Opinion
1:21-cv-00027
11-22-2021
JAKWARIS ROBISON, Plaintiff v. WARDEN KEVIN SUTTER, HEAD NURSE HEIDI KARASH, NURSE TERI MASI, NURSE EMILY TREVELLINE, NURSE DENISE LONG, NURSE AUTUMN BROWN, NURSE RENESS FOX, NURSE CINDY LEANA, ERIE COUNTY PRISON, COUNTY PRISON, Defendants
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS TO DISMISS
ECF NO. 39
ECF NO. 41
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Defendants' Motions to Dismiss Plaintiffs Amended Complaint at ECF Nos. 39 and 41 have been referred to the undersigned for a Report and Recommendation. It is respectfully recommended that both motions be GRANTED.
II. Introduction
Plaintiff Jakwaris Robison (“Robison”) was previously incarcerated at the Erie County Prison (“ECP”). He filed this action pursuant to 42 U.S.C. § 1983 alleging that during his incarceration, ECP personnel responded to his serious dental needs with deliberate indifference in violation of his rights under the Eighth Amendment to the United States Constitution. See ECF No. 36 (Amended Complaint). Robison has sued the ECP, its warden, Kevin Sutter (“Sutter”), and seven nurses who work at the prison: Heidi Karash, Denise Long, Teri Masi, Emily Trevelline, Autumn Brown, Renee Fox, and Cindy Leana (collectively, “Medical Defendants”).
All Defendants have moved to dismiss the Amended Complaint. See ECF No. 39 (ECP and Sutter); ECF No. 40 (Medical Defendants). Robison has filed a single Response in opposition to both motions. ECF No. 45. The matter is ripe for disposition.
III. The Amended Complaint
The Amended Complaint alleges the following facts which are accepted as true for purposes of the Defendants' motions to dismiss. See Day v. Westmoreland County, 2021 WL 5015774, at *2 (W.D. Pa. Oct. 28, 2021). Robison is currently incarcerated at the State Correctional Institution at Albion (“SCI-Albion”). The events upon which Robison bases his claims occurred during his prior incarceration at the ECP. On September 15, 2020, Robison reported to the ECP medical department, “my tooth been hurting and little pieces been breaking off of it every time I eat, it's really bothering me, can I get on dentist call because I am in need for it to get removed ASAP.” ECF No. 36, ¶ 8. Robison was examined by seen by a nurse that same day. The next day, Robison was contacted by Defendant Leana, who confirmed that he had been prescribed ibuprofen for discomfort and an antibiotic, amoxicillin which he was to take three times per day for seven days. Leana also advised Robison that he had been placed on the list for dental care. Id. By September 23, 2020, Robison had not yet been seen by a dentist and informed the ECP Medical Department that “my tooth is killing me, when do I go to the dentist?” Id. The next day, September 24, 2020, Robison was seen by Defendant Brown. Id. After examining Robison's tooth and advising him that it appeared to be infected, Brown again prescribed him amoxicillin to take three times per day and continued his ibuprofen prescription. Id. Brown also indicated that she would put Robison on the list for dental treatment. Id.
By October 17, 2020, Robison still had not seen a dentist. He wrote to the ECP Medical Department again that day, telling them that “my tooth aches, my top wisdom tooth on my left side been breaking in little pieces sometimes and now the way it is it be scrapping the inside of my cheek like I don't know if its another tooth growing in the inside of my tooth by that's what it feels like and my lower tooth been bothering me as well its right under my other one.” Id., ¶ 9. An unidentified nurse visited Robison, examined his tooth, and told him that that he would be given some medication. Id. The next day, Defendant Fox told Robison that he had been prescribed the same medications he had previously received: an antibiotic and ibuprofen. Id. Robison responded that he had already been prescribed that medication and was concerned the infection was persisting. Id. On October 19, 2020, Defendant Fox told him that “the infection could have gone away but it wouldn't be fully removed until being extracted” and that he was “scheduled to see the dentist.”. Id.
