United States District Court, M.D. Pennsylvania
ENRICO F. LANZA, JR., Plaintiff
MICHAEL A. MOCLOCK, M.D., etal., Defendants
P. Mariani United States District Judge
Enrico Lanza ("Lanza"), an inmate currently
confined at the State Correctional Institution in Coal
Township, Pennsylvania ("SCI-Coal Township"),
initiated the instant action pursuant to 42 U.S.C. §
1983. (Doc. 1). Named as Defendants are Karen (Merritt)
Scully, Thomas S. McGinley, Michael A. Moclock, M.D.,
Nicholle Boguslaw, PA-C, and Wexford Health Sources, Inc.
Merritt Scully and McGinley filed an answer to the complaint
with affirmative defenses. (Doc. 14). Defendants Moclock,
Boguslaw, and Wexford filed motions to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6). (Docs. 24, 26). The
motions are ripe for disposition and, for the reasons set
forth below, the Court will grant the motions to
Motion to Dismiss Standard of Review
complaint must be dismissed under Fed.R.Civ.P. 12(b)(6), if
it does not allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). The plaintiff must aver "factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
a complaint 'does not need detailed factual allegations,
... a formulaic recitation of the elements of a cause of
action will not do.'" DelRio-Mocci v. Connolly
Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing
Twombly, 550 U.S. at 555). In other words,
"factual allegations must be enough to raise a right to
relief above the speculative level." Covington v.
Int'l Ass'n of Approved Basketball Officials,
710 F.3d 114, 118 (3d Cir. 2013) (internal citations and
quotation marks omitted). A court "take[s] as true all
the factual allegations in the Complaint and the reasonable
inferences that can be drawn from those facts, but...
disregard[s] legal conclusions and threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements." Ethypharm S.A. France v. Abbott
Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013)
(internal citations and quotation marks omitted).
Twombly and Iqbal require [a district
court] to take the following three steps to determine the
sufficiency of a complaint: First, the court must take 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 and
then determine whether they plausibly give rise to an
entitlement for relief.
Connelly v. Steel Valley Sch. Dist, 706 F.3d 209,
212 (3d Cir. 2013).
the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has
alleged - but it has not show[n] - that the pleader is
entitled to relief." Iqbal, 556 U.S. at 679
(internal citations and quotation marks omitted). This
"plausibility" determination will be a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
even "if a complaint is subject to Rule 12(b)(6)
dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or
futile." Phillips v. Cnty. of Allegheny, 515
F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his
complaint after a defendant moves to dismiss it, unless the
district court finds that amendment would be inequitable or
futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.
Allegations of the Complaint and Supporting
allegations of the complaint relate to Lanza's medical
care and treatment at SCI-Coal Township. (Doc. 4). Lanza
alleges that Defendants were deliberately indifferent to his
serious medical needs. (Id.).
alleges that he separated and fractured his shoulder in 2011.
(Doc. 4, p. 3). He further alleges that six years later, he
underwent an x-ray of his shoulder, and Defendant Moclock
allegedly "said there was nothing that could be done
about it and refused medical treatment." (Id.).
Lanza asserts that Defendants Boguslaw and Moclock refused
medical treatment and pain medication for his shoulder,
despite constant pain and loss of arm function.
(Id.). He claims that Defendant Moclock stopped the
operation he was going to have for his separated shoulder,
refused the injections that were prescribed by a specialist,
and refused to order pain medication. (Id. at p. 6).
states that he underwent back surgery for spinal stenosis in
2016. (Doc. 4, p. 3). He alleges that Defendant Moclock
failed to provide the medications prescribed by the
neurosurgeon. (Id. at pp. 3, 6). Lanza claims that
he experienced back and leg pain after the back surgery, but
did not receive any treatment. (Id. at p. 3).
further alleges that Defendant Boguslaw charged him for sick
call, forced him to buy Motrin from the commissary, falsified
medical records, "conspired" with Defendant Moclock
to refuse medication, and lied to him about ordering tests.
(Doc. 4, p. 6).
also alleges that Defendant Moclock abused drugs and alcohol
in 1999, 2001, and 2004. (Doc. 4, p. 7). Lanza asserts that
Defendant Moclock underwent a mental health and physical
examination, and was allegedly diagnosed with opioid
dependence, alcohol dependence, and major depression.
(Id.). Lanza states that Defendant Moclock is
"believed" to have been charged with driving under
the influence in 2014. (Id.).
relief, Lanza seeks one million dollars for every year he has
suffered, for a total of six million dollars, from Defendant
Moclock. (Doc. 4, p. 6). He seeks one million dollars from
Defendants Boguslaw and McGinley, two million dollars from
Defendant Merritt Scully, and five million dollars from
Defendant Wexford. (Id. at pp. 6-7). Additionally,
Lanza requests that the Court revoke the professional
licenses of Defendants Moclock, Boguslaw, and Merritt Scully,
and void the contract between the Department of Corrections
and Wexford. (Id. at p. 6).
attached the following exhibits to his complaint.
August 26, 2015, Lanza filed an inmate request to staff
member form complaining about medical co-payments and the
requirement of filing sick call slips. (Doc. 4, p. 27). Lanza
also requested a copy of all of his medical records.
[Id.). In response, Lanza was advised that he may
submit a request to review all of his medical records.
(Id.). On September 9 and 28, 2015, Lanza filed
inmate request to staff member forms complaining about pain
in his legs. (Id. at p. 28-29). He was advised to
sign up for sick call. (Id.).
October 29, 2015, Lanza filed a grievance requesting renewal
of his Motrin prescription, and requesting reimbursement of a
$25.00 co-pay. (Doc. 4, p. 30). The grievance was denied on
initial review as follows:
Mr. Lanza, KG8741, the record indicates that your last order
for motrin expired in March. By policy, it is at the
discretion of the practitioner as whether or not you are
charged for a visit and or medication. Additionally, any
unscheduled visit made at an inmate[']s request is also
charged. Copay applies in this case.
I consider this grievance denied.
(Id. at p. 31). On appeal, the Facility Manager
upheld the initial review response as follows:
I have reviewed your appeal and initial review response by
Mr. Yackiel, RN Supervisor. I am not a medical professional
neither are you so we both must rely on those who are to give
us the best medical advice. You believe they are wrong
however after speaking to Ms. Merritt, CHCA who consulted
with the Medical Director, I have been assured the level of
care being provided to you is in fact appropriate.
The Facility Manager upholds the initial review response.
(Id. at p. 33). Lanza then appealed to the
Secretary's Office of Inmate Grievance and Appeals
("SOIGA"). (Id. at p. 44). The Chief
Grievance Officer denied Lanza's appeal, and found as
This office is in receipt of your appeal, has reviewed all
applicable documents, and consulted with relevant
professional staff. In your grievance, you state that medical
is forcing you to sign up for sick call so you can be charged
for a part of your chronic medications. You indicate that
this has been done multiple times and request to be
reimbursed $25.00 and have the Motrin renewed with your other
medications every six months.
A review of the records by the Bureau of Health Care Services
(BHCS) reflects that the medical care provided was reasonable
and appropriate for pain management and the recommendation of
obtaining NSAID medication at the commissary. These clinical
decisions are made by the attending practitioner. You are
encouraged to participate in your treatment plan and to
discuss your concerns or changes of ...