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Caldwell v. Winston


July 23, 2010


The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge


Plaintiff Cory Caldwell, a New York State prison inmate who is proceeding pro se and in forma pauperis , has commenced this action pursuant to 42 U.S.C. §§ 1983 and 1985, claiming deprivation of his civil rights. In his complaint plaintiff asserts that he was assaulted by the two corrections officer defendants, and that following the assault he was denied medical treatment for his resulting injuries. In his complaint plaintiff seeks compensatory and punitive damages in the amounts of $30 million and $10 million, respectively.

Currently pending before the court is defendants' motion to dismiss the complaint. In support of their motion, defendants assert that plaintiff has failed to state a plausible Eighth Amendment violation. Having carefully reviewed the record, considered in light of the arguments of the parties, for the reasons that follow I recommend that defendants' motion be granted in part, but otherwise denied.


The facts forming the basis for plaintiff's claims are not particularly complex. Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Correctional Services ("DOCS"); at the times relevant to his complaint, Caldwell was housed at the Upstate Correctional Facility ("Upstate"), located in Malone, New York. *fn2 Amended Complaint (Dkt. No. 9) ¶ 10. On December 18, 2009, while being escorted back from a disciplinary hearing to his cell, which was located in A Block of Building Nine, plaintiff was taunted by defendants Winston and Gettmann regarding the time in SHU to which he had just been sentenced. Id. at ¶ 10. When plaintiff responded, defendant Winston instructed him to face forward and, when Caldwell did not comply quickly enough, Winston grabbed him by the neck and slammed the front of his body and his face into the wall. Id. at ¶¶ 2, 17 . Gettmann then moved in closer and, putting his left hand on plaintiff's waist, gave Caldwell a short jab in the ribs with his right hand, stating in a low voice, "You're not as tough as you are behind that door; then again, you young punks never are." Id. After making that remark, Gettmann pulled Caldwell off of the wall, and they continued toward plaintiff's cell. Id.

Upon arriving at his cell, plaintiff followed Gettmann's instructions to place his hands through the feed up slot for removal of his handcuffs. Amended Complaint (Dkt. No. 9) ¶¶ 3, 18. Gettmann proceeded to roughly remove plaintiff's handcuffs. Id . at ¶ 3. After removing the restraints, Gettmann did not instruct plaintiff to remove his hands from the feed up slot, as is customary; instead, before plaintiff had time to withdraw his hands, Gettmann intentionally slammed Caldwell's hands and wrist in the feed up slot door, causing injury for which plaintiff sought emergency medical attention. Id. at ¶¶ 3-4, 19.

Approximately twenty minutes later defendant J. Stout, a medical nurse, arrived and made a routine visual inspection of plaintiff's injuries through the glass on plaintiff's cell and advised plaintiff that there was nothing wrong with him and that his injuries did not warrant emergency medical attention. Amended Complaint (Dkt. No. 9) ¶¶ 5, 19. When plaintiff protested and showed Stout the blood on his hands, Stout taunted plaintiff, stating in a low voice, "Oh, he's got a little boo-boo," and then proceeded to walk away. Id. at ¶ 5.

Speaking loudly enough for a nearby audio microphone to record his complaint, plaintiff voiced his dismay, apparently accusing Stout of unethical and unprofessional conduct and stating that he was bleeding and that his medical needs were being disregarded. *fn3 Id . at ¶¶ 5, 20. Within minutes, a sergeant appeared at Caldwell's cell and escorted him to a holding pen, where photographs of plaintiff's injuries were taken. Id. at ¶¶ 5-6.

Plaintiff claims to have written several grievances complaining of the incident, as well as letters to the facility superintendent, the commissioner of the DOCS, counsel for the DOCS, the DOCS inspector general, and the New York State Police, but has received a response only from Commissioner Brian Fischer stating that the inspector general was investigating the incident. Amended Complaint (Dkt. No. 9) ¶¶ 6, 22-23. According to plaintiff, as a result of the assault and the unspecified injuries that he sustained, he has and continues to suffer periods of substantial pain in his neck and sharp pain in his hands. Id . at ¶ 7.


