United States District Court, E.D. New York
MEMORANDUM DECISION AND ORDER
M. COGAN U.S.D.J.
pro se, a former pretrial detainee on Rikers Island
and a serial litigant in this Court, commenced this action
against various correctional personnel and members of the
prison medical staff for a variety of different grievances.
He is on his second amended complaint because, after a series
of Orders under 28 U.S.C. § 1915 and rulings on motions
for reconsideration, I dismissed sua sponte all of
his claims against all defendants except one - an Eighth
Amendment deliberate indifference claim against a
prison doctor, Dr. Alan Goldberg, for “refus[ing] to
take action in any manner to help alleviate the pain in
[plaintiff's] feet.” Familiarity with those prior
Orders is assumed. Presently before the Court is Dr.
Goldberg's motion to dismiss that claim. Plaintiff has
failed to file an opposition, despite having obtained an
extension of time to do so. Nonetheless, I have considered
the merits of defendant's argument in determining whether
to grant the motion.
previously discussed plaintiff's deprivation of medical
care claims against Dr. Goldberg and two other doctors that
plaintiff had sued in the original complaint at length in my
initial § 1915 decision that dismissed Dr. Goldberg and
those other doctors and permitted plaintiff to file an
amended complaint. See Black v. Petitinato, No.
16-cv-1934, 2016 WL 3983590, *4-6 (E.D.N.Y. July 22, 2016)
(“Black I”). Plaintiff's first
amended complaint asserted the same claim against all three
doctors. By Memorandum Decision and Order dated August 30,
2016, I dismissed the claims against the other two doctors
but permitted the claim against Dr. Goldberg to proceed.
then filed a motion for reconsideration of my August 30, 2016
Order. I granted plaintiff's reconsideration motion and
permitted him to file a second amended complaint.
Plaintiff's second amended complaint fared no better than
his first, and I again dismissed the claims against the other
two doctors, but permitted the claim against Dr. Goldberg to
proceed. Dr. Goldberg was thus left in the second amended
complaint subject to his right to seek dismissal under
Federal Rule of Civil Procedure 12(b)(6).
is correct that plaintiff's deliberate indifference claim
against him fails to meet the plausibility standard required
under Bell Atlantic Corporation v. Twombly, 550 U.S.
544, 570 (2007), and Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Plaintiff posits his conclusion of
deliberate indifference or reckless disregard solely on the
following facts: (1) he has diabetic neuropathy in his feet
that causes him pain; and (2) Dr. Goldberg refused to
authorize plaintiff's receipt of supportive footwear
despite a physician's assistant authorization for such
footwear.As the Second Circuit has explained,
Twombly requires a plaintiff to allege
“‘enough facts to ‘nudge [the
plaintiff's] claims across the line from conceivable to
plausible.'” In re Elevator Antitrust
Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting
Twombly, 550 U.S. at 570). Plaintiff's
allegations fail to meet this standard.
incorporate by reference the extensive discussion of the
supportive footwear cases in Black I, 2016 WL
3983590, at *4, as it is equally applicable here. The bottom
line is that although I suppose it is
“conceivable” that Dr. Goldberg acted maliciously
or was recklessly indifferent to plaintiff's needs, on
the facts alleged here, it is simply not plausible. Plaintiff
has failed to assert any factual allegations showing a basis
for Dr. Goldberg's malice towards him or any reason why
Dr. Goldberg was reckless in reaching his medical conclusion
that he didn't need supportive footwear. After all, as
more fully discussed in Black I, Dr. Goldberg's
job is to treat prisoners. The second amended complaint
offers no reason why Dr. Goldberg would not prescribe
supportive footwear if he believes that it would alleviate a
prisoner's pain (and that there is pain, an assertion
that a prison doctor doesn't have to accept just because
a prisoner makes it). The cost of supportive footwear
certainly isn't coming out of Dr. Goldberg's salary.
Instead, the only plausible interpretation of the factual
allegations in plaintiff's second amended complaint is
that Dr. Goldberg's medical opinion was that plaintiff
did not need supportive footwear, notwithstanding a physician
assistant's contrary view.
leads plaintiff squarely into the extensive line of authority
holding that a prison doctor's disagreement with a
prisoner over proper medical treatment does not constitute
malice or reckless disregard under the Eighth Amendment.
See e.g. Hill v. Curcione, 657 F.3d 116, 123 (2d
Cir. 2011); Chance v. Armstrong, 143 F.3d 698, 703
(2d Cir. 1998); Black I, 2016 WL 3983590, at *5.
Indeed, even if a prison doctor commits malpractice, that, by
itself, is not an Eighth Amendment violation.
Chance, 143 F.3d at 703 (quoting Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)); see also
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).
Rather, a complaint must contain factual allegations showing
that the doctor's negligence was so egregious that it is
consistent with reckless indifference or malice. Id.
read in its most liberal light, plaintiffs pleadings and
submissions do not state a claim of negligence, let alone an
Eighth Amendment violation. He simply alleges that he wanted
a particular treatment that a physician's assistant
recommended, but the physician did not agree with that
recommendation. That is not a constitutional deprivation.
defendant's motion to dismiss is granted on the ground
that the second amended complaint fails to state a claim. The
Clerk is directed to enter judgment in favor of defendant,
dismissing the second amended complaint. The Court certifies
pursuant to 28 U.S.C. § 19l5(a)(3) that any appeal would
not be taken in good faith and therefore in forma
pauperis status is denied for the purpose of any appeal.
See Coppedge v. United States, 369 U.S. 438, 444-45
 I reference the Eighth Amendment for
convenience, but recognize that as a pretrial detainee,
plaintiff was subject to the co-extensive standard under the
Due Process Clause of the Fourteenth Amendment. See
Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009);
Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.
 As I have done in prior orders,
because plaintiff is proceeding pro se, I am reading
all of plaintiff's allegations in his various pleadings
and submissions together, even though most do not appear in
the second amended complaint. I am giving him this leeway
even though I had previously directed him that the second
amended complaint had to stand on its own and could not rely
on allegations ...