Opinion
Case No. 18-214 (Erie)
11-15-2019
AYODELE OKE, Plaintiff v. DOCTOR BIGGINS, et al., Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
[ECF NO. 16]
REPORT AND RECOMMENDATION
I. Recommendation
It is respectfully recommended that Defendants' motion to dismiss [ECF No. 16] be GRANTED IN PART and DENIED IN PART. II. Report
A. Introduction
Plaintiff Ayondele Oke ("Plaintiff"), a pro se litigant currently incarcerated at the State Correctional Institution at Forest (SCI Forest), initiated this civil rights action pursuant to 42 U.S.C. § 1983, alleging that various medical practitioners and prison officials violated his Eighth Amendment Rights by displaying deliberate indifference to his serious medical needs. ECF No. 9. Presently pending is Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Defendants are Dr. Biggins, Gary Prinkey, Ms. Smith, Dr. M, Jane Doe I, and Jane Doe II. Defense counsel theorizes that Dr. M is a reference to Dr. Montag, a DOC dentist at SCI Forest. Jane Does I and II have not moved for dismissal as they have not been identified or served. Accordingly, it is recommended that they be dismissed pursuant to Federal Rule of Civil Procedure 4(m), since more than 90 days have elapsed since the filing of the Complaint. See Beckerman v. Weber, 317 Fed. App. 125, 128 (3d Cir. 2008).
B. Factual Background
Plaintiff alleges that he experienced a severe toothache on August 1, 2016, which caused him severe pain in his face, jaw, and neck and interfered with his ability to eat, drink, and sleep. ECF No. 9 ¶ 15. He informed the dental department of his condition via request slip that same day, but received no response. Id. at ¶ 15-16. Plaintiff submitted an additional request slip on August 4, 2016. Id. On August 8, 2016, Plaintiff was called down to the dental department, where he was examined by Defendant Dr. Biggins, a dentist, and Jane Doe I, a nurse or nurse assistant. Id. at ¶ 17. Dr. Biggins informed Plaintiff that he had a cavity and would be filled "soon." Id. Plaintiff informed Dr. Biggins and Jane Doe I that he was in severe pain. Id. at ¶ 19. No pain medication was prescribed to Plaintiff. Id. Plaintiff was not charged a co-pay of $5.00, which he alleges indicates that his condition was deemed "an emergency" by the DOC. Id. at ¶ 20.
The Complaint states:
"[The Plaintiff] was having a severe toothache, which was affecting his daily activities- that is, the Plaintiff could not sleep, eat, or drink (at times); his face, neck, and jaw were in severe pain; that he [the Plaintiff] suffered from, inter alia discomfort, stress, and grief."ECF No. 9 ¶ 15.
On August 24, 2016, Plaintiff filed a grievance asserting that his cavity still had not been treated. Id. at ¶ 22. Defendant Gary Prinkey, the Nursing Supervisor at SCI Forest, received the grievance on August 24, 2016. Id. at ¶ 48-49; Ex. A. Dr. Biggins and Jane Doe II filled Plaintiff's cavity on August 29, 2016. Id. at ¶ 23. The matter is fully briefed and ripe for review.
C. Standards of Review
1. Pro Se Litigants
Pro se pleadings, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (petition prepared by a prisoner may be inartfully drawn and should be read "with a measure of tolerance"); Smith v. U.S. District Court, 956 F.2d 295 (D.C. Cir. 1992); Freeman v. Dep't of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
2. Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). A complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (rejecting the traditional 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41 (1957)). In making this determination, the court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. 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)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555. See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must 'tak[e] 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.'Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
D. Analysis
In his Complaint, Plaintiff alleges that Defendants displayed deliberate indifference to his serious medical needs based upon their failure to timely treat his cavity, and also that they maintain a policy or practice of delaying dental treatment. In their Motion, all Defendants move to dismiss the claims directed at them in the official capacities based on Eleventh Amendment sovereign immunity. Regarding the claims directed at them in their individual capacities, Defendants assert that Plaintiff has failed to state a claim of deliberate indifference. Finally, Defendants Smith, Dr. M, and Prinkey argue that Plaintiff has failed to plead that they were personally involved. Plaintiffs claims and Defendants' arguments will be addressed in turn.
