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