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Al-Fatah S. Stewart v. Brian Fisher

December 12, 2011

AL-FATAH S. STEWART, PLAINTIFF,
v.
BRIAN FISHER, COMMISSIONER OF THE DEPARTMENT OF CORRECTIONS; GOVERNOR ANDREW CUOMO; ANTHONY ANNUCCI, DEPUTY COMMISSIONER OF DEPARTMENT OF CORRECTIONS; FREDERICK BERNSTEIN, M.D., CHIEF MEDICAL OFFICER OF GREEN HAVEN C.F.; ERNIE MARTONE, REGIONAL HEALTH SERVICES ADMINISTRATOR; FREDERICK BERNSTEIN, M.D., FACILITY HEALTH SERVICES DIRECTOR; BETSY KELLY, R.N., NURSE ADMINISTRATOR; DEPUTY SUPERINTENDENT KOSKOWSKI; DEPUTY SUPERINTENDENT L. FRANCO; DEPUTY SUPERINTENDENT D. CUNNINGHAM; DEPUTY SUPERINTENDENT S. BRANDOW; LT. T. GOTSCH ; SGT. K. O'CONNOR; CORRECTIONAL OFFICER R. COLLINS; CORRECTIONAL OFFICER HESS, G-H BLOCK YARD TOWER OFFICER ON THE 3 PM TO 11 PM SHIFT ON FEBRUARY 4, 2011; CORRECTIONAL OFFICER COFFEY, E-BLOCK #6 COMPANY OFFICER ON THE 3 PM TO 11 PM SHIFT ON FEBRUARY 4, 2011; CORRECTIONAL OFFICER COFFEY, E-BLOCK #6 COMPANY OFFICER ON THE 3 PM TO 11 PM SHIFT ON FEBRUARY 28, 2011; REGISTERED NURSE RICHARD BURNS; DR. CHAKRAVORTY; DR. BENTIVEGNA, INDIVIDUALLY AND IN THEIR OWN OFFICIAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Harold Baer, Jr., United States District Judge:

OPINION & ORDER

Plaintiff Al-Fatah Stewart ("Plaintiff" or "Stewart"), proceeding pro se, brings this action under 42 U.S.C. § 1983, against New York State Department of Correctional Services Commissioner Brian Fischer, Governor Andrew Cuomo, Deputy Commissioner Anthony Annucci, Chief Medical Officer Frederick Bernstein, Regional Health Services Administrator Ernie Martone, Nurse Administrator Betsy Kelly, Deputy Superintendent of Security Koskowski, Deputy Superintendent L. Franco, Deputy Superintendent D. Cunningham, Deputy Superintendent S. Brandow, Lt. T. Gotsch, Sgt. K. O'Connor, Correctional Officer R. Collins, Correctional Officer Hess, Correctional Officer Coffey, Registered Nurse Richard Burns, Dr. Chakravorty and Dr. Bentivegna (collectively "Defendants"). Plaintiff alleges that Defendants

(1) failed to protect him from harm from other prisoners and (2) denied him adequate medical care for his injuries in violation of his rights under the Eighth Amendment. Defendants have moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motion is granted in part and denied in part. Plaintiff's motion for a preliminary injunction is denied.

I. FACTUAL BACKGROUND

The following facts are taken from Plaintiff's amended complaint and are assumed to be true for the purposes of this motion to dismiss. Plaintiff, a prisoner in the custody of the New York Department of Correctional Services ("DOCS"), alleges that on February 4, 2011, while incarcerated at Green Haven Correctional Facility, he went to the recreation yard and was "brutally stabbed" by another prisoner with an "ice pick type weapon" that went completely through his forearm. Am. Compl. & 23. Plaintiff claims that while he was attempting to fend off any further attacks from the prisoner, the tower officer yelled to "break it up." Id. & 24 Plaintiff went to the exit door to get medical care for his injured arm but was told by the correctional officers behind the door that he could come in early or he could go back in at 8pm. Id. &25. Because the prisoner who had assaulted him stood by the exit door, Plaintiff decided to stand under the guard tower until the yard closed to avoid walking by his assailant. Id. && 26-27.

