Rager v. Prison Health Svc., Inc. et al

Filing 47

MEMORANDUm and ORDER granting 30 Motion to Dismiss Amended Complaint o/b/o dfts Prison Health Services, Inc and Jennifer Porta; and the amended complaint against dft Nebloni is DISMISSED Signed by Honorable James M. Munley on 4/28/11 (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD RAY RAGER,
Plaintiff,

:
:
:
v.
:
:
PRISON HEALTH SERVICES, INC.,:
et al.,
:
Respondents
:

CIVIL NO. 3:10-CV-0594
(Judge Munley)

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiff Ronald Ray Rager (“Rager”), a state inmate incarcerated at the State
Correctional Institution at Retreat, Hunlock Creek, Pennsylvania (“SCI-Retreat”),
commenced this civil action on March 17, 2010. (Doc. 1.) The matter is presently
proceeding via an amended complaint filed on November 3, 2010. (Doc. 27.) Ripe for
disposition is a motion to dismiss the amended complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6) filed on behalf of defendants Prison Health Services, Inc. (“PHS”), and
Jennifer Porta (“Porta”). (Doc. 30.) For the reasons set forth below, the motion will be
granted. In addition, the complaint against Dr. Nebloni (“Nebloni”) will be dismissed
pursuant to Federal Rule of Civil Procedure 4(m) due to Rager’s failure to effect service on
him within 120 days of the filing of the amended complaint.

I.

Motion to Dismiss
A.

Allegations of the Amended Complaint1

In February of 2008, while incarcerated at SCI-Retreat, Rager began experiencing
pain in his groin area and, upon self-examination, he discovered a lump. (Doc. 27, at 5, ¶¶
14-15.) On February 22, 2008, he was examined by physician’s assistant defendant Porta.
(Id. at ¶ 17.) During the exam, he informed defendant Porta about the lump in his groin area.
Defendant Porta ordered an ultrasound and it was discovered that Rager had “two epidydmal
cysts.” (Id. at ¶¶ 18-19.) Defendant Porta prescribed Ibuprofen for pain. (Id. at ¶ 20.)
The pain persisted and worsened. (Id. at ¶ 21.) He returned to sick call on March 11,
2008, at which time defendant Porta ordered a second ultrasound. (Id. at ¶ 22.) According to
Rager, the results of the second ultrasound revealed that the cysts were not malignant. (Id. at
¶ 23.) “Despite [my] efforts to obtain treatment to either remove the cysts or ease the pain,
treatment was not approved due to the fact that the cysts were not malignant.” (Id. at ¶ 29.)
He contends that the denial of any type of procedure to shrink or remove the cysts subjects
him to constant and unbearable pain. (Doc. 27, at 6, ¶ 30.)
Rager has a bladder control problem which requires him to wear adult diapers. (Doc.
27, at 4, ¶ 1.) On his initial intake into the Pennsylvania Department of Corrections, he was
issued washable and disposable adult diapers, plastic underwear to wear over them, and
protective underwear. (Id. at ¶ 2.) In November 2009, while incarcerated at SCI- Retreat,

1

Only those allegations pertinent to the moving defendants will be set forth.
2

the Health Care Administrator discontinued the adult diapers and replaced them with C-Fold
paper towels. (Id. at ¶ 8.) He has made several requests to be provided with the rescinded
supplies and all requests have been denied. (Id. at ¶¶ 10-13.)
B.

Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of
complaints that fail to state a claim upon which relief can be granted. FED. R. CIV. P.
12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the court must “accept as
true all [factual] allegations in the complaint and all reasonable inferences that can be drawn
therefrom, and view them in the light most favorable to the plaintiff.” Kanter v. Barella, 489
F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
Although the court is generally limited in its review to the facts contained in the complaint, it
“may also consider matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the defendant
notice of what the . . . claim is and the grounds upon which it rests.” Phillips v. County of
Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The plaintiff must present facts that, if
true, demonstrate a plausible right to relief. See FED. R. CIV. P. 8(a) (stating that the
complaint should include “a short and plain statement of the claim showing that the pleader is
3

