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Jimenez v. M.D. Diane Sommer, P.A.

United States District Court, S.D. New York

July 28, 2017


          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge

         Plaintiff Virgilio Jimenez ("Plaintiff) brings this action pro se, [1] against Defendants Diane Sommer, M.D. ("Sommer"), Bridget Baker, P.A. ("Baker") and the United States (collectively, "Defendants"), [2] alleging negligence with respect to the maintenance of the Federal Correctional Institution in Otisville, New York ("Otisville"), and deliberate indifference toward serious medical needs caused by an ankle fracture Plaintiff sustained in a fall while incarcerated at Otisville. Plaintiff asserts a Bivens claim for violation of his Eighth Amendment rights[3] and a negligence claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Before this court is Defendant's motion to dismiss the Bivens claim asserted in Plaintiffs Amended Complaint. For the foregoing reasons, Defendant's motion to dismiss is GRANTED.


         The following facts are drawn from Plaintiff's Amended Complaint, ECF No. 46, unless otherwise indicated.[4]

         Plaintiff's action arises out of an incident that occurred when he was incarcerated at F.C.I. Otisville. (See Am. Compl. at 1.) Plaintiff alleges that the windows above the cell in which he was housed were damaged, and that when it rained puddles of water would form on the ground. (Id.) On the night of June 28, 2013, it rained, causing large puddles to form. (Id.) Early the next morning, an officer unlocked all of the cell doors and presumably prompted the inmates to step out by yelling “clear.” (Id.) Plaintiff stepped out of his cell and proceeded to walk toward a staircase. (Id.) After taking a few steps, Plaintiff slipped, “crashing” into the floor, hitting his head, lower back, right ankle and right wrist. (Id.) Plaintiff was able to get up, but could not walk. (Id.)

         A fellow inmate assisted in bringing Plaintiff to the medical facility, where he was seen by R.N. Cheryl Brooks (“RN Brooks”). (Id. at 2.) RN Brooks observed Plaintiff's injuries, gave him four Ibuprofen tablets and crutches, [5] which he contends were mismatched, and according to the Medical Records, recommended elevation and that he follow up at “sick call” as needed. (Id.; Medical Records at 24.) On July 3, 2013, Plaintiff was seen by P.A. Bridget Baker (“PA Baker”). (Am. Compl. at 2.) X-rays were performed, revealing that Plaintiff's ankle was fractured. (Id.; Medical Records at 27.) According to the Medical Records, Plaintiff reported no excessive pain at this time, but had been using the crutches incorrectly and bearing weight on the ankle; he was also experiencing swelling and decreased range of motion in the area. (Id.) Plaintiff was also given an air-cast, and anti-inflammatories for the pain and swelling (Medical Records at 29-30; see also Pl. Opp. at 4 (indicating receipt of “air-cast”), and given a vaccine to help him with dizziness and vomiting due to a concussion he sustained from the fall. (Am. Compl. at 2.) Plaintiff contends that he was refused a wheelchair and told that he could not be taken to the hospital due to a “holiday schedule” at the time. (Id.)

         On or about July 5, 2013, Plaintiff obtained a wheelchair. (Id.; Medical Records at 33.) Plaintiff alleges that the wheelchair had no foot rest and loose screws. (Am. Compl. at 3.) A few days later, on July 9, 2013, Plaintiff was taken to a hospital off-site, where a second x-ray was performed, and his ankle was put in a cast. (Id. at 3.) Later that same month, on July 19, 2013, Plaintiff went to medical to address damage to his cast. (Id.) Specifically, the cast was breaking apart because it had been dragging on the floor due to the lack of a foot rest on his wheelchair, and water damage, as Plaintiff had received nothing to protect the cast during showers. (Id.) Plaintiff alleges that when he was leaving the Medical Unit, a warden noticed the state of the wheelchair and ordered P.A. Baker to provide Plaintiff with a new one, which was presumably received. (Id.) On July 23, 2013, Plaintiff returned to the Medical Unit for lower back pain and received a “vaccine.” (Id.)

         On August 8, 2013, Plaintiff's cast was removed and Plaintiff's foot was placed in a “boot, ” which was removed on August 28, 2013; Plaintiff was given ibuprofen for his pain. (Id.) Months later, on November 14, 2013, Plaintiff went to medical for lower back pain and dizzy spells. (Id. at 4.)

         Plaintiff contends that he continues to suffer from back pain, and his ankle and foot continue to swell up whenever he walks around for more than thirty minutes to two hours, or whenever he climbs stairs. (Id.) Plaintiff also states that both his ankle and wrist “have never been the same” and that he cannot “run around” like he used to. (Id.)

         As to Dr. Sommer, Plaintiff alleges that she was aware of his fall because, as the head of the medical unit at Otisville F.C.I. “all decisions big or small go thru [sic] her.” (Id. at 4.) Plaintiff alleges that Sommer was aware he required immediate medical attention, including pain medication, a wheelchair, x-rays, MRIs, and a lower tier cell. (Id.) Plaintiff notes that he did not receive an x-ray until five days after his fall, and a cast until six days after an x-ray revealed he had a fracture, and that, as such, his needs were not met in a timely fashion. (Id. at 4-5.)


         Under Rule 12(b)(6), the inquiry is whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. at 679. To survive a motion to dismiss, a complaint must supply “factual allegations sufficient ‘to raise a right to relief above the speculative level.'” ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, but the Court is “‘not bound to accept as true a legal conclusion couched as a factual allegation, '” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         In determining whether a complaint states a plausible claim for relief, a district court must consider the context and “draw on its judicial experience and common sense.” Id. at 662. A claim is facially plausible when the factual content pleaded allows a court “to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678.

         Furthermore, with regard to pro se Plaintiffs, the Court must “‘construe [ ] [the] [Complaint] liberally and interpret[ ] [it] to raise the strongest arguments that [it] suggest[s].'” Martinez, 164 F.Supp.3d at 508 (quoting Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.2013). Yet, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.” Id. (quoting Bell v. Jendell, 980 F.Supp.2d 555, 559 (S.D.N.Y.2013) (emphasis added) and citing Caidor v. Onondaga Cty., 517 ...

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