On October 27, 2020, Robison again wrote to the medical department inquiring when he would see a dentist. Id. Defendant Masi responded on October 30, 2020, and informed Robison that he was scheduled to see a dentist “that week.” Id. By November 5, 2020, Robison still had not been seen by a dentist and he wrote to the medical department again, reiterating that his tooth continued to bother him and now he was “starting to get a nasty taste in his mouth.” Id., ¶ 10. On November 6, 2020, Defendant Long examined Robison's tooth and indicated she would prescribe a new antibiotic and more ibuprofen for Robison. Id. Robinson asserts he did not receive this new medication, however, and that on November 7, 2020, Long told him that “the only reason why she didn't start me on any medication yesterday was because I was suppose to go to the outside hospital.” Id. On November 10, 2020, Defendant Karash examined Robison's tooth and told him that he would be seen by a dentist the following week. Id. On November 18, 2020, Robison was seen by a dentist who x-rayed his tooth and extracted it.
Robison's Amended Complaint asserts claims of deliberate indifference against all Defendants as well as a “failure to train and supervise” claim against Defendants Sutter and Karah. Id., ¶¶ 13-14. Robison has sued each Defendant in his or her individual and official capacities. Id., ¶ 7. He asks for a declaration that the Defendants' actions have violated his constitutional rights and seeks both compensatory and punitive damages for the alleged violation. A/., ¶¶ 16-18.
IV. Standard of Decision
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. See 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, a court must accept as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. See 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. See 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. See Twombly, 550 U.S. at 555. See also McTernan v. City of York, Pennsylvania, 5'1'1 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 Court of Appeals for 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.
Finally, because Robison is representing himself, the allegations in his Amended Complaint 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 a pro se litigant's pleadings to state a valid claim upon which relief could be granted, it should do so despite the litigant's failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or unfamiliarity with pleading requirements. See Boag, 454 U.S. at 354; United States ex rel. Montgomery v. Bierley, 141 F.2d at 555. With these standards in mind, the Court now turns to its analysis and discussion of the Amended Complaint and the Defendants' motions.
V. Discussion and Analysis
A. The claims against the Erie County Prison should be dismissed.
Robison's claims against the ECP should be dismissed because a prison is not a “person” subject to suit. See Sledge v. Erie Cty. Prison, 2021 WL 2073798, at *4 (W.D. Pa. May 24, 2021). “In the Third Circuit, it is well-settled that a prison or correctional facility is not a ‘person' that is subject to suit under federal civil rights laws.” Regan v. Upper Darby Twp., 2009 WL 650384 (E.D. Pa. 2009), aff'd 363 Fed.Appx. 917 (3d Cir. 2010) (listing cases); Lenhart v. Pennsylvania, 528 Fed.Appx. Ill. 114 (3d Cir. 2013) (concluding that district court properly dismissed claims against county prison because even though “[a] local governmental agency may be a ‘person' for purposes of § 1983 liability, [the county prison] is not a person capable of being sued within the meaning of § 1983”) (internal citations omitted); Mincy v. Deparlos, 497 Fed.Appx. 234, 239 (3d Cir. 2012) (per curiam) (county prison is not “person” within meaning of § 1983); Scutella v. Erie Cty. Prison, 2020 WL 4904587, at *6 (W.D. Pa. Aug. 20, 2020) (same). Accordingly, Robison's claims against the ECP should be dismissed with prejudice.
