United States District Court, W.D. New York
WILLIAM E. KENYON, Plaintiff,
JOE WEBER, et al., Defendants.
DECISION AND ORDER
FRANK P. GERAO, JR. CHIEF JUDGE.
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.
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
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).
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.
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.
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. Additionally, the Court did not
screen the medical care claims in the Amended Complaint, and
therefore it will screen those claims below. 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
Screening of Amended Complaint: Inadequate Medical Care
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).
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.
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.
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 ¶ 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 ...