United States District Court, W.D. Pennsylvania
Motion to Dismiss or for Summary Judgment [ECF No. 9]
PARADISE BAXTER United States District Judge.
civil action was filed in this Court on September 24, 2018.
Plaintiff, an inmate incarcerated at the Federal Correctional
Institution at Loretto, brings this action against Dr. Kim
Swindell and Physician's Assistant Stephanie Hoover,
employees at the FCI-Loretto.
complaint, Plaintiff, acting pro se, alleges that
Defendants denied him medical care following a serious fall
in February 2018 thereby violating his Eighth Amendment
rights against cruel and unusual punishment. Plaintiff seeks
to enforce his constitutional rights against these federal
employees by way of Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
in response to the complaint, filed a motion to dismiss or in
the alternative for summary judgment. ECF No. 9. As grounds
for its motion, Defendants argue: 1) the action should be
dismissed because allegations of medical malpractice do not
amount to a constitutional violation; 2) Hoover is a PHS
employee and is absolutely immune from suit; 3) malpractice
claims must be dismissed because Plaintiff did not file
Certificates of Merit; and 4) alternatively, individual
Defendants are entitled to qualified immunity. Not all of
Defendants' arguments need to be addressed herein.
Plaintiff has voluntarily withdrawn his claims against Ms.
Hoover [see ECF No. 13] and Plaintiff has not raised
any medical negligence claims in this action.
has filed a brief in opposition. ECF No. 13. This motion is
fully briefed and is ripe for disposition by this Court.
motion to dismiss filed pursuant to Rule 12(b)(6) must be
viewed in the light most favorable to the plaintiff and the
complaint's well-pleaded allegations must be accepted as
true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007).
A complaint must be dismissed pursuant to Rule 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 (2007).
request that this Court consider evidence outside of the
pleadings in support of their motion to dismiss. Where a
court receives and considers matters outside the pleadings in
support of a motion to dismiss, the motion to dismiss should
be converted into a motion for summary judgment. Fed.R.Civ.P.
12(d) (“If, on a motion under Rule 12(b)(6) . . .
matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”). See Dorsey v.
Pennsylvania Department of Corrections, 2016 WL 6124420,
at *3 (M.D. Pa. 2016). In such a situation, a district court
must provide sufficient notice of the conversion to the
non-moving party and allow that non-moving party, especially
a pro se prisoner plaintiff, to submit materials to
oppose summary judgment. Renchenski v. Williams, 622
F.3d 315, 340-341 (3d Cir. 2010). Here, this Court provided
such a notice to Plaintiff. ECF No. 11. Accordingly, the
motion to dismiss shall be treated as a motion for summary
Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted if the “movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Under Rule
56, the district court must enter summary judgment against a
party “who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “[A] party
seeking summary judgment always bears the initial
responsibility of informing the district court of the basis
for its motion, and identifying those portions of ‘the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any,' which it believes demonstrate the absence of a
genuine issue of material fact.” Id. at 323,
quoting Fed. R. Civ. P. 56.
moving party has the initial burden of proving to the
district court the absence of evidence supporting the
non-moving party's claims. Id. at 330; see
also Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir.
2007). After the moving party has satisfied this low burden,
the nonmoving party must provide facts showing that there is
a genuine issue for trial to avoid summary judgment.
Id. at 324.
state an Eighth Amendment violation in the medical context, a
plaintiff must plausibly allege “‘(i) a serious
medical need, and (ii) acts or omissions by prison officials
that indicate deliberate indifference to that
need.'” Anderson v. Bickell, 2018 WL
5778241, at *2 (3d Cir. Nov.2, 2018) quoting Parkell v.
Danberg, 833 F.3d 313, 337 (3d Cir. 2016). Allegations
of mere negligence or disagreement with medical decisions are
insufficient to establish deliberate indifference. Id.;
see Spruill v. Gillis,372 F.3d 218, 235 (3d Cir. 2004).
“That is because ‘prison officials are afforded
considerable latitude in the diagnosis and treatment of
prisoners.'” Anderson, 2018 WL 5778241, at
*2, quoting ...