JUDITH C. McCARTHY, Magistrate Judge.
Plaintiff Donald Mack Bennett, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983
For purposes of resolving the instant motion, this Court accepts as true the facts as stated in Plaintiff's Amended Complaint. Based on a liberal reading of the Amended Complaint, Plaintiff seems to allege that during the time he was incarcerated at the Westchester County Jail he received inadequate medical care and suffered "imminent serious dangerous physical injuries." (Am. Compl. at 1). In particular, Plaintiff claims that he had a facial cyst near his right eye, which he describes as an "imminent serious physical dangerous injury" that caused "excruciating pain." (Id. at 3 ¶ 1). Plaintiff underwent surgery on July 24, 2015 to have the cyst removed, but maintains that the surgery was originally scheduled for April 20, 2015, and complains of this three-month delay. (Id.). Plaintiff also claims that the cyst interfered with his vision, and summarily concludes that it could have been cancer and that the cancer could have spread because the surgery was delayed. (Id. at 3 ¶ 1, 5 ¶ 7). Plaintiff identifies a second cyst on his neck, which he describes as an "imminent serious physical dangerous threatening injury" and a "fatal medical issue." (Id.). He further complains that two of his medications were changed from pill form to liquid form, (Id. at 3 ¶ 1, 4 ¶ 6), and seems to argue that the cysts formed because of this change, (Pl. Opp. at 2-3). Additionally, Plaintiff claims that he contracted MRSA, an infection, when he had the surgery to remove the cyst near his eye, (Am. Compl. at 4-5 ¶¶ 6-7), and that his doctor stopped his blood thinner before his surgery and had not resumed it at the time of filing the Amended Complaint, (Id. at 3 ¶ 1). He also contends that the medical professionals at the facility gave him medication to which he was allergic and denied him prescription medication, but it is unclear from the submissions whether Plaintiff suffered any negative reactions. (Id. at 3 ¶¶ 2-3). Finally, Plaintiff complains that he was given the "wrong" medication for an infected knee, which took eight months to heal. (Id. at 4 ¶ 4). In sum, it appears that Plaintiff is arguing both about the medical treatment he received as well as the three-month delay in surgery on his cyst.
Plaintiff names as Defendants six individuals who were doctors, nurse practitioners or licensed practical nurses from whom he received the treatment described above, or with whom he otherwise interacted. His specific claims against each Defendant are outlined below.
Plaintiff's claims against Defendant CCS are brought together with his claims against Defendant Dr. Ulloa. (Am. Compl. at 3 ¶ 1). Plaintiff alleges that Defendant Dr. Ulloa postposed the surgery to remove the cyst from near his right eye by three months, from April 20, 2015 to July 24, 2015. (Id.). Plaintiff further maintains that Defendant Dr. Ulloa stopped his blood thinner on July 22, 2015, prior to the surgery, and had not put him back on it by July 30, 2015, thereby putting him at risk for a stroke, a grand mal seizure and a heart attack. (Id.). Plaintiff also avers that Defendant Dr. Ulloa changed two medications from pill form to liquid form, which Plaintiff claims caused him to suffer an upset stomach, vomiting and cold sweats. (Id.). Finally, Plaintiff claims that Dr. Ulloa committed medical malpractice. (Id. at 5(III)).
Plaintiff alleges that Defendant Dr. Curbelo falsified medical documents and mistakenly gave him Digioxon [sic], to which he claims he is allergic. (Am. Compl. at 3 ¶ 2).
Plaintiff's complaints against Defendant N.P. Beyer are that she denied him his prescribed medications in January 2015, and has slandered and defamed his character. However, Plaintiff does not elaborate further. (Am. Compl. at 3 ¶ 3). He also alleges that she retaliated against him for filing grievances, but does not describe any retaliatory conduct.
It is unclear exactly what Plaintiff's claims are against Defendant N.P. Tufaro. The most generous interpretation is that Plaintiff contends that Defendant N.P. Tufaro prescribed the "wrong" medication sometime in 2013, 2014 or 2015 to treat a knee infection that was caused by an allergic reaction to a "sponge material." (Am. Compl. at 4 ¶ 4). He further claims that N.P. Tufaro knew about or should have remembered the infection, and that his leg took eight months to heal. (Id.).
Plaintiff alleges that Defendant Nursing Supervisor N.P. Michael Kelly slandered, libeled and defamed Plaintiff's character, but offers no further information regarding these allegations. (Am. Compl. at 4 ¶ 5). Plaintiff also appears to claim that he was "racially profiled" by Defendant N.P. Kelly, but does not explain what this means, nor does he provide any further detail to support this claim. (Id.).
Finally, Plaintiff accuses Defendant L.P.N. Crystal Madigan of changing his medication from pill to liquid form, causing injury to his kidney and liver. (Am. Compl. at 4 ¶ 6). Plaintiff further claims that Defendant Madigan started rumors, slandered his name and defamed his character. (Id.). Plaintiff provides no further information to support these allegations. He also claims negligent infliction of emotional distress against Defendant L.P.N. Madigan. (Id. at 5(III); Pl. Opp. at 5).
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). First, a court deciding a motion to dismiss must accept all of the factual allegations in the complaint as true, and draw all reasonable inferences in favor of the non-moving party. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To 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.'") (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) ("On a motion to dismiss . . . we must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor.") (citations and internal quotation marks omitted)). The facts alleged must be more than legal conclusions. Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.") (citing Twombly, 550 U.S. at 555 ("[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.") (alteration, citation and internal quotation marks omitted)).
Second, the court must determine whether the allegations, accepted as true, "plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. "A claim has facial plausibility 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. at 678 (citing Twombly, 550 U.S. at 556). Determining whether a complaint states a plausible claim to relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. "`[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,' a complaint is insufficient under Fed. R. Civ. P. 8(a) because it has merely `alleged' but not `show[n] that the pleader is entitled to relief.'" 9 Recordings Ltd. v. Sony Music Entm't, 165 F.Supp.3d 156, 160 (S.D.N.Y. 2016) (quoting Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (internal quotation marks omitted)). If a plaintiff has "not nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.
Pro se complaints should be liberally construed and "held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal." James v. Correct Care Solutions, No. 13-cv-0019 (NSR), 2013 WL 5730176, at *2 (S.D.N.Y. Oct. 21, 2013) (citation and internal quotation marks omitted);
On a Rule 12(b)(6) motion to dismiss, the Court may consider the allegations set forth in the complaint, any "`documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference.'" Id. at *3 (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007)). In the instant case, Plaintiff refers to the grievances he filed as part of the jail's internal complaint procedure as required under the Prison Litigation Reform Act ("PLRA"). Although Plaintiff did not include these documents as exhibits to the Amended Complaint, he does refer to them and, therefore, incorporates them by reference. Id. Defendants included Plaintiff's grievances as an exhibit to their Motion to Dismiss. It is clear from a review of these grievances that Plaintiff is aware of these documents and the information contained in them because he signed the decisions to deny his grievances and requested appeals of the denials. "Where plaintiff has actual notice of all the information in the movant's papers and has relied upon these documents in framing the complaint the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated." Id. (quoting Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)). Accordingly, this Court "will consider the grievance[s] as incorporated by reference into Plaintiff's [Amended C]omplaint in deciding the motion to dismiss." Id.; Whittle v. Ulloa, No. 15 CV 8875 (VB), 2016 WL 7351895, at *1 n.3 (S.D.N.Y. Dec. 19, 2016); see also Ellison v. Evans, No. 13 CIV. 885 (KBF), 2013 WL 5863545, at *1 n.5 (S.D.N.Y. Oct. 31, 2013), aff'd sub nom. Fuller v. Evans, 586 F. App'x 825 (2d Cir. 2014).
Plaintiff's Amended Complaint makes conclusory allegations of imminent serious physical danger and injuries, and recites a litany of complaints about the medical treatment he received while incarcerated at the Westchester County Jail. Although Plaintiff does not cite any federal law or constitutional provision on which his complaints are based, he repeats the phrases "imminent serious physical dangerous injury" and "deliberate indifference" throughout his Amended Complaint, which suggests that his claims are premised on the Eighth Amendment. See Idowu v. Middleton, No. 12 Civ. 1238 (BSJ) (KNF), 2012 WL 6040742, at *2 (S.D.N.Y. Dec. 4, 2012). The Eighth Amendment guarantees Plaintiff freedom from "cruel and unusual punishment." U.S. Const., amend. VIII. "To establish a constitutional claim arising out of inadequate medical care, an inmate must prove that prison or jail officials were deliberately indifferent to his serious medical needs." Gomez v. Cty. of Westchester, 649 F. App'x 93, 95 (2d Cir. 2016) (citing Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir.2003)) (applying Eighth Amendment standard to pretrial detainee).
The objective component has two prongs. "The first prong is whether the prisoner was actually denied adequate medical care. . . . The second prong of the objective test is whether the alleged deprivation of medical care was sufficiently serious." James, 2013 WL 5730176, at *4-5 (citing Salahuddin, 467 F.3d at 279). To establish that the deprivation of medical care was sufficiently serious, "[a] prisoner must prove that his medical need was `a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998)); see also Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Specifically, "[w]here the inadequacy alleged is in the medical treatment given, the seriousness inquiry is narrower. . . . [I]f the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry focuses on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone." Stiehl v. Bailey, No. 08-CV-10498 (CS), 2012 WL 2334626, at *8 (S.D.N.Y. June 19, 2012) (alterations in original) (citations and internal quotation marks omitted).
The subjective element is comparable to criminal recklessness. See Salahuddin, 467 F.3d at 280; see also Gomez, 649 F. App'x at 95. "[R]ecklessness entails more than mere negligence; the risk of harm must be substantial and the official's actions more than merely negligent." Salahuddin, 467 F.3d at 280 (citation omitted). "[T]he official charged with deliberate indifference must act with a `sufficiently culpable state of mind.' . . . That is, the official must `know[] of and disregard[] an excessive risk to inmate health or safety; 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.'" Hill, 657 F.3d at 122 (alteration in original) (citation omitted) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). The Second Circuit has further explained that "[t]o establish deliberate indifference, the plaintiff must prove that `the prison official knew of and disregarded the plaintiff's serious medical needs.'" Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (quoting Chance, 143 F.3d at 703).
However, "`inadvertent failure to provide adequate medical care' or `negligen[ce] in diagnosing or treating a medical condition' does not constitute deliberate indifference on the part of the prison officials." Id. at 139 (alteration in original) (quoting Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). "`It is well-established that [neither] mere disagreement over the proper treatment,' . . . nor `[m]edical malpractice . . . become a constitutional violation merely because the victim is a prisoner.'" Stiehl, 2012 WL 2334626, at *9 (alterations in original) (quoting Chance, 143 F. 3d at 703; Estelle, 429 U.S. at 106). "Thus, disagreements over medications, diagnostic techniques[,] . . . forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim." Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001); see also Stiehl, 2012 WL 2334626, at *9. "Rather, to state an Eighth Amendment deliberate indifference claim, an inmate `must demonstrate that the defendants act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm w[ould] result.'" Stiehl, 2012 WL 2334626, at *9 (alterations in original) (quoting Farid v. Ellen, 593 F.3d 233, 248 (2d Cir. 2010)).
Plaintiff's claims are based both on the medical treatment he received as well as the three-month delay in surgery on his cyst. Defendants argue that Plaintiff fails to meet the two-prong test required to establish an Eighth Amendment claim for inadequate medical treatment.
Plaintiff lists a number of complaints regarding medical treatment he received separate from the surgery for his cyst. The Court notes that although Plaintiff summarily and repeatedly uses the phrase "imminent physical serious dangerous injuries" throughout his Amended Complaint, "[e]ven in a pro se case . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Whittle, 2016 WL 7351895, at *2 (internal quotation marks and citation omitted). Moreover, "mere negligence in . . . treatment is insufficient to state a valid Eighth Amendment claim," Smith, 316 F.3d at 184 (citing Estelle, 429 U.S. at 105-06), and the "mere malpractice of medicine in prison does not amount to an Eighth Amendment violation," Harrison, 219 F.3d at 139.
First, the Court finds that Defendants Dr. Ulloa and L.P.N. Madigan did not deny Plaintiff adequate medical care when they changed the form of Plaintiff's medication from pill to liquid form. See McNulty v. Yaneka, No. 11-CV-8320 (ER), 2013 WL 684448, at *7 ("Prison officials and medical officers have a wide range of discretion in treating prisoners . . . Accordingly, the determinations made by medical providers concerning the treatment of patients are given a presumption of correctness.") (internal quotation marks omitted) (citing Sonds, 151 F. Supp. 2d at 312). Next, Plaintiff claims that he suffered from a cyst on his neck, separate from the facial cyst that was surgically removed. (Am. Compl. at 5 ¶ 7). However, he does not allege that he was denied adequate medical care for the cyst on his neck. To the contrary, the facts in Plaintiff's Amended Complaint suggest that it was promptly treated. Plaintiff states that the "lump" on his neck "accumilated" [sic] one week prior to the surgery for his facial cyst — therefore, in mid-July, 2015 — and that he was "suffering strong sufficient pain." (Id.). Plaintiff further maintains that as of July 30, 2015, the date he signed the Amended Complaint, the hospital had "split open" the cyst on his neck to "take . . . all precautions," and that he was waiting to undergo several procedures to ensure that the cyst was not cancerous. (Id.). Thus, from the time the cyst appeared on Plaintiff's neck in mid-July to the date of his Amended Complaint, approximately two weeks later, it appears Plaintiff had received medical treatment. The Court therefore finds that Plaintiff was not denied adequate medical care for the cyst on his neck. See Gutierrez v. Peters, 111 F.3d 1364, 1374 (7th Cir. 1997) ("a plaintiff can plead himself out of court by alleging facts which show that he has no claim, even though he was not required to allege those facts. . . . Allegations in a complaint are binding admissions . . . and admissions can of course admit the admitter to the exit from the federal courthouse.") (alterations in original) (citation and internal quotation marks omitted).
Finally, Plaintiff makes the following additional complaints: (i) Defendant Dr. Ulloa did not resume his blood thinner medication promptly after surgery; (ii) Defendant Dr. Curbelo prescribed him a medication to which he was allergic; (iii) Defendant N.P. Beyer denied him medication that he was prescribed; (iv) Defendant N.P. Tufaro prescribed him the "wrong" medication for a knee infection, which took eight months to heal; and (v) he contracted MRSA after his cyst surgery. Plaintiff's Amended Complaint is silent as to what harm, if any, Plaintiff suffered from these alleged errors. The Court finds that even if the above incidents constitute denials of adequate medical care, they do not amount to "sufficiently serious" deprivations, because in each incident there is no indication that a "condition of urgency" existed. See Hemmings, 134 F.3d at 108 ("Objectively, the alleged deprivation must be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists") (citation and internal quotation marks omitted); see also Chance, 143 F.3d at 703 ("mere disagreement over the proper treatment does not create a constitutional claim. . . . Moreover, negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.")
Plaintiff's claims regarding the medical treatment he received, unrelated to the delay in surgery for his facial cyst, thus fail to meet the objective element required for a claim under the Eighth Amendment as they either do not amount to denials of adequate medical care or are not sufficiently serious deprivations. Nor does Plaintiff's Amended Complaint allege any facts that suggest Defendants acted with the deliberate indifference required to satisfy the subjective element in the treatment described above.
Plaintiff's allegations regarding the delay in surgery for his facial cyst require further analysis. Plaintiff alleges that the cyst was excruciatingly painful, that it interfered with his vision and that the delay caused him "imminent serious physical dangerous injury." (Am. Compl. at 3 ¶ 1).
The Court must first address the objective element of an Eighth Amendment claim: whether Plaintiff was actually denied adequate medical care and, if so, whether the deprivation was sufficiently serious. See Salahuddin, 467 F.3d at 279. There is no evidence to support the proposition that a three-month delay is a denial of adequate medical care. However, for the purposes of the instant motion and construing Plaintiff's allegations in the light most favorable to him, the Court finds that a three month delay in surgery, when Plaintiff was allegedly suffering from excruciating pain and blurry vision, may constitute a denial of adequate medical care.
Turning to the seriousness of the deprivation, "if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry `focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.'" Salahuddin, 467 F.3d at 280 (alteration in original) (citation omitted). "Moreover, `[w]here temporary delays or interruptions in the provision of medical treatment have been found to satisfy the objective seriousness requirement in [the Second Circuit], they have involved either a needlessly prolonged period of delay, or a delay which caused extreme pain or exacerbated a serious illness.'" Bell v. Jendell, 980 F.Supp.2d 555, 560 (S.D.N.Y. 2013) (alterations in original) (quoting Ferguson v. Cai, No. 11-CV-6181(PAE), 2012 WL 2865474, at *4 (S.D.N.Y. July 12, 2012)). Here, Plaintiff offers no evidence to support his complaints that he was in excruciating pain, but at the motion to dismiss stage the Court must accept all the allegations in the Amended Complaint as factually true. Consequently, reading the allegations in the light most favorable to Plaintiff, there is a facial plausibility that Plaintiff suffered a sufficiently serious injury. See James, 2013 WL 5730176, at *6.
