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King v. Fischer

United States District Court, N.D. New York

April 9, 2014

ANGEL FERRER a/k/a GARY MICHAEL KING, Plaintiff,
v.
BRIAN FISCHER, et al., Defendants.

ANGEL FERRER, Plaintiff, pro se.

GREGORY J. RODRIGUEZ, Asst. Attorney General, Attorney for Defendants.

REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

This matter has been referred for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable Norman A. Mordue, Senior United States District Judge. In this pro se complaint, plaintiff asserts claims under 42 U.S.C. § 1983, claiming that defendants were deliberately indifferent to his medical needs.[1] (Dkt. No. 1 ("Compl.")). His motion to proceed in forma pauperis was granted, and service was ordered on June 20, 2013. (Dkt. No. 8).

Currently before the Court is defendant Fischer's motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rules") to dismiss.[2] (Dkt. No. 19). Plaintiff responded in opposition to this motion.[3] (Dkt. No. 31). For the following reasons the court recommends that the motion be denied.

DISCUSSION

I. Factual Background

Plaintiff names Nurse Fairchild[4] and Commissioner Fischer as defendants in his medical indifference claim. Plaintiff claims that when he arrived at Upstate Correctional Facility, his split-cast, sling, and ace bandage were "ripped off, " "cut off, " and he was thrown into his cell. (Compl. at 4). According to plaintiff, Nurse Fairchild has refused to allow him to see a doctor, and has not issued him the proper medication, telling him to "drink water!" (Compl. at 4, 5, 6). He further asserts that despite his repeated sick call requests, he has been left in his cell with a broken hand for over six months. (Compl. at 4, 5).

Plaintiff contends that Commissioner Fischer has failed to answer plaintiff's letters of complaint, or otherwise address his concerns. (Compl. at 4). Plaintiff alleges that Commissioner Fischer "fully understands" that he is in a great deal of pain, but refuses to address the issue. Plaintiff also claims that defendant Fischer has a custom and policy of ignoring inmates' medical needs.

II. Motion to Dismiss

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " do not suffice. Id. (citing Bell Atl. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant "fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp., 550 U.S. at 555 (citation omitted).

When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995). The court must heed its particular obligation to treat pro se pleadings with liberality. Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) ( per curiam ).

III. Personal ...


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