United States District Court, S.D. New York
Candelario Lords Valley, PA Pro Se Plaintiff
Kenneth W. Rudolph, Esq. McMillan Constabile Foster &
Perone LLP Larchmont, NY Counsel for Defendant Quality Choice
Healthcare, Inc. 
Michael H. Sussman, Esq. Heather M. Abissi, Esq. Sussman
& Associates Goshen, NY Counsel for Defendant A.
OPINION & ORDER
KENNETH M. KARAS, District Judge
Plaintiff Jovan Candelario (“Plaintiff”) brings
this Action against Quality Choice Correctional Healthcare
(“Quality Choice”), A. Cupertino, RN
(“Nurse Cupertino”), J. Reynolds, RN
(“Nurse Reynolds”), and Dittmeier, RN
(“Nurse Dittmeier” and collectively,
alleges that Defendants violated his rights under the Eighth
Amendment by failing to follow policies and procedures,
failing to provide adequate medical treatment, and neglecting
Plaintiff's medical needs. (See generally Compl.
(Dkt. No. 1).) Before the Court are Defendants Quality
Choice's and Nurse Cupertino's Motions To Dismiss the
Complaint pursuant to Federal Rules of Civil Procedure
12(b)(6) and 12(c), respectively (the “Motions”).
(See Dkt. Nos. 35, 38.) For the reasons to follow,
the Motions are granted.
following facts are taken from the Complaint and the
documents appended thereto, and are assumed true for the
purpose of resolving the Motions.
February 10, 2016, Plaintiff was incarcerated at Orange
County Jail when he began suffering from abdominal pain.
(See Compl. 3.) Plaintiff sought medical attention
for his pain, and Nurses Cupertino and Dittmeier gave him
“Phenergan 25mg and Maalox 30mL, ” and offered
Plaintiff a “[c]ompazine [s]uppository, ” which
he refused. (Id.) Plaintiff alleges that Nurses
Cupertino and Dittmeier assumed he was suffering from
“gas or maybe a virus, ” (id.), but
Plaintiff “knew it wasn't either one” due to
“the pain that [he] was going thr[ough], ”
(id.). Plaintiff's symptoms included being
“on the floor throwing up, ” and the inability to
move, sleep, eat, or use the bathroom. (Id.) When
Plaintiff asked to see a doctor, Defendants told Plaintiff
there was no doctor on the property and put him on bed rest.
February 13, 2016, Plaintiff was still suffering from severe
pain and could barely move. (See id.) Plaintiff
asked correctional officer Mackey to “send [him] to
medical, ” and when Plaintiff arrived, he was given
“chews for gas.” (Id.) Plaintiff again
asked for a doctor, but was told there was no doctor
available and was sent back to his housing unit. (See
id.) On February 16, 2016, Sergeant Mararino came to
Plaintiff's cell during dinner and asked Plaintiff
“why . . . [he was] walking like [he had] been shot or
something.” (Id.) Plaintiff explained he had
been in pain for six days and “ha[d]n't had any
help, ” and Sergeant Mararino “sent [him] to
medical.” (Id.) Plaintiff was subsequently
sent to a hospital. (See id.) While at the hospital,
Plaintiff underwent surgery to have an abscess removed near
his gall bladder. (See id.)
result of his alleged pain and suffering, Plaintiff seeks one
million dollars in compensatory damages and “medical
reimbursement.” (Id. at 5.)
filed his Complaint on March 21, 2016. (See Dkt. No.
1.) Plaintiff's request to proceed in forma pauperis was
granted on May 3, 2016. (See Dkt. No. 6.) On October
13, 2016 Quality Choice and Nurse Cupertino (the
“Moving Defendants”) filed their Motions To
Dismiss and accompanying papers. (See Dkt. Nos.
35-42.) Plaintiff ...