Submitted November 19, 2013
[Copyrighted Material Omitted]
Appeal from an order of 1 the United States District Court for the Eastern District of New York (Eric N. Vitaliano, Judge) granting the defendant's motion to dismiss and denying the plaintiff leave to amend his complaint. We hold that amendment would not be futile and that leave to amend should have been granted. Accordingly, we REVERSE the decision to deny leave to amend and REMAND to the District Court for further proceedings consistent with this opinion.
CHARLES NIELSEN, Pro se, Plaintiff-Appellant, Ridgewood, N.Y.
TAHIRIH SADRIEH, Assistant Corporation Counsel (Edward F. X. Hart, on the brief) for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y., for Defendant-Appellee.
Before: KEARSE, JACOBS, AND STRAUB, Circuit Judges. DENNIS JACOBS, Circuit Judge, dissenting.
Straub, Circuit Judge.
Pro se plaintiff Charles Nielsen brought suit against defendant Dr. Elaine A. Rabin, among others, under the Fourteenth Amendment for deliberate indifference to his serious medical needs. The District Court (Eric N. Vitaliano, Judge ) dismissed the complaint on the ground that Nielsen did not adequately allege an element of his deliberate indifference claim: that Dr. Rabin had a sufficiently culpable state of mind. The court also denied Nielsen leave to amend his complaint because additional allegations in Nielsen's brief in opposition to Dr. Rabin's motion to dismiss did not cure the deficiencies in his complaint. This, the court reasoned, showed that amendment would be futile.
We conclude that the allegations in the complaint and the opposition brief, taken together, sufficiently set forth the mental state element of the claim. Accordingly, amendment would not be futile, and Nielsen should have been granted leave to amend. We therefore REVERSE the decision to deny leave to amend and REMAND to the District Court for further proceedings consistent with this opinion.
The allegations recited below are taken from the complaint, and we assume they are true for the purposes of this appeal.
Nielsen was beaten by members of the New York City Police Department. His collarbone was fractured, and he sustained a SLAP type labral tear. Nielsen also had injuries to his face, ultimately leaving permanent scarring and requiring two nose surgeries. Additionally, he became legally deaf in one ear and has reduced hearing in the other.
After the beating, Nielsen was taken to the emergency room in a wheelchair where he complained of severe pain in his shoulder and back and a broken nose. There, he was evaluated by Dr. Rabin and Dr. Sylvia Tschenyavsky. Even though Nielsen screamed when his shoulder was lightly touched, the doctors reported that his level of pain and discomfort was low: a two out of ten. The doctors diagnosed Nielsen as having " mild bruising" and suggested that he was " malingering" -- fabricating or exaggerating his symptoms. No X-rays, CT-scans or MRIs were performed, and no significant treatment was provided. The doctors recommended only that Nielsen be reevaluated within a week.
Nielsen alleged all the above facts in his complaint. Rabin moved to dismiss, and Nielsen filed a brief in opposition, arguing that he had stated a claim for deliberate
indifference under the Fourteenth Amendment. In that brief, Nielsen set forth an additional allegation: that the officers who brought him to the emergency room told Dr. Rabin that he had attacked a female police officer and that he should be ignored and left alone. According to Nielsen, no such attack actually occurred. ...