The opinion of the court was delivered by: Judge Munley
Before the court is Magistrate Judge J. Andrew Smyser's report and recommendation which proposes that defendants' motion to dismiss (Doc. 18) be granted in part and denied in part. Plaintiff Giamboi and Defendant Kathryn McCarty object to the report and recommendation. The matter is fully briefed and ripe for disposition.
Plaintiff Andrew Giamboi is an inmate incarcerated at the State
Correctional Institution at Coal Township("SCI-Coal
Township").(Compl. ¶ 3 (Doc. 1)). For several years, plaintiff suffered from
sciatica-like symptoms. (Id. ¶ 17). Plaintiff went to sick call
several times about his
symptoms. (Id. ¶ 19). Prison Health Services ("PHS"),*fn2
including the individually named defendants in plaintiff's
complaint, limited plaintiff's access to doctors, appropriate
diagnostic testing and other care. (Id. ¶
20). Between November 2006 and February 2009, plaintiff made repeated
complaints about back pain radiating down his legs. An MRI was
required to determine the cause of the plaintiff's symptoms. However,
he was not given an MRI. Instead, in November 2006, plaintiff was
given a standard xray which did not reveal acute pathology. Plaintiff
saw multiple practitioners, including defendants Dr. Michael Weisner,
Dr. Stanley Stanish, Ann Batdorf, a certified nurse, Jesse Colabine, a
certified physician's assistant, and Amy Wescott, employed in an
unidentified capacity. None of the defendants ordered an MRI. They
dismissed plaintiff's complaints as sciatica and gave him Motrin, an
over-the-counter pain reliever. (Id. ¶¶ 23, 26).
In the beginning of 2009, plaintiff's pain became unbearable. Plaintiff was developing Cauda Equina Syndrome, a medical emergency that requires immediate MRI of the lumbar spine to determine if a lesion, abscess or "free body" in the spinal canal is pressing on the nerves. (Id. ¶ 28). Defendants still did not give him an MRI. Instead, a standard x-ray of his lumbar spine was taken, which did not reveal any cause of plaintiff's symptoms. (Id. ¶ 30).
On July 7, 2009, plaintiff saw Defendant Weisner, who prescribed plaintiff medication. (Id. ¶ 35). Plaintiff asked Weisner if he would diagnose the sciatica as chronic. (Id.) Weisner responded that he could see plaintiff was in pain, however, PHS and medical personnel at SCI-Coal Township do not diagnose sciatica as chronic because many people claim to have it. (Id.)
By July 10, 2009, plaintiff lost all feeling in his penis, testicles, perineum, anus, most of his buttocks and the back inside of his upper thighs. (Id. ¶ 36). He also lost the ability to have a bowel movement and to use the muscles involved in urination. (Id.) Plaintiff asked a block officer to contact the medical department. Hours later a nurse came to examine the plaintiff.
The next morning, the medical department called the plaintiff. A nurse practitioner said that plaintiff could not possibly lose feeling without being completely paralyzed. (Id. ¶ 38). The nurse put a finger in plaintiff's sphincter, said that everything seemed to be in order and sent plaintiff away. (Id.)
Over the next few days, plaintiff suffered from excruciating pain. He again went to the medical department, but they simply gave him enemas and attempted to loosen his bowel. Despite the plaintiff repeatedly informing the defendants of his severe pain and the loss of feeling in his body, defendants only treated him for constipation. (Id. ¶ 39).
Only after plaintiff's mother intervened did PHS and its medical personnel seriously consider plaintiff's condition. They referred plaintiff to an outside neurosurgeon, Dr. De Luna. Dr. De Luna conducted imaging studies which revealed a herniated disc with a "free body." (Id. ¶ 41). Dr. De Luna successfully removed the "free body"during surgery. However, too much time had elapsed and plaintiff's symptoms have not improved.
Plaintiff still suffers from saddle anesthesia, urinary retention, inability to ejaculate, loss of rectal sphincter control resulting in frequent incontinent accidents, soiling of clothes and more than twenty bowel movements per day. (Id. ¶ 43). Plaintiff has no hope that he will recover any of his lost physiological functions. (Id. ¶ 44).
