United States District Court, E.D. New York
Anderson Pro Se Plaintiff
J. Doody Dale Nicholson McLaren Lewis Brisbois Bisgaard &
Smith, LLP Attorney for Defendants County of Nassau, Armor
Correctional Health of N.Y., Jose Armas, M.D. and Childa
M. Ben-Sorek Thomas Lai Attorney for Defendants County of
Nassau and Sheriff Michael J. Sposato
M. AZRACK UNITED STATES DISTRICT JUDGE
se plaintiff Paul Anderson (“Anderson” or
“Plaintiff”) brings this action against
defendants the County of Nassau (the “County”),
Sherriff Michael J. Sposato (“Sherriff Sposato”)
(collectively the “County Defendants”), Armor
Correctional Health of New York (“Armor”), Jose
Armas, M.D. (“Dr. Armas”), and Childa Margos,
M.D. (“Dr. Margos”) (collectively the
“Armor Defendants”) (all the defendants
collectively the “Defendants”). The Complaint
alleges deprivation of Plaintiff's civil rights pursuant
to the Eighth and Fourteenth Amendments of the United States
Constitution and 42 U.S.C. § 1983, as well as a
state-law negligence claim.
before this Court are the Defendants' motions to dismiss
the Complaint pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure and the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a).
(See ECF Nos. 23 and 27.) For the reasons set forth
below, Defendants' motions are granted.
required in the context of this motion to dismiss, the
factual allegations in the Complaint, though disputed by
Defendants, are accepted to be true for purposes of this
motion, and all reasonable inferences are drawn therefrom in
favor of the Plaintiff.
facts to consider in the context of a Rule 12 motion to
dismiss are generally limited to those set forth in the
pleadings, a court may consider matters outside of the
pleadings under certain circumstances. Specifically, in the
context of a Rule 12(b)(6) motion, a court may consider: (1)
documents attached to the Complaint as exhibits or
incorporated by reference therein; (2) matters of which
judicial notice may be taken; or (3) documents upon the terms
and effects of which the Complaint “relies
heavily” and which are, thus, rendered
“integral” to the Complaint.” Chambers
v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.
2002); see Int'l Audiotext Network, Inc. v. Am. Tel.
and Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995). Moreover.
“[a] court may take judicial notice of a documents
filed in another court not for the truth of the matters
asserted in the other litigation, but rather to establish the
fact of such litigation and related filings.” Glob.
Network Commc'ns, Inc. v. City of New York, 458 F.3d
150, 157 (2d Cir. 2006) (quoting Int'l Star Class
Yacht Racing Ass'n Tommy Hilfiger U.S.A., Inc., 146
F.3d 66, 70 (2d Cir. 1998)).
as here, the Complaint was filed pro se, it must be
construed liberally with “special solicitude” and
interpreted to raise the strongest claims that it suggests.
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)
(internal quotation marks omitted). Nonetheless, a pro
se Complaint must state a plausible claim for relief.
See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).
Court turns now to discuss the facts set forth in
Plaintiff's Complaint, construed in his favor.
an inmate at the Nassau County Correctional Center
(“NCCC”), alleges that he suffers from several
ailments, among them end stage renal disease and back pain
due to a pinched nerve. (Complaint (“Compl.”) at
Armor is a private company that provides medical services to
inmates at the NCCC pursuant to a contract with the County.
(Declaration of John J. Doody, ¶ 3, ECF No. 23-1.) Dr.
Armas appears to be the sole owner and operator of Armor and
Dr. Margos appears to be the chief medical officer of Armor
at NCCC. (Armor Defendants' Memorandum of Law In Support
of Their Motion to Dismiss the Complaint (“Defs'.
Br.”) at 15, ECF No. 23-2; Compl. at 3.)
alleges that his renal disease requires both dialysis and
that he be monitored weekly by a board certified
nephrologist. (Id.) Plaintiff alleges that the
weekly nephrologist monitoring is necessary to review his
blood test reports and various critical levels in his body
such as phosphate and potassium as well as fluid retention.
(Id. at 2-3.) However, Plaintiff alleges that due to
an alleged policy promulgated by Armor, Dr. Armas, and Dr.