The second component of an Eighth Amendment claim is the subjective test: the Defendants must have been deliberately indifferent and have acted with a "sufficiently culpable state of mind." See Hemmings, 134 F.3d at 108. To show deliberate indifference, Plaintiff must set forth sufficient evidence that, if taken as true, would show that "the prison official knew of and disregarded the plaintiff's serious medical needs." Harrison, 219 F.3d at 137 (citation and internal quotation marks omitted). This "requires allegations of the defendants' subjective state of mind." Dotson v. Fischer, 613 F. App'x 35, 38 (2d Cir. 2015).
Here, Plaintiff has not made any allegations regarding Defendants' subjective state of mind, nor has he alleged any conduct or behavior that would suggest the delay was caused by Defendants' deliberate indifference. See Bell, 980 F. Supp. 2d at 562 ("[T]his case is similar to other cases where prisoners merely allege a delay in the provision of medication or treatment, but fail to allege that the delay was either intentional or reckless.") (collecting cases). Furthermore, "[a]lthough a lengthy, unjustifiable delay in providing necessary medical treatment might evidence deliberate indifference," Gomez, 649 F. App'x at 95, a three-month delay under the circumstances of this case does not amount to deliberate indifference.
Indeed, the grievances referenced in Plaintiff's Amended Complaint, and the responses thereto, indicate that the doctors and medical staff were monitoring Plaintiff's facial cyst and that he was timely referred to General Surgery. Although Plaintiff filed several grievances in April 2015, he did not mention the cyst until May 2015. (See Docket No. 44-5 at 5, 13). Plaintiff filed the first of two grievances regarding surgery for the cyst on May 19, 2015. (Docket No. 44-6 at 10). He complained that Dr. Ulloa was refusing to approve surgery for the "excruciating pain" near his right eye. (Id.). He indicated that he had been seen by a surgeon during the first week of May, approximately two weeks before he filed the grievance, and reported that the surgeon had told him that if the cyst was not removed it could lead to blindness or cancer.
This evidence fails to establish any intentional or reckless delay in medical treatment. Instead, it appears that Plaintiff's cyst was reasonably monitored and treated. See Stiehl, 2012 WL 2334626, at *6, 12 (finding that a "period of approximately seven months between Plaintiff's first complaint [of a cyst that allegedly was painful, caused blurry vision and was ultimately diagnosed as cancer], and Defendants' scheduling a biopsy or surgery" did not amount to deliberate indifference where "the reasons for those delays were reasonable and Plaintiff's mass was never ignored."); Gutierrez, 111 F.3d at 1373-74 (finding that plaintiff could not show deliberate indifference on a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), which is subject to the same standards as Rule 12(b)(6), despite a cyst with "a purulent draining infection accompanied by excruciating pain and, at times, fever in excess of 100 degrees," where plaintiff "repeatedly received treatment over [a] ten-month period and . . . at most he experienced an isolated occasion or two where he did not receive prompt treatment."); see also Arce v. Banks, 913 F.Supp. 307, 310 (S.D.N.Y. 1996) (dismissing claims under Rule 12(b)(6) where plaintiff refused to undergo surgery for cyst-removal in the manner prescribed by the surgeon and did not allege that he was unable to have the cyst removed); cf. Dotson, 613 F. App'x at (vacating dismissal and remanding to district court where plaintiff alleged that defendants ignored medical recommendation that plaintiff required urgent care and delayed surgery for removal of cyst by one year, which resulted in continued severe symptoms). Therefore, Plaintiff has failed to satisfy the subjective element of an Eighth Amendment claim, and his case must be dismissed.
Plaintiff lists the Westchester County Jail/Liason [sic] in the caption of his Amended Complaint, and puts both the Westchester County Jail and the Westchester County Jail Department of Correction in the body of his Amended Complaint. (Am. Compl. at 1-2, 4). Defendants maintain that neither the Westchester County Jail nor the Westchester County Jail Department of Correction are proper legal entities and, therefore, both should be dismissed. (Docket No. 45 at 5 n.1). While the Court agrees that neither entity is a proper party, reading Plaintiff's Amended Complaint liberally, the Court instead construes it as raising a claim against the municipality of Westchester County. See Warren v. Westchester Cty. Jail, 106 F.Supp.2d 559, 561 n.1 (S.D.N.Y. 2000) (finding that where pro se plaintiff sued the Westchester County Jail, "the correct governmental defendant [was] Westchester County," and Plaintiff was "therefore deemed to have sued the municipality of Westchester County rather than the jail."). Plaintiff also appears to assert claims against Defendant Dr. Ulloa in his official capacity, (Docket No. 9 at 3), which further suggests that Plaintiff intended to sue Westchester County. See Whittle, 2016 WL 7351895, at *6.
However, even construing Plaintiff's Amended Complaint as raising a claim against Westchester County, "[m]unicipal liability under Section 1983 cannot be based on a theory of respondeat superior." Warren, 106 F. Supp. 2d at 566; see also Kucharczyk v. Westchester Cty., 95 F.Supp.3d 529, 538-40 (S.D.N.Y. 2015) (explaining that pursuant to Monell v. Dep't of Social Srvs. of the City of N.Y., 436 U.S. 658, (1978), "Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort," and that "to survive a motion to dismiss, Plaintiffs cannot merely allege the existence of a municipal policy or custom, but must allege facts tending to support, at least circumstantially, an inference that such a municipal policy or custom exists.") (alteration in original) (citations and internal quotation marks omitted). Here, Plaintiff bases his claim against Westchester County on a theory of respondeat superior, (Docket No. 9 at 4), and has not alleged that any municipal policy or custom exists such that Westchester County may be held liable under Section 1983. Moreover, "[u]nless a plaintiff shows that he has been the victim of a federal law tort committed by persons for whose conduct the municipality can be responsible, there is no basis for holding the municipality liable [because] Monell does not create a stand-alone cause of action[.]" Askins v. Doe No. 1, 727 F.3d 248, 253 (2d Cir. 2013); see also Gomez, 649 F. App'x at 96 ("because [plaintiff] failed to plausibly allege an underlying constitutional violation, the district court properly dismissed his claims for municipal liability."). Here, Plaintiff's § 1983 claim against the individual Defendants is dismissed, and therefore there is no ground for holding Westchester County liable. Consequently, Plaintiff's claim against Westchester County is dismissed.
Finally, Plaintiff fails to allege that Defendant N.P. Kelly was personally involved in the medical treatment or delay in surgery on which Plaintiff's Eighth Amendment claim is founded. This provides an additional reason why Plaintiff's § 1983 claim against Defendant N.P. Kelly is dismissed. Bell, 980 F. Supp. 2d at 559 ("`[i]t is well settled that, in order to establish defendant's individual liability in a suit brought under § 1983, a plaintiff must show . . . the defendant's personal involvement in the alleged constitutional deprivation.'") (alterations in original) (quoting Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)). Turning to Plaintiff's claim that he was "racially profiled" by Defendant N.P. Kelly, Plaintiff has failed to allege any facts that would support a federal claim based on Plaintiff's race.
The Court interprets Plaintiff's claims for negligence, malpractice, negligent infliction of emotional distress and defamation — both slander and libel
For the foregoing reasons, Defendants' Motion to Dismiss is granted in its entirety and Plaintiff's Amended Complaint is dismissed. The Clerk is respectfully requested to terminate the pending motion (Docket No. 43) and close the case.
NELSON S. ROMÁN, District Judge.
For purposes of this motion, this Court accepts as true the facts as stated in Plaintiff's Second Amended Complaint. Defendant CCS administers medical services at WCJ. Def. CCS Mem. 2-3. Defendant Aramark is employed by Westchester County to provide food services at WCJ. Def. Aramark Mem. 3-4. Plaintiff alleges that on October 28, 2012 at approximately 5 a.m., while he was working in the kitchen at WCJ, an Aramark employee told him to move a cart containing several stainless steel pots of hot grits. Second Am. Compl. 3. While pushing the cart, a wheel of the cart became jammed because of a loose "diamond plated manmade saddle" in the floor and caused the container of hot grits to spill onto Plaintiff's body. Id. Some of the hot grits spilled onto Plaintiff's exposed left forearm, which caused Plaintiff's skin to burn. Id. Plaintiff alleges that after the grits spilled, his burn went untreated for 5 or 6 hours.
According to Plaintiff, he was not seen by medical personnel until 6 hours after the accident, and he was never taken to the hospital. Plaintiff received treatment for his burn at WCJ from CCS employees. Def. CCS Mem. 2. Plaintiff alleges that in the weeks that followed the accident, his bandages were not changed on 6 days: October 30 and 31, and November 1, 15, 16, and 17. He further claims that he was given inadequate medical attention, including being asked to wait while a nurse practitioner ate her lunch before seeing Plaintiff and that medical personnel failed to wear gloves when treating him.
Plaintiff filed a grievance against CCS with the jail on October 31, 2012 in which he claimed that 8 hours passed between his accident and the administration of treatment. CCS Mot. to Dismiss Ex. D. The grievance includes a written statement signed by Plaintiff at 8:25 a.m. on October 28, 2012 — less than 4 hours after the accident — in which he states that he had already seen a nurse who "didn't do anything" but told him to "put ice on [the burn]." Id at 9. The Grievance report provides that Plaintiff was taken to the nurse again at 8:15 a.m., where the nurse practitioner applied silvedene cream (an antimicrobial cream), dressed Plaintiff's wound, and ordered daily follow-up consultations until the burned healed. Also included in the grievance is an officer's report, which recounts Plaintiff as saying that the "injury occurred approx. 0500" and that Plaintiff was "advised to apply ice to affected area" after being escorted to the nurse by another officer.
On a motion to dismiss for "failure to state a claim upon which relief can be granted," Fed.R.Civ.P. 12(b) (6), dismissal is proper unless the complaint "contain[s] 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010). "Although for the purposes of a motion to dismiss [a court] must take all of the factual allegations in the complaint as true, [it is] `not bound to accept as true a legal conclusion couched as a factual allegation.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
When there are well-pleaded factual allegations in the complaint, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. A claim is facially plausible when the factual content pleaded allows a court "to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. Ultimately, determining whether a complaint states a facially plausible claim upon which relief may be granted must be "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
"Pro se complaints are held to less stringent standards than those drafted by lawyers, even following Twombly and Iqbal." Thomas v. Westchester, No. 12-CV-6718 (CS), 2013 WL 3357171 (S.D.N.Y. July 3, 2013). The court should read pro se complaints "`to raise the strongest arguments that they suggest,'" Kevilly v. New York, 410 F. App'x 371, 374 (2d Cir.2010) (summary order) (quoting Brownell v. Krom, 446 F.3d 305, 310 (2d Cir.2006)). See also Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) ("even after Twombly, though, we remain obligated to construe a pro se complaint liberally."). "However, even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level." Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y.2010) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). Dismissal is justified, therefore, where "the complaint lacks an allegation regarding an element necessary to obtain relief," and therefore, the "duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to rewrite it." Geldzahler v. New York Medical College, 663 F.Supp.2d 379, 387 (S.D.N.Y.2009) (internal citations and alterations omitted).
Here, Defendant CCS included Plaintiff's grievance report ("Grievance") as an exhibit to its motion to dismiss. The Grievance was submitted to the warden of the WCJ as part of internal complaint procedure as required under the Prison Litigation Reform Act ("PLRA") before a plaintiff may bring certain actions to court.
The Cruel and Unusual Punishments clause of the Eighth Amendment forms the basis of a convicted prisoner's claim that he or she is not being provided adequate medical care.
The first requirement for a showing of an Eighth Amendment violation is that there was a deprivation of care that was sufficiently serious, which is determined by an objective test with two prongs. The first prong is whether the prisoner was actually denied adequate medical care. Salahuddin, 467 F.3d at 279. "[T]he prison official's duty is only to provide reasonable care," id, and thus, "prison officials who act reasonably [when responding to an inmate] cannot be found liable under the Cruel and Unusual Punishments Clause," Farmer, 511 U.S. at 845. Conversely, liability may result where prison officials fail "to take reasonable measures" in response to a medical need. Id at 847.
Plaintiff alleges that he was denied treatment for five or six hours after the initial incident
Plaintiff claims that the prison officials were notified immediately after the accident of Plaintiff's injury, but did not adequately respond for several hours. However, by Plaintiff's own admission, he was seen by a nurse shortly after the accident and when it became clear a few hours later that the injury required further treatment, Plaintiff's burn was treated further. Even allowing for a few hours of lapse, "[c]ourts in this Circuit have repeatedly held that pain experienced for even longer than two to three hours does not rise to the level of an Eighth Amendment violation." Mitchell v. New York City Dept. of Corrections, No. 10 CV 0292(RJH), 2011 WL 503087, at *4 (S.D.N.Y. Feb.14, 2011) (listing cases where up to 8 to 9 hours of lapse between injury and treatment was not considered serious); Heredia v. Doe, 473 F.Supp.2d 462, 464 (S.D.N.Y.2007) (adopting recommendation to dismiss claim where jail staff did not send plaintiff to hospital after slipping and falling on his back until the day after the fall); Rodriguez v. Mercado, No. 00-CV-8588, 2002 WL 1997885, at *9 (S.D.N.Y. Aug.28, 2002) (dismissing claim where plaintiff was seen within eight or nine hours of the incident by a nurse who prescribed him Tylenol).
Further, "the failure to provide treatment for an otherwise insignificant wound may violate the Eighth Amendment if the wound develops signs of infection, creating a substantial risk of injury in the absence of appropriate medical treatment." Smith, 316 F.3d at 186; accord Odom v. Kerns, No. 99-CV-10668, 2008 WL 2463890, at *7 (S.D.N.Y. June 18, 2008) (cuts and open wounds that eventually became infected could be serious medical needs). If Plaintiff's bandages were not changed on six different occasions in the weeks following his burn as alleged, such failure might result in infection. In fact, in his Grievance, Plaintiff states that his burn was "infested with bacteria from puss discharge not being cleaned with disinfectans [sic] and wrapping has a foul odor." Grievance at 4. Therefore, reading the complaint in the light most favorable to the pro se Plaintiff, there is a plausible allegation of a serious injury in Plaintiff's Complaint.
The second requirement for an Eighth Amendment violation is a subjective test that asks whether the accused Eighth Amendment violator acted with a "sufficiently culpable state of mind." Salahuddin, 467 F.3d at 280. In Eighth Amendment prison-conditions cases, a sufficiently culpable state of mind is "deliberate indifference to inmate health or safety." Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (internal quotation marks and citation omitted). A prison official may only be found liable if "the official knows of and disregards an excessive risk to inmate health or safety." Id. at 837. "This `deliberate indifference' element is equivalent to the familiar standard of `recklessness' as used in criminal law." Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.2002) (quoting Farmer, 511 U.S. at 839-40). In order to meet this standard, the "charged official [must] act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Farmer, 511 U.S. at 836-37. Mere negligence on the part of a prison official is not sufficient to constitute deliberate indifference. Id. at 835-37.
Even if Plaintiff's burn is a serious medical condition, Plaintiff must also show that "defendants acted or failed to act while actually aware of a substantial risk that serious inmate harm would result." Farid v. Ellen, 593 F.3d 233, 248 (2d Cir.2010) (alterations and internal quotation marks omitted). In examining the facts, even in the light most favorable to the Plaintiff, there is no indication that defendant CCS acted with the requisite state of mind. None of CCS's activities could be deemed to reach the level of criminal recklessness. First, the Grievance makes clear that the Plaintiff saw a nurse soon after his accident, and subsequently followed up with a nurse a few hours later. "The bare fact of delay suggests at most negligence, and the Supreme Court in Estelle cautioned that mere negligence is insufficient to state a claim under § 1983." Linden v. Westchester County, No. 93 Civ. 8373(MBM), 1995 WL 686742, at *3 (S.D.N.Y.1995). Even if Plaintiff's wounds were not changed on six occasions over the course of three weeks as alleged, there is nothing more in Plaintiff's complaint that makes a plausible claim that defendants knew and consciously disregarded an excessive risk to Plaintiff's health and safety. His burn was bandaged within hours of the accident and treated thereafter.
Plaintiff also argues that he should have been taken to the hospital to determine the severity of his burns. Failure to seek outside medical advice alone is not sufficient to allege deliberate indifference because "mere disagreement over the proper treatment does not create a constitutional claim." Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998). "The prisoner's right is to medical carenot the type or scope of medical care which he personally desires." Gonzales v. Wright, 665 F.Supp.2d 334, 337 (S.D.N.Y.2009) (quoting U.S. ex rel. Hyde v. McGinnis, 429 F.2d 864, 867 (2d Cir.1970)). CCS employees did not believe that Plaintiff's injury warranted a hospital visit, and even if Plaintiff disagreed, such disaccord is not actionable. Thus, Plaintiff has not plausibly alleged that CCS had the requisite state of mind in order to state a claim for deliberate indifference.
For the reasons stated above, Defendant CCS's motion to dismiss is granted with respect to Plaintiff's Eighth Amendment deliberate indifference claim.