entitled to relief”); Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (explaining that Rule 8 requires more than “an unadorned, the-defendant
unlawfully-harmed-me accusation”); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege
facts sufficient to “raise a right to relief above the speculative level”). Thus, courts should
not dismiss a complaint for failure to state a claim if it contains “enough factual matter (taken
as true) to suggest the required element. This does not impose a probability requirement at
the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of the necessary element.” Phillips, 515 F.3d at 234
(quoting Twombly, 550 U.S. at 556).
Courts are cautioned that because of this liberal pleading standard, a plaintiff should
generally be granted leave to amend before dismissing a claim that is merely deficient. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). The federal rules allow for liberal amendments in light of
the “principle that the purpose of pleading is to facilitate a proper decision on the merits.”
Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal quotations omitted).
However, leave to amend under Rule 15 may be denied in cases of (1) undue delay; (2) bad
faith or dilatory motive; (3) undue prejudice; or (4) futility of amendment. See Foman, 371
U.S. at 182; see also Arthur v. Maersk, Inc., 434 F.3d 196, 204-05 (3d Cir. 2006) (stating
that “leave to amend must generally be granted unless equitable considerations render it
otherwise unjust”); see also Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (stating
“absent undue or substantial prejudice, an amendment should be allowed under Rule 15(a)
4

unless denial can be grounded in bad faith or dilatory motive, truly undue or unexplained
delay, repeated failure to cure deficiency by amendments previously allowed or futility of
amendment”) (citations and internal quotation marks omitted); Alvin v. Suzuki, 227 F.3d
107, 121 (3d Cir. 2000) (summarizing factors to consider under Rule 15).
C.

Discussion

Section 1983 of Title 42 of the United States Code offers private citizens a cause of
action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute
provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d
1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege “the
violation of a right secured by the Constitution and laws of the United States, and must show
that the alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988). Merely private conduct, no matter how
discriminatory or wrongful is excluded from the reach of § 1983. Blum v. Yaretsky, 457
U.S. 991, 1002 (1982)).
Additionally, “[a] defendant in a civil rights action must have personal involvement in

5

the alleged wrongs. . . . Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195,
1207-08 (3d Cir. 1988); see also, Rizzo v. Goode, 423 U.S. 362 (1976); Atkinson v. Taylor,
316 F.3d 257 (3d Cir. 2003). Thus, individual liability can be imposed under Section 1983
only if the state actor played an “affirmative part” in the alleged misconduct. Rode, supra.
Alleging a mere hypothesis that an individual defendant had personal knowledge or
involvement in depriving the plaintiff of his rights is insufficient to establish personal
involvement. Rode, 845 F.2d at 1208.
1.

PHS

The claim against PHS must be dismissed. Rager fails to allege the existence of any
policy or custom that deprived him of his constitutional rights. Liability cannot be based on
respondeat superior liability alone. It is well-settled that:
A private health care provider acting under color of state law, . . . , can be
liable under § 1983 for Eighth Amendment violations stemming from
inadequate medical treatment of prisoners. Such liability cannot rest on
respondeat superior alone, however, but instead must be based on some
policy, practice, or custom within the institution that caused the injury. Thus,
to survive a motion for summary judgment, a plaintiff must present evidence
of a policy, practice, or custom which caused or exacerbated a serious medical
need and was instituted with deliberate indifference to the consequences.
For the purposes of § 1983 analysis, a policy is made when a decision-maker
with final authority to establish such a policy issues an official proclamation,
policy or edict. A custom, on the other hand, “can be proven by showing that
a given course of conduct, although not specifically endorsed or authorized by
law, is so well-settled and permanent as virtually to constitute law.” As a
result, custom can be established' by “proof of knowledge and acquiescence.”
Under the Estelle test, deliberate indifference can be shown in the instant case
if there is an established policy or custom that caused [the prison health care
6

provider] to intentionally deny or delay access to necessary medical treatment
for non-medical reasons, or if officials intentionally interfered with a course
of treatment once prescribed.
Johnson v. Stempler, No. 00-711, 2007 WL 984454, at *4 (E.D. Pa. Mar. 27, 2007) (internal
citations omitted). Rager makes no such allegations and seeks to sue PHS solely as the entity
responsible for providing health care. Therefore, the deliberate indifference to medical care
claim against PHS must be dismissed for failure to state a claim for which relief may be
granted. See Riddick v. Modeny, 250 F. App’x. 482, 483-84 (3d Cir.2007) (affirming district
court's granting of private health care provider’s motion to dismiss under Rule 12(b)(6),
where court found “absent any allegation from which the court could infer Prison Health
Services’s direct involvement in the alleged deprivation of his constitutional rights, it was not
liable on a theory of respondeat superior.” ).
2.

