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Vann v. Sudranski

United States District Court, S.D. New York

December 20, 2017



          Vincent L. Briccetti United States District Judge

         Plaintiff Kouriockein Vann, proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging Correction Officer (“C.O.”) Y. Sudranski, Lieutenant S. Hann (“Lt. Hann”), R.N. Charlene Cody (“Nurse Cody”), R.N. W. Miller (“Nurse Miller”), Dr. Janice Wolf-Friedman, C.O. John Warner, and Superintendent Wendland (“Supt. Wendland”), employees of the New York State Department of Corrections and Community Supervision (“DOCCS”), violated his constitutional rights while he was incarcerated at Green Haven Correctional Facility (“Green Haven”).[1]

         On May 31, 2017, C.O. Sudranski and Lt. Hann answered plaintiff's complaint. (Doc. #41).

         Now pending is Nurse Cody, Nurse Miller, Dr. Wolf-Friedman, C.O. Warner, and Supt. Wendland's (collectively, the “moving defendants”) motion to dismiss the complaint pursuant to Rule 12(b)(6). (Doc. #42).

         For the reasons set forth below, the moving defendants' motion is GRANTED.

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


         For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations in the complaint as true and draws all reasonable inferences in plaintiff's favor.[2]

         On July 12, 2015, C.O. Sudranksi pat frisked plaintiff following “an incident in the yard.” (Compl. at 51).[3] After patting plaintiff's inner and outer legs, C.O. Sudranski allegedly “forcefully reverse karate chopp[ed] plaintiff in the testicles, effecting the plaintiff's perineum area, testicles, groin, and then fondled plaintiff without plaintiff's consent.” (Id. at 9). Lt. Hann witnessed the pat frisk but did not intervene.

         Plaintiff's only allegations against the moving defendants relate to his medical treatment and grievance following the July 12 pat frisk.

         Specifically, on July 12, 2015, plaintiff first sought treatment for his pat frisk-related injuries. Plaintiff alleges he saw Nurse Cody, who used “threatening mannerisms” and “a raised voice, ” when she told plaintiff he could be disciplined because he failed to report the incident. (Compl. at 10). Rather than providing immediate treatment, Nurse Cody instructed plaintiff to complete a sick call slip for the following day.

         On July 13, 2015, plaintiff again saw Nurse Cody at sick call. This time, she provided plaintiff a pass to visit the infirmary, but did so “with attitude.” (Compl. at 21).

         In the infirmary, plaintiff was seen by Nurse Miller. Nurse Miller informed plaintiff he needed to “‘look at the injured cite [sic].'” (Compl. at 21). After an “abrupt” examination (id. at 11), Nurse Miller opined that plaintiff had a “minor irritation.” (Id. at 21). Plaintiff protested that he was in pain, and had blood in his urine. Rather than sending plaintiff to the hospital, Nurse Miller prescribed pain relief mediation, which plaintiff alleges he never received. (Id. at 11).

         On July 12, 2015, plaintiff filed a grievance about C.O. Sudranksi's pat frisk. After an investigation, Supt. Wendland responded as follows on September 25, 2015: “the officer in question conducted the pat frisk in a professional manner following policy and procedure . . . at no time did he ‘fondle' the [plaintiff] in the groin area.” (Compl. at 61). Supt. Wendland's decision was unanimously upheld by the Central Office Review Committee (“CORC”) on December 2, 2015.

         According to the complaint, plaintiff continued to have pain in his groin and testicular area, so he returned to sick call on an unspecified date and requested a doctor's appointment. Plaintiff alleges he had to wait one month before he was seen by his regular physician, Dr. Wolf-Friedman.[4] Rather than immediately referring plaintiff to a specialist, Dr. Wolf-Friedman recommended that plaintiff return in one month if his pain did not subside.

         Following his second appointment with Dr. Wolf-Friedman, plaintiff was referred to a urologist, who examined plaintiff on October 20, 2015. During the appointment, plaintiff was seated on an examination table with his genitalia exposed when C.O. Warner “perversely looked” into the room through a window in the door for more than forty-five seconds. (Opp'n at 7). C.O. Warner did not move until plaintiff “very loudly” told him there was a “personal examination procedure going on.” (Compl. at 37). C.O. Warner then smiled and walked away. The urologist prescribed plaintiff pain relief medication and an athletic support. Plaintiff alleges he never received the medication or athletic support. (Id. at 11).


         I. Standard of Review

         In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff's 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.

         The Court must liberally construe submissions of pro se litigants, and interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation and citation omitted). “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, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation and citation omitted). Nor may the Court “invent factual allegations” plaintiff has not pleaded. Id.

         II. Application

         Plaintiff alleges the moving defendants violated (i) his Eighth Amendment right to be free from cruel and unusual punishment; (ii) his Fourteenth Amendment right to due process; (iii) his Fourteenth Amendment right to equal protection under the law; (iv) his Fourth Amendment right to privacy; and (v) New York state tort law.[5]

         The Court addresses each claim in turn.

         A. Deliberate Indifference Claim

         The moving defendants argue plaintiff fails to state an Eighth Amendment claim against Nurse Cody, Nurse Miller, or Dr. Wolf-Friedman for deliberate ...

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