Plaintiff also brings this action against Aramark, a food service provider for the WCJ, under 42 U.S.C. § 1983 for "failure to train, no proper protective equipment, old, rundown and not maintained equipment." Second Am. Compl. 5. Plaintiff was working in the kitchen under the instruction of Aramark employees at the time the accident occurred. Plaintiff's claims are that Aramark, through its employees, did not fix a dangerous condition that caused an accident, and that Plaintiff was not properly trained to handle the cart he was asked to push. Reading the complaint liberally, as afforded a pro se plaintiff, it seems that Plaintiff's claim is that Aramark failed to protect Plaintiff from a risk of harm in violation of his Eighth Amendment right to be free from cruel and unusual punishment. With a failure to protect claim, plaintiff must show that he is "incarcerated under conditions posing a substantial risk of harm," Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), and that prison officials "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety." Id. at 837. "Whether . . . prison official[s] had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a fact finder may conclude that . . . prison official[s] knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842. Plaintiff alleges that Aramark, though its employees, was aware of the loose diamond plate in the floor that caused the accident in which he was injured and that Aramark did nothing to remedy the situation. However, the court need not reach the issue of whether Plaintiff properly alleges notice and failure to protect because Aramark is not subject to liability under 42 U.S.C. § 1983 due to the fact that it is not a state actor.
42 U.S.C. § 1983. A private defendant may be considered a state actor through the application of one of three tests: the close nexus test, the state compulsion test, and the public function test.
To find state action under the close nexus test, "there [must be] a sufficiently close nexus between the State and the challenged action of the [] entity so that the action of the latter may be fairly treated as that of the State itself." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (internal citation omitted). Being regulated by the state alone does not elevate the status of a non-state actor to that of a state actor. Id. This test ensures that constitutional standards apply only to action for which the state is "responsible," so that the entity may fairly be treated as the state. Id.
The state compulsion test requires a showing that the state actor has "exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982).
To show state action under the public function test, the action must be "so clearly governmental in nature as to amount to a public function." Jordan v. Federal Bureau of Prisons, No. 09 Civ. 8561(ALC), 2013 WL 1143617, at *12 (S.D.N.Y. Mar.19, 2013). "The public function test as applied is quite stringent and under the doctrine an extraordinarily low number of functions have been held to be public." Doe v. Harrison, 254 F.Supp.2d 338, 343 (S.D.N.Y.2003) (quoting Ruhlmann v. Ulster County Dept. of Social Services, 234 F.Supp.2d 140, 166 (N.D.N.Y.2002)) (internal quotation marks omitted). "Acts of prison employees will [] almost certainly be considered acts of the State whatever the terms of their employment." Horvath v. Westport Library Ass'n, 362 F.3d 147, 151 (2d Cir.2004). However, the Supreme Court held that the negligent acts of a private physician working under contract to provide medical services to prison inmates was considered state action. West v. Atkins, 487 U.S. 42, 54-57, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Further, "[t]he mere fact that a private actor is paid by state funds, or is hired by a state actor, is insufficient to establish state action." Emanuel v. Griffin, No. 13 Civ. 1806(JMF), 2013 WL 5477505, at *5 (S.D.N.Y. Oct.2, 2013).
There is nothing in the complaint that suggests that Aramark should be treated as a state actor. Further, other than conclusory statements that Aramark was apprised of the condition of the floor, Plaintiff makes no allegations that there was systematic failure on Aramark's part to fix potential hazards in the kitchen area that could harm prisoners in violation of the Eighth Amendment. There are no facts to make a plausible claim that Aramark's failure to prevent this accident was due, even in part, to the furtherance of a policy or custom.
In construing the complaint liberally, Plaintiff's complaint could be read as asserting claims under state law for negligence and/or medical malpractice. Pursuant to 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state law claims where it has dismissed all federal claims over which it had original jurisdiction. Having dismissed all of Plaintiff's federal claims under Rule 12(b)(6), it would be inappropriate to adjudicate his state law claims, and thus the Court declines to exercise supplemental jurisdiction over any purported state law claims.
For the foregoing reasons, Defendant Aramark's Motion to Dismiss and Defendants CCS's Motions to Dismiss are GRANTED. The Clerk is respectfully directed to terminate the pending Motions, (Doc. 50 & Doc. 44), and terminate CCS and Aramark from the case.
SO ORDERED:
Not Reported in F.Supp.2d, 2013 WL 5730176
Avery Whittle, Collins, NY, pro se.
James Christopher Freeman, Kent Hazzard, LLP, Syma B. Funt, White Plains, NY, for Defendants.
Briccetti, United States District Judge
Now pending are defendants' motions to dismiss the amended complaint. (Docs. ##27, 43). For the following reasons, the County defendants' motion and Dr. Ulloa's motion are GRANTED in their entireties. N.P. Uszynski's motion is GRANTED in part and DENIED in part.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
In deciding the pending motions, the Court accepts as true all well-pleaded allegations in the amended complaint and draws all reasonable inferences in plaintiff's favor. The following facts are taken from the amended complaint and the document attached thereto,
Upon returning to WCJ, N.P. Uszynski, a nurse at WCJ, read Dr. Roth's instructions and removed plaintiff's bandages. However, N.P. Uszynski allegedly failed to replace plaintiff's bandages, leaving plaintiff's stapled incision exposed to open air. Plaintiff alleges that from December 14, 2014, through January 6, 2015, he was seen only twice by WCJ medical staff, and that his bandages were not changed during this period because the medical department claimed to be short-staffed due to the holidays. Plaintiff alleges the failure to properly treat his incision caused it to become infected and severely swollen, resulting in severe pain.
On January 3, 2015, plaintiff filed an administrative grievance alleging the medical department did not provide him with proper treatment or create an adequate post-surgery treatment plan. In response to this grievance, plaintiff states he was seen by Dr. Ulloa, the medical director of WCJ, who ordered that plaintiff's dressing be changed and plaintiff be given more effective medication. Plaintiff further alleges that Capt. Smiley, the grievance coordinator, denied plaintiff's grievance, and Warden Volmer, the warden of WCJ, denied plaintiff's appeal of Capt. Smiley's denial.
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the "two-pronged approach" articulated by the Supreme Court in
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of "plausibility."
The Court must liberally construe submissions of
The objective component has two subparts. "The first inquiry is whether the prisoner was actually deprived of adequate medical care," keeping in mind that only "reasonable care" is required.
Regarding the first subpart, plaintiff has sufficiently alleged he was "actually deprived of adequate medical care." Of course, medical care is not inadequate simply because a plaintiff disagrees with the treating official's medical judgment.
Regarding the second subpart, "[t]he failure to provide treatment for an otherwise insignificant wound may violate the Eighth Amendment if the wound develops signs of infection, creating a substantial risk of injury in the absence of appropriate medical treatment."
Accordingly, plaintiff has satisfied both subparts of the objective prong.
"[A] deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner's treating physicians."
Plaintiff has sufficiently alleged N.P. Uszynski was deliberately indifferent to his medical needs. Plaintiff alleges N.P. Uszynski disregarded Dr. Roth's instructions to change his bandages, and plaintiff's amended complaint indicates no medical justification for doing so. Moreover, although defendants argue N.P. Uszynski disregarded Dr. Roth's instructions based on her medical judgment, this argument is contrary to plaintiff's allegation that, after plaintiff complained about his deficient treatment, plaintiff was told that he could not receive the ordered treatment because "it was the holidays and there was only a skeleton crew on, also that the doctor was not [at the jail]." (Am. Compl. at 9). Thus, according to the amended complaint, N.P. Uszynski diverged from Dr. Roth's instructions because doing so was easier than implementing the instructions as written. Liberally construed, plaintiff has alleged N.P. Uszynski was deliberately indifferent by choosing an "easier and less efficacious treatment plan."
Accordingly, plaintiff has sufficiently pleaded facts that, if proven true, could satisfy both prongs of the deliberate indifference to medical needs standard.
To state a claim under Section 1983, plaintiff "must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."
Prior to
Nevertheless, even assuming the validity of all five
Plaintiff alleges that, as "head medical Doctor at Valhalla Dept. of Corrections," Dr. Ulloa "had an obligation to accommodate the plaintiff with proper medical attention post-surgery or delegate one of his subordinate[s] to do so." (Am. Compl. at 9). Plaintiff appears to seek the imposition of supervisory liability based on "[t]he bare fact that [Dr. Ulloa] occupies a high position" at WCJ, which is insufficient to plead Dr. Ulloa's personal involvement.
Moreover, plaintiff asserts Dr. Ulloa "intentionally delayed access to medical care by deliberately delaying treatment that was prescribed by Dr. Roth." (Am. Compl. at 9). However, plaintiff does not describe any specific actions or statements to support this allegation. Accordingly, this conclusory assertion is not entitled to the presumption of truth afforded well-pleaded allegations,
In his opposition to defendants' motions to dismiss, plaintiff also alleges Dr. Ulloa personally treated him on January 3, 2015. However, plaintiff acknowledges that Dr. Ulloa ordered plaintiff's dressing to be changed and provided him more effective pain medication after treating him. Plaintiff does not claim this treatment was inadequate. Plaintiff has therefore failed to allege that these actions deprived him of a constitutional right.
Accordingly, plaintiff has failed to allege Dr. Ulloa's personal involvement in any inadequate medical care under any of the
Liberally construed, plaintiff alleges Capt. Smiley and Warden Volmer personally deprived plaintiff of his constitutional rights by denying plaintiff's administrative grievance, which "informed [them] of the violation through a report or appeal, [but] failed to remedy the wrong."
Courts in this circuit disagree over whether an allegation that a prison official received and denied an inmate's administrative grievance, without more, is sufficient to establish personal involvement.
Accordingly, plaintiff has failed to allege the County defendants' personal involvement.
Plaintiff asserts that he wishes to sue each defendant "in his or her official capacity." (Am. Compl. at 8). In
Nevertheless, plaintiff has not named Westchester County as a defendant. Moreover, a municipality such as the County may be held liable under Section 1983 only "when execution of [its] policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury."
Liberally construed, plaintiff's amended complaint contains state law tort claims for negligence and medical malpractice. However, this Court does not have subject matter jurisdiction over these claims because plaintiff has failed to allege he served a notice of claim in compliance with N.Y. Gen. Mun. Law § 50-e(1), as required by
The Court should freely grant leave to amend a complaint "when justice so requires." Fed. R. Civ. P. 15(a). Moreover, when a
However, even upon a liberal reading of the amended complaint, this Court finds no indication that a valid claim might be stated against Capt. Smiley, Warden Volmer, or Dr. Ulloa. Accordingly, plaintiff is not granted leave to amend his claims against these defendants.
The motion of defendant N.P. Usznyski to dismiss is GRANTED as to the state law claims, and DENIED as to the Section 1983 claim.
The Clerk is instructed to terminate the motions (Docs. ##27, 43) and to terminate defendants Ulloa, Smiley, and Volmer.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore
SO ORDERED.
Slip Copy, 2016 WL 7351895
KATHERINE B. FORREST, District Judge.
On March 28, 2013, plaintiffs filed a motion for a preliminary injunction pursuant to Federal Rule of Civil Procedure 65(a) seeking, in substance, much of the same injunctive relief they seek in the complaint related to the parole release consideration process. (ECF Nos. 29-30.) Defendants opposed the motion and cross-moved to dismiss the complaint, on May 13, 2013, for lack of subject matter jurisdiction under Rule 12(b)(1) and for failure to state a claim on which relief can be granted under Rule 12(b)(6). (ECF Nos. 39-41.) Plaintiffs filed their combined reply in support of their motion for a preliminary injunction and opposition to defendants' motion to dismiss on August 14, 2013.
Because plaintiffs' preliminary injunction motion requires that they demonstrate "either . . . a likelihood of success on the merits or . . . sufficiently serious questions going to the merits to make them a fair ground for litigation," Salinger v. Colting, 607 F.3d 68, 79 (2d Cir.2010) (quotations and citations omitted), the Court first considers defendants' motion to dismiss under Rule 12.
For the reasons set forth below, defendants' motion to dismiss is GRANTED. Plaintiffs' preliminary injunction motion is thus DENIED and this action is dismissed.
Defendants move to dismiss the complaint under Rules 12(b)(1) and 12(b)(6).
In reviewing a motion to dismiss under either Rules 12(b)(1) or 12(b)(6), the Court "must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir.1997). Moreover, "[i]t is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest." Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006) (citations and internal quotation marks omitted). At the same time, the court must "limit itself to a consideration of the facts that appear on the face of the complaint." Vollinger v. Merrill Lynch & Co., Inc., 198 F.Supp.2d 433, 437 (S.D.N.Y.2002) (citations and internal quotation marks omitted) (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir.1984)).
Plaintiffs state that their complaint "presents over 66 causes of action . . . and require at least 60 different permanent and preliminary injunctions." (ECF No. 46.) The vast majority of these claims concern the processes of parole board hearings regulated by New York Executive Law § 259-i(2) — the New York state parole statute. (See, e.g., Compl. ¶¶ 42-45, 58-70, 578-580, 583.) Plaintiffs allege they were all considered for and denied parole release (id. ¶ 70) but also concede that they are not challenging these past denials (id. ¶¶ 42, 50). In sum, plaintiffs allege that the various ways in which the New York state parole system is set up and administered violate 42 U.S.C. §§ 1983, 1985, and 1986, and the Due Process
The Court first analyzes plaintiffs' federal constitutional claims, and then turns to their related federal statutory claims-because both sets of claims fail as a matter of law, the Court grants defendants' motion to dismiss the complaint.
Plaintiffs argue that the New York parole scheme is deliberately misapplied and misconstrued by the individuals who administer it, and also that the governing statutes and regulations are unconstitutionally vague, in violation of their rights under the Due Process Clause. (See, e.g., Compl. ¶¶ 52, 66, 578-80, 582-84.)
Contrary to plaintiffs' argument (see Pl.'s Sur-Reply at 6, ECF No. 60), the Second Circuit's decision in Barna is not "outdated" in light of subsequent amendments to the New York parole statute, it (along with cases like Graziano that post-date these changes) is binding precedent on this Court. Accordingly, plaintiffs' claims which assert violations of the Due Process Clause in connection with the administration of the New York parole system must fail.
The complaint, liberally construed, alleges that plaintiffs are first-time violent offenders who were impermissibly treated differently under the New York parole scheme than other offenders.
The Equal Protection Clause provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause directs that "all persons similarly situated should be treated alike." City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). Courts "uphold forms of state action under the Equal Protection Clause so long as the classification at issue bears some rational relationship to a legitimate state interest. On the other hand, where a suspect class or a fundamental right is at issue in the classification, [courts] apply a more searching form of scrutiny." Haydon v. Paterson, 594 F.3d 150, 169 (2d Cir.2010).
Prisoners, "either in the aggregate or specified by offense," are not a suspect class whose disparate treatment is subject to strict scrutiny by the courts. See Lee v. Governor of the State of N.Y., 87 F.3d 55, 60 (2d Cir.1996). To that end, courts have consistently held that the different eligibility requirements for parole for different types of offenders in the New York parole system bear a rational relationship to the legitimate state interest in public safety. See Mathie v. Dennison, No. 06 Civ. 3184(GEL), 2007 WL 2351072, at *8 (S.D.N.Y. Aug.16, 2007) ("A history of violent crime is the very opposite of a morally irrelevant, immutable trait: it reflects a voluntary choice by the offender to commit a dangerous and harmful criminal act when he could have complied with the law. Thus, disparate treatment by the state in granting parole to violent and nonviolent prisoners is presumed constitutional and need only be rationally related to a legitimate state interest.") (internal quotation marks omitted); see also Whaley v. Lopez, 2012 WL 3137900, at *10 (E.D.N.Y. July 30, 2012); Kasiem v. Paterson, No. 10 Civ. 2627(WHP), 2011 WL 723G12, at *2 (S.D.N.Y. Feb. 18, 2011).
Because plaintiffs have failed to properly allege federal constitutional violations,
"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." Feingold v. New York, 366 F.3d 138, 159 (2d Cir.2004) (citations and internal quotation marks omitted); see 42 U.S.C. § 1983. As set forth above, plaintiffs have failed to allege any such right. For the same reasons, plaintiff's conspiracy claim under 42 U.S.C. § 1985(3) also fails absent an underlying federal constitutional violation, see, e.g., Beckles v. City of N.Y., No. 08 Civ. 3687(RJH), 2011 WL 722770, at *6 (Feb. 25, 2011), and plaintiff's claim under 42 U.S.C. § 1986
To the extent plaintiff Ellison brings claims against defendant Johnson in her official capacity separate from the other claims described above (see Compl. ¶¶ 168, 308-313, 571, 584), these claims are dismissed on the grounds of Eleventh Amendment sovereign immunity.
"The Eleventh Amendment prohibits suits against a state or one of its agencies in federal court absent the state's consent or a valid abrogation of its sovereign immunity by an act of Congress." Rothenberg v. Stone, 234 F.Supp.2d 217, 221 (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100-01, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ("The Eleventh Amendment bars a suit against state officials when the state is the real, substantial party in interest.") (citations and internal quotation marks omitted)). Section 1983 does not constitute such an abrogation. See Quern v. Jordan, 440 U.S. 332, 343, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). The Ex Parte Young doctrine permits a plaintiff to sue a state official in his or her official capacity, notwithstanding the Eleventh Amendment, if the plaintiff "(a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective." In re Deposit Ins. Agency, 482 F.3d 612, 618 (2d Cir.2007).
