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Laguna v. Kwan

United States District Court, S.D. New York

January 28, 2015

NICK LAGUNA, Plaintiff,
P.A. KWAN, DR. M. GENOVESE, and DR. MAGILL, Defendants

Nick Laguna, Plaintiff, Pro se, Ossining, NY.

For Dr. Kwan, Sing Sing P.A., Individually, Dr. Genovese, F.H.S.D., Individually, Dr. Magill, Contracted by Sing-Sing - Surgeon at Mt. vernon Hospital, Individually, Dr. Kwan, Sing Sing P.A., in their official capacity, Dr. Genovese, F.H.S.D., in their official capacity, Dr. Magill, Contracted by Sing-Sing - Surgeon at Mt. Vernon Hospital, in their official capacity, Defendants: Steven Neil Schulman, LEAD ATTORNEY, Office of the Attorney General, New York State, New York, NY.


Vincent L. Briccetti, United States District Judge.

Plaintiff Nick Laguna, proceeding pro se, brings this action against defendants P.A. Kwan, Dr. Genovese, and Dr. Magill[1] pursuant to 42 U.S.C. § 1983. Plaintiff alleges defendants deprived him of adequate medical care during his incarceration at Sing Sing Correctional Facility (" Sing Sing").

Plaintiff filed his complaint on October 4, 2013. Chief Judge Preska found plaintiff's complaint did not state a claim, but granted him leave to amend. (Doc. #4). Plaintiff filed an amended complaint on December 27, 2013. (Doc. #5).

Now pending are defendants' motions to dismiss pursuant to Rule 12(b)(6). (Docs. #16, 31).

For the reasons set forth below, the motions are GRANTED.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.


In deciding the pending motions, the Court accepts as true all well-pleaded factual allegations in the complaint, amended complaint, and plaintiff's opposition to the motions, and draws all reasonable inferences in plaintiff's favor.

During surgery at Mount Vernon Hospital on June 8, 2011, plaintiff had metal pins inserted into his left index finger to correct a broken bone. On July 21, plaintiff saw Dr. Richard Magill at Fishkill Correctional Facility's hospital. Plaintiff alleges Dr. Magill " recommended that the metal pins needed to be removed in two weeks." (Compl. at 11). On July 22, Pokum Kwan, a physician's assistant at Sing Sing, wrote in plaintiff's " medical folder that the metal pins [were] to be removed in one to three weeks." (Id. at 12). The pins were not removed, however, until eight weeks later.

By August 30, 2011, plaintiff alleges his finger had become infected. He requested " emergency medical sick-call, " and was prescribed " green pills to fight the infection." (Compl. at 12). On September 6, plaintiff again went to sick-call, " complained that he was in extreme pain and showed his swollen left index finger to the nurse, " and requested to see his doctor. (Id.) On September 7, Kwan examined plaintiff's finger and prescribed " ciprofloxin" for the infection and naproxen for pain. (Id.). Kwan saw plaintiff on September 8 and 9 as well. On September 14, Dr. Magill removed the pins. On September 15, plaintiff was again prescribed naproxen for pain.

Plaintiff alleges Kwan acted with deliberate indifference to his serious medical needs when she " chose to make her own inappropriate diagnosis overriding the Doctor's decision to have the inserted pins removed." (Am. Compl. at 3). He alleges the infection led to " great amounts of pain, " swelling, and an inability to feel his finger " at times" or bend it fully. (Compl. at 3). He also alleges Dr. Maryann Genovese, then Sing Sing's medical director, acted with deliberate indifference when she " chose not to make an appropriate review" of his medical records. (Am. Compl. at 5). The complaints contain no allegations of deliberate indifference by Dr. Magill.

Defendants now move to dismiss the amended complaint on the grounds that (i) plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e(a), before filing this action; (ii) plaintiff fails to state a claim upon which relief can be granted; and (iii) defendants are entitled to qualified immunity.


I. Rule 12(b)(6)

In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court evaluates the sufficiency of the complaint under the " two-pronged approach" outlined by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff's legal conclusions and " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, " [w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Ashcroft v. Iqbal, 556 U.S. at 679.

To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of " plausibility." Ashcroft v. Iqbal, 556 U.S. at 678; Bell A. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible " 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. " The 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.

The Court must liberally construe submissions of pro se litigants, and interpret them " to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam). Additionally, the Court applies the pleading rules permissively when a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). " Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks omitted). Nor may the Court " invent factual allegations" plaintiff has not pleaded. Id.

II. Exhaustion of Administrative Remedies

Under Rule 12(b)(6), dismissal on the grounds of lack of exhaustion is appropriate when, on the face of the complaint, it is clear plaintiff did not exhaust all remedies, including all administrative appeals, before commencing the action. Woodford v. Ngo, 548 U.S. 81, 90-93 (2006); Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011); McCoy v. Goord, 255 F.Supp.2d 233, 246-51 (S.D.N.Y. 2003).

New York State's Inmate Grievance Procedure (" IGP") " has established a three-step inmate grievance process available to prisoners to exhaust their administrative remedies." Veloz v. New York, 339 F.Supp.2d 505, 513-14 (S.D.N.Y. 2004); see also 7 NYCRR § 701 et seq. First, plaintiff must file a complaint with the Inmate Grievance Resolution Committee (" IGRC") within twenty-one days of the alleged event. 7 NYCRR § § 701.5(a), (b). Second, the inmate has seven days after receiving the IGRC's determination to appeal the result to the Superintendent. Id. at § 701.5(c). Finally, the inmate must appeal the Superintendent's decision to the Central Office Review Committee (" CORC") within seven days of its receipt. Id. at § 701.5(d).

