LENNOX STEWART, Plaintiff, -against- CITY OF NEW YORK; SANDRA SALLUSTIO, MD; JACOB ISSERMAN, MD, Defendants.
14-CV-5720 (WFK)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK
October 9, 2014
WILLIAM F. KUNTZ, II, United States District Judge
NOT FOR PUBLICATION
On September 29, 2014, pro se Plaintiff Lennox Stewart, currently incarcerated at Attica Correctional Facility, filed this
FACTUAL BACKGROUND
Plaintiff alleges that on or about July 23, 2013, he slipped and fell “in a large puddle of water” “while housed in Housing Unit 5 Main on Rikers Island.” Dkt. 1 (“Compl.“) at 4. Plaintiff further alleges that Dr. Sallustio and Dr. Isserman, both employed at Elmhurst Hospital, failed to order an MRI exam of Plaintiff‘s back and thus committed negligence and medical malpractice. Id. Plaintiff also alleges that he received physical therapy for eight weeks, but that he “continues to endure undue physical pain” and damage to his back, and has not received an MRI exam. Id. Plaintiff seeks $10 million in damages. Id. at 5.
In reviewing the Complaint, the Court is mindful that Plaintiff is proceeding pro se and that his pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980); accord Erickson v. Pardus, 551 U.S. 89, 94 (2007); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). A complaint, however, 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 (2007). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Id.
The Court must screen and dismiss a civil complaint brought by a prisoner against a governmental entity or its agents if the complaint is “frivolous, malicious, or fails to state a claim upon which relief may be granted.”
DISCUSSION
“Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). Thus, to maintain an action under
A. Doctors Sallustio and Isserman
Plaintiff names Dr. Sallustio and Dr. Isserman and alleges that they failed to order an MRI exam of his back as part of his medical treatment. As a preliminary matter, these doctors may be found to be acting under color state law. See Flagg v. Yonkers Sav. & Loan Ass‘n, 396 F.3d 178, 186 (2d Cir. 2005) (“Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.“) (internal quotation marks omitted). “[C]ourts have found state action when private parties perform such sovereign functions as medical care for prison inmates,” Grogran v. Blooming Grove Volunteer Ambulance Corps, -- F.3d -- , 2014 WL 4799397, at *4 (2d Cir. Sept. 29, 2014) (citing West v. Atkins, 487 U.S. 42, 54-57 (1988)). Assuming for the purpose of this Order that these doctors provided medical care to Plaintiff while he was incarcerated, Plaintiff appears to satisfy the first prong of a § 1983 claim.
Nonetheless, Plaintiff fails to demonstrate that he was deprived of a constitutional or federal right. It is well-settled that Plaintiff is not entitled to the medical treatment of his choice. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986) (disagreement with the type of medical care provided is insufficient to state a constitutional claim); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“[M[]ere disagreement over the proper treatment does not create a constitutional claim“). “[N]egligence, even it if constitutes medical malpractice, does not, without more, engender a constitutional claim.” Chance, 143 F.3d at 703. Further, deliberate indifference “entails more than mere negligence; the risk of harm must be substantial and the official‘s actions more than merely negligent.” See Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). Plaintiff‘s allegation that he was denied an MRI examination does not rise to the level of a constitutional violation, because he fails to show that these Defendants were deliberately indifferent to a serious medical condition. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). Therefore, the Complaint is dismissed as to Doctors Sallustio and Isserman for failure to state a claim pursuant to
B. City of New York and Office of the Comptroller
To sustain a claim for relief under
To the extent Plaintiff seeks to sue the Office of the Comptroller, see Compl. at 3, ¶ III B, that claim also fails. Section 396 of the New York City Charter provides that “[a]ll actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.”
CONCLUSION
For the reasons stated above, Plaintiff‘s Complaint is dismissed for failure to state a claim pursuant to
SO ORDERED.
//S/ Judge William F. Kuntz, II
WILLIAM F. KUNTZ, II
United States District Judge
Dated: October 9, 2014
Brooklyn, New York