Ellison fails to meet either prong of the Ex Parte Young exception to Eleventh Amendment sovereign immunity. For the reasons set forth above, plaintiffs have failed to allege any ongoing violations of federal law. Additionally, plaintiffs concede in their opposition papers that, because Johnson no longer works at Woodbourne, any prospective relief they seek against Johnson is now moot, though they claim she should still be held accountable for past violations of the law. (See Reply/Opp. at 36-37.) Such retrospective relief, however, is not available under the Ex Parte Young doctrine in this suit brought against Johnson in her official capacity. See Ward v. Thomas, 207 F.3d 114, 119 (2d Cir.2000). Ellison's claims against Johnson are thus dismissed on Eleventh Amendment grounds.
For the reasons set forth above, defendants' motion to dismiss is GRANTED and plaintiffs' preliminary injunction motion is DENIED. The Clerk of Court is directed to close the motions at ECF Nos. 29 and 39, and to terminate this action.
SO ORDERED.
Not Reported in F.Supp.2d, 2013 WL 5863545
KEVIN NATHANIEL FOX, United States Magistrate Judge.
According to Idowu, on September 21, 2011, he was "admitted to the medical unit at Fishkill Correctional Facility because [he] passed out in [his] cell and bumped [his] head." Idowu avers that he was examined by Dr. John Supple ("Dr.Supple"), who indicated that Idowu might have suffered a seizure. Idowu maintains that, on September 22, 2011, he was seen by Dr. Gary Middleton ("Dr.Middleton") who, after what Idowu describes as a "brief inspection," opined that Idowu had experienced a seizure. Idowu asserts that he informed Dr. Middleton that he did not have a history of seizures. Notwithstanding that assertion, Idowu avers that Dr. Middleton prescribed him 500 mg of "Divalproex (Depakote)," to be taken twice, daily. Idowu contends that Nurse Charlotte Peterson ("Nurse Peterson"), began administering Divalproex to him on the same day. Idowu maintains that, on September 25, 2011, he "started complaining to Nurse Peterson and other Nurses about feeling ill." Specifically, Idowu recalls that he complained about "suffering stomach pains, vomiting, dizziness, insomnia, loss of co-ordination [sic], memory loss and difficulty speaking (stammering)." According to Idowu, in response to his complaints, Nurse Peterson told him, on several occasions, that the symptoms he was experiencing were side effects of taking Divalproex, and that the side effects "would fade gradually."
Idowu contends that, at some point between September 22 and 26, 2011, a referral was submitted by Dr. Middleton to Dr. Joseph Avanzato ("Dr. Avanzato"), requesting that an electroencephalograph ("EEG") test be performed on him. Idowu maintains that it is "standard procedure to refer all [patients with] chronic care protocols i.e. diabetes, convulsive disorders [and] cardiac [sic]," for an EEG test. According to Idowu, the EEG test was scheduled for October 5, 2011, and was complete on December 7, 2011. Idowu alleges that the EEG revealed that he did not "suffer from any type of convulsive disorder."
Idowu maintains that in his capacity as the "Facility Health Care Director," Dr. Avanzato "is responsible for reviewing all referrals and evaluating the urgency of the treatment required." Idowu alleges that Dr. Avanzato acted with deliberate indifference to his serious medical needs by failing to "correctly apply the urgency needed for my treatment," because the EEG test was not "performed in a timely manner" and, as a consequence, according to Idowu, this caused him to suffer the side effects occasioned by Divalproex.
Civil litigants have no constitutional right to counsel. See United States v. Coven, 662 F.2d 162, 176 (2d Cir.1981). However, 28 U.S.C. § 1915(e)(1) authorizes a district court to "request an attorney to represent any person unable to afford counsel." "In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986). An indigent's claim is likely to be of substance if it has merit and "appears to have some chance of success[.]" Id., 802 F.2d at 60-61.
Where the claim satisfies the threshold "test of likely merit," a court should then proceed to consider "secondary criteria." Cooper v. A. Sargenti, Co., Inc., 877 F.2d 170, 172-73 (2d Cir.1989). These criteria include: (1) the plaintiff's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact-finder; (3) the plaintiff's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason in that case why appointment of counsel would be more likely to lead to a just determination. See Hodge, 802 F.2d at 61-62.
Pleadings drafted by a pro se litigant, such as Idowu, are to be construed liberally and interpreted to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994). In reviewing Idowu's amended complaint, the Court has applied this standard. Idowu does not make citation to any specific federal law or constitutional provision in his complaint. However, he recites the phrase "deliberate indifference to [his] medical needs," repeatedly, which suggests to the Court that his claims are premised on the Eighth Amendment's proscription against cruel and unusual punishment, as "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 (1976) (internal quotation marks and citation omitted).
"In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to [his] serious medical needs." Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir.2003) (internal quotation marks omitted and citations omitted). This standard has objective and subjective elements. See id. "The objective `medical need' element measures the severity of the alleged deprivation, while the subjective `deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Id. at 183-84. (internal citations omitted). "Deliberate indifference describes a mental state more blameworthy than negligence; but a plaintiff is not required to show that the defendant acted for the very purpose of causing harm or with knowledge that harm will result." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (internal quotation marks and citations omitted). A plaintiff may establish a prison medical official's deliberate indifference to the plaintiff's serious medical needs by demonstrating that the prison medical official was "totally unconcerned with his welfare." Hathaway v. Coughlin, 37 F.3d 63, 69 (2d Cir.1994) (internal citations and quotation marks omitted). However, "[a]bsent a showing of the unnecessary and wanton infliction of pain, the proper forum for a prisoner's medical grievance is a state court action for medical malpractice." Id. (citations omitted).
Inasmuch as "the Eighth amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation." Smith, 316 F.3d at 184. Accordingly, negligence "in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth amendment[,] and medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106, 97 S.Ct. at 292. "Moreover, a prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim. Nor does an allegation of misdiagnosis or faulty judgment state [an Eighth Amendment] claim. Troy v. Kuhlmann, No. 96 Civ. 7190, 1999 WL 825622, at *6 (S.D.N.Y. Oct. 15, 1999) (internal quotation marks and citations omitted).
Idowu maintains that Dr. Avanzato exhibited deliberate indifference to his serious medical needs because the EEG test was not completed in a timely manner. Accordingly to Idowu, Dr Avanzato ordered the EEG test on October 5, 2011 — in response to a referral request Dr. Middleton submitted to him sometime between September 22 and 26, 2011 — and the test was completed on December 7, 2011. Idowu does not allege that Dr. Avanzato performed the test himself and did so in a leisurely manner, or that he controlled the speed at which the test was performed. Rather, Idowu contends that Dr. Avanzato, as "Facility Health Care Director," was responsible "for reviewing all referrals, and evaluating the urgency of the treatment required." The factual allegations in the complaint do not demonstrate that Dr. Avanzato was "totally unconcerned with [Idowu's] welfare," and, thus, was deliberately indifferent to Idowu's serious medical needs. Hathaway, 37 F.3d at 69. Instead, the factual allegations in the complaint show that, shortly after Dr. Middleton submitted a referral to Dr. Avanzato in late September 2011, requesting an EEG test for Idowu, Dr. Avanzato showed his concern for Idowu's welfare by approving the referral and scheduling the test for October 5, 2011. Nothing about Dr. Avanzato's response to Dr. Middleton's referral request, as described by Idowu in his complaint, appears to have violated Idowu's Eighth Amendment Rights.
Idowu contends that Nurse Peterson was deliberately indifferent to his serious medical needs because, after he reported to her that he was experiencing stomach pains, vomiting, dizziness, insomnia and other conditions that Nurse Peterson told him were temporary side effects of the medication he was prescribed, she failed to refer him to a physician. Whether Nurse Peterson's alleged negligence in failing to refer Idowu to a physician — as he believes she should have — nor any alleged exercise of poor judgment on her part in failing to make such a referral gives rise to an Eighth Amendment violation. See Troy, 1999 WL 825622, at *6. As Idowu's Eighth Amendment claims do not appear likely to have merit, he has failed to satisfy the threshold requirements set forth in Hodge; consequently, the Court finds that granting his request for appointed counsel is not warranted.
SO ORDERED.
Not Reported in F.Supp.2d, 2012 WL 6040742
Jonathan Lovett, Law Office of Jonathan Lovett, Hawthorne, NY, for Plaintiff.
Irma W. Cosgriff, Westchester County Attorney's Office, White Plains, NY, for Defendants.
SEIBEL, District Judge.
All facts are undisputed unless otherwise noted.
Plaintiff was incarcerated at the Westchester County Department of Corrections ("WCDOC") from September 2007 through September 5, 2008. (Ds' 56.1 ¶ 3.)
WCDOC inmates are able to access routine and urgent medical attention at the facility by completing "sick call request" forms, which are collected each day by WCDOC staff members. (Ds' 56.119; see Cosgriff Decl. Ex. M, at 7-8; Cosgriff Decl. Ex. N, at 118-20.) The sick call requests are then triaged by a mid-level medical service provider who determines whether inmates should be seen on an immediate or a routine basis. (Ds' 56.1 ¶ 10.) During his incarceration at WCDOC, Plaintiff filed myriad sick call requests, and medical care providers evaluated him for various conditions, including for his eyesight, an injured foot, a "neck boil," insomnia, a sinus infection, pain in his waist, and a growth on his face. (See Ds' 56.1 ¶¶ 11-17; see generally Cosgriff Decl. Ex, C.)
On or about January 8, 2008, Plaintiff submitted a sick call request regarding a sinus infection, and Nurse Practitioner Matthew Cichon treated Plaintiff on or about January 9, 2008 for the condition. (P's 56.1 ¶ 48;
Nearly two months later, on or about March 25, 2008, Plaintiff submitted another sick call request regarding a "Movable cyst right side of nose. Getting Big," and James evaluated Plaintiff the next day. (Ds' 56.1 ¶ 19; Cosgriff Decl. Ex. C, at 000068.) After the consultation, James noted on Plaintiff's sick call request form, "1 ½ cm mobile, non-tender, soft cyst between right side of nose and cheeck [sic]. Above cyst was only 1 cm in 2/08. [Increas]ing in size," and that Plaintiff should be referred for a "surgical consult." (Ds' 56.1 ¶ 19; Cosgriff Decl. Ex. C, at 000068.) Bailey, whose job it was to look at consultation notes and to determine and/or approve next steps, decided that the surgical consult should be deferred. (Ds' 56.1 ¶ 20; Bailey Dep. 30.) Although Bailey does not remember James's specific referral for a surgical consult relating to Plaintiff's growth, her "routine is that if someone puts in a consult and the information on the consult is not enough, then [Bailey] will call the practitioner to get some clarification." (Bailey Dep. 29.) Bailey believes that she discussed this referral with James and "[c]hances are whatever [Bailey] was told was not sufficient to warrant the referral" at that time. (Bailey Dep. 30; see Cosgriff Decl. Ex. C, at 000094 (Bailey's notes stating, "Lesion not cystic. No need for surgical referral."); P's 56.1 ¶ 59 (same).)
On or about April 7, 2008, Plaintiff submitted another sick call request claiming, "I've got a growth on the side of my nose that bothers my being. I've made numerous request [sic] to no help. Lawyer time," and was seen the next day by Nurse Practitioner Jean Kadel. (Ds' 56.1 ¶ 21; Cosgriff Decl. Ex. C, at 000069.) Plaintiff told Kadel that he wanted the cyst removed, but Kadel advised Plaintiff that the previous surgical consult had been denied and to return to the clinic if the cyst changed or enlarged. (Ds' 56.1 ¶ 21; Cosgriff Decl. Ex. C, at 000069.) Plaintiff claims that during this consultation, Kadel told him that removing the mass "would cost $150,000 to fix and it wasn't worth it." (P's 56.1 ¶ 69; Lovett Aff. Ex. 15, at 12.) Kadel denied making such a representation to Plaintiff, stating that she did not even know how much the surgery would have cost. (Kadel Dep. 10.)
Plaintiff submitted his next sick call request on May 15, 2008, this time stating that the mass was starting to hurt his right eye. (Ds' 56.1 ¶ 23; Cosgriff Decl. Ex. C, at 000073.) Nordstrom examined Plaintiff and subsequently, as documented in her notes, recommended to Bailey that Bailey set up a surgery consult for further evaluation of Plaintiffs mass. (Ds' 56.1 ¶ 23; Cosgriff Decl. Ex. C, at 000073.)
On or about May 28, 2008, Plaintiff submitted a sick call request stating, "I want this growth on my nose Biopsyed [sic] ultrasound anything. I've been denied treatment." (Ds' 56.1 ¶ 24; Cosgriff Decl. Ex. C, at 000075.) Although it is unclear from the notes whether Nordstrom examined Plaintiff again, her notes state that she saw Plaintiff in the hallway and told him that the medical staff had set up a surgery consult and an ultrasound for him on June 12, 2008. (Ds' 56.1 ¶ 24; Cosgriff Decl. Ex. C, at 000075; see id. at 0000006.)
Yozzo, who was employed as a "medical contract monitor" at WCDOC,
On or about June 12, 2008, Baccay completed a surgical consult on Plaintiff. (Ds' 56.1 ¶ 26; see Cosgriff Decl. Ex. C, at 000078, 000098.) Plaintiff claims that Baccay told him during this consult that the mass "looks like cancer in your face, and by the way, it is near your brain, so the likelihood is that it will spread to your brain and you will end up dying," (P's 56.1 ¶ 57; P's March 2 Dep, 72.) Baccay denies that he ever made those statements. (Baccay Aff. ¶ 7.)
On or about June 14, 2008, Plaintiff submitted an urgent sick call request. (Ds' 56.1 ¶ 27; Cosgriff Decl. Ex. C, at 000079.) According to the sick call notes, after the clinician determined that there had been no significant change to the mass and that there was no discharge from it, Plaintiff was sent back to the jail to await notice from Oncology or Plastic Surgery ("Plastics"). (Ds' 56.1 ¶ 27; Cosgriff Decl. Ex. C, at 000079.)
On or about June 16, 2008, Bailey signed off for Plaintiff to see a specialist for further evaluation. (See Bailey Dep. 56-57; Cosgriff Decl. Ex. C, at 000098.) Lisa Zacchio, Quality Care Coordinator at Westchester Medical Center, called Dr. Ahmed of Oncology to arrange an appointment for Plaintiff, but Ahmed advised Zacchio that Plaintiff should be seen by an ENT before seeing a doctor in Oncology. (Ds' 56.1 ¶ 28; Cosgriff Decl. Ex. C, at 000079.) According to the notes, Zacchio spoke with Hemmerdinger's office that same day and obtained an appointment with Hemmerdinger, an ENT, on June 24, 2008. (Ds' 56.1 ¶ 28; Cosgriff Decl. Ex. C, at 000079; see id. at 000005.)
On or about June 24, 2008, in preparation for Plaintiff's ENT appointment, Kadel administered various blood tests on Plaintiff, which tests appeared within normal limits, thereby enabling Plaintiff to be scheduled for a CT Scan with IV contrast. (Ds' 56.1 ¶ 29; Cosgriff Decl. Ex. C, at 000081.) On that same day, Hemmerdinger examined Plaintiff and found a "2 cm mass . . . mobile nontender," evaluated Plaintiff's complaint that he had difficulty breathing, and ordered a CT scan with IV contrast for July 3, 2008 to determine the type of growth that was on Plaintiff's face. (Ds' 56.1130; P's 56.1 ¶ 58; Cosgriff Decl. Ex. C, at 000083, 000101, 000105; Kadel Dep. 14; see also Hemmerdinger Dep. 24
Kadel saw Plaintiff on or about July 7, 2008 regarding the "probable sebaceous gland cyst" and requested in her notes to Bailey, "Please do an Aspiration Biopsy if possible," to determine whether there were malignant cells in the cyst. (Cosgriff Decl. Ex. C, at 000106; Kadel Dep. 19.) On July 15, 2008, Bailey apparently denied Kadel's request; according to Yozzo, Bailey told her on that date that there was "[n]othing to be done," (P's 56.1 ¶ 66; Yozzo Dep. 61), but Bailey did not recall having a conversation with Yozzo about this request, (Bailey Dep. 107-08). Sometime shortly after July 15, 2008, Yozzo followed up with Commissioner Pozzi, who, along with the Board of Legislators, had been inquiring about the medical attention that WCDOC practitioners had been giving to Plaintiff's growth. (Yozzo Dep. 61-62.) Yozzo explained to Jeannie Cloidt, Commissioner Pozzi's secretary, that per Bailey's recommendation, nothing was going to be done at that time. (Id. at 62.)
