United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
Richard Royal, proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging that while he was incarcerated at Otisville
Correctional Facility ("Otisville"), defendants
Anthony Annucci, Acting Commissioner of the Department of
Corrections and Community Supervision ("DOCCS");
Carl J. Koenigsmann, M.D., Chief Medical Officer of DOCCS;
Kathleen Gerbing, Superintendent of Otisville; Rhonda Murray,
a Nurse Administrator at Otisville; and the Estate of Dr.
Herbert Goulding, were deliberately indifferent to plaintiffs
medical needs in violation of his rights under the Eighth
Amendment of the United States Constitution.
the Court are a motion to dismiss the complaint filed by
defendants Annucci, Koenigsmann. Gerbing, and Murray (Doc.
#16), and a separate motion to dismiss filed by defendant
Estate of Dr. Goulding (Doc. #33).
reasons set forth below, the motions to dismiss are GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
purposes of ruling on a motion to dismiss, the Court accepts
all factual allegations of the complaint as true, and draws
all reasonable inferences in plaintiffs favor.
April 28. 2014, plaintiff suffered a "crushing and
tearing" injury to his left palm near his thumb while
working as a porter at Otisville. (Compl. ¶ 1).
Plaintiff was examined by a nurse who cleaned and bandaged
plaintiffs wound. Plaintiff continued to experience pain in
his hand while the injury healed.
30, 2014, plaintiff reported to sick call to address the
ongoing pain he was experiencing in his hand. Plaintiff was
examined by Dr. Goulding, who ordered x-rays and prescribed
600 milligrams of ibuprofen to plaintiff. (Compl. ¶ 4).
30, 2014, an x-ray was performed on plaintiffs hand, which
did not reveal evidence of an injury that warranted further
attention. Nonetheless, plaintiff continued to experience
pain and "gradual stiffness" in his hand. (Compl.
October 6, 2014, plaintiff reported to sick call due to
ongoing pain and swelling in his hand. Plaintiff was examined
by non-party Dr. R. Ferdus, who recommended that plaintiff
see an orthopedic surgeon. This referral was denied by the
Regional Medical Director of DOCCS. Instead, plaintiff was
referred to physical therapy.
January 2, 2015, plaintiff began physical therapy, which
continued until April 3, 2015, when plaintiffs physical
therapist recommended further evaluation by an orthopedic
surgeon. This time, the referral for plaintiff to see an
orthopedic surgeon was approved.
April 16, 2015, plaintiff was evaluated by an orthopedic
surgeon. The surgeon administered a cortisone shot and told
plaintiff to come back in six weeks. On May 28, 2015,
plaintiff returned to the surgeon, still complaining of pain
in his hand. The surgeon recommended a surgical procedure,
which was denied. Dr. Ferdus also attempted to obtain
approval of the recommended surgery from the Regional Medical
Director, but was similarly unsuccessful, On July 27, 2015,
plaintiff filed a grievance with the Inmate Grievance
Resolution Committee ("1GRC") for what plaintiff
claimed to be a lack of''proper medical attention,
" (Compl. at 4). The grievance was investigated by Nurse
Rhonda Murray, who confirmed surgery was recommended and
August 17, 2015, plaintiff was examined by Dr. Ferdus, who
again recommended that plaintiff see a surgeon. On September
3, 2015, plaintiff was examined by a surgeon who allegedly
stated he "'could not understand why the surgery was
being denied." (Compl. ¶ 18).
September 11, 2015, and December 1, 2015, plaintiff made ten
trips to sick call concerning the ongoing pain and swelling
in his hand.
November 3, 2015, plaintiff filed another grievance with the
IGRC, complaining that Dr. Goulding had either misfiled or
not filled out the forms for plaintiff to have surgery. On
November 22, 2015, after appealing to Superintendent Kathleen
Gerbing, plaintiffs surgery was approved.
March 9, 2016, plaintiff received hand surgery, twenty months
after he first reported to sick call and eleven months after
it was first recommended.
Standard of Review
deciding a motion to dismiss under Rule 12(b)(6). the Court
evaluates the sufficiency of the complaint under the
"two-pronged approach" announced by the Supreme
Court in Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). First, plaintiffs legal conclusions and
"'[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, "
are not entitled to the assumption of truth and are thus not
sufficient to withstand a motion to dismiss. Id. at
678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.
2010). Second, "[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief." Ashcroft v. Iqbal. 556 U.S. at 679.
survive a Rule 12(b)(6) motion, the allegations in the
complaint must meet a standard of "plausibility."
Ashcroft v. Iqbal. 556 U.S. at 678; Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is
facially plausible "when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Ashcroft v. Iqbal, 556 U.S. at 678.
"The plausibility standard is not akin to a
"probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
plaintiff is proceeding pro se, the Court must construe his
submissions liberally and "interpret them to raise the
strongest arguments that they suggest." Pabon v.
Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal
citation omitted). Applying the pleading rules permissively
is particularly appropriate when, as here, a pro se plaintiff
alleges civil rights violations. See Sealed Plaintiff v.
Sealed Defendant. 537 F.3d 185, 191 (2d Cir. 2008).
"Even in a pro se case, however. . . threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice, " Chavis v.