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McMillian v. Dewell


May 10, 2006


The opinion of the court was delivered by: Thomas J. Mcavoy, Senior United States District Judge



The Clerk of the Court has sent Plaintiff Herman Carlee McMillian's pro se complaint, together with an application to proceed in forma pauperis to the Court for its review. Dkt. Nos. 1, 2.*fn2

In his pro se complaint, Plaintiff claims that he sustained injury and damages as a result of a surgical procedure performed by Dr. Dewell at Alice Hyde Medical Center in 2000. Dkt. No. 1 at 4-6. At the time of the surgery, it appears that plaintiff was incarcerated at Clinton Correctional Facility. Id.


Consideration of whether the court should permit a pro se plaintiff to proceed in forma pauperis is a two-step process. First, the court must determine whether the plaintiff may proceed with the action without prepaying, in full, the statutory filing fee. The court must then consider whether the causes of action that the plaintiff has set forth in his complaint are, among other things, frivolous or malicious or if they fail to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B).

A. Plaintiff's in forma pauperis application

The Court finds that plaintiff has satisfied the first test since his affidavit sets forth sufficient economic need. See Dkt. No. 2.

B. Allegations in Plaintiff's complaint

The Court must now consider whether it should dismiss this case pursuant to 28 U.S.C. § 1915(e), which directs that, when a plaintiff seeks to proceed in forma pauperis, "(2) . . . the court shall dismiss the case at any time if the court determines that -- . . . (B) the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, the court has a responsibility to determine that a complaint may be properly maintained in this district before it may permit a plaintiff to proceed with an action in forma pauperis. See id.

In light of Plaintiff's pro se status, the Court has examined his complaint carefully to determine whether a basis exists for this Court to exercise jurisdiction over his claims. For the reasons that follow, the Court dismisses plaintiff's complaint as frivolous and for failure to state a claim upon which relief may be granted.

1. Statute of limitations

In his a complaint, plaintiff's claims against the defendants relate to conduct which purportedly occurred in 2000. Plaintiff filed this action on or about January 9, 2006. Dkt. No. 1 at 11. Since the applicable statute of limitations for § 1983 actions arising in New York requires that a plaintiff bring his claims within three years, see Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995), Plaintiff's claims against the defendants that arose in 2000 are time-barred.

2. Res judicata

"Under the doctrine of res judicata, or claim preclusion, '[a] final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.' "St. Pierre v. Dyer, 208 F.3d 394, 399 (2d Cir. 2000) (quoting Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed. 2d 103 (1981)). "In determining whether a second suit is barred by this doctrine, the fact that the first and second suits involved the same parties, similar legal issues, similar facts, or essentially the same type of wrongful conduct is not dispositive." Maharaj v. Bankamerika Corp., 128 F.3d 94, 97 (2d Cir. 1997). "Rather, the first judgment will preclude a second suit only when it involves the same 'transaction' or connected series of transactions as the earlier suit ····" Id.

Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 400 F.3D 139, 141 (2d Cir. 2005).

In 2000, plaintiff commenced an action against defendants Dr. Dew and Alice Hyde Medical Center alleging injuries sustained after surgery performed on plaintiff by Dr. Dew*fn3 at Alice Hyde Hospital in 2000. See McMillian v. Dew, No. 9:00-CV-1890 (LEK)(GJD) ("McMillian I"). McMillian I was dismissed on the merits because (1) plaintiff failed to allege any state action on the part of the defendants*fn4 and (2) plaintiff alleged claims for medical malpractice, or negligence, which are not actionable under Section 1983. See id., Dkt. No. 19. Judgment was entered for the defendants in McMillian I. Dkt. No. 20. Since the present action involves the same transactions which formed the basis of McMillian I, and McMillian I was dismissed on the merits, the present action is barred by res judicata.

3. Negligence not actionable

This action is brought pursuant to 42 U.S.C. § 1983 which provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.... "Section 1983 itself creates no substantive rights, [but] ... only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir.1993) (citing Oklahoma City v. Tuttle, 471 U.S. 808 (1985)). An essential element of a § 1983 claim is that "the conduct complained of must have deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States." Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir.1994) (citing Parratt v. Taylor, 451 U.S. 527, (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986)); see also Sykes, 13 F.3d at 519 ("to prevail on a section 1983 claim, the plaintiff must show that the defendant's conduct deprived him of a federal right.").

Plaintiff does not state a claim that is actionable under § 1983. At best, Plaintiff states a claim for negligence or medical malpractice, which does not rise to the level of a constitutional violation. See Daniels, 474 U.S. at 329-332 (negligence not actionable under § 1983); Hemmy v. Fields et al., No. 95-CV-1202, slip op. at 3 (N.D.N.Y. Sept. 5, 1995) (Scullin, J.) (negligence is not actionable under § 1983) (citations omitted). "Allegations of medical malpractice or negligent failure to provide treatment will not suffice to support an action under 42 U.S.C. § 1983." Sha v. Memorial Sloan-Kettering Cancer Center, No. 99 Civ. 3233, 2000 WL 176883, at *2 (S.D.N.Y. Nov. 30, 2000) (citing Owens v. Bellevue Hospital Center, No. 95-9016, 1996 WL 134227, at *1 (2d Cir. Mar. 25, 1996) (unpublished disposition). Section 1983 claims are "not to be used to duplicate state tort law at the federal level." Sha, 2000 WL 176883, at *2 (citation omitted); see also Obunugafor v. Borchert, No. 01 CIV. 3125, 2001 WL 1255929, at *2 (S.D.N.Y. Oct. 19, 2001) (same).*fn5

C. Conclusion

For all of the above-stated reasons, plaintiff's complaint is subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim upon which relief may be granted.*fn6

WHEREFORE, having reviewed Plaintiff's complaint, the applicable law, and for the reasons stated herein, it is hereby

ORDERED,that this action is DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and for failure to state a claim upon which relief may be granted; and it is further

ORDERED,that Plaintiff's application for leave to proceed in forma pauperis is DENIED as moot; and it is further

ORDERED,that the Clerk of the Court serve a copy of this Order on Plaintiff; and it is further

CERTIFIED,that any appeal from this matter would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3).

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