United States District Court, S.D. New York
OPINION & ORDER
C. MCCARTHY, UNITED STATES MAGISTRATE JUDGE
Donald Mack Bennett, proceeding pro se, commenced
this action pursuant to 42 U.S.C. § 1983 alleging that
Defendants Correct Care Solutions (sued herein as Care
Correction Solution Medical Contracter [sic])
("CCS"),  Dr. Raul Ulloa, Dr. Dolores Curbelo (sued
herein as Delores Curbella), N.P. Linda Beyer, N.P. Michael
Kelly, N.P. Diane Tufaro (sued herein as Diane Turfaro),
L.P.N. Crystal Madigan (sued herein as Crystal Magigan) and
Westchester County Jail/Liason [sic] (collectively,
"Defendants") denied him adequate medical care in
violation of his rights under the Eighth
Amendment. (Docket No. 9 ("Am. Compl.")).
The Court dismissed sua sponte all of Plaintiff s
claims that accrued prior to May 5, 2012 as time-barred.
(Docket No. 7 at 2-3). Plaintiff filed his Amended Complaint
on August 5, 2015, and seeks $262, 500, 000 in total damages,
including punitive damages. (Am. Compl. at 6). Defendants
moved to dismiss the Amended Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure on February
26, 2016.- (Docket Nos. 43, 45 ("Def.
Br.")). Defendants filed a Reply Memorandum on April 15,
2016. (Docket No. 48). Plaintiff filed an Opposition to
Defendants' Motion to Dismiss on September 8, 2016,
nearly six months after the March 30, 2016 Court-ordered
deadline. (Docket Nos. 26, 68 ("PI. Opp.")). The
Court nevertheless has considered Plaintiffs
Opposition. For the following reasons, Defendants'
Motion to Dismiss is granted in its entirety.
purposes of resolving the instant motion, this Court accepts
as true the facts as stated in Plaintiffs Amended Complaint.
Based on a liberal reading of the Amended Complaint,
Plaintiff seems to allege that during the time he was
incarcerated at the Westchester County Jail he received
inadequate medical care and suffered "imminent serious
dangerous physical injuries." (Am. Compl. at 1). In
particular, Plaintiff claims that he had a facial cyst near
his right eye, which he describes as an "imminent
serious physical dangerous injury" that caused
"excruciating pain." (Id. at 3 ¶ 1).
Plaintiff underwent surgery on July 24, 2015 to have the cyst
removed, but maintains that the surgery was originally
scheduled for April 20, 2015, and complains of this
three-month delay. (Id.). Plaintiff also claims that
the cyst interfered with his vision, and summarily concludes
that it could have been cancer and that the cancer could have
spread because the surgery was delayed. (Id. at 3
¶ 1, 5 ¶ 7). Plaintiff identifies a second cyst on
his neck, which he describes as an "imminent serious
physical dangerous threatening injury" and a "fatal
medical issue." (Id.). He further complains
that two of his medications were changed from pill form to
liquid form, (Id. at 3 ¶ 1, 4 ¶ 6), and
seems to argue that the cysts formed because of this change,
(PI. Opp. at 2-3). Additionally, Plaintiff claims that he
contracted MRS A, an infection, when he had the surgery to
remove the cyst near his eye, (Am. Compl. at 4-5 ¶¶
6-7), and that his doctor stopped his blood thinner before
his surgery and had not resumed it at the time of filing the
Amended Complaint, (Id. at 3 ¶ 1)- He also
contends that the medical professionals at the facility gave
him medication to which he was allergic and denied him
prescription medication, but it is unclear from the
submissions whether Plaintiff suffered any negative
reactions. (Id. at 3 ¶¶ 2-3). Finally,
Plaintiff complains that he was given the "wrong"
medication for an infected knee, which took eight months to
heal. (Id. at 4 ¶ 4). In sum, it appears that
Plaintiff is arguing both about the medical treatment he
received as well as the three-month delay in surgery on his
names as Defendants six individuals who were doctors, nurse
practitioners or licensed practical nurses from whom he
received the treatment described above, or with whom he
otherwise interacted. His specific claims against each
Defendant are outlined below.
claims against Defendant CCS are brought together with his
claims against Defendant Dr. Ulloa. (Am. Compl. at 3 ¶
1). Plaintiff alleges that Defendant Dr. Ulloa postposed the
surgery to remove the cyst from near his right eye by three
months, from April 20, 2015 to July 24, 2015. (Id.).
