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Angel Soto v. Thomas Leskowsky

September 27, 2011

ANGEL SOTO,
PLAINTIFF
v.
THOMAS LESKOWSKY, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Rambo

MEMORANDUM

On November 16, 2010, Plaintiff Angel Soto ("Soto"), an inmate currently confined at the State Correctional Institution in Dallas, Pennsylvania ("SCI-Dallas"), filed a civil rights complaint pursuant to the provisions in 42 U.S.C. § 1983. (Doc. 1.) Named as Defendants are a number of prison officials and medical personnel at SCI-Dallas.*fn1 In his complaint, Soto alleges that on March 18, 2008, while working in the mattress factory at SCI-Dallas, he sustained an injury to his right bicep muscle. He further avers that after initially receiving treatment at the infirmary, the subsequent treatment he received was unnecessarily delayed. This delay, Soto claims, caused his bicep injury to become inoperable and caused him to lose functionality in his arm.

Before the court are two motions to dismiss the complaint, filed by two sets of Defendants. (Docs. 10 & 19.) For the reasons set forth below, the motions will be granted in part and denied in part.

I. Background

A. Facts

In the complaint, Soto provides the following factual background with respect to his claims. The court notes that for purposes of disposition of the instant motions to dismiss, the factual allegations asserted in the complaint will be accepted as true and viewed in a light most favorable to Soto.

In his complaint, Soto alleges that on March 18, 2008, sometime between 2:00 p.m. and 3:00 p.m., while working in SCI-Dallas' mattress factory, he felt something "'pop' in his arm and he also felt a burning sensation in his bicep muscle." (Doc. 1-1 at 3.) He informed the foreman, and was permitted to go to the prison infirmary at that time. (Id.) At the infirmary, he was examined by Defendants Nurse Harris, Physician Assistant O'Brien, Health Care Administrator Leskowsky, with Defendant Nurse Waligun also present. (Id.) According to Soto, these Defendants recognized an injury to his arm "which included an obvious visual deformation in the appearance of [Soto's] bicep muscle which had snapped." (Id.) Soto was prescribed Ibuprofen for his injury. (Id. at 5.)

The following day, Soto was summoned to sick call and advised to perform light work duties for a few weeks. (Id.) In addition, an appointment was made for Soto to see a physical therapist on March 26, 2008. (Id.) However, he was not seen by a physical therapist until April 7, 2008. (Id.) The therapist's recommendation was for therapy and surgery on his right arm. (Id.)

Nearly two months after the injury, on May 8, 2008, Soto was seen by an outside orthopedic surgeon, a Dr. Raklewicz, as ordered by Defendant Dr. Bohinski, SCI-Dallas' Medical Director. (Id. at 5, 6.) Dr. Raklewicz referred Soto to another orthopedic surgeon, a Dr. Mattucci, whom he saw the following day, May 9, 2008. (Id. at 5.) Soto states that both Drs. Raklewicz and Mattuci diagnosed him with a "right proximal bicep rupture." (Id.) He also avers that both doctors "clearly informed [him] that nothing could be done for him because the prison waited too late to send him out for surgery." (Id. at 5) (emphasis in original). Finally, he avers that as a result of "inordinate delay in receiving necessary surgery to repair the ruptured muscle in his arm," he will suffer "an irreparable injury of anywhere from 5% to 10% of his strength in his right arm." (Id.)

Based on the foregoing allegations, Soto asserts a claim that Defendants have been deliberately indifferent to his medical needs in violation of his Eighth Amendment right against cruel and unusual punishment. Specifically, he makes the following claims against certain Defendants. Initially, he claims that Defendants Nurses Waligun and Harris witnessed his injury on March 18, 2008, but remained silent rather than alert prison medical supervisory staff that he would require surgery within a few days. (Id. at 5-6.) Further, he claims that Defendants Ginocchetti, Leskowsky, and Bohinski, former Health Care Administrator, Director of Health Care Services, and Medical Director, respectively, were on duty on March 18, 2008, and knew that Soto had sustained an injury that would require immediate surgery, yet remained silent. (Id. at 6.) Additionally, he claims that Defendant Walsh, a Deputy Superintendent, knew of Soto's injury because he responded to a related grievance report, yet "stood silent" and did not recommend immediate surgery. (Id.) He also claims that Defendants Walsh and Klopotoski, a former Superintendent, "had layman's knowledge [that Soto] required immediate surgery to repair the tear." (Id.)

