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Duganne v. Giroux

United States District Court, M.D. Pennsylvania

September 15, 2014

NIESHIA DUGANNE, Plaintiff,
v.
SUPT. GIROUX, et al., Defendants

MEMORANDUM[1]

MALACHY E. MANNION, District Judge.

I. Background

Plaintiff, an inmate confined in the State Correctional Institution Muncy ("SCI-Muncy"), Pennsylvania, filed this civil rights action pursuant to 42 U.S.C. § 1983. The action proceeds via an amended complaint filed by Plaintiff on February 7, 2014. (Doc. 34). Plaintiff names as Defendants the Corizon Medical Department, and its employee Dr. Famiglio, and the following Department of Corrections ("DOC") employees: Superintendent Giroux, Deputy Superintendent Wendy Nicholas, Fire and Safety Director Frank Welsh, Correctional Officers Moore, and Boyles, and Physicians Assistant Clemens and Maintenance Supervisor Harding. Id.

Duganne alleges that Defendants have been deliberately indifferent to her injuries sustained when she fell from "an inappropriately welded bed frame." Id . In particular, Plaintiff claims that Defendants refuse to provide her with proper medical treatment, and recommended testing. Id . For relief, she seeks compensatory and punitive damages, as well as injunctive relief. Id.

Presently before the Court are Defendants' motions to dismiss Plaintiff's amended complaint. (Docs. 35, 37). The motions have been fully briefed and are ripe for disposition. For the reasons that follow, Defendants' motions to dismiss will be granted.

II. Motion to Dismiss

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for "failure to state a claim upon which relief can be granted." Under Rule 12(b)(6), we must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Fowler v. UPMC Shadyside , 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of Allegheny , 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only contain "a short and plain statement of the claim, " Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555 (2007), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662 (2009) (quoting Twombly , 550 U.S. at 556). "[L]abels and conclusions" are not enough, Twombly , 550 U.S. at 555, and a court "is not bound to accept as true a legal conclusion couched as a factual allegation." Id . (quoted case omitted). Thus, "a judicial conspiracy claim must include at least a discernible factual basis to survive a Rule 12(b)(6) dismissal." Capogrosso v. The Supreme Court of New Jersey , 588 F.3d 180, 184 (3d Cir. 2009) (per curiam).

In resolving the motion to dismiss, we thus "conduct a two-part analysis." Fowler, supra , 578 F.3d at 210. First, we separate the factual elements from the legal elements and disregard the legal conclusions. Id. at 210-11. Second, we "determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief". Id. at 211 (quoted case omitted).

In addition, because Plaintiff complains about "prison conditions, " the screening provisions of 42 U.S.C. § 1997e apply, as do the screening provisions of 28 U.S.C. § 1915(e), given that he was granted in forma pauperis status to pursue this suit. The court's obligation to dismiss a complaint under the PLRA screening provisions for complaints that fail to state a claim is not excused even after defendants have filed a motion to dismiss. See, e.g., Lopez v. Smith , 203 F.3d 1122, 1126 n. 6 (9th Cir. 2000). Hence, if there is a ground for dismissal which was not relied upon by a defendant in a motion to dismiss, the court may nonetheless sua sponte rest its dismissal upon such ground pursuant to the screening provisions of the PLRA. See Lopez; Dare v. U.S., Civil No. 06-115E , 2007 WL 1811198, at *4 (W.D. Pa. June 21, 2007), aff'd, 264 Fed App'x. 183 (3d Cir. 2008).

III. Allegations in Amended Complaint and Supporting Exhibits

On January 2, 2012, Plaintiff states that her bunk collapsed from an inappropriately welded bed frame while Plaintiff was on the top bunk causing Plaintiff to suffer permanent injuries in which CO Moore and CO Boyle were made aware of and nothing was done to correct the problem with the bunk." (Doc. 34 at 2, amended complaint). Plaintiff claims that she was "then helped up by a nurse and officers and transported to the infirmary. Id . Once at the infirmary, she was "only asked what hurt... no vitals, exam, or physical check was ever done on the Plaintiff." Id . Plaintiff was then placed in another cell in the infirmary with a broken bed and intercom." Id . Plaintiff states that "she tried to call for help through the intercom but no answer" and "she had to wait standing in pain for almost an hour for pain meds", which consisted of "one Motrin." Id . Finally, Plaintiff states that she "did not see a doctor till the next day on 1/3/12." Id.

Plaintiff states that she was "informed by C.O. Mills and C.O. Wright that C.O. Moore never submitted a work order the night the incident occurred so until the bunk was fixed she had to return to the same cell with the broken bunk".[5] Id . Plaintiff claims that she was informed by the inmates who occupied the cell prior to her that "they lived in the room with the broken bed before Plaintiff and that they had reported it to C.O. Moore and C.O. Boyles yet no work order had ever been put in to fix the bed." Id.

On January 4, 2012, Plaintiff filed Grievance No. 396242, complaining about the January 2, 2012, incident, and Plaintiff's dissatisfaction with the medical care she received. ((Doc. 31 at 2, Inmate Grievance).

By response dated January 30, 2012, Grievance No. 396242 was denied, based on the following:

I am in receipt of your grievance and have the following response to your claims regarding medical care.
Upon entrance to the medical department, you told the nurse you fell on your "cellie" when the bed collapsed. The nurse's assessment stated you had pain from the mid left thigh to the lower back. In addition, you twisted your ankle. The doctor was called, you were admitted for a 23 hour observation, and Motrin was ordered for pain. The third shift nurse documents you slept through the night and asked for Motrin at 0645, therefore you were not seen because she did not want to wake you.
On 1/3/12, when the doctors were conducting rounds, Dr. Gothwal documents your exam as negative, no bruising or discoloration from left flank area to your mid left thigh. No serious injuries observed. You were then discharged and walked to C unit without complication as you were observed by staff.
1/4/12, you came to sick call complaining of neck pain down to you tailbone. This was a new complaint. You were able to move all extremities well and the PA thought you might have muscle spasms. The PA ordered you Robaxin which works really well for muscular skeletal pain if you take it as prescribed.
1/6/12, you presented to sick call again with the same neck and tailbone complaint. The PA added Naprosyn and ordered X-rays.
1/9/12, you presented to sick call again now with burning pain in your neck and back. Exam negative, no spasm appreciated, and questionable soft tissue injury. Steroids started and will review X-ray.
1/10/12, seen by Dr. Famiglio with exaggerated symptoms and limping into exam room. A thorough exam with negative findings was documented. You became demanding, asking for an MRI. The story changed of how you fell and you told Dr. Famiglio you fell and hit your head on the toilet, which was a new statement from 1/2/12 when the incident occurred. Additionally, on 1/3/12, the officers conducted a point-to-point watch of you and your cellie and you were both observed walking to your unit without complication. When you present to medical you limp. How would one complete an accurate assessment of a claimed injury with such conflicting information. At this visit, Dr. Famiglio explained to you your C-Spine X-ray was negative of all findings to include soft tissue injury. Dr. Famiglio ordered you a bottom bunk and a follow up visit.
1/12/12, you presented to sick call with acute pain. The PA explained to you that it may take several weeks to get rid of the aches and no further treatment was necessary. In addition, he explained there are no findings upon examine that would require ordered additional imaging.
1/17/12, you presented to sick call again with tight muscles between your shoulder blades. You requested a second pillow. Again, negative exam, no mobility impairment, no muscle spasms palpated, and no bruising. You admitted to the PA you were not taking your medications as prescribed. He explained you need to take them. They may not take away all your pain but will certainly help.
1/18/12, you came to sick call again now claiming your left arm went numb. The PA documents no apparent distress, smiling and talking in sick call waiting area without grimacing or guarding in pain. When leaving the medical nurse observed you walking out lighting a cigarette with both hands while bending your head forward without complications. These actions are inconsistent with your complaints. At this point, the PA feels your symptoms are exaggerated and the severity of your complaints are possibly fabricated.
1/23/12, seen by Dr. Famiglio. You entered room limping, dragging your left foot, and complaining of low back pain. He explained your X-rays are normal and neurological exam negative. You became very angry and refused any further treatment offered.
Ms. Duganne, I believe your medical care was thorough and appropriate. There are many inconsistencies in your complaints when you present to medical. The exams performed were negative and the observations of your abilities to walk and function outside of medical are normal. If you choose to litigate, that will be at your expense. At this time, I find your grievance to be lacking in arguable facts and there for it is denied.

(Doc. 31 at 9-11, Initial Review Response). Plaintiff appealed this decision to Final Appeal, with both the Facility Manager[6] and Chief Grievance Officer finding no evidence of neglect or deliberate indifference by SCI-Muncy medical staff. (See Doc. 31 at 12, 13, Facility Manager's Appeal Response; Secretary's Office of Inmate Grievance & Appeals).

On January 31, 2012, Plaintiff alleges that she was seen again by PA Day and was "told she has significant tissue injury and it would take a while to heal." (Doc. 34 at 7). She then asked Plaintiff "what meds Plaintiff was on" and "when told, she stated you can't be on mobic and naperson (sic) at the same time, that can cause G.I. bleeding." Id.

On February 6, 2012, Plaintiff was "put on muscle relaxers for 5 days due to severe pain still as well as headaches which PA Day said was a result of her injury." Id.

On March 6, 2012, Plaintiff states that she was "seen by PA Clemens again who referred Plaintiff to Dr. Famiglio and refused to see Plaintiff again." Id.

On March 21, 2012, on the recommendation of Dr. Famiglio, Plaintiff was sent to Geisinger Hospital for an MRI on her neck. Id.

On April 25, 2012, Plaintiff was examined by a neurosurgeon, who opined that Plaintiff's problem is "possibly torn ligaments and tendons", and recommended x-rays and a lower back MRI. Id . Plaintiff states that "Corizon would have the final say as to if the MRI would be granted or denied and in the end the MRI was denied." Id.

On May 17, 2013 Plaintiff filed the instant action in which she claims, inter alia, that Dr. Famiglio and Corizon violated her Eighth Amendment rights "for not following the recommendation prescribed by the specialist at Geisinger for the Plaintiff to receive a lower back MRI." Id . For relief, Plaintiff seeks compensatory and punitive damages, as well as injunctive relief. Id . Specifically, Plaintiff seeks "a declaratory judgment stating that: CO Moore and CO Boyle did violate the Plaintiff's right under the Eighth Amendment and constituted the unnecessary and wanton infliction of pain by failing to use reasonable care to avoid a foreseeable risk", that CO Moore and CO Boyle exposed Plaintiff to serious harm placing her in an unsafe living condition knowing the bunk was a hazard and making no effort to fix it, thus being deliberate indifference", and that "Mr. Welsh and Mr. Harding did violate the Plaintiff's right under the Eighth Amendment causing the unnecessary and wanton infliction of pay by failing to exercise reasonable care in safety and maintenance of the bunk which was spot welded, breaking and causing Plaintiff to sustain permanent injuries." Id.

IV. Discussion

A. Eighth Amendment Medical Claim

In order to establish an Eighth Amendment medical claim, a plaintiff must show "(i) a serious medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference to that need." Natale v. Camden Cty. Correctional Facility , 318 F.3d 575, 582 (3d Cir. 2003). See also Rouse v. Plantier , 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need is one that has been diagnosed by a physician as requiring treatment, or one that is so obvious that a layperson would recognize the need for a doctor's attention. Monmouth County Correctional Institutional Inmates v. Lanzaro , 834 F.2d 326, 347 (3d Cir. 1987). In addition, "if unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the eighth amendment." Id.

