The opinion of the court was delivered by: Andrew T. Baxter, United States Magistrate Judge
This matter has been referred for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable Gary L. Sharpe, United States District Judge. The case was re-assigned to me on January 4, 2010, upon the retirement of Magistrate Judge Gustave J. Di Bianco.
In this civil rights complaint (Dkt. No. 1), plaintiff alleges that, while he was an inmate in the custody of the Mid-State Correctional Facility ("Mid-State"), defendants denied him constitutionally adequate medical care by delaying his treatment for the Hepatitis-C virus (HCV). Plaintiff also alleges, in conclusory fashion, that the defendants violated his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. and the Rehabilitation Act (RA), 29 U.S. C. § 794.*fn1 He seeks substantial damages.
Presently before this court is the motion of the remaining defendants*fn2 to dismiss plaintiff's complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 13). After defendants' motion was filed, plaintiff filed a group of "exhibits in support of complaint" (Dkt. No. 14) and a memorandum in opposition to defendants' motion (Dkt. No. 18). For the following reasons, this court recommends that the plaintiff's complaint be dismissed without prejudice, except with respect to the claim of constitutionally inadequate medical care against Dr. Rabinowitz.
Plaintiff was under the care of the medical staff at Mid-State for HCV from December 16, 2007 through December 2008, when he filed his complaint. (Compl. ¶¶ 12, 13). He alleges that, from January through April 2008, the defendants consistently denied him treatment, such as "blood work," necessary to treat his HCV. (Compl. ¶ 14). On April 1, 2008, plaintiff filed a grievance complaining of inadequate medical treatment for his HCV and the resulting "pain and mental stress." (Compl. ¶ 15; Dkt. No. 14 at 11).*fn3 In response to plaintiff's complaints, the defendants claimed that they could not find his medical records and that Dr. Rabinowitz terminated plaintiff's HCV treatment because he failed to keep his medical appointments.*fn4 (Compl. ¶¶16, 18). However, on April 5, 2008, plaintiff "realized" that Dr. Rabinowitz had terminated his treatment because of the grievance plaintiff filed on April 1st. (Compl. ¶ 17).
On April 8, 2008, Dr. Rabinowitz ordered a particular HCV-related test and determined that plaintiff's results were "'[a]bnormal.'" (Compl. ¶ 20). Nonetheless, plaintiff claims that the doctor still declared that "'no action [was] required at this time' because Plaintiff had not completed an Alcohol and Substance Abuse Treatment program coupled with his personal animus towards plaintiff." (Compl. ¶ 21).*fn5 The medical staff at Mid-State took blood samples from plaintiff on April 28th and 29th and, on May 11, 2008, sent him for a liver biopsy. (Compl. ¶¶ 24-26; Dkt. No. 14 at 27). Plaintiff alleges he received no further treatment in May or June of 2009, during which time plaintiff "suffered severe pain, anxiety, and migraine headaches." (Compl. ¶ 27).
On July 18, 2008, plaintiff started receiving treatment for HCV, but on August 4th, Dr. Rabinowitz stopped the treatment. (Compl. ¶¶ 28-29). Plaintiff filed a grievance with respect to the termination of his treatment on August 5, 2008 (Dkt. No. 14 at 13), which was accepted by the Inmate Grievance Review Committee, to the extent that it recommended that plaintiff should be re-evaluated for continuing treatment. (Compl. ¶¶ 30-31; Dkt. No. 14 at 26). On September 5, 2008, Superintendent Hulihan issued a decision with respect to this grievance, noting that Dr. Rabinowitz terminated plaintiff's treatment because he failed to attend a medical evaluation on August 4, 2008. The Superintendent further stated that Dr. Rabinowitz saw the plaintiff to discuss his treatment on August 8th and that future lab work and medical visits were scheduled. Defendant Hulihan concluded that there was insufficient evidence to support plaintiff's claim of malfeasance by the medical staff, and advised plaintiff to attend his scheduled medical "call-outs" in order to avoid similar difficulties in the future. (Dkt. No. 14 at 25; Compl. ¶ 32). Plaintiff appealed his grievance, and the Central Office Review Committee affirmed the finding of Superintendent Hulihan, noting that laboratory work relating to the plaintiff had been performed on three dates in August and September 2008. (Dkt. No. 14 at 24; Compl. ¶ 33).
On September 9, 2008, plaintiff wrote a complaint to the Chief Medical Officer of the Department of Correctional Services ("DOCS"), who referred the matter to Regional Health Services Administrator (RHSA) Pedro Diaz for investigation and response. (Compl. ¶ 34). Defendant Diaz "contacted Plaintiff and confirmed that Plaintiff's treatment was discontinued because he 'acted in an argumentive [sic] manner and because Plaintiff had '[n]ot appeared for regular monitoring of [his] blood work.'" (Compl. ¶ 35; Dkt. No. 14 at 5).*fn6
The complaint alleges that defendant Rabinowitz was deliberately indifferent to plaintiff's serious medical needs for HCV treatment, in violation of his rights under the Eighth Amendment, the ADA, and the RA, as well as his due process and equal protection rights.*fn7 Plaintiff further claims that defendants Hulihan and Diaz failed to adequately instruct, supervise, control, and discipline Dr. Rabinowitz during that time that he was unconstitutionally denying plaintiff necessary medical treatment.
Defendants move to dismiss the complaint, arguing (1) that plaintiff is claiming mere disagreement with the medical judgment of DOCS physicians regarding appropriate treatment and has not alleged any facts demonstrating "deliberate indifference" on the part of any defendant; (2) that defendants Hulihan and Diaz were not personally involved in plaintiff's medical care and cannot be liable for damages under Section 1983; (3) that the plaintiff's conclusory references to the ADA, the RA, and retaliation fail to state a claim; and (4) that all of the defendants are entitled to qualified immunity.
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements," do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant "`fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp., 550 U.S. at 555 (citation omitted).
When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995). 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); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d at 72 (the court may take into consideration documents referenced in or attached to the complaint in deciding a motion to dismiss, without converting the proceeding to one for summary judgment). In this case, although plaintiff's supporting exhibits (Dkt. No. 14) ...