Plaintiff commenced this action on May 18, 2009. Dkt. No. 1. As defendants, plaintiff's original complaint named John Doe, an unknown corrections officer; Gettmann, corrections officer; Stout, J., a medical nurse; and the DOCS. Id. After an initial review of the complaint, the court sua sponte dismissed plaintiff's claims against the DOCS and directed plaintiff to take reasonable steps to ascertain the identity of the John Doe defendant named in the complaint. See Decision and Order dated June 10, 2009 (Dkt. No. 7). In accordance with that directive, plaintiff subsequently filed an amended complaint, Dkt. No. 9, which is now the operative pleading in this action, identifying "correctional officer" Winston as a defendant in place of John Doe. *fn4 The complaint, which is brought under 42 U.S.C. §§ 1983 and 1985, *fn5 alleges negligence, the use of excessive force, and deliberate indifference to plaintiff's medical needs arising out of the incident, all in violation of the Eighth Amendment. See generally Amended Complaint (Dkt. No. 9).

Following service of plaintiff's amended complaint, defendants moved on October 13, 2009 seeking its dismissal. Dkt. No. 17. In their motion, defendants argue that plaintiff's complaint fails to set forth facts demonstrating the existence of plausible claims of unlawful use of excessive force and deliberate medical indifference. Id. Defendants' motion, which plaintiff has opposed, is now fully briefed and ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).


A. Dismissal Motion Standard

A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal , ___ U.S. ___, ___, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 554, 555, 127 S.Ct. 1955, (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Id. While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, 129 S.Ct. at 1950.

To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly , 550 U.S. at 570, 127 S.Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig. , 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. at 1974).

In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate , 378 U.S. 546, 546, 84 S.Ct. 1723, 1734 (1964); Miller v. Wolpoff & Abramson, LLP , 321 F.3d 292, 300 (2d Cir. 2003), cert. denied , 540 U.S. 823, 124 S.Ct. 153 (2003); Burke v. Gregory , 356 F. Supp.2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "'but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C. , 223 F. Supp.2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ. , 69 F.3d 669, 673 (2d Cir. 1995)) (citations and quotations omitted).

B. Excessive Force

One of the two principal claims contained within plaintiff's complaint stems from his assertion that on December 18, 2009, he was subjected to an unprovoked attack by defendants Winston and Gettmann and that, as a result, he suffered physical injuries. In their motion, defendants contend that plaintiff has failed to allege facts sufficient to state a claim for excessive use of force.

Plaintiff's excessive force claim must be analyzed under the Eighth Amendment, which proscribes punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1076, 1084 (1986) (citing, inter alia, Estelle ). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus, the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman , 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)).

A plaintiff's constitutional right against cruel and unusual punishment is violated by an "unnecessary and wanton infliction of pain." Whitley, 475 U.S. at 319, 106 S.Ct. at 1084 (citations and quotations omitted); Griffen v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999). The lynchpin inquiry in deciding claims of excessive force against prison officials is "whether force was applied in a good-faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." Hudson v. McMillian, 503 U.S. 1, 6-7, 112 S.Ct. 995, 998-999 (1992) (applying Whitley to all excessive force claims); Whitley , 475 U.S. at 320-21, 106 S.Ct. at 1085 (quoting Johnson v. Glick , 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied sub nom. , John v. Johnson , 414 U.S. 1033, 94 S.Ct. 462 (1973)).

Analysis of claims of cruel and unusual punishment requires both objective examination of the conduct's effect and a subjective inquiry into the defendant's motive for his or her conduct. Wright v. Goord , 554 F.3d 255, 268 (2d Cir. 2009) (citing Hudson, 503 U.S. at 7-8, 112 S.Ct. at 999 and Blyden v. Mancusi , 186 F.3d 252, 262 (2d Cir. 1999)). As was recently emphasized by the United States Supreme Court in Wilkins v. Gaddy , however, after Hudson the "core judicial inquiry" is focused not upon the extent of the injury sustained, but instead whether the nature of the force applied was nontrivial. __ U.S. __, 130 S.Ct. 1175, 1179 (2010) (per curiam). Accordingly, when considering the subjective element of the governing Eighth Amendment test a court must be mindful that the absence of serious injury, though relevant, does not necessarily negate a finding of wantonness since, as the Supreme Court has noted,

[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated . . . . This is true whether or not significant injury is evident.

Otherwise, the Eighth Amendment would permit any physical punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of injury.

