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Jason Phillips v. (Gts/Rft) Lester Wright

January 11, 2011

JASON PHILLIPS, PLAINTIFF,
v.
(GTS/RFT) LESTER WRIGHT, DR., DEPUTY COMMISSIONER AND CHIEF MEDICAL OFFICER; JESUS FLORESCA, M.D., ULSTER CORRECTIONAL FACILITY; ZULMA, M.D.,*FN1 MID-ORANGE CORRECTIONAL FACILITY; SUSAN MUELLER, M.D. WALLKILL CORRECTIONAL FACILITY; TIMOTHY WHALEN; AND APS HEALTHCARE, INC., DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court in this pro se prisoner civil rights action filed by Jason Phillips ("Plaintiff") are the following: (1) a motion to dismiss for failure to state a claim upon which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6), filed by Lester Wright, Jesus Floresca, Zamilus, MD, Susan Mueller, Timothy Whalen, and APS Healthcare, Inc. ("Defendants") (Dkt. No. 12); (2) Plaintiff's cross-motion to Amend/Correct his Complaint (Dkt. No. 25); (3) United States Magistrate Judge Randolph F. Treece's Report-Recommendation, recommending that (a) Defendants' motion to dismiss be granted in part and denied in part, such that Defendants Floresca, Zamilus, and Mueller be dismissed from this action, and (b) Plaintiff's cross-motion to amend his Complaint be granted in part and denied in part (Dkt. No. 25); and (4) the parties' Objections to that Report-Recommendation (Dkt. Nos. 29-31). For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety; Defendants' motion is granted in part and denied in part; Plaintiff's cross-motion is granted in part and denied in part; and Plaintiff's revised proposed Amended Complaint (Dkt. No. 31) is accepted for filing.*fn2

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Plaintiff filed his Complaint pro se on November 27, 2009. (Dkt. No. 1.) Generally, construed with the utmost of liberality, Plaintiff's Complaint alleges that, between September 2007 and September 2009, while he was incarcerated at several New York State Department of Correctional Services correctional facilities,*fn3 Defendants failed to surgically remove a lump on his back due to prison policy that categorizes all benign lipomas as surgically unwarranted,*fn4 despite the fact that (1) the lump continued to grow, (2) caused him severe pain and discomfort, and (3) limited his range of motion in his right arm. (Dkt. No. 1, "Facts," at 4-7.) For a more detailed recitation of the factual allegations giving rise to Plaintiff's claims, the Court refers the reader to the Complaint in its entirety, and to Magistrate Judge Treece's thorough Report-Recommendation, which accurately summarizes that Complaint. (See generally Dkt. Nos. 1,28.)

Based on these factual allegations, Plaintiff claims that Defendants were deliberately indifferent to his serious medical needs, in violation of his rights under the Eighth Amendment to the United States Constitution. (Dkt. No. 1, "Points of Law," at 7-9.)

B. Relevant Procedural History

On January 22, 2010, Defendants filed their motion to dismiss Plaintiff's Complaint for failure to state a claim. (Dkt. No. 12.) In support of their motion, Defendants argue that Plaintiff's Eighth Amendment claims must be dismissed because he has failed to allege facts plausibly suggesting that (1) his lipoma constituted a serious medical need that required surgical removal, and (2) Defendants were deliberately indifferent to that serious medical need. (Dkt. No. 12, at 5-7.)

On April 9, 2010, Plaintiff submitted a memorandum of law in opposition to Defendants' motion to dismiss and in support of his cross-motion to amend his Complaint. (Dkt. No. 25.) In that memorandum of law, Plaintiff argues, inter alia, as follows: (1) his allegations that his lipoma caused him to suffer pain and debilitation, which interfered with his daily activities, plausibly suggest that his lipoma constitutes a serious medical need; (2) his allegations that Defendants Wright, Whalen, and APS Healthcare, Inc., categorized lipoma surgeries as cosmetic without considering location, pain, or growth rate, plausibly suggest that these Defendants were deliberately indifferent to his serious medical needs; and (3) his allegations that Defendants Floresca, Mueller, and Zamilus repeatedly delayed requests for surgery consultations, failed to appeal disapprovals for surgery, and substituted pain management for surgery, plausibly suggest a claim of deliberate indifference to his serious medical needs. In addition, now proceeding through counsel, Plaintiff seeks leave to amend his original Complaint. (Dkt. No. 25, at 27.)

On August 11, 2010, Magistrate Judge Treece issued a Report-Recommendation recommending as follows: (1) that Defendants' motion to dismiss be granted with regard to Plaintiff's claims against Defendants Floresca, Mueller, and Zamilus based on a lack of personal involvement;*fn5 (2) that Defendants' motion to dismiss be denied with regard to Plaintiff's claims against Defendants Wright, Whalen, and APS Healthcare, Inc.; and (3) that Plaintiff's cross-motion to amend his Complaint be granted in part and denied in part. (See generally Dkt. No. 28.)*fn6 Familiarity with the grounds of Magistrate Judge Treece's Report-Recommendation is assumed in this Decision and Order, which is intended primarily for the review of the parties.

On August 19, 2010, Defendants submitted their objections to the Report-Recommendation. (Dkt. No. 29.) In their objections, Defendants argues as follows: (1) Plaintiff has failed to allege facts plausibly suggesting that he suffered from a serious injury, which the Second Circuit has defined as "a condition of urgency, one that might produce death, degeneration, or extreme pain"; and (2) he has failed to allege facts plausibly suggesting that Defendants were deliberately indifferent to his serious medical needs, in part because allegations of disagreement with a treatment plan do not give rise to an Eighth Amendment deliberate indifference to serious medical needs claim. (Dkt. No. 29.)

On August 26, 2010, Plaintiff submitted a letter-brief in response to Defendants' objections to the Report-Recommendation. (Dkt. No. 30.) In this letter-brief, he argues, inter alia, that this Court should review the Report-Recommendation for clear error because Defendants' objections are general in nature, and simply restate arguments previously raised and rejected by Magistrate Judge Treece. (Id.)

On August 26, 2010, Plaintiff filed a revised proposed Amended Complaint in support of his cross-motion to amend. See, supra, Note 2 of ...


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