B. Claims against Defendants in their official capacities should be dismissed.
Robison's Complaint asserts claims against Sutter and the Medical Defendants in their official capacities. ECF No. 36, ¶ 7 (“Each defendants is sued individually and in his and her official capacity.”). When a plaintiff brings a civil rights action against a government employee, courts distinguish between the employee's official and individual capacities. Gannaway v. Stroumbakis, 842 Fed.Appx. 725, 729 (3d Cir. 2021) (citing Kentucky v. Graham, 473 U.S. 159, 165-68 (1985)). Official capacity claims against county employees such the Defendants here are the same as claims against the governmental entity that employs them. See Graham, 473 U.S. at 165-66. Thus, Robison's official capacity claims against the Defendants are, in effect, claims against the County of Erie. To state a claim for municipal liability, a plaintiff must allege that the defendant's policies or customs caused the alleged constitutional violation. See Monell v. Dep't of Soc. Servs. of N. Y, 436 U.S. 658, 694 (1978); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003). The plaintiff “must identify [the] custom or policy, and specify what exactly that custom or policy was” to satisfy the pleading standard. McTernan v. City of York, 564 F.3d 636, 658 (3d Cir. 2009). Robison's Complaint includes no allegations regarding policies or customs attributable to a policymaker of the County. The Court should therefore dismiss the official capacity claims against these Defendants.
C. The claim against Defendant Sutter should be dismissed because the Complaint does not allege facts to support his personal involvement.
Constitutional tort liability arises only upon a showing of personal involvement in the alleged wrongful conduct. Colon v. Anglikowski, 2021 WL 2875477, at *7-8 (W.D. Pa. July 8, 2021) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997); abrogated in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 548 U.S. 53 (2006) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant in a civil rights action must have personal involvement in the alleged wrongs” in order to be liable)). When proceeding under § 1983, as Robison is doing here, a plaintiff cannot prevail unless he can demonstrate that the defendant played an “affirmative part” in the complained-of misconduct. Iqbal, 556 U.S. at 677 (“Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct.”); Oliver v. Beard, 358 Fed.Appx. 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).
These principles apply to supervisory officials such as Warden Sutter and Head Nurse Karash. See, e.g, Rode, 845 F.2d at 1207 (noting that liability for supervisory officials must still be based on “personal involvement in the alleged wrongs”); Iqbal, 556 U.S. at 676. Although a supervisor cannot encourage constitutional violations, “a supervising public official has [no] affirmative constitutional duty to supervise and discipline so as to prevent violations of constitutional rights by his or her subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir. 1986); Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). Rather, a supervisordefendant may only be liable for unconstitutional acts undertaken by subordinates if the supervisor either: (1) with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused the constitutional harm; or (2) participated in violating the plaintiffs rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in the subordinate's unconstitutional conduct. See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004).
The Amended Complaint lacks any allegation that Sutter was personally involved in the treatment of Robison's tooth or his dental care in general. Indeed, Robison limits his allegations concerning his dental care to the Medical Defendants. See ECF No. 36, ¶¶ 8-11. Thus, Robison's Eighth Amendment deliberate indifference claim against Sutter should be dismissed.
Robison does allege, however, that Defendant Karash was personally involved in his treatment. He pleads that on November 10, 2020, Karash “examined my tooth” and “informed me that I would see the dentist the following week.” Id., ¶ 10. Further, Karash told Robison that “the reason I couldn't see [a dentist] this week is because he was out sick.” Id. Thus, the Amended Complaint sufficiently alleges her personal involvement. But as discussed below, the claims against her suffer from other deficiencies that require their dismissal.
D. The purported due process claims against Defendants Sutter and Karash should be dismissed.
The Amended Complaint, under the heading “Legal Claims, ” asserts that Sutter and Karash's “failure to train and supervise violated plaintiff Jakwaris Robison's rights constituting a due process violation under the Fourteenth Amendment to the United States Constitution.” Id., ¶ 14. Here, Robison appears to conflate an Eighth Amendment supervisory liability/failure to train claim with a due process claim under the Fourteenth Amendment. Construed as separate claims, both fail.
