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Muhammad v. Cohen

United States District Court, S.D. New York

May 1, 2015

ANDRE D. MUHAMMAD, Plaintiff,
v.
ROBERT COHEN, M.D., MICHAEL LATUNJI, M.D. s/h/a MICHALE LATUNJI, M.D., : OKECHUKWU IGWE, M.D. s/h/a IGWE OKECHUKWU, M.D., CHARLES APPIAH, P.A., ROBERT BURMEISTER s/h/a BURNMYSTER, P.A., CITY OF NEW YORK s/h/a NEW YORK CITY DEPARTMENT OF CORRECTIONS, Defendants.

OPINION & ORDER

KATHERINE B. FORREST, District Judge.

Andre D. Muhammad ("Muhammad" or "plaintiff") filed this action pro se on March 1, 2013. (ECF No. 2 ("Compl.").) On June 18, 2014, plaintiff filed an Amended Complaint alleging that defendants were deliberately indifferent to his serious medical needs during his incarceration at Rikers Island, in violation of 42 U.S.C. § 1983 and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132. (ECF No. 34.) Before the Court are two motions by defendants to dismiss the Amended Complaint.[1] (ECF Nos. 52 and 55.) For the reasons set forth below, both motions are GRANTED.

I. BACKGROUND

Plaintiff has a variety of complaints about a variety of medical issues. Although plaintiff had numerous interactions with the medical staff at Rikers Island during his five- to seven-month incarceration there, he asserts that his medical needs still were not addressed. None of plaintiff's alleged medical issues, however, rises to the level of a medical condition sufficiently serious to implicate § 1983. In any event, plaintiff has not plausibly alleged that any defendant was deliberately indifferent to any of his medical needs.

The following facts are drawn from the Amended Complaint, the documents incorporated by reference therein, [2] and plaintiff's opposition.[3]

On October 12, 2011, plaintiff had "an initial Primary Care visit" at the Cylar House Health Clinic (the "Cylar House") with non-party nurse practitioner Brett Gray ("NP Gray").[4] (See Declaration in Support of Defendants' Motion to Dismiss ("Del Vecchio Decl.") Ex. D, ECF No. 56.)[5] During the visit, NP Gray provided plaintiff with the following referrals: (1) a urology referral, due to an elevated prostate specific antigen ("PSA") level of 7.09[6]; (2) a neurology referral, due to a gunshot wound to the lumbar spine that occurred in the 1980s; (3) an ENT referral, due to a history of right buccal squamous cell carcinoma and resection; (4) a referral for a screening eye exam; and (5) a referral for a dental evaluation. (See id.)[7]

A few weeks later, on November 4, 2011, plaintiff was incarcerated at Rikers Island on a parole violation. (First Amended Complaint ("Am. Compl.") ¶ 23, ECF No. 34.) Upon his incarceration, plaintiff underwent a medical intake admission and explained his medical history, needs, and conditions to the medical staff. (Id.)

On November 5, 2011, plaintiff had a chest x-ray for tuberculosis screening. (Id. ¶ 24 & Del Vecchio Decl. Ex. E. at 1.) The x-ray revealed no evidence of tuberculosis, but a metallic bullet was seen over the left lower lobe. (Id.) On November 8, 2011, plaintiff had a right hip x-ray due to complaints of pain allegedly resulting from being without "supportive footwear." (Am. Compl. ¶ 24.)

On November 14, 2011, plaintiff visited defendant Dr. Igwe due to hip pain. (Del Vecchio Decl. Ex. E at 2.) Dr. Igwe described plaintiff as "well-appearing, no acute distress." (Id.) He assessed "Acq hip deformity NEC" and prescribed Naprosyn 500 mg. (Id.)

On December 2, 2011, plaintiff was evaluated by non-party Dr. Harjinder Bhatti, a physician at Rikers Island. (Id. at 4.) Dr. Bhatti described plaintiff as "well-appearing" and without urinary complaints. (Id.) Dr. Bhatti assessed an elevated PSA level and wrote a referral for a urology consult at Bellevue Hospital. (Id.)[8]

On December 5, 2011, plaintiff filed a grievance stating that he had pins in his right knee and that his knee was swollen due to being off balance. (Del Vecchio Decl. Ex. F.) Plaintiff requested an extra mattress, orthopedic shoes, and to see a specialist. (Id.) On December 14, 2011, plaintiff wrote a letter to the Inspector General's Office, claiming that unspecified personnel did not enter his medical complaints and Dr. Weinstein's referrals into the computer.[9] (Del Vecchio Decl. Ex. G.) Plaintiff did not specifically refer to any of the defendants in the grievance or in the letter to the Inspector General-nor does he allege that any defendant read these documents.