A prison official acts with deliberate indifference to an inmate's serious medical needs when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan , 511 U.S. 825, 837 (1994). Thus, a complaint that a physician or a medical department "has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment..." Estelle v. Gamble , 429 U.S. 97, 106 (1976). For instance, a "medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice." Id., 429 U.S. at 107. "[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights." Brown v. Borough of Chambersburg , 903 F.2d 274, 278 (3d Cir. 1990). Further, a doctor's disagreement with the professional judgment of another doctor is not actionable under the Eighth Amendment. See White v. Napoleon , 897 F.2d 103, 110 (3d Cir. 1990). In sum, negligence, unsuccessful medical treatment, or medical malpractice does not give rise to a § 1983 cause of action, and an inmate's disagreement with medical treatment is insufficient to establish deliberate indifference. See Durmer v. O'Carroll , 991 F.2d 64, 69 (3d Cir. 1993).

Further, a non-physician defendant cannot be found deliberately indifferent under the Eighth Amendment because he or she fails to respond to the medical complaints of an inmate being treated by a prison physician, or because, as non-physicians, they defer to the medical judgment of the inmate's treating physicians. Id., 991 F.2d at 69. If, however, non-medical prison personnel had "a reason to believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not treating) a prisoner, " liability may be imposed. Spruill , 372 F.3d 236.

A mere difference of opinion between the prison's medical staff and the inmate regarding the diagnosis or treatment which the inmate receives does not support a claim of cruel and unusual punishment. Farmer v. Carlson , 685 F.Supp. 1335, 1339 (M.D. Pa. 1988). See McCracken v. Jones , 562 F.2d 22, 24 (10th Cir. 1977); Smart v. Villar , 547 F.2d 112, 113 (10th Cir. 1976).

Additionally, if there is a dispute over the adequacy of the received treatment, courts have consistently been reluctant to second guess the medical judgment of the attending physician. Little v. Lycoming County , 912 F.Supp. 809, 815 (M.D. Pa.), aff'd, 101 F.3d 691 (3d Cir. 1996). The key question is whether the defendant has provided the plaintiff with some type of treatment, regardless of whether it is what the plaintiff desires. Farmer v. Carlson , 685 F.Supp. at 1339.

The allegations in Plaintiff's complaint clearly demonstrate that Plaintiff received medical attention, and that the attention Plaintiff received lacks the requisite deliberate indifference to support a Section 1983 claim. Plaintiff was immediately seen after the January 2, 2012 incident, was placed on 23 hour observation and was provided with medication. From the date of the incident, until the filing of the instant action on May 17, 2013, Plaintiff's complaint reflects that she was seen by medical staff approximately fifteen (15) times. Throughout those visits, Plaintiff was provided with medication, a cane, diagnostic testing, and referrals to outside facilities and providers. At best, Plaintiff's complaint demonstrates her disagreement with medical personnel. Though she may have wished to be transferred to an outside provider for a lower back MRI, her disagreement with the course of action that Defendants took based on the symptoms she presented, is not enough to state a § 1983 claim. Sample v. Diecks , 885 F.2d 1099, 1109 (3d Cir. 1989) (citing Estelle , 429 U.S. at 105-06 (in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute an unnecessary and wanton infliction of pain or to be repugnant to the conscience of mankind)).[7] This is particularly so in light of the fact that there are no allegations in the complaint that any of the Defendants intentionally withheld medical treatment from Plaintiff in order to inflict pain or harm upon Plaintiff. Farmer; Rouse. Thus, the allegations in the Plaintiff's complaint amount to Plaintiff's subjective disagreement with the treatment decisions and medical judgment of the medical staff at the prison. At most, the allegations in the complaint only rise to the level of mere negligence. As simple negligence can not serve as a predicate to liability under § 1983, Hudson v. Palmer , 468 U.S. 517 (1984), Plaintiff's civil rights complaint fails to articulate an arguable constitutional claim. See White , 897 F.2d at 108-110.

Moreover, Plaintiff's denial of appropriate medical care claim against non-medical Defendants, Superintendent Giroux, Deputy Superintendent Wendy Nicholas, Frank Welsh, Officers Moore, and Boyles, and Maintenance Supervisor Harding is to be dismissed, as these Defendants cannot be found deliberately indifferent to Plaintiff's medical needs when Plaintiff was admittedly under the continual care of the prison medical staff. Durmer , 991 F.2d at 69. See also Thomas v. Zinkel , 155 F.Supp.2d 408, 413 (E.D.Pa.2001) (Prison officials "who are not physicians cannot be considered deliberately indifferent simply because they failed to respond directly to the medical complaints of a prisoner who was already being treated by the prison doctor." (Citing Durmer , 991 F.2d at 69 n. 14)); Newton v. Reitz, 2009 WL 233911(M.D.Pa. Jan. 30, 2009). ("the United States Court of Appeals for the Third Circuit held in Durmer that a non-physician Defendant cannot be held liable for being deliberately indifferent to an inmate's medical needs where, as here, the inmate is receiving treatment from the institution's health care staff.") (Citing Durmer , 991 F.2d at 69).

Before dismissing a complaint for failure to state a claim upon which relief may be granted, the Court must grant the Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hospital , 293 F.3d 103, 114 (3rd Cir.2002). Since it is clear from Plaintiff's complaint, that Plaintiff received repeated medical treatment, and merely disagrees with the treatment she received during this time, the Court finds that amendment on these claims would be futile.

B. HIPAA[9] VIOLATION

Plaintiff states that Dr. Famiglio "called Plaintiff's Officer inquiring how she was getting around" and then "began telling Officer Wright her personal medical information concerning the test results of her x-rays and hadn't even told the Plaintiff yet", as well as "told the officer that the Plaintiff was requesting an MRI or CAT scan." (Doc. 34 at 6). Thus, Plaintiff concludes that Dr. Famiglio "did violate the Plaintiff's HIPPA Rights as well as by releasing her private medical information several times to several different people without the Plaintiff's permission." (Doc. 34 at 9).

Neither the U.S. Supreme Court nor the United States Court of Appeals for the Third Circuit has specifically addressed the issue, however, other district courts, including the Middle District, have all found that HIPAA does not create a private right of action. Ball v. Famiglio, 2012 WL 1886676 (M.D.Pa. March 14, 2012). See Dominic J. v. Wyoming Valley West High School , 362 F.Supp.2d 560 (M.D.Pa.2005); Rigaud v. Garofalo , 2005 WL 1030196 (E.D.Pa.2005); O'Donnell v. Blue Cross Blue Shield of Wyoming , 173 F.Supp.2d 1176 (D.C.Wyo.2001); Brock v. Provident Am. Ins. Co. , 144 F.Supp.2d 652 (N.D.Tex.2001); and Means v. Indep. Life and Accident Insurance Co. , 963 F.Supp. 1131 (M.D.Ala.1997). Thus, Duganne simply may not maintain a private HIPAA claim against Defendant Famiglio arising out of the disclosure of her private medical information.

C. Claims against Defendants Superintendent Giroux, and Deputy Superintendent Wendy Nicholas.

Plaintiff fails to state a claim against Defendants Giroux and Nicholas because the complaint reveals that they lack any personal involvement in the wrongs, and Plaintiff's allegations against these Defendants are based solely upon their supervisory roles.

Local government units and supervisors typically are not liable under § 1983 solely on a theory of respondeat superior. See City of Oklahoma City v. Tuttle , 471 U.S. 808, 824 n. 8 (1985); Monell v. Dep't of Soc. Servs. Of City of New York , 436 U.S. 658, 690-91 (1978) (municipal liability attaches only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury" complained of). "A defendant in a civil rights action must have personal involvement in the alleged wrongs, liability cannot be predicated solely on the operation of respondeat superior. Rode v. Dellarciprete , 845 F.2d 1195, 1207-08 (3d Cir. 1988). See also Sutton v. Rasheed , 323 F.3d 236, 249 (3d Cir. 2003)(citing Rode). Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode , 845 F.2d at 1207. Accord Robinson v. City of Pittsburgh , 120 F.3d 1286, 1293-96 (3d Cir.1997); Baker v. Monroe Twp. , 50 F.3d 1186, 1190-91 (3d Cir.1995). As explained in Rode:

A defendant in a civil rights action must have personal involvement in the alleged wrongs.... [P]ersonal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity.

Rode , 845 F.2d at 1207.

A § 1983 action brought against a person in his or her official capacity "generally represent[s] only another way of pleading an action against an entity of which an officer is an agent." Monell , 436 U.S. at 690 n. 55. "[I]n an official-capacity action, ... a governmental entity is liable under § 1983 only when the entity itself is a moving force' behind the deprivation; thus, in an official capacity suit the entity's policy or custom' must have played a part in the violation of federal law." Kentucky v. Graham , 473 U.S. 159, 166 (1985) (internal quotation marks and citations omitted).

With respect to Defendants Giroux and Nicholas, a review of the Complaint confirms that other then being listed as Defendants there are no specific assertions that any of these Defendants had any personal involvement in the purported violations of Plaintiff's rights under the Eighth Amendment. In fact Plaintiff states that Defendant Nicholas "did violate the Plaintiff's right under the Eighth Amendment as she was the official overseer of the medical department and had full knowledge of the inadequate medical care the Plaintiff was receiving." (Doc. 31 at 4). Based upon an application of the above standards, such allegations are insufficient to satisfy the personal involvement requirement standard of Rode. Accordingly, Defendants Giroux and Nicholas are entitled to entry of dismissal.

D. Claims against Defendants Moore, Boyle, Welsh and Harding.

Plaintiff alleges that Defendants Moore and Boyle violated her Eighth Amendment rights regarding the conditions of her confinement because they failed to use reasonable care to avoid a foreseeable risk when they exposed her to serious harm by placing her in unsafe living conditions. (See (Doc. 34 at 4). Plaintiff similarly alleges that Defendants Welsh and Harding violated her Eighth Amendment rights regarding the conditions of her confinement because they failed to exercise reasonable care in the safety and maintenance of her bunk. Id.

Pursuant to the Eighth Amendment, prisoners are protected from cruel and unusual punishment. Farmer v. Brennan , 511 U.S. 825, 834 (1994). Significantly, however, "not all deficiencies and inadequacies in prison conditions amount to a violation of an inmate's constitutional rights." Booth v. King , 228 F.Appx. 167, 171 (3d Cir.2007). "Cruel and unusual punishment will only be found where viewing the totality of the conditions in the prison, the inmate's conditions of confinement, alone or in combination, deprive him of the minimal civilized measure of life's necessities'." Booth , 228 F.Appx. at 171. The United States Supreme Court has made clear that liability under § 1983 requires "more than ordinary lack of due care for the prisoner's interests or safety." Whitley v. Albers , 475 U.S. 312, 319 (1986).

An Eighth Amendment claim against a prison official must meet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer , 511 U.S. at 834; see also Beers-Capitol v. Whetzel , 256 F.3d 120, 125 (3d Cir. 2001). "In prison conditions cases, that state of mind is one of deliberate indifference to inmate health or safety'." Farmer , 511 U.S. at 834). "To establish deliberate indifference: 1) a prison official must know of and disregard an excessive risk to inmate health or safety; 2) the official must be aware of facts from which an inference could be drawn that a substantial risk of serious harm exists, and 3) the official must also draw the inference." Farmer , 511 U.S. at 837.

