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Flemming v. Smith

United States District Court, Second Circuit

August 22, 2013

NANCY SMITH, et al., Defendants.

WOODROW FLEMMING Plaintiff pro se 03-A-5259 Malone, New York.

HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, RICHARD LOMBARDO, Assistant Attorney General, Counsel for Defendants,



This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). Plaintiff Woodrow Flemming's Complaint originally set forth nine causes of action alleging numerous claims against forty-two defendants arising out of his confinement at Upstate Correctional Facility ("Upstate").[1] (Dkt. No. 1.) By Decision and Order dated June 28, 2012, the Hon. Norman A. Mordue, United States District Judge, dismissed all but two of Plaintiff's causes of action pursuant to 28 U.S.C. § 1915A(b). (Dkt. No. 21.) The two surviving causes of action allege the denial of adequate and proper medical care and deliberate indifference to Plaintiff's serious medical needs in violation of his rights under the Eighth Amendment by remaining defendants, Upstate medical staff members Nancy Smith ("Smith"), Nurse Administrator; Evelyn Weissman ("Weissman"), M.D.; Richard Adams ("Adams"), M.D.; Patrick Johnson ("Johnson"), P.A.; Glenn Schruyer ("Schruyer"), R.N. II; Dianna Harvey ("Harvey"), R.N. II; Patsy Nakahara ("Nakahara"), R.N. II; George Waterson ("Waterson"), R.N. II; Marla Travers ("Travers"), R.N. II; Elizabeth White ("White"), R.N. II; Renee Holmes ("Holmes"), R.N. II; Dana Griffith ("Griffith"), R.N. II; Julia Gordon ("Gordon"), R.N. II; David Hammac ("Hammac"), R.N. II; Rodney Cook ("R. Cook"), R.N. II; Neil Cook ("N. Cook"), R.N. II; James Chesbrough ("Chesbrough"), R.N. II; Christy Conklin ("Conklin"), R.N. II; Kathy Sullivan ("Sullivan"), R.N. II; Rosanna Lordi ("Lordi"), R.N. II; and Candy Atkinson ("Atkinson"), R.N. II. (Dkt. Nos. 1 at ¶¶ 23-43; 21 at 9-11.)

The remaining Defendants now move to dismiss Plaintiff's Complaint for lack of personal jurisdiction and failure to state a claim pursuant to Rule 12(b)(2) and (b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 36.) Plaintiff has filed papers in opposition. (Dkt. No. 39.) For the reasons that follow, I recommend that Defendants' Rule 12(b)(6) motion be granted and the Complaint dismissed with leave to amend. Because I also find that service of the Summons and Complaint was not properly effected on any of the Defendants, I recommend that in the event Plaintiff is granted leave and elects to serve an amended complaint which survives initial review, that new summonses be issued for those Defendants named in the amended complaint, and Plaintiff be given additional time to effect proper service of the summons and amended complaint on the Defendants.


Plaintiff filed his Complaint in this action on July 14, 2011. (Dkt. No. 1.) He filed a motion to proceed in forma pauperis on August 26, 2011. (Dkt. No. 8.) By Decision and Order dated November 23, 2011, Judge Mordue found that the three-strikes provision of 28 U.S.C. § 1915(g) barred Plaintiff from proceeding in forma pauperis and without prepayment of the filing fee.[2] ( See Dkt. No. 14.) Judge Mordue ordered Plaintiff to pay the full filing fee of $350 within thirty days of the filing of his Decision and Order. Id. at 6. Plaintiff paid the filing fee.

On June 12, 2012, Plaintiff asked that the action be stayed for ten months because he would be unable to effect service before that time. (Dkt. No. 20.) In the June 28, 2012, Decision and Order in which he dismissed all but the Seventh and Ninth Causes of Action in Plaintiff's Complaint, Judge Mordue denied Plaintiff's request for a stay, ordered the Clerk's office to issue summonses and forward them to Plaintiff for service of process upon the remaining Defendants, and directed those Defendants to respond to the claims in Plaintiff's Seventh and Ninth Causes of Action.[3] (Dkt. No. 21 at 12.)

Plaintiff filed Affirmations of Service showing July 18, 2012 service on all of the remaining Defendants using Upstate intra-facility mail. (Dkt. No. 27.) Plaintiff later filed Affirmations of Service of Amended Summonses on Defendants Lordi and Nakahama using Upstate intra-facility mail on July 24, 2012, and July 14, 2012, respectively. (Dkt. Nos. 29, 30.)

