The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
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 Hodges is alleging that the Defendants violated his rights under the Eighth and Fourteenth Amendments, the Americans with Disabilities Act, and the Rehabilitation Act. He is also alleging a violation of New York State Public Health Law § 2803-c (2002). (Dkt. No. 19.)
Currently pending before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 22.) For the reasons that follow, I recommend that Defendants' motion be granted, and I also recommend that Plaintiff be given an opportunity to amend his amended complaint for all claims except the claim under New York Public Health Law.
Plaintiff, a prisoner currently incarcerated at Great Meadow Correctional Facility, alleges that on August 16, 2008, his left knee was seriously injured when he slipped and fell on some paint while incarcerated at the Elmira Correctional Facility. (Dkt. No. 19 ¶ 14.) He requested Emergency Sick Call and was taken to the infirmary, where he was given ice and ibuprofen and was not seen by a doctor. Id. ¶ 15. On August 18, 2008, Plaintiff received an X-ray, was given crutches and a bandage, and was returned to his cell without being seen by a doctor. Id. ¶ 16. Thereafter, he made a request to see a doctor which was denied. Id. ¶ 17. He then filed a grievance on September 6, 2008, requesting again to see a doctor. (Dkt. No. 19 at 14-18*fn1).
Plaintiff was transferred to Upstate Correctional Facility on September 15, 2008. Id. ¶ 19. On October 4, 2008, while incarcerated at Upstate, Plaintiff was required to switch from a bottom bunk to a top bunk. Id. ¶ 21. As a result of this reassignment, he claims that, because of his knee injury, he was forced to sleep on the floor, causing him "severe pain and stress." Id.
Plaintiff then wrote to the Superintendent of the Facility requesting medical treatment and advising that he was sleeping on the floor. Id.
Plaintiff was seen by Dr. DeAzevedo on October 20, 2008 and requested further tests, evaluation by a specialist, and a bottom bunk permit due to his inability to climb to the top bunk. Id. ¶ 22. Dr. DeAzevedo denied his requests and diagnosed Plaintiff with arthritis. Id. ¶ 23. Plaintiff claims that his injuries went unaddressed for his entire stay at Upstate. Id. ¶ 24.
While at Upstate Correctional Facility, Plaintiff filed four grievances relating to his medical care. (Dkt. No. 19 at 20-32). Each grievance was appealed to the Superintendent, and the first three cases were reviewed and investigated by N. Smith.*fn2 Id. at 22, 25, and 28. Each of Ms. Smith's investigations included a review of Plaintiff's medical requests, medication recommendations, physician evaluations, assessment of his medical needs, and necessary next steps. On each of these three occasions, Ms. Smith concluded that Plaintiff had received appropriate care. Id. Plaintiff then further appealed each grievance to the Central Office Review Committee, which upheld each of the Superintendent's decisions. Id. at 23, 26, 29, and 32. During his time at the Upstate facility, Plaintiff wrote to the Superintendent twice and to the Nurse Administrator, later identified as Defendant Smith, five times regarding his care. Id. at 34-46. Defendant Smith responded three times. Id.
On November 12, 2008, Plaintiff was transferred to Great Meadow Correctional Facility. Id. ¶ 25. He made several requests to be seen by a doctor or specialist. Id. ¶ 25. Plaintiff filed a grievance on January 14, 2009, regarding his medical needs. (Dkt. No. 19 at 48-50). While at Great Meadow, Plaintiff sent two letters to the Nursing Administrator and received a response back from Defendant Collins. Id. at 52-55.
On February 26, 2009, Plaintiff was seen by Dr. Karandy who recommended therapy and referral to an orthopedic specialist. Id. ¶ 27. Plaintiff was then seen by Dr. Rubinovich, an orthopedic specialist, on April 9, 2009; he was diagnosed with a torn patellar tendon and underwent surgery on April 20, 2009, and on January 18, 2010. Id. ¶ 29.
Plaintiff commenced this action on May 6, 2010, against J. Collins, Dr. DeAzevedo, Nancy Smith, Lester N. Wright, and John and Jane Doe in their individual and official capacities. (Dkt. No. 1.) The Complaint was later amended on August 3, 2010, to include Jill Northrup. (Dkt. No. 19.) Plaintiff is seeking declaratory, injunctive, and monetary relief. Id ¶¶ 38-41.
Defendants now move to dismiss the amended complaint. (Dkt. No. 22.) Plaintiff has opposed the motion. (Dkt. No. 24.)
II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
A defendant may move to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted.
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The requirement that a plaintiff "show" that he or she is entitled to relief means that 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');">129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (emphasis added). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief." Id. at 1950 (internal citation and punctuation omitted).
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). Courts are "obligated to construe a pro se complaint liberally." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949.
Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation and citation omitted). An opportunity to amend is not required where, as here, a plaintiff has already amended the complaint. See Advanced Marine Tech. v. Burnham Sec ., Inc., 16 F. Supp. 2d 375, 384 (S.D.N.Y. 1998) (denying leave to amend where plaintiff had already amended complaint). In addition, an opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco, 222 F.3d at 112 (citation omitted).
On June 16, 2010, Plaintiff filed a motion to amend his complaint to substitute Jill Northrup for the "Jane/John Doe" Defendant. (Dkt. No. 11.) This motion was granted on August 3, 2010. (Dkt. No. 18.) This amendment was solely to name an additional Defendant and did not address the substance of the complaint. Therefore, as is stated below, I recommend that Plaintiff be given another opportunity to amend in order to address the ...