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TOMARKIN v. WARD

March 11, 1982

Robert TOMARKIN, Plaintiff,
v.
Benjamin WARD, in his Official Capacity as Commissioner of Corrections, State of New York, Walter Fogg, Individually and in his Official Capacity as Superintendent, Green Haven Correctional Facility, "John" Smith, Individually and in his Official Capacity as Superintendent, Attica Correctional Facility, Vito Tennullo, Individually and in his Official Capacity as Superintendent, Fishkill Correctional Facility, "John" Dalsheim, Individually and in his Official Capacity as Superintendent, Ossining Correctional Facility, St. Francis Hospital; James R. MacMillian, Lt. "John" Tanner, Capt. Hyman Sperbeck, Sgt. "John" Hughes, "John" Albritton, "John" LaPierre, "John" Spano, Van Johnson, all individually and in their respective capacities as employees of the New York State Department of Corrections; Dr. Benjamin Dyett, Dr. "John" Rigney, individually and in their respective capacities as agents of New York State Department of Corrections, Defendants



The opinion of the court was delivered by: TENNEY

Plaintiff Robert Tomarkin seeks monetary and declaratory relief from various officials and employees of the New York State Department of Correctional Services, and from St. Francis Hospital ("the Hospital"), a private institution, for injuries he allegedly sustained while incarcerated at various state correctional facilities. Tomarkin brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his rights under the Eighth and Fourteenth Amendments to the Constitution. The Hospital has moved for judgment on the pleadings, and the individual defendants have moved for summary judgment. For the reasons discussed below, the Hospital's motion for judgment on the pleadings is granted, and defendants' motion for summary judgment is granted in part and denied in part.

Tomarkin was convicted of grand larceny in Supreme Court, New York County on October 2, 1974 and sentenced to an indeterminate term not to exceed five years. He was incarcerated first at the Greenhaven Correctional Facility, for the two weeks prior to October 30, 1974; from there he was transferred to the Ossining Correctional Facility, and then to the Clinton, Greenhaven, Fishkill, Greenhaven, Attica, and Ossining Correctional Facilities, in turn. He was released on January 19, 1978.

 Tomarkin's complaint alleges that during his incarceration he was denied adequate medical treatment on various occasions, including one incident involving a heart attack; that he was assaulted at various times by corrections officers; that he was assaulted by another inmate, and that prison authorities refused to comply with court orders that he be provided adequate medical care and that he be released for medical treatment. Various corrections officers, doctors, and superintendents of the correctional facilities at which the plaintiff was incarcerated are named as defendants in the complaint. The complaint also names the Hospital as a defendant in connection with plaintiff's claims of inadequate medical treatment.

 The Hospital's Motion

 The Hospital has moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure ("Rule") 12(c), on the grounds that plaintiff has failed to state a claim on which relief can be granted. *fn1" On a motion for judgment on the pleadings for failure to state a claim, the Court must assume the factual allegations of the non-moving party to be true, and resolve all inferences in his favor. *fn2" 5 C. Wright & A. Miller, Federal Practice and Procedure § 1368, at 691 (1970); see National Metropolitan Bank v. United States, 323 U.S. 454, 456-57, 65 S. Ct. 354, 355, 89 L. Ed. 383 (1945); George C. Frey Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d Cir. 1977). The complaint should not be dismissed "unless 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, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957).

 Applying these principles to plaintiff's claim against the Hospital, it is clear that the Hospital is entitled to a judgment on the pleadings. Plaintiff alleges that in early January 1976, he suffered a heart attack. He was taken to the Hospital for diagnosis and treatment of his chest pains. He makes the following allegations with respect to the Hospital in his complaint:

 
The diagnosis and treatment at St. Francis Hospital was wholly incorrect and improper. St. Francis Hospital was negligent in diagnosing plaintiff's condition as pleurisy when same was a heart attack.
 
As a result of the foregoing negligence by defendant St. Francis Hospital, plaintiff was caused to suffer mental, physical and emotional injuries, some of which are permanent.

 Assuming the truth of plaintiff's claim that the Hospital misdiagnosed and consequently mistreated his illness, plaintiff still fails to state a claim against the Hospital. " "Mere negligence in giving or failing to supply medical treatment alone will not suffice' to support an action under § 1983." United States ex rel. Hyde v. McGinnis, 429 F.2d 864, 866 (2d Cir. 1970), quoting Church v. Hegstrom, 416 F.2d 449, 451 (2d Cir. 1969). As the Supreme Court explained in Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292, 50 L. Ed. 2d 251 (1976):

 
(A) complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.

 In his complaint, plaintiff has not alleged deliberate indifference to his medical needs on the part of the Hospital; more important, he has not alleged any specific acts from which such indifference could be inferred. Compare Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977). Thus, plaintiff has failed to state a claim against the Hospital.

 Motion for Summary Judgment

 The individual defendants in this action have all moved for summary judgment. "(Properly) employed, summary judgment is a useful device for unmasking frivolous claims and putting a swift end to meritless litigation." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980). However, granting summary judgment is appropriate only when there is no genuine issue as to any material fact, and the substantive law is in favor of the movant. 6 Moore's Federal Practice P 56.15(1.-0), at 56-391 to -395 (2d ed. 1981). On a motion for summary judgment, the court " "cannot try issues of fact; it can only determine whether there are issues to be tried.' " SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978), quoting American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967). The party seeking summary judgment has the burden of demonstrating the absence of any material factual issue in dispute. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970); Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975).

 In considering a motion for summary judgment, the Court must resolve ambiguities and draw all reasonable inferences in favor of the party against whom the summary judgment motion is made. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Heyman v. Commerce and Indus. Ins. Co., supra, 524 F.2d at 1320. However, the adverse party "may not rest upon mere conclusory allegations or denials. The party opposing the motion must set forth "concrete particulars' and cannot make a secret of his evidence, holding it close to his chest until the trial." SEC v. Research Automation Corp., supra, 585 F.2d at 33. He may not merely assert conclusions without supplying supporting arguments or facts in opposition to the motion. Id.; see Donnelly v. Guion, 467 F.2d 290, 293 (2d Cir. ...


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