Here, Plaintiff's own exhibit demonstrates that Defendants were unaware of any unsafe conditions related to the bunk bed and deliberately disregarded any potential issues. (See Doc. 31 at 12, Facility Manager's Appeal Response). In fact, as soon as Defendants became aware of the problem, the bed was replaced. Thus, claims of negligence, without a more culpable state of mind, do not constitute "deliberate indifference." See Singletary v. Pennsylvania Dept. Of Corrections , 266 F.3d 186, 193 n. 2 (3d Cir. 2001).

Moreover, an accidental injury does not amount to an Eighth Amendment violation when prison officials act negligently or are unaware of a substantial risk of serious harm, which results in injury. See Hall v. Wagner, 2010 WL 4273326, at *4 (E.D. Pa. Oct. 29, 2010) (determining that the inmate, who claimed that he fell out of the top bunk because the frame broke, alleged "mere negligence or an accidental injury" and did not set forth a deliberate indifference or cruel and unusual punishment claim). At most, Plaintiff alleges mere negligence or an accidental injury. As such, prison officials are not subject to liability as the result of negligent acts that cause unintended injury to inmates. Daniels v. Williams , 474 U.S. 327 (1986)(holding that inmate who was injured when he slipped on a pillow that was negligently left on the stairs by deputy sheriff does not state claim under § 1983).

E. Equal Protection

To the extent that Duganne claims that Superintendent Giroux violated Plaintiff's Fourteenth Amendment "by denying the Plaintiff protection of her constitutional right to equal protection when she grieved medical doctor Famiglio and the official in charge of the prison allowed his now wife to answer the Plaintiff's grievance denying all claims against the medical doctor, " (Doc. 34), her pleading is patently deficient. It is well-settled that a litigant, in order to establish a viable equal protection claim, must show an intentional or purposeful discrimination. Snowden v. Hughes , 321 U.S. 1, 8 (1944); Wilson v. Schillinger , 761 F.2d 921, 929 (3d Cir. 1985), cert. denied, 475 U.S. 1096 (1986); E & T Realty v. Strickland , 830 F.2d 1107, 1113-14 (11th Cir. 1987), cert. denied, 485 U.S. 961 (1988). This "state of mind" requirement applies equally to claims involving (1) discrimination on the basis of race, religion, gender, alienage or national origin, (2) the violation of fundamental rights and (3) classifications based on social or economic factors. See, e.g., Britton v. City of Erie , 933 F.Supp. 1261, 1266 (W.D. Pa. 1995), aff'd, 100 F.3d 946 (3d Cir. 1996); Adams v. McAllister , 798 F.Supp. 242, 245 (M.D. Pa.), aff'd, 972 F.2d 1330 (3d Cir. 1992).

Duganne fails to allege facts from which it can be concluded that the Defendant Giroux engaged in intentional or purposeful discrimination or that she was treated differently from similarly situated individuals on the basis of her race or some other impermissible reason. Consequently, her equal protection claim will be dismissed.

V. Conclusion

For the reasons stated above, the motion to dismiss filed on behalf of Defendants, Dr. Famiglio and Corizon, Inc., for Plaintiff's failure to allege an Eighth Amendment deliberate indifference claim or HIPPA violation will be granted. The Corrections Defendants' motion to dismiss for Plaintiff's failure to allege an Eighth Amendment claim will also be granted. An appropriate order shall issue.

Eric Christopher Hall, Leesport, PA, pro se.

ORDER

ROBERT F. KELLY, Senior District Judge.

*1 AND NOW, this 29th day of October, 2010, upon consideration of Defendant George Wagner's Motion to Dismiss (Doc. No. 17), it is hereby ORDERED that Defendant's Motion is GRANTED and that Plaintiff's Complaint is dismissed without prejudice.

MEMORANDUM

Presently before the Court is Defendant George Wagner's ("Wagner" or "Defendant") Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, Defendant's Motion is granted.

I. BACKGROUND

Plaintiff Eric Christopher Hall ("Hall" or "Plaintiff") initiated this pro se 42 U.S.C. § 1983 civil rights action against Wagner based on an incident that occurred while he was incarcerated at Berks County Prison (the "Prison"). Notably, Wagner is the Warden at the Prison. Specifically, Hall alleges that he was injured when a weld on the frame of a bunk bed broke as he was climbing onto the top bunk.

On June 17, 2010, Hall filed his original Complaint in this Court. Hall's Complaint consists of the following allegations:

I was climbing onto the top bunk when the frame broke from the weld that held it together.
1. [Wagner] is allowing conditions to exist in his prison that are unsafe. There is no step ladder to safely ascend to the top bunk, therefore causing my injuries.
2. [Wagner] allowed conditions in his prison so extreme that the weld that held this repaired bunk together was faulty, therefore causing my injury.
3. [Wagner] failed to protect me from injury while in his prison.

(Compl. at 4.)

On June 28, 2010, Hall filed an Amended Complaint which describes his alleged injuries in more detail. The Amended Complaint states:

"I, Eric C. Hall, sustained lower back injuries when the bed broke upon me trying to get on the top bunk. The medical treatment that I've been receiving has been only pain medication. I have been scheduled for a M.R.I. and possible surgery by Dr. Gessner because the pain has not subsided. The symptons [sic] of my injuries are consistent with a pinched nerve (sciatic), also stated by Dr. Gessner. I have all of the sick calls and request slip responses concerning the time spand [sic] and continuing complaints of my discomfort. If any further information is necessary please inform me of the specifics [sic].

(Am. Compl. at 1.) The Court will consider the allegations in both the original Complaint and Amended Complaint for purposes of the instant Motion.

II. STANDARD OF REVIEW

A motion to dismiss under Federal Rule of Civil Procedure 12(b) (6) tests the sufficiency of a complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993). Under Rule 12(b)(6), the defendant bears the burden of demonstrating that the plaintiff has not stated a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); see also Hedges v. United States, 404 F.3d 744, 750 (3d Cir.2005). In Bell Atlantic Corporation v. Twombly , the Supreme Court stated that "a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. 544 , 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

*2 Following Twombly, the Third Circuit has explained that the factual allegations in the complaint may not be "so undeveloped that it does not provide a defendant the type of notice which is contemplated by Rule 8." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). Moreover, "it is no longer sufficient to allege mere elements of a cause of action; instead a complaint must allege facts suggestive of [the proscribed] conduct.'" Id. (alteration in original) (quoting Twombly, 550 U.S. at 563 n. 8). Furthermore, the complaint's "factual allegations must be enough to raise a right to relief above the speculative level." Id. at 234 (quoting Twombly, 550 U.S. at 555). "This does not impose a probability requirement at the pleading stage, ' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.'" Id. (quoting Twombly, 550 U.S. at 556).

In Ashcroft v. Iqbal , the Supreme Court applied the Twombly standard, stating that "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" ___ U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550 U.S. at 570). The Supreme Court explained that deciding whether a "complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. "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.

Notwithstanding Twombly and Iqbal, the general rules of pleading still require only a short and plain statement of the claim showing that the pleader is entitled to relief, not detailed factual allegations. Phillips, 515 F.3d at 231. Moreover, when evaluating a motion to dismiss, the court must accept as true all well-pleaded allegations of fact in the plaintiff's complaint, and must view any reasonable inferences that may be drawn therefrom in the light most favorable to the plaintiff. Id .; Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir.2006). The court must "determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Pinkerton v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002).

Importantly, it is well-settled that pro se complaints should be liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Pro se complaints, "however inartfully pleaded, " must be held to "less stringent standards than formal pleadings drafted by lawyers." Id. "If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements." Sloan v. Brooks, No. 08-163, 2010 WL 3420675, at *2 (W.D.Pa. Aug. 10, 2010) (citations omitted). Pursuant to these liberal pleading rules, "during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant." Id. (citing Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997)).

III. DISCUSSION

A. The Instant Motion is Uncontested

*3 As an initial matter, Defendant's Motion is uncontested. Local Civil Rule 7.1(c) states, in relevant part:

Unless the parties have agreed upon a different schedule and such agreement is approved under Local Civil Rule 7.4 and is set forth in the motion, or unless the Court directs otherwise, any party opposing the motion shall serve a brief in opposition, together with such answer or other response which may be appropriate, within fourteen (14) days after service of the motion and supporting brief.... In the absence of timely response, the motion may be granted as uncontested except that a summary judgment motion, to which there has been no timely response, will be governed by Fed.R.Civ.P. 56(c).

Loc. R. Civ. P. 7.1(c) (emphasis added); Fleming v. U.S. Veterans Admin. Med. Ctrs., 348 F.Appx. 737, 738 (3d Cir.2009) ("We agree that the District Court acted within its authority to dismiss the complaint as unopposed pursuant to the Local Civil Rules.").

In this case, Wagner filed the current Motion on August 26, 2010. To date, Hall has not filed a response or requested an extension of time to file a response. Thus, under the plain language of the Local Rule, it would be appropriate to grant the Motion as uncontested. Nevertheless, because the Third Circuit "has recommended that trial courts not grant motions to dismiss pursuant to Rule 12(b)(6) in pro se civil rights actions without analyzing the merits of the underlying complaint, " we will examine the allegations in both Complaints and dispose of the Motion on the merits rather than grant it as uncontested. Credico v. Penn. State Police, No. 09-691, 2010 WL 331700, at *1 n. 1 (E.D.Pa. Jan.27, 2010) (citing Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d Cir.1991)).

B. Hall's Claim Under The Eighth Amendment

In the instant Motion, Wagner argues that Hall has failed to adequately plead a constitutional violation. Although it is not explicitly set forth in the pleadings, we will infer from the pro se Complaints that Hall is proceeding under the Eighth Amendment - alleging that Wagner subjected him to cruel and unusual punishment while he was incarcerated.FN1 We agree that Plaintiff has failed to sufficiently plead an Eighth Amendment violation.

FN1. The pleadings do not specify whether Hall was a convicted prisoner or a pretrial detainee at the time of the alleged constitutional violation. Nevertheless, "[a]lthough the Eighth Amendment's proscription of cruel and unusual' punishments applies only to convicted prisoners and not to pretrial detainees, it is well-settled that the due process clause of the Fourteenth Amendment guarantees detainees the same level of protection mandated by the Eighth Amendment for convicted persons." McKnight v. McDuffie, No. 405-183, 2007 WL 1087280, at *3 n. 2 (S.D.Ga. Apr. 9, 2007) (citing Hamm v. DeKalb Cty., 774 F.2d 1567, 1573-74 (11th Cir.1985)). As a result, the Court will analyze this prison conditions case in light of the relevant Eighth Amendment jurisprudence.

Pursuant to the Eighth Amendment, prisoners are protected from cruel and unusual punishment. Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Significantly, however, "not all deficiencies and inadequacies in prison conditions amount to a violation of an inmate's constitutional rights." Booth v. King, 228 F.Appx. 167, 171 (3d Cir.2007). "Cruel and unusual punishment will only be found where viewing the totality of the conditions in the prison, the inmate's conditions of confinement, alone or in combination, deprive him of the minimal civilized measure of life's necessities.'" Sloan v. Brooks, No. 08-163, 2010 WL 3420675, at *5 (E.D.Pa. Aug.10, 2010) (quoting Booth, 228 F.Appx. at 171). The United States Supreme Court has made clear that liability under § 1983 requires "more than ordinary lack of due care for the prisoner's interests or safety." Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).

