HUGHES v. HAYES et al

Filing 24

MEMORANDUM OPINION regarding Motion to Dismiss 16 and Motion to Supplement 21 . An appropriate Order follows. Signed by Judge Susan Paradise Baxter on 12/20/18. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

EV AN HUGHES,
Plaintiff,

v.

MS. HA YES, et al,
Defendants.

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Civil Action No. 18-S0Erie
District Judge Baxter

Re: Motion to Dismiss [ECF No. 16]

MEMORANDUM OPINION 1
United States District Judge Susan Paradise Baxter

Relevant Procedural History
This civil action was filed in this Court on February 14, 2018 . Plaintiff, an inmate
incarcerated at the State Correctional Institution at Forest, brings this action against Defendants
Ms . Hayes, Mr. Kibbie, Superintendent Ovem1yer, Deputy Superintendent Sawtelle, Chief
Health Care Administrator Kim Smith, and Nurse Hill.
In his complaint, Plaintiff, acting pro se2 , alleges that on April 12, 2017 while he was
lifting weights, one of the "disks on the machine" fell off hitting him on the head and " causing

The parties consented to having a United States Magistrate Judge exercise jurisdiction over this
matter. 28 U.S .C . § 636, et seq . ECF No. 4; ECF No. 15 . When this case was initiated and
originally assigned by the Clerk of Courts, the undersigned was a Magistrate Judge. However, on
September 14, 20 18, the undersigned was elevated to the position of United States District Judge
and this case remained assigned to her.
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Pro se pleadings, "however inartfully pleaded, must be held to ' less stringent standards than
formal pleadings drafted by lawyers." ' Haines v. Kerner, 404 U.S . 519, 520 (1972). If the court
can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should
do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and
sentence construction, or litigant's unfamiliarity with pleading requirements. See Boag v.

the armbar to snap back with Plaintiffs arm still in place." ECF No. 3, ,r 12. Plaintiff
immediately reported the incident to Defendant Mr. Kibbie, the activities supervisor, who sent
Plaintiff to the Medical Department. Plaintiff was examined by Defendant Nurse Hill who told
him that his arm was fine and attempted to give him Ibuprofen . Plaintiff submitted "sick call
slips" on April 13 1\ April 17th , and April 20 th , but did not receive medical attention. After the
fourth "sick call slip" was submitted on April 24 th , Plaintiff was examined by PA Sutherland
who scheduled a so no gram ultrasound. On May 18, 2017 Plaintiff underwent the ultrasound and
the results (which crone back May 24 th) revealed a tom bicep. Sutherland then scheduled Plaintiff
for a specialist visit. Nine weeks after the incident, on June 2ot11, surgery was performed. After
surgery and the removal of an arm brace, Plaintiff requested physical therapy through the "sick
call" system and his requests were ignored. As a result of the injury and the delayed medical
treatment, Plaintiff alleges that he is unable to perfonn normal daily activities with his ann and
he is unable to work. ECF No. 3.
Plaintiff purports to raise legal claims of deliberate indifference, failure-to-protect and
negligence against Kibbie, Hayes, Overmyer, and Sawtelle based on the "faulty weight room
equipment" and claims of deliberate indifference and negligence against Nurse Hill and CHCA
Smith based on the medical treatment he received. Additionally, liberally construing the
allegations, Plaintiff seems to be raising claims of deliberate indifference and negligence against
Smith based on a failure to provide rehabilitation care after surgery.

MacDougall, 454 U.S. 364 (1982). Under our liberal pleading rules, during the initial stages of
litigation, a district court should construe all allegations in a complaint in favor of the
complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other grounds .!2.y
Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001). See,~, Nruni v. Fauver, 82 F.3d 63 ,
65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard). Because Plaintiff is a prose
litigant, this Court will consider facts and make inferences where it is appropriate.
2

Defendants filed a motion to dismiss. ECF No. 16. Plaintiff has filed a brief in opposition
[ECF No. 22], as well as a motion to supplement the record with a Certificate of Merit [ECF No.
21]. These motions are fully briefed and are ripe for disposition by this Court.

