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Rettew v. Abbey

United States District Court, Third Circuit

July 30, 2013

SANDY ABBEY, et al. Defendants.


PETRESE B. TUCKER, Chief District Judge.

Presently before the Court are Defendants Sandra Yecker, Ph.D and Sandra Abbey, CRNP's Motion to Dismiss Plaintiff's Complaint (Docs. 11 & 12), Plaintiff's Response in Opposition (Doc. 16), Defendant Deputy Warden Joe Shiffer's Motion to Dismiss Plaintiff's Complaint (Docs. 18 & 20), and Plaintiff's Response in Opposition (Docs. 21 & 22). Upon consideration of the parties' motions with briefs and exhibits, and for the reasons set forth below, Defendants' motions to dismiss will be granted .


This complaint arises from mental health treatment Dustin Rettew ("Plaintiff") received while incarcerated at Lancaster County Prison for an undisclosed amount of time. In February 2012, PrimeCare Medical Inc. mental health physician, Defendant Dr. Sandra Abbey ("Dr. Abbey")[1] began administering the psychotropic medication Depakote to Plaintiff to address his various mental health issues. Pl.'s Compl. p. 3, ECF No.3. Plaintiff alleges his mental health issues have been documented by various hospitals, state correctional institutions, the Lancaster County Police Department, and previous stints in the Lancaster County Prison. Id . While being prescribed Depakote, Plaintiff alleges that for reasons beyond his control he continuously missed his "med passes" and this resulted in missed dosages. Id . Plaintiff claims that on August 23, 2012 he brought these concerns to the attention of Dr. Abbey and requested she review his treatment plan in order to accommodate his inability to take the medication as directed. Id . Plaintiff alleges that at this time Dr. Abbey refused to change the treatment plan. Instead, Dr. Abbey gave him a warning that if he continued to miss the appropriate amount of dosages it would make the medication ineffective and the medication would no longer be provided to him. Id . Plaintiff was again warned on November 15, 2012. Pl.'s Compl., Ex. A, ECF No.3.[2] On December 7, 2012, Dr. Abbey stopped providing Plaintiff with Depakote. Pl.'s Compl. p. 3, ECF No. 3. Four days later, Plaintiff submitted a "sick slip"[3] requesting the medication be resumed and the treatment plan be revised to adequately address his mental health needs. Id . On December 14, 2012, Dr. Abbey restarted the medication regimen, however Plaintiff claims Dr. Abbey never met with him in order to revise the treatment plan. Id.

On January 3, 2013, Dr. Abbey again stopped providing the Plaintiff with Depakote. Pl.'s Compl., Attch. p. 1, ECF No. 3. Over the next two months, Plaintiff claims to have sent at least Motion to Dismiss identify Defendant Abbey as "Dr. Abbey." For the sake of consistency, the Court will refer to Defendant Abbey as Dr. Abbey. ten "sick slips" to PrimeCare Medical Inc. requesting to meet with Dr. Abbey. Id. at 1-4. Subsequent to each submission, Plaintiff was seen by a PrimeCare medical professional. Id . Plaintiff further claims that each professional he saw referred him to Dr. Abbey for medical treatment. Id . Despite these alleged referrals from the other medical professionals, Dr. Abbey did not reinstate the medication nor did she meet with the Plaintiff to personally assess his treatment plan. Id.

On March 10, 2013, Plaintiff filed a grievance with the prison directed to the attention of Defendant Deputy Warden Joe Shiffer ("Deputy Warden Shiffer"). Id. at 3 [hereinafter "Grievance" or "Plaintiff's Grievance"]. In the Grievance, Plaintiff complained that he had repeatedly sent requests to meet with Dr. Abbey but they had gone unanswered. Three days later, Defendant Dr. Sandra Yecker ("Dr. Yecker") responded to the Grievance. Pl.'s Compl., Ex. A, ECF No.3. Dr. Yecker informed Plaintiff that his medication regimen would not be reinstated as a result of his noncompliance. Id . Plaintiff contends Defendants' claims of noncompliance are unfounded. Pl.'s Resp. p. 7-8, ECF No. 16. Plaintiff alleges if he was refusing to take his medication then the PrimeCare medical physicians should have followed procedure and filled out a form stating his noncompliance. Id.

As a result of the aforementioned events, Plaintiff asserts he has suffered severe depression, high anxiety, uncontrollable moments of anger, self-isolation, malnutrition, racing thoughts, sleep deprivation, sense of hopelessness, loss of will to live, mental anguish, and needless suffering. Pl.'s Compl. p. 3, ECF No.3. Plaintiff claims the Defendants' refusal to reinstate his medication is a violation of his constitutional rights. Plaintiff brings this suit, pursuant to 42 U.S.C. § 1983, claiming a violation of his Eighth Amendment and/or Fourteenth Amendment rights by Dr. Abbey, Dr. Yecker, and Deputy Warden Shiffer.


On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium Antitrust Litig. , 214 F.3d 395, 397-98 (3d Cir. 2000). The question is whether the claimant can prove any set of facts consistent with his or her allegations that will entitle him or her to relief, not whether that person will ultimately prevail. Scheuer v. Rhodes , 416 U.S. 232, 236 (1974); Semerenko v. Cendant Corp. , 223 F.3d 165, 173 (3d Cir. 2000).

While a court will accept well-pleaded allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). The United States Supreme Court has recognized that "a plaintiff's obligation to provide the "grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007) (alteration in original). In Twombly, the Court made clear that it would not require a "heightened fact pleading of specifics, " but only "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A "pleader is required to set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.'" Kost v. Kozakiewicz , 1 F.3d 176, 183 (3d Cir. 1993) (citations omitted).

In 2009, the Supreme Court revisited the requirements for surviving a 12(b)(6) motion to dismiss in Ashcroft v. Iqbal , 556 U.S. 662 (2009). In Iqbal, the Court made clear that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements [will] not suffice" to defeat a Rule 12(b)(6) motion to dismiss. Id. at 663. "[O]nly a complaint that states a plausible claim for relief [will] survive[] a motion to dismiss." Id. at 679.

In light of the decision in Iqbal, the Third Circuit set forth a two-part analysis to be applied by district courts when presented with a 12(b)(6) motion. First, the court must separate the legal elements and factual allegations of the claim, with the well-pleaded facts accepted as true but the legal conclusions disregarded. Fowler v. UPMC Shadyside , 578 F.3d 203, 210-11 (3d Cir. 2009). Second, the court must determine whether the facts alleged in the complaint demonstrate that the plaintiff has a "plausible claim for relief." Id. at 211 (citation omitted). If the court can only infer the mere possibility of misconduct, the complaint must be dismissed because it has alleged, but has failed to show, that the pleader is entitled to relief. Id.


Section 1983 does not itself create substantive rights, but affords a remedy for the violation of rights granted by the federal law. Groman v. Twp. of Manalapan , 47 F.3d 628, 633 (3d Cir. 1995). To establish a prima facie case under §1983, the Plaintiff must prove that a person acting under the color of law committed a ...

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