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Heary v. Folino

United States District Court, W.D. Pennsylvania

March 13, 2017




         Plaintiff Richard Heary (“Plaintiff”) is an inmate in the custody of the Pennsylvania Department of Corrections (“DOC”), and is currently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”). Plaintiff brings this civil rights action against Defendant Doctor Jin (“Dr. Jin” or “Defendant”), alleging that Dr. Jin failed to provide adequate medical care to Plaintiff and that Dr. Jin was deliberately indifferent to Plaintiff's medical needs in violation of his rights provided by the Eighth Amendment to the United States Constitution.

         Presently before the Court is a Motion to Dismiss (the “Motion”) submitted on behalf of Dr. Jin. ECF No. 40. For the reasons that follow, the Motion will be denied.


         It appears that Plaintiff sought medical treatment at SCI-Greene for agonizing pain in his left hand sometime in the middle of 2012.[1] ECF No. 29-1 at 2. According to the Amended Complaint, Dr. Jin subsequently performed surgery on Plaintiff's hand which involved the simple excision and release of fibrous tissue that was causing a contracture.[2] ECF No. 39 ¶ 6. Plaintiff alleges that on or about August 2013, he suffered severe pain as a result of the in-house surgery.[3] Id. ¶ 5. Plaintiff was subsequently seen by Dr. Jin on September 17, 2013. At that time, Plaintiff complained to Dr. Jin about the pain and that he was unable to move “his pinky finger and close his hand, and that the pain was getting worse.” Id. ¶ 7.

         Plaintiff alleges in the Amended Complaint that Dr. Jin told him that there was “nothing else that could be done and told plaintiff that he needed outside medical treatment and he shouldn't have come to prison, that plaintiff wouldn't be going through what he was going through and all he can give him at this time was Ibuprofen (“Motrin”).” Id. ¶ 8. Plaintiff asserts that he told Dr. Jin that he should be able to receive proper treatment for his hand, that the pain was excruciating and the Motrin was not working. Id. ¶ 9. Plaintiff alleges that “Doctor Jin, always gave his personal opinion to plaintiff and was very sarcastic to plaintiff stating: Why should plaintiff care about being able to use his hand, because he was doing life in prison and this is the only treatment he would receive.” Id. ¶ 10. Plaintiff claims that he constantly complained to Dr. Jin about the pain and that Dr. Jin repeatedly ignored Plaintiff, telling him that nothing could be done and that Plaintiff just had to deal with the pain. Id. ¶ 11. Further, Plaintiff asserts that Dr. Jin was the only doctor that he could see and that because Dr. Jin was the Medical Director at SCI-Greene that there was nothing else Plaintiff could do. Id. ¶¶ 14, 16.

         In response to the original Complaint, the DOC Defendants filed a Motion to Dismiss and an accompanying brief on May 16, 2016. ECF Nos. 15, 16. The Medical Defendants, including Dr. Jin, filed a Motion to Dismiss and an accompanying brief on July 29, 2016. ECF Nos. 28, 29. Plaintiff filed an Affidavit/Declaration in Opposition on August 22, 2016, ECF No. 33, and on December 5, 2016, this Court issued an Opinion and Order granting the Motions to Dismiss. ECF No. 38. In the Opinion and Order, this Court found that it was apparent from the original Complaint that Plaintiff's claims against Dr. Jin sounded in negligence and did not give rise to an Eighth Amendment violation. Id. Under these circumstances, although the Court found that permitting Plaintiff to amend his Complaint would likely be futile, to the extent the Plaintiff could allege additional specific facts to make out an Eighth Amendment claim against Dr. Jin, Plaintiff was permitted to file an Amended Complaint only as to Dr. Jin. The Court expressly held that Plaintiff must allege more than negligence. Id. at 13.

         On December 20, 2016, Plaintiff filed an Amended Complaint against Dr. Jin. ECF No. 39. Contrary to this Court's prior Order, Plaintiff has not confined his amendment to his Eighth Amendment claim but has alleged multiple other claims for “damages and injunctive relief under 42 U.S.C. § 1983, alleging negligence . . . . [and] the torts of negligence and malpractice. Id. at 1.

         Dr. Jin filed a Motion to Dismiss and accompanying brief on January 7, 2017. ECF Nos. 40, 41. Plaintiff filed a “Motion is Opposition” and Memorandum of Law in Support. ECF Nos. 45, 46. As such, the second Motion to Dismiss of Dr. Jin is ripe for review.


         In assessing the sufficiency of the complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See California Pub. Empl. Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id., citing Papasan v. Allain, 478 U.S. 265, 286 (1986). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face, ” id. at 570, or where the factual content does not allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). See Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).


         A. Section 1983

         As set forth in the “Introduction” of the Amended Complaint, Plaintiff has brought his claims pursuant to 42 U.S.C. § 1983 ("Section ...

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