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George White v. L. Sears; Doctor Cholom; Doctor Ali; and Nurse Montroy

July 16, 2012

GEORGE WHITE, PLAINTIFF,
v.
L. SEARS; DOCTOR CHOLOM; DOCTOR ALI; AND NURSE MONTROY, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On June 21, 2010, Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment of the United States Constitution. In an Order dated July 12, 2011, the Court dismissed Plaintiff's complaint, but granted Plaintiff leave to amend. See Dkt. No. 24. On September 19, 2011, Plaintiff filed an amended complaint. See Dkt. No. 26.

Currently before the Court is Plaintiff's objection to Magistrate Judge Dancks' May 15, 2012 Report-Recommendation, which recommended that the Court sua sponte dismiss Plaintiff's amended complaint without leave to amend. See Dkt. No. 29 at 1.

II. BACKGROUND

A. Factual Background

In his amended complaint, Plaintiff claims that Defendants were deliberately indifferent in providing inadequate care while incarcerated at Ogdensburg Correctional Facility, allegedly causing further health problems, degeneration, and emotional stress and mental anguish. See Dkt. No. 26 at ¶ 4. Plaintiff's injury stemmed from an incident that occurred on May 8, 2007, prior to his being incarcerated, in which a glass window fell on him during work, severing tendons in his arm. See id. Plaintiff underwent surgery and physical therapy. See id. Plaintiff's doctor recommended symptomatic treatments two times per week. See id.

On July 18, 2008 Plaintiff was sentenced to two-and-one-half to five-years incarceration after pleading guilty to burglary. See id. Plaintiff began treatment for his injuries with Defendant Cholom and Defendant Ali on July 28, 2008. See id. After eight physical therapy sessions, Defendants Cholom and Ali concluded that Plaintiff no longer needed to attend physical therapy. See id. Defendant Cholom prescribed Naproxen to Plaintiff, which Plaintiff claims caused stomach pain. See id. Thereafter, Plaintiff filed two grievances regarding his medical treatment, both of which were denied by the Inmate Grievance Resolution Committee ("IGRC"), as per Defendant Sears' recommendation. See id. Plaintiff informed Defendant Montroy of his stomach pains, and in response, was instructed to discontinue taking the medication. See id.

Plaintiff's first cause of action listed in his amended complaint alleges that Defendant Montroy was involved in "legal negligence," and deliberately intended to "deny, delay and interfere" with Plaintiff's serious medical needs. See id. at ¶ 5. The second cause of action alleges that Defendant Cholom provided inappropriate medical care. See id. Plaintiff's third cause of action alleges that Defendant Ali "overlook[ed] the fact that [ ] Plaintiff was a diabetic." See id. The fourth cause of action claims that Defendant Sears' involvement was not thoroughly considered by the Court in dismissing him from this action, and asks that the Court reinstate Sears as a Defendant because he has authority over the medical staff at Ogdensburg Correctional Facility. See id. Lastly, in the fifth cause of action, Plaintiff adds "Jerry," a physical therapist at Gouverneur Correctional Facility, as a Defendant, claiming he "showed [a] lack of professional medical care" and is "also liable due to his professional knowledge and involvement" in Plaintiff's care while at Ogdensburg Correctional Facility. See id. Plaintiff requests in his prayer for relief that he be awarded no less than $75,000 for pain and suffering due to Defendants' "intentional interference with a prescribed treatment" which "show[s] that they are blameworthy to medical malpractice." See id. at ¶ 6.

B. Magistrate Judge Dancks' Report-Recommendation

In her Report-Recommendation dated May 15, 2012, Magistrate Judge Dancks recommended that the Courtsua sponte dismiss Plaintiff's amended complaint.See Dkt. No. 29 at 1. Magistrate Judge Dancks concluded that Plaintiff's amended complaint does not cure the deficiency of his original complaint, which was dismissed for a failure to "allege facts plausibly suggesting Defendants acted with deliberate indifference." See id. at 8.

Magistrate Judge Dancks noted that "Plaintiff's claimsagainst Defendants Montroy, Cholom, and Ali refer explicitly to medical malpractice and negligence" which Magistrate Judge Dancks noted are not actionable as Eighth Amendment claims. See id. With respect to Plaintiff's claim that Defendant Ali "overlooked" the fact that Plaintiff is a diabetic, Magistrate Judge Dancks recommended that this claim also fails to allege facts plausibly suggesting that Defendant Ali acted with deliberate indifference toward Plaintiff's serious medical needs.See id. Regarding Plaintiff's claim against Defendant Sears,*fn1 Magistrate Judge Dancks recommended that the claim should be dismissed without leave to amend because Plaintiff relies on the theory of respondeat superior, which Magistrate Judge Dancks noted is insufficient to show personal involvement in the alleged unlawful conduct.See id. at 8-9.

III. DISCUSSION

A. Standard of ...


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