Hunter v. Barrett

1

RON ALLEN HUNTER JR., Plaintiff v. DR. BARRETT, PHYSICIAN; DR. KANG, PHYSICIAN; AND Z. WAGGONER, CO.; Defendants

No. 1:22-CV-00078-SPB

United States District Court, W.D. Pennsylvania, Erie Division

December 16, 2022

REPORT AND RECOMMENDATION ON DEFENDANTS BESSETTI-BARRETT AND KANG LI'S MOTION TO DISMISS

IN RE ECF NO.20

RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE

Defendants Colleen Bessetti-Barrett and Kang Li (collectively "Medical Defendants") have moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Plaintiffs complaint. See ECF No. 20. The motion has been referred to the undersigned for Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). It is respectfully recommended that the motion be GRANTED and that Hunter's Complaint be DISMISSED, without prejudice, as to the Medical Defendants.

I. Factual and Procedural Background

At the time of the events alleged in the Complaint, Plaintiff Ron Allen Hunter Jr. ("Hunter") was a pre-trial detainee housed at the Erie County Prison.^[1] His pro se civil rights Complaint was docketed on April 1, 2022. ECF No. 8. He identifies the following individuals as defendants: "Dr. Barrett, Physician," "Dr. Kang, Physician," "Z. Waggoner, CO."^[2] Id., pp. 2-3.

Hunter's Complaint alleges that during intake on January 11, 2022, he told prison officials that "the emergency room said no lifting" because he had hernias and fractured ribs. Id. p. 4. Hunter alleges prison officials laughed at him despite his hernias and forced him to lift himself into a top bunk bed. Id. He further alleges that prison officials gave him ibuprofen in response to his medical complaints but did not change his assignment from a top bunk to a bottom bunk. Id. See also Id. at p. 5. He faults prison officials generally for ignoring his health concerns.

Hunter also alleges that Defendant Waggoner "knew about my health problems at the time yet he still mased (sic) me knowing I got heart problems, breathing problems, and 2 hurnias (sic)." Id. at p. 13. Hunter relates that he "even has liver problems" and that he does not "feel safe here." Id. He says that on February 16, 2022, "I found 2 new hurnias (sic) and now have 4 hurnias because the jail dr. will not do her job." Id. Approximately five days after he filed his Complaint, Hunter submitted a document he labeled "affidavit." See ECF No. 10. This document, Hunter contended, was drafted "in compliance with Federal Rule of Civil Procedure 5." See, e.g. ECF No. 5, p. 1. This document is unsworn and therefore not an affidavit. Because it was filed before the motions to dismiss, the Court will instead consider the filing as a supplement to the complaint. See Fed. R. Civ. P. 15. See also Korb v. Hay stings, 260 Fed.Appx. 222, 226 (3d Cir. June 8, 2021) (pre-motion-to-dismiss filings should be treated as supplements to the complaint). This supplement adds the following additional factual background:

On 1-11-22,1 came to Erie County Prison after being at Saint Vincent Hospital because my ribbs (sic) were fractured because a state trooper Christopher Weber. It even shows in my affidavit of probable cause that I was at the hospital and I have hospital records of two hurnias (sic) from Saint Vincent. So CO. Waggoner knew I was not allowed to lift anything.

Dr. Kang and Dr. Barrett stated that there is no record of my ribbs (sic) being fractured. But my affidavit shows me being at Saint Vincent Hospital for my ribbs (sic) and records of my hurnias (sic).

ECF No. 10. p. 1.

More than a year later, Hunter filed a number of documents he labeled as requests for an unspecified "writ." See ECF Nos. 43, 46, 47, and 48. These filing primarily concerned Hunter's requests for relief and events that occurred after the filing of the Complaint. Therefore, the Court construed them as further supplements to Hunter's Complaint and caused them to be re-docketed as such. See Fed. R. Civ. P. 15(d); Korb, 860 Fed.Appx. at 226. Hunter's supplements supplement his complaint as follows. At ECF No. 43, Hunter states that he wants "to be clear on the relief I am asking." He then specifies various types and amounts of damages he is seeking. At ECF No. 46, Hunter reports that he was seen by a doctor on August 9, 2022. ECF No, 46, p. 1. Hunter filed ECF No. 47 to "better describe (sic) my claim." ECF No. 47, p. 1. He alleges that cameras "will show staff laughing making fun of me while I'm asking to see the doctor and when I asked to be seen about my hurnias (sic) and ribbs (sic) I was ignored." Id. He further alleges that he "put in a grievance in then I was denied the grievance process and procedure." Id. Hunter acknowledges that he was seen by a doctor "two months later only for my hurnias (sic) not for my ribbs." Id. Although this supplement does not identity the medical providers, it does state that "Waggoner knew - there were witnesses I was in to[o] much pain to defend myself." Id. Hunter's last supplement alleges that he was seen "[by] the doctors about pain in my ribbs. Finally after putting a lawsuit in because they ignored me." ECF No. 48, p. 1. He additionally alleges that:

Doctors Kang - Dr. Barrett did not care about my health or see me and when Waggoner knew and even admitted to me - He carried my things because my ribbs (sic) are fractured yet CO. Waggoner still mased (sic) me assaulted me knowing I could barely move. I was [in] pain and even though he knew this he tried to force me to carry my stuff a few week[s] later to a top bunk up stairs knowing and aware I can barely carry anything."

Id. Although these supplements elaborate somewhat regarding facts alleged in Hunter's Complaint, they do not materially alter the Court's analysis of the Medical Defendants' motion to dismiss.

On June 21, 2022, the Medical Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 20. Hunter was ordered to file a response in opposition to the motion or an amended complaint. See ECF No. 24. Instead, on June 29, 2022, he filed a "notification" stating his desire to "proceed with legal action -1 do not want this case dismissed. I do want to continue my lawsuit and civil case." ECF No. 27. The Court notified Hunter that this filing, construed as his response to the motion to dismiss, lacked "any factual background, legal argument, and/or citation to proper legal authority" and afforded him an additional time to file a proper response to the motion or an amended complaint. ECF No. 28, p. 1, ¶ 2. Thereafter he filed two supplemental responses: ECF No. 30 on July 11, 2022; and ECF No. 37 on July 15, 2022.^[3] The Medical Defendants' motion is now ripe for disposition.

II. Standards of Decision

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). When reviewing a motion to dismiss, the Court accepts as true all well-pleaded facts in the complaint. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). 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. Twornbly, 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." Twornbly, 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 view the well-pleaded factual allegations in the complaint 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. Twornbly, 550 U.S. at 555. A "formulaic recitation of the elements of a cause of action will not do." Ld. (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.5 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.5

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.55 Iqbal, 556 U.S....