The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:
Pro se Plaintiff Stanley Arnold ("Plaintiff" or "Arnold") brings this action under 42 U.S.C. § 1983 against Defendants Anthony Amicucci, Warden of the Westchester County Correctional Facility ("Amicucci"); Jane Pullis ("Pullis"); June Yozzo ("Yozzo"); and Any Itty ("Itty") (collectively, "Defendants"). Arnold claims that, while he was a resident of the Westchester County Jail, Defendants deprived him of his constitutional rights by being deliberately indifferent to his medical needs, falsifying his medical records, and interfering with his legal mail. Arnold filed his initial Complaint on February 17, 2010, his Amended Complaint on May 14, 2010, and his Second Amended Complaint on December 15, 2010. On March 3, 2010, the Court referred the matter to Magistrate Judge Ellis for pretrial supervision. On February 10, 2011, Amicucci filed a motion to dismiss. Defendants Pullis, Itty, and Yozzo filed their motion to dismiss on May 5, 2011. On June 18, 2011, Magistrate Judge Ellis filed his Report and Recommendation ("R&R") that the Court dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6). On August 2, 2011, the Court received Arnold's objections to Magistrate Judge Ellis's R&R. Having reviewed the R&R and Arnold's objections, the Court adopts the R&R in its entirety. Accordingly, Defendants' motions are GRANTED, and the case is dismissed.
On December 5, 2009, while detained at the Westchester County Jail, Arnold developed a lip infection. He requested an emergency sick call the following day, and was examined by Itty, a nurse practitioner. Itty determined that Arnold's face was irritated and prescribed him ibuprofen - she did not prescribe him antibiotics or refer him to a doctor. On December 7, Arnold submitted a formal sick-call slip and on December 8, he filed a grievance. In his grievance, Arnold stated that his condition had worsened, that he had not been able to sleep for two days due to the pain, and that he had been misdiagnosed by Itty. Soon after, Arnold was examined by medical staff, who diagnosed his facial infection and prescribed antibiotics. On December 9, Arnold's infection became even worse, causing him to file a second grievance on December 10. Amicucci reviewed the grievance, arranged for Arnold to receive care at a clinic inside the jail, and arranged for photographs to be taken of Arnold's face. Arnold claims that he endured severe pain in the days after, as the infection had spread to his nasal cavity. He alleges that it took fifty-three days for the infection - and the pain - to subside.
After Arnold filed his December 8, 2009 grievance, an officer reviewing Arnold's medical file noted that it did not contain a record of Arnold's December 6 visit with Itty. On December 15, Arnold filed a third grievance, claiming that Yozzo had refused to provide him with copies of medical records from his December 6 visit, even though she told him that she had such records. In response to this grievance, Yozzo stated that Itty had made a note during Arnold's December 6 visit, but that Itty did not have Arnold's medical file at the time of the visit. As a result, said Yozzo, Itty later put the note in Arnold's medical file, and Arnold would receive a copy of the note once they processed his request. Itty's note states that Arnold's lip was swollen, that she prescribed ibuprofen, and that she told him to return if the pain or swelling increased. Arnold claims that Itty's note was fabricated.
On December 11, 2009, Arnold sent a letter to the Westchester County Attorney's office noting the claims raised in this action. Arnold alleges that Amicucci and Pullis opened the letter, removed a copy of his December 8 grievance, and removed the certified mail label. As a result, claims Arnold, the letter was returned to him because it was not sent by certified mail. Arnold claims to know that his letter was tampered with because, when it was returned, it was missing the certified mail label and the December 8 grievance.
MAGISTRATE JUDGE ELLIS'S R&R
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "[T]hreadbare recitals of the elements of the cause of action, supported by mere conclusory statements, do not suffice." Id. Pleadings of a pro se plaintiff are held to a less stringent standard and should be construed liberally "to raise the strongest arguments that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
Magistrate Judge Ellis noted that, "[o]n a motion to dismiss, the court is generally limited to reviewing the allegations in the complaint and documents attached to it or incorporated into it by reference," in addition to documents the plaintiff necessarily relied upon in drafting the complaint. (R&R 5 (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)).) Defendants Itty, Yozzo, and Pullis submitted affidavits in support of their motion to dismiss. Magistrate Judge Ellis found that these documents could not be considered by the Court unless the motion was converted into one for summary judgment. (Id. 5 n.2.) Because Arnold has not been afforded any discovery, Magistrate Judge Ellis declined make such a conversion and, therefore, did not consider the affidavits in his R&R. (Id.)
I. Deliberate Indifference Claim Against Itty
Arnold alleges that, in misdiagnosing his infection and failing to prescribe antibiotics, Itty was deliberately indifferent to his medical needs. Inadequate medical treatment amounts to a constitutional deprivation where a prisoner alleges "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976)).) To state such a claim, Arnold must show (i) an objective medical need, and (ii) deliberate indifference - specifically, a sufficiently culpable state of mind. (R&R 6 (citing Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003)).)
Magistrate Judge Ellis found that "a three-day delay in treatment can be objectively serious depending on the nature of the medical emergency." (Id. 7.) Thus, he found that without the benefit of discovery, he could not assess whether the three-day delay in prescribing Arnold antibiotics constituted "inadequate treatment of a serious medical need." (Id.) As a result, Magistrate Judge Ellis could not conclude that there was no serious medical need. (Id.)
In order to satisfy the subjective prong, Arnold must show that Itty "[knew] of and disregard[ed] an excessive risk to inmate health or safety." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). In addition, Itty "must both [have been] aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [she] must also [have] draw[n] the inference." Id. "Generally, a prisoner's mere allegations of negligent malpractice do not state a claim for deliberate indifference." (R&R 7-8 (citing Carpenter, 316 F.3d at 183-84).) Magistrate Judge Ellis found that Arnold did not allege that Itty knew that her failure to prescribe antibiotics could lead to an excessive risk to Arnold's health and safety and that, at most, Arnold alleged negligence. (Id. 8) In addition, Magistrate Judge Ellis found that "Arnold's medical condition does not make it inherently obvious that a serious medical condition existed." (Id.) As a result, Magistrate Judge ...