United States District Court, N.D. New York
RICHARD MARINO Plaintiff, Pro Se, Shawangunk Correctional Facility, Walkil, NY.
HON. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Attorney for Defendants, Albany, NY.
KRISTEN M. QUARESIMO, ESQ., Assistant Attorney General.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Plaintiff Richard Marino brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that Defendants failed to provide him with constitutionally adequate medical treatment for his fractured jaw. Dkt. No. 4, Am. Compl. Defendants move to dismiss Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 28. Plaintiff opposes the Motion. Dkt. No. 29. For the reasons that follow, we recommend that Defendants' Motion be GRANTED in part and DENIED in part.
I. STANDARD OF REVIEW
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).
"Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents attached to the complaint, and matters to which the court may take judicial notice." Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Moreover, "even if not attached or incorporated by reference, a document upon which [the complaint] solely relies and which is integral to the complaint ' may be considered by the court in ruling on such a motion." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)).
The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 n.6 (1963); see also Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).
A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at 697 (citing Twombly ). "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. at 678. This plausibility standard "is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In this respect, to survive dismissal, a plaintiff "must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555). Thus, in spite of the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts [which he or she] has not alleged, or that the defendants have violated the... laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has "nudged [his] claims... across the line from conceivable to plausible, " entails a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. at 679-80.
With this standard in tow, we consider the plausibility of Plaintiff's Complaint.
On December 27, 2010, Plaintiff fell in his cell at Five Points Correctional Facility ("Five Points"), struck his head on a metal toilet fixture, fractured his jaw, lost several teeth, and was rendered unconscious. Am. Compl. at ¶ 2. The following morning, Plaintiff reported to sick call complaining of his injury and was seen by Defendant Haimes, a Physician's Assistant at Five Points. Despite Plaintiff's description of his injury, and the fact that his jaw was making "an audible clicking sound" when Plaintiff opened or closed it, Defendant Haimes did not conduct an examination of Plaintiff or take x-rays, denied him access to a physician, and instead, "merely recommended that [Plaintiff] see a dentist and refused to prescribe [him] any pain medication for his jaw." Id. at ¶ 17.
On or around February 17, 2011, after multiple visits to sick call complaining of pain and requesting a physician, Plaintiff met with Dr. Mewar,  a Dentist at Five Points. Dr. Mewar informed Plaintiff that he could not repair Plaintiff's teeth until after Plaintiff's jaw was fixed, and referred Plaintiff to an oral surgeon. Id. at ¶ 18. Approximately six weeks later, and still experiencing pain and difficulty eating and sleeping, on or around March 31, Plaintiff met with Dr. O'Kiefe, an Oral Surgeon. Id. at ¶ 19. X-rays were taken, id. at ¶¶ 21 & 27, and Dr. O'Kiefe diagnosed Plaintiff as suffering from "a left condylar fracture in his jaw, " id. at ¶ 19. On April 1, Dr. Mewar submitted a referral for Plaintiff to see a specialist for hospital based oral surgery. No appointment was made however, until Dr. Mewar submitted a second request on or around April 9. Id. at ¶¶ 20 & 23. Plaintiff also filed a grievance on April 1, explaining that he had suffered from a broken jaw and that he was not receiving adequate medical attention. Id. at ¶¶ 21-22. His grievance was denied by the Inmate Grievance Review Committee ("IGRC") on May 4, 2011, noting in part that Five Point's Nurse Administator, Defendant Susan Cordileone, testified that Plaintiff "admit[ted] that it was two months before the grievant reported the problems." Id. at ¶¶ 15 & 27. Plaintiff appealed the decision to Five Point's Superintendent, Defendant Lempke, on May 5. Id. at ¶¶ 14 & 29. Defendant Lempke denied Plaintiff's appeal on May 12. Id. at ¶ 30.
On April 12, 2011, Legal Aid wrote to Defendant Lempke, on Plaintiff's behalf, inquiring into the delay in Plaintiff's medical care, particularly with regard to the delay in diagnosing and treating his jaw. Defendant Lempke responded on April 20, seeking a medical authorization from Plaintiff; he did not address the substance of Legal Aid's letter. Id. at ¶ 24. Legal Aid sent Defendant Lempke a second letter on April 21 informing him that Plaintiff's April 14 surgery referral had been canceled, that Plaintiff was in extreme pain, unable to eat hard foods, and inquiring as to when Plaintiff's surgery consultation would be rescheduled. Id. at ¶ 25.
