Opinion
1:22-CV-00008-SPB
01-26-2023
KURTIS L. UREY, Plaintiff v. SGT. CULVER, C.O. BAUMCRATZ, C.O. MUSSER, MR. SUTHERLAND, Defendants
REPORT AND RECOMMENDATION ON DEFENDANT SUTHERLAND'S MOTION TO DISMISS
IN RE: ECF NO. 26
RICHARD A LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. Recommendation
The pending motion to dismiss filed by Defendant William Sutherland (“Sutherland”) was referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). See ECF No. 26. It is respectfully recommended that the motion to dismiss be GRANTED and that the claims against Sutherland be DISMISSED without prejudice.
II. Report
A. Procedural Background
Plaintiff Kurtis L. Urey (“Urey”), acting pro se, initiated this action on January 4, 2022. See ECF No. 1. He was granted leave to proceed in forma pauperis and his complaint was docketed on January 6, 2022. See ECF Nos. 4 (order granting IFP); 5 (Complaint). As Defendants, the Complaint names Sutherland, a physician assistant, and three correctional officers, Culver, Baumcratz, Musser (“DOC Defendants”). See ECF No. 5, ¶¶ 3-6 (DOC Defendants); p. 11 (Sutherland).
B. Factual Background as set forth in Urey's Complaint
Urey's Complaint consists of two documents: a handwritten complaint and a Form Complaint for Civil Rights Violations (Prisoner), both docketed as ECF No. 5. The Court construes these documents together as one pleading and accepts Urey's factual allegations a true. He alleges that on November 19, 2019, he suffered “a nervous breakdown, tied his cellmate, and set the cell on fire.” ECF No. 5, ¶ 8. After being alerted to the situation by other inmates, Defendants Culver and Musser responded and put out the fire. Id., ¶¶ 9-10. Culver then ordered Urey to come to the door where Culver restrained him in handcuffs. Id., ¶ 11. Urey's cellmate was also ordered to come to the door to be cuffed, but could not comply because Urey had restrained him. Id., ¶ 12. Defendants Baumcratz and Musser became “verbally assaultive” and told Urey, “as soon as this door opens your (sic) getting fucked up.” Id., ¶ 13.
Upon opening the cell door, Urey alleges Musser and Baumcratz physically assaulted him by “slamming him into a bunkbed with a shield, banging his head of[f] the wall, throwing him to the ground and proceeding to kick him in the upper back and shoulder.” Id., ¶ 15. Urey states that Defendant Culver encouraged his colleagues' behavior by repeatedly yelling, “kick his ass.” Id. Urey pleads “pain/injury and emotional distress.” Id.,¶\6. He contends that the DOC Defendants acted without provocation, “maliciously and sadistically” in violation of his right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment. Id., ¶ 20.
The form complaint (ECF No. 5, pp. 9-19) contains the allegations against Defendant Sutherland. Urey alleges that after being beaten by the Defendants Baumcratz and Musser, he was denied treatment for his shoulder injuries “for over a year due to retaliation.” Id., p. 13. He does not identify who retaliated against him. Urey then avers that he was seen by Defendant Sutherland who “put me on a steroid.” Id. He pleads that this steroid, which he used for several months, “did nothing for me” and he was then “transferred and began physical therapy.” Id. The DOC Defendants have answered Urey's Complaint (ECF No. 20) and Defendant Sutherland has moved to dismiss (ECF No. 26). Thus, this Report solely addresses Sutherland's motion.
C. Standard of Decision for Motions 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 is 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. 235-36 (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 Rule 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 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.
When considering pro se pleadings, a court must employ less stringent standards than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). This means when presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). In a § 1983 action, the court must “apply the applicable law, irrespective of whether the pro se litigant has mentioned it by name.” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). See also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (“Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.”). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Cromwell v. Fichter, 2022 WL 16973785, at *4 (W.D. Pa. Oct. 26, 2022) (citing Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996)). Finally, when dismissing a claim pursuant to Fed.R.Civ.P. 12(b)(6) in a civil rights case, the Court must sua sponte permit a curative amendment unless it would be inequitable or futile. Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
D. Discussion and Analysis
Two potential claims against Sutherland can be discerned from Urey's scant allegations. Both should be dismissed. First, to the extent he is alleging a retaliation claim against Sutherland, Urey fails to identify him as the person who retaliated against him, how Sutherland did so, when and where the alleged retaliation took place, that the retaliatory actions were because of protected conduct, or that the retaliatory acts chilled the exercise of his First Amendment right. See, e.g., Valle v. SCI-Dallas, 2018 WL 2339071, *1 (E.D. Pa. May 23, 2018); Coleman v. Napa County Dept. Corrs., 2018 WL 3861662, at *4 (N.D. Cal. Aug. 14, 2018). Thus, to the extent the complaint raises a retaliation claim against Sutherland, it is recommended that it be dismissed.