Plaintiff further maintains that Defendant Dr. Ulloa stopped
his blood thinner on July 22, 2015, prior to the surgery, and
had not put him back on it by July 30, 2015, thereby putting
him at risk for a stroke, a grand mal seizure and a heart
attack. (Id.). Plaintiff also avers that Defendant
Dr. Ulloa changed two medications from pill form to liquid
form, which Plaintiff claims caused him to suffer an upset
stomach, vomiting and cold sweats. (Id.). Finally,
Plaintiff claims that Dr. Ulloa committed medical
malpractice. (Id. at 5(III)).
alleges that Defendant Dr. Curbelo falsified medical
documents and mistakenly gave him Digioxon [sic], to which he
claims he is allergic. (Am. Compl. at 3 ¶ 2),
There is no information regarding why Plaintiff was taking
Digioxon [sic] and what damages, if any, he suffered from
this alleged error. Plaintiff further makes claims of medical
malpractice against Defendant Dr. Curbelo. (Id. at
complaints against Defendant N.P. Beyer are that she denied
him his prescribed medications in January 2015, and has
slandered and defamed his character. However, Plaintiff does
not elaborate further. (Am. Compl. at 3 ¶ 3). He also
alleges that she retaliated against him for filing
grievances, but does not describe any retaliatory
conduct. (Id.). Finally, Plaintiff alleges
negligent infliction of emotional distress against Defendant
N.P. Beyer. (Id. at 5(111); PI. Opp. at 5).
unclear exactly what Plaintiffs claims are against Defendant
N.P. Tufaro. The most generous interpretation is that
Plaintiff contends that Defendant N.P. Tufaro prescribed the
"wrong" medication sometime in 2013, 2014 or 2015
to treat a knee infection that was caused by an allergic
reaction to a "sponge material." (Am. Compl. at 4
¶ 4). He further claims that N.P. Tufaro knew about or
should have remembered the infection, and that his leg took
eight months to heal. (Id.).
alleges that Defendant Nursing Supervisor N.P. Michael Kelly
slandered, libeled and defamed Plaintiffs character, but
offers no further information regarding these allegations.
(Am. Compl. at 4 ¶ 5). Plaintiff also appears to claim
that he was "racially profiled" by Defendant N.P.
Kelly, but does not explain what this means, nor does he
provide any further detail to support this claim,
Plaintiff accuses Defendant L.P.N. Crystal Madigan of
changing his medication from pill to liquid form, causing
injury to his kidney and liver. (Am. Compl, at 4 ¶ 6).
Plaintiff further claims that Defendant Madigan started
rumors, slandered his name and defamed his character.
(Id.). Plaintiff provides no further information to
support these allegations. He also claims negligent
infliction of emotional distress against Defendant L.P.N.
Madigan. (Id. at 5(III); PI. Opp. at 5).
Motion to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
party may move to dismiss a complaint for "failure to
state a claim upon which relief can be granted."
Fed.R.Civ.P. 12(b)(6). First, a court deciding a motion to
dismiss must accept all of the factual allegations in the
complaint as true, and draw all reasonable inferences in
favor of the non-moving party. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) ("To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'") (quoting Bell Atl
Corp. v. Twombly, 550 U.S. 544, 570 (2007)); LaFaro
v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d
Cir. 2009) ("On a motion to dismiss ... we must accept
all allegations in the complaint as true and draw all
inferences in the non-moving party's favor.")
(citations and internal quotation marks omitted)). The facts
alleged must be more than legal conclusions. Iqbal,
556 U.S. at 678 ("Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice.") (citing Twombly, 550 U.S. at
555 ("[A] plaintiffs obligation to provide the grounds
of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.") (alteration, citation and
internal quotation marks omitted)).
the court must determine whether the allegations, accepted as
true, "plausibly give rise to an entitlement to
relief." Iqbal, 556 U.S. at 679. "A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Id. at 678 (citing Twombly,
550 U.S. at 556). Determining whether a complaint states a
plausible claim to relief is "a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense." Id. at 679.
"' [W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct,
' a complaint is insufficient under Fed.R.Civ.P. 8(a)
because it has merely 'alleged' but not 'show[n]
that the pleader is entitled to relief."' 9
Recordings Ltd. v. Sony Music Entm't, 165 F.Supp.3d
156, 160 (S.D.N.Y. 2016) (quoting Iqbal, 556 U.S. at
679 (quoting Fed.R.Civ.P. 8(a)(2)) (internal quotation marks
omitted)). If a plaintiff has "not nudged [his] claims
across the line from conceivable to plausible, [the]
complaint must be dismissed." Twombly, 550 U.S.
se complaints should be liberally construed and
"held to less stringent standards than those drafted by
lawyers, even following Twombly and
Iqbal.'" James v. Correct Care Solutions,
No. 13-cv-0019 (NSR), 2013 WL 5730176, at *2 (S.D.N.Y. Oct.
21, 2013) (citation and internal quotation marks
omitted); see also Erickson v. Pardus,
551 U.S. 89, 94 (2007); Hill v. Curcione, 657 F.3d
116, 122 (2d Cir. 2011) (noting that pro se
complaints require "special solicitude" and the
court should interpret the complaint to raise the strongest
claims). "However, even pro se plaintiffs asserting
civil rights claims cannot withstand a motion to dismiss
unless their pleadings contain factual allegations sufficient
to raise a right to relief above the speculative level."
James, 2013 WL 5730176, at *2. (citations and
internal quotation marks omitted).
