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Laguna v. Kwan

United States District Court, S.D. New York

January 28, 2015

NICK LAGUNA, Plaintiff,
v.
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.

MEMORANDUM DECISION

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.

BACKGROUND

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. ยง 1997e(a), before filing this action; (ii) plaintiff fails to state a claim upon which relief can ...


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