Lead Opinion
Pro se plaintiff Charles Nielsen brought suit against defendant Dr. Elaine A. Rabin, among others, under the Fourteenth Amendment for deliberate indifference to his serious medical needs. The District Court (Eric N. Vitaliano, Judge) dismissed the complaint on the ground that Nielsen did not adequately allege an element of his deliberate indifference claim: that Dr. Rabin had a sufficiently culpable state of mind. The court also denied Nielsen leave to amend 25 his complaint because additional allegations in Nielsen’s brief in opposition to Dr. Rabin’s motion to dismiss did not cure the deficiencies in his complaint. This, the court reasoned, showed that amendment would be futile.
We conclude that the allegations in the complaint and the opposition brief, taken together, sufficiently set forth the mental state element of the claim. Accordingly, amendment would not be futile, and Nielsen should have been granted leave to amend. We therefore REVERSE the decision to deny leave to amend and REMAND to the District Court for further proceedings consistent with this opinion.
BACKGROUND
The allegations recited below are taken from the complaint, and we assume they are true for the purposes of this appeal.
Nielsen was beaten by members of the New York City Police Department. His collarbone was fractured, and he sustained a SLAP type labral tear.
After the beating, Nielsen was taken to the emergency room in a wheelchair where he complained of severe pain in his shoulder and back and a broken nose. There, he was evaluated by Dr. Rabin and Dr. Sylvia Tschenyavsky. Even though Nielsen screamed when his shoulder was lightly touched, the doctors reported that his level of pain and discomfort was low: a two out of ten. The doctors diagnosed Nielsen as having “mild bruising” and suggested that he was “malingering” — fabricating or exaggerating his symptoms. No X-rays, CT-scans or MRIs were performed, and no significant treatment was provided. The doctors recommended only that Nielsen be reevaluated within a week.
Nielsen alleged all the above facts in his complaint. Rabin moved to dismiss, and Nielsen filed a brief in opposition, arguing that he had stated a claim for deliberate
The District Court concluded that Nielsen’s complaint did not state a claim for deliberate indifference because he did not adequately allege that Dr. Rabin acted with a sufficiently culpable state of mind. The court also denied leave to amend on the ground that amendment would be futile. The court reasoned that the complaint still would not state a claim even if augmented by the new allegations contained in Nielsen’s brief. Ultimately, the court dismissed Nielsen’s federal claims with prejudice and declined to exercise supplemental jurisdiction over any state law claims. This appeal followed.
DISCUSSION
“Generally, leave to amend should be freely given, and a pro se litigant in particular should be afforded every reasonable opportunity to demonstrate that he has a valid claim.” Matima v. Celli,
The District Court ruled that amendment was futile because, even considering the facts set forth in the opposition to the motion to dismiss, Nielsen did not adequately allege the mental state element of his deliberate indifference claim. We disagree.
“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.” Ashcroft v. Iqbal,
“The plausibility standard is not akin to a probability requirement....” Id. (internal quotation marks omitted). “[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely.”
“Where, as here, the complaint was filed pro se, it must be construed liberally to raise the strongest arguments it suggests. Nonetheless, a pro se complaint must state a plausible claim for relief.” Walker v. Schult,
In this case, the allegations in the complaint and the opposition brief sufficiently set forth the mental state element of his claim — that “the charged official ... act with a sufficiently culpable state of mind,” Salahuddin v. Goord,
Reading the pro se complaint and opposition brief liberally, Nielsen sufficiently alleged the required mental state, especially considering that “intent is rarely susceptible to direct proof.” See Hayden v. Paterson,
In concluding that Nielsen should not be granted leave to file an amended complaint, the District Court relied on medical records proffered by the defendants, which it regarded as refuting Nielsen’s new assertions of statements by police officers inducing deliberate indifference on the part of Dr. Rabin. In so doing, the court inappropriately resolved issues of fact. The court was not entitled to rely on the medical records to conclude that granting leave to amend would be futile.