Rule 12(b)(6) motion to dismiss, the Court may consider the
allegations set forth in the complaint, any
'"documents attached to the complaint as exhibits,
and any documents incorporated in the complaint by
reference.'" Id. at *3 (quoting
McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007)). In the instant case, Plaintiff
refers to the grievances he filed as part of the jail's
internal complaint procedure as required under the Prison
Litigation Reform Act ("PLRA"). Although Plaintiff
did not include these documents as exhibits to the Amended
Complaint, he does refer to them and, therefore, incorporates
them by reference. Id. Defendants included
Plaintiffs grievances as an exhibit to their Motion to
Dismiss. It is clear from a review of these grievances that
Plaintiff is aware of these documents and the information
contained in them because he signed the decisions to deny his
grievances and requested appeals of the denials. "Where
plaintiff has actual notice of all the information in the
movant's papers and has relied upon these documents in
framing the complaint the necessity of translating a Rule
12(b)(6) motion into one under Rule 56 is largely
dissipated." Id. (quoting Cortec
Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48
(2d Cir. 1991)). Accordingly, this Court "will consider
the grievance[s] as incorporated by reference into Plaintiffs
[Amended C]omplaint in deciding the motion to dismiss."
Id; Whittle v. Ulloa, No. 15 CV 8875 (VB), 2016 WL
7351895, at *1 n.3 (S.D.N.Y. Dec. 19, 2016); see also
Ellison v. Evans, No. 13 CIV. 885 (KBF), 2013 WL
5863545, at *1 n.5 (S.D.N.Y. Oct. 31, 2013), aff'd
sub nom. Fuller v. Evans, 586 F.App'x 825 (2d Cir.
Standard for Eighth Amendment Claims
Amended Complaint makes conclusory allegations of imminent
serious physical danger and injuries, and recites a litany of
complaints about the medical treatment he received while
incarcerated at the Westchester County Jail. Although
Plaintiff does not cite any federal law or constitutional
provision on which his complaints are based, he repeats the
phrases "imminent serious physical dangerous
injury" and "deliberate indifference"
throughout his Amended Complaint, which suggests that his
claims are premised on the Eighth Amendment. See Idowu v.
Middleton, No. 12 Civ. 1238 (BSJ) (KNF), 2012 WL
6040742, at *2 (S.D.N.Y. Dec. 4, 2012). The Eighth Amendment
guarantees Plaintiff freedom from "cruel and unusual
punishment." U.S. Const., amend. VIII. "To
establish a constitutional claim arising out of inadequate
medical care, an inmate must prove that prison or jail
officials were deliberately indifferent to his serious
medical needs." Gomez v. Cty. of Westchester,
649 F.App'x 93, 95 (2d Cir. 2016) (citing Smith v.
Carpenter, 316 F.3d 178, 183 (2d Cir.2003)) (applying
Eighth Amendment standard to pretrial
detainee). This test has an objective and
subjective component. "As an objective matter, the
plaintiff must show that the alleged deprivation of medical
care was 'sufficiently serious' ... [and] [t]he
subjective showing is akin to criminal recklessness: that the
defendant officials acted or failed to act 'while
actually aware of a substantial risk that serious inmate harm
will result.'" Id. (quoting Salahuddin
v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006)).
objective component has two prongs. "The first prong is
whether the prisoner was actually denied adequate medical
care. The second prong of the objective test is whether the
alleged deprivation of medical care was sufficiently
serious." James, 2013 WL 5730176, at *4-5
(citing Salahuddin, 467 F.3d at 279). To establish
that the deprivation of medical care was sufficiently
serious, "[a] prisoner must prove that his medical need
was 'a condition of urgency, one that may produce death,
degeneration, or extreme pain.'" Johnson v.
Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting
Hemmings v, Gorczyk, 134 F.3d 104, 108 (2d Cir.
1998)); see also Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998). Specifically, "[w]here the
inadequacy alleged is in the medical treatment given, the
seriousness inquiry is narrower-----[I]f the prisoner is
receiving on-going treatment and the offending conduct is an
unreasonable delay or interruption in that treatment, the
seriousness inquiry focuses on the challenged delay or
interruption in treatment rather than the prisoner's
underlying medical condition alone." Stiehl v.
Bailey, No. 08-CV-10498 (CS), 2012 WL 2334626, at *8
(S.D.N.Y. June 19, 2012) (alterations in original) (citations
and internal quotation marks omitted).
subjective element is comparable to criminal recklessness.
See Salahuddin, 467 F.3d at 280; see also
Gomez, 649 F.App'x at 95. "[R]ecklessness
entails more than mere negligence; the risk of harm must be
substantial and the official's actions more than merely
negligent." Salahuddin, 467 F.3d at 280
(citation omitted). "[T]he official charged with
deliberate indifference must act with a 'sufficiently
culpable state of mind.'.. . That is, the official must
'know[ ] of and disregard[ ] an excessive risk to inmate
health or safety; the official must both be aware of facts
from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.'" Hill, 657 F.3d at 122
(alteration in original) (citation omitted) (quoting
Farmer v, Brennan,511 U.S. 825, 837 (1994)). The
Second Circuit has further explained that "[t]o
establish deliberate ...