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Royal v. Annucci

United States District Court, S.D. New York

July 27, 2017

RICHARD ROYAL, Plaintiff,
v.
ANTHONY ANNUCCI, CARL J. KOENIGSMANN, M.D., KATHLEEN GERBING, RHONDA MURRAY, and ESTATE OF DR. HERBERT GOULDING, Defendants.

          OPINION AND ORDER

          Vincent L. Briccetti United States District Judge.

         Plaintiff 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.

         Before 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).

         For the reasons set forth below, the motions to dismiss are GRANTED.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

         BACKGROUND

         For 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.

         On 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.

         On June 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).

         On July 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. ¶ 6).

         On 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.

         On 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.

         On 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 denied.

         On 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).

         Between September 11, 2015, and December 1, 2015, plaintiff made ten trips to sick call concerning the ongoing pain and swelling in his hand.

         On 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.

         On March 9, 2016, plaintiff received hand surgery, twenty months after he first reported to sick call and eleven months after it was first recommended.

         DISCUSSION

         I. Standard of Review

         In 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.

         To 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 unlawfully." id.

         Because 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. Chappius, ...


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