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Dunlap v. Smith

United States District Court, M.D. Pennsylvania

June 2, 2015

RICHARD SMITH, et al., Defendants


Kosik, Judge.

Plaintiff, Joshua E. Dunlap, filed this civil rights action pursuant to 42 U.S.C. § 1983 while confined at the Centre County Prison, Bellefonte, Pennsylvania.[1] In the complaint, Plaintiff appears to allege that Defendants were deliberately indifferent to his medical needs in violation of the Eighth Amendment. Pending are Plaintiff’s motions to supplement the complaint (Doc. 16), for entry of default (Docs. 18, 24) and to decide the necessity of filing a certificate of merit and for the appointment of counsel (Doc. 32). Also pending are Defendants’ motions to dismiss the complaint (Docs. 25, 28).

I. Background

Named as Defendants are the following Centre County Prison employees: Richard Smith, Warden; Tom Toolan and David Goodman, Licensed Practical Nurses; Holly Baney, Physician’s Assistant; and Larry Lidgett, Registered Nurse. Plaintiff alleges that in early April of 2014, he was diagnosed by the doctor at the Centre County Prison with a reoccurrence of basal cell carcinoma on his scalp. The doctor ordered that a biopsy be performed followed by removal outside of the prison. (Doc. 1 at 2.)

On July 4, 2014, Defendant Baney attempted to “surgically remove the basal cell cancer” at the prison with no one else present except Defendant Goodman. Baney administered numerous shots to numb the affected area. During the surgery, Plaintiff experienced severe pain. At one point, Baney asked Plaintiff if he would prefer that the procedure be stopped so that he could “. . . go to a place that can properly numb [him].” (Id.) Because Plaintiff had already been subjected to so much pain, had a large open incision and was worried about infection, he permitted Baney to finish.

Ten days after the procedure, Plaintiff was informed that his stitches needed to be removed. Defendant Goodman removed the stitches in “a painful long tedious procedure.” (Id. at 3.) Goodman was asked whether the removed tissue had been sent away to be analyzed. He informed Plaintiff that the report on the tissue came back showing that the edges were not clear and that Defendant Baney had not gone deep enough. He was further advised that he would need to see an outside professional.

In response to the foregoing, Plaintiff sent requests to Defendant Smith, the Deputy Warden, and Defendant Toolan raising concerns as to what now would be done and whether Baney and Goodman were qualified and authorized to conduct the procedures they performed at the prison in defiance of the prison doctor’s orders. Plaintiff claims that Defendants Toolan and Lidgett arranged the surgery and talked to him directly. Plaintiff claims that Warden Smith oversees daily operations at the prison and was aware of the procedures. As relief, he seeks monetary damages, including the payment for any future procedures necessary such as plastic surgery to cover up the scarring from the unsuccessful procedure performed by Defendants.

Service of the complaint was directed on July 31, 2014. Two supplements thereto have been accepted by the court that set forth related incidents occurring since the filing of this action. (Docs. 12, 14.) In the supplements, Plaintiff states that he met with the prison doctor on August 6, 2014, and was informed that an appointment with an outside dermatologist was being scheduled to have the cancer removed. The doctor confirmed that Baney was only supposed to perform a biopsy, and not attempt to perform surgery to remove the cancer. (Doc. 12.) On August 12, 2014, Plaintiff was taken to a dermatology specialist in State College, Pennsylvania for removal of the basal cell cancer. He claims that he experienced no pain and was provided antibiotic cream and instructions to have the bandage changed every day for 6 weeks. He further alleges that Defendant Toolan misrepresented to him that Defendant Baney specialized in dermatology. (Doc. 14.)

Plaintiff has since filed another motion to supplement the complaint with additional information (Doc. 16), and a supplement to the complaint (Doc. 19). He has also filed two motions seeking the entry of default due to Defendants’ alleged failure to respond to the complaint (Docs. 18, 24) and a motion to compel service and answer to his complaint (Doc. 23).

Also pending are motions to dismiss the complaint filed by Defendants Goodman, Baney, Lidgett and Toolan (Doc. 25) and Defendant Smith (Doc. 28). Plaintiff has filed opposition to both motions. He has also filed a document entitled “Motion to Decide Certificate of Merit Applicability to Plaintiff’s Complaint/ Extension of Time for Certificate if Needed/Appointment of Counsel.” (Doc. 32.)

II. Discussion

A. Supplements to the complaint

In Documents 16 and 19, Plaintiff sets forth further information related to the allegations set forth in his complaint and occurring since the filing of the complaint and earlier supplements thereto. For instance, he claims that Defendants have failed to provide him with the aftercare ordered by the dermatologist following his surgery on August ...

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