REPORT AND RECOMMENDATION
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of the Case
This case, which comes before us for consideration of a motion to dismiss the plaintiff's amended complaint, calls upon us to consider the application of state and federal law to the medical complaints of a state prisoner. The amended complaint, and subsequent motion to dismiss and response, also highlight the importance of clarity when making legal claims in this particular factual context.
The background of this dispute can be simply stated: On August 31, 2012, the plaintiff, Larry West, who was a state inmate, filed an amended complaint in this lawsuit. (Doc. 54.) That amended complaint named David Varano, a non-medical prison supervisor, the Superintendent at the State Correctional Institution (SCI) Coal, as a defendant. (Id.) With respect to defendant Varano, the complain simply cited him for "responsibility for oversight of" medical care and management of the prison. ( Id., ¶4.) The complaint also identified two medical supervisory staff, Richard Ellers, the Director of Health Care Service, and Katharine McCarty, the Corrections Health Care Administrator for the Department of Correction, as defendants. As to these defendant, West's amended complaint asserted, with some greater specificity, that the defendants had direct and immediate responsibility for decisions concerning West's health care. (Id.) Finally, the complaint, named the Department of Corrections as a defendant, and listed other "generic" John Doe defendants. (Id.)
The amended complaint then recited that West suffered from chronic progressive conditions, rheumatoid arthritis and anxiety, which were allegedly neglected and not treated for a span of months and years. (Id.) Thus, while West's amended complaint described some level of medical care provided to this inmate, and specifically acknowledged that West underwent surgery in 2008 and 2011, ( Id., ¶¶41 and 50), fairly construed it asserted deliberate indifference to the plaintiff's medical needs through an unreasonable delay in providing this treatment. (Id.)
Having made these factual averments, the amended complaint then advanced six legal claims: an Eighth Amendment, medical deliberate indifference claim lodged pursuant to 42 U.S.C. §1983; a "failure to train, supervise and regulate staff" claim; a malpractice claim; a discrimination claim under the Americans With Disabilities, Act, (ADA) 42 U.S.C. §12101; and two pendent state claims of negligent and intentional infliction of emotional distress. (Id.)
The defendants have now moved to dismiss all of the claims set forth in this amended complaint. (Doc. 56.) In response to this motion, West has filed a pleading which actually adds some confusion to what his claims are in this litigation, since West seems to assert only constitutional and statutory claims under the ADA, and appears to deny making a malpractice claim despite the inclusion of such a claim in his amended complaint. (Doc. 63.)
Upon consideration of the parties' respective positions, it is recommended that the motion to dismiss be granted, in part, and denied, in part. Specifically, it is recommended that the malpractice, ADA and pendent state tort claims be dismissed in their entirety, and that the Eighth Amendment claim be dismissed as to Superintendent Varano and the Department of Corrections. At this stage, however, where our review is confined to an assessment of the pleadings, it is recommended that the motion to dismiss be denied with respect to West's Eighth Amendment claims against the medical defendants, defendants Ellers and McCarty.
A. Motion to Dismiss-Standard of Review
The defendant has moved to dismiss this amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which provides that a complaint should be dismissed for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (12007) continuing with our opinion in Phillips [v. County of Allegheny , 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal ___ U.S. ___ , 129 S.Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside , 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn from the complaint are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc. , 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist. , 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a... plaintiff can prove facts that the... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters , 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly , 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal , 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are 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 679.
Thus, following Twombly and Iqbal a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has aplausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show' such an entitlement with its facts.
Fowler , 578 F.3d at 210-11.
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal , 129 S.Ct. at 1947. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 1950. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id." Santiago v. Warminster Tp. , 629 F.3d 121, 130 (3d Cir. 2010).
Judged against these benchmarks, for the reasons set forth below, a number of West's claims fail as a matter of law.
B. West May Not Maintain a Malpractice Claim
At the outset, it is clear that West may not maintain a malpractice claim under Pennsylvania law because he has not complied with the requirements set by state law for such a claim. In order to present a prima facie case of medical malpractice under Pennsylvania law, "as a general rule, a plaintiff has the burden of presenting expert opinions that the alleged act or omission of the defendant physician or hospital personnel fell below the appropriate standard of care in the community, and that the negligent conduct caused the injuries for which recovery is sought." Simpson v. Bureau of Prisons, No. 02-2213 , 2005 WL 2387631, at *5 (M.D.Pa. Sept. 28, 2005) This requirement is imposed upon malpractice ...