“Under Section 1983, a supervisor may be liable for [his or her] failure to train or supervise employees.” Whitfield v. City of Philadelphia, 587 F.Supp.2d 657, 666 (E.D. Pa. 2008). A claim for supervisory liability or liability based upon a failure to train involves four elements: (1) that an existing policy created an unreasonable risk of constitutional injury; (2) the supervisor was aware of this unreasonable risk; (3) the supervisor was indifferent to the risk; and (4) the injury resulted from the policy or practice. See Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). A supervisor may be held liable where a need for “more or different training ... is so obvious, and the inadequacy so likely to result in constitutional violations, that the failure to train ... can fairly be said to represent official policy, ” and where that failure to train “actually causes injury, ” a supervisor may be held liable. City of Canton v. Ohio, 489 U.S. 378, 390 (1989). In addition,
[i]n resolving the issue of [supervisory] liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the [supervisor], for the officer's shortcomings may have resulted from factors other than a faulty training program.... Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training.... Moreover, for liability to attach ... the identified deficiency in [the] training program must be closely related to the ultimate injury.Id. at 390-91. Further, as the United States Supreme Court made clear in City of Canton, “[t]hat a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the [municipal defendant].” Id. See also Connickv. Thompson, 563 U.S. 51, 72 (2011).
Here, Robison makes only a conclusory allegation in support of his failure-to-train claim against these two Defendants. The Amended Complaint's singular and cursory assertion in Paragraph 14, without further explanation, is insufficient to satisfy minimum pleading standards. See, e.g, McGraw v. Does, 2019 WL 1493399, at *1 (M.D. Pa. Apr. 4, 2019). For purposes of a failure-to-train claim, Robison must plead facts demonstrating that the alleged training deficiency amounts to deliberate indifference to the constitutional rights of individuals who will come into contact with ECP employees. See Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014) (quoting Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)). He has not identified any training deficiency and thus has not put Sutter or Karash on “fair notice” of the basis for the claim against them. See Phillips, 515 F.3d at 232 (“We caution that without some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice' but also the ‘grounds' on which the claim rests.”) (citing Twombly, 550 U.S. at 555 n.3)).
Robison's due process claim under the Fourteenth Amendment should also be dismissed. The Fourteenth Amendment's Due Process Clause prohibits states from denying individuals “life, liberty [, ] or property” without due process of law. See U.S. Const, amend. XIV. In analyzing a procedural due process claim, “the first step is to determine whether the nature of the interest is one within the contemplation of the ‘liberty or property' language of the Fourteenth Amendment.” See Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000). Procedural due process protection, however, “for a state created liberty interest... is limited to those situations where deprivation of that interest ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'” See Griffin v. Vaughn, 112 F.3d 703, 706 (3d Cir. 1997) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Moreover, “[a] claim alleging a substantive due process violation requires a showing of behavior that can ‘properly be characterized as arbitrary, or conscience shocking.'” See Turner v. Att'y Gen. Pa., 505 Fed.Appx. 95, 99 (3d Cir. 2012) (quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 847 (1998)).
Here again, Robison makes only a conclusory allegation that Defendants Sutter and Karash violated his rights to due process. See ECF No. 36, ¶ 14. The Amended Complaint fails to allege any facts to support a violation of his due process rights. Indeed, it is impossible to discern from the Amended Complaint whether Robison's claim asserts a procedural or substantive due process violation. Robison's Amended Complaint merely invokes the label “due process, ” which is plainly inadequate to support a claim. See, e.g., Harold v. City of Jersey City, 2020 WL 1444923, at *6 (D.N.J. Mar. 24, 2020) (“dismissing claim where complaint “merely asserts in conclusory fashion that ‘defendants violated plaintiff s rights ... to Due Process under the [] Fourteenth Amendment[.]”).
