Walker v. Zaloga et al

Filing 11

MEMORANDUM (Order to follow as separate docket entry) re 1 Complaint (Lodged No FF and No Motion for IFP Filed) filed by Brian Lee Walker. Signed by Honorable Jennifer P. Wilson on 1/10/2022. (ve)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRIAN LEE WALKER,
Plaintiff,
v.
DR. ZALOGA, CORRECTIONAL
CARE, INC, et al.,
Defendants.

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Civil No. 1:20-CV-2247

Judge Jennifer P. Wilson
MEMORANDUM

Before the court for screening pursuant to 28 U.S.C. § 1915(e)(2)(B) is the
complaint of self-represented Plaintiff Brian Lee Walker (“Walker”), an inmate
incarcerated at the Lackawanna County Prison (“LCP”), in Scranton,
Pennsylvania. (Doc. 1.) Walker seeks to proceed in forma pauperis in this civil
rights action pursuant to 42 U.S.C. § 1983. (Doc. 4.) Walker alleges his Eighth
Amendment right to be free from cruel and unusual punishment was violated when
Defendants were deliberately indifferent to his serious dental needs. (Id.) Named
as Defendants are Warden Timothy Betti, Dr. Zaloga, and Dr. Demian. For the
reasons that follow, the court will grant Walker’s request to proceed in forma
pauperis but dismiss the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) with
leave to amend.

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FACTUAL BACKGROUND
“Pulling teeth is not a solution … it is torture” according to Walker. (Doc.
1., p. 12.) Between April and May 2019, Walker brought a painful right bottom
molar to the attention of Dr. Zaloga and Dr. Demian, a dentist at LCP. Walker
requested a root canal because the tooth was not loose and because he sought to
rebuild it in the future. (Doc. 1., p. 12.)1 After an x-ray was taken of Walker’s
tooth, Dr. Zaloga, Dr. Demian, and others advised him that root canal treatment
was not offered at LCP, only extractions. (Id.) Walker believes failing to repair
his teeth will result in the unnecessary loss of teeth and places him at risk for
infection. Walker’s tooth has twice been infected while at LCP. Although he was
provided aspirin and salt rinses which alleviated the infection, it did not solve the
underlying problem. (Id., p. 18.) Walker claims his grievance to Warden Betti
never responded to the issue. As relief he seeks LCP to change its policy to
provide root canals as well as compensatory damages for his present suffering and
future dental work he will need to repair his teeth. (Id., p. 5.)
STANDARD OF REVIEW
Under 28 U.S.C. § 1915A(a), the court must conduct an initial review of a
“complaint in a civil action in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity.” See also 28 U.S.C.

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For ease of reference, the court utilizes the page numbers from the CM/ECF header.

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§ 1915(e)(2) (requiring court, in a case where plaintiff is proceeding in forma
pauperis, to dismiss the case if, for example, it is frivolous or fails to state a claim
for which relief may be granted). The legal standard for dismissing a complaint for
failure to state a claim pursuant to 28 U.S.C. § 1915 is identical to the legal
standard used when ruling on Fed. R. Civ. P. 12(b)(6) motions. See Tate v.
Wiggins, 805 F. App’x 159, 162 (3d Cir. 2020).
In order “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. (quoting
Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to
survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.
2019), cert. denied, 140 S.Ct. 1611 (2020) (quoting Iqbal, 556 U.S. at 678–79). To
determine whether a complaint survives a motion to dismiss, a court identifies “the
elements a plaintiff must plead to state a claim for relief,” disregards the
allegations “that are no more than conclusions and thus not entitled to the
assumption of truth,” and determines whether the remaining factual allegations

