United States District Court, W.D. New York
WILLIAM E. KENYON, Plaintiff,
JOE WEBER, BISHOP, JOHN DOE #1, JOHN DOE #2, JOH DOE #3, DR. LASKOWSKI, DR. ABBEY, DR. RAO, Defendants.
DECISION AND ORDER
P. GERA JR. Chief Judge CI, United States District Court
se Plaintiff William E. Kenyon, an inmate of the Five
Points Correctional Facility who was incarcerated at the
Attica Correctional Facility (“ACF”) at the time
of the events alleged in the Complaint, has filed this action
seeking relief under 42 U.S.C. § 1983 and has both
requested permission to proceed in forma pauperis
and filed a signed Authorization. ECF Nos. 1, 2. He has also
moved for the appointment of counsel. ECF No. 3. Initially,
the Court notes that Plaintiff filed this action using the
Form Complaint for Filing a Prisoner Civil Rights Action
under 42 U.S.C. § 1983 (ECF No. 1, at 1-5) and attached
to the Form Complaint an Affidavit that sets forth the
relevant allegations (id., at 6-13). Accordingly,
the operative pleading in this matter is both the Form
Complaint and Affidavit. See Cortec Industries, Inc. v.
Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)
(“the complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference.”).
claims his Eighth Amendment rights were violated by
Defendants' deliberate indifference to a dangerous
working condition that existed in the Metal Shop at ACF and
led to a “ripped” hamstring caused by a fall in
the Metal Shop. For the reasons discussed below,
Plaintiff's request to proceed as a poor person (ECF No.
2) is granted, but unless Plaintiff files an amended
complaint as directed below, some of his claims will be
dismissed with prejudice pursuant to 28 U.S.C. §§
1915(e)(2)(B) and 1915A. Plaintiff's request for the
appointment of counsel (ECF No. 3) is denied without
prejudice as premature.
Plaintiff has met the statutory requirements of 28 U.S.C.
§ 1915(a) and filed an Authorization with respect to
this action, Plaintiff is granted permission to proceed
in forma pauperis.
28, United States Code, Sections 1915(e)(2)(B) and 1915A(a)
require the Court to conduct an initial screening of this
Complaint. In evaluating the Complaint, the Court must accept
as true all of the factual allegations and must draw all
reasonable inferences in Plaintiff's favor. See
Larkin v. Savage, 318 F.3d 138, 139 (2d Cir. 2003).
While “a court is obliged to construe [pro se]
pleadings liberally, particularly when they allege civil
rights violations, ” McEachin v. McGuinnis,
357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted
pro se must meet the notice requirements of Rule 8
of the Federal Rules of Civil Procedure. Wynder v.
McMahon, 360 F.3d 73 (2d Cir. 2004). “Specific
facts are not necessary, ” and the plaintiff
“need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests.' ” Erickson v. Pardus, 551 U.S. 89,
93 (2007). Generally, the Court will afford a pro se
plaintiff an opportunity to amend or to be heard prior to
dismissal “unless the court can rule out any
possibility, however unlikely it might be, that an amended
complaint would succeed in stating a claim.” Abbas
v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
brings this action pursuant to 42 U.S.C. § 1983.
“To state a valid claim under 42 U.S.C. § 1983,
the plaintiff must allege that the challenged conduct (1) was
attributable to a person acting under color of state law, and
(2) deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United
States.” Whalen v. County of Fulton, 126 F.3d
400, 405 (2d Cir. 1997). Based on its evaluation of the
Complaint, the Court finds that Plaintiff's claim
alleging a denial of adequate medical care must be dismissed
unless he files an amended complaint as directed below.
alleges that he worked in the Metal Shop at ACF shortly after
his arrival there in 2011 and up until his transfer in 2014.
