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Tolliver v. Sidorowicz

United States District Court, S.D. New York

March 2, 2017

ERIC TOLLIVER, Plaintiff,
v.
DR. WLADYSLAW SIDOROWICZ, NURSE JUDITH CAMARA, Defendant.

          OPINION AND ORDER

          Vincent L. Briccetti, United States District Judge:

         Plaintiff 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 GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

         BACKGROUND

         For 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.

         On or 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.” (Id.).

         Plaintiff 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.

         Immediately 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 10).

         On 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 ibuprofen.

         On 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.

         On 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 require amputation.

         On 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.

         On March 9, 2015, plaintiff went back to the medical clinic and was seen by a nurse who gave plaintiff ibuprofen for his pain.

         On or 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 ...


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