1. Plaintiff has stated a claim of deliberate indifference against Dr. Biggins (Count I)
Plaintiff claims that Dr. Biggins was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97 (1976) (stating that "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment") (internal quotation omitted). To establish a violation of his constitutional right to adequate medical care, a plaintiff is required to allege facts that demonstrate: (1) a serious medical need, and (2) acts or omissions by prison officials that indicate deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Such indifference is manifested by an intentional refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed medical treatment, a denial of reasonable requests for treatment that results in suffering or risk of injury, Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), or "persistent conduct in the face of resultant pain and risk of permanent injury." White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).
In this case, Plaintiff has alleged facts from which an inference can be drawn that he suffered from a serious medical need. For a period of at least 28 days, Plaintiff's cavity caused him to experience severe pain in his face, jaw, and neck. His condition interfered with his ability to eat, drink, and sleep. This constitutes a serious medical need. See Young v. Kazmerski, 266 Fed. App. 191, 193 (3d Cir 2008) (unnecessary pain arising from the denial and delay of adequate care is objectively a serious medical need); Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir. 1989) (dental condition that interfered with inmate plaintiff's ability to eat constituted a serious medical need).
Second, Plaintiff has alleged facts from which an inference can be drawn that Dr. Biggins was deliberately indifferent to his serious medical need. The Complaint alleges that 28 days passed from the time Plaintiff first informed the dental department of a toothache (August 1) to the time that his cavity was filled (August 29). He specifically informed Dr. Biggins of his pain and symptoms on August 8, during the dental exam which revealed that Plaintiff's toothache was caused by a cavity, but no medication or treatment was provided to alleviate the symptoms plaintiff experienced. 21 more days then elapsed before Plaintiff's dental condition was addressed by Dr. Biggins.
At this early stage of litigation, during which the Court must view the facts in the light most favorable to the Plaintiff and draw all inferences in his favor, the Court assumes that Dr. Biggins was made aware of Plaintiff's dental pain on August 1, 2016; i.e., the date that Plaintiff first submitted a request slip to the dental department. Courts have found that inmate plaintiffs have stated a claim under similar circumstances. See Balbin v. Concepcion, 2019 WL 5725471, at *17 (S.D. Fla. Sept. 26, 2019) (inmate-plaintiff who suffered "great pain" during a delay of 34 days in treating a cavity plausibly stated a claim of deliberate indifference to a serious medical need). Nonetheless, even if Dr. Biggins was not made aware of Plaintiff's dental condition until the dental exam on August 8, the same conclusion would result. Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995) (denying prison dentist's motion for summary judgment because "[a] three-week delay in dental care, coupled with knowledge of the inmate-patient's suffering, can support a finding of an Eighth Amendment violation under section 1983."); Fields v. Gander, 734 F.2d 1313, 1315 (8th Cir. 1984) (plaintiff claimed that prison officials knew of his pain from infected tooth but refused to provide dental care for up to three weeks). Accordingly, Plaintiff has alleged facts upon which an inference may be drawn that he had both a serious medical need and that acts or omissions by Dr. Biggins were deliberately indifferent to that need. Thus, the Court should deny Defendants' Motion to Dismiss this claim.
2. Plaintiff has failed to allege that Defendants Smith or Dr. M were personally involved (Counts III and VI)
Defendant Smith, the Clinical Health Care Administrator at SCI Forest, and Dr. M, a dentist, argue that Plaintiff has failed to plead that they were personally involved in the alleged wrongs. It is axiomatic that liability under § 1983 requires a defendant's "personal involvement" in the deprivation of a constitutional right. See Gould v. Wetzel, 2013 WL 5697866, at *2 (3d Cir. Oct. 21, 2013). Accordingly, each defendant must have played an "affirmative part" in the complained-of misconduct. Iqbal, 556 U.S. at 677 ("In a § 1983 suit ... [a]bsent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."); Oliver v. Beard, 358 Fed. App. 297, 300 (3d Cir. 2009). In the absence of specific allegations that a defendant played a role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See, e.g., Mearin v. Swartz, 951 F.Supp. 2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts to establish that certain defendants had played an affirmative part in the alleged Eighth Amendment violation).
Turning to the allegations of the Complaint, Plaintiff has failed to allege the requisite personal involvement of Defendants Smith and Dr. M. With regards to Defendant Smith, it is not enough to allege that she "was ultimately in charge of making sure the Plaintiff received emergency medical care and that dental personnel correctly identified a dental emergency" by virtue of her position. See Iqbal, 556 U.S. at 677 ("In a § 1983 suit ... each Government official, his or her title notwithstanding, is only liable for his or her own misconduct."). The same can be said of Defendant Dr. M. Plaintiff has not alleged that either Defendant Smith or Dr. M were aware of, or involved in, his treatment. Accordingly, Plaintiff has not alleged their personal involvement, and the Court should grant Defendants' Motion to Dismiss this claim.
