The opinion of the court was delivered by: Judge Caputo
(MAGISTRATE JUDGE BLEWITT)
Presently before the Court is the Report and Recommendation of Magistrate Judge Thomas M. Blewitt, (Doc. 8), recommending that this action be dismissed. The Court will adopt the Magistrate Judge's Report and Recommendation insofar as it recommends dismissing the claims against all Defendants and granting Plaintiff's in forma pauperis Motion (Doc. 5), but will reject the Magistrate Judge's determination that leave to amend would be futile. The matter will be recommitted to the Magistrate Judge for further proceedings.
At all relevant times, Plaintiff James E. Dennis was incarcerated at USP-Canaan in Waymart, Pennsylvania. Dennis asserts he was denied medical care in violation of the Eighth Amendment, and has brought this Bivens action*fn1 against three USP-Canaan officials, seeking $250,000*fn2 and additional medical care.
On November 27, 2008, Dennis fell from his prison bunk and broke his wrist. Defendant Richard Jensen refused Plaintiff's request for a cast, giving him only a rubber wrist brace. On December 3, 2008, Defendant Mary Jane Denuzzia conducted an x-ray, also refusing Dennis's request for a cast. The next day, Defendant Jayne Vander HeyWright expressed concern about Dennis's wrist, but responded to his request for a cast by saying he would be receiving outside treatment soon. It was not until February 23, 2009 that Dennis was evaluated by an Orthopedic Surgeon, who recommended surgery for a "non-union" of the scaphoid bone. The surgeon also noted that a cast should have been applied. On May 26, 2009, Dennis received surgery to correct this injury, though he claims that his wrist still requires additional medical treatment.
The Magistrate Judge screened Dennis's application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.*fn3 Finding that Dennis failed to plead sufficient Eighth
Amendment claims, the Magistrate Judge recommended that Dennis's case be dismissed with prejudice as against all Defendants, but granted Dennis's in forma pauperis motion solely as to the filing of his Complaint. In his objection to the Magistrate Judge's Report and Recommendation (Doc. 11), Dennis argues that the Magistrate Judge misapprehended his arguments and failed to provide reason for dismissing with prejudice.*fn4
I. Legal Standard for Reviewing a Report and Recommendation
Where objections to the Magistrate Judge's report are filed, the court must conduct a de novo review of the contested portions of the report, Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(c)), provided the objections are both timely and specific, Goney v. Clark, 749 F.2d 5, 6--7 (3d Cir. 1984). In making its de novo review, the court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Although the review is de novo, the statute permits the court to rely on the recommendations of the magistrate judge to the extent it deems proper. See United States v. Raddatz, 447 U.S. 667, 675--76 (1980); Goney, 749 F.2d at 7; Ball v. United States Parole Comm'n, 849 F. Supp. 328, 330 (M.D. Pa. 1994). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At the very least, the court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376--77 (M.D. Pa. 1998). As such, the Court reviews the portions of the Report and Recommendation to which the Plaintiff objects de novo. The remainder of the Report and Recommendation is reviewed for clear error.
II. Denial of Medical Care
The Eighth Amendment prohibits "unnecessary and wanton infliction of pain," which includes "deliberate indifference to serious medical needs of prisoners." Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). Such a claim requires that a plaintiff allege "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden County Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). Malpractice is not alone sufficient. Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). Instead, it must be shown that an official knowingly disregarded an excessive medical risk--"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). "Deliberate indifference may be manifested by an intentional refusal to provide medical care, delayed medical treatment for non-medical reasons, a denial of prescribed medical treatment, or a denial of reasonable requests for treatment that results in suffering or risk of injury." Beckett v. Department of Corrections, Civil No. 1:CV--10--00050, 2011 WL 4830787 at * 11 (M.D. Pa. Oct. 12, 2011).
Dennis alleges that after having broken his wrist, he requested that Defendant Richard Jensen supply him with a cast. Instead, Dennis was given a wrist brace and an xray was scheduled. I agree with the Magistrate Judge's determination that, as pleaded, such a denial does not amount to an Eighth Amendment violation. Even if a cast was medically required, this omission alone indicates, at most, negligent treatment of a broken wrist. Dennis has failed to include any further facts or allegations indicating that Jensen realized a substantial risk of serious harm, or that his refusal to apply a cast was based on a deliberate indifference ...