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Kenyon v. Weber

United States District Court, W.D. New York

March 20, 2017

WILLIAM E. KENYON, Plaintiff,
v.
JOE WEBER, BISHOP, JOHN DOE #1, JOHN DOE #2, JOH DOE #3, DR. LASKOWSKI, DR. ABBEY, DR. RAO, Defendants.

          DECISION AND ORDER

          FRANK P. GERA JR. Chief Judge CI, United States District Court

         INTRODUCTION

         Pro 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.”).

         Plaintiff 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.

         DISCUSSION

         Because 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.

         Title 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).

         Plaintiff 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.

         A. PLAINTIFF'S ALLEGATIONS

         1. The Fall

         Plaintiff 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.

         Plaintiff 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.[1] 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.

         2. Medical Care

         After 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.

         Plaintiff 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), [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.)

         Plaintiff 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.

         B. EIGHTH AMENDMENT CLAIMS

          1. ...


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