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Bennett v. Care Correction Solution Medical Contracter

United States District Court, S.D. New York

March 24, 2017

DONALD MACK BENNETT, Plaintiff,
v.
CARE CORRECTION SOLUTION MEDICAL CONTRACTER, CHIEF MEDICAL DIRECTOR/ DR. RAUL ULLOA, CHRONIC CARE/ DR. DELORES CURB-ELLA, N.P. LINDA BEYER, N.P. MICHAEL KELLY, N.P. DIANE TURFARO, L.P.N. CRYSTAL MAGIGAN and WESTCHESTER COUNTY JAIL/LIASON, Defendants.

          OPINION & ORDER

          JUDITH C. MCCARTHY, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Donald Mack Bennett, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983[1] alleging that Defendants Correct Care Solutions (sued herein as Care Correction Solution Medical Contracter [sic]) ("CCS"), [2] 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.[3] (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.[4] (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.[5]-[6] (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.[7] For the following reasons, Defendants' Motion to Dismiss is granted in its entirety.

         I. BACKGROUND

         For 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 cyst.

         Plaintiff 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.

         Plaintiffs 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)).

         Plaintiff 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), [8] 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 5(III)).

         Plaintiffs 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.[9] (Id.). Finally, Plaintiff alleges negligent infliction of emotional distress against Defendant N.P. Beyer. (Id. at 5(111); PI. Opp. at 5).

         It is 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.).

         Plaintiff 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, (Id.).

         Finally, 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).

         II. LEGAL STANDARDS

         A. Motion to Dismiss Standard

         Under 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)).

         Second, 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. at 570.

         Pro 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);[10] 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).

         On a 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. 2014).

         B. Standard for Eighth Amendment Claims

         Plaintiffs 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).[11] 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)).

         The 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).

         The 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 ...


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