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George W. Simmons v. Chief Doctor Mr.

March 7, 2011

GEORGE W. SIMMONS,
PLAINTIFF,
v.
CHIEF DOCTOR MR. PEDROZA AND MEDICAL NURSES 7 TO 3 SHIFT,
DEFENDANTS.



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

MEMORANDUM OPINION & ORDER

In this Section 1983 action*fn1 against Defendants Jorge Pedroza -- the Chief Medical Administrator -- and medical nurses on the "7 to 3 shift" at Otis Bantum Correctional Center ("OBCC") on Rikers Island, pro se Plantiff George Simmons alleges that Defendants left him lying on the clinic floor without pain medication for hours after his leg gave out due to a tumor on his spine. Simmons alleges that Defendants' actions constitute cruel and unusual punishment, "deliberate indifference to [Plaintiff's] serious medical needs," and malpractice. (Cmplt. § IV-A)

Defendants have moved to dismiss, or in the alternative for summary judgment, arguing that Simmons has failed to set forth a plausible claim for relief, failed to state a claim under 42 U.S.C. § 1983, failed to state a Fourteenth Amendment claim, and that, in any event, they are entitled to qualified immunity. For the reasons set forth below, Defendants' motion to dismiss and motion for summary judgment will be denied.

BACKGROUND

The Complaint asserts the following facts in support of Simmons' claims:

On 12-10-09 I George Simmons went to sick-call [due] to back-pains[.] As I stood up, my right leg gave on me [due] to a tumor growing on my spine. I [laid] on the floor inside [the] clinic over [an] hour, screaming for help[.] Doctor told me to get up, I told him I couldn't my leg gave out on me. He said to nurses [and] officer leave him till he walk back to Clinic Room. After an hour or more he [brought] board an -- stretcher pull me up left me for hours laying on a hard board no medication for pain nothing! (Cmplt. § IV)

The documents attached to the Complaint indicate that Simmons "ha[d] a tumor on his spine and was supposed to have an operation while at Bellevue [Hospital], when he was suddenly removed from Bellevue and taken to Rikers Island." (Cmplt., Legal Aid Society email)

DISCUSSION

I. LEGAL STANDARD

"To survive a motion to dismiss, a claim must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v.Iqbal, 556 U.S. ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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)).

A complaint is inadequately pled "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement,'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557), and does not provide factual allegations sufficient "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. 544).

"When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' . . . complaint, . . . to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

Because Simmons is proceeding pro se, this Court is required to read his complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) ("A document filed pro se is to be 'liberally construed.'"). Accordingly, this Court will construe the Plaintiff's complaint "'to raise the strongest arguments that [it] suggest[s].'" Fulton v. ...


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