Although Urey specifically describes his claim as one for “retaliation,” the Complaint can also be read as asserting a claim of deliberate indifference based on delayed medical treatment. Such a claim fails for similar reasons, however, Deliberate indifference may be properly alleged where a prison official “delays necessary medical treatment based on a non-medical reason.” Rouse v. Plantier, 182 F.3d 197 (3d Cir. 1999). But here, Urey alleges no facts to support that Sutherland delayed his treatment for an improper reason. His lone allegation concerning the use of steroids fails to demonstrate that any delay in treatment on Sutherland's part was undue or improperly motivated by non-medical factors. Thus, to the extent such a claim is pleaded, it should be dismissed.
Second, Urey's allegations appear to raise a claim of deliberate indifference to his medical needs under the Eighth Amendment. To state such a claim, Urey “must allege facts that demonstrate: (1) he had a serious medical need, and (2) acts or omissions by prison officials that reflect deliberate indifference to that need. Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). A serious medical need exists when a “failure to treat can be expected to lead to substantial and unnecessary suffering.” Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991). Deliberate 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). See also Begandy v. Wellpath, 2022 WL 18282896, at *5 (W.D. Pa. Oct. 27, 2022), report and recommendation adopted, 2023 WL 185206 (W.D. Pa. Jan. 13, 2023).
At this early stage of the litigation, the Court should assume that the injury to Urey's shoulder (“bone grinding on bone, constant popping, temperature changes, numbing/pinching feelings”) satisfies the “serious medical need” element of his purported Eight Amendment claim. See, e.g., Begandy, 2023 WL 185206 at *6. Thus, only the second prong of the deliberate indifference test is at issue here, i.e., whether the Sutherland's treatment of Urey's injury, as alleged, manifests deliberate indifference to his serious medical need. As pleaded, it does not.
Urey acknowledges that Sutherland provided some treatment: “Mr. Sutherland put me on a steroid. That did nothing for me.” ECF No. 5, p. 13. It is well-settled that “an inmate's dissatisfaction with a course of medical treatment, standing alone, does not give rise to a viable Eighth Amendment claim.” Tillery v. Noel, 2018 WL 3521212, at *5 (M.D. Pa. June 28, 2018) (collecting cases). Such complaints fail as constitutional claims because “the exercise by a doctor of his professional judgment is never deliberate indifference.” Gindraw v. Dendler, 967 F.Supp. 833, 836 (E.D. Pa. 1997) (citing Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“[A]s long as a physician exercises professional judgment his behavior will not violate a prisoner's constitutional rights.”)). “Therefore, where a dispute in essence entails nothing more than a disagreement between an inmate and doctors over alternate treatment plans, the inmate's complaint will fail as a constitutional claim under § 1983.” Tillery, 2018 WL 3521212, at *5 (citing Gause v. Diguglielmo, 339 Fed.Appx. 132 (3d Cir. 2009) (characterizing a dispute over pain medication as the type of “disagreement over the exact contours of [plaintiffs] medical treatment” that does not violate the constitution)).
Although Urey may disagree or be dissatisfied with the course of treatment he received for his injury, such an allegation is too thin a reed on which to base a constitutional injury. See, e.g., Begandy, 2022 WL 18282896, at *8 (citing Payo v. Stechschulte, 2022 WL 912588, at *8 (Mar. 29, 2022)); Henry v. York County, 2022 WL 696469, at *3 (M.D. Pa. Mar. 8, 2022) (citing Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987)).
III. Conclusion and Further Amendment.
In sum, as currently pleaded, Urey's complaint fails to allege facts sufficient to state a claim against Sutherland upon which relief may be granted. Therefore, Sutherland's motion to dismiss should be granted and Urey's complaint dismissed. It is recommended, however, that this dismissal be without prejudice to Urey's right to file an Amended Complaint to allege additional facts and potentially state a plausible claim for relief. See, e.g, Lewis v. Juniper Nursing, et al., 2023 WL 359475, at *3 (W.D. Pa. Jan. 23, 2023).
V. Notice Concerning Objections
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 e.g., Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).