United States District Court, Western District of Pennsylvania
Cercone, District Judge.
REPORT AND RECOMMENDATION
LISA PUPO LENIHAN Chief United States Magistrate Judge.
It is respectfully recommended that the Motion to Dismiss filed by Defendants Robert Tretnick and Brian Coleman at ECF No. 16 be granted.
Plaintiff, Philip Roberts (“Plaintiff” or “Roberts”), brings this civil action pursuant to 42 U.S.C. § 1983 for violation of of his Eighth and Fourteenth Amendment rights to the United States Constitution, and for violation of his rights under the Pennsylvania Constitution. Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs while incarcerated at the State Correctional Institution at Fayette (“S.C.I. Fayette”). Plaintiff names as Defendants, Robert Tretnick (“Tretnick”),  Chief Health Care Administrator at S.C.I. Fayette, and Brian Coleman (“Coleman”), Superintendent of S.C.I. Fayette (collectively “Defendants”) in their individual capacities.
On February 17, 2014, Defendants filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. On February 18, 2014, this Court ordered that by March 18, 2014, Plaintiff file either a response to the Motion to Dismiss, or an amended complaint. The Plaintiff filed neither a response nor an amended complaint. On June 20, 2014, this Court again ordered that Plaintiff file a response to the motion or an amended complaint by July 8, 2014. The Court further indicated in its June 20, 2014 order that if Plaintiff failed to so respond, the Court, without further notice to Plaintiff, would make a recommendation on the disposition of the motion based on Defendants’ submissions, and without benefit of a response from Plaintiff. Again, Plaintiff has failed to respond. On July 17, 2014, a Remark was entered on the docket indicating that the Court’s text Order and Remark entered June 20, 2014 were returned to the Court as “Not Deliverable as Addressed Unable to Forward.” The docket does not reflect that Plaintiff notified the Court that his address of record had changed.
The facts as averred by Plaintiff are as follows. Plaintiff alleges that on three different occasions while incarcerated at S.C.I. Fayette, he requested medical assistance. First, on November 9, 2012, he requested medical assistance for severe back spasms and difficulty walking in an upright position. Plaintiff avers that he was called down to medical and told by a “representative of Robert Tretnick” that it might be a muscular problem. Plaintiff was given Ibuprofen and sent back to his cell. (ECF No. 8 at p.3.)
On November 14, 2012, Plaintiff returned to medical for the same problem. Medical administered a “bone x-ray” and urine test. Plaintiff was then sent back to his cell. (ECF No. 8 at p.3.)
On November 19, 2012, Plaintiff returned to medical. At this time, Plaintiff could neither stand up nor walk correctly. Plaintiff requested “an MRI and was told by one of Robert Tretnick[’]s representatives nothing could be done [ ] because [he] was too close to being released from prison.” (ECF No. 8 at p.3.)
Plaintiff was given a cane for two months and a back brace. Plaintiff avers that he was denied the medical attention to discover the nature of his medical problems. He notes that he still uses a cane, that his problems have become more consistent, he has back spasms, that the medicine that was given to him for seven days was ineffective, and that his back pain has become worse. As a result, Plaintiff avers that he is left vulnerable to the other inmates.
Plaintiff seeks damages for inconsistent medical treatment and for any future doctor ...