Bennett v. Care Correction Solution Medical ContracterBennett v. Care Correction Solution Medical Contracter
- Reporters:
- ,
- Before:
- Judith C. McCarthy
Plaintiff Donald Mack Bennett, proceeding pro se, commenced this action pursuant to
violation of his rights under the Eighth Amendment.3 (Docket No. 9 (“Am. Compl.“)). The Court dismissed sua sponte all of Plaintiff‘s claims that accrued prior to May 5, 2012 as time-barred. (Docket No. 7 at 2-3). Plaintiff filed his Amended Complaint on August 5, 2015, and seeks $262,500,000 in total damages, including punitive damages.4 (Am. Compl. at 6). Defendants moved to dismiss the Amended Complaint pursuant to
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
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 postponed 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).8 There is no information regarding why Plaintiff was taking Digioxon [sic] and what damages, if any, he suffered from this alleged error. Plaintiff further makes claims of medical malpractice against Defendant Dr. Curbelo. (Id. at 5(III)).
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
II. LEGAL STANDARDS
A. Motion to Dismiss Standard
Under
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).
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);10 see also Erickson v. Pardus, 551 U.S. 89, 94 (2007); Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (noting that pro se complaints require “special solicitude” and the court should interpret the complaint to raise the strongest claims). “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.” James, 2013 WL 5730176, at *2. (citations and internal quotation marks omitted).
On a
Corp., 482 F.3d 184, 191 (2d Cir. 2007)).
B. Standard for Eighth Amendment Claims
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.
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
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
III. DISCUSSION
A. Analysis
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.
1. Complaints Regarding 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
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 “accumulated” [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
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
2. Complaints Regarding Delay in Surgery
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).
i. Objective Element
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
ii. Subjective Element
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,
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.14 (Id.). Plaintiff also complained that Dr. Ulloa “never had me gone [sic] to my last scheduled [sic] on 4-20-15 being he said I was going home which I was not,” but does not state what had been scheduled for April 20, 2015—whether it was surgery, a cyst-related appointment, or something else entirely.15 (Id.) On May 22, 2015, Plaintiff received and signed the response to his grievance. (Docket No. 44-6 at 9). The response advised Plaintiff that his grievance was denied because it was
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
Therefore, Plaintiff has failed to satisfy the subjective element of an Eighth Amendment claim, and his case must be dismissed.
3. Claims Against Westchester County
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.
4. Federal Claims Against Defendant N.P. Kelly
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
B. State Law Claims
The Court interprets Plaintiff‘s claims for negligence, malpractice, negligent infliction of emotional distress and defamation—both slander and libel18—as state law claims.19 These claims do not present a federal question, nor does Plaintiff allege diversity of citizenship with respect to any of the Defendants. See
IV. CONCLUSION
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.
Dated: March 24, 2017
White Plains, New York
SO ORDERED:
JUDITH C. McCARTHY
United States Magistrate Judge