Defendants thereafter filed the Rule 12(b)(2) and (b)(6) motion to dismiss now before me. (Dkt. No. 36.) On August 6, 2012, after receiving Defendants' motion papers, Plaintiff sent a letter faulting the Court for not making clear to him the manner in which the Summons and Complaint should have been served on Defendants and requesting the opportunity to re-serve Defendants with the Court's assistance. (Dkt. No. 32.) In an August 19, 2012, letter to the Clerk, Plaintiff asked for issuance of new summonses so that he could re-serve the Defendants by mail. (Dkt. No. 33.) Plaintiff sent a second letter to the Clerk on September 3, 2012, again asking that new summonses be issued so that he could re-serve Defendants. (Dkt. No. 34.) Plaintiff thereafter filed papers in opposition to Defendants' motion. (Dkt. No. 39.)


Plaintiff has been confined at Upstate since being transferred there in 2005 for infirmary placement while he served time in the Special Housing Unit. (Dkt. No. 1 at 22-23.) In his Complaint, Plaintiff has consolidated all of his complaints concerning his care and treatment by the medical staff at Upstate during the time period from July 2008 to the commencement of this action Id. at ¶ 56.

A. Complaint of General Weakness in October 2009

Plaintiff contends that in October of 2009, he complained of feeling weak to Defendants Johnson, Atkinson, Sullivan, Smith, White, Harvey, and Nakahara. (Dkt. No. 1 at second ¶ 73.) Although Plaintiff has alleged that the Defendants to whom he complained failed to act in response to his complaints, he has acknowledged in his Complaint that he was taken to the hospital three times in connection with the weakness. Id. The third time, blood work revealed Plaintiff may have been being over-medicated at Upstate. Id.

B. Plaintiff's Left Shoulder, Back, Hip, and Knee Complaints and Loss of his Cane and Pain Medication

Plaintiff also claims that he had serious medical problems with his left shoulder, back, hip and knees. Id. at ¶¶ 61, 63, 65, 67, 72. He alleges in his Complaint that Defendants knew of the problems and Plaintiff's need for treatment, failed to diagnose his problems, and denied his requests to be examined by a doctor and given treatment and therapy.[4] Id. at ¶¶ 61, 63, 65, 67, 72, 74. Plaintiff has identified the Defendants to whom he complained about his left shoulder, back, hip, and knee as Weissman, Smith, Johnson, Nakahara, Waterson, White, Holmes, Griffith, Gordon, Hammac, R. Cook, N. Cook, Chesbrough, Sullivan, Lordi, and Atkinson. Id. at ¶¶ 72, first 73.

Plaintiff also complains that on July 29, 2010, Defendant Adams, a physician at Upstate, took away the walking cane Plaintiff used for his left side and left leg weakness, along with his pain medication, without an examination or therapy.[5] Id. at ¶ 68.

C. Concussion, Head Pain and Nosebleeds

On September 28, 2010, Plaintiff fell and was taken to the emergency room at the Alyce Hyde Medical Center in Malone, New York, by authorization of Defendant Weissman, another Upstate physician. (Dkt. Nos. 1 at ¶ 74; 39-1 at 7-9.) X-rays taken of Plaintiff's lumbar spine, left shoulder, left hip, left knee, pelvis, c-spine, chest and ribs were negative. (Dkt. No. 1 at 52.) Plaintiff was also given a head CT scan and diagnosed with a concussion.[6] Id.; Dkt. No. 39-1 at 9.

Plaintiff has alleged that his concussion was never addressed after he returned to Upstate.[7] (Dkt. No. 1 at ¶ 74.) Plaintiff claims that he had head pain and nose bleeds and complained about them to Defendants Adams, Smith, Waterson, Atkinson, Sullivan, Lordi, Conklin, Hammac, Travers, White, Holmes, Griffith, R. Cook, and Schruyer over the nine months following his concussion. Id. at ¶¶ 74-75, 77.

D. High Blood Platelet Count

Plaintiff was given a blood test that revealed his blood platelet count was somewhat elevated. Id. at ¶ 76. The results of a follow up test on March 14, 2011, showed a more significantly elevated count of 869. Id. at ¶ 78 and 26. The normal range is 144-400. Id. While Plaintiff has alleged that the medical staff did nothing for him, he has also acknowledged in his Complaint that a decision was made to send to him to an outside doctor in April of 2011. Id. at ¶ 79. Defendant Adams ordered a hematology consult based upon the blood test results and report. (Dkt. No. 39-1 at 38.) Plaintiff signed a contract for specialty care on March 21, 2011. Id. Plaintiff was seen by a hematologist on April 26, 2011, and the results of his blood work were reviewed by a provider on May 2, 2011. (Dkt. No. 1 at 35.) No blood clot was noted on the ...

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