United States District Court, W.D. Pennsylvania
Barry Fischer United States District Judge.
REPORT AND RECOMMENDATION
Cynthia Reed Eddy United States Magistrate Judge.
the Court are two motions to dismiss: (i) the Motion to
Dismiss filed by Corizon Health, Inc. incorrectly identified
in the caption as Allegheny County Medical Staff Dept.
through Corizon (ECF No. 44) and (ii) the Motion to Dismiss
filed by Latoya Warren and Orlando Harper (ECF No. 46).
Plaintiff has filed responses in opposition. (ECF No. 56 and
careful consideration of the parties' submissions, in
light of the standards governing motions to dismiss set forth
by the United States Supreme Court in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v.
Iqbal, 556 U.S. 662, 668 (2009), and as articulated in
United States Court of Appeals Third Circuit precedent,
see, e.g., Connelly v. Lane Const. Corp., 809 F.3d
780, 790 (3d Cir. 2016), and for the following reasons, it is
respectfully recommended that the motions be granted and this
case be dismissed with prejudice.
pending is Plaintiff's motion for injunctive relief (ECF
No. 74) and supplement thereto (ECF No. 92), to which
Defendants have responded in opposition. (ECF Nos. 82, 84,
and 95). It is respectfully recommended that the motion be
denied as Plaintiff has not demonstrated a likelihood of
success on the merits of his claims.
also recommended that Defendant Western Psychiatric Hospital,
incorrectly identified in the caption as Wester Physc, be
dismissed sua sponte pursuant to the Court's
statutory responsibility under 28 U.S.C. §§ 1915
and 1915A, to review complaints filed by prisoners, identify
cognizable clams, and sua sponte dismiss any claim
that fails to state a claim upon which relief may be granted.
Procedural and Factual Background
Nathan Rowshawn Hoye (“Plaintiff” or
“Hoye”) initiated this lawsuit while he was a
state prisoner in the custody of the Pennsylvania Department
of Corrections (“DOC”). He alleges that he has
been diagnosed with gynecomastia, which led to a diagnosis of
heart failure, as a result of being prescribed Risperdal
while he was incarcerated at the Allegheny County Jail
(“ACJ”) from May 2, 2013, until May 7, 2015.
case was initiated on January 5, 2017, when the court
received Plaintiff's complaint. (ECF No. 1). Because the
complaint was received without a filing fee or the forms
required to proceed in forma pauperis, the case was
statistically closed. After some intervening proceedings
regarding the payment of the filing fee, the complaint was
formally filed on March 13, 2017. (ECF No. 8). Thereafter,
Plaintiff filed two supplements to his complaint. (ECF Nos.
12 and 24). Named as defendants were the Allegheny County
Jail and Warden Orlando Harper and Deputy Warden Latoya
filed motions to dismiss in May of 2017, and Plaintiff was
ordered to respond to the motions by June 27, 2017. (ECF No.
30). On June 6, 2017, Plaintiff notified the Court that he
had been transferred to a new facility and was unable to
respond to the motions as he was not in possession of his
legal papers. (ECF No. 31). In light of this development, the
Court administratively closed the case on June 14, 2017, and
instructed Plaintiff to advise the Court immediately when he
would be able to respond to the outstanding motions. (ECF No.
32). On August 31, 2017, Plaintiff notified the Court that he
had been “permanently” transferred to
SCI-Houtzdale and Plaintiff was granted leave until September
21, 2017, to file either a response to the motions to dismiss
or an amended complaint.
September 13, 2017, Plaintiff filed an Amended Complaint (ECF
No 40) in which he added two additional defendants: Kathryn
M. Kenyon, Esquire,  and Western Psych. The amended complaint
supersedes the original complaint and remains the operative
pleading in this case.
amended complaint, Plaintiff explains that two months before
he was incarcerated at ACJ, he was either hospitalized or
receiving treatment at Western Psychiatric Hospital in
Oakland, PA, and Risperdal was prescribed to him for
treatment of his anxiety and other unspecified mental health
condition. On May 2, 2013, he began his incarceration at ACJ,
where his prescription for Risperdal was continued. Plaintiff
remained in ACJ for approximately two years until on or about
May 7, 2015, when he was transferred into state custody. On
May 14, 2015, during a physical examination at SCI Camp Hill,
the medical department “noticed” Plaintiff had
gynecomastia. In his amended complaint, Plaintiff avers that
he first complained about the gynecomastia condition to ACJ
officials in July and August of 2017, when he was returned on
writ to ACJ. He states that he did not complain about the
gynecomastia during his incarceration at ACJ from May 2, 2013