United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti, United States District Judge:
Eric Tolliver, proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging that while he was incarcerated at Sullivan
Correctional Facility (“Sullivan”), defendants
Dr. Wladyslaw Sidorowicz and Nurse Judith Camara were
deliberately indifferent to his medical needs in violation of
the Eighth Amendment.
Before the Court is defendants' motion to dismiss the
complaint. (Doc. #14).
For the reasons set forth below, the motion to dismiss is
The Court has subject matter jurisdiction under 28 U.S.C.
purposes of ruling on a motion to dismiss, the Court accepts
all factual allegations of the complaint as true, and draws
all reasonable inferences in plaintiff's favor.
about November 20, 2014, plaintiff was temporarily
transferred to Metropolitan Correctional Center
(“MCC”) in Manhattan to attend a court hearing.
When plaintiff arrived at MCC, staff confiscated his
“left foot drop brace” for security reasons.
(Compl. at 9). Plaintiff claims the brace had been issued to
help him walk following a severe injury he sustained in 2006,
which caused “a nerve damage-paralyzed drop
foot.” (Id.). According to plaintiff, without
his brace, he trips “over his own foot when walking
because his foot cannot raise up on its own, and this also
caused a strain on the rest of the nerves and muscles.”
was detained at MCC for two weeks without his leg brace,
causing pain for which he sought treatment from MCC medical
staff. MCC medical staff took an x-ray of plaintiff's
chest and drew blood to check plaintiff's lungs, liver,
and kidneys. PA T. Mitchell also gave plaintiff a physical
examination. Plaintiff claims he was transferred to Sullivan
before receiving his test results.
following his arrival at Sullivan on or around December 4,
2014, plaintiff submitted a “sick call slip”
requesting to be seen by a doctor because of swelling and
pain in his left foot. Plaintiff also requested a magnetic
resonance imaging (“MRI”). Plaintiff was seen by
a nurse the following day, who provided plaintiff with
ibuprofen and “told [him] nothing [was] wrong with
[his] leg, all [he had] is a minor strain.” (Compl. at
December 8, 2014, the swelling and pain in plaintiff's
leg had worsened, he could barely walk, and his foot was
beginning to “change color.” (Compl. at 10).
Plaintiff requested an emergency sick call and was taken to
the clinic in a wheelchair. A nurse examined plaintiff's
foot, noticed the swelling and change in color, and told
plaintiff she would request an examination by a doctor. The
nurse gave plaintiff a cane to help him walk and more
December 11, 2014, plaintiff returned to the Sullivan medical
clinic and was seen by defendant Nurse Camara. Plaintiff
explained to Camara that he could not walk on his left leg
without experiencing severe pain and requested an MRI. Camara
noted in his medical record that he was walking normally
without the cane, and took the cane back from plaintiff.
According to plaintiff, however, he was not able to walk
normally without a cane.
December 19, 2014, defendant Dr. Sidorowicz examined
plaintiff. Plaintiff claims he requested an MRI from Dr.
Sidorowicz, but after examining plaintiff's foot and
noticing the swelling and discoloration, the doctor told
plaintiff nothing was wrong with his foot and gave him a
compression stocking to help his blood circulate and
ibuprofen for his pain. Plaintiff also claims Dr. Sidorowicz
joked that if the swelling did not improve, the leg might
December 30, 2014, plaintiff returned to the medical clinic
complaining of severe pain in his lower abdomen where he had
a prior surgery for a hernia. Plaintiff was given ibuprofen
for his pain.
March 9, 2015, plaintiff went back to the medical clinic and
was seen by a nurse who gave plaintiff ibuprofen for his
around April 7, 2015, plaintiff began to feel lightheaded and
short of breath. The next day, plaintiff walked from his
housing block to the toilet when he felt like he was about to
faint. Plaintiff left the toilet to try to reach the
officers' desk when he passed out. Plaintiff awoke to see
several officers standing over him and telling him to stay on
the ground. Plaintiff was then taken to the Sullivan
infirmary on a stretcher where his blood sugar level was
treated and he stayed overnight. The following morning, Dr.
Sidorowicz examined plaintiff and discharged him. Plaintiff
then walked from the infirmary to the TV-room to eat
breakfast. As soon as he sat down to eat, plaintiff again