Opinion
Civil Action No. 03-6297.
June 28, 2004
ORDER
AND NOW, this 28th day of June, 2004, upon consideration of the motion of defendants Dennis Iccarino, Anthony Iccarino, and Michael Pisano (the "Individual Medical Defendants") to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (docket entry # 36) and the motion of Wexford Health Sources, Inc., to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (docket entry # 44), and Peay's two hand-written memoranda (docket entries # 38 and 45), and the Court finding that:
The Court may grant a motion to dismiss under Rule 12(b)(6) "only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1420 (3d Cir. 1997). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). In other words, we will not grant such a motion "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000) (permitting dismissal "only if it appears that the [plaintiffs] could prove no set of facts that would entitle [them] to relief"). "The complaint will be deemed to have alleged sufficient facts if it adequately put the defendants on notice of the essential elements of the plaintiffs' cause of action." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
Even if the allegations are insufficient by themselves, we will still deny a motion to dismiss so long as the allegations "in addition to inferences drawn from those allegations, provide a basis for recovery." Menkowitz v. Pottstown Mem'l Med. Ctr., 154 F.3d 113, 124-125 (3d Cir. 1998); see also Scheuer, 416 U.S. at 236 ("[T]he allegations of the complaint should be construed favorably to the pleader."); Emerson v. Thiel College, 296 F.3d 184, 188 (3d Cir. 2002) ("A complaint will withstand an attack under Federal Rule of Civil Procedure 12(b)(6) if the material facts as alleged, in addition to inferences drawn from those allegations, provide a basis for recovery.").
We refer to the Individual Medical Defendants and Wexford Health Sources, Inc., collectively, as the "Medical Defendants."
In our Order of May 12, 2004 (docket entry # 32), we explained that Peay's nearly illegible penmanship presented difficulties for opposing counsel and the Court. Thus, we ordered Peay to type all future submissions and explained that we would not consider non-compliant submissions. Despite our clear instructions and warnings — Peay's apparent comprehension of them, as evidenced by his excuses for not complying — Peay did not type his memoranda. He seeks to explain this failing by blaming "staff" for depriving him of access to a typewriter. We note, however, that Peay mailed his first memorandum on May 25, 2004 even though it was not due until June 7, 2004, and he mailed his second memorandum on June 18, 2004 even though it was not due until July 1, 2004. Thus, it appears that Peay — on two separate occasions — willfully chose to disregard our instructions when he had ample opportunity to comply. Given this pattern of repeated and contemptuous noncompliance, we would be fully justified in ignoring his memoranda entirely.
(a) Peay's amended complaint alleges that the Medical Defendants violated 42 U.S.C. § 1983 because their failure to treat his left knee violated his First, Fifth, Eighth, and Fourteenth Amendment rights and that they also violated 42 U.S.C. § 1985(3);
Because we fail to perceive how the alleged failure to treat could have violated Peay's First or Fifth Amendment rights, we shall dismiss the portion of his § 1983 claim predicated on a deprivation of those rights.
(b) As a preliminary matter, the Medical Defendants argue that we should dismiss all claims against them because Peay has failed to exhaust "such administrative remedies as are available" to him, see 42 U.S.C. § 1997e(a) (2004); Ind. Med. Defs.' Br. at 3-6; Wexford Br. at 4-6; but they fail to recognize that "failure to exhaust is an affirmative defense to be pleaded by the defendant," Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002);
(c) The Medical Defendants have failed to meet their burden of proving Peay's alleged failure to exhaust because they have not provided any detail about precisely how Peay failed to avail himself of the prison's administrative procedures, see also McCoy v. Goord, 255 F. Supp.2d 233, 248-51 (S.D.N.Y. 2003) (explaining how a motion for summary judgment — rather than a motion to dismiss — is the better mechanism for raising the affirmative defense of failure to exhaust administrative remedies when nonexhaustion is not clear from the face of the complaint);
(d) Thus, we shall not dismiss the claims against the Medical Defendants for failure to exhaust administrative remedies;
(e) The Medical Defendants also maintain that Peay's allegations are insufficient to state a § 1983 claim that their alleged failure to treat him violated his constitutional rights,see Ind. Med. Defs.' Br. at 6-15; Wexford Br. at 6-17;
(f) The Supreme Court has held that, "to state a cognizable claim [for failure to treat under the Eighth and Fourteenth Amendments], a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs," Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976);
(g) Here, Peay alleges simply that the Medical Defendants "fail[ed] to treat (surgery, cast, ct scan, etc. (proper test) [his] left knee";
(h) Peay provides no detail whatsoever about the "seriousness" of the injury to his knee or other matters that would suggest that the Medical Defendants acted with deliberate indifference;
(i) Thus, we shall grant the Medical Defendants' motions to dismiss the portions of Peay's § 1983 claim predicated upon alleged violations of the Eighth and Fourteenth Amendments;
(j) Still, Peay's second memorandum alleged that the Medical Defendants were "operating in a conspiracy [so they] knew staff were planning to assault me," and this allegation — had Peay included it in his amended complaint — would have been sufficient to satisfy Peay's obligation to plead deliberate indifference;
(k) We shall, therefore, afford Peay an opportunity to file a second amended complaint that complies with the pleading requirements that we have explained;
(l) Finally, the Medical Defendants suggest that Peay has failed to state a claim that they violated 42 U.S.C. § 1985(3),see Ind. Med. Defs.' Br. at 15-16; Wexford Br. at 18-20;
(m) Our Court of Appeals has explained that, to make out a § 1985(3) claim, "a plaintiff must allege: (1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to deprive, directly or indirectly, any person or class of persons to the equal protection of the laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the deprivation of any right or privilege of a citizen of the United States," Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997); and
(n) Because Peay has not alleged that the Medical Defendants conspired to withhold medical treatment out of racial animus, we shall dismiss his § 1985(3) claim;
It is hereby ORDERED that:
1. The Individual Medical Defendants' motion to dismiss is GRANTED;
2. Wexford Health Sources, Inc.'s motion to dismiss is GRANTED;
3. Peay's claims against the Medical Defendants are DISMISSED;
4. By July 16, 2004, Peay may FILE a second amended complaint that includes sufficient allegations of deliberate indifference to survive a motion to dismiss, see supra ¶ (j);
5. Defendants shall RESPOND to the second amended complaint by July 30, 2004;
6. Peay shall TYPE all future submissions to the Court and shall SERVE such submissions on opposing counsel at the same time that he submits them to the Court; and
Opposing counsel are:
Patrick J. McMonagle, Esq. Office of the Attorney General 21 So. 12th St., 3rd Fl. Philadelphia, PA 19107-3063
Andrew K. Worek, Esq. Weber, Gallagher, Simpson, Stapleton, Fires Newby, LLP 1811 Chestnut Street, 6th Fl. Philadelphia, PA 1910.
7. Should Peay again fail to comply with our direction to type and serve future submissions, we shall treat his non-compliant submissions as if they had never been filed, unless Peay provides a detailed explanation for why he was not able to comply even though he was able to type his first amended complaint.