The opinion of the court was delivered by: Savage, J.
In this civil rights action brought pursuant to 42 U.S.C. § 1983, Sterling Robinson ("Robinson"), a state prisoner, contends that the defendants committed medical malpractice and violated his Eighth Amendment right to be free from cruel and unusual punishment. He claims that because the defendants inadequately treated his rib injury, did not administer an immediate x-ray, and did not provide him with the results of the x-ray and an EKG taken later, he has an improperly healed rib which causes pain. In his original complaint,*fn1 he named as defendants Frank Green ("Green"), the Warden of George W. Hill Correctional Facility ("GWHCF"); Linda Maher, the prison medical supervisor; and the "Medical Department." In an amendment, labeled as "Notice to Amend Lawsuit," Robinson supplied additional facts and increased his monetary demand. Doc. No. 8.
Robinson has withdrawn all claims against the "Medical Department." Pl.'s Supp. Mem. Opp'n to Mot. to Dismiss, at 8, Doc. No. 17. Defendant Maher was not served with a summons and a copy of the complaint within 120 days as required by Fed. R. Civ. P. 4(m). Despite having been given additional time to serve her, Robinson failed to take any steps to effectuate service. Therefore, the complaint was dismissed as to Maher. Doc. No. 22.
Green, the remaining defendant named in the complaint, has moved to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). He contends that Robinson has failed to state a claim against him in his capacity as the warden.
Motion to Dismiss Standard
When considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), all well-pleaded allegations in the complaint are accepted as true and viewed in the light most favorable to the plaintiff. Holk v. Snapple Beverage Corp., 575 F.3d 329, 334 (3d Cir. 2009) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). A complaint must contain enough facts to give the defendant "'fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). It must show that the plaintiff is entitled to relief.
A motion to dismiss for failure to state a claim "tests the legal sufficiency of plaintiff's claim." Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006). Where a bar to relief is apparent from the face of the complaint, dismissal under Rule 12(b)(6) may be granted. Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994)). In assuming the sufficiency of the complaint, Robinson's pro se pleadings are considered deferentially, affording him the benefit of the doubt where one exists. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003) (citing Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002)). With these standards in mind, we shall accept as true the facts as they appear in Robinson's complaint and draw all possible inferences from these facts in his favor.
On August 14, 2011, while an inmate at GWHCF, Robinson fell from his bunk, hitting his ribs on a drawer. He received no response to the emergency call button. The next day, he submitted a sick-call request for the injury to his ribs. Because he received no response to his request, he made a second sick call request on August 22, 2011. Again, this request was not answered.
Three months later, on November 24, 2011, Robinson filed a grievance complaining of a lack of medical attention. He did not claim he had severe pain or suffering since his August sick call requests.
On November 28, 2011, Robinson was seen by Catherine Halstead, a registered nurse. She gave him three Motrin. She did not order an x-ray. That same day, Maher responded to the grievance. She documented that Robinson was seen on November 28, 2011, and that no further treatment was necessary. She also advised him to purchase over the counter medication from the commissary.
On November 30, 2011, Robinson filed a grievance claiming that Halstead failed to give him adequate medical attention. He also submitted another sick call request. Two days later, he was seen by nurse "Kendra M."*fn3 After informing Robinson that from his evaluation there was nothing wrong with him, she declined to render any medical treatment.
On December 2, 2011, Robinson filed a Step Two grievance with Green,*fn4 claiming that his Step One grievance had been denied, his numerous sick call requests went unanswered, and he was denied an x-ray and prescription medication. He received no response to this grievance.
After he filed the Step Two grievance, Robinson's sick calls continued to go unanswered and he believed he had to claim chest pain in order to receive treatment for his ribs. On December 17, 2011, after complaining of chest pains, Robinson was seen in the medical unit. Robinson refused treatment because Halstead told him that she would only check his temperature and render no other medical attention. Several hours after this incident, he was ...