On or about July 20, 2008, Plaintiff submitted another sick call request, which stated, "I'm in need of medical attention, [t]his groth [sic] is Bothrring [sic] my right eye." (Ds' 56.1 ¶ 34; Cosgriff Decl. Ex. C, at 000087.) The next day Kadel ran into Plaintiff, who inquired about whether he was going to have a biopsy, and Kadel advised him that a surgical consult was "in the works." (Ds' 56.1134; Cosgriff Decl. Ex. C, at 000087.)
Even though Bailey seemingly had denied Kadel's biopsy request on July 15, 2008, she nonetheless scheduled an appointment with Baccay, who examined Plaintiff again on or about July 30, 2008. (Ds' 56.1 ¶ 35; Yozzo Aff. ¶ 10 n.3.
On or about August 7, 2008, Plaintiff submitted another sick call request, which said, "I have chronic headaches. This growth on my nose is getting bigger, I would appreciate some treatment." (Ds' 56.1 ¶ 38; Cosgriff Decl. Ex. C, at 000091.) Cichon saw Plaintiff on August 11, 2008, measured the mass as "1.5 cm × 1.5 cm," noted that Plaintiff denied that he had blurred or double vision, and prescribed Motrin for Plaintiff's headaches. (Ds' 56.1 ¶ 38; Cosgriff Decl. Ex. C, at 000091.)
On or about September 2, 2008, Dr. Randy Goldberg received a packet of information by fax concerning the need for medical clearance for Plaintiff's surgery scheduled with Hemmerdinger on September 15, 2008, (see Cosgriff Decl. Ex. C, at 000164-75), and Yozzo advised Plaintiff that that surgery had been scheduled, (P's March 2 Dep. 81), but Plaintiff was not apprised of the exact date, (see Yozzo Aff. ¶ 12 n.4 ("For security reasons, inmates are not informed in advance of any off site visits")). On September 5, 2008, prior to the surgery, Plaintiff was released from WCDOC. (Ds' 56.1 ¶ 39.) The record contains no indication that Plaintiff's doctors were aware that he would be discharged prior to his September 15, 2008 surgery date. (See Hemmerdinger Aff. ¶ 10 ("Stiehl was scheduled for an excisional biopsy and I intended to request a frozen section on September 15, 2008. I was never advised that [Plaintiff] was soon to be released or actually released from custody on or about September 5, 2008."); Yozzo Dep. 20-21 (Yozzo was not aware of Plaintiff's release date but understood that Plaintiff had been scheduled for a biopsy that did not occur because he was released prior to the scheduled date).)
Approximately two weeks after his release from WCDOC, Plaintiff went to a private physician, Dr. Mermelstein, concerning the growth. (Ds' 56.1 ¶ 40; P's 56.1 ¶ 81; P's March 2 Dep. 40.) At this first appointment, Mermelstein prescribed "a heavy antibiotic because the growth was very large and infected, and he believed that that would help bring down the infection." (Ds' 56.1 ¶ 40; P's 56.1 ¶ 75; P's March 2 Dep. 40-41.) At Plaintiffs second visit with Mermelstein, the doctor determined that Plaintiff should get a biopsy. (Ds' 56.1 ¶ 40; P's March 2 Dep. 41.) Plaintiff could not recall if he saw Mermelstein one or two more times before he underwent that biopsy on November 3, 2008. (Ds' 56.1 ¶ 40; P's March 2 Dep. 41.) The biopsy revealed that Plaintiff's growth was a basal cell carcinoma, a "slow growing" form of cancer that "rarely metastasizes, and [is] usually not life-threatening," (Lovett Aff. Ex 5; Ds' 56.1 ¶ 41; P's 56.1 ¶ 49; Davis Dep. 8
Summary judgment is appropriate when "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." Fed.R.Civ.P. 56(a), "[T]he dispute about a material fact is `genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if satisfied, the burden then shifts to the non-movant "to present evidence sufficient to satisfy every element of the claim." Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. Moreover, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and he "may not rely on conclusory allegations or unsubstantiated speculation," Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir.2001) (internal quotation marks omitted).
"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials . . . . "Fed.R.Civ.P. 56(c)(1). Where, as here, an affidavit is used to support or oppose the motion, it "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant . . . is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir.2008). In the event a party "fails to properly address another party's assertion of fact as required by Rule 56(c), the court may," among other things, "consider the fact undisputed for purposes of the motion" or "grant summary judgment if the motion and supporting materials-including the facts considered undisputed-show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(2), (3).
First, the prisoner must prove, objectively, that he was "actually deprived of adequate medical care[,] . . . [as] the prison official's duty is only to provide reasonable care," id. at 279 (citing Farmer, 511 U.S. at 844-47), and "that the alleged deprivation of medical treatment [wa]s . . . `sufficiently serious' — that is, the prisoner must prove that his medical need was a condition of urgency, one that may produce death, degeneration, or extreme pain," Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.2005) (internal quotation marks omitted); see Williams v. Raimo, No. 10-CV-245, 2011 WL 6026115, at *3 (N.D.N.Y. July 22, 2011) ("no distinct litmus test" for determining whether medical condition is "serious," but court may look at non-exhaustive list of factors, including whether (1) impairment is one that reasonable doctor would find important and worthy to treat, (2) condition affects individual's daily life, and (3) prisoner suffers from chronic and substantial pain). Where the inadequacy alleged "is in the medical treatment given, the seriousness inquiry is narrower. . . . [If] the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry focuses on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone." Goris v. Breslin, 402 F. App'x 582, 584-85 (2d Cir.2010) (summary order) (internal citation and quotation marks omitted); see Smith v. Carpenter, 316 F.3d 178, 186-87 (2d Cir.2003) (among other things, court must look at reasons for and effect of delay in treatment).
Second, the prisoner must prove, subjectively, that the charged official acted with a sufficiently culpable state of mind. Salahuddin, 467 F.3d at 280-81; see Farmer, 511 U.S. at 835 ("[D]eliberate indifference entails something more than mere negligence . . . [but] it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result."). The prisoner must prove that the charged official knew of and disregarded "`an excessive risk to inmate health or safety; the official must [have] both be[en] aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and . . . must also [have] draw[n] the inference.' "Johnson, 412 F.3d at 403 (quoting Farmer, 511 U.S. at 837); see Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.2002) (per curiam) (equating "deliberate indifference" with criminal "recklessness").
The County Defendants do not claim that Plaintiff's medical condition was not "serious" within the meaning of the Eighth Amendment. Rather, they argue that
(Ds' Mem. 6.)
Neither Plaintiff's medical records nor the rest of the record in this case supports Plaintiff's claim that his medical providers deliberately disregarded a risk of serious harm by failing to act. Rather, from January 2008 through September 2008, Plaintiff was seen by doctors or nurse practitioners regarding his growth approximately sixteen times, and other practitioners discussed Plaintiff's case with each other, set up consultations with specialists, procured necessary tests, and scheduled Plaintiff for an excision biopsy. Over these eight months, the medical providers were monitoring the size, shape, and color of the mass, as well as any medical issues relating to it. Although Plaintiff's CT scan was not conclusive on the issue of whether the mass was cancerous, the results were not alarming to these medical providers. Upon Plaintiff's further complaints, he was channeled to Baccay, a general surgeon who, based on his lack of expertise related to Plaintiff's condition,
Further, Dr. Davis testified that when he first evaluated Plaintiff in November 2008, two months after Plaintiff was discharged from WCDOC, he did not consider the condition an emergency, (see Davis Dep. 20 ("He had basal cell carcinoma for a year. These are slow-growing lesions."; not unusual to go to Plastics doctor for consultation and to look into other options)), which substantiates Hemmerdinger's statement to the same effect, (see Hemmerdinger Aff. 112 ("If I had thought Stiehl required emergency surgery (which I didn't) I would have sent him to the Emergency Room on August 5, 2008 or requested immediate surgical scheduling.")).
Additionally, Plaintiff's claims in the SAC, his 56.1 Statement, and his Affidavit that the mass caused him to "endure excruciating pain and suffering," (SAC ¶ 39; see also P's 56.1 ¶¶ 76-80 (mass caused difficulty breathing, migraines, and sharp pain; pain in right eye "was apparently caused by the cancer impinging on a nerve"); P's Aff. ¶ 2 ("persistent pain to my right eye"; "extreme headaches and migraines"; "When the tumor was not being touched, it exerted a profound and disconcerting pressure on my right cheek, the right side of my nose and my right eye."; "During sleep, if I moved in a manner that resulted in the tumor coming into contact with the bed and/or pillow, it caused me sharp pain in my right eye. . . ."), are largely belied by the record. Although Plaintiff did submit sick call requests complaining of some pain and/or of being bothered by the mass, the complaints were more mild than his current version of the events suggests, (see, e.g., Cosgriff Decl. Ex. C, at 000065, 000069, 000073, 000087, 000091), and his own deposition testimony does not substantiate a claim that he was in excessive pain that would have raised red flags to the medical providers so as to suggest deliberate indifference, (see P's March 2 Dep. 30 ("It was very discomforting. It started to feel like someone was poking the side of my nose with their finger. . . ."); id. at 33-34 ("Q; Were you in any pain? A: I was in discomfort. My vision was bothering me. My sinuses were bothering me."); id. at 43 ("It was like I said, pressure and . . . it was total discomfort."); id. at 61 ("discomfort"; "just a weird feeling")). Because Plaintiff may not submit an affidavit in connection with a motion for summary judgment that conflicts with earlier deposition testimony, see Ramos v. Baldor Specialty Foods, Inc., No. 10-CV-6271, 2011 WL 2565330, at *4 (S.D.N.Y. June 16, 2011) (disregarding declaration that contradicted plaintiff's deposition testimony because it had not been subject to cross-examination and ran afoul of rule that party may not create material issue of fact on summary judgment by submitting contradictory declarations); see also Bickerstaff v. Vassar Coll., 196 F.3d 435, 455 (2d Cir.1999) ("It is beyond cavil that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that contradicts the affiant's previous deposition testimony.") (alteration and internal quotation marks omitted), I must disregard the conflicting portions of Plaintiff's Affidavit and 56.1 Statement concerning Plaintiff's level of pain.
The facts and evidence before the Court simply do not support the type of egregious lack of medical care needed to establish a claim of deliberate indifference by any of the Individual Defendants. On the contrary, although the record demonstrates short periods of delay in the provision of certain diagnostic tests, and a total period of approximately seven months between Plaintiffs first complaint and Defendants' scheduling a biopsy or surgery, the reasons for those delays were reasonable, and Plaintiff's mass was never ignored. Rather, WCDOC medical providers and referred clinicians attended to Plaintiff on a regular basis between February 2008 and his discharge from the facility in September 2008. Although Plaintiff would have wished for the surgery to have been performed sooner, Plaintiff has failed to contradict the extensive record that shows that the evaluation of Plaintiff's condition was continuous and conscientious, and a rational jury thus could not find that the Individual Defendants evinced a deliberate indifference to his condition or that their conduct amounted to anything more than negligence or medical malpractice. Cf. Thomas v. Wright, No. 99-CV-2071, 2002 WL 31309190, at *9 (N.D.N.Y. Oct. 11, 2002) (doctors may have failed "to diagnose or even detect [plaintiff's] cancer, [but] the record does not show that they did so deliberately"; plaintiff was seen numerous times by doctors and given pain medication, and the doctors ordered tests that showed normal results). For these reasons, Defendants' Motion for Summary Judgment is granted with respect to the Individual Defendants.
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED. The Clerk of Court is respectfully directed to terminate the pending Motion, (Doc. 45), enter judgment in Defendants' favor, and close the case.
Not Reported in F.Supp.2d, 2012 WL 2334626
RAMOS, District Judge.
Plaintiff has asserted claims against one organization and four individuals: (1) Correction Medical Care Inc. ("CMS"), (2) Registered Nurse Yaneka Alaimalo (named in the Complaint as "Nurse Yaneka" and referred to herein as "Yaneka"), (3) Registered Nurse Norma Cruz ("Cruz"), (4) Medical Director of CMS, Lee Isabel ("Isabel"), and (5) Dutchess County Sheriff, Adrain (Butch) Anderson ("Anderson"). (Compl. at 1.) McNulty sues each of the natural person defendants in their individual capacities. (Id. ¶¶ 42-45.)
All Defendants move for judgment on the pleadings pursuant to Rule 12(c). Additionally, Defendants Yaneka and Cruz move to dismiss the Complaint for insufficient service of process pursuant to Rule 12(b)(5). Although the Court finds that service was not properly effected on Defendants Yaneka and Cruz, because Plaintiff can show good cause why service was not made, their motion to dismiss for insufficient service of process is DENIED. However, for the reasons discussed below, because Plaintiff fails to state a claim against Defendants Yaneka and Cruz, Plaintiff is denied additional time to effect service. Defendants' motion for judgment on the pleadings is GRANTED.
On July 18, 2011, Plaintiff was admitted to the Dutchess County Jail as an inmate. (Compl. ¶ 1.) Upon Plaintiff's admission, an initial medical assessment was performed by Nurse May. (Id.) Plaintiff informed Nurse May that he was HIV-positive, and Nurse May recorded that fact and the names of Plaintiff's HIV medications in Plaintiff's medical file. (Id.) On July 21, 2011, Plaintiff was examined by Defendant Isabel pursuant to a policy that inmates with serious medical conditions, such as HIV, be seen within five days of their admission to the prison. (Id. ¶ 2.) During the examination, Isabel advised Plaintiff that he should wash his hands regularly, as there were a high number of staph infections within the inmate population, and such an infection could be detrimental to Plaintiff's health in light of his HIV-positive status. (Id.) From the time of his admission to the prison on July 18, 2011 until August 12, 2011, Plaintiff did not require any medical treatment. (Id. ¶ 4.)
On August 13, 2011, at 7:59 p.m., Plaintiff informed an officer at the prison that he had an infected boil the size of a softball on his stomach, that he was in severe pain, and that he required medical attention. (Id. ¶ 5.) The officer notified the medical department of Plaintiff's condition, and was informed that the medical department was too busy to see Plaintiff at the moment, and that Plaintiff would be called down to the medical department after the diabetic check for the inmate population had been completed. (Id. ¶ 6.) At 9:38 p.m., after two more calls to the medical department, Plaintiff was escorted to the department and seen by Defendant Cruz. (Id. ¶ 7.) Plaintiff alleges that Cruz made a "cursory inspection" of the infection and gave Plaintiff two aspirins before sending him back to his housing unit. (Id. ¶ 8.)
At 11:00 p.m., Plaintiff was escorted down to the medical department to be reevaluated by Cruz. (Id. ¶ 13.) After speaking with Plaintiff about his condition, Cruz advised him that she was unaware that he was HIV-positive during her first examination, and that she had called Isabel, who had ordered antibiotics for Plaintiff. (Id. ¶ 14.) Plaintiff informed Cruz that the prescription of antibiotics "amounted to putting a band-aid on a gunshot wound" and that he needed to go to the hospital to have the infection lanced and drained. (Id.) After Cruz informed Plaintiff that he would be "ok," Plaintiff advised her that "she was out of her mind" and that he would not be "ok." (Id. ¶ 15.) Plaintiff begged Cruz to call Isabel back and inform him as to the seriousness of Plaintiff's condition. (Id.)
The following day, at 7:25 p.m., Plaintiff reported to Officer Stroka, the housing unit officer, and informed him that he was in severe pain, had a "blazing fever," and needed emergency medical care. (Id. ¶ 17.) Officer Stroka informed Plaintiff that he was a part-time EMT worker and was aware of Plaintiff's condition. (Id.) Officer Stroka requested to see the infection site and, upon examining it, stated "you have got to [be] kidding me." (Id. ¶ 18.) Officer Stroka then called the medical department and spoke to Yaneka. (Id.) Officer Stroka told Yaneka that Plaintiff needed emergency medical treatment and asked if he could send Plaintiff down to the medical department to be evaluated. (Id. ¶ 20.) Yaneka informed Officer Stroka that she would not see Plaintiff because he had already been seen by Cruz the night before, and that there was nothing else she "could or would" do for him, as he was already receiving antibiotics for his condition. (Id. ¶¶ 20-21.)
At 3:30 a.m., after Plaintiff had returned to his cell, Plaintiff was found "hooked over his toilet appearing to be throwing up and in a lot of pain" by the officer on duty, Officer Ortero. (Id. ¶ 23.) Officer Ortero immediately called the medical unit, and at 3:56 a.m., Cruz came to Plaintiff's cell to examine him. (Id. ¶¶ 23-24.) Upon examining Plaintiff, Cruz made the following assessment: "fever °102 degrees, body chills, diaphoresis and increased pain and swelling to the abdominal site." (Id. ¶ 25.) Cruz informed Officer Ortero that it appeared that Plaintiff had gone "septic" and that she feared that the infection was leaking into his bloodstream. (Id.) After learning of Plaintiff's condition from Cruz, Isabel gave orders to have him transported to Vassar Brothers Medical Center ("VBMC"). (Id. ¶ 26.) At 4:38 a.m., Plaintiff was rushed to VBMC "via life support unit." (Id. ¶¶ 26-27.) Upon admission to the hospital, Plaintiff was diagnosed with Methicillin-Resistant Staphylococcus Aureus ("MRSA") and administered morphine for his pain as the infection was lanced and drained. (Id. ¶ 27.) Plaintiff was then informed by the doctor on duty that if he was left untreated for any further period of time, his condition could have easily resulted in death. (Id.)
