Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harris v. Howard

March 3, 2009

GEORGE HARRIS, PLAINTIFF,
v.
THERESA HOWARD, NURSE, HEALTH (TJM/GJD) CARE PROVIDER #231, ET AL., DEFENDANTS.



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

MEMORANDUM DECISION and ORDER

In this amended civil rights complaint, plaintiff alleges a denial of proper medical care as well as a variety of other constitutional, federal law, and state law violations resulting from plaintiff's attempts at complaining about his medical care. Amended Complaint (AC). (Dkt. No. 38). Plaintiff names sixteen defendants in his amended complaint. AC ¶ 5(A)-(P). Plaintiff seeks declaratory and substantial monetary relief. AC ¶ 97(a)-(d).

Presently before the court are two motions filed by defendants and two motions filed by plaintiff.*fn1 (Dkt. Nos. 52, 53, 61, 76). Both of defendants' motions are for judgment on the pleadings*fn2 pursuant to FED. R. CIV. P. 12(c). (Dkt. Nos. 52, 76). In response to defendants' first motion for judgment on the pleadings, plaintiff filed a "Motion for Sanctions" and a "Motion to Strike Insufficient Defense and Rule 12(c) Motion." (Dkt. Nos. 53, 61). Defendants have responded to both of plaintiff's motions. (Dkt. Nos. 57, 66). For the following reasons, this court agrees with defendants and will deny plaintiff's motions and grant the defendants' motions for judgment on the pleadings, dismissing this action in its entirety.

DISCUSSION

1. Judgment on the Pleadings

After the pleadings are closed, a motion to dismiss for failure to state a claim is properly brought as a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983) (citations omitted). See Fed. R. Civ. P. 12(b), 12(c) and 12(h)(2). The motion for judgment on the pleadings is then treated according to the same standard as a motion to dismiss under Rule 12(b)(6). Id.

To survive a motion to dismiss, the plaintiff must provide "the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'" Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008)(quoting inter alia ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff's factual allegations must be sufficient to give the defendant "fair notice of what the claim is and the grounds upon which it rests." Id. (citing Port Dock & Stone Corp. v. Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007)). When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (citations omitted). The court must heed its particular obligation to treat pro se pleadings with liberality. Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999)(per curiam).

In deciding a motion to dismiss, the court may review documents integral to the complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the complaint as exhibits and any statements or documents incorporated into the complaint by reference. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)(citing Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989)).

2. Facts*fn3

Because defendants have made motions for judgment on the pleadings, all the statements in plaintiff's complaint are assumed to be true. Erickson, 127 S.Ct. at 2200. The court will recite the facts as stated by plaintiff. Plaintiff begins the amended complaint by stating that on February 13, 2007, he was incarcerated at Marcy Correctional Facility. AC ¶ 12. At approximately 1:30 p.m., while plaintiff was working at his job as an Inmate Law Clerk in the facility Law Library, he began to lose feeling on the right side of his body. Id. Plaintiff states that his supervisor allowed plaintiff to return to his housing unit. Id. He requested "Sick Call" on February 15, 2007.*fn4 AC ¶ 14. At approximately 6:15 a.m. on February 15, 2007, defendant Poole was called to plaintiff's housing unit with a van to take plaintiff to the facility Clinic because plaintiff was having trouble walking on his own. AC ¶ 15.

Plaintiff states that when the van arrived at the Clinic, plaintiff saw defendant Nurse Theresa Howard standing at the door. Id. He recognized defendant Howard because plaintiff had an "ongoing conflict" with this defendant, resulting in plaintiff filing a grievance against her. Id. Plaintiff concedes that defendant Howard was not assigned to assist plaintiff, but was merely waiting for the van so that she could be transported to her assigned duty station for the day. Id. When the van arrived, defendant Poole asked defendant Howard to open the van door so that plaintiff could get out. Plaintiff states that as he attempted to exit the van, he began to "pitch forward," and instead of assisting plaintiff, defendant Poole remained in the driver's seat of the van and watched while plaintiff fell to the ground hitting his head, back, and right side of his body. Id. Plaintiff claims that defendant Howard merely jumped out of plaintiff's way and let him fall to the ground. Id.