Margos, Plaintiff was denied access to a community-based
nephrologist. (Compl. at 3; Declaration of John J. Doody,
¶ 3, ECF No. [23-1].) Plaintiff does not allege that he
suffered any injury (or exacerbation of his condition) as a
result of being denied access to a community-based
Court notes that Plaintiff's complaint is devoid of any
allegations that Dr. Armas personally treated Plaintiff or
denied him access to any community-based medical care.
Plaintiff's allegations against Dr. Armas solely concern
his alleged promulgation of policies for the NCCC. Similarly,
Plaintiff's allegations against Dr. Margos primarily
concern her promulgation of policies for the NCCC. It is
unclear to this Court what, if any role Dr. Margos had in
personally treating Plaintiff.
also alleges that he suffers from an “AIV Fistula,
” which is caused by his renal disease and requires him
to be monitored by a vascular surgeon. (Compl. at 3.)
Plaintiff again alleges that access to this type of doctor
was denied to him to due to the same alleged policy
promulgated by Armor/Dr. Armas, and Dr. Margo that denied him
access to a community-based nephrologist. (Id.)
Plaintiff does not allege that he suffered any injury (or
exacerbation of his condition) as a result of being denied
access to a vascular surgeon.
Plaintiff claims that he suffers from a pinched nerve and is
supposed to be prescribed “Neurontin and Ultram.”
(Compl. at 3.) Plaintiff alleges that Armor and Dr. Armas
have a policy of not prescribing pain medications, and
therefore will not give Plaintiff “a sufficient dose of
Neurontin, within therapeutic level.” (Id.)
Plaintiff does not allege that he suffered any pain or
increase in pain as a result of the denial of Plaintiff's
desired dosage of medication.
Plaintiff alleges that he suffered a fall due to a wet floor
on both June 30, 2015 and on July 2, 2015. (Compl. at 4.)
Plaintiff claims that the July 2, 2015 fall caused pain and
swelling in his right knee. (Id.) Plaintiff alleges
that after filing a grievance he was provided treatment by an
orthopedic specialist, who he claims recommended an MRI.
(Id.) Plaintiff claims that as a result of the cost
and the Armor/Dr. Armas policy, Dr. Margos refused to approve
the recommended MRI. Plaintiff's complaint does not
include any allegations concerning the condition of his right
knee after the denial of the MRI.
commenced this action on September 11, 2015. (See
Compl.) On the same day, Plaintiff submitted an application
to proceed in forma pauperis (“IFP”),
which the Court granted on October 22, 2015. (See
ECF No. 7.) On November 20, 2015, the Armor Defendants
requested a pre-motion conference for leave to file a motion
to dismiss. (See DE . On January 7, 2016,
the Court waived the pre-motion conference and entered a
briefing schedule for the Armor Defendants' motion to
dismiss with the fully briefed motion being due on March 18,
2016. (See ORDER dated 01/07/2016.) On January 8,
2016, the County Defendants requested a pre-motion conference
for leave to file a motion to dismiss, (see ECF No.
20), and on the same day, the Court waived the pre-motion
conference and entered the same briefing schedule as the
Armor Defendants' motion to dismiss. (See ORDER
January 26, 2017, the District Court directed defense counsel
to provide the status of the case by February 10, 2017, as a
review of the docket indicated that the motions to dismiss
had not been filed. (See STATUS REPORT ORDER dated
01/26/2017.) On February 1, 2017, the Armor Defendants filed
a status report explaining that they had timely served
Plaintiff with their motion and subsequently filed an
affidavit of service indicating such, but as of February 1,
2017, Plaintiff had still not provided his Opposition.
(See ECF No. 24.) The Armor Defendants further moved
the Court to accept their motion to dismiss as fully briefed
or in the alternative, dismiss Plaintiff's Complaint for
failure to prosecute pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure. (Id.)
March 8, 2017, the Court directed the Plaintiff to either
“(1) file his opposition to defendant's motion to
dismiss, or (2) indicate by letter to the Court that
plaintiff does not wish to file an opposition but still
intends to prosecute this lawsuit.” (ECF No. 25.) On
April 10, 2017, the Plaintiff filed a response indicating
that he still intended to prosecute this lawsuit. (ECF No.
26.) On March 22, 2018, the County Defendants filed their
fully briefed motion to dismiss, which was served on
plaintiff on February 5, 2016. (ECF No. 27.) To date,
Plaintiff has not filed opposition to either motion.