United States District Court, N.D. New York
ROBERT SCOTT Plaintiff, Pro
Se Batavia, NY
ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, ADRIENNE J. KERWIN, ESQ., Assistant Attorney General, Attorney for Defendants, Albany, NY.
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Plaintiff Robert Scott brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging violations of his First and Eighth Amendment rights. Dkt. No. 7, Am. Compl. Defendants move for dismissal, pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds, inter alia, that Plaintiff has failed to state a claim, and Plaintiff's claims against Defendants in their official capacities are barred by principles of sovereign immunity. Dkt. Nos. 23, Defs.' Mot. to Dismiss, & 23-1, Defs.' Mem. of Law. Plaintiff opposes the Motion. Dkt. No. 40, Pl.'s Opp'n. We recommend that Defendants' Motion to Dismiss be GRANTED in part and DENIED in part, in accordance with our analysis below.
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, 532 F.3d 157, 168 (2d Cir. 2008). 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, 550 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 Amended Complaint.
Plaintiff first came under the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS") in 2003. Am. Compl. at ¶. 7. Due to an industrial accident in 1983, Plaintiff is unable to do physical labor for the "remainder of his life." Id. Plaintiff has extensive and chronic back problems which include, inter alia, muscle spasms, neuropathy, and small calcium bodies in his hips which lodge in his hip joint and cause near blackout-level pain and collapse. See, e.g., id. at ¶ 8. Between 2003 and 2009, DOCCS provided "basic medical services for plaintiff. Including: mild muscle relaxers for the muscle spasms; and, appropriate pain medication, [and] medical restrictions." Id.
However, in 2009, Plaintiff was transferred to Gowanda Correctional Facility ("GCF"); where he was "proclaimed medically cured[, ]" his pain medication was taken away, his medical/work restrictions were lifted, and Plaintiff was ordered to work in the facility's kitchen. Id. at ¶ 9. Working in the kitchen caused further injury to Plaintiff's back. Id. at ¶ 10.
In January of 2010, Plaintiff was moved to Oneida Correctional Facility ("OCF"); by that time he "could no longer walk, or sleep for any period of time, " however, OCF staff worked with Plaintiff to provide "medical rehabilitation." Id. at ¶¶ 13-14. Plaintiff received a series of MRIs, as well as a consultation with an orthopedic surgeon, "who stated: plaintiff's neck is close to needing surgery, middle and lower not yet, and plaintiff should be very concerned about his neck: Recommended Pain Management Services [sic]." Id. at ¶ 16. OCF's doctors sent Plaintiff to State University Upstate Pain Management ("Upstate Pain Management") where a series of three caudal blocks were done and a pain management program began to be developed; "[w]ith the Caudal Blocks the pain management medication began decreasing a[t] a moderate rate." Id. at ¶ 17.
In August 2011, Plaintiff was moved to Mid-State Correctional Facility ("Mid-State"), where his medication was immediately cut in half even though his medication had just been cut by 1/3, and he was still awaiting the provision of two more caudal blocks in his mid-back. Id. at ¶ 18. On September 2, 2011, Plaintiff returned to Upstate Pain Management where he was informed that altering the specialist's pain management program can create a "cascade effect, " permanent chronic pain, extreme spasms, and even cripple Plaintiff. Id. at ¶ 20.
On September 1, 2011, Plaintiff wrote a letter to Defendant Koenigsmann, DOCCS' Chief Medical Officer. In his letter to Defendant Koenigsmann, Plaintiff noted: (1) his history of back problems; (2) that while at OCF he had requested his medication be reduced by one-third; (3) that he had been transferred from OCF to Mid-State; (4) that once at Mid-State his pain medication was again reduced by half; (5) that although one was ordered, he had not yet received his TENS unit; and (6) that he would like his pain medication to be increased. Id. at ¶ 22 & Ex. G, Lt., dated Sep. 1, 2011.
On September 13, 2011, Plaintiff received a letter from DOCCS' Regional Health Services Administrator, Peter Bogarski, notifying Plaintiff that Dr. Koenigsmann asked him to respond to Plaintiff's letter, that the Division of Health Services investigated his complaint, and that a TENS unit was ordered and on its way. Id. at ¶ 23 & Ex. H, Lt., dated Sep. 13, 2011.
On December 2, 2011, Plaintiff received another letter from Peter Bogarski stating that Dr. Koenigsmann asked him to respond to Plaintiff's earlier letter. Id. at ¶ 25 & Ex. I., Lt., dated Dec. 2, 2011. Bogarski informed Plaintiff that his concerns with regard to the healthcare he was receiving at Mid-State were investigated and his medical records had been reviewed. Additionally, Bogarski informed Plaintiff that his TENS unit was being processed and that he was currently receiving Robaxin, Neurontin, Ultram, and Elavil for pain management. Id. at Ex. I.
On February 6, 2012, Plaintiff wrote to Defendant Koenigsmann, explaining that he still had not received his TENS unit, that "[h]is medicine was cut by 2/3rds, or completely taken away, along with access to the New York State appointed Specialists." Id. at ¶ 26. On March 14, 2012, Plaintiff received another letter from Peter Bogarski stating that Dr. Koenigsmann asked him to respond to Plaintiff's earlier letter. Id. at ¶ 27 & Ex K, Lt., dated Mar. 14, 2012. Bogarski noted that an investigation had been conducted, Plaintiff had received his TENS unit on March 6, 2012, and that Plaintiff's ...