“To prevail on a procedural due process claim, a litigant must show (1) that the state deprived h[er] of a protected interest in life, liberty, or property and (2) that the deprivation occurred without due process of law.” Burns v. Pa. Dep't of Corrections, 544 F.3d 279, 285 (3d Cir. 2008) (citing U.S. Const, amend. XIV, § 1). More specifically, Plaintiff must plead and ultimately establish the following five elements:
(1) that [s]he was deprived of a protected liberty or property interest; (2) that the deprivation was without due process; (3) that [Defendants] subjected [her], or caused [her] to be subjected to, this deprivation without due process; (4) that [Defendants] w[ere] acting under color of state law; and (5) that [ ] [P]laintiff suffered injury as a result of the deprivation without due process.Sample v. Diecks, 885 F.2d 1099, 1113-14 (3d Cir. 1989)). The Amended Complaint fails to show that the “procedural due process” available to him was constitutionally deficient. See Singer v. Heckler, 2017 WL 2445204, at *7 (June 6, 2017). Indeed, Robison indisputably had the prison grievance system available to him. Therefore, his procedural due process claim should be dismissed.
Robison's Fourteenth Amendment substantive due process claim fails for multiple reasons. First, it appears to be based on the same allegations as those he offers to support his Eighth Amendment claim. The United States Supreme Court has held that “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” County of Sacramento v. Lewis, 523 U.S. 833, 841 (1998) (quoting Albright v. Oliver, 510 U.S. 266, 273 (1994)); see also Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 260 (3d Cir. 2010) (applying more-specific-provision rule, holding that Eighth Amendment covered conditions of confinement claim rather than the Fourteenth Amendment substantive due process clause). Because the Eighth Amendment provides a more specific constitutional protection against the wrongs alleged to have been visited upon Robison, his claims are properly addressed only under that Amendment.
Furthermore, “[s]ubstantive due process is a doctrine reserved for egregious official conduct that trenches upon the most fundamental of civil liberties.” Armbruster v. Cavanaugh, 410 Fed.Appx. 564, 567 (3d Cir. 2011). To establish a substantive due process claim under § 1983, the plaintiff must show that the government's action “shocks the conscience.” Connection Training Serv. v. City of Phila., 358 Fed.Appx. 315, 319 (3d Cir. 2009). Where the plaintiff's substantive due process claim challenges the validity of non-legislative state action, a plaintiff must first establish that he has a protected, fundamental property interest. Nicholas v. Penn. State Univ., 227 F.3d 133, 139-42 (3d Cir. 2000). In his Amended Complaint, Robison fails to identify any such property interest, much less a fundamental one. Accordingly, Robison's substantive due process claim under the Fourteenth Amendment claim should also be dismissed.
E. The Eighth Amendment deliberate indifference claims against the Medical Defendants should be dismissed.
Robison has also alleged that the Medical Defendants were deliberately indifferent to his serious dental needs in violation of the Eighth Amendment. See ECF No. 36, ¶ 13. The Eighth Amendment protects prisoners from cruel and unusual punishment, including “the unnecessary and wanton infliction of pain.” Hudson v. McMillian, 503 U.S. 1, 5 (1992). To state a cognizable Eighth Amendment claim for improper medical care, “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 (1976). “This standard is two-pronged. It requires deliberate indifference on the part of prison officials and it requires the prisoner's medical needs to be serious.” West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978).
Taking the allegations as true, Robison's has sufficiently alleged that his medical/dental needs were serious. For example, he claims that the delay in dental treatment resulted in pain, tooth breakage, infection, swelling, neck pain, and the loss of a tooth surface. ECF No. 36, ¶¶ 911; see also Monmouth Cty. Corr. Inst'I Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (a serious medical need can be “one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention” (quotation omitted)); Ramos v. Lamm, 639 F.2d 559, 576 (10th Cir. 1980) (a delay in providing oral surgery for infections and abscesses resulted in “continued and unnecessary pain and loss of teeth”).