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“plausibly give rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365
(3d Cir. 2012).
Under Rule 12(b)(6), the court must accept all well pleaded allegations as
true and construe all reasonable inferences in favor of the nonmoving party. Doe
v. Univ. of the Scis., 961 F.3d 203, 208 (3d Cir. 2020). The pleadings of selfrepresented plaintiffs are held to a less stringent standard than formal pleadings
drafted by attorneys and are to be liberally construed. See Erickson v. Pardus, 551
U.S. 89, 94 (2007); Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d. Cir. 2011). Selfrepresented litigants are to be granted leave to file a curative amended complaint
even when a plaintiff does not seek leave to amend, unless such an amendment
would be inequitable or futile. See Phillips v. Cnty. of Allegheny, 515 F.3d 224,
245 (3d Cir. 2008). However, a complaint that sets forth facts which affirmatively
demonstrate that the plaintiff has no right to recover is properly dismissed without
leave to amend. Dooley, 957 F.3d at 376 (citing Grayson v. Mayview State
Hospital, 293 F.3d 103, 106 (3d Cir. 2002)).
DISCUSSION
Deliberate indifference to a serious medical need violates the Eighth
Amendment’s proscription against cruel and unusual punishment. Estelle v.
Gamble, 429 U.S. 97, 104 (1976). In the prison context, an Eighth Amendment
claim of deficient medical care must demonstrate two elements: 1) an objectively
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serious medical condition; and 2) an official’s deliberate indifference to that
condition. See Ryle v. Fuh, 820 F. App’x 121, 123 (3d Cir. 2020) (citing Estelle,
429 U.S. at 104). A medical need is serious if it “has been diagnosed by a
physician as requiring treatment or one that is so obvious that a lay person would
easily recognize the necessity for a doctor's attention.” Monmouth Cnty. Corr.
Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (internal quotation
omitted). “To act with deliberate indifference to serious medical needs is to
recklessly disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d
318, 330 (3d Cir. 2009). To constitute deliberate indifference, “the official must
both be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
Generally, courts accord prison medical providers “considerable latitude in the
diagnosis and treatment of prisoners,” Durmer v. O'Carroll, 991 F.2d 64, 67 (3d
Cir. 1993), and “disavow any attempt to second-guess the propriety or adequacy of
a particular course of treatment … [which] remains a question of sound
professional judgment.” Inmates of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754,
762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977))
(alternations in original). Claims of negligence or medical malpractice do not
constitute deliberate indifference. Singletary v. Pa. Dep’t of Corr., 266 F.3d 186,
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193 n. 2. (3d Cir. 2001). As such, prisoners do not have the right to choose their
medical treatment, Lasko v. Watts, 373 F. App’x 196, 203 (3d Cir. 2010) (citing
Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000)), and their disagreement
with a prison medical professional’s judgment, or a difference of medical opinion
between two physicians does not demonstrate an Eighth Amendment violation
because “[t]here may … be several acceptable ways to treat an illness.” White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
Here, Walker’s allegations amount to a disagreement over the proper course
of his treatment and fail to allege a reckless disregard with respect to his dental
care. Farmer, 511 U.S. at 836; see James v. Pa. Dep’t of Corr., 230 F. App’x 195
(3d Cir. 2007) (per curiam) (extraction of an abscessed tooth was not an Eighth
Amendment violation even if the prison did not offer any alternative treatment).
Walker refuses to have his problematic tooth extracted and believes Defendants
demonstrate their deliberate indifference to his pain by not providing him a root
canal or other restorative treatment alternatives. Yet, he admits that he is provided
ibuprofen and salt rinse for his discomfort. His request for a more permanent fix,
in the form of a root canal rather than an extraction, is insufficient to plead an
Eighth Amendment medical claim against any Defendant. See Leachman v. Harris
Cnty, Texas, 779 F. App’x 234, 238 (5th Cir. 2019); James, 230 F. App’x. at 197;
King v. United States, 536 F. App’x 358, 362–63 (4th Cir. 2013) (concluding
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dental staff not deliberately indifferent for failing to perform a root canal);
Mathews v. Raemisch, 513 F. App’x 605, 607–08 (7th Cir. 2013) (extraction
instead of root canal does not amount to Eighth Amendment violation).
In sum, Walker’s purported dissatisfaction with his dental treatment options
demonstrates a difference of opinion between him and the prison’s health care
provider and does not amount to an Eighth Amendment claim. See Estelle, 429
U.S. at 107. Walker therefore fails to state a deliberate indifference claim that is
plausible on its face.
LEAVE TO AMEND
As stated, Walker’s entire complaint is subject to dismissal pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). However, the court will grant Walker twenty-one days
(21) to file an amended complaint as to his dental claim. If Walker decides to file
an amended complaint in this action, he must clearly label it “Amended
Complaint” on the face of the document. It must bear the docket number assigned
to this case and must be retyped (double spaced) or legibly rewritten (double
spaced) in its entirety, on the court-approved form. In addition, any amended
complaint filed by Walker supersedes (replaces) the original complaint already
filed. It must be “retyped or reprinted so that it will be complete in itself including
exhibits.” M.D. Pa. LR 15.1; see also W. Run Student Hous. Assocs. v.
Huntingdon Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013).
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The court cautions Walker that the amended complaint must be concise and
direct. See Fed. R. Civ. P. 8(d). Each allegation must be set forth in individually
numbered paragraphs in short, concise, and simple statements. Id.; Fed. R. Civ. P.
10(b). The factual allegations of the amended complaint may not be conclusory.
Instead, the facts alleged should be specific enough as to time and place of the
violations and must identify the specific person or persons responsible for the
deprivation of his constitutional rights and what each defendant did to harm him.
Iqbal, 556 U.S. at 676.
If Walker fails to file an amended complaint on the court’s form within
twenty-one days, the court will dismiss his action pursuant to 28 U.S.C. §
1915(e)(2)(B).
An appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania

Dated: January 10, 2022

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