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Crique v. Magill

United States District Court, Second Circuit

July 9, 2013

DR. RICHARD MAGILL et al., Defendants.


PAUL A. CROTTY, District Judge.

In this action, Plaintiff Roger Jason Crique ("Crique"), proceeding pro se, asserts a claim under 42 U.S.C § 1983, alleging that defendants Dr. Richard Magill and Mount Vernon Hospital violated his Eighth Amendment rights by delaying treatment for pain caused by a K-wire that became dislodged from his hand after surgery. (Dkt. No. 2.)[1] Defendants moved to dismiss for failure to state a claim, or in the alternative, for summary judgment. On May 1, 2013, Magistrate Judge Gabriel W. Gorenstein issued a Report and Recommendation ("R&R") that the defendants' motion to dismiss should be granted. (Dkt. No. 56.) No objections have been filed. For the reasons set forth below, the Court adopts Magistrate Judge Gorenstein's R&R in its entirety.


A. Factual Background and Procedural History

The factual background of this dispute is set forth in the May 1, 2013 R&R. (R&R at 1-2.) Crique is currently imprisoned at Green Haven Correctional Facility. (Dkt. No. 2, Compl. ¶ I.A.) On January 25, 2012, Crique underwent hand surgery at Mount Vernon Hospital, during which a K-wire was put into Crique's "hand/thumb." (Id. ¶ II.D.) After the surgery, the wire "slipped/dislodged from its initial setting, " causing Crique "immense pain and suffering, (Id.) Crique does not state the precise date that the wire became loose. Crique was scheduled to have a "follow[-]up procedure" with Dr. Magill on February 8, 2012; however, that appointment was rescheduled for February 16, 2012 "due to cancellation." (Id.) At a time unspecified in the complaint, Crique "pleaded with Dr. Magill to remove the displaced K-wire that was lodged in [his] thumb." (Id.) Dr. Magill did not immediately remove the wire or provide antibiotics. (Id.) On February 28, 2012, medical staff at Green Haven prescribed antibiotics. (Id.) On March 8, 2012, 43 days after the original surgery, Dr. Magill removed the K-wire. (Id.)

The procedural history of the action is set forth in the R&R on pages three and four and footnotes one and two of this order. In relevant part, Crique filed his complaint on April 26, 2012. (Dkt. No. 2.) On November 21, 2012 and January 31, 2013, Dr. Magill and Mount Vernon each respectively filed a motion to dismiss or in the alternative, for summary judgment. (Dkt. Nos. 29, 41.) On January 31, 2013, Crique moved for a default judgment, and also requested an order "issuing a stipulation settlement for the total of $9, 500.00." (Dkt. No. 52.)

B. Magistrate Judge Gorenstein's Report and Recommendation

In the R&R dated May 1, 2013, Magistrate Judge Gorenstein recommended that the defendants' motions to dismiss be granted. First, the Magistrate Judge declined to convert the defendants' motions to dismiss into motions for summary judgment. Since both defendants withdrew their exhaustion defense, [2] the Magistrate Judge did not have occasion to consider any accompanying materials outside the pleadings. (R&R at 8.) With respect to the § 1983 claim, Magistrate Judge Gorenstein concluded that Crique failed to satisfy the subjective element of the deliberate indifference analysis because at most, Crique's allegations sounded in ordinary negligence, not criminal recklessness. (Id. at 9-12.) He opined that the plaintiff's factual allegations with respect to timing and any delays in treatment did not plausibly show that the defendants deliberately provided inadequate medical care. (Id.) Further, Magistrate Judge Gorenstein recommended denying the plaintiff's motion for a default judgment because Crique lacked any basis for requesting such relief. (Id. at 13.) Finally, he recommended that the Court decline to exercise supplemental jurisdiction over any state law claims for medical malpractice in light of the recommended dismissal of the § 1983 claim. (Id. at 12.)



The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge, " 28 U.S.C § 636(b)(1). A district court reviews those portions of the R&R to which no timely objections have been made for clear error. See La Torres v. Walker , 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000). While the Court is aware of Crique's pro se status and gives his complaint all requisite latitude, Crique is "not exempt from the rules of procedural and substantive law." DiPilato v. 7-Eleven, Inc. , 662 F.Supp.2d 333, 343 (S.D.N.Y. 2009) (quotation omitted),


A. Legal Standard Governing a Motion to Dismiss

A party may move to dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) when the opposing party's pleading "fail[s] to state a claim upon which relief can be granted, " Fed.R.Civ.P. 12(b)(6). A court must determine if a complaint contains "sufficient factual matter" which, if accepted as true, states a claim that is "plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678. The court draws all reasonable inferences from the facts alleged in the plaintiffs favor. Global Network Commc'ns, Inc. v. City of N.Y. , 458 F.3d 150, 154 (2d Cir. 2006). In the case of pro se plaintiffs, "[a] document filed pro se is to be liberally construed, and 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) (citations and internal quotation marks omitted). Even se pleadings, however, must contain factual allegations that raise a "a right to relief above the speculative level." Dawkins v. Gonvea , 646 F.Supp.2d 594, ...

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