United States District Court, S.D. New York
MEMORANDUM AND ORDER
ALISON J. NATHAN, District Judge.
Plaintiff Norman Calhoun brings a pro se claim alleging that the Defendants, Nnaemezie Umeasor, Grace Okacha, Carol McCloughlin, Vincent Miccoli, and Jean-Pierre Lindenmayer, are liable to him under 28 U.S.C. § 1983 for violating his Eighth Amendment right to be free from cruel and unusual punishment. Compl., Dkt. No.2. Before the Court is the Defendants' unopposed motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Dkt. No. 24. For the reasons below, the Court determines that Plaintiff's complaint fails to state a claim, and GRANTS the motion to dismiss.
The following facts are derived from the Plaintiff's Complaint. For purposes of the motion to dismiss, they are assumed true and construed in Plaintiff's favor.
Plaintiff was transferred from St. Lawrence Psychiatric Center to the Manhattan Psychiatric Center, Ward's Island, New York ("MPC"), on March 26, 2012. Plaintiff suffers from a bad back, and was in "constant pain." He had previously been receiving treatment that included the use of a back brace for most of the day, the use of a Transcutaneous Electrical Nerve Stimulator ("TENS Unit"), and a daily 100mg dose of Benadryl, used as a sleep aid. Upon admission to MPC, Grace Okocha took Plaintiff's back brace, and did not return it for over three weeks. Doctor Nnaemezie Umeasor did not provide Plaintiff with a TENS Unit, reduced Plaintiff's Benadryl dose by fifty percent, and did not prescribe any other effective medications. Although a narcotic had previously helped provide Plaintiff with pain relief, it also caused nausea and posed a risk of addiction, and Plaintiff did not wish to take any narcotics unless nothing else was available.
Plaintiff repeatedly complained about the above, but Dr. Umeasor would not continue the treatments that had been prescribed at St. Lawrence Psychiatric Center. Dr. Umeasor told Plaintiff that he would not provide a 100mg dose of Benadryl without a psychiatrist's approval. Plaintiff repeatedly asked Dr. Umeasor to make an appointment with the psychiatrist on his behalf, but more than one month passed until that occurred and psychiatrist Dr. Brian Pell finally approved the increased dosage of Benadryl that Plaintiff needed to take to relieve his back pain-induced sleep deprivation. Nevertheless, Plaintiff still did not receive treatment through the TENS Unit or any other effective medication for his back pain.
Attempting to obtain relief for his constant pain and redress for Okocha and Umeasor's refusals to provide his preferred treatments, Plaintiff wrote to several facility supervisors, including Carol McCloughlin, Vincent Miccoli, and Jean-Pierre Lindenmayer. However, none of these authorities did anything in response.
B. Procedural History
Following the above, Plaintiff filed the Complaint from the Manhattan Psychiatric Complex, on or before September 25, 2012, claiming that the Defendants violated his Eighth Amendment right to be free of cruel and unusual punishment, by acting with deliberate indifference to his medical needs and causing undue pain and suffering. Dkt. No. 2. Following service of the complaint, the Defendants moved to dismiss for failure to state a claim, on June 20, 2013. Dkt. No. 24. Pursuant to the Court's Individual Practices in Civil Cases and Special Rules of Practice in Civil Pro Se Cases, on June 21, the Court granted Plaintiff an opportunity to amend his Complaint in response to the motion to dismiss, or to oppose the motion to dismiss. Dkt. No. 28.
However, Plaintiff had been moved to a different facility, so initial service of the motion to dismiss was ineffective. Dkt. No. 30. The Court issued an Order on July 16, requiring Plaintiff to notify the Court of his current address, but the Order was later returned to sender. Dkt. No 29. However, Plaintiff had mailed a change of address letter on July 18. Dkt. No. 31. Defendants then served the motion papers to Plaintiff's new address at a federal correctional facility in Oklahoma, on July 23. Dkt. No. 32.
By July 30, the Court had received no response from Plaintiff, and issued an Order extending Plaintiff's deadlines to respond to August 23. Dkt. No. 33. In a letter dated August 8, Plaintiff wrote from a federal correctional facility in Glenville, WV, requesting an additional extension of time, or dismissal without prejudice. Dkt. No. 34. Plaintiff noted that he had arrived in West Virginia from Oklahoma on July 29, and was placed in protective custody due to a threat from another inmate. ld. The transfer and placement meant his conditions of incarceration included a lack of writing materials, delayed ability to purchase stamps, and no access to a computer or law library, all of which had restricted and would restrict his ability to timely respond. Id.
On August 14, the Court received Plaintiff's letter and on August 22, extended his time to respond to October 4, also informing Plaintiff of his duty to keep the Court updated with his address changes. Dkt. No. 35. Having received no response by October 31, the Court granted Plaintiff an additional extension of time, to November 30, stating that it was Plaintiff's final chance to amend the Complaint or oppose the motion to dismiss. Dkt. No. 38. After no response was provided, Defendants requested the motion be deemed fully submitted. Dkt. No. ...