*4 An Eighth Amendment claim against a prison official meet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer, 511 U.S. at 834; see also Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.2001). "In prison conditions cases, that state of mind is one of deliberate indifference to inmate health or safety.'" Kimble v. Tennis, No. 05-1871, 2006 WL 1548950, at *2 (M.D.Pa. June 5, 2006) (quoting Farmer, 511 U.S. at 834).

The second prong of the Farmer test is a subjective one, requiring the Plaintiff to establish that Defendants acted with deliberate indifference. Davila-Bajana v. Holohan, No. 04-253, 2010 WL 2757104, at *9 (W.D.Pa. June 17, 2010). "To establish deliberate indifference: 1) a prison official must know of and disregard an excessive risk to inmate health or safety; 2) the official must be aware of facts from which an inference could be drawn that a substantial risk of serious harm exists, and 3) the official must also draw the inference." Id. (citing Farmer, 511 U.S. at 837).

Here, Hall has failed to plead a cognizable claim of an Eighth Amendment violation against Wagner. Specifically, he has not alleged that Wagner was aware of any unsafe conditions related to the bunk bed or deliberately disregarded any potential issues. Hall has simply not provided this Court with any direct or circumstantial facts that would support a conclusion that Wagner was subjectively aware of a risk of harm associated with the structure of the relevant bed.

As the Third Circuit has stated, "[m]ere negligence claims do not constitute deliberate indifference.'" Innis v. Wilson, 334 F.Appx. 454, 457 (3d Cir.2009). Moreover, "[a]n accidental injury does not amount to an Eighth Amendment violation when prison officials act negligently or are unaware of a substantial risk of serious harm, which results in injury." Bennett v. City of Philadelphia, No. 07-2794, 2008 WL 4211701, at *6 (E.D.Pa. Sept. 9, 2008). At most, Plaintiff alleges mere negligence or an accidental injury. The facts alleged certainly do not set forth that Wagner was deliberately indifferent to any risk to Hall's safety or that Hall was subjected to any cruel and unusual punishment.FN2

FN2. Hall's action under § 1983 also fails to the extent that it is based on a theory of respondeat superior. "Claims brought under § 1983 cannot be premised on [this theory]." Kimble, 2006 WL 1548950, at *2 (M.D.Pa. June 5, 2006) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988)). "Rather, each named defendant must be shown, via the complaint's allegations, to have been personally involved in the events or occurrences which underlie a claim." Id. As the Third Circuit has stated, "[a] defendant in a civil rights action must have personal involvement in the alleged "wrongs.... [P]ersonal involvement can be shown through allegations of personal direction or actual knowledge and acquiescence." Rode, 845 F.2d at 1207. In this case, Hall has not averred that Wagner had any personal involvement in the events or occurrences leading up to incident with the bunk bed. Thus, any claim for supervisory liability fails at this stage in the litigation.

For the reasons set forth above, the Court finds that Hall's Complaint and Amended Complaint must be dismissed.

An appropriate Order follows.

Jaime B. Boyd, Chief Counsel's Office, Mechanicsburg, PA, Kathryn M. Kenyon, Pietragallo Gordon Alfano Bosick & Raspanti LLP Chief Counsel's Office, Chief Counsel's Office, Jaime B. Boyd. Mechanicsburg, PA, for Defendants.

Dawn Ball, Muncy, PA, pro se.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, United States Magistrate Judge.

I. Statement of Facts and of the Case

A. Dawn Marie Ball's Litigation History

*1 Dawn Ball's current circumstances inspire both sorrow and concern. Dawn Ball is an inmate housed in the Restricted Housing Unit at the State Correctional Institution (SCI) Muncy, who by her own account suffers from a cascading array of severe mental illnesses, and who has candidly acknowledged that she is profoundly disturbed, informing the Court that:

My mental health is declining. I suffer from OCD so bad I scrub my hands till they bleed, confusion, PTSD, disassociative disorder, I smell, see and hear things not there, severely stressed, phobias, agoraphobia, severe anxiety, lack of interest in things, lack of arousal in things, racing thoughts, suicidal, cognitive problems and disorders, lack of interest in life, disoriented, dizzyness, paranoid-schizophrenic, constant worry, frightened scared, can't properly care for myself, tics, bipolar, manic depressive, mood swings that are so severe, can't think clearly....

Ball v. Beard, No. 1:09-CV-845 (Doc. 42, pp. 6-7)

Furthermore. Ball is also an inmate who has reported to the Court that she engages in multiple episodes of destructive, self-defeating and senseless behavior. For example, recurring themes in Ball's lawsuits include Ball's penchant for smearing feces on herself and her cell, her destruction of her own clothing, and her use of her clothing to plug her toilet and flood her cell with water and human waste. Ball is also, by her own admission, an inmate with a propensity for sudden, explosive rages, as illustrated by the civil complaint which she has filed Ball v. Barr, No. 1:11-CV2240 (M.D.Pa.). In this complaint, Ball describes an episode in which a discussion regarding the aesthetic qualities of a piece of cornbread escalated in a matter of moments into a profanity-laced wrestling match over a food tray.

While she suffers from paranoia, schizophrenia, and experiences these visual and auditory hallucinations, Ball is also a prodigious federal court litigant, bringing numerous lawsuits based upon her perception of the events that take place around her in prison. Indeed, at present Ball has a total of twenty-two lawsuits pending before this Court.FN1 Ball is also a prodigiously unsuccessful litigant, who has had at least three prior lawsuits dismissed either as frivolous or on the grounds that the lawsuit failed to state a claim upon which relief could be granted.

FN1. See, e.g., Ball v. SCI Muncy, No. 1:08-CV-700 (M.D.Pa.); Ball v. SCI Muncy, No. 1:08-CV-701 (M.D.Pa.); Ball v. Hill, No. 1:09-CV-773 (M.D.Pa.); Ball v. Beard, No. 1:09-CV-845 (M.D.Pa.); Ball v. Lamas, No. 1:09-CV-846 (M.D.Pa.); Ball v. Oden, No 1:09-CV-847 (M. D.Pa.); Ball v. Bower, No. 1:10-CV-2561 (M.D.Pa.); Ball v. Sisley, No. 1:11-CV-877 (M.D.Pa.); Ball v. Struther, No. 1:11-CV-1265 (M.D.Pa.); Ball v. Hummel, No. 1:11-CV-1422 (M.D.Pa.); Ball v. Beckley, No. 1:11-CV-1829 (M.D.Pa.); Ball v. Sipe, No. 1:11-CV-1830 (M.D.Pa.); Ball v. Craver, No. 1:11-CV-1831 (M.D.Pa.); Ball v. Powley, No. 1:11-CV-1832 (M.D.Pa.); Ball v. Cooper, No. 1:11-CV-1833 (M.D.Pa.); Ball v. Famiglio, No. 1:11-CV-1834 (M.D.Pa.); Ball v. Eckroth, No. 1:11-CV-2238 (M.D.Pa.); Ball v. Campbell, No. 1:11-CV-2239 (M.D.Pa.); Ball v. Barr, No. 1:11-CV-2240 (M.D.Pa.); Ball v. Giroux, No. 1:12-CV-10 (M.D.Pa.); Ball v. Giroux, No. 1:12-CV-11 (M.D.Pa.); Ball v. Curham, No. 1:12-CV-12 (M.D.Pa.).

B. Ball's Current Lawsuit

It is against the backdrop that Ball instituted the current lawsuit. In this pro se complaint, which Ball filed on October 4, 2011, the plaintiff names 11 defendants and recites a series of medical and scheduling complaints which she has against these prison staff.

At the outset, Ball alleges that four defendants-Lieutenants Hummel, Neese, Barto and Dr. Famiglio-have refused and canceled eye appointments for her for two years. According to Ball, as a result of this failure to treat her eyes, "I'm losing my vision." (Doc. 1) Ball further alleges that Lieutenant Hummel has also refused her other medical appointments in March and April 2011. The nature of these medical appointments is not further described by Ball.

*2 Ball's October 4, 2011, complaint then alleges that another defendant, Dawn Werner, has not ordered new glasses for the plaintiff, to replace a pair of glasses broken in September 2011. Ball further complains that a prison psychologist, defendant D'Addio, gave her medical records to a state hospital without her permission, and "told my private business to corrections officers." According to Ball this "private business" involved the fact that Ball "was going to have a pysch evaluation done for the court." ( Id. )

Ball's October 4, 2011, complaint then levels another allegation against Dr. Famiglio. This allegation, ironically, seems to involve the doctor providing some extra degree of medical care to Ball. Specifically, Ball complains that the doctor has offered her skin lotion, and other medicines, if she refrains from signing up for sick calls, conduct that Ball describes as a "bribe." ( Id. )

Ball further alleges that two corrections staff, Judy Rowe and Gloria Duggan, "made derogatory and slanderous statements against me on their grievance responses. They said I put my fingers in feces and smear it on [medical] requests which is not true." ( Id. ) Ball also contends that these medical scheduling staff, and another medical scheduler identified only as Jane Doe, have improperly refused to handle her medical request forms because of these claims that Ball smears fecal material on the forms. ( Id. )

In addition, Ball's complaint reflects that she has a concern that pap smear test results may reveal abnormalities, but that four defendants - Dr. Famiglio, Dr. Gothwal, Judy Rowe, and Gloria Duggan - "won't tell me the results or they say the results are fine and they are not." ( Id. ) On the basis this bald assertion by Ball that she does not believe medical staff when they tell her she is fine, the plaintiff seeks to sue these individual defendants. ( Id. )

Further, Ball alleges that Dr. Gothwal, and Dr. Famiglio declined to see her on three occasions in April 2011 and twice in May 2011. Ball does not indicate what, if any, medical problems she was experiencing at the time that these physicians declined to see her on these specific dates. ( Id. )

Finally, Ball alleges generally that the defendants have not provided her with adequate health care, and have inappropriately discontinued various medications which she has received in the past. ( Id. )

Ball's complaint then provides a confused and contradictory account of her efforts to exhaust here administrative remedies regarding these various medical complaints, stating: "I believe I exhausted all these claims. If not, I was on grievance restriction or my mail was held.... They refused to send my mail and they made me miss the deadlines around 5/3/11 and did not give me the mail with grievances back till around 5-6-11." ( Id. )

On the basis of these allegations, Ball sues each of the 11 named defendants, seeking injunctive and declaratory relief, as well as punitive and compensatory damages of $5, 000, 000 each. ( Id. ) The defendants have now filed a motion to dismiss Ball's complaint, (Doc. 51), arguing that Ball has failed to exhaust her administrative remedies and has further failed to state claims upon which relief can be granted. ( Id. ) This motion has been fully briefed by the parties, (Docs. 52, and 63), and is now ripe for resolution. For the reasons set forth below, it is recommended that this motion to dismiss be granted, in part, and denied, in part, as follows:

II. Discussion

A. Rule 12(b)(6) and Rule 56 - The Governing Legal Standards

*3 The defendant has filed a motion to dismiss this complaint under 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 1950. 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 1949. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:

*4 [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 1950.

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 a "plausible 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).

In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure which defines what a complaint should say and provides that:

(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

B. Legal Standards Governing Eighth Amendment "Deliberate Indifference" Claims in a Prison Medical Context

These pleading principles apply with particular force to claims, like those made by Ball, which are premised on the degree of medical care which a prisoner receives. Liberally construed, the gravamen of Ball's complaint is that prison officials have violated her rights under the Eighth Amendment to the United States Constitution by displaying "deliberate indifference" to this inmate's medical needs. Ball faces an exacting burden in advancing this Eighth Amendment claim against prison officials in their individual capacities. To sustain such a claim, she must plead facts which:

*5 [M]eet two requirements: (1) "the deprivation alleged must be, objectively, sufficiently serious;" and (2) the "prison official must have a sufficiently culpable state of mind." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quotation marks and citations omitted). In prison conditions cases, "that state of mind is one of deliberate indifference' to inmate health or safety." Id. "Deliberate indifference" is a subjective standard under Farmer - the prison official-defendant must actually have known or been aware of the excessive risk to inmate safety.

Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir.2001).

By including a subjective intent component in this Eighth Amendment benchmark, the courts have held that a mere generalized knowledge that prisons are dangerous places does not give rise to an Eighth Amendment claim. See Jones v. Beard, 145 F.Appx. 743 (3d Cir.2005) (finding no Eighth Amendment violation where inmate - plaintiff complained about cellmate who had a history of psychological problems, but where plaintiff failed to articulate a specific threat of harm during the weeks prior to an attack.) In short, when "analyzing deliberate indifference, a court must determine whether the prison official acted or failed to act despite his knowledge of a substantial risk of serious harm.' Farmer v. Brennan, 511 U.S. 825, 841, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A prisoner plaintiff must prove that the prison official knows of and disregards an excessive risk to inmate health or safety.' Id. at 837." Garvey v. Martinez, 08-2217, 2010 WL 569852, at *6 (M.D.Pa. Feb. 11, 2010).

These principles apply with particular force to Eighth Amendment claims premised upon inadequate medical care. In the medical context, a constitutional violation under the Eighth Amendment occurs only when state officials are deliberately indifferent to an inmate's serious medical needs. Estelle v. Gamble, 429 U.S. 97, 105, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). To establish a violation of his constitutional right to adequate medical care in accordance with this standard, Ball is required to allege facts that demonstrates (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999).

Deliberate indifference to a serious medical need involves the "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104. Such indifference may be evidenced by an intentional refusal to provide care, delayed provision of medical treatment for non-medical reasons, denial of prescribed medical treatment, denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir.1993), or "persistent conduct in the face of resultant pain and risk of permanent injury, " White v. Napoleon, 897 F.2d 103, 109 (3d Cir.1990).

However, it is also clear that the mere misdiagnosis of a condition or medical need, or negligent treatment provided for a condition, is not actionable as an Eighth Amendment claim because medical malpractice standing alone is not a constitutional violation. Estelle, 429 U.S. at 106. "Indeed, prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). Furthermore, in a prison medical context, deliberate indifference is generally not found when some significant level of medical care has been offered to the inmate. Clark v. Doe, 2000 U.S. Dist. LEXIS 14999, 2000 WL 1522855, at *2 (E.D.Pa. Oct. 13, 2000) ("courts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care"). Thus, such complaints fail as constitutional claims under § 1983 since "the exercise by a doctor of his professional judgment is never deliberate indifference. See e.g., Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir.1990) ([A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.')". Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D.Pa.1997).

*6 Applying this exacting standard, courts have frequently rejected Eighth Amendment claims that are based upon the level of professional care that an inmate received; see, e.g., Ham v. Greer, 269 F.Appx. 149 (3d Cir.2008); James v. Dep't of Corrections, 230 F.Appx. 195 (3d. Cir.2007); Gillespie v. Hogan, 182 F.Appx. 103 (3d Cir.2006); Bronson v. White, No. 05-2150, 2007 WL 3033865 (M.D.Pa. Oct. 15, 2007); Gindraw v. Dendler, 967 F.Supp. 833 (E.D.Pa.1997), particularly where it can be shown that significant medical services were provided to the inmate but the prisoner is dissatisfied with the outcome of these services. Instead, courts have defined the precise burden which an inmate must sustain in order to advance an Eighth Amendment claim against a healthcare professional premised on allegedly inadequate care, stating that:

The district court [may] properly dis[miss an] Eighth Amendment claim, as it concerned [a care giver], because [the] allegations merely amounted to a disagreement over the proper course of his treatment and thus failed to allege a reckless disregard with respect to his... care. The standard for cruel and unusual punishment under the Eighth Amendment, established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and its progeny, has two prongs: 1) deliberate indifference by prison officials and 2) serious medical needs. "It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute deliberate indifference.'" "Nor does mere disagreement as to the proper medical treatment support a claim of an eighth amendment violation.".... [The inmate] alleged no undue delay in receiving treatment and, as the district court noted, the evidence he presented established that he received timely care.... Although [an inmate plaintiff] may have preferred a different course of treatment, [t]his preference alone cannot establish deliberate indifference as such second-guessing is not the province of the courts.

James, 230 F.Appx. at 197-198. (citations omitted).

Furthermore, it is well-settled that an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim. See Taylor v. Norris, 36 Fed.Appx. 228, 229 (8th Cir.2002) (deliberate indifference claim failed when it boiled down to a disagreement over recommended treatment for hernias and decision not to schedule a doctor's appointment); AbdulWadood v. Nathan, 91 F.3d 1023, 1024-35 (7th Cir.1996) (inmate's disagreement with selection of medicine and therapy for sickle cell anemia falls well short of demonstrating deliberate indifference); Sherrer v. Stephen, 50 F.3d 496, 497 (8th Cir.1994) (inmate's "desire for a replacement joint instead of fusion surgery is merely a disagreement with the course of medical treatment and does not state a constitutional claim"); Kayser v. Caspari, 16 F.3d 280, 281 (8th Cir.1994) (prison provided escalating level of treatment for inmates's ailments over time, and inmate's disagreement with course of medical treatment was insufficient basis for Eighth Amendment violation); Czajka v. Caspari, 995 F.2d 870, 871 (8th Cir.1993) (inmate's mere disagreement with doctor's informed decision to delay surgery does not establish Eighth Amendment claim); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir.1990) (inmate failed to prove deliberate indifference where his complaints represented nothing more than mere disagreement with course of his medical treatment); Lair v. Oglesby, 859 F.2d 605, 606 (8th Cir.1988) (disagreement about whether doctor should have prescribed medication does not result in constitutional violation); Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir.1985) (Inmate failed to state facts indicating doctor deliberately disregarded his medical problem; inmate's disagreement as to proper medical treatment does not give rise to Eighth Amendment violation). Therefore, where a dispute in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as a constitutional claim under § 1983; see e.g., Gause v. Diguglielmo, 339 F.Appx. 132 (3d Cir.2009) (dispute over choice of medication does not rise to the level of an Eighth Amendment violation); Innis v. Wilson, 334 F.Appx. 454 (3d Cir.2009) (same); Rozzelle v. Rossi, 307 F.Appx. 640 (3d Cir.2008) (same); Whooten v. Bussanich, 248 F.Appx. 324 (3d Cir.2007) (same); Ascenzi v. Diaz, 247 F.Appx. 390 (3d Cir.2007) (same), since "the exercise by a doctor of his professional judgment is never deliberate indifference." Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D.Pa.1997) (citations omitted). In short, in the context of the Eighth Amendment, any attempt to second-guess the propriety or adequacy of a particular course of treatment is disavowed by courts since such determinations remain a question of sound professional medical judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir.1977)).

C. Except for Those Claims Relating to Incidents Occurring in September 2011, At This Time Disputed Factual Issues Preclude The Court from Reaching a Judgment as a Matter of Law Regarding Whether Ball Failed to Properly Exhaust Her Administrative Remedies

*7 Moreover, in this case, the defendants also assert a procedural hurdle to Ball maintaining this action, urging the Court to dismiss the plaintiff's claims because Ball has failed to timely exhaust the administrative remedies available to her. Ball, in turn, has countered this defense claim by asserting that corrections officials frustrated her efforts to exhaust these claims in a timely fashion by placing her on a grievance restriction. However, with respect to this issue, Ball's pleadings are confused and contradictory, with Ball stating: "I believe I exhausted all these claims. If not, I was on grievance restriction or my mail was held.... They refused to send my mail and they made me miss the deadlines around 5/3/11 and did not give me the mail with grievances back till around 5-6-11." ( Id. )

This dispute, which comes before the Court on an incomplete factual record, may be critically important because Ball's alleged failure to timely pursue these administrative remedies can have substantive significance for the plaintiff since the Prison Litigation Reform Act provides that "[n]o action shall be brought with respect to prison conditions under... [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Section 1997e's exhaustion requirement applies to a wide-range of inmate complaints, including damages complaints like those made by Jones grounded in alleged violations of the Eighth Amendment. See Spruill v. Gillis, 372 F.3d 218 (3d. Cir.2004); Booth v. Churner, 206 F.3d 289 (3d Cir.2000). While this exhaustion requirement is not a jurisdictional bar to litigation, this requirement is strictly enforced by the courts. This rigorous enforcement is mandated by a fundamental recognition that § 1997e's exhaustion requirement promotes important public policies. As the United States Court of Appeals for the Third Circuit has noted:

Courts have recognized myriad policy considerations in favor of exhaustion requirements. They include (1) avoiding premature interruption of the administrative process and giving the agency a chance to discover and correct its own errors; (2) conserving scarce judicial resources, since the complaining party may be successful in vindicating his rights in the administrative process and the courts may never have to intervene; and (3) improving the efficacy of the administrative process. Each of these policies, which Congress seems to have had in mind in enacting the PLRA, is advanced by the across-the-board, mandatory exhaustion requirement in § 1997e(a).... [A] a comprehensive exhaustion requirement better serves the policy of granting an agency the "opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court." Moreover, "even if the complaining prisoner seeks only money damages, the prisoner may be successful in having the [prison] halt the infringing practice" or fashion some other remedy, such as returning personal property, reforming personal property policies, firing an abusive prison guard, or creating a better screening process for hiring such guards. And when a prisoner obtains some measure of affirmative relief, he may elect not to pursue his claim for damages. In either case, local actors are given the chance to address local problems, and at the very least, the time frame for the prisoner's damages is frozen or the isolated acts of abuse are prevented from recurring. An across-the-board exhaustion requirement also promotes judicial efficiency.... In cases in which inmate - plaintiffs exhaust their remedies in the administrative process and continue to pursue their claims in federal court, there is still much to be gained. The administrative process can serve to create a record for subsequent proceedings, it can be used to help focus and clarify poorly pled or confusing claims, and it forces the prison to justify or explain its internal procedures. All of these functions help courts navigate the sea of prisoner litigation in a manner that affords a fair hearing to all claims.

*8 Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir.2000) (citations omitted).

Because of the important policies fostered by this exhaustion requirement, it has been held that there is no futility exception to § 1997e's exhaustion requirement. Id. Instead, courts have typically required across-the-board administrative exhaustion by inmate plaintiffs who seek to pursue claims in federal court. Moreover, courts have also imposed a procedural default component on this exhaustion requirement, holding that inmates must fully satisfy the administrative requirements of the inmate grievance process before proceeding into federal court. Spruill v. Gillis, 372 F.3d 218 (3d Cir.2004). Applying this procedural default standard to § 1997e's exhaustion requirement, courts have concluded that inmates who fail to fully, or timely, complete the prison grievance process are barred from subsequently litigating claims in federal court. See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir.2000); Bolla v. Strickland, 304 F.Appx. 22 (3d Cir.2008); Jetter v. Beard, 183 F.Appx. 178 (3d Cir.2006). This requirement of strict adherence to the timetables prescribed by prison grievance policies is compelled by the important policies underlying the PLRA. As the Supreme Court has noted: "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006).

