The opinion of the court was delivered by: Pollak, J.
Darren Cephas, an in forma pauperis and pro se litigant, has filed two § 1983 claims arising from his incarceration at George W. Hill Correctional Facility in Delaware County, Pennsylvania ("the Prison"). Am. Compl., Docket No. 19. The first claim is for deliberate indifference to his medical needs. Am. Compl. at 1--2. The second claim is for retaliation. Am. Compl. at 3. The defendants' motion to dismiss is currently before the court. Docket No. 24. For the following reasons, the motion to dismiss will be granted with leave to amend, and the court will request that counsel be appointed to represent Cephas.
In his amended complaint, Cephas alleges that The GEO Group, Inc. ("GEO")-a private company that provides medical services to inmates at the Prison-was indifferent to his medical needs because: (1) his repeated requests for medical attention went unanswered; (2) he was not given emergency attention on a night when he had a high fever; (3) he never received bandages to cover his infected calf; and (4) his medication was stopped abruptly. Am. Compl. at 1--2. Cephas further alleges that in retaliation for the deliberate indifference claim he filed, Bruce St. Claire in the Prison's business office improperly withdrew funds from Cephas's inmate account. Am. Compl. at 3.
Motion to Dismiss Standard
In order to survive a motion to dismiss for failure to state a claim, a complaint need only include "'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)). Thus plaintiffs must include "sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The court will liberally construe Cephas's allegations because he is a pro se plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further, Cephas will be granted leave to amend "unless amendment would be inequitable or futile." Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
Cephas alleges in his amended complaint that GEO was indifferent to
his medical needs. Am. Compl. at 1--3. First, he alleges that he filed
a medical request because his calf muscle was infected, but got no
response. Am. Compl. at 1--2. Cephas then
submitted grievances, which also went unanswered. Am. Compl. at 1.
This delay "[led] up to worse conditions." Id. Cephas further alleges
that other inmates who had infections were getting "the same results."
Id. Second, Cephas alleges that on or about December 14, 2007, he
pushed the emergency button in his cell for over three hours with no
response from the guards. Id. By the time officers arrived, Cephas had
passed out, sustained injuries to his head, urinated on himself, and
had a temperature of 104EF. Id. Third, Cephas alleges that when he
asked for bandages, a nurse required him to submit a written request;
at that point, his infection was leaking blood and pus. Am. Compl. at
2. In lieu of bandages, Cephas wrapped his calf in "ripped bed sheets
and toilet paper." Id. Fourth, Cephas alleges that his medication was
stopped abruptly because the prescription had run out. Id.
"[D]eliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). Deliberate indifference is established when "the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994).
The deliberate indifference standard is met under various circumstances, the most relevant to this case include: (1) "[w]here prison authorities deny reasonable requests for medical treatment . . . and such denial exposes the inmate to undue suffering or the threat of tangible residual injury;" (2) "where knowledge of the need for medical care [is coupled with] . . . intentional refusal to provide that care;" and (3) where "necessary medical treatment is delayed for non-medical reasons." Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (internal quotation marks and citations omitted). Moreover, because GEO is not an individual and because § 1983 liability will not arise from the doctrine of respondeat superior, the plaintiff must allege that his constitutional rights were violated as a result of an institutional policy or custom. See Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691, 694 (1978).
In this case, even assuming that Cephas has made allegations which would establish deliberate indifference on the part of the individual prison officials, he has not made an allegation that GEO maintains a policy or custom that contributed to an alleged § 1983 violation. For example, Cephas alleges that he had an infection which prompted him to file medical requests and grievances, but he received no response from GEO. But he does not allege that GEO maintained a policy or custom of being unresponsive to medical requests, with the exception of his conclusory statement: "During that time there was [sic] other inmates infected getting the same results throughout the prison." Am. Compl. at 1. Also, Cephas alleges that when he saw a prison nurse, she told Cephas that he needed to put in a request for bandages. He does not allege, however, what GEO's policy regarding bandage distribution was or whether it constituted deliberate indifference. Accordingly, Cephas's amended complaint will be dismissed with leave to amend because it is conceivable that Cephas will be able to cure the deficiencies in his amended complaint.
Cephas alleges that in response to his Eighth Amendment claim, an individual in the prison's business department withdrew money from Cephas's inmate account more frequently than permitted under 28 U.S.C. § 1915(b)(2);*fn1 the withdrawals were to pay the filing fee Cephas incurred from the Eighth Amendment claim. Am. Compl. at 3. The retaliation claim is deficient in details, it reads in its entirety:
The retaliation claim on this complaint is the buisness [sic] department. the [sic] claim is not based on allegations and it is a violation of the first amendment right. Every thing [sic] is in the paper work [sic] from receipts. The ...