CONCLUSION
If Nielsen’s complaint were amended to include the allegations in his opposition to the motion to dismiss, the complaint would sufficiently set forth the mental state element of his deliberate indifference claim. Thus, amendment would not be futile. We therefore REVERSE the decision to deny leave to amend and REMAND to the District Court for further proceedings consistent with this 7 opinion.
Notes
. SLAP is an acronym for "Superior Labrum from Anterior to Posterior” — a specific type of labral tear that occurs at the point where the tendon of the biceps muscle inserts on the labrum. See Jonathan Cluett, M.D., SLAP Tear: What is a SLAP tear?, About.Com Orthopedics (updated March 17, 2013), http:// orthopedics.about.com/cs/genertilshoulder/a/ slap.htm.
. The dissent's belief that we do not appreciate that this is a personal claim against Dr. Rabin boils down to an argument that the Federal Rules of Civil Procedure should apply differently based on the financial resources of the parties. The "rules govern the procedure
. The deliberate indifference claim in Salahuddin was based on the Eighth Amendment.
. The dissent also relies on these medical records without appreciating that the complaint relied on the records only to show what treatment Nielsen received at the hospital, not for the truth of their descriptions of his actual condition or complaints of pain. The medical records’ description of his complaints is only
. The dissent’s analogy to a criminal defense attorney tanking his own case highlights the danger of treating allegations that we may suspect and hope are false as "implausible.” This conduct does occur. For example, in State v. Tucker, the defendant's post-conviction relief counsel "deliberately sabotaged” his case because he felt that his client, who had been sentenced to death, deserved to die and should be executed for his crimes.
Dissenting Opinion
Circuit Judge, dissenting:
I respectfully dissent.
It is common ground that Nielsen’s initial complaint was properly dismissed. It alleged that he received minimal medical treatment for serious injuries after police officers informed his treating physicians that Nielsen had attacked two of the officers.
It is implausible that a doctor would neglect a patient at the request of a malicious policeman. In any event, the claim is defeated by a review of the medical file (attached as an exhibit to the declaration of counsel in support of Dr. Rabin’s motion to dismiss). It reflects that Nielsen did not report symptoms indicative of serious injury, that Nielsen was examined by multiple medical professionals, that some treatment was administered, that what was done reflected a medical consensus, and that Nielsen was told to return for follow-up attention. The claim thus becomes that two doctors violated their oaths and that a nurse falsely reported that Nielsen was in a low level of pain at the time of discharge, all at the behest of police officers who told the doctors that their patient should be neglected. This claim, which is absurd, is easily classed as implausible.
The chief error of the majority opinion is to ignore the medical record, which is expressly referenced and relied upon in the complaint — and which may therefore be considered on a motion to dismiss. Chambers v. Time Warner, Inc.,
I
“[A] complaint is deemed to include any ... documents incorporated in it by reference.” Cortec Indus., Inc. v. Sum Holding L.P.,
Nielsen’s complaint invokes the medical record in support of allegations about his injuries at arrival in the emergency room, his treatment, his discharge plan, and his condition at discharge. The complaint quotes the medical record directly twice and refers to it no less than five times. (Quotes and references are in the margin.
The medical record confirms that Nielsen’s claims are implausible. He arrived at the emergency room of Elmhurst Hospital
According to her notes, Dr. Rabin approached Nielsen as he slept a few hours later, and he screamed when she tapped him on the shoulder to wake him up. Nielsen complained of lower back pain and reported that the police had assaulted him “with fists all over.” Dr. Rabin found no bruising on Nielsen’s back and no evidence of a spinal injury; she could not determine an area of localized tenderness; and she found that Nielsen had full range of motion. Dr. Rabin’s assessment was lower back pain, possibly mild bruising, or malingering.
Shortly after, a second physical examination was done by Dr. Sylvia Tschenyav-sky, who recorded her findings on the chart. Nielsen’s neck and face were non-tender. Nielsen’s “[n]ose appears with 2cm abrasion on nasal bridge no swelling. The mucosa and septum are without evidence of trauma. No septal hematoma noted. There is no rhinorrhea.” Nielsen’s hearing was okay. (He claims he suffered hearing loss.) Heart rate and rhythm, and respiratory rate and effort were all normal. A musculoskeletal examination disclosed no gross deformities, full range of motion, no edema, no signs of trauma to the back, and no paraspinal tenderness. Dr. Tschenyavsky diagnosed lower back pain.