Plaintiff alleges that CMC is the healthcare provider at the Dutchess County Jail pursuant to a contract with Anderson. (Id. ¶ 32.) Plaintiff claims that since CMC contracted with Anderson, the number of instances of prisoners being deprived of medical treatment has been "systematic." (Id. ¶ 34.) Plaintiff further alleges that within the last year, two inmates have committed suicide, and another inmate has attempted suicide. (Id. ¶ 35.) CMC is responsible for referring inmates with mental health problems to mental health services. (Id.) Plaintiff appears to allege that CMC has failed to refer such inmates to mental health services because the cost of doing so would be deducted from the total amount of money CMC is paid under its contract. (Id.) Thus, according to Plaintiff, CMC is making medical decisions based on cost, rather than the medical needs of the inmates. (Id.) Additionally, Plaintiff alleges that Defendants CMC and Isabel have an unwritten policy that inmates will not be provided pain medication under any circumstance. (Id. ¶ 29.) Plaintiff also claims that Defendants made certain decisions with respect to his medical treatment based on cost rather than his actual medical needs, including placing Plaintiff on oral antibiotics rather than taking him to the hospital. (Id. ¶¶ 36, 38.)
Plaintiff further alleges that Defendant Anderson owes a duty of care to the inmates at the Dutchess County Jail, and that such duty is non-delegable. (Id. ¶¶ 32-33.) Plaintiff claims that Anderson "knew or should have known" that CMC's "level of treatment would diverge from [the] public interest" because, unlike public employees, CMC's employees are "compelled" to make decisions to benefit CMC, without consideration of what is in the best interest of the inmates. (Id. ¶ 34.) Plaintiff alleges that the two suicides and one attempted suicide within the last year should have been a "red flag" for Anderson that CMC was making medical decisions based on cost. (Id. ¶ 35.) Plaintiff claims that "if by way of discovery," he can prove that CMC had a policy of making medical decisions based on cost, then both Defendants CMC and Anderson become liable. (Id. ¶ 37.)
In considering a motion to dismiss pursuant to Rule 12(b)(5) for insufficient service of process, a court may look to matters outside the complaint to determine whether it has jurisdiction. Mende v. Milestone Tech., Inc., 269 F.Supp.2d 246, 251 (S.D.N.Y.2003). "Conclusory statements that a defendant was properly served are insufficient to overcome a defendant's sworn affidavit that he was never served with process." Id. (quotation marks and citation omitted). When a defendant challenges the sufficiency of service pursuant to Rule 12(b)(5), the plaintiff bears the burden of proving its adequacy. Id.
Defendants Yaneka and Cruz move to dismiss the action for improper service of process. The docket for this Court indicates that service was effected upon Yaneka and Cruz by the U.S. Marshals, (Docs.27, 28), however, Defendants argue that service was improper under New York Civil Practice Law and Rules ("CPLR") 308(2). (Defs.' Aff. in Supp. at 5-6.) Plaintiff disputes that service was made pursuant to CPLR 308(2). However, because none of the methods of service articulated in Rule 4(e)(2) are applicable here, the Court will assume that service was attempted pursuant to CPLR 308(2), which provides that service may be effected by personal delivery to defendant's actual place of business, with a follow-up mailing to defendant's last known residence or his or her actual place of business.
CPLR 308(2) requires that service be made at the defendant's business address at the time of service, and not when the cause of action arose. Jackson v. Cnty. of Nassau, 339 F.Supp.2d 473, 478 (E.D.N.Y.2004) (citing Simmons v. Boro Med., P.C., 270 A.D.2d 477 (2d Dep't 2000)); see also Leab v. Streit, 584 F.Supp. 748, 759 n. 12 (S.D.N.Y.1984) (holding that compliance with CPLR 308(2) "is tested at the time of service"). Defendants argue that neither Yaneka nor Cruz were employees of CMC on March 23, 2012, the date of delivery to the Dutchess County Jail. (Defs.' Aff. in Supp. at 5.) Factual support for Defendants' argument has been submitted in the form of an affidavit of the Health Services Administrator for CMC, Rebecca Oyoo, R.N. (Doc. 36.) Ms. Oyoo's affidavit states that Yaneka's last day of employment by CMC was January 2, 2012, and that Cruz's last day of employment was January 12, 2012. (Id.) Plaintiff has offered no evidence to rebut Defendants' contention regarding the termination date of Yaneka's and Cruz's employment by CMC. Accordingly, because the evidence suggests that Defendants were no longer employed by CMC as of the date of service, service cannot be sustained pursuant to CPLR 308(2).
Although service was not effected within 120 days after the filing of the Complaint, as mandated by Rule 4(m), dismissal is not required if the plaintiff can show "good cause" why service was not made. Fed.R.Civ.P. 4(m). Here, Plaintiff timely directed the U.S. Marshals Service to effect service on Defendants Yaneka and Cruz at CMC on January 16, 2012. (Docs. 27, 28.) Thus, at the time Plaintiff requested that service be effected, Defendants' employment at CMC had only recently concluded and Plaintiff therefore had good cause to direct the U.S. Marshals to serve Defendants at CMC. Although Defendants were no longer employees of CMC at the time service was made, there is nothing in the record to suggest that Plaintiff did not act diligently in his attempt to serve Yaneka and Cruz. Accordingly, the Court finds that dismissal is not mandated by Plaintiff's failure to effect service. Because the Court finds that dismissal of Plaintiff's claims against Defendants Yaneka and Cruz is appropriate under Rule 12(c), however, the Court declines to extend the time for service pursuant to Rule 4(m).
When ruling on a motion to dismiss pursuant to Rule 12(b)(6), district courts are required to accept as true all factual allegations in the complaint and to draw all reasonable inferences in the plaintiff's favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir.2010). However, this requirement does not apply to legal conclusions, bare assertions or conclusory allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678, 681 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to satisfy the pleading standard set forth in Rule 8 of the Federal Rules of Civil Procedure, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Accordingly, a plaintiff is required to support its claims with sufficient factual allegations to show "more than a sheer possibility that a defendant has acted unlawfully." Id. "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).
The same standard applies to motions to dismiss pro se complaints. Mancuso v. Hynes, 379 F. App'x 60, 61 (2d Cir.2010). However, the Court remains obligated to construe a pro se complaint liberally, Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.2011), and to interpret apro se plaintiff's claims as raising the strongest arguments that they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006). In order to survive a motion to dismiss, a plaintiff's pleadings must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A complaint that "tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks and brackets omitted); see also Triestman, 470 F.3d at 477 ("[P]ro se status `does not exempt a party from compliance with relevant rules of procedural and substantive law.'") (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)).
The Eighth Amendment protects individuals from "cruel and unusual punishments." U.S. Const. amend. VIII "[C]ruel and unusual punishments" include punishments that "involve the unnecessary and wanton infliction of pain." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.2003) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)) (internal quotation marks omitted). Although "society does not expect that prisoners will have unqualified access to health care," a prisoner can nevertheless succeed on an Eighth Amendment claim arising out of the medical care he or she received by demonstrating that a prison official acted with "deliberate indifference to the inmate's serious medical needs." Id. (internal quotation marks and citations omitted). The "deliberate indifference" standard embodies an objective and subjective prong. Farmer v. Brennan, 511 U.S. 825, 838-39 (1994). A prisoner's claim must be dismissed unless both prongs are satisfied. Sonds v. St. Barnabas Hosp. Correctional Health Servs., 151 F.Supp.2d 303, 310 (S.D.N.Y.2001).
If the inadequate care complained of consists of a failure to provide any medical care, courts must examine whether the prisoner's underlying medical condition itself is "sufficiently serious." Salahuddin, 467 F.3d at 280 (citing Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir.2003)). Alternatively, when a prisoner complains not about the failure to treat, but rather about the inadequacy in the treatment that was actually provided or a temporary delay in the provision of otherwise adequate medical treatment, the seriousness inquiry is "narrower," id, and focuses on the "particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition." Smith, 316 F.3d at 186. Thus, even in cases where an inmate "suffers from an admittedly serious medical condition," if the alleged deficiencies in treatment are "minor and inconsequential," those deficiencies will not sustain an Eighth Amendment claim. Id. "[T]he actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Id. at 187. Although there is no precise metric to determine when a prisoner's medical need is sufficiently serious, the standard contemplates a "condition of urgency" that may result in "degeneration" or "extreme pain." Bellotto v. Cnty. of Orange, 248 F. App'x 232, 236 (2d Cir.2007) (internal quotation marks and citations omitted).
The Court finds that Plaintiff's allegations are sufficient to demonstrate that the alleged deprivation of medical care was "sufficiently serious." Plaintiff has alleged that after being prescribed oral antibiotics, he developed a high fever, experienced increased pain and ultimately had to undergo surgery to remove the infection. Thus, accepting all factual allegations as true and drawing all reasonable inferences in Plaintiff's favor, the Court finds that the alleged deprivation in treatment subjected Plaintiff to a "significant risk of serious harm."
The subjective component of the "deliberate indifference" standard requires that the prison official acted with a "sufficiently culpable state of mind." Chance, 143 F.3d at 702 (internal quotation marks and citation omitted). The "deliberate indifference" standard "requires more than negligence, but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66 (citing Farmer, 511 U.S. at 835). A prison official does not act with "deliberate indifference" to an inmate's medical needs unless the official "knows of and disregards an excessive risk to inmate health or safety; 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." Id. (quoting Farmer, 511 U.S. at 837). This is "equivalent to the familiar standard of `recklessness' as used in criminal law." Smith, 316 F.3d at 184 (quoting Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.2002) (per curiam)).
A difference of opinion between a prisoner and prison officials regarding the appropriate course of medical treatment does not, as a matter of law, constitute "deliberate indifference." Sonds, 151 F.Supp.2d at 311 (citing Chance, 143 F.3d at 703). Moreover, that an inmate might prefer an alternative treatment, or feels that he did not get the level of medical attention he desired, does not evidence a "sufficiently culpable state of mind." Id. Prison officials and medical officers have wide discretion in treating prisoners, and federal courts are generally hesitant to second-guess medical judgments and to constitutionalize claims which sound in tort law. Id. (citing Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986)). Accordingly, the determinations made by medical providers concerning the treatment of patients are given a "presumption of correctness." Id. at 312 (internal quotation marks and citation omitted).
There is no indication that Defendants Cruz or Isabel acted with the requisite culpable state of mind akin to criminal recklessness or deliberately delayed taking action for the purpose of causing Plaintiff pain or prolonging his suffering. Plaintiff was examined shortly after requesting medical attention, was placed on antibiotics for his infection, and was rushed to the hospital after his symptoms worsened. Plaintiff simply has not demonstrated that Defendants Cruz or Isabel acted with deliberate indifference to Plaintiff's medical needs.
Plaintiff alleges that Defendant Yaneka refused Plaintiff all medical attention. (Compl. ¶ 21.) The Court finds that Plaintiff has failed to demonstrate that Yaneka acted with "deliberate indifference" to Plaintiff's medical needs. Plaintiff alleges that Yaneka was informed that he had "an infection on his stomach the size of a softball" and had a "blazing fever." (Id. ¶ 20.) Yaneka was thus aware of "facts from which the inference could be drawn that a substantial risk of serious harm exists." Hathaway, 37 F.3d at 66. However, Plaintiff has failed to allege that Yaneka actually drew the inference that a substantial risk of serious harm existed. Id. Plaintiff claims that Yaneka would not see him because he had been seen by Cruz less than 24 hours earlier, and because Plaintiff was already receiving antibiotics and there was therefore nothing further she "could or would" do for him. (Compl. ¶¶ 20-21.) Yaneka's determination that Plaintiff did not require medical attention in light of his recent examination by Cruz and ongoing treatment does not rise to the level of criminal recklessness. At most, Yaneka's decision not to examine Plaintiff constitutes mere negligence or malpractice, and therefore cannot form the basis of an Eighth Amendment violation.
The Second Circuit has established a two prong test for § 1983 claims brought against a municipality. First, the plaintiff must prove "`the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving [official].'" Johnson v. City of New York, No. 06 Civ. 09426(GBD), 2011 WL 666161, at *3 (S.D.N.Y. Feb. 15, 2011) (quoting Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir.1985)). Second, the plaintiff must establish a causal connection between the policy or custom and the alleged deprivation of his constitutional rights. Id.
To satisfy the first prong of the test on a motion to dismiss, a plaintiff must allege the existence of:
Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y.1996) (internal citations and quotation marks omitted); see also Brandon v. City of New York, 705 F.Supp.2d 261, 276-77 (S.D.N.Y.2010) (quoting Moray and updating citations to cases).
Here, Plaintiff claims that CMC is liable under § 1983 under two theories: (1) that CMC failed to properly train, supervise, and control its employees; and (2) that CMC had a policy of making medical decisions based on cost and encouraged its employees to do the same.
Even on a liberal reading of the Complaint, Plaintiff has failed to allege a failure by CMC to properly train or supervise its employees "to such an extent that it amounts to deliberate indifference" to the rights of the prisoners. Similarly, Plaintiff's speculative and conclusory allegations of an unlawful custom or practice are insufficient to support a claim of municipal liability against CMC. Plaintiff's theory that CMC has a policy of making medical decisions based on cost is based on mere conjecture. Even accepting as true Plaintiff's allegation that the number of suicides and deprivations of medical treatment has increased since CMC became the medical provider at the prison, Plaintiff has failed to allege any factual nexus between these incidents and any alleged policy or custom by CMC. Moreover, Plaintiff may not satisfy the pleading standard required by Rule 8 by alleging that if "by way of discovery" he can prove that CMC has a policy of making medical decisions based on cost, then both CMC and Defendant Anderson become liable. (Compl. ¶ 37.) Where a plaintiff's complaint is deficient under Rule 8, "he [or she] is not entitled to discovery." Iqbal, 556 U.S. at 686. Accordingly, Plaintiff has failed to satisfy the first prong of the municipal liability test and dismissal is therefore required.
Hernandez v. Keane, 341 F.3d 137, 145 (2d Cir.2003) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)).
Plaintiff does not allege any facts upon which Defendant Anderson could be found to have been personally involved in the alleged constitutional violation. Plaintiff does not claim that Anderson actually participated in the medical treatment of Plaintiff or that he failed to remedy the alleged wrong or act on information suggesting that the alleged deprivation was occurring. Moreover, Plaintiff does not allege that Anderson supervised the Defendants involved in Plaintiff's medical care. Finally, to the extent that Plaintiff alleges that Defendant Anderson acquiesced to CMC's alleged policy or custom of making medical decisions based on cost, the Court has already found that Plaintiff has failed to allege that any such policy existed. Accordingly, Plaintiff's claims against Defendant Anderson must be dismissed.
For the reasons set forth above, Defendants Yaneka's and Cruz's motion to dismiss for insufficient service of process is DENIED. Defendants' motion for judgment on the pleadings is GRANTED. The Clerk of the Court is respectfully directed to terminate the motion and close this case. (Doc. 34.)
It is SO ORDERED.
Not Reported in F.Supp.2d, 2013 WL 684448
PAUL A. ENGELMAYER, District Judge.
Ferguson is an inmate formerly housed at the OBCC, a New York City correctional facility on Rikers Island. Ferguson is a diabetic. His claims arise out of a single incident involving one prison official, Correction Officer Cai.
On August 2, 2011, at approximately 9:20 p.m., Ferguson informed Officer Cai that he was a diabetic and needed to go to the medical clinic. In response to this request, Officer Cai told Ferguson that he would call for an escort. The medicine that Ferguson required, Lantus, is taken only at night. After waiting approximately one hour, Ferguson again approached Officer Cai, and explained that he needed to go to the clinic because he needed his insulin medication. Ferguson alleges that, around the time of the second request, he knew that his blood glucose level was elevated because he began "going in and out of con[s]ciousness," and was experiencing "temporary blindness, neuralgia pain from neuropathy and swelling in [his] left leg." Am. Compl. at ECF 4. Ferguson then took "a few metformin hydrochloride 500mg" because he "didn't want to fall into a hyperglycemia coma." Id. Ferguson was not escorted to the clinic that night.
The following morning, Ferguson woke up at approximately 5:00 a.m., suffering "severe pain." Id. Ferguson alleges that later on the evening of August 3, 2011, he questioned Officer Cai about his failure to provide an escort to the clinic. Officer Cai responded that "he forgot to call." Id.
On August 24, 2011, Ferguson filed his original Complaint. On December 22, 2011, defendants filed a motion to dismiss. On January 10, 2012, Ferguson filed an Amended Complaint which materially amended his pleading in several respects.
