The opinion of the court was delivered by: SHARON E. GRUBIN
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
SHARON E. GRUBIN, United States Magistrate Judge:
Proceeding pro se and in forma pauperis, plaintiff brings this action for compensatory and punitive damages pursuant to 42 U.S.C. § 1983, alleging that defendants violated his constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution in connection with sinus surgery performed on November 14 or 15, 1990. Pending is the motion of defendants Bellevue Hospital ("Bellevue"), New York City Health and Hospitals Corporation ("NYCHHC") and New York City Department of Corrections ("NYCDOC") to dismiss the claims against them pursuant to Fed. R. Civ. P. 12(b)(6). "Dr. John Doe," also named as a defendant, has not been served with the complaint. For the following reasons, I respectfully recommend the motion be granted in part and denied in part.
According to the complaint, while a pretrial detainee at the Manhattan House of Detention, plaintiff was taken to the Ear, Nose and Throat Clinic at Bellevue for sinus surgery. A clinic surgeon, defendant Dr. John Doe, instead of operating where indicated by a CAT scan that had been taken of plaintiff's nasal area, "cut blindly into plaintiff's nasal passages" without using the CAT scan and operated on the wrong sinuses. Complaint, Counts I, II. At the time of the filing of the complaint, plaintiff stated that he could not breathe out of his nose properly due to continued infections, that he suffered from "nose bleeds, pus filled sinuses, . . . eye blinding headaches, sinus pressure, nasal drip/discharges, and blood clots in nasal tissues" and that he was scheduled to receive corrective surgery at Auburn Correctional Facility to which he had been transferred. Id., P IV-A and Relief P 1.
Plaintiff's complaint contains four counts. Count I, alleging gross negligence and other causes of action against Dr. John Doe, also claims liability of Bellevue "for said defendant Dr. John Doe, for the hiring of an incompetent doctor, who could not perform a simple non-complex operation to plaintiff's nasal sinuses." Complaint at 1A. Count II alleges liability of Bellevue because Dr. John Doe
was acting under the policies of Bellevue Hospital and authority . . . [and] Bellevue Hospital should have made an inquiry into defendant Dr. John Doe, to see if he was qualified to perform said surgery properly. Because Bellevue Hospital let an incompetent doctor perform surgery to plaintiff nasal sinuses, which resulted in the cutting of the wrong sinuses in plaintiff's nose. Bellevue Hospital knew of said surgery to be performed on plaintiff and therefore should be held libel under the malpractice rule, gross negligence and failure to protect plaintiff from said harm.
Id. Count III is against NYCHHC alone, alleging as follows:
The City of New York, Health, Hospital corporation is also negligent in plaintiff's pain and suffering, being the over seer of all of the city owned hospitals, their job is to make sure that proper care and medical attention is given to all patients who enter these city hospitals by the medical staff that run these city owned hospitals. They're also responsible for the hiring and placement of graduate and seasoned doctors, throughout the city owned hospitals.
Id. at 2B. Count IV is against NYCDOC alone and pertains to events subsequent to the surgery. Plaintiff alleges that after his operation an appointment was made with another physician at Kings County Hospital "to correct the deliberate indifference caused by the defendant Dr. John Doe at Bellevue Hospital," but that prior to his appointment, NYCDOC transferred plaintiff to an upstate prison facility, making him unable to keep that appointment. He charges NYCDOC with gross negligence and deliberate indifference in violation of the Fourteenth Amendment for this transfer.
On a motion to dismiss for failure to state a claim upon which relief can be granted, the court accepts the factual allegations in the complaint as true and draws all reasonable inferences in favor of the plaintiff. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1161 (1993); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993) and 113 S. Ct. 1412 (1993); Frazier v. Coughlin, 850 F.2d 129, 129 (2d Cir. 1988). A complaint should not be dismissed for failure to state a claim unless, "after viewing plaintiff's allegations in this favorable light, 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Walker v. City of New York, 974 F.2d at 298 (quoting Ricciuti v. New York City Transit Authority, 941 F.2d 119, 123 (2d Cir. 1991)). Moreover, pro se complaints are to be liberally construed. See Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28 (2d Cir. 1986).
A claim under § 1983 for inadequate medical treatment is governed by the standards of the Eighth and Fourteenth Amendments to the Constitution, violation of which may be shown by prison officials' "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976).
A challenge to a decision based on medical judgment generally does not implicate the Eighth Amendment's cruel and unusual punishment clause but constitutes, at most, a medical malpractice claim which may be cognizable in a state court but not in a federal § 1983 action. Estelle v. Gamble, 429 U.S. at 106-07; Arroyo v. Schaefer, 548 F.2d 47, 49-50 (2d Cir. 1977); Church v. Hegstrom, 416 F.2d 449, 451 (2d Cir. 1969); Kaminsky v. Rosenblum, 737 F. Supp. 1309, 1316 (S.D.N.Y. 1990), appeal dismissed, 929 F.2d 922 (2d Cir. 1991). There is no right to the treatment of one's choice, McCullough v. Scully, 784 F. Supp. 115, 117 (S.D.N.Y. 1992); Harding v. Kuhlmann, 588 F. Supp. 1315, 1317 n.8 (S.D.N.Y. 1984), aff'd, 762 F.2d 990 (2d Cir. 1985), and "mere negligence in the treatment of a prisoner's physical condition, or claims based on differences of opinion over matters of medical judgment, fail to rise to the level of a § 1983 violation," Sloan v. Zelker, 362 F. Supp. 83, 84 (S.D.N.Y. 1973) (quoting Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972)); see Gill v. Mooney, 824 F.2d at 195.
Furthermore, while a municipality and its agencies are subject to liability under § 1983, such liability cannot result merely from an improper or even unconstitutional act of its employees under a theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 690-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Rather, the conduct for which liability is sought to be imposed must have been taken pursuant to a municipality's "official policy." This "official policy" requirement was found by the Supreme Court in Monell on analyses of the language of § 1983 itself (imposing liability on a person who "subjects or causes to be subjected" someone to a deprivation of federal rights) and of the legislative history of the provision (showing Congress doubted its power to impose liability on a municipality to control the conduct of others as opposed to itself). It was intended "to distinguish acts of the municipality from acts of employees of the municipality, and thereby make clear that municipal liability is limited to action for which the municipality is actually responsible. . . . that is, acts which the municipality has officially sanctioned or ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) (emphasis in original; footnote omitted). A single act of a ...