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Gabriel Plummer v. Tony Iannuzzi

October 19, 2011

GABRIEL PLUMMER ,
PLAINTIFF
v.
TONY IANNUZZI, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Plaintiff Gabriel Plummer, ("Plummer"), a state inmate presently incarcerated at the State Correctional Institution at Mahanoy ("SCI-Mahanoy"), Frackville, Pennsylvania, commenced this civil rights action against Tony Iannuzzi, P.A. ("Iannuzzi") and Marva J Cerullo, CHCA ("Cerullo") on February 11, 2011. (Doc. 1.) Although the complaint was dismissed pursuant to 28 U.S.C. § 1915(e)(2(B)(ii) on February 25, 2011, Plummer was afforded the opportunity to amend the complaint to cure the deficiencies that resulted in the dismissal. (Doc. 6) He took advantage of this opportunity by filing an amended complaint on May 11, 2011. (Doc. 10.) Ripe for disposition are motions to dismiss Plummer's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) filed on behalf of both defendants. (Docs. 19, 20.) For the reasons set forth below, the motions will be deemed unopposed and granted.

I. Procedural Background

On August 5, 2011, motions to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), were filed on behalf of both defendants. (Docs. 19, 20.) Plummer failed to oppose the motions. On September 27, 2011, he was directed to file briefs in response to defendants' motions to dismiss on or before October 11, 2011. (Doc. 23). He was cautioned that his failure to timely file responsive briefs would result in the motions being deemed unopposed. (Id.) The deadline has passed and Plummer has failed to oppose the motions. Consequently, the motions are deemed unopposed.

II. Standard of Review

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 Atlantic Corp. v. Twombly, 550 U.S. 544 (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, 556 U.S. 662, 129 S.Ct. 1937, 1949 (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, to prevent a summary dismissal, civil complaints must now allege "sufficient factual matter" to show that a claim is facially plausible. See Iqbal, 556 U.S. 662, 129 S.Ct. at 1949--50; see also Twombly, 505 U.S. at 555, & n. 3; Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). This then "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. 662, 129 S.Ct. at 1948.

The Third Circuit now requires that a district court must conduct the two-part analysis set forth in Iqbal when presented with a motion to dismiss:

First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. [Iqbal, 129 S.Ct. at 1949--50]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief." [Id.] In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to "show" such an entitlement with its facts. See Phillips, 515 F.3d at 234--35. As the Supreme Court instructed in Iqbal, "[w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.' "Iqbal, [129 S.Ct. at 1949--50]. This "plausibility" determination will be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. Fowler, 578 F.3d at 210--211.

This Court is mindful, however, that the sufficiency of a pro se pleading must be construed liberally in favor of plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89 (2007). Moreover, a complaint should not be dismissed with prejudice for failure to state a claim without granting leave to amend, unless it finds bad faith, undue delay, prejudice or futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110--111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000).

III. Allegations of Amended Complaint

Plummer alleges that on September 22, 2004, he was diagnosed with Scoliosis*fn1 and mild low back pain. (Doc. 10, at 1, ¶ 11.) When he was first committed to the custody of the Pennsylvania Department of Corrections ("DOC") on February 5, 2006, he made medical staff aware of his medical history, including his Scoliosis diagnosis. (Id. at ¶¶ 14, 16.)

He alleges that since he has been incarcerated at SCI-Mahanoy, defendant Iannuzzi has ignored his requests for treatment for Scoliosis and defendant Cerullo has failed to intervene, "dispite [sic] Plaintiff providing her with his medical records documenting his diagnosis and treatment of ...


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