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David Rivera v. Dr. Lester N. Wright; et al

January 3, 2012


The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge


In accordance with 28 U.S.C. §636(c), the parties have consented to jurisdiction by a United States Magistrate Judge [38].*fn1 Before me is defendants' motion to dismiss plaintiff's complaint pursuant to Fed. R. Civ. P. ("Rule") 12(b)(6) and (c) [60]. For the following reasons, defendants' motion is granted in part and denied in part.


Plaintiff, an inmate, commenced this 42 U.S.C. §1983 action pro se by complaint dated September 23, 2007 (filed February 13, 2008), alleging that defendants, employees of the New York State Department of Correctional Services ("DOCS"), were deliberately indifferent to his medical needs in violation of the Eighth Amendment.*fn2 Plaintiff alleges that upon admission to Downstate Correctional Facility on June 10, 2008, he tested positive for Latent Tuberculosis Infection ("LTI") and was placed on a regimen of preventive therapy, which included "INH" and "B6" twice weekly. Complaint [4], ¶¶19-20. On July 1, 2008 he was transferred to Sing Sing Correctional Facility, and continued this course of treatment. Id.,

¶22. While taking this medication, plaintiff began to experience side effects. Id., ¶23. When he advised defendant Miller on September 18, 1998 of these complications, his medication was discontinued. Id., ¶24. However, it was never explained to plaintiff by defendants Miller or Osorio that "there was a commonly used alternative medication (Rifampin) that could have been prescribed to treat the plaintiff's serious medical condition." Id., ¶25. It was also not explained to plaintiff "the dangers associated with discontinuance of the medication for [LTI], and how the disease could physically harm plaintiff if not properly treated for the full course of one year." Id., ¶27. His LTI was neither monitored or treated. Id., ¶28.

On or about November 2, 1998, plaintiff was transferred to Great Meadow Correctional Facility, where he was screened by defendants Elaine Dunning and Stephanie King. Id., ¶29.*fn3 He alleges that on November 23, 2008, defendant Dunning placed a false notation in the ambulatory record that he refused medication. Id., ¶32 From May 2000 to approximately March 2002, plaintiff was transferred between Cayuga Correctional Facility, Auburn Correctional Facility, and Marcy Correctional Facility. Id.,

¶34. Throughout this period plaintiff was neither monitored nor received treatment for his LTI. Id., ¶35. While at Elmira Correctional Facility in November 2002, plaintiff complained of respiratory problems and defendant Wesley Canfield diagnosed with asthma, but did not discuss alternative treatments for his LTI. Id., ¶39.*fn4 Plaintiff was transferred to Lakeview Correctional Facility in May 2003, and he continued to receive no treatment for his LTI. Id., ¶41.

Following his transfer to Five Points Correctional Facility in November 2003, plaintiff experienced serious respiratory problems and was examined by defendant Herman Fowler, but was not advised of alternative treatments for his LTI. It was not until plaintiff's transfer to Mohawk Correctional Facility that he was prescribed Rifampin for his LTI in January 2006. Id., ¶45. However, because "[p]laintiff was simply called to the facility infirmary and was given the medication without any information as to what it was for, and since plaintiff was not advised of any diagnoses associated with [LTI] he did not take the medication." Id. ¶46. According to plaintiff, the medication prescribed also "appeared to be the standard medication (INH) used to treat symptoms associated with [LTI]." Id., ¶47.

Plaintiff complained to defendant Lester Wright, M.D., the Chief Medical Officer for DOCS, about the prescription, and was advised by letter dated April 19, 2006 from Pedro Diaz, DOCS' Regional Health Service Assistant, that he would be receiving the alternative medication to treat his LTI. Id., ¶¶48-51. Despite this assurance, plaintiff was not provided with the promised alternative medication. Id. ¶52.

Upon his transfer to Marcy Correctional Facility, plaintiff continued his efforts to learn why he was not receiving the alternative medication, and after prevailing on a grievance complaint in July 2006, he began receiving this medication. Id. ¶¶54-59. In July 2006, he also filed a successful grievance complaint permitting him to obtain his medical records. Id., ¶57.

Plaintiff's pro se complaint asserts Eighth Amendment deliberate indifference claims against all defendants for allegedly failing to "make accurate notations in [his] medical records, failing [to] follow proper protocol with regard to plaintiff's alleged refusal of medical treatment[,] failing to provide plaintiff with adequate medical treatment for his serious medical condition [,] failing to provide or offer proper medications [,] failing to inform plaintiff of alternative medications, failing to request DOCS approval of alternative medications (Rifampin/Rifabutin)[,] failing to explain to plaintiff the proper course of treatment to treat his illness, and failing to monitor plaintiff's medical condition." Complaint [1], ¶¶74, 68, 71. After plaintiff's pro se complaint was filed, he was appointed counsel.

Defendants Osorio and King have not been served with the complaint. Defendants' Memorandum of Law [61], p.2. The remaining answering defendants "move to dismiss the complaint in its entirety pursuant to [Rule] 12(b)(6) (as to those defendants who have not answered the complaint) and 12(c) (as to those defendant have answered the complaint)." Defendants' Memorandum of Law [61], p.2. They argue that the complaint should be dismissed against defendant Wright for lack of personal involvement and against the remaining defendants as being time-barred. Id., Points 1 and 2. Plaintiff opposes the motion and, alternatively, seeks leave to amend the complaint. Plaintiff's Memorandum of Law [64], Point III.


A. Dismissal ...

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