This broad rule admits of one, narrowly defined exception. If the actions of prison officials directly caused, or contributed to, the inmate's procedural default on a grievance, the inmate will not be held to strict compliance with this exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d. Cir.2000). However, case law recognizes a clear "reluctance to invoke equitable reasons to excuse [an inmate's] failure to exhaust as the statute requires." Davis v. Warman, 49 F.Appx. 365, 368 (3d Cir.2002). Thus, an inmate's failure to exhaust will only be excused "under certain limited circumstances, " Harris v. Armstrong, 149 F.Appx. 58, 59 (3d Cir.2005), and an inmate can defeat a claim of failure to exhaust only by showing "he was misled or that there was some extraordinary reason he was prevented from complying with the statutory mandate." Davis v. Warman, supra, 49 F.Appx. at 368. See also, Brown v. Croak, 312 F.3d 109, 110 (3d Cir.2002) (assuming that prisoner with failure to protect claim is entitled to rely on instruction by prison officials to wait for outcome of internal security investigation before filing grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.2000) (exhaustion requirement met where Office of Professional Responsibility fully examined merits of excessive force claim and uncontradicted correctional officers impeded filing of grievance).

*9 In the absence of competent proof that an inmate was misled by corrections officials, was impeded in filing a timely grievance, or some other extraordinary circumstances intervened and prevented compliance with the grievance process, inmate requests to excuse a failure to exhaust are frequently rebuffed by the courts. Thus, an inmate cannot excuse a failure to timely comply with these grievance procedures by simply claiming that his efforts constituted "substantial compliance" with this statutory exhaustion requirement. Harris v. Armstrong, 149 F.Appx. 58, 59 (3d Cir.2005). Nor can an inmate avoid this exhaustion requirement by merely alleging that the Department of Corrections policies were not clearly explained to him. Davis v. Warman, 49 F.Appx. 365, 368 (3d Cir.2002). Thus, an inmate's confusion regarding these grievances procedures does not, standing alone, excuse a failure to exhaust. Casey v. Smith, 71 F.Appx. 916 (3d Cir.2003). Moreover, an inmate cannot cite to alleged staff impediments to grieving a matter as grounds for excusing a failure to exhaust, if it also appears that the prisoner did not pursue a proper grievance once those impediments were removed. Oliver v. Moore, 145 F.Appx. 731 (3d Cir.2005) (failure to exhaust not excused if, after staff allegedly ceased efforts to impede grievance, prisoner failed to follow through on grievance).

In this case, Ball alleges that she either exhausted her grievances, or was on a grievance restriction which prevented her from timely exhausting her administrative remedies. However, Ball's pleadings recite that she was only subject to a grievance restriction in May of 2011. The defendants, in turn, have provided the Court with nothing detailing Ball's grievance history, or identifying when Ball may have been subject to grievance restrictions. On this incomplete factual record, at this time there are unresolved, threshold factual questions which prevent us from reaching any final conclusions regarding whether this exhaustion requirement has been satisfied, or should be excused, with respect to all of Ball's claims which pre-date August 2011. As to these claims, Ball's assertion that she completed the grievance process, coupled with her claim that she was on a grievance restriction in May of 2011, if true, could excuse her delay in exhausting his administrative remedies. See, e.g., Brown v. Croak, 312 F.3d 109, 110 (3d Cir.2002) (assuming that prisoner with failure to protect claim is entitled to rely on instruction by prison officials to wait for outcome of internal security investigation before filing grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.2000) (exhaustion requirement met where Office of Professional Responsibility fully examined merits of excessive force claim and uncontradicted correctional officers impeded filing of grievance). At a minimum, these unresolved questions create a factual dispute which precludes dismissal of these claims at this time. Indeed, where there are factual questions concerning the extent to which an inmate's efforts to exhaust his grievances were impeded or delayed by the actions of prison officials, judgment in favor of the defendants clearly is not appropriate. See, e.g., Knauss v. Shannon, No. 08-1698, 2010 WL 569829 (M.D.Pa. Feb. 12, 2010); Born v. Monmouth County Correctional Institution, No. 07-3771, 2008 WL 4056313 (D.N.J. Aug. 28, 2008).

*10 Thus, at present, disputed issues of material fact prevent us from reaching any final conclusions on the question of whether Ball timely exhausted her administrative remedies with respect to claims which pre-date August 2011. Therefore, it is recommended that this motion to dismiss be denied as to these claims without prejudice to the renewal of this defense on a more complete factual record.

However, with respect to the claims that Ball makes relating to conduct occurring in September of 2011, dismissal of these claims on exhaustion grounds is appropriate. Ball's pleadings do not assert that she was subject to any grievance restriction in September 2011, and the defendants aptly note that the timing of her claims makes it impossible for Ball to have exhausted her administrative remedies with respect to these particular matters.

This legal impossibility stems from the fact that the administrative procedure that state inmates must use to prosecute grievances is provided for in Department of Corrections Administrative Directive 804 (Doc. 48, Ex. B, "DC-ADM 804"). The grievance system is comprised of three tiers. Pursuant to DC-ADM 804, the first step in the inmate grievance process, except for those expressly governed by other procedures, is an initial review. At this stage, an inmate must submit a grievance within 15 working days of the event on which the grievance is based. ( Id. ) An inmate who is dissatisfied with the initial decision may appeal to the Facility Manager within 10 working days from the date of the initial review decision. ( Id. ) At a state correctional institution, the Facility Manager is the institution's Superintendent. If an inmate is not satisfied with the result of the Facility Manager's review of his appeal, he may appeal to final review with the Secretary's Office of Inmate Grievances and Appeals by filing an appeal with that office within 15 working days of the date of the Facility Manager's decision. Extensions to these deadlines could be granted at the discretion of the agency if the inmate submitted a written explanation for a failure to timely file the grievance or an appeal. (DC-ADM 804(VI)(B)(3), (VI)(C)(2) (a), (VI)(D)(1)(c).) Since this process requires more than 30 days to complete, it is impossible for Ball to have fully exhausted these grievances as to matters occurring in September 2011 prior to the filing of her civil complaint on October 4, 2011. Since "[p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings, " Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), Ball's failure to complete the grievance process as to these September 2011 claims requires their dismissal from this action at this time.

D. Many of Ball's Remaining Claims Fail On Their Merits

1. Ball May Not Bring a Private Cause of Action Against Defendant D'Addio Under HIPAA

*11 In addition to this procedural obstacle, many of Ball's remaining claims fail on their merits. For example, in her complaint Ball alleges that a prison psychologist, defendant D'Addio, gave her medical records to a state hospital without her permission, and "told my private business to corrections officers." According to Ball this "private business" involved the fact that Ball "was going to have a pysch evaluation done for the court." Thus, liberally construed, Ball appears to be advancing a novel claim to a private right of action under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 201, alleging that defendant D'Addio violated this health care statute by publicly disclosing health information.

This novel claim warrants only brief consideration. The courts that have examined HIPAA have generally concluded "that HIPAA does not create such a private right [of action for individual plaintiffs]. See Rigaud v. Garofalo, 2005 WL 1030196 (E.D.Pa.2005); Dominic J. v. Wyoming Valley West High School, 362 F.Supp.2d 560 (M.D.Pa.2005); O'Donnell v. Blue Cross Blue Shield of Wyoming, 173 F.Supp.2d 1176 (D.C.Wyo.2001); Brock v. Provident Am. Ins. Co., 144 F.Supp.2d 652 (N.D.Tex.2001); Means v. Indep. Life and Accident Insurance Co., 963 F.Supp. 1131 (M.D.Ala.1997); Wright v. Combined Insurance Co. of America, 959 F.Supp. 356 (N.D.Miss.1997)." Carney v. Snyder, No. 06-23, 2006 WL 2372007, *4 (W.D.Pa. Aug. 15, 2006). Therefore, Ball simply may not maintain a private HIPAA claim against this defendant arising out of the disclosure of her "private business."

2. Many of Ball's Eighth Amendment Medical Care Claims Also Fail

In addition, many of the discrete Eighth Amendment medical care claims advanced by Ball simply fail as a matter of law. As we have noted, in this setting:

The standard for cruel and unusual punishment under the Eighth Amendment, established by the Supreme Court in Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and its progeny, has two prongs: 1) deliberate indifference by prison officials and 2) serious medical needs. "It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute deliberate indifference.'" "Nor does mere disagreement as to the proper medical treatment support a claim of an eighth amendment violation.".... Although [an inmate plaintiff] may have preferred a different course of treatment, [t]his preference alone cannot establish deliberate indifference as such second-guessing is not the province of the courts.

James, 230 F.Appx. at 197-198. (citations omitted).

Judged against this standard we find, at the outset, that Ball's complaint that in October of 2011 that defendant, Dawn Werner, had not ordered new glasses for the plaintiff, to replace a pair of glasses broken in September 2011, simply does not rise to the level of deliberate indifference to a serious medical need, especially since Ball's allegations do not describe any prolonged denial of eye glasses.

*12 Similarly, without further well-pleaded facts, Ball's claim against Dr. Famiglio that involves the doctor providing some extra degree of medical care to Ball, in the form of offering Ball skin lotion, and other medicines, if she refrains from signing up for sick calls, does not describe deliberate indifference to a serious medical condition. Quite the contrary, despite Ball's efforts to describe this conduct as a "bribe, " it appears that the doctor is providing additional, and alternative, care to Ball, a matter of medical discretion which cannot be fairly characterized as deliberate indifference to her needs. While Ball may prefer sick call visits to receipt of this medication, this disagreement between an inmate and doctors over alternate treatment plans does not state a constitutional claim under § 1983. See, Gause v. Diguglielmo, 339 F.Appx. 132 (3d Cir.2009) (dispute over choice of medication does not rise to the level of an Eighth Amendment violation).

Similarly, Ball's complaint that Dr. Gothwal, and Dr. Famiglio declined to see her on three occasions in April 2011 and twice in May 2011, does not state a claim since Ball does not indicate what, if any, medical problems she was experiencing at the time that these physicians declined to see her on these specific dates. In the absence of further well-stated facts this assertion, standing alone, simply does not show deliberate indifference to a serious medical need. At most, it displays a disagreement between an inmate and a doctor concerning the level of care needed by the prisoner, a matter which does not state a constitutional claim under § 1983. See, Gause v. Diguglielmo, supra .

Further, Ball's concern that pap smear test results may reveal abnormalities, but that four defendants - Dr. Famiglio, Dr. Gothwal, Judy Rowe, and Gloria Duggan - "say the results are fine and they are not, " does not state an Eighth Amendment claim. The fact that Ball does not believe medical staff when they tell her she is fine simply does not amount to deliberate indifference to her serious medical needs.

Finally, Ball's allegations that two corrections staff, Judy Rowe and Gloria Duggan, "made derogatory and slanderous statements against me on their grievance responses. They said I put my fingers in feces and smear it on [medical] requests which is not true, " does not state an actionable constitutional claim. In this regard, Ball seems to invite this Court to address a matter which she acknowledges has been the subject of on-going prison grievance proceedings; namely, the question of whether she smears her own feces on documents given to medical staff. We will decline this invitation because Ball's complaint indicates that these statements were allegedly made in grievance responses that are part of on-going prison grievance proceedings. In this setting the fact that Ball can pursue these claims in her grievance proceedings addresses any concerns she may have since: "[F]iling false... charges [against an inmate] does not itself violate a prisoner's constitutional rights, so long as procedural due process protections were provided. See e.g., Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir.1986) (the filing of false charges does not constitute a claim under § 1983 so long as the inmate was granted a hearing and an opportunity to rebut the charges); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir.1984)." Richardson v. Sherrer, 344 F.Appx. 755, 757-758 (3d Cir.2007). See also Booth v. Pence, 141 F.Appx. 66 (3d Cir.2005); Smith v. Mensinger, 293 F.3d 641, 653-54 (3d Cir.2002).