While working in the “Pre-Treat” program, there
was always water on the floor. There were three huge tanks in
the Shop filled with water. As part of the process of
manufacturing lockers, sheets of metal were hung on a
conveyor-like belt for preparation for painting. The tanks
were in a half-enclosed area where the metal sheets were
sprayed clean before painting and water was all over the
place. On the date of the accident, July 19, 2013, Plaintiff
was walking through the Metal Shop in order to fix something
that was falling off a hook attached to the conveyor-like
belt holding the metal sheets. This required him to take a
20-inch step down to a flat piece of metal approximately four
feet by four feet, which was used to roll heavy equipment
over. This is presumably when and where Plaintiff fell.
had in the past informed Defendant Joe Weber, Metal Shop Area
Supervisor, this condition was dangerous and Plaintiff had
suggested that some dirt be mixed with paint in order to
reduce the slipperiness of the spot. Weber always said he
would get to it “some day.” Plaintiff heard from
other workers after the accident that the work area had been
painted with sand paint and that, after a few months when we
was back to work, stairs were added to both sides of the work
area. ECF No. 1, at 6-7. Plaintiff claims that John Doe #3,
ACF's Superintendent, visited the Metal Shop weekly and
witnessed the inmates stepping up and down in the area in
which he fell but never directed the Metal Shop Supervisor
and Staff to correct the dangerous condition. Id.,
at 12. Plaintiff names Defendants Weber, Bishop, Metal Shop
Supervisor, John Doe #1, Metal Shop Acting Area Supervisor,
and John Doe #3, ACF Superintendent on this claim.
Id., at 11.
the fall, Plaintiff was in excruciating pain and taken to
ACF's Emergency Room where a nurse examined his leg and
advised him he had “ripped [his] hamstring in
half.” He was then taken to Warsaw Hospital where the
doctor on call advised him that his leg was too swollen to
perform an MRI or any other procedure or treatment and that
once the swelling went down ACF could bring him back to the
Hospital for an MRI. Plaintiff was advised to stay off his
leg for four weeks and try to go back to work. He was
provided crutches. After four weeks he tried to return to
work but was not able to because of the pain and he was
placed on two weeks of Medical Keeplock to recuperate
further. Id., at 7-8.
claims that the medical staff at ACF and the outside hospital
knew he had a serious injury but did nothing to treat it. He
never returned to the Hospital for an MRI. Plaintiff claims
that three years after the fall he is still in daily pain and
cannot run or play handball as he had before the injury.
Id., at 9. In response to a Grievance submitted by
Plaintiff, ACF's Medical Staff lied when it indicated
that Plaintiff had seen a doctor on September 5, 2013. He did
see Defendant Dr. Laskowski on that date, but the Doctor
discussed only Plaintiff's heartburn and changed his
heartburn medication. Id., at 9. Plaintiff further
alleges that ACF's Superintendent, who is identified in
the Grievance Form attached to the Complaint as M. Bradt (ECF
No. 1-1 at 2),  lied when he claimed that Plaintiff had
seen the Doctor on September 5, 2013. ECF No. 1, at 9. The
Central Office Review Committee (“CORC”) reviewed
Plaintiff's appeal from the Superintendent's
Grievance Decision, and stated that Plaintiff had also seen a
doctor on July 29, 2013, but Plaintiff claims that, while he
did see a doctor on that date, Defendant Dr. Abbey, a
surgeon, the only thing discussed during the visit was
Plaintiff's hernia. Id., at 9. The CORC
indicated that following the fall, Plaintiff was seen at an
outside hospital and diagnosed with a muscle strain and was
later seen by his provider at ACF on July 29, September 5 and
19, and November 22, 2013. ECF No. 11-1, at 5. Plaintiff
states that he saw Dr. Abbey again on November 22, 2013, but
the only issue discussed was his hernia. ECF No. 1, at 10.)
claims that he is still in pain, never had an MRI, and no one
has “explored” the damage to his leg. He has not
been provided with physical therapy or follow-up care to
examine the damage to his leg.
EIGHTH AMENDMENT CLAIMS