The opinion of the court was delivered by: Judge Rambo
Plaintiff Clarence J. Kirk ("Kirk"), an inmate currently confined at the State Correctional Institution in Pittsburgh, Pennsylvania, initiated this civil rights action with a complaint filed pursuant to the provisions of 42 U.S.C. § 1983 on April 11, 2011, as amended June 13, 2011. (Doc. 13.) Named as Defendants are several prison officials and medical care providers at Kirk's former place of confinement, the Wyoming County Correctional Facility ("WCCF") in Tunkhannock, Pennsylvania.*fn1
In his amended complaint, Kirk alleges that Defendants were deliberately indifferent to his serious medical needs with respect to an injury he sustained in April 2009. He also alleges an access to the courts claim and seeks to hold Defendant Wyoming County liable for his injuries.
Presently before the court are two motions to dismiss the amended complaint, filed by Defendant Dr. Russell and WCCF Defendants. (Docs. 16 & 17.) For the reasons set forth below, the motions to dismiss will be granted in part and denied in part, and Kirk will be permitted to amend his complaint.
In the amended complaint, Kirk provides the following 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 amended complaint will be accepted as true and viewed in a light most favorable to Kirk.
On April 19, 2009, while proceeding from the second-tier level to the lower level day room at WCCF, Kirk tripped on a metal strip protruding on the steps. (Doc. 13 at 2.) He fell down approximately eight (8) to ten (10) steps and landed on his left shoulder and middle back, and twisted his ankle. (Id.) The second shift sergeant, a Sergeant Smith, gave Kirk an ice pack for his ankle and told him to submit a sick call request, if necessary. (Id.) Sometime thereafter, Kirk submitted a sick call slip, requesting to be seen immediately. (Id.)
After several days, during which Kirk experienced "intense suffering," on April 23, 2009, Nurse Pendleton called Kirk to the medical department. (Id.) Despite his pain, Nurse Pendleton gave Kirk only an ace bandage and a pair of velcro-strip sandals, and instructed him to continue applying ice packs. (Id.) Subsequently, Kirk wrote out several request slips addressed to Warden Ameigh and Lieutenant Howell, requesting x-rays. (Id.) As stated by Kirk, "eventually" Dr. Russell examined him and mistakenly ordered x-rays of his right shoulder rather than his left. (Id. at 2-3.) When Kirk asked Dr. Russell to examine and take an x-ray of his ankle, Dr. Russell responded, "We're not talking about that now." (Id. at 3.) Dr. Russell then asked Kirk if he believed in God, and when Kirk responded that he did, Dr. Russell stated, "Pray for a healing!" (Id.)
Thereafter, Kirk continued to submit sick call requests, but they were ignored. (Id.) However, on August 12, 2009, Kirk was transported to Geisinger Medical Center for care. (Id.) Kirk alleges that he continues to suffer from severe shoulder, ankle, and back injuries. (Id.)
In addition to these allegations, Kirk avers an access to the courts claim against Warden Ameigh. His claim, as fully stated, is as follows:
Count 1, as to Warden Ameigh, denial to "Access to Courts." Via, the Wyoming County Jail has no access to photo copy machines neither . . . does it have access to legal materials, carbon paper, pencils, pens, for indigent inmates, no law library or materials for legal research. Disrup[ted] incoming call to plaintiff's potential attorney's the least being plaintiff should have been notified of Attorney(s) trying to contact him. (Id.) Finally, Kirk claims that the lack of a policy, regulation, or directive as to "proper functions of its County Prison" gave rise to the constitutional violations in this case. (Id. at 4.)
On April 11, 2011, Kirk filed his complaint. (Doc. 1.) On April 25, 2011, the court issued an order directing service of the complaint. (Doc. 6.) Defendant Dr. Russell filed a motion to dismiss on June 9, 2011. (Doc. 12.) However, prior to filing a brief in support of that motion to dismiss, Kirk filed an amended complaint. (Doc. 13.) As a result, the court issued an order deeming moot Defendant Dr. Russell's motion to dismiss. (Doc. 15.) Thereafter, WCCF Defendants and Defendant Dr. Russell filed motions to dismiss the amended complaint. (Docs. 16 & 17.) Briefs in support of the motions were also filed. (Docs. 18 & 20.) Kirk filed separate briefs in opposition to the motions on July 12 and 14, 2011, respectively. (Docs. 21 & 24.) Neither set of Defendants have filed a reply brief. Thus, the motions are ripe for disposition.
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 ...