Hudson , 503 U.S. at 9, 112 S.Ct. at 1000 (citations omitted); Velasquez v. O'Keefe , 899 F. Supp. 972, 973 (N.D.N.Y. 1995) (McAvoy, C.J.) (quoting Hudson , 503 U.S. at 9, 112 S.Ct. at 1000); see Romaine v. Rewson, 140 F. Supp.2d 204, 211 (N.D.N.Y. 2001) (Kahn, J.). Even a de minimis use of physical force can constitute cruel and unusual punishment if it is "repugnant to the conscience of mankind." Hudson , 503 U.S. at 9-10, 112 S.Ct. 1000 (citations omitted).

With its focus on the harm done, the objective prong of the inquiry is contextual and relies upon "contemporary standards of decency." Wright , 554 F.3d at 268 (quoting Hudson , 503 U.S. at 8, 112 S.Ct. at 1000) (internal quotations omitted)). When addressing this component of an excessive force claim under the Eighth Amendment calculus, the court can consider the extent of the injury suffered by the inmate plaintiff. While the absence of significant injury is certainly relevant, it is not dispositive.

Hudson , 503 U.S. at 7, 112 S.Ct. at 999. The extent of an inmate's injury is but one of the factors to be considered in determining a prison official's use of force was "unnecessary and wanton"; courts should also consider the need for force, whether the force was proportionate to the need, the threat reasonably perceived by the officials, and what, if anything, the officials did to limit their use of force. Whitley , 475 U.S. at 321, 106 S.Ct. at 1085 (citing Johnson , 481 F.2d at 1033). "But when prison officials use force to cause harm maliciously and sadistically, 'contemporary standards of decency are always violated . . . . This is true whether or not significant injury is evident.'" *fn6 Wright , 554 F.3d at 268-69 (quoting Hudson , 503 U.S. at 9, 112 S.Ct. at 1000).

Addressing the objective prong of the Eighth Amendment analysis, liberally construing the complaint, the fact that it appears that Caldwell suffered at least minor injuries from the use of force distinguishes this case from others in which the lack of injury has justified summary dismissal of excessive force claims alleged under the Eighth Amendment. See, e.g., Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (the fact that the plaintiff, who claims he was "bumped, grabbed, elbowed, and pushed" by the defendants did not rise to a level of constitutional significance since plaintiff did "not maintain that he experienced any pain or injury as a result of the physical contact"); Cunningham v. Rodriguez , No. 01 Civ. 1123, 2002 WL 31654960, at *5 (S.D.N.Y. Nov. 22, 2002). *fn7 Although the precise nature of the injuries that plaintiff sustained is not disclosed in the complaint, plaintiff does allege that he was bleeding as a result of the assault and also that he has suffered substantial periods of pain in his neck and sharp pain in his hands. Under the circumstances now presented it would be inappropriate to find, objectively, that plaintiff has failed to alleges injuries sufficiently serious to rise to a constitutionally cognizable level.

Turning to the subjective element, again broadly construed, plaintiff's complaint has alleged sufficient facts to suggest that the attack was unprovoked. In this regard, plaintiff alleges that he was being escorted to a cell and taunted by defendants Winston and Gettmann. While the complaint also suggests that Caldwell verbally responded to their teasing and apparently did not immediately turn around when directed to do so, when read liberally the facts alleged also support an inference that no use of force was necessary to ensure plaintiff's compliance, but that defendants nonetheless hurled him against the wall as a result of his verbal response.

In view of the facts alleged and the deference owed to him as a pro se litigant, I find plaintiff's complaint facially sufficient insofar as his excessive force claim is concerned, and that at this early juncture it would premature to dismiss that claim as not stating a plausible cause of action. Accordingly, I recommend that defendants' motion to dismiss plaintiff's excessive use of force claim be denied. *fn8

B. Medical Indifference

The second component of plaintiff's complaint alleges that defendant Stout, a prison nurse, failed to provide him with needed medical treatment. Plaintiff's claim against Nurse Stout apparently stems from her failure, upon examining Caldwell immediately following the December 18, 2009 incident, to provide him with any medical attention. Though plaintiff admits in his complaint that defendant Stout responded to his calls for emergency medical attention, he apparently maintains that after arriving at his cell she refused to render medical treatment. In support of dismissal of this claim, defendants argue that plaintiff's allegations of negligence are insufficient as a matter of law, and he has failed to allege sufficient facts to demonstrate that he was denied the medical care mandated under the Eighth Amendment. *fn9