3. Plaintiff has failed to state a claim of deliberate indifference against Defendant Prinkey (Count II)
The Complaint alleges that Defendant Prinkey was informed of Plaintiff's dental condition via grievance on August 24, 2016. He further alleges that his cavity was treated on August 29, 2016. Even viewing the facts in the light most favorable to Plaintiff, a delay of five days does not demonstrate deliberate indifference on the part of Defendant Prinkey. Daniel v. Farmer ex rel. Collett, 2009 WL 3073713, at *7 (E.D. Mo. Sept. 22, 2009) (a delay in referring the inmate plaintiff to an oral surgeon for a tooth infection from May 22 and June 5 failed to establish that prison dental providers were deliberately indifferent). Accordingly, Defendants' Motion to Dismiss this claim should be granted.
4. Plaintiff has failed to state a claim against all Defendants in their official capacities
Defendants also move for dismissal of all claims asserted against them in their official capacities based upon Eleventh Amendment sovereign immunity. The Eleventh Amendment to the United States Constitution proscribes actions in the federal courts against states, their agencies, and state officials acting within their official capacities. Kentucky v. Graham, 473 U.S. 159, 165-67 (1985); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). The DOC and the facilities that comprise the DOC are agencies or arms of the Commonwealth of Pennsylvania and, as such, they are entitled to Eleventh Amendment immunity unless an exception to such immunity applies. See Steele v. Pennsylvania, 2009 WL 614800, at *8 (W.D. Pa March 6, 2009); see also O'Donnell v. Department of Corrections, 790 F. Supp 2d 289, 305 (M.D. Pa. 2011) (Eleventh Amendment immunity extends to DOC employees who are sued in their official capacities). Eleventh Amendment sovereign immunity is subject to three basic exceptions:
(1) Congress may specifically abrogate a state's sovereign immunity by exercising its enforcement power under the Fourteenth Amendment; (2) a state may waive its sovereign immunity by consenting to suit; or (3) under Ex parte Young, 209 U.S. 123 (1908), a state official may be sued in his or her official capacity for prospective injunctive relief.See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 (1999); Koslow v. Pennsylvania, 302 F.3d 161, 168 (3d Cir. 2002); Hindes v. FDIC, 137 F.3d 148, 165-66 (3d Cir. 1998). With respect to the first exception, it is well-settled that Congress did not intend to abrogate the states' sovereign immunity by enacting § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989). Furthermore, Pennsylvania has unequivocally withheld its consent to such suits. Section 8521 of Title 42 of the Pennsylvania Consolidated Statutes clearly states, "Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment of the Constitution of the United States." 42 Pa. Cons.Stat.Ann.§ 8521(6); see also Lombardo v. Pennsylvania, 540 F.3d 190, 196 n.3 (3d Cir. 2008); Pa.Const.Art. I, .§ 11; 1 Pa.Cons.Stat.Ann. §231O; Lavia v. Department of Corrections, 224 F.3d 190, 195 (3d Cir. 2000). Because no exception to Eleventh Amendment immunity applies here, all claims against the Defendants in their official capacities must be dismissed from this action.
5. Policy or Practice (Count VII)
Plaintiff alleges that all Defendants have a policy or practice of not treating emergency dental conditions resulting in severe pain caused by a cavity. Plaintiff has not alleged any other situations where Defendants failed to treat emergency dental conditions. Instead, his claim relating to Defendants' policy or practice contains merely a recitation of the elements of such a cause of action. This is insufficient to state a claim. While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555. 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)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555. See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions."). Accordingly, Plaintiff's claim that all Defendants have a policy or practice of not treating emergency dental conditions resulting in severe pain caused by a cavity must be dismissed.
E. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is vulnerable to dismissal for failure to state a claim, the Court should permit a curative amendment, unless an amendment would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). It is not clear that amendment would be futile. Plaintiff could potentially allege facts from which an inference could be drawn that Defendants Dr. M, Smith, and Prinkey were personally involved in the alleged wrongs. (Counts II, III, and VI). Further, Plaintiff's policy/practice claim failed because of a lack of pleading specificity. (Count VII). It is further recommended that all claim against Defendants in their official capacity be dismissed with prejudice as amendment thereto would be futile. Therefore, it is recommended that Plaintiff be granted leave to file an amended complaint against all Defendants in their individual capacities.
/s/_________
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE Dated: November 15, 2019