2006) (stating that "leave to amend must generally be granted unless equitable considerations render it otherwise unjust"); see also Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (stating "absent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless denial can be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment") (citations and internal quotation marks omitted); Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000) (summarizing factors to consider under Rule 15).
Section 1983 of Title 42 of the United States Code offers private citizens a cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to ...