Therefore, the complaint as against MCF should be dismissed.
D. Eighth Amendment Claim
A prisoner's § 1983 claim regarding prison conditions should be dismissed sua sponte if the court is satisfied that the action fails to state a claim upon which relief can be granted. 42 U.S.C.A. § 1997e(c)(1) (1997 Supp.). Accordingly, in the interest of efficiency, plaintiff's complaint against Dr. Vadlamudi is reviewed to determine whether it states a claim, despite defendant's failure to address this issue in his brief.
In order to state a claim under the Eighth Amendment regarding medical treatment, plaintiff must allege that the defendant was deliberately indifferent to a serious medical need. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)(citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976)), cert. denied, 513 U.S. 1154 (1995). Plaintiff's medical need must have been objectively serious, that is, an urgent condition which may produce death, degeneration, or extreme pain. Id. Further, the defendant must know of and disregard an excessive risk to inmate health or safety. Id. An allegation of mere negligence or medical malpractice does not rise to the level of an Eighth Amendment violation. Estelle, 429 U.S. at 105.
Assuming the allegations of the complaint are true, as must be done, plaintiff suffered from extreme pain. However, it is apparent from the face of the complaint that Dr. Vadlamudi treated plaintiff several times, ordered an x-ray to determine if the thumb was broken, and prescribed antibiotics when infection became apparent. Several phrases from the complaint demonstrate the gravamen of plaintiff's cause of action: "if the Doctor had more carefully examined me," (Compl. at 2A), "All I ever wanted was for them to drain my thumb," id., "His conduct was highly unreasonable and he made a gross departure from ordinary care," id., "I have suffered long because of his negligence," id. at 2B. Clearly the complaint sounds in medical malpractice/negligence. Plaintiff disagrees with the way he was treated by Dr. Vadlamudi, and feels that with different treatment he would have suffered less pain. Such disagreement with the method of treatment, however, does not rise to the level of a constitutional violation. Jackson v. Fair, 846 F.2d 811, 817 (1st Cir. 1988)(the Constitution . . . does not guarantee to a prisoner the treatment of his choice). Therefore, plaintiff's complaint should be dismissed for failure to state a claim. See 42 U.S.C. § 1997e(c)(1).
E. Alternative Relief--Declaration of Rights
Defendants seek a declaration of their procedural rights should the complaint not be otherwise dismissed. CRIPA provides that any defendant may waive the right to reply, and that such a waiver does not constitute an admission of the allegations of the complaint. 42 U.S.C.A. § 1997e(g) (1997 Supp.). No relief can be granted to a plaintiff absent a reply, and a defendant may be required to reply should it be found that plaintiff "has a reasonable opportunity to prevail on the merits." Id. In this case, the defendants did not answer the complaint. Rather, they filed the instant motion to dismiss. Should the court disapprove this report and recommendation, it is recommended that the remaining defendant(s) be ordered to reply to the complaint within thirty (30) days. See id.
The complaint should not be dismissed for failure to exhaust administrative remedies, because such exhaustion was not required at the time the complaint was filed. The complaint as against defendant "Marcy Correctional Facility and its Counterparts" should be dismissed on the basis of sovereign immunity. The complaint as against the defendant Dr. Vadlamudi should be dismissed for failure to state a claim upon which relief may be granted. In the alternative, it should be declared that defendants have heretofore waived the right to reply to the complaint, and remaining defendants to the action should answer the complaint within thirty (30) days.
Accordingly, it is
1. The complaint be DISMISSED in its entirety; and
2. In the alternative, any remaining defendants in the action be required to answer the complaint within thirty (30) days.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 121 L. Ed. 2d 696, 113 S. Ct. 825 (1992). Such objections shall be filed with the Clerk of the Court with a copy to be mailed to the chambers of the undersigned at 10 Broad Street, Utica, New York 13501. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989); and it is
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation, by regular mail, upon the parties to this action.
David N. Hurd
United States Magistrate Judge
Dated: October 31, 1997
Utica, New York.
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