Plaintiff alleges that when he got back to his cell block, he informed the gallery officer that he had been stabbed. Id. & 28. After asking Plaintiff where he had been stabbed, the gallery officer stated "you'll live, my shift is almost over, if I have to stay here to do paperwork, you'll really get hurt. Go lock in." Id. & 29. Plaintiff went to his cell that Friday evening and stayed there until Sunday afternoon when his injured arm became so painful that he went to the yard to get medical help. Id. & 31. There, he told some prisoners that he was "hurt bad" and about half an hour later he was directed over the loud speaker to report back to his cell block. Id. & 32.

Plaintiff was met by Sgt. O'Connor who asked him in front of other prisoners if he had been stabbed. Id. & 33. Plaintiff, who did not want to be labeled a snitch, stated "not here." Sgt. O'Connor took Plaintiff to an empty room, directed him to strip down to his boxer shorts and inspected the injury. Id. && 35-36. Sgt. O'Connor asked Plaintiff if he knew the identity of his stabber and he stated that he knew the prisoner by face but not by name. Sgt. O'Connor replied "Bullshit," told Plaintiff to get dressed and escorted him to the clinic. Id. & 37.

At the clinic, Nurse Burns asked Plaintiff if he knew what lock jaw was and when Plaintiff indicated yes, Sgt. O'Connor stated "well if you don't tell me who stabbed you, you won't get no medical treatment because when metal passes through flesh, it's a good chance you'll get lock jaw." Am. Compl. && 38-39. When Plaintiff indicated that he didn't know the stabber, Sgt. O'Connor stated "play it your way, I'm writing you a Tier II misbehavior report for not reporting an injury and you'll get 30 days keeplock and if you don't come clean with me by then, we'll see how you fair when you get off keeplock." Id. & 41. Plaintiff was escorted back to his cell without any medical attention. Id. & 42. On February 9, 2011, Sgt. O'Connor issued to Plaintiff a misbehavior report, and on February 12, 2011, after a hearing, Lt. Gotsch issued a sanction of 30 days keeplock. Id. && 43-48.

On February 28, 2011, while Plaintiff was confined to keeplock, Officer Coffey opened his cell and Plaintiff was "viciously stabbed" in the shoulder and stomach by another prisoner. Id. & 50. Plaintiff sustained an injury to his right knee while attempting to defend himself. Id. & 52. He was escorted to the clinic where the medical staff did not treat his injured knee instead telling him that he should not have been fighting. Id. Plaintiff was placed under involuntary protective custody and later issued a misbehavior report for fighting and violent conduct. Id. && 53-55.

II. PROCEDURAL HISTORY

Plaintiff filed his original complaint on March 24, 2011, alleging that Defendants were deliberately indifferent to his safety and his medical needs by failing to protect him from harm and denying him adequate medical care for his injuries. Plaintiff subsequently filed an order to show cause for a preliminary injunction, on May 13, 2011, Defendants filed an opposition to Plaintiff's motion for a preliminary injunction, and on June 1, 2011, Plaintiff filed a reply to the opposition. Plaintiff filed an amended complaint on June 13, 2011, providing the names of the John Doe Defendants. On September 30, 2011, Defendants filed a motion to dismiss the amended complaint, on October 7, 2011, Plaintiff submitted his opposition, on October 21, 2011, Defendants filed a reply and on November 2, 2011, Plaintiff filed a surreply.

III. DISCUSSION

A. Motion for a Preliminary Injunction

Plaintiff's motion for a preliminary injunction to obtain physical therapy and an MRI must be denied. To obtain a preliminary injunction, "the moving party must demonstrate (1) that it will be irreparably harmed in the absence of an injunction, and (2) either (a) a likelihood of success on the merits of their case or (b) sufficiently serious questions going to the merits of the case to make it a fair ground for litigation and a balance of hardships tipping decidedly in its favor." MONY ...


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