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William Crenshaw v. Dr. Ali Syed and Mikhail Gusman

March 8, 2011


The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge


This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff William Crenshaw alleges that Defendants violated his rights under the Eighth Amendment by providing him with inadequate medical care. (Dkt. No. 9.) Currently pending before the Court is Defendants' motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 43.) For the reasons that follow, I recommend that Defendants' motion be granted without leave to amend.


Plaintiff filed the original complaint in this action on February 11, 2009, in the Western District of New York (the "Western District"). (Dkt. No. 1.) The original complaint alleged that various employees of the New York Department of Correctional Services ("DOCS") were deliberately indifferent to injuries that Plaintiff suffered as a result of an attack by another inmate in 1998. Id. at 18 ¶ 62.*fn1 As is relevant here, the original complaint alleged that Defendant Ali Syed, a doctor at Clinton Correctional Facility, informed Plaintiff on November 10, 2004, that he was "suffering from a build-up of calcification inside his cranium, but failed to advise [P]laintiff of what type of corrective measures would be taken to alleviate" the calcification. Id. at 14 ¶ 18.

On April 2, 2009, the Western District directed Plaintiff to file an amended complaint. (Dkt. No. 3.) The court found that the original complaint was subject to dismissal for two reasons: (1) all of the allegations in the complaint involved incidents that occurred more than three years before the complaint was filed and Plaintiff did not allege any facts supporting tolling the statute of limitations; and (2) the complaint sought to hold most of the defendants liable under a respondeat superior theory, which is not permitted in § 1983 lawsuits. Id. at 3-4.

Plaintiff filed a first amended complaint. (Dkt. No. 7.) On August 3, 2009, the Western District found that "Plaintiff has once again failed to show personal involvement on the part of the defendants named in the amended complaint, other than Dr. Ali Syed, and address the statute of limitations issue." (Dkt. No. 8 at 2-3.) The court dismissed Plaintiff's claims against all of the defendants other than Defendant Syed with prejudice. Id. at 9. Noting that the continuing violation doctrine might apply, the court granted Plaintiff leave to amend as to Defendant Syed and advised Plaintiff to name any defendants who had treated Plaintiff within the statute of limitations period. Id. at 7.

In response to the court's order, Plaintiff filed the operative complaint. (Dkt. No. 9.) The operative complaint names Dr. Syed, Dr. Levitt of Wende Correctional Facility, and Dr. Mikhail Gusman of Eastern Correctional Facility as defendants. Id. at 2. The complaint alleges that on December 26, 2001, Defendant Gusman ordered a CT scan of Plaintiff's head. Id. at 6. It revealed extensive calcification to Plaintiff's skull. Id. Plaintiff, who was suffering from migraines two or three times a week, repeatedly asked that the calcification be removed, but Defendant Gusman ignored Plaintiff's requests, continued to treat Plaintiff with "generic medication" that did not stop the headaches, and did not refer Plaintiff to a specialist. Id. On November 10, 2004, Defendant Syed referred Plaintiff for an MRI. Id. The MRI showed calcification. Id. Plaintiff asked Defendant Syed to remove the calcification, but Defendant Syed "continued to prescribe[] . . . medication which did nothing to stop the headaches." Id. Plaintiff "had to take extra dosages of this medication for the medication to work." Id. On or about April 25, 2006, Plaintiff was transferred to Wende Correctional Facility. Id. at 7. Plaintiff complained repeatedly of migraine headaches and was scheduled to see Defendant Levitt. Id. Plaintiff alleges that Defendant Levitt "had a chance to review" Plaintiff's medical file, including the CT scan and MRI reports, but ignored Plaintiff's request to see a specialist and continued to prescribe medication that did not stop the headaches. Id.

The Western District found the operative complaint sufficiently well-pleaded to survive initial review and ordered service on Defendants Syed, Levitt, and Gusman. (Dkt. No. 10.) The court found that:

Plaintiff's allegations regarding the denial of medical care by . . . Dr. Ali Syed and Mikhail Gusman MD date back more than three years prior to the filing of the Complaint. Plaintiff, however, alleges that . . . Dr. Levitt [] was personally involved in the denial of medical care during the three year statute of limitations period. Plaintiff has, therefore, alleged a continuing pattern of medical deliberate indifference, which includes some acts occurring during the three year statute of limitations.

Id. at 3-4.

Defendants Syed and Gusman answered the complaint. (Dkt. Nos. 12, 15, 16.) Thereafter, Defendant Levitt filed a motion for summary judgment in lieu of answer and Defendants Syed and Gusman moved to transfer the case to this District. (Dkt. Nos. 17-21.)

On February 16, 2010, the Western District granted Defendant Levitt's motion for summary judgment in lieu of answer, finding that Plaintiff had failed to exhaust his administrative remedies regarding his claim against Defendant Levitt. (Dkt. No. 37 at 3-4.) The court also granted the motion by Defendants Syed and Gusman to transfer the case to this District. Id. at 4-5.*fn2 Thus, the only claims remaining in this action are Plaintiff's claims against Defendants Syed and Gusman.

Defendants Syed and Gusman now move for judgment on the pleadings, arguing that (1) Plaintiff's claims against them are barred by the statute of limitations and not saved by the continuing violation doctrine; (2) the complaint fails to state a cause of action; and (3) they are entitled to ...

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