Plaintiff filed a complaint on January 24, 2011. (Doc. 1). Plaintiff names Prison Health Services, Inc., a national company contracted to provide healthcare to prisons and jails, and PHS Correctional Healthcare as defendants. Plaintiff also names the following individuals as defendants: Kathryn McCarty, a Health Care Administrator for SCI-Coal Township; Michael Weisner, a doctor employed or contracted by PHS; Stanley Stanish, a doctor employed or contracted by PHS; Ann Batdorf, a certified registered nurse employed by PHS; Jesse Colabine, a certified physician's assistant employed by PHS; and Amy Wescott, employed in an unidentified capacity by PHS to provide health care to inmates at SCI-Coal Township. (Id. ¶¶ 7-12).
Plaintiff claims that the defendants' actions caused his permanent partial paralysis and other injuries and damages. He brings this action pursuant to 42 U.S.C. § 1983, claiming defendants' conduct constituted cruel and unusual punishment under the Eighth Amendment of the United States Constitution. (Id. ¶ 60). Plaintiff also claims that the defendants acted negligently in breaching their duty of care owed to the plaintiff. Plaintiff asserts damages for severe pain, permanent partial paralysis, reduced earning capacity, future medical expenses, past and future embarrassment and humiliation, and past and future loss of ability to enjoy the pleasures of life. (Id. ¶ 45).
Defendants filed a motion to dismiss the complaint on March 21, 2011. (Doc. 18). The motion was referred to Magistrate Judge Smyser who issued a report and recommendation on June 2, 2011. (Doc. 44). Magistrate Judge Smyser recommended that the Eighth Amendment claims against Defendants Weisner, Stanish, Batdorf, and Colabine be dismissed, as the allegations are insufficient to allege deliberate indifference. He recommended that the Eighth Amendment claims against Defendants PHS and PHS Correctional based on their policies or customs regarding saving money, managing potential litigation and failing to train be dismissed. He recommended that the motion to dismiss otherwise be denied. He also recommended that the motion to dismiss filed by Defendant McCarty be denied. He recommended that plaintiff be granted leave to file an amended complaint. Plaintiff and Defendant McCarty object to the report and recommendation, bringing the case to its present posture.*fn3 JURISDICTION
The court has federal question jurisdiction over this case brought under § 1983 for violation of plaintiff's constitutional rights. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). LEGAL STANDARD
In disposing of objections to a magistrate judge's report and recommendation, we make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(c); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. We may also receive further evidence or recommit the matter to the magistrate judge with instructions. Id.
Before the court is the magistrate judge's recommendation that we grant in part and deny in part defendant's motion to dismiss for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6).
When a 12(b)(6) motion is filed, the sufficiency of the complaint's allegations are tested. Granting the motion is appropriate if, accepting as true all the facts alleged in the complaint, the plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," or put another way, "nudged [his or her] claims across the line from conceivable to plausible." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must describe "enough facts to raise a reasonable expectation that discovery will reveal evidence of" each necessary element of the claims alleged in the complaint. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). Moreover, the plaintiff must allege facts that "justify moving the case beyond the pleadings to the next stage of litigation." Id. at 234-35.
The issue is whether the facts alleged in the complaint, if true, support a claim upon which relief can be granted. In deciding a 12(b)(6) motion, the court must accept as true all factual allegations in the complaint and give the pleader the benefit of all reasonable inferences that can fairly be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). However, "we are not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, -- U.S. --, 129 S. Ct. 1937, 1949-50 (2009) (internal quotations omitted). The Supreme Court has counseled that a court examining a motion to dismiss should, "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Next, the court should make a context-specific inquiry into the "factual allegations in [the] complaint to determine if they plausibly suggest an entitlement to relief." Id. at 1950-51.
To decide a motion to dismiss, a court generally should consider only the allegations in the complaint, exhibits attached to the complaint, matters of public record and documents that form the basis of a claim. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
Magistrate Judge Smyser's report and recommendation suggest that the defendant's motion to dismiss be granted in part and denied in part. Plaintiff and Defendant McCarty both filed objections to the magistrate judge's ...