United States District Court, S.D. New York
William Robinson, Jr. Attica, NY Pro Se Plaintiff.
Kristen R. Vogel, Esq., New York Office of the Attorney
General New York, NY Counsel for Defendants.
OPINION & ORDER
KENNETH M. KARAS UNITED STATES DISTRICT JUDGE.
Plaintiff William Robinson, Jr. (“Plaintiff”)
brings this Action against Dr. Morris Clark (“Dr.
Clark”), Dawn Osselmann (“Nurse
Osselmann”), Dr. Eric Davis (“Dr. Davis”),
Superintendent Thomas Griffin (“Superintendent
Griffin”), Dr. Frederick Bernstein (“Dr.
Bernstein”), and Dr. Gail Bailey-Wallace (“Dr.
Wallace” and collectively,
“Defendants”). Plaintiff alleges that Defendants
violated his rights under the Eighth Amendment by failing to
provide adequate medical treatment for a shoulder injury.
(See generally Compl. (Dkt. No. 2).) Defendants have
filed a Motion To Dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) (the “Motion”).
(Dkt. No. 23.) For the reasons stated below, the Motion is
following facts are taken from the Complaint and the
documents appended thereto, and are taken as true for
purposes of the Motion.
alleges that while he was incarcerated at the Green Haven
Correctional Facility (“Green Haven”), he injured
his right shoulder on April 19, 2015, during a football game.
(Compl. ¶ IV.1.) He was rushed to emergency sick call
and placed on a medical “telecam” call to an
outside hospital. (Id.) Plaintiff alleges that he
was in “severe” pain and a bone was protruding
from his shoulder. (Id.) On April 20, 2015,
Plaintiff's shoulder was x-rayed. The x-rays revealed
that Plaintiff's shoulder was separated from all three
tendons. (Id.) Plaintiff was given an arm sling,
40mg ibuprofen packets, and a medical excuse/permit for the
arm sling from April 20, 2015 until May 20, 2015.
(Id.) Plaintiff was given 40mg ibuprofen packets
despite a nurse from the hospital allegedly advising
Defendants to give him 800mg of ibuprofen. (Id.) On
April 27, 2015, Plaintiff again complained of severe pain and
received additional x-rays. (Id.)
6, 2015, Plaintiff was seen by Dr. Clark.
(Id.) Plaintiff reported “extreme”
pain and lack of mobility in his arm and shoulder.
(Id.) Dr. Clark allegedly told Plaintiff that
“there was no positive damage and that Plaintiff only
banged his shoulder pretty good. And that it should heal
itself in a short period of time if left in [the] prescribed
arm sling.” (Id. ¶ IV.2.) Plaintiff notes
that he constantly complained of “extreme pain”
and “clicking sounds” coming from his shoulder in
facility sick call slips. (Id.) To help relieve this
pain, Plaintiff was given “(6) 40mg 2 packets of
ibuprofen” and analgesic balm. (Id.)
filed a grievance with the Green Haven Inmate Grievance
Committee (“IGRC”) regarding his shoulder injury
on August 5, 2015, claiming that he received inadequate
medical care and making a “FOIL request” for his
medical records. (Id. at ECF 11.) Nurse Osselmann
allegedly filed a fabricated memorandum with the IGRC,
stating that Plaintiff reinjured his shoulder “to cover
up” how Plaintiff's shoulder had been in the same
condition since April 25, when Plaintiff complained of
extreme pain. (Id. ¶ IV.4.) The memorandum
notes that Plaintiff reinjured his shoulder during an
incident in the mess hall on August 3, (id. at ECF
14), where a gas leak forced inmates and staff to
“trample one another” to escape the room,
(id. ¶ IV.2).
was again seen by Dr. Clark on the same day he filed his
grievance. Dr. Clark represcribed the use of an arm sling and
gave Plaintiff packets of ibuprofen. (Id.) Plaintiff
alleges that he was still in “extreme” pain at
this time. (Id.)
September 10, 2015, Plaintiff was seen by orthopedic
specialist Jonathan Holder (“Dr. Holder”). Dr.
Holder recommended reconstructive surgery on Plaintiff's
shoulder. Plaintiff alleges that Dr. Holder found that an
immediate shoulder repair was necessary and expressed concern
over the length of the delay in repairing it. (Id.)
Dr. Holder attempted to schedule the reconstructive surgery,
but was denied by Drs. Bailey-Wallace and Bernstein.
(Id.) On September 25, 2015, Dr. Clark informed
Plaintiff that his shoulder surgery was approved.
