The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Eugene Libbett, appearing pro se, commenced this action on September 20, 2007. At the time of the commencement of this action, Libbett was serving a 110-month sentence imposed by this Court on several firearms and narcotics charges to which Libbett had pleaded guilty in September 2006. His complaint asserted a variety of claims under 42 U.S.C. § 1983, against a number of defendants, arising out of certain events that occurred during 2006, while plaintiff was confined at the Batavia Federal Detention Facility ("Batavia") in Batavia, New York, pursuant to the Court's pretrial detention order.
On October 26, 2007, the Court granted Libbett's application to proceed in forma pauperis, and directed him to file an amended complaint to correct certain defects in the original complaint. Dkt. #3. Plaintiff filed an amended complaint on December 21, 2007. Dkt. #7.
On April 10, 2008, the Court issued a Decision and Order (Dkt. #9), pursuant to the Court's obligation under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A to screen in forma pauperis pleadings, dismissing all of plaintiff's claims except for his Eighth Amendment claims alleging deliberate indifference to his medical needs and his pain. The Court also dismissed certain defendants from the case, leaving five defendants remaining: Batavia Physician Assistant ("P.A.") Deborah Doody, Dr. Brenda Bailey, Dr. Michael Latunji, Monroe County Jail Administration ("MCJA") Sergeant Lawrence Kloner, and MCJA Major Edward Krenzer.*fn1
Those five defendants have now moved to dismiss the complaint.*fn2 Plaintiff has responded to the motions, and has also filed a motion for leave to file a second amended complaint.*fn3
According to the amended complaint, on the morning of June 26, 2006, Libbett slipped and fell as he was leaving the shower at Batavia, causing pain and injuries to his back, neck and head. Libbett told the officer on duty that he was hurt, and shortly thereafter P.A. Doody arrived and had plaintiff taken on a stretcher to the facility infirmary, where he was seen by Dr. Bailey.
Plaintiff alleges that he told Doody that he was in extreme pain, and that he asked to be sent to an outside facility for treatment. Doody allegedly responded that she and Dr. Bailey "had decided to wait and see how [Libbett] felt in a couple of days...." Dkt. #7 ¶ 8.
The next day, Libbett was transferred to the Monroe County Jail ("Jail") in Rochester. Upon admittance, he was seen by a nurse, who allegedly told plaintiff that he "was a priority due to the seriousness of [his] injuries," but that he could not be seen by a doctor for another three days.
In fact, however, Libbett was not seen by a physician until July 13, when he was examined by Dr. Latunji at the Jail. Plaintiff asked to be seen by an orthopedist, but Dr. Latunji allegedly stated that he did not believe that was necessary, adding that Libbett had taken "a nasty fall and was going to be in pain for a while, and to be a man." Id. ¶ 34. Dr. Latunji prescribed pain medication for plaintiff.
Plaintiff alleges that he repeatedly informed Dr. Latunji, by means of inmate communication forms, of his continued pain over the following weeks and months. He also alleges that he informed defendant Major Krenzer that he was in pain and that the treatment that he had been given by Dr. Latunji had been ineffective. Id. ¶¶ 37-39.
Plaintiff also alleges that Dr. Latunji had him placed in an "isolation cell," although the reason for that is unclear. Plaintiff alleges that Dr. Latunji ordered this "as a form of punishment," id. ¶ 38, but the complaint does not explain why Dr. Latunji would have wanted to punish Libbett.
Plaintiff alleges that at some point during his confinement in the isolation cell, defendant Sgt. Kloner came to the cell and told Libbett that his criminal defense attorney had called the Jail and asked that plaintiff be sent for an outside evaluation, because the attorney had seen how much pain Libbett was in when the attorney came to meet with him at the Jail. Sgt. Kloner allegedly told Libbett that he had gone to school with Libbett's lawyer, that they were good friends, and that as a favor to the lawyer, Kloner had agreed to have Libbett taken to Strong Memorial Hospital ("Strong") for a medical consult. Id. ¶ 42.
Libbett was taken to Strong in September 2006 for an orthopedic evaluation. After certain tests were performed, Libbett was told by the orthopedic specialist that he would need two months of physical therapy to alleviate his severe muscle spasms, after which the ...