Plaintiff also alleges that although various inmates who observed plaintiff fall attempted to assist him, defendant Howard told the inmates to "stand back." Without first checking plaintiff for injuries, defendant Howard walked into the Clinic to get plaintiff a stretcher and to notify defendant Corrections Officer Farley and her "fellow nurses" about the incident. Defendant Howard returned with a stretcher and two inmate porters who assisted plaintiff onto the stretcher. Defendant Howard then got into the van with defendant Poole, and they drove away. Id. Plaintiff states that none of the three defendants (Poole, Howard, or Farley) wrote or filed an Unusual Incident Report and/or an Inmate Injury Report in violation of Department of Correctional Services (DOCS) Directive # 4605. Id. Plaintiff claims that due to the gross negligence of these three defendants, he was injured.

After plaintiff was wheeled into the Emergency Treatment Room (ETR), plaintiff was informed by an unknown nurse*fn5 that plaintiff was going to be examined by defendant Dr. Syed Haider-Shah. AC ¶ 16. Plaintiff "voiced his desire not to be seen by Defendant [Haider-Shah]," but stated that he was willing to be examined by any other doctor. Id. Plaintiff claims that he never actually refused to be seen by Dr. Haider-Shah, however, defendant Nurse LaLonde misinterpreted plaintiff's statement and asked plaintiff to sign a "Medical Refusal Form." Id. Plaintiff claims that when he refused to sign the form, defendant LaLonde, called defendant Nurse Karen Dooley, and asked her to sign the form, disregarding plaintiff's desire to be examined by a doctor. Id.

Defendants LaLonde and Dooley went to inform defendant Administrative Nurse MartinKaras, who came in the room to speak with plaintiff. AC ¶ 17. Plaintiff states that although he tried to explain the situation, defendant Martin-Karas had plaintiff removed from the Clinic by defendant Corrections Officer Farley. Id. Plaintiff also claims that defendant Martin-Karas told plaintiff not to return. Id. Plaintiff states that no defendant explained the risks of leaving the Clinic without first obtaining medical treatment. Id.

Plaintiff left the Clinic because he was afraid that he would be charged with refusing a direct order if he did not leave voluntarily. AC ¶ 18. Plaintiff also states that he was afraid that "acts of retaliation would follow." Id. When he returned to his housing unit, plaintiff reported the incident to defendant Corrections Officer Grant, and told defendant Grant that defendant Martin-Karas made it clear that plaintiff was not to return to the Clinic "for anything." AC ¶ 19. At approximately 8:30 a.m. on February 15, 2007, plaintiff discovered that he was urinating blood. AC ¶ 20. Plaintiff claims that he told defendant Grant, who asked plaintiff if he wished to go to the Clinic. Id. Plaintiff states that he was concerned that if he went back to the Clinic, defendant Farley would charge him with misbehavior since defendant Martin-Karas told plaintiff not to return to the Clinic. Id. Plaintiff speculated that the blood could be related to his fall from the van earlier that morning. Id.

Plaintiff states that defendant Howard never filed a "Report of Inmate Injury" related to plaintiff's fall out of the van. AC ¶ 21. On March 6, 2007, after a conversation with his corrections counselor, plaintiff decided to file a grievance regarding defendant Howard's failure to file the proper incident report in violation of DOCS directives. Id. Plaintiff filed four grievances that were consolidated by the Grievance Supervisor. Id. Plaintiff complains that his grievances were not properly handled. AC ¶¶ 22-25. Plaintiff had a grievance hearing on March 27, 2007, but the committee was deadlocked. AC ¶ 22. Plaintiff alleges that DOCS uses this "deadlock" as a method to avoid making a decision to correct "medical errors." Id.

Plaintiff appealed the committee's decision, and on April 10, 2007 defendant Superintendent Lape denied plaintiff's grievance. AC ¶ 23. Plaintiff states that he appealed the Superintendent's decision to the Central Office, and that during this time, he still had not seen a doctor regarding the numbness on the right side of his body. Plaintiff states that defendants LaLonde, Dooley, and Karas prevented plaintiff from seeing a doctor on February 15, 2007, and that no one corrected that error. Id. On April 23, 2007, plaintiff wrote a letter to defendant Constant, the Director of Nursing and Auxiliary Services, complaining about the actions of defendants Howard, LaLonde, Dooley, and Karas. AC ¶ 24. Although defendant Constant responded to his letter, she did not address any of the issues that plaintiff raised. Id. Instead, she suggested that plaintiff go to sick call and have his issues addressed by the medical staff. Id. Plaintiff states that he understood defendant Constant to mean that plaintiff could go back to the Clinic without fear of "medical retaliation." Id. On May 18, 2007, plaintiff again put his name on the list for sick call, and apparently saw an unnamed nurse who scheduled plaintiff to see Dr. Haider-Shah on May 27, 2007. Id.

