United States District Court, M.D. Pennsylvania
JAMES M. DUNYAN, Plaintiff
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, et al., Defendants
before the Court for disposition are two motions to dismiss
Plaintiff James M. Dunyan's complaint, one filed by
Defendants Correct Care Solutions, LLC, (“CCS”),
Dr. Andrew Dancha, Carol Hines, and Dr. Vernon Preston
(collectively referred to herein as the “CCS
Defendants”), on December 21, 2016 (Doc. No. 32), and
one filed by Defendant Wexford Health Sources, Inc.
(“Wexford”), on January 10, 2017. (Doc. No. 35.)
For the reasons provided herein, the Court will grant the CCS
Defendants' motion to dismiss (Doc. No. 32), and will
grant Defendant Wexford's motion to dismiss (Doc. No.
civil rights action was initiated upon the filing of a
twenty-page complaint by pro se prisoner-Plaintiff
James M. Dunyan on October 19, 2016. (Doc. No.
October 21, 2016, the Court issued an Order referring the
case to the Prison Litigation Settlement Program, serving the
complaint on Defendants to facilitate settlement
negotiations, and staying this matter pending resolution of
settlement negotiations. (Doc. No. 5.) On December 15, 2016,
the Court vacated its referral Order upon receipt of a
declaration from Defendants opposing referral on the basis
that mediation would ultimately prove unsuccessful. (Doc.
Nos. 8 and 13.)
allegations forming the basis of Plaintiff's complaint
are as follows. Plaintiff is currently housed at the State
Correctional Institution at Benner, located in Bellefonte,
Pennsylvania. Plaintiff alleges he was first diagnosed with
cataracts in both eyes in 2014 by Dr. Sandards, an
optometrist employed by the Department of Corrections
(“DOC”). (Doc. No. 1 ¶ 42.) In March of
2015, Plaintiff was evaluated by an independent
ophthalmologist, Dr. Adam Marcovitch, who recommended that
Plaintiff undergo cataract surgery in both eyes.
(Id. at ¶ 43.) Plaintiff alleges that Dr.
Marcovitch advised the DOC, and specifically, CCS Defendant
Dr. Dancha, that Plaintiff required cataract surgery in both
eyes. (Id.) However, Plaintiff received cataract
surgery only to his left eye. (Id. at ¶ 44.)
Plaintiff alleges that despite the serious medical need for
cataract surgery to his right eye, the DOC has refused to
authorize this surgery pursuant to the “One Good
Eye” policy. (Id. at ¶¶ 45, 51.)
complains that he has a hypermature cataract in the right
eye, and that the cataract is preventing further detection of
retinal and optic nerve disease, for which he is especially
at risk. (Id. at ¶¶ 36, 52.) He further
complains that his left eye is deteriorating due to the
stress caused by the loss of sight in his right eye, and that
he experiences difficulty in reading and writing, has extreme
headaches, and is substantially limited in his ability to
perform manual tasks. (Id. at ¶¶ 53, 55,
56.) Plaintiff alleges that this administrative policy denies
necessary surgical treatment to inmates with a severe eye
disease in one eye so long as it is determined that the other
eye provides some level of adequate vision. (Id. at
¶¶ 16, 24.)
filed a grievance regarding the decision not to perform
surgery to his right eye. (Id. at ¶45). On May
8, 2015, Plaintiff received a response to his grievance,
which provided that he was “not eligible for cataract
surgery on his right eye, [as] [Plaintiff's] vision is
now considered fair because of the removal of the cataract in
[his] left eye.” (Id. at ¶ 47.) Plaintiff
avers that he has been advised many times by the medical
staff that their refusal to permit surgery to his right eye
is due to the “One Good Eye” policy.
(Id. at ¶ 51.)
argues that as the medical service provider for the DOC,
Correct Care Solutions was under a duty to provide Plaintiff
with appropriate care. However, under the One Good Eye
policy, they have denied him that care; namely, the cataract
surgery to his right eye. (Id. at ¶ 45.)
Plaintiff asserts claims under the Eighth Amendment against
Defendants in their official and individual capacities
(Counts III and V); and a claim under the Pennsylvania
Constitution (Count IV).
December 21, 2016, the CCS Defendants filed a motion to
dismiss Plaintiff's complaint, together with a brief in
support thereto. (Doc. Nos. 32, 33.) On January 10, 2017,
Defendant Wexford filed a motion to dismiss with a supporting
brief. (Doc. Nos. 35, 36.) On February 26, 2017, Plaintiff
filed a counseled brief in opposition to the CCS
Defendants' motion to dismiss. (Doc. No. 42.). The next
day, Plaintiff, through counsel, filed a brief in opposition
to Defendant Wexford's motion to dismiss. (Doc. No. 44.)
No reply brief has been filed. Accordingly, this matter is
now ripe for disposition.
Motion to Dismiss
complaint must set forth “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). This statement must
“give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Fair notice” in the context of Rule 8
“depends on the type of case - some complaints will
require at least some factual allegations to make out a
showing that the pleader is entitled to relief.”
Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d
Cir. 2008) (quotation omitted). “[A] situation may
arise where . . . the factual detail in a complaint is so
undeveloped that it does not provide a defendant the type of
notice of claim which is contemplated by Rule 8.”
Id. A plaintiff must provide more than “labels
and conclusions” or “a formulaic recitation of
the elements of a cause of action” to show entitlement
to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555)
(recognizing that Rule 8 pleading standard “does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
see also Baraka v. McGreevey, 481 F.3d 187, 195 (3d
Cir. 2007) (stating that the court is not “compelled to
accept unsupported conclusions and unwarranted inferences or
a legal conclusion couched as a factual allegation.”)
defendant may attack a complaint by a motion to dismiss under
Rule 12(b)(6) for failure to state a claim upon which relief
can be granted. In deciding a motion to dismiss under Rule
12(b)(6), the court is required to accept as true all of the
factual allegations in the complaint, Erickson v.
Pardus, 551 U.S. 89, 93 (2007), and all reasonable
inferences permitted by the factual allegations, Watson
v. Abington Twp., 478 F.3d 144, 150 (3d Cir. 2007), and
view them in the light most favorable to the plaintiff.
Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007).
If the facts alleged are sufficient to “raise a right
to relief above the speculative level” such that the
plaintiff's claim is “plausible on its face,
” a complaint will survive a motion to dismiss.
Iqbal, 556 U.S. at 663 (citing Twombly, 550
U.S. at 555, 570) (explaining a claim has “facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged”);
see also Phillips, 515 F.3d at 234; Victaulic
Co. v. Tieman, 499 F.3d 227, 234 (3d Cir. 2007);
Stevenson v. Carroll, 495 F.3d 62, 66 (3d Cir.
2007). When a complaint contains 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 664. However, a
court is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Id. at 678 (quoting Twombly, 550 U.S. at
555). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements do not
presented with a pro se complaint, the court should
construe the complaint liberally and draw fair inferences
from what is not alleged as well as from what is alleged.
Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir.
2003); Youse v. Carlucci, 867 F.Supp. 317, 318 (E.D.
Pa. 1994). Such a complaint “must be held to less
stringent standards than formal pleadings ...