United States District Court, W.D. Pennsylvania
REPORT AND RECOMMENDATION
ECF No. 14
LISA PUPO LENIHAN, Magistrate Judge.
For the reasons stated herein, it is respectfully recommended that Defendant Dr. Karl Kozak's Motion to Dismiss (ECF No. 14) be denied in part and granted in part. The Motion should be denied with respect to Plaintiff's deliberate indifference claim and granted with respect to Plaintiff's simple negligence claim. However, this action should be dismissed for Plaintiff's failure to prosecute because he has failed to keep the Court apprised of his current address and his whereabouts are currently unknown.
Rafael Davila ("Plaintiff") initiated this pro se prisoner civil rights action on March 27, 2013. In his Complaint, he alleges that Dr. Karl Kozak ("Dr. Kozak") was negligent and deliberately indifferent to his dental needs while he was an inmate at the State Correctional Institution at Cresson.
The following allegations are included in Plaintiff's Complaint.
On March 22, 2011, Plaintiff submitted a sick call slip requesting dental treatment for a "cracked molar." ECF No. 3 at ¶ 1. The next day, Plaintiff was examined by Dr. Kozak, who allegedly determined that Plaintiff did not have a cracked molar. Id . at ¶ 2. Plaintiff complained that he was experiencing severe pain but Dr. Kozak would not provide him with any pain medication. Id . at ¶ 3.
Plaintiff requested dental treatment through another sick call slip submitted on April 24, 2011. Id . at ¶ 4. He complained that he was still in pain because of his cracked molar. Id . Plaintiff was examined by Dr. Kozak the following day and he again determined that Plaintiff did not have a cracked molar. Id . at ¶ 5. He told Plaintiff that he had over twenty years of experience and "knew what he was doing, " and warned Plaintiff that he would be charged another $5.00 medical fee if he put in another sick call slip complaining of the same cracked molar. Id.
On December 26, 2011, Plaintiff wrote to the hygienist requesting x-rays of his teeth. Id . at ¶ 7. X-rays were taken on January 6, 2012, and they revealed that Plaintiff did have a cracked molar. Id . at ¶ 8. Dr. Kozak "fixed" Plaintiff's cracked molar on January 18, 2012, and prescribed Plaintiff with antibiotics to treat a tooth infection. Id . at ¶¶ 9, 13-14.
Plaintiff alleges that he reviewed his dental records, which show that Dr. Kozak did not document that he was in pain when he was seen on March 23, 2011. Id . at ¶ 15. Plaintiff also alleges that his dental records do not even show that he complained about a cracked molar at that was paroled. However, Plaintiff did not provide the Court with an updated address after he was released. Therefore, his location is unknown. time. Id . He alleges that Dr. Kozak failed to document that x-rays were taken of Plaintiff's teeth, or the results of the x-rays which showed the cracked molar. Id . at ¶¶ 19-20. He also complains that Dr. Kozak falsified his dental records by stating that Plaintiff received treatment for "dental cavities" when according to Plaintiff he received treatment for a "fracture" in his molar. Id . at ¶ 24.
Plaintiff alleges that the health department supervisor, Mr. Douglas Bopp, verified that Plaintiff did in fact report to sick call on March 23, 2011, and April 25, 2011, both times complaining about a "crack between two specific teeth." Id . at ¶ 16.
Plaintiff alleges that on February 1, 2012, he needed urgent attention due to unbearable pain from the molar that Dr. Kozak fixed on January 18, 2012. Id . at ¶ 26. Plaintiff was seen by Dr. Kozak that same day and prescribed medication for his pain and antibiotics to treat his tooth infection. Id . at ¶¶ 26, 28. Plaintiff alleges that Dr. Kozak again falsified his dental records by stating that Plaintiff "was not hurting from his recently repaired [ ] tooth." Id . at ¶ 27.
Plaintiff was seen by Dr. Kozak for a follow-up visit on August 8, 2012. Id . at ¶ 30. During this visit, Dr. Kozak prescribed Plaintiff additional antibiotics for a re-occurring infection and also took x-rays of Plaintiff's teeth to determine whether Plaintiff had a cavity in another tooth. Id . The x-rays revealed that Plaintiff did not. Id . Plaintiff states that Dr. Kozak falsified his dental records by failing to state that Plaintiff reported pain at this visit. Id.
Plaintiff was seen by Dr. Kozak for another follow-up visit on August 16, 2012. Id . at ¶ 31. At this time Dr. Kozak prescribed Plaintiff more antibiotics. Id . Plaintiff states that Dr. Kozak falsified his dental records again by failing to state that Plaintiff reported pain and swelling at this visit. Id.
Plaintiff was seen by Dr. Kozak on follow-up visits on August 28, 2012 and September 7, 2012. Id . at ¶ 32. Plaintiff was prescribed more antibiotics because of the re-occurring infection and asked to consult with the oral surgeon. Id . Plaintiff alleges that he was seen by the oral surgeon on September 18, 2012, at which time a wisdom tooth was extracted. Id . at ¶ 33. He claims that the infection has not re-occurred since that time. Id.
Plaintiff alleges that he exhausted his administrative remedies with respect to his claims that Dr. Kozak was negligent and deliberately indifferent to his dental needs. Although he did not attach any grievances or responses thereto, he does note that his grievance appeal to the Facility Manager was denied on February 9, 2012, on the ground that Dr. Kozak identified a need for a ...