But, unlike the facts at issue in the foregoing cases, Robison's allegations of fact do not support a plausible inference that the Medical Defendants acted with deliberate indifference to his dental condition. Robison first complained of discomfort and chipping of his tooth on September 15, 2020, and a dentist ultimately x-rayed the then extracted the tooth on November 18, 2020. During the intervening two months, Robison was repeatedly seen and examined by medical department personnel. He was repeatedly provided with antibiotics and pain medication. His Amended Complaint acknowledges that the antibiotics at least temporarily relieved or mitigated his infection. Thus, the Amended Complaint acknowledges that Robison received care for his dental condition and, therefore, his claim is not based on a complete denial of care. Instead, the crux of his Amended Complaint is that he was forced to wait longer than anticipated and represented to be examined by a dentist and for the ultimate extraction of his tooth.
Where courts have found a delay in dental care to be actionable, the facts presented most often have involved an extended period where no care was provided in the face of a serious need. See, e.g, Hunt v. Dental Dep't, 865 F.2d 198, 201 (9th Cir. 1989) (deliberate indifference claim stated where the plaintiff made repeated requests for treatment for infected gums and broken teeth, yet received no care for three months); Fields v. Gander, 734 F.2d 1313, 1315 (8th Cir. 1984) (claim stated where the defendant “knew of the pain [the plaintiff] was suffering ..., observed swelling in [his] face, and still refused to provide dental care for him for up to three weeks”); Scutella v. Erie County, 2020 WL 4904587, at *5 (W.D. Pa. Aug. 20, 2020) (Eighth Amendment claim supported where defendant recognized and acknowledged that plaintiff s impacted tooth needed immediate attention, including referral to an oral surgeon, but such treatment was not provided); Brooking v. D. O.C., 2019 WL 355727, at * 1 (M.D. Pa. Jan. 29, 2019); Kim v. Wang, 2017 WL 3188949, at *4 (E.D. Cal. July 27, 2017), report and recommendation adopted, 2017 WL 4386868 (E.D. Cal. Oct. 3, 2017) (claim stated where the plaintiff alleged he suffered excruciating pain for three days because the defendant nurse, despite knowing he had an abscessed tooth, falsely claimed there was nothing she could do and directed him to simply file a medical request form). See also Wisniewski v. Frommer, 751 Fed.Appx. 192, 195-96 (3d Cir. Oct. 3, 2018) (noting that “there is a critical distinction ‘between cases where the complaint alleges a complete denial of medical care and those alleging inadequate medical treatment.'”) (quoting Pearson v. Prison Health Serv., 850 F.3d 526, 535 (3d Cir. 2017)).
In contrast, courts have held that delays comparable or greater than that presented here are insufficient to state an Eighth Amendment claim where the plaintiff-like Robison-was receiving some treatment. See, e.g., Chavez v. Bailey, 2020 WL 2751899, at *11 (W.D. Va. May 27, 2020) (dismissing claim of prisoner who was seen and treated for complaints of dental pain less than a month after his initial complaint and approximately one week after his second complaint, because he had not alleged a sufficient delay in treatment to state an Eighth Amendment claim); Smith v. Rowe, 2020 WL 1332005, at *2, 5 (D. Md. Mar. 23, 2020) (finding no Eighth Amendment violation where plaintiff was erroneously denied his October 13 dental appointment for a visible cavity in a molar and the eruption of four wisdom teeth, which were causing severe pain and bleeding gums, he filed a grievance on October 15, and he was seen by the dentist on November 4 and given pain medication and consented to an extraction at that time); Green v. Rubenstein, 644 F.Supp.2d 723, 732 (S.D. W.Va. 2009) (concluding there was no Eighth Amendment violation resulting from an overall 8-month delay in removing tooth fragment where dentist examined inmate one week after he filed his first grievance regarding the tooth fragment and performed the oral surgery less than a week after the examination); Stokes v. Hurdle, 393 F.Supp. 757, 761-62 (D. Md. 1975) (three-week delay in dental treatment which resulted in, at most, extraction of a tooth, was not a sufficiently substantial harm to support an Eighth Amendment claim); Nolen v. Tolnay, 2020 WL 4736250, at *3 (W.D. Pa. Aug. 14, 2020).