On January 30, 2012, the Court issued an Order alerting the parties that, upon review of the parties' submissions, it had identified a threshold issue. The Court noted that although Ferguson alleged in his Amended Complaint that the grievance procedures at the OBCC do not cover his claim, the Inmate Grievance Resolution Program, which governs all grievance procedures at OBCC, appeared to cover claims like Ferguson's, which arose out of incidents involving Department of Correction employees. The Court's Order instructed:
In a letter dated February 7, 2012, defendants explained the circumstances surrounding Ferguson's attempts to satisfy available grievance procedures. Defendants explained:
February 8, 2012 Order at 2-3 (Dkt. 18) (citing Rivera v. Goord, 253 F.Supp.2d 735, 746-47 (S.D.N.Y.2003)). In an Order dated February 8, 2012, the Court authorized defendants to file a new motion to dismiss the Amended Complaint on other grounds. Id. at 1.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "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). Accordingly, in considering a motion to dismiss, a district court "must accept as true all well-pleaded factual allegations in the complaint, and `draw[] all inferences in the plaintiff's favor.'" Brown v. Kay, No. 11-cv-7304, 2012 WL 408263, at *7 (S.D.N.Y. Feb. 9, 2012) (quoting Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir.2006)).
Because plaintiff is proceeding pro se, the Court must construe liberally his Amended Complaint and any further pleadings, and "interpret them to raise the strongest arguments that they suggest." Cold Stone Creamery, Inc. v. Gorman, 361 F. App'x 282, 286 (2d Cir.2010) (summ.order) (internal quotation marks omitted). As a general rule, pro se complaints are held to less stringent standards than those drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir.2008). However, despite the more lenient standard, to survive a motion to dismiss, a pro se plaintiff must still plead enough facts to state a claim to relief that is plausible on its face. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.2011). A claim will only have "facial plausibility when the plaintiff pleads 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, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Accordingly, dismissal of a pro se complaint is appropriate where a plaintiff has clearly failed to meet minimum pleading requirements. See Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir.1997); Honig v. Bloomberg, No. 08-cv-541, 2008 WL 8181103, at *4 (S.D.N.Y. Dec. 8, 2008), aff'd, 334 F. App'x 452 (2d Cir.2009).
The Court construes plaintiff to claim deliberate indifference to a serious medical need, in violation of the Eighth Amendment.
To establish an Eighth Amendment violation arising out of inadequate access to medical care, "a prisoner must prove `deliberate indifference to [his] serious medical needs.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting Estelle, 429 U.S. at 104). This standard incorporates both objective and subjective elements: "The objective `medical need' element measures the severity of the alleged deprivation, while the subjective `deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84; see also Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996).
With respect to the objective element, there is no "static test" to determine whether a deprivation is sufficiently serious. Jabbar, 683 F.3d 54, 2012 WL 2359639, at *2. A serious medical need is generally characterized by "a condition of urgency, one that may produce death, degeneration, or extreme pain." Johnson v. Wright, 412 F.3d 398, 403 (2d Cir.2005) (citation omitted). Courts in this Circuit have considered various factors in determining the existence of a serious medical condition, including: (1) the "existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment"; (2) "the presence of a medical condition that significantly affects an individual's daily activities"; (3) "the existence of chronic and substantial pain"; and (4) "adverse medical effects or demonstrable physical injury." Chance, 143 F.3d at 702; Smith, 316 F.3d at 187.
Here, Ferguson has failed to plead facts sufficient to plausibly claim that his injuries are objectively serious enough to fall within the ambit of the Eighth Amendment.
Measured against these standards, Ferguson's pleadings are insufficient to meet the objective component of the Eighth Amendment standard. Officer Cai's single alleged failure — to call an official to escort Ferguson to the clinic — prevented him from receiving a single dose of insulin on a single occasion. Ferguson admits that the symptoms that resulted from this deficiency were temporary: He perceived that his blood glucose level was elevated, and he experienced temporary blindness, pain, and swelling in his leg. Ferguson does not allege that his pain or discomfort was prolonged — in fact, he does not even allege that it lasted past the next morning. Nor does he allege that the pain he suffered was extreme. He has not alleged that the single delay in treatment caused any symptoms of his underlying illness to worsen, nor that it materially altered the way in which his disease thereafter affected him. See Hill, 40 F.3d at 1188-89. Finally, Ferguson has not alleged, beyond making general conclusory statements, that the one-day delay in receiving his medicine put him at an "unreasonable risk of future harm." Smith, 316 F.3d at 188 (citing Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)) (if plaintiff cannot show actual injury, he must prove that defendants' delay of medical treatment exposed them to "an unreasonable risk of future harm"). The circumstances Ferguson alleges are a far cry from those in which courts in this Circuit have held a temporary delay in treatment to rise to the level of an objective constitutional violation.
The deliberate indifference standard requires "more than mere negligence." Farmer, 511 U.S. at 835. It is "equivalent to criminal recklessness, [where] the official `knows of and disregards an excessive risk to inmate health or safety.'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998) (quoting Farmer, 511 U.S. at 837). "[A] prisoner must demonstrate more than `an inadvertent failure to provide adequate medical care' by prison officials to successfully establish Eighth Amendment liability." Smith, 316 F.3d at 184 (quoting Estelle, 429 U.S. at 105). Here, Ferguson alleges merely that he told Officer Cai that he suffered from diabetes and needed his medicine. He does not allege that he informed Officer Cai that he was experiencing any discomfort or pain due to the delay in receiving the medicine. He does not allege that Officer Cai — or any prison official, for that matter — was aware that depriving Ferguson of insulin on a single occasion would create a substantial risk of serious harm. Finally, Ferguson does not allege that Officer Cai actually disregarded any such known risks. In fact, Ferguson himself explained that Officer Cai "forgot to call," a lapse that falls well short of the high threshold for deliberate indifference.
The Eighth Amendment "is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law." Smith, 316 F.3d at 184. "[N]ot every lapse in prison medical care will rise to the level of a constitutional violation." Id. Here, Ferguson alleges neither facts sufficient to show that the delayed provision of insulin was a sufficiently serious deprivation, nor that the delay was caused by a prison official's deliberate indifference. Accordingly, his Eighth Amendment claim must be dismissed.
To state a § 1983 claim against a municipality, the plaintiff must allege that an officially adopted policy or custom caused his injury. See Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); see also Bd. of Cnty. Comm'r of Bryan Cnty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (plaintiff must demonstrate a "direct causal link between the municipal action and the deprivation of federal rights"). Where a plaintiff alleges a single incident, especially if that incident involved only actors below the policy-making level, plaintiff's allegation is "not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 S.Ct. 2427, 85 L.Ed.2d 791, reh'g denied, 473 U.S. 925, 106 S.Ct. 16, 87 L.Ed.2d 695 (1985); see also Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996), cert. denied, 520 U.S. 1117 (1997) (municipal liability cannot be "predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy").
In any event, the Court's holding that the Amended Complaint fails to allege a violation of the Eighth Amendment by any individual municipal agent independently defeat's Ferguson's claim of municipal liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (municipal liability requires that an individual municipal agent committed an underlying constitutional deprivation); Bunn v. City of Poughkeepsie, No. 10-cv-2297, 2012 WL 1621563, at *5 (S.D.N.Y. May 9, 2012). Because the Court has concluded that Ferguson's constitutional rights have not been violated, his claim of municipal liability pursuant to Monell is, a fortiori, also meritless.
Defendants argue that the Amended Complaint must also be dismissed as to Officer Cai because he enjoys qualified immunity. Because the Court finds that Ferguson has failed to allege a constitutional violation, it has no occasion to address this alternative ground.
Defendants' motion to dismiss the plaintiff's Amended Complaint is GRANTED. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of Court is directed to terminate the motions at docket numbers 14 and 19, and to close the case.
SO ORDERED.
Not Reported in F.Supp.2d, 2012 WL 2865474
State prisoner brought § 1983 action against prison officials and medical staff alleging violation of his Eighth Amendment rights. Officials and staff moved for summary judgment. The District Court, Sharpe, United States Magistrate Judge, recommended that: (1) prisoner failed to exhaust his administrative remedies within meaning of Prison Litigation Reform Act (PLRA); (2) statute of limitations for state prisoner to bring § 1983 claim began to run at time prisoner was diagnosed with cancer; and (3) officials and staff were not deliberately indifferent to prisoner's serious medical needs for purposes of Eighth Amendment claim.
Report and recommendation issued.
West Headnotes (3)
Kevin Thomas, Plaintiff, Pro Se, Cape Vincent Correctional Facility, Cape Vincent, for the Plaintiff.
Hon. Eliot Spitzer, Attorney General of the State of New York, Syracuse, Maria Moran, Esq., Assistant Attorney General, for the Defendant.
SHARPE, Magistrate J.
On November 29, 1999, Thomas filed a complaint claiming that the defendants violated his constitutional rights when they failed to provide adequate medical treatment for his colon cancer. The defendants move for summary judgment on the following grounds: (1) the complaint is time barred; (2) Thomas has failed to exhaust his administrative remedies; (3) the defendants did not violate his right; (4) the defendants were not personally involved in the alleged violation; and, (5) the suit is barred by the Eleventh Amendment against the defendants in their official capacities. The court shall address each of these issues seriatim.
On April 30, 1996, Thomas was seen at the Clinton Correctional Facility's Ambulatory Health Clinic for rectal bleeding, occasional pain in his scrotal area, and constipation. Defs.['] Mot. for Summary Judgment Ex. A. Dr. Kang Lee ("Lee") examined Thomas' testicles and found no sign of inflammation, and after a rectal examination, found nothing abnormal. Id. Lee prescribed colance (a stool softener) and milk of magnesia for one week. Id. On June 4, 1996, Lee saw Thomas for a complaint that upon defecation, he had lower abdominal pain which went away after his bowel movement. Id. Lee did not prescribe any treatment at that time. Id. On July 30, 1996, Thomas was seen on an emergency sick call for complaints of a burning sensation upon urination. Id. The nurse on call noted that his urine was negative for the presence of blood. Lee prescribed Bactrim (an antibiotic) to treat any urinary tract infection, and ordered an urinalysis test to rule out an infection. Id.; Defs.['] Mot. for Summary Judgment Ex. B.
On August 20, 1996, Thomas was seen by a nurse with a complaint of constipation for the past two weeks. Defs.['] Mot. for Summary Judgment Ex. A. Thomas was prescribed colance, milk of magnesia and told to increase his fluids. Id. He was also scheduled to see Dr. Wright ("Wright").
On September 23, 1996, Thomas was seen by Jean Carbone ("Carbone"), a Registered Nurse Practitioner. He complained of traces of blood in his urine, including his stool, and pain in his naval area. Id. He explained that he had a burning with the last drops of urine and an occasional brownish-yellow discharge from his penis. Id. Carbone ordered a urethral culture, a PSA (a marker of prostate cancer), a CBC (complete blood count), and an ACP (auto chemical panel), and noted that further work would be determined after the results of the tests were back. Id. On September 25, 1996, Carbone noted that an urinalysis test result indicated that Thomas had an infection. Id. He was prescribed Bactrim while the results of the other tests were pending. Id. It was noted that further urinalysis, culture and sensitivity tests were to be ordered in October. Id.
On October 31, 1996, Thomas had a renal (kidney) ultrasound which was normal, and had a kidney/ureter/bladder x-ray which showed no abnormalities. Id., Ex. C. On November 4, 1996, Lee reviewed the results of the 24-hour urine collection, and noted that Thomas' white blood count was high, he had frequent urination, and that he was currently on Cipro. Id., Ex. A. Lee noted that if Cipro did not work, he would order a GU (genito urinary) consultation. Id., Ex. A.
On November 13, 1996, Lee examined Thomas for complaints of frequent urination and dysuria (painful urination). Id., Ex. A. Lee noted that Cipro and Bactrim did not work and the kidney sonogram was negative. Id., Ex. A. Lee ordered another urinalysis test and a consultation with a nephrology (kidney) specialist. Id., Ex. A.
On December 11, 1996, Thomas filed a grievance where he claimed that he was not getting proper treatment for his hernia. Id., Ex. J. The Inmate Grievance Resolution Committee ("I.G.R.C.") noted that Thomas was last seen by the medical staff on December 5, 1996, and that he was awaiting a nephrology consultation. Id., Ex. J. The I.G.R.C. recommended that Thomas be scheduled for another call out. Id., Ex. J. On December 13, 1996, Thomas indicated that he agreed with the I.G.R.C. recommendation and that he wished to appeal to the superintendent. Id., Ex. J. On December 18, 1996, a response from First Deputy Superintendent Thomas Ricks, on behalf of the superintendent, determined that Thomas had been seen by the medical staff for his concerns and that the consultation for an outside clinic had been approved. Id., Ex. J. Thomas did not appeal this decision to the Central Office Review Committee (C.O.R.C.).
On December 27 and 30, 1996, Thomas was treated for flu symptoms. Id., Ex. A. On January 9, 1997, Thomas was seen on an emergency sick call for complaints of burning and itching upon urination and he was referred to Lee. Id. His urine culture was negative. Id. Lee ordered a third urinalysis as well as urine, culture and sensitivity tests. Id. Lee also prescribed Pyridium, an analgesic used to treat urinary tract infections. Id. On January 13, 1997, Lee saw Thomas for complaints of excruciating pain in the supra-pubic area, diarrhea and abdominal pain since taking Pyridium so he prescribed Bentyl instead. Id.
On January 29, 1997, Thomas was seen on an emergency sick call for increased hematuria in the past two days. Id. He was still having paraumbilical pains and chronic beige urethral discharge, and he had been having pain in his left scrotum for two days. Id. Thomas was admitted to the infirmary, and CBC and chemical profiles were ordered as well as an urinalysis and urethral discharge culture. Id., Ex. A. After a rectal exam, Wright discharged him from the infirmary. Id., Exs. A & E. On January 31, 1997, LabCorp found that Thomas had low hemoglobin and hematocrit levels. Id., Exs. A & B.
On February 5, 1997, Thomas was admitted to the Albany Medical Center Hospital and underwent a CT scan of his abdomen and pelvis which revealed findings consistent with a mass compressing the left side of his bladder. Id., Ex. F. Colorectal surgeons were consulted and surgery was recommended. Id. On February 7, 1997, Thomas underwent cystoscopy with left urethral stent placement and bladder biopsy, then a partial systoscopy of the dome of the bladder and removal of the entire tumor. Id. Placement of the suprapubic tube and foley catheter were then followed by anterior resection and descending colostomy and appendectomy. Id. Pathology results revealed that Thomas had colon cancer. He remained in the hospital until February 20, 1997. Id. He was kept in the infirmary until he was transferred to Coxsackie Correctional Facility's Regional Medical Unit on March 21, 1997. Id. Exs., A & G.
Summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); accord F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir.1994). The moving party has the burden of demonstrating that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999). "When a motion for summary judgment is made and supported . . . an adverse party may not rest upon the mere allegations or denials of the . . . pleading, but the adverse party's response, by affidavits or as otherwise provided in [Federal Rule of Civil Procedure 56(e)], must set forth specific facts showing that there is a genuine issue for trial." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir.2000). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]" Rexford Holdings, Inc. v. Biderman, 21 F.3d 522, 525 (2d Cir.1994)(alternation in original)(citation omitted). However, it is well settled that on a motion for summary judgment, the court must construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999).
This liberal standard, however, does not excuse a pro se litigant from following the procedural formalities of summary judgment. Showers v. Eastmond, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001). More specifically, Local Rule 7.1(a)(3) of this court specifically provides that "any facts set forth in the [moving party's] Statement of Material Facts shall be deemed admitted unless specifically controverted by the opposing party." Local Rule 7.1(a)(3) further requires that the "non-movant shall file a Statement of Material Fact which mirrors the movant's statement in matching numbered paragraphs and which set forth a specific reference to the record where the material fact is alleged to arise." The courts of the Northern District have adhered to a strict application of Local Rule 7.1(a)(3)'s requirement on summary judgment motions. Giguere v. Racicot, 2002 WL 368534, at *2 (N.D.N.Y. March 1, 2002)(inter alia citing Bundy Am. Corp. v. K-Z Rental Leasing, Inc., 2001 WL 237218, at *1 (N.D.N.Y. Mar. 9, 2001)).
Furthermore, this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a search and independent review of the record to find proof of a factual dispute. Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir.2002). As long as the local rules impose a requirement that parties provide specific record citations in support of their statement of material facts, the court may grant summary judgment on that basis. Id. at 470-71.
In this case, Thomas failed to provide the court with a response and further, a separate statement of undisputed material facts in compliance with Local Rule 7.1(a) (3). Consequently, the court will accept the properly supported facts contained in the defendants' 7.1 statement as true for purposes of this motion.
In this case, the defendants are being sued in their official and individual capacities. Since the Eleventh Amendment also applies to state officers, such as the defendants, it is recommended that Thomas' official capacity claims against the defendants should be dismissed.
The New York State Inmate Grievance Program involves three steps. First, an inmate must submit a grievance to the clerk of the I.G.R.C. within 14 days of the alleged occurrence. 7 NYCRR § 701.7[a]. The I.G.R.C. is a five-member body consisting of two voting inmates, two voting staff members, and a non-voting chair. 7 NYCRR § 701.4. Next, a party to the grievance may appeal to the superintendent within four working days after receipt of the I.G.R.C.'s written response. As a general rule, the superintendent or his designee must issue a decision within ten working days of receipt of the appeal. 7 NYCRR § 701.7[b]. Then, a party to a grievance may appeal the superintendent's action to the C.O.R.C., which consists of the deputy commissioners or their designees. 7 NYCRR § 701.6.
