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Tyrone Jones, Pro Se v. Christin A. Montalbano

March 13, 2012


The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge:


Pro se plaintiff Tyrone Jones ("Plaintiff"), an inmate currently in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging that defendants Dr. Christin A. Montalbano ("Dr. Montalbano") and Dr. Lester Wright ("Dr. Wright", collectively "Defendants") acted with deliberate indifference to his serious medical condition, in violation of his Eighth Amendment rights. (See generally Doc. Entry No. 1, Compl.) Defendants move to dismiss the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motion is granted.


Plaintiff alleges that on or about the week of February 23, 2009, while he was incarcerated at the Arthur Kill Correctional Facility ("Arthur Kill"), he met with a Dr. Ellen Gompreach ("Dr. Gompreach") for a medical appointment. (Compl. ¶ 7.) During the appointment, Plaintiff informed Dr. Gompreach that he was experiencing eye pain and blurred vision and Dr. Gompreach referred him to Staten Island University Hospital ("SIUH") for emergency services. (Id. ¶¶ 7, 8.) Plaintiff was examined by a specialist/ophthalmologist at SIUH, who prescribed Plaintiff two liquid solutions to treat his eye. (Id. ¶ 9.) Plaintiff applied the solutions, as directed by the specialist/ophthalmologist, until he was summoned to the pharmacy at Arthur Kill. (Id. ¶ 10.) Upon arrival at the pharmacy, a nurse directed Plaintiff to surrender the prescribed eye solutions in exchange for three different solutions. (Id. ¶¶ 10-11.) Plaintiff inquired why he was directed to exchange the medications, whereupon the nurse allegedly informed plaintiff that "the doctor does not want to pay the price for what [SIUH] ordered, so I was ordered to give you a generic brand." (Id. ¶ 11.)

For several weeks after utilizing the generic medication, Plaintiff alleges he experienced worsening eye pain, accompanied by redness and distortion of his already blurred vision. (Id. ¶ 12.) On June 3, 2009, Plaintiff met again with Dr. Gompreach for an examination. (Id. ¶ 13.) Plaintiff explained to Dr. Gompreach that his condition had worsened since taking the generic medication and Dr. Gompreach directed Plaintiff to discontinue use of one of the solutions. (Id.) Additionally, Dr. Gompreach referred Plaintiff to the specialist/ophthalmologist at SIUH for a Vision Field Examination. (Id.)

Plaintiff alleges Dr. Montalbano, a physician at Arthur Kill, ordered the generic medication and directed Plaintiff to use the generic medication instead of the prescribed medication, for the sole purpose of cutting costs to DOCS. (Id. ¶¶ 3, 14, 18.) Plaintiff further alleges the generic medication worsened his painful eye condition. (Id. ¶¶ 13, 14.) Plaintiff therefore asserts that Dr. Montalbano acted with deliberate indifference to "plaintiff's life" when he ordered Plaintiff to utilize the generic medication. (Id. ¶ 14.) Plaintiff additionally asserts that Dr. Montalbano "is well known" for engaging in conduct exhibiting "deliberate indifference to inmates [sic] health, which has resulted in numerous grievances and law suits being filed against [him]." (Id. ¶ 15.)

Plaintiff alleges that Dr. Wright is Dr. Montalbano's supervisor. (Id. ¶ 4.) Plaintiff further alleges that Dr. Wright was "well aware" of the complaints filed by inmates against Dr. Montalbano, but that Dr. Wright "refused" to terminate Dr. Montalbano's employment or reassign him to a different department. (Id. ¶ 16.) Accordingly, Plaintiff seeks to hold Dr. Wright liable for Dr. Montalbano's purported deliberate indifference to Plaintiff's medical condition because Dr. Wright "failed to terminate, correct, and/or monitor" Dr. Montalbano after having been alerted to Dr. Montalbano's alleged deliberate indifference to "inmates [sic] serious medical needs prior to February 2009." (Id. ¶¶ 16, 18.)

Finally, Plaintiff asserts he exhausted all available administrative remedies prior to commencing this action, as required under the Prisoner Litigation Reform Act,42 U.S.C. § 1997e(a). (Id. ¶ 6.) Defendants have not contested this issue.*fn1


I.Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may move, in lieu of an answer, for dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). To determine whether dismissal is appropriate, "a court must accept as true all [factual] allegations contained in a complaint" but need not accept "legal conclusions." Ashcroft v. Iqbal, ------ U.S. --------, --------, 129 S.Ct. 1937, 1949 (2009). For this reason, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to insulate a claim against dismissal. Id. Moreover, "[t]o 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.' " Id. (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint . . . has not shown that the pleader is entitled to relief." Id. at 1950 (internal citations and quotation marks omitted).

In reviewing Plaintiff's complaint, the court is mindful that, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). A district court must nevertheless dismiss an in forma pauperis action when it fails to state a claim on which relief can be granted.

28 U.S.C. § 1915(e)(2)(B)(ii) (1996).

II.Section 1983 and Eighth Amendment ...

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