Claims that prison officials have intentionally disregarded an inmate's medical needs fall under the umbrella of protection from the imposition of cruel and unusual punishment afforded by the Eighth Amendment. Estelle, 429 U.S. at 102, 104, 97 S.Ct. at 290, 291. To satisfy their obligations under that Constitutional provision, prison officials must "ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Farmer , 511 U.S. at 832, 114 S.Ct. at 1976 (quoting Hudson , 468 U.S. at 526-27, 104 S.Ct. at 3200) (internal quotations omitted). As was previously discussed, a claim alleging that prison officials have violated the Eighth Amendment by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright , 554 F.3d at 268; Price v. Reilly , No. 07-CV-2634 (JFB/ARL), 2010 WL 889787, at *7-8 (E.D.N.Y. Mar. 8, 2010). Addressing the objective element, to prevail a plaintiff must demonstrate a violation sufficiently serious by objective terms, "in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists." Hathaway v. Coughlin , 99 F.3d 550, 553 (2d Cir. 1996). With respect to the subjective element, a plaintiff must also demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden , 186 F.3d at 262. Claims of medical indifference are thus subject to analysis utilizing this Eighth Amendment paradigm. See Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006).

1. Objective Requirement

Analysis of the objective, "sufficiently serious" requirement of an Eighth Amendment medical indifference claim begins with an inquiry into "whether the prisoner was actually deprived of adequate medical care . . .", and centers upon whether prison officials acted reasonably in treating the plaintiff. Salahuddin , 467 F.3d at 279. A second prong of the objective test addresses whether the inadequacy in medical treatment was sufficiently serious. Id . at 280. If there is a complete failure to provide treatment, the court must look to the seriousness of the inmate's medical condition. Smith v. Carpenter , 316 F.3d 178, 185-86 (2d Cir. 2003). If, on the other hand, the complaint alleges that treatment was provided but was inadequate, the seriousness inquiry is more narrowly confined to that alleged inadequacy, rather than focusing upon the seriousness of the prisoner's medical condition. Salahuddin , 467 F.3d at 280. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in treatment. . . [the focus of] the inquiry is on the challenged delay or interruption, rather that the prisoner's underlying medical condition alone." Id. (quoting Smith , 316 F.3d at 185) (internal quotations omitted). In other words, at the heart of the relevant inquiry is the seriousness of the medical need, and whether from an objective viewpoint the temporary deprivation was sufficiently harmful to establish a constitutional violation. Smith , 316 F.3d at 186. Of course, "when medical treatment is denied for a prolonged period of time, or when a degenerative medical condition is neglected over sufficient time, the alleged deprivation of care can no longer be characterized as 'delayed treatment, but may properly be viewed as a 'refusal' to provide medical treatment." Id. at 186, n.10 (quoting Harrison v. Barkley , 219 F.3d 132, 137 (2d Cir. 2000)).

Since medical conditions vary in severity, a decision to leave a condition untreated may or may not raise constitutional concerns, depending on the circumstances. Harrison, 219 F.3d at 136-37 (quoting, inter alia, Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Relevant factors informing this determination include whether the plaintiff suffers from an injury or condition that a "'reasonable doctor or patient would find important and worthy of comment or treatment'", a condition that " 'significantly affects'" a prisoner's daily activities, or "'the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (citation omitted); Lafave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *3 (N.D.N.Y. Apr. 3, 2002) (Sharpe, M.J.) (citation omitted).

In the first instance, it is unclear whether plaintiff is alleging that he was completely denied medical treatment. Although it appears to be plaintiff's claim that Nurse Stout denied him medical treatment, he also alleges that "within minutes" after Nurse Stout left his cell, a sergeant appeared and took him to a holding cell where his injuries were photographed. It may well be that Caldwell's injuries were treated at that time and that treatment of his injuries, by plaintiff's own account, was delayed only by a few minutes. Additionally, as was noted above, plaintiff's complaint fails to reveal the nature and extent of his injuries. Instead, plaintiff merely alleges that he has periodically suffered substantial pain in his hands and in his neck; there are no allegations of fact in the complaint that suggest that plaintiff's condition was one of urgency or that the apparently delayed medical treatment exposed plaintiff to death, degeneration, or extreme pain.

