The opinion of the court was delivered by: Goldberg, J.
Plaintiff, David Morales, Jr., proceeding pro se, initiated this civil rights action pursuant to 42 U.S.C. § 1983 (hereinafter "§ 1983") against Defendant, Berks County Prison. Plaintiff alleges that he was denied proper medical treatment and that prison officials retaliated against him for filing grievances while incarcerated.
Before the Court is Defendant's motion to dismiss. For the following reasons, I will grant Defendant's motion.
I. FACTUAL AND PROCEDURAL HISTORY
The following facts, viewed in a light most favorable to Plaintiff, were taken from Plaintiff's complaint.*fn1 On February 10, 2010, Plaintiff suffered a hernia while incarcerated at the Berks County Correctional Facility. Although Plaintiff alleges he was seen by a prison doctor who confirmed the hernia and understood that he was in considerable pain, Plaintiff claims that the prison did not believe surgery was necessary. On June 30, 2010, Plaintiff filed a prison grievance form explaining that his condition had worsened and requesting surgery. On July 7, 2010, the form was processed and Plaintiff was reminded that he had been instructed by the medical staff on how to "manage his situation" and that the procedure he desired was "elective," and therefore, would not be authorized. (Compl., pp. 3-4; Inmate Grievance Form, 6/30/2010, attached to Compl.; Mot. to Cont., p. 1.)
Plaintiff filed a second inmate grievance form on August 16, 2010, alleging that "some nurse's negligence" had caused him to receive a different medication than he was prescribed over the course of the past two weeks. This grievance was denied and Plaintiff was informed he had only been receiving the medication he was prescribed. (Inmate Grievance Form, 8/16/2010, attached to Compl.)
On September 6, 2010, Plaintiff made a "sick call request," explaining that his condition had worsened. He was triaged that same day and informed that he should discuss his concerns with a prison doctor at an upcoming appointment. Thereafter, on September 15, 2010, Plaintiff was seen by a prison doctor, and again his request for an elective operation was denied. On September 17, 2010, Plaintiff contends he was given a depressant. (Sick Call Request, attached to Compl.; To Whom It May Concern, p. 1., attached to Compl.)
Proceeding in forma pauperis, Plaintiff filed his complaint on November 10, 2010. Defendant filed its motion to dismiss on January 7, 2011, and on January 13, 2011, Plaintiff filed his "motion to continue," which I have construed as his response to the motion to dismiss.
When ruling on a motion to dismiss, a court must accept the facts pleaded in the complaint as true and construe them in the light most favorable to the plaintiff. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000). A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). However, a plaintiff must provide more than a formulaic recitation of a claim's elements that amounts to mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 570).
On a motion to dismiss, a pro se complaint is held to a less stringent standard than a formal pleading drafted by lawyers, and it should be dismissed only if it appears "beyond a doubt that the plaintiff can prove no set of facts in support of [their] claim." Olaniyi v. Alex Cab Co., 239 Fed.Appx. 698, 699 (3d Cir. 2007) (citing McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996)).
As discussed below in further detail, Plaintiff has not properly alleged municipal liability because he has not alleged that his constitutional injuries were the result of a government policy or procedure. Moreover, Plaintiff has only sued the Berks County Prison and not individual employees of the prison or medical staff, some of whom are not even identified by Plaintiff. Because Plaintiff is proceeding pro se, I will assume for his benefit that he is also raising claims against the prison's medical staff and I will address those claims. As required, I will also consider whether Plaintiff should be given an opportunity to amend his complaint. Reeves v. Lapin, 373 Fed.Appx. 143, 144 (3d Cir. 2010) (citing Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245-46 (3d Cir. 2008)("District courts must permit a curative amendment before dismissing a complaint unless amendment would be inequitable or futile.").)
Pursuant to 42 U.S.C. § 1983, a plaintiff must demonstrate that his or her federal constitutional or statutory rights were violated by a person acting under the color of state law. See Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993). Plaintiff appears to claim that: (1) he was deprived of his Eighth Amendment right to receive proper medical treatment, and (2) his First ...