The opinion of the court was delivered by: McMAHON, District Judge.
DECISION AND ORDER GRANTING MOTION TO DISMISS COMPLAINT
Plaintiff, who was at all relevant times an inmate in the custody of
the New York State Department of Correctional Services ("DOCS")*fn1
brings this action against defendants, seeking monetary relief in the
amount of five hundred thousand dollars, for the alleged deliberate
indifference to a serious medical condition during the period September
27, 1999 through the spring of 2000, while he was incarcerated at Sing
Sing Correctional Facility ("Sing Sing").
Defendants move to dismiss this complaint on the grounds that: (1)
plaintiff has failed to state a claim against Doctor Maw of deliberate
indifference to serious medical needs upon which relief can be granted;
(2) plaintiff has failed to allege the personal involvement of defendants
Superintendent Greiner and Doctor Perilli in the alleged constitutional
violation; and (3) defendants are entitled to qualified immunity. All
grounds asserted have merit.
Plaintiff alleges that on or about September 27, 1999, while
incarcerated at Sing Sing, he was experiencing severe pain in his lower
back which radiated into his buttock and lower leg. Plaintiff was issued
Motrin for his pain. See, Complaint, Section IV. According to plaintiff,
he continued to experience this pain and continued taking his pain
medication. Id. During this period of time, plaintiff saw the physician's
assistant on numerous occasions and had x-rays taken. Id. He also saw
Dr. Maw on one occasion and received physical therapy. Id.
Despite the continuous medical care he received, plaintiff claims that
defendants denied him adequate medical treatment and were deliberately
indifferent to his pain and suffering and serious medical needs. In
support of his claim, plaintiff states that when Doctor Maw examined
him, he advised him that there was nothing wrong with his back and that
the pain he was experiencing was being caused by muscle spasms. Id.
Doctor Maw submitted plaintiffs name for physical therapy which plaintiff
received. Id. Plaintiff also alleges that he wrote to Doctor Perilli, the
head physician at Sing Sing, who replied that there was nothing he could
do unless plaintiff could show that he had a disc problem. Id. According
to plaintiff, he filed a grievance regarding his medical needs which was
denied and subsequently affirmed on appeal by Superintendent Charles
PLAINTIFF FAILS TO STATE A DELIBERATE INDIFFERENCE TO
SERIOUS MEDICAL NEED CLAIM AGAINST DR. MAW
In determining a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the court must accept the
factual allegations in the complaint as true. Hughes v. Rowe, 449 U.S. 5,
10, 101 S.Ct. 173, 176,
66 L.Ed.2d 163 (1980), see also, Watson v. McGinnis, 964 F. Supp. 127,
129 (S.D.N.Y. 1997). Pro se complaints, like the one involved here, "are
held `to less stringent standards than formal pleadings drafted by
lawyers . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66
L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)). Thus, a pro se complaint "should
not be dismissed for failure to state a claim 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." 449 U.S. at 10, 101 S.Ct. at
176. See also, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995).
However, dismissal under Rule 12(b)(6) is proper "if the complaint
lacks an allegation regarding an element necessary to obtain relief . . ."
3 Moore's Federal Practice, § 12.34[a], pg. 12-72 (1997).
Thus, the duty to liberally construe a plaintiffs complaint is not the
equivalent of a duty to re-write it for him. Id. at § 12.34[b],
As detailed below, plaintiff has failed to allege facts tending to
establish that the defendants were deliberately indifferent to his
medical needs. Therefore, plaintiff fails to state a claim for an ...