Standard of Review - Motion to dismiss
A motion to dismiss filed pursuant to Rule l 2(b )( 6) must be viewed in the light most
favorable to the plaintiff and the complaint's well-pleaded allegations must be accepted as true.
Erickson v. Pardus, 55 I U.S. 89, 93-94 (2007). A complaint must be dismissed pursuant to Rule
l 2(b )( 6) if it does not allege "enough facts to state a claim to relief that is plausible on its face."
Bell Atl. Corp. v. Twombly, 550 U.S. 544,570 (2007) (rejecting the traditional 12(b)(6) standard
set forth in Conley v. Gibson, 355 U.S . 41 (1957)); see also Ashcroft v. Iqbal, 556 U.S . 662 (2009)
(specifically applying Twombly analysis beyond the context of the Sherman Act) .
A court need not accept inferences drawn by a plaintiff if they are unsupported by the facts
set forth in the complaint. See California Pub. Emps '. Ret. Sys. v. The Chubb Corp., 394 F.3d 126,
146 (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 set forth as factual allegations. Twombly. 550 U.S. at
555, citing Papasan v. Allain, 478 U.S . 265,286 (1986); see also McTernan v. City of York, Pa. ,
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."). A plaintiffs factual allegations
"must be enough to raise a right to relief above the speculative level." Twombly. 550 U.S. at 556
citing 5 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE§ 1216, pp. 235-36 (3d ed.
2004). Although the United States Supreme Court ("Supreme Court") does "not require heightened

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pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible
on its face." Twombly. 550 U.S. at 570.
In other words, at the motion to dismiss stage, a plaintiff is "required to make a ' showing'
rather than a blanket assertion of an entitlement to relief." Smith v. Sullivan, No. 07-528, 2008
WL 482469, at *l (D. Del. Feb. 19, 2008) quoting Phillips v. Cty. of Allegheny. 515 F.3d 224,
231 (3d Cir. 2008). "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
n.3.
The Third Circuit has expounded on the Twombly/Iqbal line of cases. To determine the
sufficiency of a complaint under Twombly and Iqbal, the court must follow three steps:
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 tmth.' 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

Iw.,., 629 F.3d 121 , 130 (3d Cir. 2010).

The Prison Litigation Reform Act
The Exhaustion Requirement

Defendants argue that Hayes, Kibbie, Sawtelle, Overmyer and Smith are entitled to
dismissal of the claims against them based on Plaintiffs failure to exhaust administrative

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remedies in accordance with the requirements of the Prison Litigation Reform Act. Plaintiff
argues to the contrary.3
The PLRA, 42 U.S .C. § l 997e(a) provides:
no action shall be brought with respect to prison conditions under section 1983 of
this title ... by a prisoner confined in any jail, prisons, or other correctional facility
until such administrative remedies as are available are exhausted.
Id. The requirement that an inmate exhaust administrative remedies applies to all inmate suits
regarding prison life, including those that involve general circumstances as well as particular
episodes. Porter v. Nussle. 534 U.S . 516 (2002) ; Cutter v. Wilkinson, 544 U.S . 709, 723 n.1 2
(2005) (noting that the PLRA requires that "a prisoner may not sue under RLUIP A without first
exhausting all available administrative remedies ."); Concepcion v. Morton, 306 F.3d 1347 (3d
Cir. 2002) (for history of exhaustion requirement) . Administrative exhaustion must be
completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992).
Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all the available
remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136 (Unpublished
Opinion) (10 th Cir. May 8, 1997). The exhaustion requirement is not a technicality, rather it is
federal law which federal district courts are required to follow . Nyhuis v. Reno, 204 F.3d 65 , 73
(3d Cir. 2000) (by using language "no action shall be brought," Congress has "clearly required
exhaustion").4

J It is not a plaintiffs burden to affirmatively plead exhaustion. Jones v. Bock, 549 U.S . 199,
217 (2007) (" ... failure to exhaust is an affirmative defense under the PLRA, and that inmates are
not required to specially plead or demonstrate exhaustion in their complaints."). Instead, the
failure to exhaust must be asserted and proven by the defendants. Ray v. Kertes, 285 F.3d 287,
295 (3d Cir. 2002).

