Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rush v. Fischer

United States District Court, S.D. New York

February 14, 2013

Basheen RUSH, Plaintiff,
Brian FISCHER, et al., Defendants.

Page 546

[Copyrighted Material Omitted]

Page 547

[Copyrighted Material Omitted]

Page 548

Basheen Rush, Ossining, NY, pro se.

Kevin Ryan Harkins, Assistant Attorney General, New York, NY, for Defendants.


JOHN G. KOELTL, District Judge.

The plaintiff, Basheen Rush, brings this action against the following defendants: Brian Fischer, Commissioner of the New York State Department of Corrections and Community Supervision (" DOCCS" ); Dr. Lester Wright, former Deputy Commissioner and Chief Medical Officer of DOCCS; Nurse Diana Weed; Nurse Practitioner Jill Northrop; Dr. John Alves; Michael Sheahan, Southport Correctional Facility Deputy Superintendent for Security; Sergeant Michael Furman; Paul Chappius, Jr., Southport Correctional Facility Deputy Superintendent for Security; Nurse J. Gutouski; Corrections Officer E. Bryant; Corrections Officer Dean Jandreau; Captain Louis Pingotti; Dr. Wesley Canfield, Southport Correctional Facility Health Services Director; Nurse Angie Gorge; and Physician Assistant Benjamin Oaks (collectively, " the defendants" ).[1],[2] The plaintiff, a pro se inmate, claims that his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution were violated when he was denied certain medical treatment at various correctional facilities. He brings this action pursuant to 42 U.S.C. § 1983. He also alleges that the defendants violated several provisions of the New York State Constitution. The defendants now move to dismiss the Amended Complaint for improper venue and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(3)[3] and 12(b)(6) of the Federal Rules of Civil Procedure, respectively.


In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court's function on a motion

Page 549

to dismiss is " not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if the plaintiff has stated " enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, " the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 776 (2d Cir.2002); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002).

When faced with a pro se complaint, the Court must " construe [the] complaint liberally and interpret it to raise the strongest arguments that it suggests." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010) (brackets and internal quotation marks omitted). " Even in a pro se case, however, ... threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (internal quotation marks omitted). Thus, although the Court is " obligated to draw the most favorable inferences" that the complaint supports, it " cannot invent factual allegations that [the plaintiff] has not pled." Id.


The following facts alleged in the Amended Complaint are accepted as true for the purposes of this motion to dismiss, unless otherwise indicated.

Upon his arrival at DOCCS in July 1995, the plaintiff informed the medical staff that he had an onion allergy. (Am. Compl. ¶ 1.) In February 2000, while at Greenhaven Correctional Facility (" Greenhaven" ), the plaintiff underwent a medical examination for the back and leg pain he was experiencing. (Am. Compl. ¶ 6.) Dr. Magill ordered a course of treatment which included Percocet pain medication, nerve-blocker shots, and a back brace. (Am. Compl. ¶ 7.) In January 2001, also while at Greenhaven, the plaintiff underwent surgery on his right wrist and was recommended a wrist brace and a larger cuff for that wrist. (Am. Compl. ¶¶ 3-4.)

On or about November 1, 2004, the plaintiff was transferred from Greenhaven to Southport Correctional Facility (" Southport" ). (Am. Compl. ¶ 40.) Upon his arrival at Southport, the previously prescribed treatment for all of his medical conditions was stopped. (Am. Compl. ¶¶ 46-47.) In particular, Nurse Weed told the plaintiff that the nerve-blocker shots he requested were a type of medication not allowed at Southport for security reasons. (Am. Compl. ¶¶ 40-41.) On January 24, 2005, Deputy Superintendent of Security Chappius allegedly disregarded the plaintiff's wrist injury by denying him large handcuffs. (Am. Compl. ¶¶ 48-49.) On or about July 15, 2005, the plaintiff was transferred from Southport to Attica Correctional Facility (" Attica" ). (Am. Compl. ¶ 50.) The plaintiff alleges that his previously

Page 550

prescribed medical treatment was stopped approximately two days after his arrival at Attica. (Am. Compl. ¶ 50.)

On or about April 12, 2007, the plaintiff arrived at Sing Sing Correctional Facility (" Sing Sing" ). (Am. Compl. ¶ 51.) While under the care of Sing Sing Medical Director Dr. Pirelli, the plaintiff alleges that he was denied all of his previously prescribed medical treatment. (Am. Compl. ¶ 67.) The plaintiff wrote to Dr. Pirelli, advising him that he was being denied his previously prescribed medical treatment. (Am. Compl. ¶ 68.) Upon his arrival at Sing Sing, the plaintiff was taken to the clinic along with two other inmates who received their pain medications. (Am. Compl. ¶ 62.) Dr. Halcok denied the plaintiff Percocet and told him that the Sing Sing Medical Department does not issue Percocet, even though the other inmates allegedly were given their medications. (Am. Compl. ¶¶ 61-62.) Also upon his arrival at Sing Sing, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.