The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Brown ("Plaintiff' or "Brown") brings this action under 42 U.S.C. § 1983, alleging deprivation of medical treatment in violation of his Eighth Amendment protection from cruel and unusual punishment. Plaintiff brings the instant action against Defendants New York City Health & Hospitals Corporation, The City of New York (together, the "Municipal Defendants"), Dr. John Pierre, and Dr. Gavin. In addition, Plaintiff has asserted a claim against Dr. Mihye Choi, although Dr. Choi was not listed as a Defendant in the caption of Plaintiff's Amended Complaint ("Complaint"). The Municipal Defendants and Dr. Choi move pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure to dismiss the Complaint, or in the alternative for summary judgment. The Court has jurisdiction of this case pursuant to 28 U.S.C. § 1331.
The Court treats the instant motion as one pursuant to Rule 12(b)(6). The Court has thoroughly considered all arguments and relevant submissions related to the matter. For the following reasons, Defendants motion to dismiss the Complaint is granted. Plaintiff will, however, be afforded one final opportunity to replead his claim as against the Municipal Defendants.
The following material facts, as alleged in the Complaint, are taken as true for purposes of this analysis. On December 25, 2001, Plaintiff Brown injured his hand while trying to protect himself during a knife fight.*fn1 (Compl. § IV.) After receiving treatment at Jamaica Hospital, he was transferred, via Rikers Island, to Bellevue Hospital.*fn2 (Id.) After four months of rehabilitation on Plaintiff's hand, the "hand dr." at Bellevue, later identified by Plaintiff as Dr. Lemen (id. § IV-A), told Plaintiff he needed hand surgery, however, Bellevue Hospital neglected to perform the operation. (Id. § IV.) On February 18, 2003, Plaintiff informed a Dr. Gavin of pain in his hand. (1d.) Subsequently, Bellevue performed an operation on Brown's right fifth finger, during which doctors re-set Brown's finger with metal pins and placed his hand in a cast. (Id.) Brown was told to return in six weeks to have the pins and cast removed. (Id.) After Dr. Gavin left for military duty, Dr. John Pierre was assigned to care for Brown. (Id.)
Nine weeks after surgery, Plaintiff developed pain in his hand, told Dr. Pierre of the pain, and asked the doctor to smell his hand. (Id. § IV-A.) Dr. Pierre said the situation was not an emergency. (Id.) The following day, Plaintiff asked Dr. Pierre again to smell his hand, but Dr. Pierre refused. (Id.) Plaintiff's family contacted a lawyer, Dale Wilker, who contacted Dr. Pierre on Plaintiff's behalf. (Id.) Subsequently, Brown was sent to urgent care and had the cast removed. (Id.) Doctors found that the pins had gone through the skin of the finger, and that the finger was infected badly and was exuding pus. (Id.) The next day, April 25, 2003, Dr. Pierre sent Plaintiff to Bellevue to have surgery, but the hospital refused to perform the surgery. (Id.) The following week, Bellevue performed the surgery and removed the pins. (Id.) On July 25, 2003, during an appointment at Bellevue with Dr. Lemen, the hand doctor, Brown asked to speak to Dr. Choi, the doctor who operated on Brown's hand, but was told "they had 'no' comment." (Id.)
After Plaintiff filed his initial Complaint, Judge Mukasey issued an Order on November 4, 2003, stating that as then pled, Plaintiff's Section 1983 cause of action against the Municipal Defendants failed because of Plaintiff's failure to allege the existence of an official policy or custom that caused the injury, and a causal connection between the policy or custom and the deprivation of a constitutional right. (See Reply Aff. Supp. Defs.' Mot. Dismiss Ex. A ("Order") 3-4 (citing Monell v. Department of Social Services, 436 U.S. 658 (1978)).)
Regarding the claims against individual doctors, Judge Mukasey explained that, to state a Section 1983 claim, the Plaintiff must allege facts sufficient to demonstrate deliberate indifference to Plaintiff's medical needs, under Estelle v. Gamble, 429 U.S. 97 (1976). (Id. at 4-5.) Judge Mukasey also stated that deliberate indifference must be proven by showing that defendants "intentionally denied, delayed access to or interfered with prescribed treatment," which Plaintiff had also failed to allege in his complaint, as to Dr. Choi. (Id. at 5 (citing Estelle, 429 U.S. at 104-06)). Finally, Judge Mukasey directed Plaintiff to amend the complaint to address the Estelle and Monell standards. (Id. at 4, 6.) Brown filed an Amended Complaint on January 21, 2004. The case was assigned to the undersigned on February 10, 2004.
In evaluating a motion to dismiss a complaint pursuant to Rule 12(b)(6), the Court must take as true the facts alleged in plaintiff's complaint and draw all reasonable inferences in his favor. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Further, the Court must not dismiss a complaint "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 (1957).
Claims Against Municipal Defendants
The Municipal Defendants may not be held liable under Section 1983 for Dr. Choi, Dr. Gavin, and Dr. John Pierre's alleged actions under the respondeat superior theory of liability. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). "[A] municipality cannot be held liable solely because it employs a tortfeasor." Id. Although a municipality may not be held liable solely for tortious actions of its employees, a municipality may be liable for the actions if the employee acted pursuant to an official municipal policy that caused a constitutional tort. Id.; Bd. of the County Comm'rs v. Brown, 520 U.S. 397, 403 (1997). Absent an official municipal policy, if there is "a systematic maladministration of [the law] . . . such practices of state officials could well be so permanent and well settled as to constitute a [policy]." Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68 (1970). Further, a municipality may be held liable for a failure to train its employees if '"the failure to train amounts to deliberate indifference to the rights' of those with whom the state officials will come into contact." Young v. City of Fulton, 160 F.3d 899, 903 (2d Cir. 1998) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).*fn3
Here, even construing the Complaint in the light most favorable to the Plaintiff, Brown has made no allegations or offered any facts to support his claim against the Municipal Defendants. Nothing in the Complaint provides any allegation of an official policy that caused Brown's injury and a connection between the policy and the deprivation of a constitutional right. Nor has Brown alleged permanent practices by state officials or a failure to train. Accordingly, Plaintiff has failed ...