United States District Court, W.D. Pennsylvania
OPINION AND ORDER ECF NO. 9
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
James Romanell (“Plaintiff”) initiated this
action against Defendants Correct Care Solutions, LLC and
David Druskin (collectively, “Defendants”),
alleging state law professional negligence claims as well as
a claim for the violation of his rights under the Eighth
Amendment to the United States Constitution, arising out of
Defendants' failure to provide necessary medical
treatment and deliberate indifference to Plaintiff's
serious medical needs.
before the Court is Defendants' Partial Motion to
Dismiss, ECF No. 9. For the reasons that follow, the Partial
Motion to Dismiss will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
Complaint, Plaintiff alleges that in late February 2017, he
suffered a significant injury to his right arm when he was
hit by a moving train. ECF No. 1 ¶ 8. Plaintiff was treated
by trauma surgeons for a complex fracture of his right
humerus. Repair required an open reduction internal fixation,
with the use of screws and plates to hold the bone in
alignment during the healing process. Id.
¶¶ 9-10. Upon Plaintiff's release from the
hospital, he was transferred to the State Correctional
Institution at Fayette (“SCI - Fayette”) with
instructions not to perform any weight-bearing activities
with his right arm. Id. ¶ 12.
intake, SCI - Fayette medical personnel noted that Plaintiff
had just been released from the hospital, with 30 surgical
staples, and wearing a sling. Id. ¶ 13-15. He
was assigned to bottom bunk status and was initially housed
in the infirmary. Id. ¶ 17. Thereafter,
Plaintiff was released to general population and assigned a
top bunk. Plaintiff voiced numerous requests for a bottom
bunk, given his post-surgical non-weightbearing status and
history of back pain, but was told “[t]his isn't
Graterford, ” and his request was denied. Id.
two weeks later, Plaintiff was required to bear weight on his
right arm to reach his bunk, and he felt something
“pop” in his surgically-repaired arm.
Id. ¶ 29. Plaintiff immediately reported his
injury and was told to submit a sick call request. Plaintiff
returned to the medical department on April 17, 2017, and was
seen by Defendant Druskin, a physician's assistant, who
ordered an x-ray. Id. ¶ 31. Plaintiff told
Defendant Druskin that he believed he had broken his arm, but
Druskin stated that nothing could be done until he reviewed
the x-ray, in approximately three weeks. Id. ¶
33. Plaintiff complained that he was in severe pain, but
Druskin said there was nothing he could do, except approve
bottom bunk status. Id. ¶ 35. Plaintiff
returned to his cell and fashioned a splint using two plastic
knives and an ace bandage. Id. ¶¶ 36- 37.
x-ray report revealed that three screws were broken at the
anteromedial aspect of the humerus junction with the plate.
Id. ¶ 37. The diagnostic service recommended
“clinical correlation with appropriate follow
up.” Id. ¶ 40. Plaintiff submitted a
grievance stating that he was in extreme pain, his arm was
visibly deformed, and his muscles weren't working
properly. Id. ¶ 41. He followed up with an
additional request for help, again complaining of
“extreme pain to the point where my hand shakes.”
Id. ¶ 42. Despite receiving the x-ray report on
April 18, 2017, Druskin did not review the report until April
27, 2017. Plaintiff saw Druskin on May 1, 2017, and Druskin
noted that Plaintiff was in pain, and that his x-ray revealed
three screws broken from the lower plate. Id. ¶
45. Druskin informed Plaintiff that his bone had deviated
from the plate but, despite these findings, stated there was
nothing he could do because the bone was healing.
Id. ¶ 46. Druskin did not order an orthopedic
evaluation or treatment for Plaintiff's pain and broken
surgical hardware, but did arrange for a second x-ray.
Id. ¶¶ 47-48. After seeing the second
x-ray, Druskin commented that he could “see what they
mean now” but, rather than arrange or order treatment,
he returned Plaintiff to his cell and told him the bone would
“heal on its own.” Id. ¶ 50. The
diagnostic report revealed that the alignment of
Plaintiff's arm was satisfactory but the “distal
three screws in the orthopedic plate are broken … The
appearance is similar to 4/17/17. Recommend clinical
correlation with appropriate follow-up and additional imaging
as indicated.” Id. ¶ 51.
early May 2017, Plaintiff returned to his surgeon for a
scheduled follow-up. Plaintiff alleges, “[t]he surgeon
was shocked by the state of Mr. Romanell's arm, and
advised that he needed immediate surgery.” Id.
¶¶ 52-53. Plaintiff was admitted to the hospital,
and underwent surgical revision of the previous open
reduction the following day. Id. ¶ 54.
counsel, Plaintiff filed this civil rights action, alleging a
claim against Druskin for the violation of Plaintiff's
Eighth Amendment rights and also alleging claims for
professional negligence against both Druskin and Correct
Care. Defendants responded with the pending Partial Motion to
Dismiss Plaintiff's Eighth Amendment claim. ECF No. 9.
The parties have filed briefs in support and in opposition to
the Partial Motion to Dismiss, ECF Nos. 10 and 16, and the
motion is now ripe for consideration.
STANDARD OF REVIEW
assessing the sufficiency of the complaint pursuant to a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6), the Court must accept as true all material
allegations in the complaint and all reasonable factual
inferences must be viewed in the light most favorable to the
plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir.
2008). While a complaint does not need detailed factual
allegations to survive the motion to dismiss, a complaint
must provide more than labels and conclusions. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
“formulaic recitation of the elements of a cause of
action will not do.” Id. (citing Papasan
v. Allain, 478 U.S. 265, 286 (1986)). “Factual
allegations must be enough to raise a right to relief above
the speculative level” and sufficient “to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 555, 570.
plausibility standard is not akin to a ‘probability
requirement,' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.... Where a
complaint pleads facts that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
‘entitlement to relief.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 557).
other words, at the motion to dismiss stage, a plaintiff is
required to make “a showing' rather than a blanket
assertion of an entitlement to relief.” Phillips v.
County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008).
“This ‘does not impose a probability requirement
at the pleading stage,' but instead ‘simply calls
for enough facts to raise a reasonable expectation that