(Id. at ECF 6.)
October 5, 2015, Plaintiff was seen by Dr. Davis for a
check-up. (Id. ¶ IV.3.) Plaintiff alleges that
Dr. Davis did not give him anything to cope with the
“sharp pains” he felt in his shoulder.
next day, Superintendent Griffin denied Plaintiff's
appeal from the IGRC's decision. (Id. at ECF
Superintended Griffin noted that Plaintiff reinjured his
shoulder on August 3, 2015, that treatment was ongoing, and
that Plaintiff should make a formal FOIL request to receive
his medical records. (Id.)
October 11, 2015, Plaintiff sent separate letters to Dr.
Bernstein, Dr. Clark, and Superintendent Griffin.
(Id. at ECF 8-10.) The letters explain that the
ibuprofen packets that Plaintiff received from sick call and
Dr. Clark were ineffective and request stronger pain
medication. (Id.) Dr. Bernstein responded to the
letter he received, directing Plaintiff to attend sick call
or schedule an appointment with his primary care provider to
discuss his pain management concerns. (Id. at ECF
13.) It is unclear from the record whether Dr. Clark or
Superintendent Griffin responded to Plaintiff's letters.
appealed Superintendent Griffin's response to his
grievance to the Central Office Review Committee
(“CORC”) on October 16, 2015, arguing that he did
not reinjure his arm on August 3. (Id. at ECF 12.)
The CORC issued its determination on December 30, 2015.
(See Decl. of Jeffrey Hale in Supp. of Defs.'
Mot. To Dismiss (“Hale Decl.”) Ex. B, at 1 (Dkt.
No. 25).) It noted that Plaintiff had shoulder
surgery on December 15, 2015. (Id.)
contends that Drs. Clark, Bernstein, Bailey-Wallace, Davis,
Nurse Osselmann, and Superintendent Griffin all had knowledge
that he was in “extreme pain.” (Compl. ¶
IV.3.) Defendants allegedly ignored his complaints of pain
and “act[ed] with deliberate indifference to [his]
medical condition.” (Id.) Plaintiff claims
that Defendants acted with a mental state “more
blameworthy than negligence, ” (id.), because
they knowingly disregarded an excessive risk to his health
and chose a less efficacious treatment plan, i.e., Defendants
“unreasonably delayed surgery, ” (id.
¶ V), and refused to give him stronger pain relief
medication, (id. ¶¶ IV.3-4).
filed his Complaint on October 26, 2015. (Dkt. No. 2.)
Pursuant to a memo endorsement, (Dkt. No. 22), Defendants
filed their Motion and accompanying papers on June 16, 2016,
(Dkt. Nos. 23-27). Plaintiff's opposition papers were
originally due on July 16, 2016. (See Dkt. No. 22.)
The schedule was later amended such that Plaintiff's
opposition papers were due October 17, 2016 because it was
possible that Plaintiff did not receive Defendants'
papers when they were first served. (Dkt. No. 32.) On October
11, 2016, Plaintiff was granted an additional 30 days to
respond. (Dkt. No. 34.) On December 19, 2016, Plaintiff was
given one final extension until January 20, 2017. (Dkt. No.
38.) On January 27, 2017, Plaintiff filed a letter stating
that he received the December 19, 2016 Order on January 20,
2017, but is ready to “proceed with his
response.” (Dkt. No. 39.) The Court received
Plaintiff's response on February 14, 2017. The submission
consists of Plaintiff's medical records and copies of
filings that have been made throughout the course of this
Action. In lieu of filing a reply brief, Defendants submitted
a letter stating that the Motion should be granted for the
reasons set forth in their moving papers. (Dkt. No. 40.)
Standard of Review
Supreme Court has held that although a complaint “does
not need detailed factual allegations” to survive a
motion to dismiss, “a plaintiff's obligation to
provide the ‘grounds' of his [or her]
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (second alteration
in original) (citations omitted). Instead, the Supreme Court
has emphasized that “[f]actual allegations must be
enough to raise a right to relief above the speculative
level, ” id., and that “once a claim has
been stated adequately, it may be supported by showing any
set of facts consistent with the allegations in the
complaint, ” id. at 563. A plaintiff must
allege “only enough facts to state a claim to relief
that is plausible on its face.” Id. at 570.
But if a plaintiff has “not nudged [his or her] claims
across the line from conceivable to plausible, the
complaint must be dismissed.” Id.; see
also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)
(“Determining whether a complaint states a plausible
claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its ...