Soto also alleges that all Defendants "had discussions among themselves about [Soto]'s condition but agreed to stay silent and acquiesce in not recommending immediate surgery to repair [Soto]'s muscle." (Id.) To that end, he asserts that "the Bureau of Health Care Services for the Dep't of Corrections has implemented a policy or adopted a custom of agreeing not to recommend immediate surgical repairs of traumatic muscle injury, or tendon, to avoid excessive healthcare costs for prisoners." (Id.) Also, he claims that this policy "was to pursue a less efficacious course of treatment based upon the state budget crisis and their belief that prisoners are expendable and do not merit adequate healthcare." (Id. at 7.) More specifically, he claims that "Defendants, in order to have the appearance of conforming their conduct to law, implemented a policy or custom to schedule consults with outside specialist, but so remote from the injury, as to know in advance that the specialist would not recommend any surgery." (Id.) In a related claim, he asserts that "Defendants Walsh and Klopotoski, along with the Bureau of Health Care Services, entered into an agreement with the medical staff, in particular the Corrections Health Care Administrator and the Medical Director, to disallow surgical repair of . . . traumatic muscle, tendon, or ligament injuries within the optimal period recognized by the medical community as affording the most chance of success, i.e. within at least three to seven days of the initial injury."*fn2 (Id.) Finally, he claims that Defendant Ellers, the Director of the Bureau of Health Care Services, "implemented and approved a policy to pursue a less efficacious course of treatment for prisoners who experience a serious muscular injury . . . ." (Id. at 7-8.)

B. Procedural History

Soto filed his complaint on November 16, 2010. (Doc. 1.) After waiving service of the complaint, (see Doc. 9), Defendants Bureau of Health Care Services, Ellers, Ginocchetti, Harris, Klopotoski, Leskowsky, Waligun, and Walsh ("DOC Defendants"), filed a motion to dismiss the complaint on February 3, 2011, (Doc. 10). Defendants Bohinski and O'Brien ("Medical Defendants") also waived service of the complaint, (see Docs. 13 & 14), and filed a motion to dismiss the complaint on March 8, 2011 (Doc. 19). Soto has filed a brief in opposition to the motions, (Doc. 26), but neither set of Defendants filed reply briefing. Thus, the motions are ripe for disposition.

II. Standard of Review - Motion to Dismiss

Among other requirements, a sound complaint must set forth "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This statement must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "Fair notice" in Rule 8(a)(2) "depends on the type of case -- some complaints will require at least some factual allegations to make out a showing that the pleader is entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quotation omitted). "[A] situation may arise where, at some point, the factual detail in a complaint is so undeveloped that it does not provide a defendant the type of notice of claim which is contemplated by Rule 8." Id. A plaintiff must provide "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action" to show entitlement to relief. Twombly, 550 U.S. at 555; accord, e.g., Phillips, 515 F.3d at 231-32; Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (the court is not "compelled to accept unsupported conclusions and unwarranted inferences or a legal conclusion couched as a factual allegation.") (quotations and citations omitted)); Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). See also Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1949 (2009) (recognizing that Rule 8 pleading standard "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation") (quoting Twombly, 550 U.S. at 555).

A defendant may attack a complaint by a motion under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In deciding a motion to dismiss under Rule 12(b)(6), the court is required to accept as true all of the factual allegations in the complaint, Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007), and all reasonable inferences permitted by the factual allegations, Watson v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), viewing them in the light most favorable to the plaintiff, Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007). Accord Phillips, 515 F.3d at 233. If the facts alleged are sufficient to "raise a right to relief above the speculative level" such that the plaintiff's claim is "plausible on its face," a complaint will survive a motion to dismiss. Twombly, 550 U.S. at 555, 570; Phillips, 515 F.3d at 234; Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007); Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir. 2007). See Iqbal, 129 S. Ct. at 1949 (explaining a claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged"). Further, when a complaint contains well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950. However, a court is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (quoting Twombly, 550 U.S. at 555). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id. at 1949 (citing Twombly, 550 U.S. at 555).

"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (citations omitted); see also Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may consider "undisputedly authentic document[s] that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] document[s]." Pension Benefit, 998 F.2d at 1196. Additionally, "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002) (citation omitted); see also U.S. Express Lines, Ltd. v Higgins, 281 F.3d 383, 388 (3d Cir. 2002) ("Although a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss into one for summary judgment.") (internal quotation omitted). However, the court may not rely on other parts of the record in making its decision. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003); Youse v. Carlucci, 867 F. Supp. 317, 318 (E.D. Pa. 1994). Such a complaint "must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson, 127 S. Ct. at 2200 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

Finally, in the Third Circuit, a court must grant leave to amend before dismissing a civil rights complaint that is merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001); Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000). "Dismissal without leave to amend is justified only on the ...


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