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Thomas v. Metropolitan Correction Center

June 21, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


On February 25, 2009, pro se Plaintiff Lincoln Osburn Thomas initiated this action against the Metropolitan Correctional Center ("MCC"), the MCC Medical Unit, and the following members of the Medical Unit staff: Dr. Rolando Newland, Dr. Mark Glover, and Mr. Kahn. (Docket No. 2) On June 16, 2009, Plaintiff filed an Amended Complaint. (Docket No. 6) Without alleging that his constitutional rights were violated or identifying any specific cause of action, Plaintiff alleges that Defendants failed to provide him with proper medical treatment while he was incarcerated at the MCC and claims that his unit was not well-ventilated, which caused or aggravated his breathing problems.

On February 16, 2010, Defendants filed a motion to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, and under Rule 12(b)(6) for failing to state a claim under the Eighth Amendment for inadequate medical treatment. (Docket No. 16) By order dated February 4, 2010, the Court set a briefing schedule, directing Plaintiff to submit his opposition papers by March 16, 2010. (Docket No. 15) Plaintiff failed to submit an opposition. On April 1, 2010, the Court issued a second order, extending Plaintiff's time to oppose Defendants' motion until April 30, 2010, and informing Plaintiff that if he failed to respond the Court would consider the motion unopposed. (Docket No. 19) To date, the Court has received no communication from Plaintiff in response to Defendants' motion or to the Court's February 4, 2010 and April 1, 2010 orders. Accordingly, Defendants' motion is considered unopposed. For the foregoing reasons, Defendants' motion to dismiss will be GRANTED.


Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, and under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. A claim is "properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "When jurisdiction is challenged, the plaintiff 'bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists.'" Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008) (quoting APWU v. Potter, 343 F.3d 619, 623 (2d Cir. 2003)). In deciding a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), courts may consider evidence outside pleadings. See Makarova, 201 F.3d at 113; City of New York v. FDIC, 40 F. Supp. 2d 153, 160 (S.D.N.Y. 1999) (citing Kamen v. AT & T Co., 791 F.2d 1006, 1011 (2d Cir. 1986)).

A Rule 12(b)(6) motion challenges the legal sufficiency of the specific claims brought. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. --, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To meet this standard, a complaint's factual allegations must permit the Court, "draw[ing] on its judicial experience and common sense," "to infer more than the mere possibility of misconduct." Id. at 1950. "In considering a motion to dismiss . . . the court is to accept as true all facts alleged in the complaint," Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).

Because Plaintiff is proceeding pro se, the Court construes the complaint liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), "interpret[ing] it to raise the strongest arguments that it suggests." Harris v. Westchester County Department of Corrections, No. 06 Civ. 2011(RJS), 2008 WL 953616, at *2 (S.D.N.Y. Apr. 3, 2008) (internal quotation omitted). As in any other case, however, the Court accepts as true only factual allegations, and does not accept as true allegations stating only legal conclusions. Harris, 572 F.3d at 72 ("[T]hreadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice [to establish entitlement to relief]." (quoting Iqbal, 129 S.Ct. at 1949)).


For purposes of deciding Defendants' motion to dismiss, the Court assumes that the following factual allegations in the Amended Complaint, and in documents that the Amended Complaint incorporates by reference,*fn1 are true:

Plaintiff entered the MCC on May 9, 2008. Plaintiff was interviewed by the MCC's medical staff and informed them that he suffers from "sleep apnea, heart problem, and constant headaches." (Am. Cmplt. at 9) Soon thereafter, Plaintiff was seen by Defendants Newland and Glover, and Dr. Glover stated that he was "some what of an expert or ha[d] extensive knowledge" concerning sleep apnea. (Id.) Plaintiff was brought to a hospital three times while he was incarcerated at MCC. The first visit related to chest pain, the second took place in October 2008 and involved a "Sleep Study," and the third visit took place on January 5, 2009 and involved an unexplained sickness. (Id.)

Plaintiff complains that he "became very sick while in the custod[y] of the [MCC]" and "had to be hospitalized for five weeks," and that "the medical staff at the [MCC] dismiss[ed] [his] numerous complain[t]s or didn't take them that serious." (Id. at 3) Plaintiff further alleges that as "a result of my breathing problem [which] became more severe I developed bronchitis and blood clot[] in my leg and spent five weeks in the hospital on antibiotic, albuteral, triaminolone etc." (Id.) He states that he "ma[de] numerous complaints to the Medical Staff and they was very slow to act. [I]t was not until I became extremely weak, ill before my couns[elor] interv[ened] on my behalf that something was done. The situation didn't have to get so serious." (Id. at 5)

Plaintiff further complains that (1) he was never provided with a "breathing machine to help with [his] 'Sleep Apnea'"; (2) that a physician's assistant failed to address his claim that he was unable to "make it down stairs . . . because I was too ill" and that Plaintiff had to ask his counselor to contact the medical unit; (3) on another occasion, physician assistant Khan said to Plaintiff, "what are you doing down here there is nothing that [I] can do for [you]"; and (4) "sometimes [Plaintiff] went to court ill." (Id.)

Plaintiff also alleges that "[f]or about two months beginning June 30, 2008 to August 13, 2008 there was no circulated air in my cell" and that his "unit was very dusty especially on the window which did not help [his] breathing problem." (Id.)

Plaintiff states that he was aware of a grievance procedure at the MCC and that it covered his claims. (Id. at 4) He further states that he filed a grievance directed "to the Medical Staff" that addressed "multipl[e] claim(s) from difficulty breathing, chest pain, dizz[i]ness etc.," and "never received any written respon[ses]," "only the run-around." (Id. at 4). Plaintiff filed "an administrative grievance . . . with [his] counselor Ms. Fields and the Jane Doe, who was in charge of the medical unit aside from the doctors." (Id. at 10) Plaintiff alleges that "whenever [he] complained to Ms. Fields my couns[elor] she would then make a phone call in front of me to medical but the[ir] response was they are aware of the problem." ...

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