Lanza v. Moclock

ENRICO F. LANZA, JR., Plaintiff v. MICHAEL A. MOCLOCK, M.D., et al., Defendants

Civil No. 3:17-cv-1318

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

June 20, 2018

(Judge Mariani)

MEMORANDUM

Plaintiff, Enrico Lanza ("Lanza"), an inmate currently confined at the State Correctional Institution in Coal Township, Pennsylvania ("SCI-Coal Township"), initiated the instant action pursuant to 42 U.S.C. § 1983. (Doc. 1). Named as Defendants are Karen (Merritt) Scully, Thomas S. McGinley, Michael A. Moclock, M.D., Nicholle Boguslaw, PA-C, and Wexford Health Sources, Inc. (Id.).

Defendants Merritt Scully and McGinley filed an answer to the complaint with affirmative defenses. (Doc. 14). Defendants Moclock, Boguslaw, and Wexford filed motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Docs. 24, 26). The motions are ripe for disposition and, for the reasons set forth below, the Court will grant the motions to dismiss.¹

I. Motion to Dismiss Standard of Review

A complaint must be dismissed under FED. R. CIV. P. 12(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, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).

"Though a complaint 'does not need detailed factual allegations, . . . a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factualallegations in the Complaint and the reasonable inferences that can be drawn from those facts, but . . . disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).

Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take 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.

Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

"[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not show[n] - that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless the district court finds that amendmentwould be inequitable or futile, the court must inform the plaintiff that he or she has leave to amend the complaint within a set period of time.

Id.

II. Allegations of the Complaint and Supporting Exhibits

The allegations of the complaint relate to Lanza's medical care and treatment at SCI-Coal Township. (Doc. 4). Lanza alleges that Defendants were deliberately indifferent to his serious medical needs. (Id.).

Lanza alleges that he separated and fractured his shoulder in 2011. (Doc. 4, p. 3). He further alleges that six years later, he underwent an x-ray of his shoulder, and Defendant Moclock allegedly "said there was nothing that could be done about it and refused medical treatment." (Id.). Lanza asserts that Defendants Boguslaw and Moclock refused medical treatment and pain medication for his shoulder, despite constant pain and loss of arm function. (Id.). He claims that Defendant Moclock stopped the operation he was going to have for his separated shoulder, refused the injections that were prescribed by a specialist, and refused to order pain medication. (Id. at p. 6).

Lanza states that he underwent back surgery for spinal stenosis in 2016. (Doc. 4, p. 3). He alleges that Defendant Moclock failed to provide the medications prescribed by the neurosurgeon. (Id. at pp. 3, 6). Lanza claims that he experienced back and leg pain after the back surgery, but did not receive any treatment. (Id. at p. 3).

Lanza further alleges that Defendant Boguslaw charged him for sick call, forced himto buy Motrin from the commissary, falsified medical records, "conspired" with Defendant Moclock to refuse medication, and lied to him about ordering tests. (Doc. 4, p. 6).

Lanza also alleges that Defendant Moclock abused drugs and alcohol in 1999, 2001, and 2004. (Doc. 4, p. 7). Lanza asserts that Defendant Moclock underwent a mental health and physical examination, and was allegedly diagnosed with opioid dependence, alcohol dependence, and major depression. (Id.). Lanza states that Defendant Moclock is "believed" to have been charged with driving under the influence in 2014. (Id.).

For relief, Lanza seeks one million dollars for every year he has suffered, for a total of six million dollars, from Defendant Moclock. (Doc. 4, p. 6). He seeks one million dollars from Defendants Boguslaw and McGinley, two million dollars from Defendant Merritt Scully, and five million dollars from Defendant Wexford. (Id. at pp. 6-7). Additionally, Lanza requests that the Court revoke the professional licenses of Defendants Moclock, Boguslaw, and Merritt Scully, and void the contract between the Department of Corrections and Wexford. (Id. at p. 6).

Lanza attached the following exhibits to his complaint.

On August 26, 2015, Lanza filed an inmate request to staff member form complaining about medical co-payments and the requirement of filing sick call slips. (Doc. 4, p. 27). Lanza also requested a copy of all of his medical records. (Id.). In response, Lanza was advised that he may submit a request to review all of his medical records. (Id.).On September 9 and 28, 2015, Lanza filed inmate request to staff member forms complaining about pain in his legs. (Id. at p. 28-29). He was advised to sign up for sick call. (Id.).

On October 29, 2015, Lanza filed a grievance requesting renewal of his Motrin prescription, and requesting reimbursement of a $25.00 co-pay. (Doc. 4, p. 30). The grievance was denied on initial review as follows:

Mr. Lanza, KG8741, the record indicates that your last order for motrin expired in March. By policy, it is at the discretion of the practitioner as whether or not you are charged for a visit and or medication. Additionally, any unscheduled visit made at an inmate[']s request is also charged. Copay applies in this case.

I consider this grievance denied.

(Id. at p. 31). On appeal, the Facility Manager upheld the initial review response as follows:

I have reviewed your appeal and initial review response by Mr. Yackiel, RN Supervisor. I am not a medical professional neither are you so we both must rely on those who are to give us the best medical advice. You believe they are wrong however after speaking to Ms. Merritt, CHCA who consulted with the Medical Director, I have been assured the level of care being provided to you is in fact appropriate.

The Facility Manager upholds the initial review response.

(Id. at p. 33). Lanza then appealed to the Secretary's Office of Inmate Grievance and Appeals ("SOIGA"). (Id. at p. 44). The Chief Grievance Officer denied Lanza's appeal, and found as follows:

This office is in receipt of your appeal, has reviewed all applicable documents,and consulted with relevant professional staff. In your grievance, you state that medical is forcing you to sign up for sick call so you can be charged for a part of your chronic medications. You indicate that this has been done multiple times and request to be reimbursed $25.00 and have the Motrin renewed with your other medications every six months.

A review of the records by the Bureau of Health Care Services (BHCS) reflects that the medical care provided was reasonable and appropriate for pain management and the recommendation of obtaining NSAID medication at the commissary. These clinical decisions are made by the attending practitioner. You are encouraged to participate in your treatment plan and to discuss your concerns or changes of condition with a practitioner. No evidence of neglect or deliberate indifference was found.

The sick call visits in question to be evaluated by a practitioner when prescribed medications have expired by policy are at the discretion of the practitioner. An inmate shall pay a co-pay fee for any non-emergency medical service provided at the inmate's request. Based on the review, your appeal and any requested relief is denied.

(Id.).

On November 18, 2015, Lanza filed a grievance again complaining about medical co-pays and being charged for Motrin. (Doc. 4, pp. 34, 39). The grievance was denied on initial review as follows:

Mr. Lanza,

Your grievance states that on 10/12/15 you were charged for pain meds that are part of your chronic problems and that you have been being [sic] charged for

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