Opinion
Civil Action No. 04-1039.
October 21, 2004
MEMORANDUM AND ORDER
In this pro se prisoner civil rights case, plaintiff asserts claims of unconstitutional misuse of force, denial of due process in not allowing plaintiff to file a grievance, and the denial of medical treatment for injuries inflicted during the misuse of force.
The named defendants to date are John Masters, Warden of the Chester County Prison, a Corporal English, an employee of the Chester County Prison, and Primecare Medical, Inc. ("Primecare"), which, according to plaintiff's allegations, provided medical services in the Chester County Prison.
Two motions are now pending before the Court, the motion to dismiss of Primecare, and the motion of plaintiff to amend his complaint. Ordinarily, pursuant to Rule 15 F.R.Civ.P., the Court would automatically allow an amendment to the complaint as to Primecare, because it has not filed a responsive pleading. However, plaintiff also wishes to add additional parties.
In its motion to dismiss, Primecare first asserts that plaintiff's complaint should be dismissed because it fails to demonstrate a complete indifference to a serious medical condition, relying on Estelle v. Gamble, 429 U.S. 97 (1976), which held that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Id. at 104 (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)); see also Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). Additionally, Primecare contends that the complaint should be dismissed because plaintiff's cause of action is premised upon vicarious liability, which is not proper under Section 1983, citing Little v. Lycoming County, 912 F. Supp. 809 (M.D. Pa. 1996), aff'd 101 F.3d 691 (3d Cir. 1996), which held that respondeat superior is not a basis for a claim asserted under Section 1983.
Plaintiff's motion to amend (Docket No. 19) desires to assert additional claims of damages, which would ordinarily not constitute sufficient reason to amend the complaint. He also wishes to add a Ms. Terry Carnes and a male nurse only identified at this time as Bill, both persons allegedly representing Primecare, and plaintiff wishes to sue both of them in "their official and personal capacity."
Plaintiff has also submitted to the court a request for production of documents, apparently not realizing that discovery pleadings should not be filed with the Clerk but are only served upon counsel for opposing parties.
After reviewing the pleadings, the court is of the opinion that plaintiff's complaint cannot be dismissed for failing to allege deliberate indifference to a serious medical condition, in that plaintiff makes a serious factual allegations that his injuries were ignored by Primecare.
Primecare is correct that it cannot be subject to a suit on the theory of vicarious liability. However, now that plaintiff has indicated a desire to add as defendants two individuals who are "representing" Primecare, the Court will deny the motion to dismiss and allow plaintiff to file an amended complaint, in which the plaintiff must follow the pleading rules set forth in Rule 8 F.R.Civ.P., and specify, in chronological order, the events upon which his claims are based, the acts or omissions committed by each defendant, and a claim for relief. Unless plaintiff makes specific claims supporting liability of Primecare and its employees — other than the claims based on vicarious liability — the court will then consider and may grant a renewed motion to dismiss.
An appropriate Order follows.
ORDER
AND NOW, this 21st day of October, 2004, it is hereby ORDERED:1. Upon consideration of the motion of Primecare Medical, Inc. to dismiss, the motion is DENIED without prejudice to reassert it after plaintiff files an amended complaint.
2. Plaintiff's motion to amend is GRANTED, conditioned upon plaintiff filing an amended complaint, in accordance with the foregoing memorandum, within thirty (30) days.
3. Upon the filing of an amended complaint, the Marshal is directed to serve the complaint on Ms. Terry Carnes and a male nurse known as Bill, representing Primecare Medical.
4. Considering plaintiff's motion for appointment of counsel, the Clerk shall submit this case to the volunteer prisoner civil rights panel for its consideration.