3. Ball's Claim That She Has Been Denied Eye Care For Two Years Is Not Subject to Dismissal

*13 While we conclude that many of Ball's claims fail on substantive and procedural grounds, we find that one assertion made by Ball in this complaint is not subject to dismissal for failure to state a claim upon which relief may be granted. Ball alleges that four defendants-Lieutenants Hummel, Neese, Barto and Dr. Famiglio-have refused and canceled eye appointment for two years. According to Ball, as a result of this failure to treat her vision "I'm losing my vision." (Doc. 1) This assertion, if proven, would support an Eighth Amendment claim. Therefore, the defendants' motion to dismiss this particular claim should be denied.

E. These Flawed Claims Should Be Dismissed Without Prejudice, and The Plaintiff's Claim for $5, 000, 000 in Damages Should be Stricken

While this merits analysis calls for dismissal of many of the claims set forth in this action, we recommend that Ball be given another, final opportunity to further litigate these claims by endeavoring to promptly file a second amended complaint. We recommend this course mindful of the fact that in civil rights cases pro se plaintiffs often should be afforded an opportunity to amend a complaint before the complaint is dismissed in its entirety, see Fletcher-Hardee Corp. v. Pote Concrete Contractors, 482 F.3d 247, 253 (3d Cir.2007), unless granting further leave to amend is not necessary in a case such as this where amendment would be futile or result in undue delay, Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004). Accordingly, it is recommended that the Court provide the plaintiff with an opportunity to correct these deficiencies in the pro se complaint, by dismissing this deficient complaint at this time without prejudice to one final effort by the plaintiff to comply with the rules governing civil actions in federal court.

However, we note that the Court should also strike the claim for a specific sum of unliquidated damages, $5, 000, 000, from this pro se complaint. In this regard, Rule 12(f) of the Federal Rules of Civil Procedure imposes a duty on the Court to review pleadings and provides that the Court may upon its own initiative at any time order stricken from any pleading any immaterial matter. Fed.R.Civ.P. 12(f). Decisions regarding whether claims may be stricken from a complaint are properly presented to a United States Magistrate Judge for determination in the first instance. Singh v. Superintending School Committee of the City of Portland, 593 F.Supp. 1315 (D.Me.1984). In this case, Ball's claim for a specified amount of unliquidated damages violates Local Rule 8.1 which provides, in part, that:

The demand for judgment required in any pleading in any civil action pursuant to Fed.R.Civ.P.8(a)(3) may set forth generally that the party claiming damages is entitled to monetary relief but shall not claim any specific sum where unliquidated damages are involved. The short plain statement of jurisdiction, required by Fed.R.Civ.P.8(a)(1), shall set forth any amounts needed to invoke the jurisdiction of the court but no other.

*14 Local Rule 8.1 (emphasis added).

Since this prayer for relief violates Local Rule 8.1 by specifying a particular amount of unliquidated damages, that specific dollar claim will be stricken from the complaint without prejudice to the Plaintiff arguing in any subsequent trial or hearing on the merits for any appropriate amount of damages supported by the evidence

III. Recommendation

Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendant's motion to dismiss be GRANTED, in part, and DENIED, in part, as follows:

The following claims in the Plaintiff's complaint should be dismissed without prejudice to the plaintiff endeavoring to correct the defects cited in this report, provided that the plaintiff acts within 20 days of any dismissal order:

1. All claims arising out of actions in September, 2011.
2. All claims against defendant Dawn Werner.
3. All claims involving the following matters:
A. Ball's claim against Dr. Famiglio that involves the doctor providing some extra degree of medical care to Ball, in the form of offering Ball skin lotion, and other medicines, if she refrains from signing up for sick calls.
B. Ball's claim that a prison psychologist, defendant D'Addio, gave her medical records to a state hospital without her permission, and "told my private business to corrections officers."
C. Ball's complaint that Dr. Gothwal, and Dr. Famiglio declined to see her on three occasions in April 2011 and twice in May 2011, since Ball does not indicate what, if any, medical problems she was experiencing at the time that these physicians declined to see her on these specific dates.
D. Ball's concern that pap smear test results may reveal abnormalities, but that four defendants - Dr. Famiglio, Dr. Gothwal, Judy Rowe, and Gloria Duggan - "say the results are fine and they are not, " since the fact that Ball does not believe medical staff when they tell her she is fine simply does not amount to deliberate indifference to her serious medical needs.
E. Ball's allegations that two corrections staff, Judy Rowe and Gloria Duggan, "made derogatory and slanderous statements against me on their grievance responses. They said I put my fingers in feces and smear it on [medical] requests which is not true."
F. Ball's claim for a specific sum of unliquidated damages., $5, 000, 000.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

John Dare, Silver Spring, MD, pro se.

Michael C. Colville, Pittsburgh, PA, for Defendants.

MEMORANDUM ORDER

SEAN J. McLAUGHLIN, United States District Judge.

*1 This civil rights action was received by the Clerk of Court on May 17, 2006, and was referred to United States Magistrate Judge Susan Paradise Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

The Magistrate Judge's Report and Recommendation [Doc. No. 20], filed on May 31, 2007, recommended that Defendants' motion to dismiss, or alternatively, for summary judgment [Doc. No. 13] be granted; that the retaliation claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A and 42 U.S.C. § 1997e(c) due to Plaintiff's failure to state a claim; and that Plaintiff's motion to amend the complaint [Doc. No. 19] be denied as futile. The parties were allowed ten (10) days from the date of service to file objections. Service was made on Plaintiff by certified mail and on Defendants. No objections were filed. After de novo review of the motions and documents in the case, together with the Report and Recommendation, the following order is entered:

AND NOW, this 21st day of June, 2007;

IT IS HEREBY ORDERED that Defendants' motion to dismiss, or alternatively, for summary judgment [Doc. No. 13] is GRANTED; the retaliation claim is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A and 42 U.S.C. § 1997e(c) due to Plaintiffs failure to state a claim; and Plaintiff's motion to amend the complaint [Doc. No. 19] is DENIED as futile.

The Report and Recommendation [Doc. No. 20] of Magistrate Judge Baxter, filed on May 31, 2007, is adopted as the opinion of the Court.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

SUSAN PARADISE BAXTER, Chief United States Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss, or alternatively, for summary judgment [Document # 13] be granted.

It is further recommended that the retaliation claim be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c) due to Plaintiffs failure to state a claim.

It is further recommended that Plaintiff's motion to amend the complaint [Document # 19] be denied as futile.

II. REPORT

A. Procedural History

On May 17, 2006, Plaintiff, formerly a federal inmateFN1 incarcerated at FCI-McKean in Bradford, Pennsylvania, filed the instant action. Named as Defendants are: the United States of America; James Sherman, former Warden; Deanna Tronetti, Unit Manager; Robert Fair, Case Manager, all currently or formerly of FCI-McKean; and Steven Brunson, Analyst at U.S. Parole Commission.

FN1. At the time of the filing of this lawsuit, Plaintiff was incarcerated, but he has since been released.

This is a combined Bivens /FTCA action based on Plaintiff's allegation that he was confined in prison more than twenty months past his parole eligibility date. In his original complaint, Plaintiff alleges that staff at both FCI-McKean and the U.S. Parole Commission provided inaccurate information regarding his past criminal history (relating to a 1973 juvenile conviction for Carnal Knowledge) in an attempt to deny him parole. Plaintiff claims that through their actions Defendants violated his First, Fifth, and Eighth Amendment rights under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Further, Plaintiff alleges that the U.S. should be held liable for the gross negligence of its employees under the Federal Tort Claims Act. Finally, Plaintiff alleges that Defendants knew the information to be false and provided it in retaliation for exercising his constitutional rights. Document # 3, ¶ 37. As relief for these alleged wrongs, Plaintiff seeks monetary compensation.

*2 Defendants have filed a motion to dismiss or in the alternative for summary judgment [Document # 13] and Plaintiff has filed a brief in opposition [Document # 17]. Plaintiff has also filed a motion to amend the complaint [Document # 19]. These issues are fully briefed and are ripe for disposition by this Court.

B. Standards of Review

1. Pro Se Litigants

Pro se pleadings, "however inartfully pleaded, " must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears "beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652(1972), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir.1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir.1992); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir.1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.1990) (same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate.

2. Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The motion cannot be granted unless the court is satisfied "that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of the Federal Rules of Civil Procedure states that a pleading must set forth a claim for relief which contains a short and plain statement of the claim showing that the pleader is entitled to relief. Therefore, in order to survive a motion to dismiss for failure to state a claim, the complaint must set forth sufficient information to suggest that there is some recognized legal theory upon which relief can be granted.

3. Failure to state a claim under the PLRA

*3 The Prison Litigation Reform Act provides that:

(b) Grounds for dismissal - On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint - (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C.A. § 1915A. Under Section 1915A, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but is required to do so. Nieves v. Dragovich, 1997 WL 698490, at *8 (E.D.Pa.1997) ("Under provisions of the Prison Litigation Reform Act codified at 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c), the district courts are required, either on the motion of a party or sua sponte, to dismiss any claims made by an inmate that are frivolous or fail to state a claim upon which relief could be granted.").

The PLRA also amended the statutory provisions with respect to actions brought by prisoners who are proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2)FN2 Under this provision as well, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but it is required to do so by mandatory language. See, e.g., Keener v. Pennsylvania Bd. of Probation and Parole, 128 F.3d 143, 145 n. 2 (3d Cir.1997) (describing 28 U.S.C. § 1915(e)(2)(B) as "the PLRA provision mandating sua sponte dismissal of in forma pauperis actions that are frivolous or fail to state a claim."). In performing a court's mandated function of sua sponte reviewing a complaint under 28 U.S.C. § 1915(e) and under § 1915A to determine if it fails to state a claim upon which relief can be granted, a federal district court applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Tucker v. Angelone, 954 F.Supp. 134, 135 (E.D.Va.1977) ("Under 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c) the courts are directed to dismiss any claims made by inmates that fail to state a claim upon which relief could be granted'".).

FN2. Title 28 U.S.C. § 1915(e)(2) provides: "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that - (B) the action or appeal - (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d Cir.2000). The motion cannot be granted unless the court is satisfied "that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). See also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The issue is not whether the plaintiff will prevail at the end but whether he should be entitled to offer evidence in support of his claim. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Scheuer v. Rhodes, 419 U.S. 232 (1974). However, a court need not credit a complaint's "bald assertions" or "legal conclusions" when deciding a motion to dismiss. Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997) citing In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.1997). Therefore, in order to survive a motion to dismiss for failure to state a claim, the complaint must only set forth sufficient information to suggest that there is some recognized legal theory upon which relief can be granted. See Swierkiewicz.

*4 The court's obligation to dismiss a complaint under the PLRA is not excused even after the defendants have filed a motion to dismiss if it appears that the complaint fails to state a claim based upon grounds not raised by the defendants in their motion to dismiss. See, e.g., Lopez v. Smith, 203 F.3d 1122, 1126 n. 6 (9th Cir.2000); Palay v. United States, 125 F.Supp.2d 855, 860 (N.D.Ill.2000).