For these reasons, I have concluded that plaintiff's complaint fails to allege sufficient facts to satisfy the objective prong of the medical indifference inquiry.

2. Subjective Element

The second, subjective, requirement for establishing an Eighth Amendment medical indifference claim mandates a showing of a sufficiently culpable state of mind, or deliberate indifference, on the part of one or more of the defendants. Salahuddin , 467 F.3d at 280 (citing Wilson , 501 U.S. at 300, 111 S.Ct. 2321). Deliberate indifference, in a constitutional sense, exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Leach v. Dufrain, 103 F. Supp.2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (citing Farmer, 511 U.S. at 837, 114 S.Ct. at 1979); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.) (same). Deliberate indifference is a mental state equivalent to subjective recklessness as the term is used in criminal law. Salahuddin , 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40, 114 S.Ct. 1970).

As defendants correctly point out, mere negligence on the part of a physician or other prison medical official in treating or failing to treat a prisoner's medical condition, on the other hand, does not implicate the Eighth Amendment and is not properly the subject of a § 1983 action.

Estelle, 429 U.S. at 105-06, 97 S.Ct. at 292; Chance, 143 F.3d at 703. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106, 97 S.Ct. at 292. Thus, for example, a physician who "delay[s] ... treatment based on a bad diagnosis or erroneous calculus of risks and costs" does not exhibit the mental state necessary for deliberate indifference. Harrison, 219 F.3d at 139. If prison officials consciously delay or otherwise fail to treat an inmate's serious medical condition "as punishment or for other invalid reasons," however, such conduct is actionable as deliberate indifference. Harrison, 219 F.3d at 138; Kearsey v. Williams, 2005 WL 2125874, at *5 (S.D.N.Y. Sep. 1, 2005).

The allegations in plaintiff's complaint fail to suggest that Nurse Stout acted with the requisite subjective intent. Once again, there is nothing in the complaint to suggest that plaintiff's condition was dire and presented a substantial risk of harm to his well-being if not immediately treated. Accordingly, the complaint is devoid of any factual allegations that would suggest that Nurse Stout was aware of facts from which it could be inferred that plaintiff's health was at serious risk, that she drew that inference, and consciously disregarded it.

Because plaintiff's complaint fails to allege facts to establish satisfy either the objective or subjective prongs of the Eighth Amendment deliberate indifference standard, it fails to establish a plausible Eighth Amendment violation based upon the alleged lack of medical treatment for plaintiff's injuries. Accordingly, I recommend dismissal of plaintiff's medical indifference claims and dismissal of all claims as against defendant J. Stout.

C. Leave to Amend

Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark , 927 F.2d 698, 704-05 (2d Cir.1991) (emphasis added); see also Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires"); see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003 (E.D.N.Y.1995) (leave to replead granted where court could not say that under no circumstances would proposed claims provide a basis for relief).

Based upon what little is now known regarding the relevant occurrences, it seems doubtful that plaintiff will be able to state a viable Eighth Amendment claim for medical indifference. *fn10 At this stage of the proceeding, however, the court cannot conclude as a matter of law that no valid claim can be stated. Thus, in light of plaintiff's pro se status and the deference to which he is entitled, I find that plaintiff should be afforded an opportunity to amend his complaint in an attempt to cure the deficiencies associated with his medical indifference cause of action.


Having carefully considered defendants' motion along with plaintiff's opposition, I find that plaintiff has sufficiently stated a plausible claim for use of excessive force, but that his pleading is fatally insufficient with regard to his claim for medical indifference and that it seems unlikely that plaintiff ultimately will be able to allege a constitutional claim. Nonetheless, in view of the formative stage of the proceedings and the deference that must be afforded plaintiff as a pro se litigant, I recommend that plaintiff's medical indifference claim be dismissed, with leave to replead. As to plaintiff's claims of negligence, which are not cognizable under section 1983, those claims should be finally dismissed from this lawsuit.

Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion to dismiss (Dkt. No. 17) be GRANTED, in part, and that plaintiff's claims for negligence be DISMISSED with prejudice, and that plaintiff's claims for medical indifference, including all claims against defendant J. Stout, be DISMISSED with leave to replead; and it is further

RECOMMENDED that defendants' motion to dismiss otherwise be DENIED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

Dated: July 23, 2010

Syracuse, NY

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