ROBERT D. MARIANI, District Judge.
The above-captioned matter arises before the Court upon consideration of Magistrate Judge Carlson's Report and Recommendation of October 18, 2013 (Doc. 65), which addressed Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 42).
The Amended Complaint was filed by a pro se prisoner, Sanford Davis. It alleges medical malpractice and Eighth Amendment violations against medical staff at the prison at which Davis was confined, SCI-Camp Hill. ( See Final Am. Compl., Doc. 27, at 2, 8-9.) The allegations center around two possibly interrelated incidents. First, Plaintiff alleges that he suffers from chronic myelogenous leukemia (CML). ( Id. at 4.) Nonetheless, he complains that the prison medical staff neglected to provide him with adequate care and treatment, including failing to bring him to appointments for a bone marrow biopsy and failing to provide him with a chemotherapy drug, Gleevec, for several months after it was prescribed. ( Id. at 4-5.) Plaintiff believes that these omissions caused his condition to worsen. ( Id. at 7-8.) Second, Plaintiff alleges that on August 4, 2012, he fell from the top bunk to the floor of his cell. ( Id. at 5.) This caused "a long laceration on his right shin." ( Id. ) He alleges that he received inadequate treatment, which caused the wound to become swollen, discolored, and infected from "his inner thigh to his foot." ( Id. at 6.) The infection ultimately necessitated surgery and required Plaintiff to spend approximately a week in an off-site hospital. ( Id. at 6-7.)
Based on these facts, Magistrate Judge Carlson recommended granting in part and denying in part Defendants' Motion to Dismiss. The Court shall discuss each recommendation separately below.
I. Medical Malpractice
First, Judge Carlson recommended granting the Motion as it pertains to Plaintiff's claims for medical malpractice, and dismissing the medical malpractice claim without prejudice. (Doc. 65 at 14.) This is because Plaintiff failed to comply with Pennsylvania Rule of Civil Procedure 1042.3, which requires, in relevant part, that
(a) in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard... the plaintiff... shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either:
(1) An appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or....
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
PA. R. CIV. P. 1042.3(a).
No party has objected to this portion of the R&R. Therefore, the Court reviews it for clear error or manifest justice. In doing so, the Court concludes that the Magistrate Judge committed no clear error or manifest injustice in recommending dismissal of this claim without prejudice. Rather, his analysis is fully consistent with the established case law. The Court will accordingly adopt his recommendation to dismiss the medical malpractice portion of the Complaint without prejudice.
II. Eighth Amendment
Second, Magistrate Judge Carlson recommended denying Defendants' Motion to Dismiss as it pertains to Plaintiff's Eighth Amendment claim. Defendants did object to this portion of the R&R, ( see Objections, Doc. 70), so the Court will review it under de novo review.
However, the Court ultimately agrees with the Magistrate Judge that Plaintiff alleged sufficient facts showing deliberate indifference to his serious medical needs under the Eighth Amendment to survive a Motion to Dismiss. "In order to state a cognizable claim [under the Eighth Amendment for medical mistreatment], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle ...