The opinion of the court was delivered by: Judge Caputo
On January 7, 2011, Ariel Lopez-Perez, an inmate formerly housed at the Dauphin County Prison (DCP) in Harrisburg, Pennsylvania,*fn1 filed the present civil action alleging he was assaulted by Corrections Office (CO) Tonya M. Brant and then denied medical care fo his injuries. Doc. 1, Compl. Also named as a defendant is DCP's Warden, Dominick L. DeRose.
On June 10, 2011, Defendant DeRose filed a motion to dismiss the Complaint against him based on Mr. Lopez-Perez's failure to allege his personal involvement in the alleged constitutional violations. Doc. 23, Mot. to Dismiss. Although a timely supporting brief was filed by Defendant DeRose, and properly served on Mr. Lopez-Perez at SCI-Huntingdon, Mr. Lopez-Perez has failed to file an opposition brief or seek an enlargement of time to do so. Additionally, on June 17, 2011, the Court directed Mr. Lopez-Perez to provide us with sufficient information to effect original service on CO Brant after her Waiver of Service was returned undeliverable and unexecuted with the notation that she was "no longer affiliated with the DCP" and there was no forwarding address for her. Doc. 21, Unexecuted Waver of Service. To date, Mr. Lopez-Perez has not provide the Court with any additional information as to this defendant.
For the following reasons, Defendant DeRose's motion will be granted and the case dismissed as to CO Brant pursuant to Fed. R. Civ. P. 4(m).
A claim may be dismissed under Fed. R. Civ. P 12(b)(6) for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A valid complaint requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). In general, when ruling on a motion to dismiss pursuant to 12(b)(6), a court may only consider documents that are attached to or submitted with the Complaint, and matters of public record. Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002). The court may also consider "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, 288 F.3d at 560 (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).
The Third Circuit Court of Appeals has held that a district court must conduct a three-part analysis to determine whether a claim survives a motion to dismiss. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011)(citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947-50, 173 L.Ed.2d 868 (2009)). The "inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged." Id.
To survive a motion to dismiss, a complaint must allege sufficient facts, if accepted as true, that state "a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when a plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at , 129 S.Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at , 129 S.Ct. at 1949. The court is " 'not bound to accept as true a legal conclusion couched as a factual allegation.' " Id. at , 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1965); see also PA Prison Soc. v. Cortes, 622 F.3d 215, 233 (3d Cir. 2010). Even though pro se complaints must be liberally construed a plaintiff is required to set forth "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at , 129 S.Ct. at 1949. If a party opposing a motion to dismiss does not "nudge [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570, 127 S.Ct. at 1974.
Finally, pro se pleadings are held to a less stringent standard than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). However, under no circumstance is a court required to accept bald assertions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n. 8 (3d Cir. 1997). Pro se litigants are to be granted leave to file a curative amended complaint even when a plaintiff does not seek leave to amend, unless such an amendment would be inequitable or futile. See Fletcher--Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007). However, a complaint that sets forth facts which affirmatively demonstrate that the plaintiff has no right to recover is properly dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
III. Allegations of the Complaint*fn2
On June 12, 2010, Mr. Lopez-Perez was housed at the DCP. He was double celled with another inmate, Miguel Rivera. Doc. 7, Lopez-Perez Aff. at CM/ECF pp. 1-2.*fn3 On that day, CO Brant told Mr. Lopez-Perez to get out of his cell "you crazy illegal immigrant so [she] [could] search" it. Id. Mr. Lopez-Perez complied. At that time Mr. Lopez-Perez was called to the center desk by another corrections officer and told to report to the medical department for his diabetes medication. Id. at CM/ECF p. 2. Mr. Lopez-Perez advised the officer that his identification card was in his cell. Id. When Mr. Lopez-Perez returned to his cell to retrieve his identification card, CO Brant "started yelling at [him] and was very disrespectful towards" him. Id. As a result, Mr. Lopez-Perez "just stood there in front of [his] cell and didn't say anything else to her." Id. Five to ten minutes later, Mr. Lopez-Perez was again called to the center desk and asked why he had not reported to the medical unit. Id. at CM/ECF p. 3. When Plaintiff advised that CO Brant would not let him retrieve his identification card, the officer ordered him to return to his cell, get his card and then report to the medical unit. Id. This time CO Brant gave Plaintiff his card, but again was verbally abusive. Id.
When Mr. Lopez-Perez started walking away from the cell, CO Brant called him back and took his identification card. Id. She then handcuffed one of his wrists and attached the other handcuff to a bunkbed located outside of his cell "for no reason". Id. at CM/ECF pp. 3-4. Mr. Lopez-Perez states that his "right wrist was handcuffed to the bunkbed very tightly." Id. at p. 4. CO Brant then left the block and reappeared with a book that she sat down to read. Id. After approximately 10 minutes, a Sergeant came to the block, removed Mr. Lopez-Perez's handcuffs, and took him to a different housing unit and placed him in a holding cell. Id. Later, Mr. Lopez-Perez was transferred to the disciplinary block. Id.
Later that evening Nurse Melissa, whom Mr. Lopez-Perez knew, "attended to [him] medically." Id. at CM/ECF pp. 4-5. After informing her that his wrist hurt, she placed him on the list to see the physician the next day. Id. at CM/ECF p. 5. The doctor examined Mr. Lopez-Perez's swollen wrist and gave him pain medication. Id. A week later, after complaining of continued wrist pain, Mr. Lopez-Perez saw the doctor a second time. Id. The doctor advised Mr. Lopez-Perez that "he needed surgery for [his] injured wrist but that [he] would have to wait ...