In this case, it appears that Thomas has failed to exhaust his administrative remedies concerning the grievance he filed in December of 1996. The defendants have provided this court with documents which show that Thomas filed a grievance on December 11, 1996, claiming that he did not receive proper treatment for his hernia and blood clots. He appealed the determination of the I.G.R.C. to the superintendent, but did not appeal the determination of the superintendent's designee to the C.O.R.C. As such, this court finds that Thomas has failed to exhaust his administrative remedies. Accordingly, this court recommends that the complaint be dismissed for failure to exhaust.
In this case, Thomas alleges that the defendants failed to provide medical treatment between March of 1996 and January of 1997. The defendants maintain that since his injury occurred in March of 1996, the statute of limitations has expired. They contend that Thomas filed his complaint three years and ten months after the last date that the alleged incident occurred.
This court disagrees and finds that Thomas filed his suit within the statute of limitations. In analyzing the facts in the light most favorable to the non-moving party, Thomas could argue that his injury did not accrue until January of 1997, and that his suit would not be time barred. Thomas could argue that under the "continuous harm" rule he did not know or have reason to know of the injury which is the basis of his action until January of 1997 when he was diagnosed with cancer. "While no decision within this circuit has been found in which [the continuous harm] rule was applied to toll the statute of limitations for a deliberate indifference claim, the Second Circuit has recognized that the rule may apply in such a case." Cole v. Miraflor, 2001 U.S. Dist. LEXIS 1681, at *17 (S.D.N.Y. Feb. 21, 2001)(citing Pino v. Ryan, 49 F.3d 51, 54 (N.D.N.Y.1995)) (affirming sua sponte dismissal of prisoner's deliberate indifference claim "where . . . the injuries complained of occurred . . . well outside the applicable three-year limitations period . . . and plaintiff has alleged no facts indicating a continuous or ongoing violation of his constitutional rights"). Since Thomas' claims against the defendants could have accrued as late as January of 1997, dismissal based on this ground is not recommended.
In light of these elementary principles, a state has a constitutional obligation to provide inmates adequate medical care. See West v. Atkins, 487 U.S. 42, 54, 108 S.Ct. 2250, 2258, 101 L.Ed.2d 40 (1988). By virtue of their incarceration, inmates are utterly dependant upon prison authorities to treat their medical ills and are wholly powerless to help themselves if the state languishes in its obligation. See Estelle, 429 U.S. at 103, 97 S.Ct. at 290. The essence of an improper medical treatment claim lies in proof of "deliberate indifference to serious medical needs." Id. at 104, 97 S.Ct. at 291. Deliberate indifference may be manifested by a prison doctor's response to an inmate's needs. Id. It may also be shown by a corrections officer denying or delaying an inmate's access to medical care or by intentionally interfering with an inmate's treatment. Id. at 104-105, 97 S.Ct. at 291.
The standard of deliberate indifference includes both subjective and objective components. The objective component requires the alleged deprivation to be sufficiently serious, while the subjective component requires the defendant to act with a sufficiently culpable state of mind. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998). A prison official acts with deliberate indifference when he "`knows of and disregards an excessive risk to inmate health or safety.'" Id. (quoting Farmer, 511 U.S. at 837, 114 S.Ct. at 1979). "`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.'" Id. However, an Eighth Amendment claim may be dismissed if there is no evidence that a defendant acted with deliberate indifference to a serious medical need. An inmate does not have a right to the treatment of his choice. See Murphy v. Grabo, 1998 WL 166840, at *4 (N.D.N.Y. April 9, 1998) (citation omitted). Also, mere disagreement with the prescribed course of treatment does not always rise to the level of a constitutional claim. See Chance, 143 F.3d at 703. Moreover, prison officials have broad discretion to determine the nature and character of medical treatment which is provided to inmates. See Murphy, 1998 WL 166840, at *4 (citation omitted).
The Second Circuit provided some of the factors to be considered when determining if a serious medical condition exists. Id. at 702-703. Factors that the court mentioned were "`[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain'" are highly relevant. Id. at 702-703 (citation omitted).
In this case, Thomas claims that the defendants did not take any steps to correct his medical problems, they refused to get close enough to examine him, and they did not provide him any medical treatment. For purposes of this motion, the defendants concede that Thomas had a serious medical need. They dispute the allegation that they did not provide medical treatment or that they were deliberately indifferent to his medical needs.
The defendants maintain that various references in the record show that they did provide adequate medical care. For instance, Lee treated Thomas on April 30, June 4, November 13, 1996, and on January 9 and 13, 1997. Lee ordered various medical tests and issued a variety of medications to alleviate Thomas' discomfort. He also reviewed Thomas' chart including lab results. Lee ordered medications and referred him to a nephrology specialist. Moreover, the nephrologist recommended a course of treatment which Lee had already prescribed.
In addition, during the same time period, Wright and Carbone provided medical care for Thomas. They ordered medical tests, prescribed courses of treatments, and monitored his laboratory and radiological reports. The defendants maintain that within days of discovering that his hemoglobin and hematocrit levels were low, the medical staff had Thomas admitted to the Albany Medical Center Hospital for treatment. Lastly, the defendants contend that since Lee was not present during the surgeries at the Albany Medical Center, Thomas cannot show that Lee was responsible for any of the physical damage and pain that he suffered as a result of the surgeries in February of 1997.
The defendants contend that they were also entitled to dismissal for lack of personal involvement. Regardless of the merits of this defense, the court has already determined that all of Thomas' claims should be dismissed on other grounds. Consequently, the court need not address the defendants' other defenses and declines to do so.
WHEREFORE, for the foregoing reasons, it is hereby
RECOMMENDED, that the defendants' motion for summary judgment (Dkt. No. 22) be GRANTED since the suit attempts to sue the defendants in their official capacities and the Eleventh Amendment bars such claims; and it is further
RECOMMENDED, that the defendants' motion for summary judgment (Dkt. No. 22) be GRANTED since Thomas has failed to show that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment; and it is further
RECOMMENDED, that the defendants' motion for summary judgment (Dkt. No. 22) be GRANTED since Thomas failed to exhaust his administrative remedies; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation upon the parties by regular mail.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within TEN days. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir.1993); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
Not Reported in F.Supp.2d, 2002 WL 31309190
PRESKA, District J.
On September 30, 1998, plaintiff was involved in an altercation with one of his fellow inmates at Fishkill, Robert Masters. (See Compl. ¶ 1.) On October 1, 1998, a misbehavior report was filed and, at a hearing on October 2, 1998, plaintiff was found guilty of assault, fighting and disobeying a direct order and sentenced to 365 days keep-lock and lost privileges. (See id. ¶ 3, Exs. A, B.) As a result of the incident, plaintiff, Masters and a third inmate, Beckford, were transferred to Fishkill's special housing unit ("SHU"). (See id. ¶ 2.) Plaintiff and Masters were housed in separate units of the SHU; Beckford and Masters were housed in the same unit. (See id. ¶ 4.)
According to plaintiff, because he and Masters had "separations," they were supposed to be in the SHU yard for recreation on alternating days as a way to "avoid confrontations with acknowledged enemies." (Id. ¶ 5 n.C.) However, at some point between October 5 and October 13, 1998, Masters spoke to plaintiff during recreation in the yard. (See id. ¶ 6.) Masters started to approach plaintiff, but Officer DiRubbio, the escort officer on duty, intervened and informed plaintiff that plaintiff was not supposed to have recreation in the outside yard that day. (See id. ¶ 7.) Officer DiRubbio told plaintiff to go inside, saying, "I'll call up[stairs] and they'll give you gallery [indoor recreation]." (Id.)
On October 13, 1998, Officer Giavatto escorted plaintiff to the clinic, while Officers Haight and DiRubbio were on duty in the "bubble." (See id. ¶¶ 8, 9.) En route to the clinic, plaintiff crossed paths with Masters, who was being escorted from the clinic by Officer Torres, (see id. Ex. C), and the two "bumped heads" in the stairwell, (see id. ¶ 10). According to the inmate misbehavior report filed by Officer Giavatto after the incident took place, Masters leapt at plaintiff and struck him several times, pulling plaintiff down the stairs. (See id. Ex. C.) Officers Giavatto and Torres ordered the inmates to stop fighting, but plaintiff and Masters disregarded the order. (See id.) The officers separated the inmates; Officer Torres restrained plaintiff, and Officer Giavatto restrained Masters until another officer arrived on the scene. (See id.) Plaintiff allegedly sustained several minor injuries as a result of this incident for which he received x-rays and pain medication. (See id. ¶ 12, Ex. D.)
Plaintiff filed a grievance on November 2, 1998 relating to the October 13, 1998 incident, contending that defendants failed to ensure that plaintiff and other inmates from whom he was to be kept separated did not cross paths and that Officer Torres used excessive force in restraining plaintiff after the altercation in the stairwell. (See id. ¶ 15, Ex. E. at 1-2.) The November 25, 1998 response from the inmate grievance program superintendent informed plaintiff that Officer Torres denied plaintiff's allegations of excessive force and stated that "[t]he escorting officers and the Central Clinic would not have knowledge of a separation order on inmates. And the officers . . . would not have knowledge that the Central Clinic staff called for both [plaintiff] and inmate Masters at different times (40 minutes apart)." (Id. Ex. E at 3.) The response also stated that "inmate Masters has been transferred." (Id.)
When deciding a motion to dismiss under Rule 12(b) (6), a court must accept as true all well-pleaded factual allegations of the complaint and must draw all inferences in favor of the pleader. See Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993); City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986); Miree v. DeKalb County, 433 U.S. 25, 27 n. 2 (1977) (referring to "well-pleaded allegations"). "`[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.'" International Audiotext Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991)). Dismissal is proper only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994). "The latter principle is to be applied with particular strictness when the plaintiff complains of a civil rights violation." Branum v. Clark, 927 F.2d 698, 705 (2d Cir.1991).
Because plaintiff filed this action pro se, I must judge his pleadings by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972); Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir.1986) (pro se pleadings are given a liberal construction). Nevertheless, proceeding pro se does not altogether relieve plaintiff from the usual pleading requirements. See Kadosh v. TRW, Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) ("work product of pro se litigants should be generously and liberally construed, but [the pro se's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendants' motion ineffectual"); Stinson v. Sheriff's Dep't, 499 F.Supp. 259, 262 (S.D.N.Y.1980) (liberal standard accorded to pro se pleadings "is not without limits, and all normal rules of pleading are not absolutely suspended").
The crux of plaintiff's § 1983 claim is that defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to protect him from assault by other inmates. (See Compl. ¶ 2.) The Eighth Amendment imposes on prison officials "a duty to protect prisoners from violence at the hands of other prisoners." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir.1997) (citing Farmer v. Brennan, 511 U.S. 825, 833 (1994). However, in order to state an Eighth Amendment claim under § 1983, the prisoner must allege actions or omissions sufficient to demonstrate that the officials acted with deliberate indifference to the safety of the prisoner; "mere negligence will not suffice." Hayes v. New York City Dep't of Corrections, 84 F.3d 614, 620 (2d Cir.1996).
A prisoner must demonstrate two elements, one objective and one subjective, in order to make out a claim of deliberate indifference. To satisfy the objective prong of the test, "the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." Farmer, 511 U.S. at 834. That is, the deprivation "must be, in objective terms, `sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991). The standard "contemplates `a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Id. (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir.1990)).
In the instant case, plaintiff's allegations do not establish that he was subjected to a substantial risk of serious harm. With respect to the first altercation between plaintiff and Masters-which resulted in the separation order and the inmates' being placed in SHU-plaintiff himself admits that he "assaulted" Masters, "sending [Masters] to the outside hospital for sutures to his forehead." (Compl. ¶ 1.) Plaintiff includes no mention of any injuries to himself as a result of this first encounter. As for the alleged attempt by Masters to approach plaintiff in the outside recreation area, plaintiff alleges no injuries as a result of this occurrence or as a result of a similar encounter with Beckford at a later date. Finally, with respect to the incident that took place while plaintiff was en route to the clinic, plaintiff suffered only minor injuries, not serious harm. Cf. King v. Dep't of Correction, No. 95 Civ. 3057, 1998 WL 67669, at *5 (S.D.N.Y. Feb. 18, 1998) (cut to plaintiff's face, neck and shoulder requiring 12-13 stitches satisfies objective requirement of Eighth Amendment claim); Byrd v. Abate, 945 F.Supp. 581, 585 (S.D.N.Y.1996) (loss of an eye sufficiently serious deprivation under Eighth Amendment); Knowles v. New York City Dep't of Corrections, 904 F.Supp. 217, 220 (S.D.N.Y.1995) (deep cut to plaintiff's face requiring sixty stitches satisfies objective element of Eighth Amendment claim).
Even without so finding, "[t]he Constitution does not guarantee an assault-free prison environment; it promises only reasonable good faith protection." McGriff v. Coughlin, 640 F.Supp. 877, 880 (S.D.N.Y.1986). Plaintiff has not alleged that such protection was lacking at Fishkill; indeed, his allegations tend to show that the prison took steps to increase the degree of protection offered plaintiff. In sum, plaintiff has failed to satisfy the objective prong of the Farmer inquiry with respect to the conditions of his incarceration. Accordingly, I find that plaintiff has failed to allege a deprivation serious enough to state an Eighth Amendment claim.
Notwithstanding the objective prong, there can be no dispute that plaintiff's claim cannot survive the subjective prong of the deliberate indifference test. The Supreme Court has held that a deliberate indifference claim has a second, subjective component that examines the prison official's state of mind-to be liable, the official must have a sufficiently culpable intent. See Wilson v. Seiter, 501 U.S. 294 (1991). This subjective requirement, in turn, involves a two-tier inquiry. To be liable under the Eighth Amendment, a prison official must "know[] of and disregard[] an excessive risk to inmate health or safety; 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, 511 U.S. at 837; see also Rivera v. Senkowski, 62 F.3d 80, 84-85 (2d Cir.1995) (deliberate indifference requires an objective component that the alleged deprivation is sufficiently serious, and a subjective component that the charged official, at a minimum, knew of and disregarded an excessive risk to inmate health or safety).
Under the strictures of Farmer, plaintiff has failed to allege that defendants had the requisite knowledge that escorting plaintiff to the clinic could expose plaintiff to a substantial risk of serious harm. Plaintiff contends that the officers on duty in the bubble, Haight and DiRubbio, knew of the separation order and failed to determine if plaintiff and Masters had been called to the clinic around the same time. (See Compl. ¶ 8.) Plaintiff further alleges that the escorting officers, Giovatto and Torres, failed to investigate if plaintiff and Masters should have been separated from each other. (See id. ¶ 9.) Accepting plaintiff's allegations as true, defendants could be faulted only for using poor judgment in exposing plaintiff to a potential risk. See Farmer, 511 U.S. at 838 ("an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation," is not actionable under Eighth Amendment); Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) (per curiam) ("[a]n isolated omission to act by a . . . prison guard does not support a claim under § 1983 absent circumstances indicating an evil intent, or recklessness, or at least deliberate indifference to the consequences of his conduct for those under his control and dependent upon him") (citation omitted). The defendants' failure to anticipate a further threat to plaintiff and/or to prevent the attack by Masters in the stairwell was, at most, negligence, and therefore not actionable under the Eighth Amendment. See Hayes, 84 F.3d at 620.
Plaintiff also alleges that Officer DiRubbio was aware that plaintiff did not get along with some other inmate. (See id. ¶ 14 (referring to Beckford, DiRubbio asked plaintiff, "this the guy you got a beef with?"); see also id. ¶ 7 (referring to Masters, plaintiff told DiRubbio "that's the kid I bust in the head" and "you know if I go out there we gonna hafta get it on").) Although plaintiff's statements to Officer DiRubbio arguably might have caused a more conscientious official to investigate the matter further, plaintiff's allegations, at most, impute negligence to Officer DiRubbio.
To maintain a claim for intentional infliction of emotional distress under New York law, a plaintiff must plead and prove the following four elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. See Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993); Bender v. City of New York, 78 F.3d 787, 789 (2d Cir.1996). Courts have relied on the "outrageous conduct" element to set reasonable bounds on this potentially limitless tort, see Howell, 81 N.Y.2d at 121, and have required that the plaintiff allege conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community," Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983).
Construing plaintiff's complaint liberally, plaintiff alleges no facts sufficient to establish that defendants' conduct was "outrageous." Accordingly, I find that plaintiff has failed to state a claim for intentional infliction of emotional distress.
Plaintiff alleges several state law claims against defendants: (1) assault, (2) battery, (3) negligence and (4) negligent infliction of emotional distress. Defendants do not address these claims in their motion to dismiss, and I will not consider them here. Pursuant to 28 U.S.C. § 1367, I decline to exercise supplemental jurisdiction over these pendent claims.
The Clerk of the Court shall mark this action closed and all pending motions denied as moot.
SO ORDERED:
Not Reported in F.Supp.2d, 2000 WL 1159553