Plaintiff states that on May 7, 2007, he wrote a letter to DOCS Commissioner, defendant Brian Fischer, detailing all of the above complaints. AC ¶ 25. Defendant Fischer sent plaintiff's letter to defendant Dr. Lester Wright, DOCS Chief Medical Officer, for investigation. Id. Defendant Wright wrote to plaintiff on May 18, 2007, stating that the department had conducted an investigation into the events of February 15, 2007, and that the staff of the Primary Care Unit was not responsible for maintaining injury reports. Id. Plaintiff claims that this answer had nothing to do with the complaints that plaintiff filed. Id.

Plaintiff saw defendant Dr. Haider-Shah on May 7, 2007.*fn6 AC ¶ 26. Plaintiff told Dr. HaiderShah about the right-sided numbness and about plaintiff's fall from the van on February 15, 2007. AC ¶ 26. Plaintiff also told the doctor that defendant Martin-Karas told plaintiff not to return to the Clinic, and Dr. Haider-Shah told plaintiff that he "knew all about it." Id. Plaintiff asked Dr. HaiderShah if the doctor was aware of plaintiff's degenerative bone condition, and the doctor stated that he was aware of the condition. Plaintiff asked whether the doctor was going to do anything about plaintiff's condition, and the doctor did not reply. Plaintiff claims that defendant Haider-Shah "kept himself informed about Plaintiff's health but never intended to do anything about it." Id. Plaintiff states that defendant Haider-Shah admitted that he had no plans to treat plaintiff for his degenerative condition. Id.

Plaintiff had another appointment with Dr. Haider-Shah on May 25, 2007 to review a May 8, 2007 x-ray report. Id. Plaintiff states that Dr. Haider-Shah learned from the x-ray that plaintiff had a problem in his neck and scheduled plaintiff to see a neurologist on June 15, 2007. Id. The neurologist ordered three MRI examinations for September 21, 2007. Plaintiff saw Dr. Haider-Shah on August 27, 2007, discussed his treatment, and asked the doctor if he would order an Electromyogram (EMG). However, Dr. Haider-Shah refused to order the test. Plaintiff filed a grievance about the refusal, but again, the committee was deadlocked. Plaintiff claims that the deadlock was "designed to prolong much needed Medical attention and treatment." Id.

On June 1, 2007, plaintiff again wrote to Commissioner Fischer about defendant Howard's failure to file a proper incident report after plaintiff fell out of the van on February 15, 2007. AC ¶ 27.

Defendant Fischer again sent plaintiff's letter to defendant Wright for investigation, who copied his May 18, 2007 response and sent it to plaintiff again. AC ¶ 28. On July 17, 2007, plaintiff wrote another letter to defendant Fischer, informing him that the staff had entered into a conspiracy to submit false statements. Id.

Defendant Wright sent plaintiff's June 1, 2007 letter to defendant Sally Baxter, Nurse Administrator for investigation. AC ¶ 29. Defendant Baxter told plaintiff in a letter dated July 5, 2007, that her investigation showed that all treatments were appropriate. Id. However, plaintiff states that none of his complaints have been addressed. By letter dated June 4, 2007, defendant Kelleher, Director of Nurse Investigations was asked*fn7 to conduct an investigation and inform plaintiff of the findings. Id. Plaintiff states that as of the date of the amended complaint, plaintiff had not received any report, indicating that an investigation was conducted or that a hearing was scheduled.

On July 12, 2007, defendant Wright sent plaintiff a letter stating that defendant Howard claimed that she never witnessed the February 15, 2007 incident because she was assigned to S-Block that day. AC ¶ 30. Plaintiff states that defendant Wright's letter stated that plaintiff was "Unwilling to Remain" for the examination by the primary care provider. Id. Plaintiff claims that the statements in defendant Wright's letter were false, and that plaintiff never refused to see Dr. Haider-Shah. Id.

