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Arrington v. Department of Veterans Affairs

United States District Court, Second Circuit

June 6, 2013



LAWRENCE E. KAHN, District Judge.


On June 26, 2012, pro se Plaintiff Carl R. Arrington ("Plaintiff") filed a civil rights Complaint against Defendants pursuant to 42 U.S.C. § 1983. Dkt. No. 1 ("Complaint"). On September 27, 2012, with the consent of Defendants, Plaintiff filed an Amended Complaint, stating claims under 42 U.S.C. § 1983 as well as Title VII of the Civil Rights Act of 1964 and making reference to "medical negligence." Dkt. No. 15 ("Amended Complaint"). Presently before the Court is Defendants' Motion to dismiss Plaintiff's Amended Complaint. Dkt. No. 17 ("Motion"). Plaintiff has not responded to this Motion. See generally Dkt. Instead, Plaintiff filed a Letter Motion, which was subsequently denied by the Honorable Randolph F. Treece, U.S. Magistrate Judge, requesting that the Court appoint a mediator to resolve this matter. Dkt. No. 21; Text Order dated December 5, 2012. For the following reasons, the Court grants Defendants' Motion and dismisses Plaintiff's Amended Complaint in its entirety.


Plaintiff is an African American veteran of the U.S. armed forces, and his claims arise from his medical treatment at a Veterans Affairs ("VA") facility. See generally Am. Compl. Plaintiff suffers from "[d]epressive mood or depression" and has struggled with anxiety problems for "a number of years." Id. at 3. Plaintiff also has limited use of his left thumb as a result of a prior injury. Id.

In the spring of 2009, Plaintiff visited the VA Medical Center in Albany, New York. Id . Plaintiff met with Defendant Dr. James I. Dolph ("Dolph"), who "promised" Plaintiff that he (Defendant Dolph) "could successfully make a tendon-rod transfer surgery of [Plaintiff's] left thumb that would improve [Plaintiff's] ability to use it." Id . Defendant Dolph operated on Plaintiff in May and August 2009, but the surgeries were unsuccessful. Id . The hunter rod became dislodged in Plaintiff's forearm at some point during or between the surgeries, requiring two additional incisions to be made in Plaintiff's forearm that resulted in scarring. Id . Plaintiff also alleges that he suffers from even more pain in his left hand and forearm than he did prior to the surgeries. Id.

In addition to this alleged medical negligence on the part of Defendant Dolph, Plaintiff contends that Defendant Dolph also created a "hostile environment" during the second surgery on Plaintiff's thumb. Id. at 3. During the course of the August surgery, Defendant Dolph allegedly said "Got Damit [sic], what the hell happened here?... Oh shit[;] it slid down in his arm, Oh hell! I must send for x-rays to be done." Id. at 2. This cursing frightened Plaintiff and caused him great anguish, exacerbating his already-severe anxiety and depression. Id . Plaintiff alleges that this conduct by Defendant Dolph was a: (1) "Violation of [Plaintiff's] civil rights to have an environment of respect and dignity during surgery"; (2) "Violation of [Plaintiff's] civil rights as a patient to have an environment free of intimidation and fear"; and (3) "Violation of [Plaintiff's] civil rights as a U.S. Army veteran to have a successful surgery free of hostility and inhumane behavior by a doctor during surgery." Id. at 3. Plaintiff also alleges that "[t]he doctor and the VA Medical Center violated [Plaintiff's] civil rights in [the] operating room through verbal abuse." Id . Further, Defendants "failed to respect [Plaintiff's] religious values." Id . As a result of this alleged misconduct, Plaintiff suffers from "persistent depression" and "pain and agony that produces headaches and perennial suffering." Id.


A. Motion to Dismiss[1]

To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). Such a determination "requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679 (citation omitted). A court must accept as true the factual allegations contained in the complaint and draw all inferences in favor of a plaintiff. See Allaire Corp. v. Okumus , 433 F.3d 248, 249-50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id . (citing Twombly , 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678-79.

Additionally, the allegations of a pro se litigant are to be construed under a "less stringent standard[] than formal pleadings drafted by lawyers." Haines v. Kerner , 404 U.S. 519, 520-21 (1972); see also Harris v. Mills , 572 F.3d 66, 72 (2d Cir. 2009).

In reviewing a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court "must accept as true all material factual allegations in the complaint, but [it is] not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Schs. , 386 F.3d 107, 110 (2d Cir. 2004). A court "may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional issue, but [it] may not rely on conclusory or hearsay statements contained in the affidavits." Id . "Furthermore, jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.'" Gunst v. Seaga, No. 05 Civ. 2626 , 2007 WL 1032265, at *2 (S.D.N.Y. Mar. 30, 2007) (quoting Shipping Fin. Servs. Corp. v. Drakos , 140 F.3d 129, 131 (2d Cir. 1998)).

B. Leave to Amend the Complaint

Rule 15 of the Federal Rules of Civil Procedure states that "a party may amend its pleading only with the opposing party's written consent or the court's leave[, ]... [but that t]he court should freely give ...

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