Plaintiff must exhaust all three levels of administrative remedies before pursuing an action in federal court; " only after CORC has reviewed the appeal and rendered a decision are New York's grievance procedures exhausted." Gardner v. Daddezio, 2008 WL 4826025, at *2 (S.D.N.Y. Nov. 5, 2008).[2] Moreover, dismissal of a grievance as untimely does not satisfy plaintiff's responsibilities; instead, " [p]roper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Woodford v. Ngo, 548 U.S. at 90 (rejecting the Ninth Circuit's view that dismissal of an inmate's grievance as untimely renders administrative remedies exhausted).

Plaintiff filed a grievance on September 12, 2011. (Compl. at 14). He received the IGRC's decision on September 26, 2011. (Id. at 16). He then appears to have filed an appeal to the Superintendent of Sing Sing, which was rejected as untimely on November 13, 2012. (Id. at 17). Plaintiff alleges in his amended complaint that he " followed the necessary grievance procedures" but did not receive a determination from CORC. (Am. Compl. at 6). However, in his original complaint, he states he " wrote to [the] I.G.R.C. supervisor to appeal, [and was] told it was an untimely request." (Compl. at 4).

Although the Court is not convinced plaintiff exhausted his administrative remedies, it is not clear from the face of the complaints he did not. Accordingly, defendants' motions to dismiss on this ground are denied.

III. Eighth Amendment Claim

Assuming, without deciding, plaintiff satisfied the PLRA's exhaustion requirement, the Court addresses plaintiff's Eighth Amendment claim.[3]

To assert a viable Section 1983 claim for constitutionally inadequate medical care based on a violation of the Eighth Amendment, plaintiff must allege " acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). To do so, plaintiff must plead facts showing (i) the alleged deprivation of medical care is objectively, sufficiently serious, and (ii) the officials in question acted with a " sufficiently culpable state of mind." Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006).

To satisfy the objective prong of the deliberate indifference test, the deprivation of medical care must be sufficiently serious to deny plaintiff a " minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). In determining whether plaintiff has met this standard, the Court will consider " (1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of comment or treatment, (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and substantial pain." Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (internal quotation marks omitted). Plaintiff must show " a condition of urgency, one that may produce death, degeneration, or extreme pain, " Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996), but he does not need " to demonstrate that he or she experiences pain that is at the limit of human ability to bear, nor . . . that his or her condition will degenerate into a life-threatening one." Brock v. Wright, 315 F.3d at 163.

Courts in this Circuit have held a broken finger does not constitute a serious enough injury to satisfy the objective prong of the deliberate indifference test. See, e.g., Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 311 (S.D.N.Y. 2001) (" Case law holds that the objective prong of the deliberate indifference test is not satisfied . . . whe[n] a finger is broken.") (collecting cases); Henderson v. Doe, 1999 WL 378333, at *2 (S.D.N.Y. June 10, 1999) (holding " conditions that have failed to meet [the sufficiently serious] standard include . . . a broken finger"); Rivera v. S.B. Johnson, 1996 WL 549336, at *2 (W.D.N.Y. Sept. 20, 1996) (" A broken finger, without more, simply does not present a condition of urgency of the type that may produce death, degeneration or extreme pain which correspondingly merits constitutional protection.").

Additionally, " infections do not generally constitute a serious medical need." Burgess v. Wright, 2009 WL 2971538, at *7 (N.D.N.Y. Sept. 11, 2009); see also Anderson v. Sheahan, 1995 WL 86641, at *4 (N.D.Ill. Feb. 24, 1995) (holding medical need was not sufficiently serious to state Eighth Amendment claim because " the doctor merely prescribed mild pain killers and medication for an infection and rash").

In contrast, infections accompanied by more serious symptoms can merit constitutional protection. See, e.g., Chance v. Armstrong, 143 F.3d 698, 702-03 (2d Cir. 1998) (holding an infected tooth causing great pain, rendering inmate unable to chew for over six months, and resulting in the need to have more teeth extracted was a serious medical condition under the Eighth Amendment); Hardy v. City of New York, 732 F.Supp.2d 112, 131 (E.D.N.Y. 2010) (holding an ear infection resulting in " excruciating pain, " swelling, drainage and difficulty walking stated an Eighth Amendment claim).

Here, plaintiff complains the delay in removal of the surgically inserted pins caused an infection and serious pain. However, plaintiff alleges he was merely prescribed " green pills" or " ciprofloxin" to treat the infection, and nothing more than naproxen to treat his pain. (Compl. at 12). The type of pain associated with a broken finger, and an infection in that finger, is not sufficiently serious to deny plaintiff a " minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. at 347; see also Burgess v. Wright, 2009 WL 2971538, at *7 (holding a broken finger and infection in a hand, in combination, do not rise to the level of a serious medical need).

Accordingly, the Court finds plaintiff has failed sufficiently to allege a violation of his constitutional rights, and his Section 1983 claim must be dismissed.

IV. Leave to Amend

A district court generally should not dismiss a pro se complaint for failure to state a claim " without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks omitted). A court must grant leave to amend " unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999).

Here, plaintiff has already been granted leave to amend once (Doc. #4), and his amended complaint provides even fewer specific allegations than his original complaint. Moreover, the complaint, the amended complaint, and plaintiff's opposition to defendants' motions to dismiss--even liberally construed--contain no allegations suggesting he has a valid claim that he has merely " inadequately or inartfully pleaded" and therefore should " be given a chance to reframe." Cuoco v. Moritsugu, 222 F.3d at 112.

Thus, re-pleading would be futile because plaintiff's claims suffer from substantive deficiencies that cannot be cured.


Defendants' motions to dismiss are GRANTED.

The Clerk is instructed to terminate the motions (Docs. #16, 31), and terminate this case.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).


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