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Burnside v. Swindell

United States District Court, W.D. Pennsylvania

August 9, 2019

JOHN OTIS BURNSIDE, Plaintiff,
v.
DR. KIM SWINDELL, et al, Defendants.

         Re: Motion to Dismiss or for Summary Judgment [ECF No. 9]

          MEMORANDUM OPINION

          SUSAN PARADISE BAXTER United States District Judge.

         Relevant Procedural History

         This 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.

         In his complaint, Plaintiff, acting pro se[1], 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).

         Defendants, 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 Plaintiff has voluntarily withdrawn his claims against Ms.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.

         Plaintiff has filed a brief in opposition. ECF No. 13. This motion is fully briefed and is ripe for disposition by this Court.

         Standard of Review

         A 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).

         Defendants 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 judgment.

         Federal 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.

         The 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.

         Deliberate indifference

         To 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 ...


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