CHRISTOPHER D. PEARSON, Plaintiff,
MONTGOMERY COUNTY CORRECTIONAL FACILITY (Previously dismissed party pursuant to Order dated 9/20/12 (Doc. 4)) and PRIMECARE MEDICAL INC., Defendants.
REPORT AND RECOMMENDATION
LINDA K. CARACAPPA, Magistrate Judge.
Plaintiff is a state prisoner currently incarcerated at State Correctional Institution-Mahanoy in Frackville, Pennsylvania. Plaintiff has filed this civil rights lawsuit for damages pursuant to 42 U.S.C. § 1983 alleging a violation of the Eighth Amendment arising from the denial of medical care by the medical staff of PrimeCare Medical, Inc. (hereinafter "Defendant") during his incarceration at Montgomery County Correctional Facility. Presently before this court are plaintiff's complaint (Doc. 1), defendant's motion to dismiss (Doc. 11) and supporting brief (Doc. 12), plaintiff's "motion to dismiss summary judgment" (Doc. 15), and defendant's response to plaintiff's "motion to dismiss summary judgment" (Doc. 16). For the reasons that follow, we recommend that defendant's motion to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) be GRANTED.
On September 5, 2012, plaintiff filed the instant pro se prisoner law suit. (Doc. 1). On September 20, 2012, the Court dismissed plaintiff's complaint against Montgomery County Correctional Facility pursuant to 28 U.S.C. § 1915(e) because a prison is not a "person" subject to suit under civil rights law. (Doc. 4). Plaintiff's complaint against defendant PrimeCare was permitted to proceed (Doc. 4) and defendant waived service of a summons on September 27, 2012 (Doc. 8). Individual members of defendant organization were not sued in this case. Defendant contracted with Montgomery County to provide medical treatment to inmates incarcerated in the Montgomery County Prison.
Accepting as true the facts alleged in plaintiff's complaint, plaintiff was incarcerated at Montgomery County Prison beginning November 19, 2011. Plaintiff suffered a gunshot wound prior to his incarceration and was prescribed Tramadol for pain relief. On July 19, 2012, plaintiff was taken off the pain medication Tramadol and remained off the medication until August 9, 2012. This time period of twenty-one days without medication is the subject of the current suit. Plaintiff's current suit may be read as a claim alleging violation of the Eighth Amendment's provision against cruel and unusual punishment. Plaintiff alleges he suffered "constant severe pain" during this time period without the medication and could not get out of bed, work, or stand up straight due to his pain. Plaintiff alerted the medical department about his pain and requested that he return to the pain medication, but plaintiff alleges the staff did not respond to his complaints. Plaintiff was seen by the medical staff on August 1, 2012 and then prescribed Tramadol on August 9, 2012. Plaintiff seeks compensation of $215, 000 for his pain and suffering due to the "neglect" of defendant.
Plaintiff indicated in his complaint (Doc. 1) that he did not file any grievances concerning the facts relating to the complaint, but subsequently alleged in a "Motion to Dismiss Summary Judgment" (Doc. 15) that he filed grievances on September 29, 2012, October 11, 2012, October 25, 2012, and December 20, 2012.
III. STANDARD OF REVIEW
Pursuant to Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure where the complaint fails to state a claim upon which relief can be granted. When ruling on a motion to dismiss under Rule 12(b)(6), the court must accept as true all factual allegations, construe them in the light most favorable to the plaintiff, and "then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (reaffirming Bell Atlantic Corp. V. Twombly, 550 U.S. 544 (2007)); Phillips v. County of Allegheny , 515 F.3d 224, 233 (3d Cir. 2008).
To withstand a motion to dismiss under Rule 12(b)(6), "factual allegations must be enough to raise a right to relief above the speculative level." Phillips , 515 F.3d at 234. While a court should assume the veracity of well-pleaded factual allegations, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft , 556 U.S. at 678. As the Supreme Court has stated, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Id . The Third Circuit has held that if a complaint is "vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." Phillips , 515 F.3d at 236 (citations omitted); see also Grayson v. Mayview State Hosp. , 293 F.3d 103, 114 (3d Cir. 2002).
Plaintiff alleges he was denied the right to medical care in violation of the Eighth Amendment. Defendant contends that plaintiff's complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) because plaintiff failed to demonstrate a deliberate indifference to a serious medical condition as required to state a claim for a violation of the Eighth Amendment and plaintiff alleges no facts concerning defendant's policies or procedures, thus, the complaint is premised on vicarious liability, which is not recognized under 42 U.S.C. § 1983.
As the Supreme Court of the United States advised in Ashcroft v. Iqbal , this court begins the analysis by looking at the elements that plaintiff must plead to state a claim upon which relief may be granted. See 556 U.S. at 678. In the case at bar, plaintiff is challenging his medical care while in prison for the time period between July 19, 2012 and August 9, 2012. The Eighth Amendment proscription against cruel and unusual punishment requires that prison officials provide inmates with adequate medical care. See Estelle v. Gamble , 429 U.S. 97, 103-04 (1976). Because an inmate must rely on prison authorities to treat his medical needs, and failure of the authorities to do so will result in those needs not being met, "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. '" Id. at 104 (internal citations omitted). However, not every claim made by a prisoner alleging he did not receive adequate medical care will reach the level that violates the Eighth Amendment. Id. at 105. A complaint that merely alleges medical malpractice due to negligent diagnosis or treatment does not constitute a constitutional violation solely because the victim is a prisoner. Id. at 106. "In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id . Thus, to succeed an Eighth Amendment violation, plaintiff must allege facts that show (1) a serious medical need; and (2) behavior on the part of prison officials that constitute deliberate indifference to that need. Estelle, at 103-104.
To satisfy the first prong of the Estelle inquiry, the inmate must demonstrate that his medical needs are serious. "Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious.'" Hudson v. McMillian , 503 U.S. 1, 9 (1992). A medical need is "serious" if it is "one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention." Monmouth Cty Correctional Inst. Inmates v. Lanzaro , 834 F.2d 326, 347 (3d Cir. 1987), cert denied486 U.S. 1006 (1988) (citing Pace v. Fauver , 479 F.Supp. 456, 458 (D. N.J. 1979)). Moreover, a medical need is considered serious if the denial or delay of medical care results in "unnecessary and wanton infliction ...