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Dennis Nelson v. Lester Wright

September 14, 2011

DENNIS NELSON, PLAINTIFF
v.
LESTER WRIGHT, MEDICAL CHIEF; DR. JOHN DOE, MARCY CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Hon. Eric T. Schneiderman

RANDOLPH F. TREECE U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER

Pro se Plaintiff Dennis Nelson filed this civil rights action, pursuant to 42 U.S.C. §1983, alleging that the Defendants violated his constitutional rights while he was incarcerated at Marcy Correctional Facility when his serious medical needs did not get proper medical attention. Dkt. No. 1, Compl. Within the caption of his Complaint, Plaintiff listed as Defendants Lester Wright, Medical Chief, and Dr. John Doe. Id. Alongside his Complaint, Plaintiff submitted a Motion for Leave to Proceed In Forma Pauperis (IFP). Dkt. No. 2, IFP App. On January 25 2011, this Court reviewed those filings and granted Plaintiff permission to proceed with this matter IFP and directed service on the identified Defendant; we further warned Plaintiff that the Marshals Service could not effect service on a Doe Defendant and directed him to take steps to identify this Defendant so that he or she could be joined in this action.*fn1 Dkt. No. 7.

Presently before the Court is Defendant Wright's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 16. Despite being provided an extension of time, Plaintiff has not submitted papers in opposition to Defendant's Motion.

I. BACKGROUND

The following facts are derived from the Complaint, which, in accordance with the applicable standard of review, must be taken as true. See infra Part II.A.

Plaintiff has an infection in his left leg that is not healing because of his medical condition as a Type II Diabetic. Compl. at ¶¶ 4 & 6. On July 20, 2010, an unidentified nurse told Plaintiff that

his leg will never heal. Id. at ¶ 6. The size of the infection ("the hole") is ten inches wide and thirteen inches long and is "draining green" fluid out of it. Dkt. No. 1, Attach. to Compl., Inmate Grievance Compl., dated July 14, 2010. Plaintiff alleges that: 1) he is not getting the right treatment at Marcy; 2) a wet and dry treatment will not heal his leg; and 3) he has requested a transfer to an outside hospital in order to receive proper treatment. Compl. at ¶ 4 & Attach. to Compl. Plaintiff has indicated that he notified the prison authorities and presented the facts relating to his Complaint through the prisoner grievance program, but has not received an answer. Compl. at ¶ 4.

Plaintiff has not alleged any personal, direct, or indirect involvement by either of the listed Defendants and is seeking unspecified damages in the amount of $9,999.99. Id. at ¶ 7.

II. DISCUSSION

A. Standard of Review

On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).

"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice." Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Moreover, "even if not attached or incorporated by reference, a document 'upon which [the complaint] solely relies and which is integral to the complaint' may be considered by the court in ruling on such a motion." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)).

The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 n. 6 (1963); see also Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009). Therefore, ...


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