On December 28, 2011, NP Gray wrote a letter to defendant Dr. Cohen regarding plaintiff's October 12, 2011 visit to the Cylar House. (Del Vecchio Decl. Ex. D; see also Am. Compl. ¶ 31.) NP Gray's letter noted that plaintiff had not returned for follow-up and was unable to make any of his scheduled referral appointments due to incarceration. (Del Vecchio Decl. Ex. D.) The letter set forth the above-listed referrals and the reasons therefor, and indicated that plaintiff had complained of chronic pain, numbness and tingling in lower extremities bilaterally, frequent infections, and difficulty swallowing. (Id.)

On January 24, 2012, plaintiff reported to the infirmary where he was allegedly interviewed by non-party Dr. Cherry. (Am. Compl. ¶ 26.) Dr. Cherry allegedly informed plaintiff that the interview was in response to plaintiff's December 6, 2011 complaints to the Inspector General's Office. (Id.) During the interview, plaintiff told Dr. Cherry that he was "suffering with his lower back and hip along with his right knee from being off balance from not having his shoes [and] climbing stairs." (Id.) Plaintiff requested a neurology referral, which was granted. (Id.) However, plaintiff's requests for the referrals he allegedly received from Dr. Weinstein for cancer follow-up were denied. (Id.)

Plaintiff's PSA level decreased from 7.09 to 5.53 by January 24, 2012. (Pl.'s Opp. at 11.)

On February 15, 2012, plaintiff was evaluated by a Rikers Island neurologist who viewed x-rays of plaintiff's spine and prescribed pain medication (oxycodone and acetaminophen 5 mg/325 mg twice per day as needed). (Am. Compl. ¶ 27.)

On March 12, 2012, plaintiff wrote another letter to the Inspector General's Office. (Del Vecchio Decl. Ex. H.) Plaintiff stated that he had not received a response to his previous letter dated December 6, 2011. (Id. at 1.) Plaintiff complained about not having his "medical sn[eakers]" and an extra mattress, and stated that the "OBCC medical chief" had refused to renew his pain medication because of plaintiff's complaints about the medical staff. (See id. at 2-3.) In his opposition, plaintiff asserts that his complaints to the Inspector General's Office "made [his] medical situation change for the better." (Pl.'s Opp. at 11.)

Between April and June 2012, plaintiff was transferred out of Rikers Island.[10] Plaintiff alleges that, to punish him, the Otis Bantum Correctional Center" ("OBCC")-where plaintiff was incarcerated-did not forward any of his prescriptions or referrals to the New York State Department of Corrections. (Am. Compl. ¶ 27.) On November 28, 2012, while in state custody, plaintiff was diagnosed with prostate cancer. (Id. ¶ 31.)

On March 1, 2013, plaintiff filed this action. Plaintiff alleges that, at all relevant times, defendants were "functioning in the... practice of medical services and top level management for the department of Corrections." (Am. Compl. ¶ 1.) According to plaintiff, defendants "[c]ollectively individually intentionally maliciously and recklessly unlawfully deprived plaintiff of medical attention" and were deliberately indifferent to plaintiff's medical needs. (Id.) Plaintiff alleges that defendants "disregarded information that unconstitutional acts were occurring" (id.), "subjected plaintiff to unnecessary pain and suffering for over 180 days in violation of [§ 1983] when they failed to treat plaintiff for medical needs" (id. ¶ 2), and failed to act on information indicating that plaintiff was suffering from prostate adenocarcinoma and a neurological spine condition "which required immediate medical attention" (id. ¶ 5).

Plaintiff's allegations against each defendant are as follows:

Dr. Cohen. According to the Amended Complaint, Dr. Cohen is a "top level management" official employed by the New York City Department of Corrections. (Id. ¶ 8.) Plaintiff alleges that Dr. Cohen received but failed to take any steps ...


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