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Kenyon v. Weber

United States District Court, W.D. New York

December 21, 2017

WILLIAM E. KENYON, Plaintiff,
v.
JOE WEBER, et al., Defendants.

          DECISION AND ORDER

          HON. FRANK P. GERAO, JR. CHIEF JUDGE.

         INTRODUCTION

         Pro se Plaintiff William E. Kenyon, an inmate at Five Points Correctional Facility, brings this 42 U.S.C. § 1983 action against multiple defendants. ECF No. 1. Plaintiff alleges that Defendants Weber, Bradt, Bishop, and Krakowski violated his Eighth Amendment rights when they were deliberately indifferent to an unsafe working condition in the Attica Correctional Facility Metal Shop, which led to Plaintiff's fall and injuries on July 19, 2013. Id. Plaintiff suffered a “ripped” hamstring, and he alleges that Defendants Dr. Laskowski, Dr. Abbey, Dr. Rao, and Physician Assistant Schunk denied him adequate medical treatment. Id.

         After screening the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, the Court: (1) granted Plaintiff leave to file an amended complaint as to his medical care claims because they failed to state a claim upon which relief may be granted; and (2) indicated that if Plaintiff did not file an amended complaint, the Clerk of Court would serve the Summons and Complaint on Defendants Weber, Bradt, Bishop, and Krakowski with respect to the unsafe working conditions claim.

         On April 24, 2017, before the Court received and docketed Plaintiff's Amended Complaint, the Clerk of Court issued Summonses for Defendants Weber, Bradt, Krakowski, and Bishop, and forwarded the Summonses, copies of the Complaint, and Marshals' Service Forms to the United States Marshals for service. On April 28, 2017, the Clerk of Court docketed the Amended Complaint. ECF No. 6. The Amended Complaint, pursuant to the “prison mail box rule, ” is deemed “filed” on the date Plaintiff signed it-April 18, 2017. See, e.g., Houston v. Lack, 487 U.S. 266, 271 (1988) (a pro se prisoner litigant's papers are deemed filed when they are placed a prison official's hands for mailing).

         On July 18, 2017, Defendants Bradt, Bishop, Krakowski, and Weber moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 13. Defendants argue that the operative pleading in this action should be the Complaint and not the Amended Complaint. ECF No. 13-1 at 3.

         As stated above, however, the Amended Complaint was timely “filed” on April 18, 2017; but it was not (and has not been) screened or served before Defendants filed their Motion to Dismiss. Defendants argue that “[e]ven if the Court allowed the Amended Complaint to be the operative document, the amended complaint fails to address the [inadequate medical care] issues raised by the Court's [Screening Order].” The Court previously dismissed the medical care claims with leave to amend because the Complaint did not allege deliberateness by any Defendant. ECF No. 4 at 8-10.

         Because the Amended Complaint was timely filed and Defendants' Motion to Dismiss addresses the Amended Complaint, the Court finds that the Amended Complaint is the operative pleading and that the Motion to Dismiss will be construed as filed against the Amended Complaint.[1] Additionally, the Court did not screen the medical care claims in the Amended Complaint, and therefore it will screen those claims below.[2] See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. For the reasons that follow, Defendants' Motion to Dismiss (ECF No. 13) is GRANTED IN PART and DENIED IN PART. The Court also finds that the Amended Complaint fails to allege an actionable inadequate medical care claim and therefore that claim is dismissed.

         DISCUSSION

         I. Screening of Amended Complaint: Inadequate Medical Care Claim

         Because Plaintiff was previously granted permission to proceed in forma pauperis (ECF No. 4), his Amended Complaint is subject to screening pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Section 1915 “provide[s] an efficient means by which a court can screen for and dismiss legally insufficient claims.” Abbas, 480 F.3d at 639. The Court shall dismiss a complaint in a civil action where a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity if the Court determines at any time that the action (1) fails to state a claim upon which relief may be granted or (2) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2).

         After screening Plaintiff's initial Complaint, the Court found that it failed to state an Eighth Amendment claim of deliberate indifference because it did not allege deliberateness by Defendants Bradt, Dr. Rao, Dr. Laskowski, Dr. Abbey, and Physician Assistant Schunk. There were also no allegations that Schunk was personally involved in the alleged denial of adequate medical care. Thus, the Court dismissed Plaintiff's inadequate medical care claims but granted him leave to amend. ECF No. 4 at 8-10, 13.

         The Amended Complaint is nearly identical to the original Complaint. The relevant and new substantive allegations with respect to the inadequate medical care claims do not adequately plead a claim of deliberate indifference to a serious medical need.

         After the injury on July 19, 2013, a nurse at Attica examined Plaintiff and advised him that he ripped his hamstring. He was transported to an outside hospital, and the hospital discharge instructions called for him to see a doctor at Attica and to return to the hospital for an MRI in five days. Plaintiff alleges that his primary care doctor must have known of these discharge instructions but ignored them. ECF No. 6 at ¶¶ 18-21. Plaintiff first saw a doctor at Attica on July 29, 2013, ten days after the injury. Defendant Dr. Abbey informed Plaintiff that he was aware of the injury, but Plaintiff alleges that Dr. Abbey was only interested in speaking about Plaintiff's hernia. Id. at ¶ 21. Plaintiff did not see another doctor for almost two months. On September 5, 2013, he saw Defendant Dr. Laskowski who did not talk to Plaintiff about his leg. A couple of weeks later, Plaintiff saw Defendant Dr. Rao, but Dr. Rao did not examine his leg and again only talked about Plaintiff's hernia surgery. Id. at ΒΆ 22. The original Complaint similarly alleged that Plaintiff had seen Drs. Abbey and Laskowski in the weeks and months after the injury, but that they did not ...


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