There is no "futility" exception to the administrative exhaustion requirement. Banks v. Roberts,
2007 WL 3096585 , at * l (3d Cir.) citing Nyhuis. 204 F.3d at 71 ("[Plaintiffs] argument fails
under this Court's bright line rule that ' completely precludes a futility exception to the PLRA"s
mandatory exhaustion requirement. "'). See also Woodford v. Ngo, 548 U.S. 81 , 85 (2006)

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The PLRA also requires "proper exhaustion" meaning that a prisoner must complete the
administrative review process in accordance with the applicable procedural rules of that
grievance system. Woodford v. Ngo, 548 U.S. 81, 87-91 (2006) ("Proper exhaustion demands
compliance with an agency's deadlines and other critical procedural rules ... "). Importantly, the
exhaustion requirement may not be satisfied "by filing an untimely or otherwise procedurally
defective ... appeal." Id . at 83 .
So then, no analysis of exhaustion may be made absent an understanding of the
administrative process available to state inmates. "Compliance with prison grievance procedures,
therefore, is all that is required by the PLRA to 'properly exhaust.' The level of detail necessary
in a grievance to comply with the grievance procedures will vary from system to system and
claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries
of proper exhaustion." Jones v. Bock, 549 U.S . at 218.

The Administrative Process Available to State Inmates
The DC-ADM 804 grievance system, available to state prisoners, consists of three
separate stages. First, the prisoner is required to timely submit a written grievance for review by
the facility manager or the regional grievance coordinator within fifteen days of the incident,
who responds in writing within ten business days. Second, the inmate must timely submit a
written appeal to intennediate review within ten working days, and again the imnate receives a
written response within ten working days. Finally, the inmate must submit a timely appeal to the
Central Office Review Committee, also known as the Secretary's Office of Inmate Grievances

("Indeed, as we held in Booth, a prisoner must now exhaust administrative remedies even where
the relief sought-monetary damages-cannot be granted by the administrative process.").
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and Appeals ("SOIGA"), within fifteen working days, and the inmate will receive a final
determination in writing within thirty days. See Booth v. Churner, 206 F.3d 289, 293 n.2 (3d
Cir. 1997), affd. 532 U.S. 731 (2001).
DC-ADM 804 provides that the grievance must include "a statement of the facts relevant
to the claim," "shall identify individuals directly involved in the events," and "shall specifically
state any claims he wishes to make concerning violations of Department directives, regulations,
court orders, or other law." DC-ADM 804, § l(A)(l 1).

Evidence of PlaintifPs Utilization of the Grievance System
Defendants request that this Court consider evidence outside of the pleadings in support
of their motion to dismiss for failure to exhaust. Where a court receives and considers matters
outside the pleadings in support of a motion to dismiss, the motion to dismiss should be
converted into a motion for summary judgment. Fed. R. Civ. P. 12(d) ("If, on a motion under
,
Rule 12(b)(6) ... matters outside the pleadings are presented to and not excluded by the court.
the motion must be treated as one for summary judgment under Rule 56. "). See Dorsey v.
Pennsylvania Department of Corrections, 2016 WL 6124420, at *3 (M.D. Pa. 2016).
In such a situation, a district court must provide sufficient notice of the conversion to the
non-moving party and allow that non-moving party, especially a prose prisoner plaintiff, to
submit materials to oppose summary judgment. Renchenski v. Williams, 622 F.3d 315, 340-341
(3d Cir. 2010) ("We agree with the majority of our sister circuits that adequate notice in the pro

se prisoner context includes providing a prisoner-plaintiff with a paper copy of the conversion
Order, as well as a copy of Rule 56 and a short summary explaining its import that highlights the
utility of a Rule 56(f) affidavit. While we are mindful that this extra requirement imposes some