4. Motion for summary judgment pursuant to Fed.R.Civ.P. 56

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Id.

A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n. 2 (3d Cir.1997). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir.1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact to demand at least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir.1990), quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir.1989) (the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

C. The Bivens Claim

*5 Defendants argue that Plaintiffs Bivens claim should be dismissed pursuant to the favorable termination requirement of Heck v. Humphrey [512 U.S. 447 (1994)] and its progeny.

In Heck, the Supreme Court held that a state prisoner could not maintain a § 1983 action for damages under the civil rights laws if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence... unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." 512 U.S. at 487. The Court recently summarized this so-called "favorable termination requirement" by explaining that a "state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). See also Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006); Muhammad v. Close, 540 U.S. 749, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004).FN3

FN3. The federal courts consistently apply Heck in Bivens -type actions. See Banks v. Hayward, 2007 WL 470472 (3d Cir. February 13, 2007) (applying Heck favorable termination rule in Bivens action); Williams v. Hill, 74 F.3d 1339, 1340 (D.C.Cir.1996) (per curiam) (applying Heck to damages actions against federal officials in actions brought under Bivens ); Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995); Messer v. Kelly, 129 F.3d 1259 (Table) (4th Cir.1997); Stephenson v. Reno, 28 F.3d 26, 27 (5th Cir.1994); Robinson v. Jones, 142 F.3d 905, 906-07 (6th Cir.1998) ("While Heck concerned an action brought under 42 U.S.C. § 1983, we adopt the rule espoused by the Fifth and Eleventh Circuits that the Heck holding applies equally to an action brought under Bivens. "); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir.1997); Martin v. Sias, 88 F.3d 774, 775 (9th Cir.1996); Reed v. Smith, 182 F.3d 933 (Table) (10th Cir.1999); Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.1995).

So then, the law is well established that a claimant cannot use a civil rights action as a vehicle to circumvent the validity of his underlying conviction or the duration of his sentence. Thus, in order to recover damages, a Bivens plaintiff must prove that the conviction has been reversed or declared invalid by a disciplinary appeal. See Banks v. Hayward, 2007 WL 120045, at * 6 n. 7 (W.D.Pa. January 10, 2007), citing Avery v. Nichol, 2000 WL 282903, at *2 (6th Cir.2000). Plaintiff can make no such showing here.

In the instant complaint, Plaintiff alleges violations of his constitutional rights arising out of the denial of his parole eligibility.FN4 Not only has Plaintiff not proven that the duration of his sentence has been reversed or declared invalid, but the term of his incarceration has been specifically upheld by this very Court, as well as the United States Court of Appeals for the Third Circuit. By Order dated May 3, 2006, United States District Judge Sean J. McLaughlin denied the petition for writ of habeas corpus following a Report and Recommendation issued by this Magistrate Judge.FN5 See Dare v. United States Parole Commission, Civil Action Number 05-257E. Plaintiff appealed that determination to the Third Circuit, which upheld this district court's determination on January 9, 2007.FN6

FN4. Plaintiff's parole history is long and procedurally convoluted and need not necessarily be related herein.
FN5. One of the claims raised in the petition was summarized by this Court as "that he is being denied release due to the [U.S. Parole] Commission's improper use of a 1973 conviction under the District of Columbia's Youth Corrections Act to deny Dare access to a Community Treatment Program. Indeed, his status as a prior sex offender is premised upon this conviction, and that status does limit his ability to locate a suitable post-incarceration placement."
FN6. The Third Circuit granted the government's motion for summary affirmance "because it clearly appear[ed] that no substantial question is presented by this appeal."

Here, a finding by this Court that Defendants violated Plaintiff's constitutional rights would "necessarily imply the invalidity" of the sentence, a sentence which has been upheld by this Court and the Third Circuit. Accordingly, Plaintiff's constitutional claim is precluded by Heck and the motion to dismiss should be granted as to this claim.

D. The FTCA Claim

1. The Favorable Termination Requirement of Heck

The FTCA claim should also be dismissed pursuant to the favorable termination requirement of Heck. The United States Court of Appeals for the Third Circuit has not specifically applied the Heck rule in the FTCA context. However, many other Circuit Courts of Appeal, as well as district courts, have applied Heck to FTCA actions, and this Court finds their reasoning persuasive. See Parris v. United States, 45 F.3d 383, 385 (10th Cir.1995) ("[W]e conclude the same common law principles that informed the Supreme Court's decision in Heck should inform the decision of whether an action under the FTCA is cognizable when it calls into question the validity of a prior conviction. We conclude the FTCA, like § 1983, is not an appropriate vehicle for challenging the validity of outstanding criminal judgments."); Rashid v. Monteverde & Hemphill, 1997 WL 360922, at *7 n. 15 (E.D.Pa.1997) (applying Heck to FTCA claims involving false arrest, false imprisonment and malicious prosecution); Hinton v. United States, 91 Fed. Appx., 2004 WL 540473 (6th Cir.2003) (in applying Heck, the appellate court held "here, plaintiff seeks return of the documents for which he stands convicted of forging or counterfeiting, and money damages for the allegedly tortious confiscation of the documents.... plaintiff's claims are not cognizable under the FTCA insofar as a ruling in plaintiff's favor would imply the invalidity of plaintiff's disciplinary conviction."); Bradshaw v. Jayaraman, 205 F.3d 1339 (Table) 1999 WL 1206870, at *2 (6th Cir.1999) (in an FTCA action alleging legal malpractice by appointed criminal defense attorney, two law firm employees and court reporter, the appellate court held "a plaintiff may not bring such a suit for monetary damages under federal law until his conviction has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal, or has otherwise been called into question by a federal court's issuance of a writ of habeas corpus. The holding in Heck bars such actions, whether brought under Bivens, or the FTCA."); Erlin v. United States, 364 F.3d 1127, 1133 (9th Cir.1994) (an FTCA claim "for negligently calculating a prisoner's release date, or otherwise wrongfully imprisoning the prisoner, does not accrue until the prisoner has established, in a direct or collateral attack on his imprisonment, that he is entitled to release from custody."); Watkins v. Holt, 2006 WL 2331090, at *2 (D.D.C.2006) (in an FTCA action alleging negligence by Bureau of Prisons employees in miscalculating a prison sentence, the district court applied Heck holding that "absent a showing that plaintiffs conviction or sentence is invalid, he cannot recover damages under the FTCA."); Echols v. Dwyer, 914 F.Supp. 325, 327 (E.D.Mo.1996) (in an FTCA action alleging legal malpractice by a federal public defender the district court applied Heck ruling "that an action under the FTCA is not cognizable when it calls into question the validity of a prior conviction").

* 6 Although this Court is not willing to apply Heck to every FTCA case, its applicability to the facts as alleged here is particularly relevant. The duration of Plaintiff's sentence has been upheld by Third Circuit, the precise determination he now challenges in this FTCA action. By bringing a tort claim against the United States, Plaintiff is asking this Court to necessarily determine the validity of his allegedly increased sentence. Such an FTCA action in this regard "is not an appropriate vehicle for challenging the validity of outstanding criminal judgments." Parris, 45 F.3d at 385.

Accordingly, the FTCA claim should be dismissed.

E. The Retaliation Claim

Finally, Plaintiff alleges that Defendants retaliated against him by providing inaccurate information following his exercise of some unspecified constitutional right. Inexplicably, Defendants have not moved to dismiss this claim. However, as Plaintiff has failed to state a claim for relief, this Court recommends the dismissal of this action pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c).

"Retaliation for the exercise of constitutionally protected rights is itself a violation of rights secured by the Constitution actionable under section 1983." See White v. Napoleon, 897 F.2d 103, 111-12 (3d Cir.1990). "Government actions, which standing alone, do not violate the Constitution, may nonetheless be constitutional torts if motivated in substantial part by a desire to punish an individual for exercise of a constitutional right." Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.2003), quoting Allah v. Seiverling, 229 F.3d 220, 224-25 (3d Cir.2000).FN7 See also Anderson v. Davila, 125 F.3d 148, 161 (3d Cir.1997) ("An otherwise legitimate and constitutional government act can become unconstitutional when an individual demonstrates that it was undertaken in retaliation for his exercise of First Amendment rights.").

FN7. The Third Circuit has directed that district courts should look carefully at allegations of retaliation. "Because of many prisoners' propensity to wield retaliation claims when confronted with disciplinary actions, district courts must view prisoners' retaliation claims with sufficient skepticism to avoid becoming entangled in every disciplinary action taken against a prisoner." Sims v. Dragovich, 1999 WL 37621 (E.D.Pa.1999), affirmed, 43 Fed.Appx. 523, 2002 WL 1800793 (3d Cir.2002).

In order to state a prima facie case of retaliation, a prisoner plaintiff must demonstrate all three of the following factors:

1) the conduct in which he was engaged was constitutionally protected;
2) he suffered "adverse action"FN8 at the hands of prison officials; and
FN8. To show the "adverse action" necessary to fulfill the second prong, the prisoner plaintiff must demonstrate that defendants' action were "sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights." Allah v. Al-Hafeez, 208 F.Supp.2d 520, 535 (E.D. Pa. June 24, 2002), quoting Allah v. Seiverling, 229 F.3d at 225.
3) his constitutionally protected conduct was a substantial or motivating factor in the decisions to discipline him.

Carter v. McGrady, 292 F.3d 152, 157-58 (3d Cir.2002) (emphasis added), quoting Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.2001).FN9

FN9. Following the satisfaction of a prima facie case of retaliation, the burden then shifts to the defendants to demonstrate, by a preponderance of the evidence, that their actions would have been the same, even if plaintiff were not engaging in the constitutionally protected activities. Carter, 292 F.3d at 158. "Once a prisoner has demonstrated that his exercise of a constitutional right was a substantial or motivating factor in the challenged decision, the prison officials may still prevail by proving that they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest." Rauser, 241 F.3d at 334.

In his complaint, Plaintiff has not specifically identified any constitutionally protected conduct. This Court has thoroughly examined and liberally construed all of Plaintiff's filings in this case and cannot pinpoint any constitutionally protected conduct in which Plaintiff was engaged. As Plaintiff has not even alleged the first prong of a prima facie case of retaliation, this claim should be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c).

E. Futility of Amendment

*7 Plaintiff has filed a motion to amend his complaint seeking to update this Court on happenings since his last filing, as well as provide exhibits in support of his claims.

Federal Rule of Civil Procedure 15(a) states that "leave [to amend] shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. - the leave sought should, as the rules require, be freely given." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (interpreting Federal Rules of Civil Procedure). An amendment would be futile when the complaint, as amended, would fail to state a claim upon which relief could be granted. In re NAHC, Inc. Securities Litigation, 306 F.3d 1314, 1332 (3d Cir.2002).

Nothing in the proposed amendments overcomes the bar of Heck v. Humphrey . Accordingly, the motion to amend should be denied as futile.

III. CONCLUSION

It is respectfully recommended that that the motion to dismiss, or alternatively, for summary judgment [Document # 13] be granted.

It is further recommended that the retaliation claim be dismissed from this action pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A, and 42 U.S.C. § 1997e(c) due to Plaintiff's failure to state a claim.

It is further recommended that Plaintiffs motion to amend the complaint [Document # 19] be denied as futile.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written objections to this report. Any party opposing the objections shall have seven (7) days from the date of service of objections to respond thereto. Failure to timely file objections may constitute a waiver of appellate rights. See Nara v. Frank, ___ F.3d ___, 2007 WL 1321929 (3d Cir. May 08, 2007).


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