Porta

To demonstrate a prima facie case of Eighth Amendment cruel and unusual
punishment based on the denial of medical care, plaintiff must establish that defendants acted
with deliberate indifference to his serious medical needs. Estelle v. Gamble, 429 U.S. 97,
104 (1976); Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993). There are two components
to this standard: First, a plaintiff must make an “objective” showing that the deprivation was
“sufficiently serious,” or that the result of the defendant’s denial was sufficiently serious.
Additionally, the plaintiff must make a “subjective” showing that defendant acted with “a
sufficiently culpable state of mind.” Wilson v. Seiter, 501 U.S. 294, 298 (1991); see also
Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002). The “deliberate indifference to
7

serious medical needs” standard is obviously met when pain is intentionally inflicted on a
prisoner, when the denial of reasonable requests for medical treatment exposes the inmate to
undue suffering or the threat of tangible residual injury, or when, despite a clear need for
medical care, there is an intentional refusal to provide that care. See Spruill v. Gillis, 372
F.3d 218, 235 (3d Cir. 2004) (quoting White v. Napoleon, 897 F.2d 103, 109 (1990);
Monmouth County Corr. Inst. Inmates v. Lensario, 834 F.2d 326, 346 (3d Cir. 1987).
It is clear from the allegations of the amended complaint that defendant Porta provided
Rager with adequate medical care. Rager was seen by Porta on two occasions for complaints
of pain in the groin area. On the first occasion, Porta conducted an examination, ordered an
ultrasound and prescribed pain medication. On the second visit, Porta ordered a second
ultrasound. At no time did she deprive Rager of medical care. Consequently, the complaint
will be dismissed as to defendant Porta. Affording Rager the opportunity to amend as to this
defendant would be futile as it is evident that he is dissatisfied with the course of treatment
received as opposed to being denied treatment.
II.

Rule 4(m) Dismissal
Rager filed his amended complaint on November 3, 2010. (Doc. 27.) The court

issued an order directing the United States Marshal’s Service to serve the amended pleading
on newly named defendants Nebloni and Kaspyzk. (Doc. 34.) On January 24, 2011, the
waiver of service was returned unexecuted as to Nebloni. (Doc. 35). “If a defendant is not
served within 120 days after the complaint is filed, the court – on motion or on its own after
notice to the plaintiff – must dismiss the action without prejudice against that defendant or
order that service be made within a specified time.” FED. R. CIV. P. 4(m). Because the

expiration date of the 120 day period was approaching, on March 1, 2011, Rager was
directed to provide additional information concerning Nebloni, for purposes of effecting
service, or suffer dismissal of the claim against him for failure to timely serve the amended
complaint. (Doc. 36.) No additional information about Nebloni was provided to the court.
Consequently, Nebloni will be dismissed from this action pursuant to Federal Rule of Civil
Procedure 4 (m).
III.

Conclusion
Based on the foregoing, the motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6) filed on behalf of defendants PHS and Porta will be granted. In addition,
the amended complaint against Nebloni will be dismissed without prejudice pursuant to
Federal Rule of Civil Procedure 4(m).
An appropriate order follows.
BY THE COURT:

s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

Dated:

April 28th, 2011

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RONALD RAY RAGER,
Plaintiff,

:
:
:
v.
:
:
PRISON HEALTH SERVICES, INC.,:
et al.,
:
Respondents
:

CIVIL NO. 3:10-CV-0594
(Judge Munley)

::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 28th day of April 2011, in accordance with the foregoing
memorandum, it is hereby ORDERED that:
1.

The motion to dismiss the amended complaint (Doc. 30) pursuant to Federal
Rule of Civil Procedure 12(b)(6) filed on behalf of defendants Prison Health
Services, Inc., and Jennifer Porta, is GRANTED. The amended complaint
against defendants Prison Health Services, Inc, and Jennifer Porta, is
DISMISSED. The Clerk of Court is directed to TERMINATE these
defendants.

2.

The amended complaint against Nebloni is DISMISSED without prejudice
pursuant to Federal Rule of Civil Procedure 4(m). The Clerk of Court is
directed to TERMINATE this defendant.
BY THE COURT:

s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court