Nielsen was directed to follow up with the Diagnostic Clinic one week later at the Rikers Island Correctional Facility. When he was discharged at 3:30am, nurse Marie Fleurantin recorded that Mr. Nielsen was alert and oriented, and that he had a pain level of two on an ascending scale of one to ten. That medical record forecloses a finding that Dr. Rabin had the mental state that amounts to deliberate indifference: actual awareness and disregard of “a substantial risk that serious inmate harm will result.” See Majority op. at 63. The risk of “serious inmate harm” must be dire: “a condition of urgency, one that may produce death, degeneration, or extreme pain.” Hathaway v. Coughlin,
Nielsen’s allegation that he “complained of severe pain” is contradicted by the nurse’s note that at discharge his pain level was at the low end of the spectrum. Nielsen may have screamed when he was tapped to rouse him from sleep, but that startled reaction does not support a plausible claim that Nielsen was in “severe pain.” There is no indication that Nielsen screamed (or otherwise expressed discomfort) during two physical examinations in which the doctors palpated his face, neck, chest, back, and shoulders.
Nielsen’s claim is not rendered plausible by the police officers’ alleged advice to Dr. Rabin that Nielsen “should be ignored and left alone.” Dr. Rabin and another doctor and nurses all examined Nielsen and treated him. And Dr. Rabin’s discharge plan prescribed re-evaluation in a week’s time. We need not consider whether, in the circumstances, the medical staff should have taken X-rays, or done a CT-scan or MRI;
II
The majority opinion reflects two fallacies that are indulged with some frequency in our opinions.
First, there is insufficient appreciation that this section 1983 action is a personal claim against the individual assets of Dr. Rabin, and that the defense costs of such a claim alone can wipe out a college fund or equity on a home. See, e.g., Kentucky v. Graham,
Second, the majority’s ruling on plausibility unintentionally implies a certain disrespect for the ethics of doctors and nurses. The majority deems it plausible that each of these medical professionals (and all of them together) would allow a patient’s suffering to go unabated at the say-so of policemen expressing hostility to a person in custody. We would never deem such dereliction plausible if alleged against a lawyer. An analogy illustrates the point.
It often happens that criminal defendants who are convicted accuse their lawyers of being in league with the prosecutor to sabotage their defense.
The betrayal of a client seems to us (as lawyers and judges) wholly implausible because we internalize certain professional values. I would extend the same respect to the medical and nursing profession in this analogous case.
* * *
The complaint was properly dismissed, and the district court had no duty to allow an amendment that would be futile for the reasons I have outlined.
. See Compl. at 4 ("The Police Officer’s [sic] stated to said Doctor’s [sic] that I had ‘beat up two police officer's [sic].' ... [No] significant testing was performed and no significant treatment was provided at the time.”).
. Nielsen alleged a violation of his Fourteenth Amendment due process rights because the alleged withholding of medical attention took place during his pretrial arrest and detainment. The claim is analogous to an Eighth Amendment claim of deliberate indifference, and is governed by the same body of law.
. Although leave to amend should be granted to a pro se plaintiff at least once, this applies only "when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank,
. "[T]here were multiple abrasions in my facial areas as noted in the medical report.... The defendant Doctor’s [sic] then released me to the custody of the New York City Police Department with a statement that I was alert and oriented, and my level of pain and discomfort was at’2/10' (indicating a low level of pain in their opinion) and I was ambulatory. Their only discharge plan was for me to be reevaluated within one week. This despite the fact that they stated in their triage report that I screamed when lightly touched when my shoulder was touched. Th[ei]r diagnosis was that I had merely sustained mild bruising and there was no evidence of a spinal injury, suggesting I was simply 'MALINGERING.' " Compl. at 4.
. See, e.g., United States v. Smith,