United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti United States District Judge
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”).
31, 2017, C.O. Sudranski and Lt. Hann answered
plaintiff's complaint. (Doc. #41).
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).
reasons set forth below, the moving defendants' motion is
Court has subject matter jurisdiction under 28 U.S.C. §
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
12, 2015, C.O. Sudranksi pat frisked plaintiff following
“an incident in the yard.” (Compl. at
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
only allegations against the moving defendants relate to his
medical treatment and grievance following the July 12 pat
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.
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).
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).
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.
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. Rather than
immediately referring plaintiff to a specialist, Dr.
Wolf-Friedman recommended that plaintiff return in one month
if his pain did not subside.
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).
Standard of Review
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
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
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.
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.
Court addresses each claim in turn.
Deliberate Indifference Claim
moving defendants argue plaintiff fails to state an Eighth
Amendment claim against Nurse Cody, Nurse Miller, or Dr.
Wolf-Friedman for deliberate ...