On or around April 28, 2011, Plaintiff saw Dr. Boyd at Erie County Medical Center; Dr. Boyd assessed Plaintiff and recommended a CT scan and physical therapy. Defendant Haimes requested a CT scan on May 21, but never submitted a request for Plaintiff to receive physical therapy. Id. at ¶ 26. The CT scan was performed on May 24, and the reviewing doctor confirmed that Plaintiff suffered from "a subacute left mandibular fracture just inferior to the mandibular condoyle, '" and recommended that Plaintiff follow up with a specialist; that referral was submitted on or around June 17. Id. at ¶ 32.
On June 13, 2011, Defendant Lempke responded to Legal Aid's April 21 correspondence stating that "with regard to  Mr. Marino's alleged broken jaw, medical records indicate that there is no evidence of this. His records do indicate the presence of TMJ.'" Id. at ¶¶ 25 & 33. On or about June 23, Plaintiff met with Dr. Boyd who determined that "there was low indication for operative [management], '" and suggested physical therapy. Id. at ¶ 34. Although a request for physical therapy was made, it was denied. Id. On or about June 30, Legal Aid sent a letter to Defendant Koenigsmann, the Chief Medical Officer at the New York State Department of Corrections and Community Supervision ("DOCCS"), describing Plaintiff's accident, medical condition, and treatment history, and requesting that Plaintiff be evaluated by a specialist; Dr. Koenigsmann did not respond to this letter. Id. at ¶ 35.
Over the next two months, Plaintiff continued to suffer from pain and make sick calls. Then, on or around July 12, 2011, Defendant Haimes requested a consultation for Plaintiff with an ear, nose and throat ("ENT") specialist. Id. at ¶ 36. On or around August 10, 2011, Plaintiff met with Dr. Richard Kelly, an outside specialist. However, copies of Plaintiff's CT scans were not sent to Dr. Kelly, and therefore, he was unable to render a complete diagnosis. Instead, Dr. Kelly recommended that Plaintiff's CT scans be sent to Dr. Kellman, a different ENT specialist, and that Plaintiff should see Dr. Kellman for a subsequent followup visit. A request for a followup was submitted on August 12. Id. at ¶ 37.
Two months later, on or around October 11, Plaintiff had a followup appointment with Dr. Lindsay Sobin. However, Plaintiff's CT scans were not sent along with Plaintiff to the appointment. Nonetheless, from her evaluation of Plaintiff and a review of the March x-rays, Dr. Sobin determined that Plaintiff had "sustained mandible fractures back in December' and had not received appropriate follow-up to that point.'" Id. at ¶ 38. Dr. Sobin recommended that Plaintiff see Dr. Sherard Tatum for "possible reconstructive surgery' as [Plaintiff] was outside the normal window for surgical intervention.'" Id. On or around November 21, 2011, Plaintiff met with a colleague of Dr. Tatum, Dr. David Craig, who noted that as a result of his fall, Plaintiff "experience[s] malocclusion [(misalignment of the teeth resulting from a jaw fracture)], jaw pain, and a facial deformity in the form of a leftward jaw deviation and asymmetric left side of his face compared with the right.'" Id. at ¶ 39 (alterations in original). Dr. Craig further noted that Plaintiff's partial fracture was partially healed and that Dr. Tatum planned to operate. In the subsequent weeks, Defendant Haimes submitted several referrals and consultation requests for the recommended surgery. Id.
On or around December 5, 2011, Legal Aid sent Defendant Koenigsmann another letter, restating what had been communicated in its June 30 letter. Id. at ¶ 40. On or around December 19, Plaintiff met with Dr. Tatum for a pre-operation appointment. Dr. Tatum informed Plaintiff that:
because of the delay in treatment, (i) full reconstructive surgery was needed and that surgery could not be performed from inside the mouth, but that large incisions from the temple to the jaw would need to be made; (ii) surgery would take six or more hours; and (iii) risks of the surgery were high, including a high risk of significant nerve damage resulting in facial paralysis. Dr. Tatum also informed [Plaintiff] that the risks and intrusive nature of the surgery could have been avoided if his ...