The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is a report of Magistrate Judge Mannion (doc. 39) in which he recommends that the motion to dismiss filed by defendants Prime Care, Inc., Dawn Rider, and Leann Roan ("the Medical Defendants") be denied in part and granted in part. Plaintiff and the Medical Defendants have filed objections to the report and recommendation and the matter is ripe for disposition.
Plaintiff, Feldon Bush, Jr., an inmate at Centre County Correctional
Facility ("CCCF"), filed an action pursuant to 42 U.S.C. § 1983
alleging violations of his Eighth Amendment rights.*fn1
For purposes of addressing the report and recommendation,
Plaintiff alleges that the Medical Defendants were deliberately
indifferent to his serious medical needs by failing to provide
treatment for serious
tooth decay and infection, which caused irreparable damage to his
teeth and gums. (Doc. 1, at p. 3). Plaintiff alleges further failures
by Defendant Prime Care Inc.'s policies and procedures that restrict
his rights to medical care. (Id.)
The Medical Defendants claim that Plaintiff failed to exhaust his administrative remedies and failed to demonstrate deliberate indifference. The magistrate judge recommended that the motion to dismiss as to this claim be denied. He further recommended that the motion to dismiss be granted on the issues of failure to file Certificates of Merit on the state law tort claims and failure to demonstrate violations resulting from Prime Care policies.
II. Plaintiff's Objections
Plaintiff claims that Prime Care, Inc. should not be dismissed from this action. To hold Prime Care liable under § 1983, Plaintiff must show that there is a policy or custom that lead to the alleged constitutional violation. Natale v. Camden County Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003). Bush argues that the Department of Corrections and Prime Care, through their contract agreed to cut corners and save money on providing medical care. Bush cites to the contract attached to his objections. He does not cite to any paragraphs which support his theory that the contract sets forth a policy or procedures designed to constitutionally deprive Plaintiff of proper medical care. His objections will be overruled.
III. Defendants' Objections
Defendants, Rider and Roan, object to the report and recommendation which recommends that their motion to dismiss be denied. Bush alleges that, when he met with a dentist, no oral examination was able to be done because the dentist had no instruments and that, because of the delay in transferring him from CCCF to SCI-Rockview for better treatment, he suffered additional decay and infection. The magistrate judge held that such allegations sufficiently asserted claims against Roan and Rider. (Doc. 39 at p. 9.) In their objections, Roan and Rider claim that neither of them had any involvement in Bush's averment of delay in his transfer to SCIRockview nor his claim of insufficiency of oral exam (the dental exam without instruments). (Doc. 41 at p. 3.)
A review of the complaint shows the following accusations against these two defendants:
PLAINTIFF BUSH WAS TOLD BY THE DENTIST HE HAS TO WAIT UNTIL HE IS SENT BACK TO SCI ROCKVIEW FOR TREATMENT, AND THAT THERE IS NOTHING HE CAN DO. NURSE DAWN TOLD PLAINTIFF BUSH THAT SHE TALKED TO THE STAFF AT ROCKVIEW AND WAS TOLD THE SAME.
NURSE AIDE LEE ANN REFUSE TO GIVE PLAINTIFF BUSH HIS PROPER MEDICATION AND REFUSE TO GIVE HIM ORASOL GEL PACKETS FOR RELIEF OF PAIN. (Doc. 1 at p. 4.)
These averments do not show that either Rider or Roan had any involvement in the delaying of his transfer to SCI-Rockview. The fact that it is alleged Roan failed to give Plaintiff Orasol Gel packets for relief of pain does not support a claim of deliberate indifference. There is no indication that this was a required prescription that was deliberately withheld as opposed to a request for relief that a professional nurse did not think was warranted. As ...