Robison acknowledges that each time he notified the Medical Department of his distress, his complaints were addressed by the Medical Defendants, who examined his tooth and prescribed antibiotics and pain medication and put his name on a dental treatment list while he awaited an appointment with the dentist. He further acknowledges that at least some of the delay in seeing the prison dentist was due to his unavailability. See ECF No. 36, ¶ 10 (“[Defendant Karash] explained that the reason I couldn't see [the dentist] this week was because he was out sick.”). “[C]ourts have consistently rejected Eighth Amendment claims where an inmate has received some level of medical care.” See Hensley v. Collins, 2018 WL 4233021, at *3 (W.D. Pa. Aug. 15, 2018) (quoting Clarkv. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct. 13, 2000)). See also, In v. Stroup, 2020 WL 5819602, at *8 (W.D. Pa. Sept. 30, 2020); Nolen, 2020 WL 4736250, at *3. The Amended Complaint acknowledges that Robison received some level of dental care between his initial complaint and the ultimate extraction of his tooth. Further, nothing alleged in the Amended Complaint indicates that the Medical Defendants did not endeavor to address Robison's medical needs while they awaited the availability of a dentist. The delay between Robison's request and his being seen by the dentist was not so protracted as to contravene Eighth Amendment limits.
In addition, Robison has not alleged facts to support an inference that this delay, rather than his underlying condition, caused some degree of additional harm. See, e.g., Preziosi v. Nicholson, 2021 WL 4442840, at *18 (W.D. Pa. Sept. 28, 2021); Brooks v. Kyler, 204 F.3d 102, 105 n.4 (3d Cir. 2000) (summary judgment on medical treatment claim appropriate when there was no evidence that the delay in medical treatment “expose[d] the inmate ‘to undue suffering or the threat of tangible residual injury.'”) (quoting Lanzaro, 834 F.2d at 346); Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993) (“delay in medical care can only constitute an Eighth Amendment violation if there has been deliberate indifference which results in ... harm”); Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000) (same); Fox v. Lawrence County Jail, 2008 WL 2704546, * 10 (W.D. Pa. June 30, 2008) (defendant entitled to summary judgment due to the absence of evidence that plaintiff suffered additional harm caused by the delay in medical treatment).
Therefore, Robison's Eighth Amendment deliberate indifference claim against the Medical Defendants should be dismissed.
VI. Conclusion
In light of the foregoing discussion, it is respectfully recommended that Defendants Erie County Prison and Kevin Sutter's motion to dismiss (ECF No. 39) be GRANTED and that motion to dismiss filed by the Medical Defendants (ECF No. 41) also be GRANTED.
VII. Leave to Amend
The Court of Appeals for the Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure to state a claim, the district court must 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). The Court of Appeals has also acknowledged that a district court has “substantial leeway in deciding whether to grant leave to amend.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000); see also Ruffin v. Mooney, No. 3:16-1987, 2017 WL 3390361, at *2 (M.D. Pa. Jan. 31, 2017) (dismissing prisoner-plaintiffs case without prejudice where it was unclear whether he was seeking relief under § 1983 or a habeas statute).
Here, because Robison's Eighth Amendment claims Defendant Sutter and the Medical Defendants suffer from insufficient factual averments, it is possible that he may be in possession of additional facts to support his claims. Therefore, it is recommended that Robison be afforded an opportunity to file a second Amended Complaint as to his Eighth Amendment claims. His claim against the Erie County Prison and his procedural due process and substantive due process claims, however, should be dismissed with prejudice and without an opportunity to amend.
The Court should further instruct Robison that any second Amended Complaint must fully allege every claim Robison wishes to pursue and be a pleading that stands by itself without reference to the original Complaint or the first Amended Complaint. See Young v. Minnick, 809 F.Supp. 1185, 1198 (M.D. Pa. 1992).
VIL Notice Regarding Objections to this Report and Recommendation
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the Parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488F.3d 187 (3d Cir. 2007).