On July 30, 2007, plaintiff fainted in his housing unit and was taken to the Clinic on a stretcher. AC ¶ 31. Plaintiff claims there was no medical staff supervision on his way to the Clinic. Plaintiff states that from the Clinic, he was sent to St. Elizabeth Medical Center. Plaintiff states that no one ever determined why he fainted. Plaintiff states that he later requested a copy of the medical records from the hospital, but when they arrived at the facility, someone opened them improperly, and defendant Diane Kastia, Mail Room Supervisor sent the records to plaintiff. Id. Plaintiff has been unable to determine who opened this envelope or whether any medical records were removed. Plaintiff filed a grievance about this incident. The hearing was held on September 18, 2007, but plaintiff had to file another grievance on September 10, 2007 because the "same thing happened again." Plaintiff states that the second time that he received medical records in the mail, they were sent to the Clinic because defendant Kastia knew of plaintiff's previous grievance, and she "joined in the conspiracy" to violate plaintiff's constitutional rights and "use this procedure to retaliate against plaintiff for filing [sic] Grievance in this matter." Id. Plaintiff claims that defendant Kastia violated plaintiff's Fourth Amendment rights because she should have known that hospital records are protected by privacy laws. AC ¶ 32.

On July 24, 2007, plaintiff received a letter from defendant Karen Bellamy, the Director of the Inmate Grievance Program, responding to a letter that plaintiff had written to defendant Fischer, telling plaintiff that there were no more appeals for one of his grievances. AC ¶ 33. Plaintiff states that this letter was an attempt to misdirect plaintiff because plaintiff "merely asked Defendant [Fischer] to review the grievances and send orders to the staff, telling them to correct the mistakes that were made in failing to file the appropriate incident and injury reports. Id. On September 17, 2007, plaintiff wrote to defendant Bellamy, complaining about the unprofessional conduct taking place in the Grievance Office. AC ¶ 34. Plaintiff states that he never received a response, a "clear example" of how defendant Bellamy has failed to carry out her duties to correct a wrong.

3. Motion for Sanctions

Plaintiff has moved to sanction defendants pursuant to FED. R. CIV. P. 11. Rule 11 specifically provides for 21 days notice to the opposing party prior to filing a motion for sanctions. Id. Rule 11(c)(2). Plaintiff's motion for sanctions was filed the day after defendants moved to dismiss plaintiff's action pursuant to FED. R. CIV. P. 12(c). (Dkt. Nos. 52-(Motion to Dismiss- 5/21/08); 53-(Motion for Sanctions-5/22/08). For that reason alone, plaintiff's motion may be denied.

Defendants, however, have responded in opposition to the substance of the motion, and a review of the defendants' memorandum in opposition to the motion shows that plaintiff's request for Rule 11 sanctions may be denied regardless of the improper timing of the motion. Plaintiff accuses defendants of a variety of violations, including "intentional delay" by filing and withdrawing a previous motion to dismiss. Plaintiff also faults defendants for requesting a stay of discovery pending the court's decision on the motion for judgment on the pleadings and accuses defendants of "evading" service. Plaintiff has problems with defendants filing papers on the "eve" of a deadline.

The fact that a party files a paper on the eve of a deadline is not a reason for sanctions. The fact that a party asks for an extension of time to file an answer or a motion is not a reason for sanctions and does not represent an intentional delay of the action. Plaintiff has not been prejudiced by any extensions requested by defense counsel. In fact, plaintiff obtained the names of the "Jane Doe" defendants and amended his complaint, allowing for service on these defendants. As defense counsel states in her response, the Attorney General's Office has nothing to do with service on defendants. Service is accomplished by the United States Marshal on behalf of plaintiff's proceeding in forma pauperis. The Attorney General's Office does not represent individual defendants until they request representation after being served with the complaint.

There is nothing sanctionable in withdrawing a motion to dismiss when new defendants have been served, who may request legal representation from the same counsel. In addition, when an amended complaint is filed, defendants have withdrawn motions to dismiss that are addressed to the original complaints. See e.g. Sniado v. Bank Aus. AG, 352 F.3d 73, 76-77 (2d Cir.), vacated and remanded on other grounds, 542 U.S. 917 (2004). Additionally, while a motion to dismiss does not automatically stay discovery, a motion to dismiss may in some instances "provide 'good' cause for a protective order . . . staying discovery." Spencer Trask Software & Information Services, 206 F.R.D. 367, 368 (S.D.N.Y. 2002), cited in Picture Patents, LLC v. Terra ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.