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burden upon the district courts [ ... ], we believe this burden is slight [ ... ]. "). Here, this Court
provided such a notice to Plaintiff. ECF No. 18. Accordingly, the motion to djsmiss shall be
treated, in regard to the failure to exhaust defense, as a motion for summary judgment.
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted if
the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law." Under Rule 56, the district court must enter summary judgment
against a party "who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex
Coro. v. Catrett, 477 U.S. 317,322 (1986). "[A] party seeking summary judgment always bears
the initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue
of material fact." Id. at 323, guoting Fed. R. Civ. P. 56.
The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party's claims. Id. at 330; see also Andreoli v. Gates, 482
F.3d 641 , 647 (3d Cir. 2007); UPMC Health System v. Metro. Life Ins. Co., 391 F.3d 497, 502
(3d Cir. 2004). After the moving party has satisfied this low burden, the nonmoving party must
provide facts showing that there is a genuine issue for trial to avoid summary judgment. Id. at 324.
"Rule 56(e) pennits a proper summary judgment motion to be opposed by any of the kinds of
evidentiary materials listed in Rule 56(c), except the mere pleadjngs themselves." Id. ; see also
Saldana v. Kmart Corp .. 260 F.3d 228 , 232 (3d Cir. 2001); Garcia v. Kimmell, 381 F. App'x 211,
213 (3d Cir. 2010) guoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (the

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non-movmg party "must present more than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue.") (internal citation omitted).
Here, Defendants have presented the Declaration of Lisa Reeher, the Superintendent's
Assistant and Grievance Coordinator at SCI Forest, as well as some of Plaintiffs grievances and
appeals . ECF No. 16. Despite being given the opportunity to do so, Plaintiff has not submitted
any evidence in support of his opposition to the pending motion.
The evidence reflects that Plaintiff filed a single grievance related to the facts alleged in
his complaint. ECF No. 16-2, Declaration of Lisa Reeher. Grievance No. 679747 dated May 28,
2017 explains the circumstances of the incident in the weight room and focuses on the medical

care Plaintiff received thereafter. ECF No. 16-3 , pages 1-2. The grievance states:
On this date 4.10. 17 and time 2:45 pm, I was on weight room session #2 I was
using the pectorial [sic] machine, I was hit in the head by one of the sliding disk,
that rotates and it caused the machine to jerk and pull back with more force than it
should've on my right arm causing my bicep to tear. I informed the Activities
Staff and they immediately wrote me a pass to go too [sic] medical, where I was
given a medical exam on my right arm bicep by a female staff member that is on
record all she offered was ibuprofen. She also asked if my head was ok since I hit
my head to [sic], it was ok even though a little bruising showed up later into the
evening. I informed CO 1 Smith who working the housing unit in the bubble, that I
showed the female medical staff member that it was tore and I was in pain and he
said he would call medical again and that was to no avail. I then put in another
sick call because I was still in pain and was seen 4.24.17. I believe the actual date
for sick that I submitted was 4.21.17. I was then seen by P.A. Mr. Sutherland and
he reexamined my arn1 and I showed him where there is this big knot in my arm
where the muscle had retract to, because that's what the female medical staff said
the muscle does when it's torn. He knew something was wrong so he scheduled
me for a sonograrn ultrasound. I was seen on this date 5.18 .17 and the results
came back on this date 5.24.17, I was once again seen by P.A. Mr. Sutherland
where he informed me I was right that the muscle in my bicep bas been torn and
I'm being scheduled to see a specialist to get my bicep muscle fixed. So do [sic]
to the lack of training for your medical staff that didn't provide adequate medical
services that has been prolonged for a month and a half to date with nothing
offered but ibuprofen for such a painful [sic] injury, and your faulty exercise
equipment that is not safe. I want $40,000 dollar's [sic] for pain and suffering,
for a medical condition that has not been properly attended to and may have

