United States District Court, W.D. Pennsylvania
VINCENT M. CAMPBELL, Plaintiff,
WEXFORD CORP., et al., Defendants
OPINION AND ORDER 
SUSAN PARADISE BAXTER, Magistrate Judge.
A. Relevant Procedural History
On January 24, 2014, Plaintiff Vincent M. Campbell, an inmate incarcerated at the State Correctional Institution at Forest in Marienville, Pennsylvania ("SCI-Forest"), initiated this civil rights action by filing a pro se complaint pursuant to 42 U.S.C. § 1983 [ECF No. 3]. Plaintiff subsequently filed an amended complaint on May 6, 2014 [ECF No. 16], and a second amended complaint on May 29, 2014 [ECF No. 21], the latter of which is deemed to have superseded the prior two complaints and is the operative pleading in this case.
Named as Defendants in the second amended complaint are: RN Ferdarko (erroneously identified by Plaintiff as "Dr. Ferdanko"), a registered nurse at SCI-Forest ("Ferdarko"); Wexford Corp., the health care service provider under contract with the Pennsylvania Department of Corrections to provide medical services to inmates at SCI-Forest ("Wexford"); and three employees of Wexford, Dr. McGarvie ("McGarvie"), Rhonda Sherbine ("Sherbine"); and Beverly O'Rourke (O'Rourke").
In his second amended complaint, In particular, Plaintiff alleges that he has epididymitis allegedly caused by chlamydia, which causes him to experience "penile leakage" having a "goldish" color (ECF No. 21, Second Amended Complaint, at p. 4). Plaintiff alleges that, on or about October 30, 2013, he held a clear plastic medical cup containing "penile discharge" and asked to see medical, but his request was denied. Plaintiff alleges further that he presented the same, or a similar, medical cup filled with "penile discharge" to Defendants Ferdarko and Sherbine, and asked them to perform a culture test. According to Plaintiff, Defendant Sherbine instructed him to dispose of the cup in a "red bio hazard trash can, " and Defendant Ferdarko allegedly stated "it is what it is - just wait till you get out" (Id. at p. 7). Plaintiff complains that he has already been given four 6-week cycles of antibiotics; one 21-day cycle of antibiotics; and another 90-day cycle of antibiotics; yet, he still has "abnormal acne bumps" and has not been sent to see a "disease specialist" (Id. at pp. 5-6). As a result, Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs in violation of his rights under the eighth and fourteenth amendments to the United States Constitution. As relief for his claims, Plaintiff seeks declaratory and injunctive relief, as well as compensatory and punitive damages.
On June 9, 2014, the Defendant Ferdarko filed a motion to dismiss second amended complaint [ECF No. 23] arguing that Plaintiff's claims against him should be dismissed for failure to state a claim upon which relief may be granted. Despite having been granted more than ample time to file a response to Defendant's motion, Plaintiff has failed to do so. This matter is now ripe for consideration.
B. Standards of Review
1. Motion to Dismiss
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. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act).
The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although the United States Supreme Court does "not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face." Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a showing' rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). "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." Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556.
The Third Circuit Court has prescribed the following three-step approach to determine the sufficiency of a complaint under Twombly and Iqbal:
First, the court must tak[e] note of the elements a plaintiff must plead to state a claim.' Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth.' Finally, where there are well-pleaded factual allegations, a court should assume their veracity ...