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lingering effect because of your medical staff's treatment. For all damages I'm
asking for $40,000 dollars [sic].
ECF No. 16-3, page 1-2 (emphasis added).
The Initial Response to the Grievance was dated June 26, 2016 and denied Plaintiffs
Grievance. ECF No. 16-3, pages 4-5. In denying the grievance, Defendant CHCA Kim Smith5
analyzed Plaintiffs grievance as limited to the medical treatment received by Plaintiff after his
lllJUfy.
Plaintiff then filed his appeal to the facility manager:
The denial of my grievance has no reason that would make sense for denial. First
thing is that RN Hill never gave me an exam as stated in the report. Yes she
checked my blood pressure and the little thing that's put on your finger and asked
me to squeeze her finger and try to make a muscel [sic] while she holds my
foreann back and that was pretty much it. Next I did go through RN Sutherland
and he said he believed RN Hill analysis was wrong and he scheduled me for
further texting [sic] and it showed some thing was really wrong and needed a true
doctor analysis so I can have surgery and that has happened on 20 th of June past
date. There should've been some kind of acknowledgement from Ms. Smith from
my current medical condition, I've been to the hospital and Dr's office and it
seem from what's mentioned from RN Hill and Ms. Smith understanding is that
during her exam I wasn't injured but where it could've happened came from all
these date listed I was present at the gym, but to be on truth of my presence I went
to the gym almost every pass so I didn't get kicked off my pass sent I was firsttold my arm was OK by RN Hill so it seem smart to just go to the gym a sit
around so please do check and see with activities camera footage so you can see I
did no nothing that could injure my arm cause its seems I'm being accused of
purpose. I also went to every to [sic] days I was scheduled from 4.12.17 till
6.20.17 when I had surgery and I could've worked on any other body part for
exercise so why mention I went to the gym so I feel that bias. I was wrong on the
date of 4.10.17 it happened on, I lost tract of time but knew it was the week of
4.10. 17 and 4.12.17 I was scheduled for. Now there the issue with the response
time it took for the extention [sic] request and initial review that I just received on
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No claim will lie for Smith's participation in the administrative remedy process. Wl1en a
supervisory official is sued in a civil rights action , liability can only be imposed if that official
played an "affirmative part" in the complained-of misconduct. Chinchello v. Fenton, 805 F.2d
126, 133 (3d Cir. 1986). If a grievance official's only involvement is investigating and/or ruling
on an inmate's grievance after the incident giving rise to the grievance has already occurred ,
there is no personal involvement on the part of that official. Rode v. Dellarciprete, 845 F.2d
l l 95, 1208 (3d Cir. 1986).
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7.11 .17 but dated back to the 26 th of June, in all it took 37 business days to
answer, and that's 12 more days than policy. It took me 69 days from injuring my
arm till surgery and the muscel [sic] was between 75% to 90% heeled [sic] before
I [sic] it was fixed and that came from the Dr. and in that I'm in way more pain
now and I have a very long recovery time and believed $40,000 or in assess [sic]
of $40,000 would be appropriate. The records show that truth and proves the
bicep machine caused this problem and pain plus it got overlooked by your
medical staff during an exam, and none of my up-to-date records aren't present on
6.14.17 when the extension was asked for on the 20 th ofJune, and the response
date is listed as the 26 th of June so that was more than 12 days to check the reports
again, and I'm just receiving the initial review response 15 days sent if dates and
work please like a review of the facts and medical reports before it is needed to
take the next step in the grievance policy.
ECF No. 16-3, pages 6-7 (emphasis added) . In response, Facility Manager Overmyer denied the
appeal indicating that Plaintiff had received and would continue to receive the appropriate
medical attention. Overmyer specifically indicated that "all issues presented have been
thoroughly reviewed and addressed in l st level response." ECF No. 16-3, page 8.
Thereafter, Plaintiff filed an appeal to SIOGA, the highest level ofreview. The appeal
was denied addressing Plaintiffs concerns about his medical treatment and then indicating:
It is noted that you erroneously believe that your grievance was to have addressed
a claim of faulty work out equipment. Be advised that a review of your grievance
reveals that it was solely about your medical encounters, treatment, or condition.
Additionally, any claims regarding the work out equipment would be a separate
claim to be addressed in a separate grievance. Any attempt to file a grievance on
this issue now may be deemed untimely.
ECF No. 16-3, page 10. According to Ms. Reeher, Plaintiff did not file any grievance on this
issue thereafter. ECF No. 16-2, pages 1-2.
Plaintiff technically exhausted Grievance No. 679747 as he presented it to all three levels
of review. Plaintiff argues that this grievance encompasses all the claims raised in this lawsuit those arising out of the use of the faulty gym equipment and those arising out of the medical
treatment following his injury. On this point, Plaintiff is mistaken.

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The focus of Plaintiffs initial grievance is the medical attention he received following
the injury, not the cause of the injury and not the lack of rehabilitation care. Moreover, although
references to the "faulty" gym equjpment are sprinkled throughout the grievance and appeal, the
claim revolves around the medical treatment. Accordjngly, Plaintiff has not exhausted any legal
claim arising out of the accident in the weight room and summary judgment will be granted in
favor of Kibbie, Hayes, Overmyer and Sawtelle on the legal claims of deliberate inilifference,
failure-to-protect and negligence. Additionally, Plaintiff has not utilized the administrative
remedy process with regard to any claim against Smith for her failure to provide rehabilitation
services after surgery. Summary judgment will be granted in her favor in this regard.

Deliberate Indifference

Next, Defendants argue that the deliberate indifference claim arising out of the medical
treatment provided to Plaintiff should be dismissed due to Plaintiffs failure to state a claim.
Because no evidence has been submitted on this claim, the dispositive motion will be analyzed
under the motion to dismiss standard.
In the medical context, a constitutional violation under the Eighth Amendment occurs
only when prison officials are deliberately inilifferent to an inmate's serious medical needs .
Estelle v. Gamble, 429 U.S. 97 (1976). To establish a violation of the constitutional right, a
claimant must allege "(i) a serious medical need, and (ii) acts or omissions by prison officials
that indicate deliberate indifference to that need ." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999). Deliberate indifference to a serious medical need involves the "unnecessary and wanton

infliction of pain." Estelle, 429 U.S . at 104. Such indifference is manifested by an intentional
refusal to provide care, delayed medical treatment for non-medical reasons, denial of prescribed

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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 l 03, 109 (3d Cir.
1990).
However, mere misdiagnosis or negligent treatment is not actionable as an Eighth
Amendment claim because medical malpractice does not rise to the level of a constitutional
violation. Estelle, 429 U.S . at 106. "Indeed, prison authorities are accorded considerable latitude
in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67 (citations omitted). Any
attempt to second-guess the propriety or adequacy of a particular course of treatment is
disavowed by courts since such determinations remain a question of sound professional
judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (internal
quotation omitted).
When presented with a motion to dismiss for failure to state a claim, a court must view
the factual allegations in the light most favorable to the plaintiff. Erickson, 551 U.S. at 93 . Here,
Plaintiff alleges the delay in medical treatment for his obvious tom bicep violated his Eighth
Amendment rights. According to Plaintiffs version of the events, although he was examined in
the Medical Department immediately after the accident in the weight room on April 12 1\ he was
not examined again until ten days later on April 24 th despite repeated requests for medical
attention . Five weeks after the initial injury, Plaintiff underwent an ultrasound revealing a torn
bicep and on June 20 11\ nine weeks after the injury, Plaintiff had surgery. Plaintiff claims the
delay in surgery resulted in pain and permanent damage to his arm function.
Plaintiffs complaint is sufficient to survive the motion to dismiss on his deliberate
indifference claim. See Monmouth Cty. Corr. Institutional Inmates v. Lanzaro , 834 F.2d 326,

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346 (3d Cir. 1987) (internal citations omitted) ("Where prison authorities deny reasonable
requests for medical treatment, however, and such denial exposes the inmate to undue suffering
or the threat of tangible residual injury, deliberate indifference is manifest. Similarly, where
knowledge of the need for medical care is accompanied by the ... intentional refusal to provide
that care, the deliberate indifference standard has been met."). Though conclusory, Plaintiff's
factual allegations are "enough to raise a right to relief above the speculative level." Twombly,
550 U.S. at 556. While proving his allegations is far removed from pleading them, Plaintiff will
be allowed to pursue discovery on this claim. The question on a motion to dismiss is not whether
the plaintiff will prevail in the end. Rather, the question "is whether the plaintiff is entitled to
offer evidence in support of his or her claims." Swope v. City of Pittsburgh, 90 F. Supp. 3d 400,
405 (W .D. Pa. 2014) citing Oatway v. Am. Int'l Grp., Inc ., 325 F.3d 184, 187 (3d Cir. 2003).

An appropriate order follows.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States District Judge
Dated: December 20, 2018

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