Opinion
Civil Action No. 9:09-cv-548 (GLS/DEP).
September 16, 2010
BRUCE THOMAS, Plaintiff, Pro Se, Buffalo, New York, Attorney for the plaintiff.
ADELE TAYLOR-SCOTT, ESQ., Assistant Attorney General, HON. ANDREW M. CUOMO, Attorney General of the State of New York, Albany, New York, Attorney for the defendant.
ORDER
The above-captioned matter comes to this court following an Report-Recommendation by Magistrate Judge David E. Peebles, duly filed August 12, 2010. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.
No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby
ORDERED, that the Report-Recommendation of Magistrate Judge David E. Peebles filed August 12, 2010 (Dkt. No. 24) is ACCEPTED in its entirety for the reasons state therein, and it is further
ORDERED, that the defendants' motion to dismiss (Dkt. No. 20) is GRANTED, and that plaintiff's complaint is dismissed as against the remaining defendants, with leave to replead; and it is further
ORDERED that if Thomas wishes to proceed with this action, he must file an amended complaint as directed with the report-recommendation within thirty (30) days from the date of the filing of this Order. The Clerk is directed to send Thomas a blank § 1983 complaint form and a copy of his original complaint for use in preparing an amended complaint; and it is further
ORDERED that upon the filing of Thomas' amended complaint this matter be returned to the Court for further review; and it is further
ORDERED that in the event Thomas fails to file a signed amended complaint within thirty (30) days from the date of the filing of this Order, the Clerk enter judgment dismissing this action pursuant to 28 U.S.C. § 1915(e) and due to Thomas' failure to comply with the terms of this Order, without prejudice and without further order of this Court; and it is further
ORDERED, that the Clerk of the court serve a copy of this order upon the parties in accordance with this court's local rules.
IT IS SO ORDERED.
Dated: September 16, 2010
Albany, New York
REPORT AND RECOMMENDATION
Plaintiff Bruce Thomas, a former New York State prison inmate who is proceeding pro se and in forma pauperis ("IFP"), has commenced this action pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his civil rights during the period of his confinement. In his complaint plaintiff alleges that, in violation of the Eighth Amendment protection against cruel and unusual punishment, he was denied adequate medical treatment at three correctional facilities in which he was housed at the relevant times. As relief, plaintiff's complaint seeks monetary damages in the amount of $11.5 million.Plaintiff's claims against two of the named defendants have been sua sponte dismissed by the court based upon an initial review of plaintiff's complaint and the accompanying IFP application. The three remaining named defendants have now moved to dismiss plaintiff's claims against them based upon his failure a state a cause of action upon which relief may be granted. Having carefully considered the allegations of plaintiff's complaint and the attached supporting exhibits, without the benefit of any opposition on the part of the plaintiff, and applied the requisite deferential standard, I have concluded that plaintiff's complaint fails to state a plausible deliberate medical indifference claim against any of the three moving defendants, and therefore recommend that it be dismissed, though with leave to replead.
I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964). Portions of the background description which follows have been derived from the exhibits attached to plaintiff's complaint, which may also properly be considered in connection with a dismissal motion. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S. Ct. 1561 (1992); see also Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
At the time this action was filed plaintiff was a prison inmate entrusted to the care and custody of the New York State Department of Correctional Services ("DOCS"). See generally Plaintiff's Complaint (Dkt. No. 1). At the times relevant to his claims plaintiff was designated first to the Mt. McGregor Correctional Facility ("Mt. McGregor"), located in Wilton, New York, followed by the Marcy Correctional Facility ("Marcy"), located in Marcy, New York, and later the Orleans Correctional Facility ("Orleans"), located in Albion, New York, where he was placed into a program to prepare him for re-entry into society. See generally Complaint (Dkt. No. 1) Statement of Claim.
Plaintiff has since been released from custody, and is living in Buffalo, New York. See Dkt. Entry Dated 8/18/09.
It appears that plaintiff was also incarcerated briefly at Camp Georgetown, another facility operated by the DOCS, during the relevant time period. See Complaint (Dkt. No. 1) Attachment Exh. C. None of plaintiff's claims in this action stem from medical treatment received while at Camp Georgetown.
Excerpts from plaintiff's ambulatory health record ("AHR") attached as exhibits to plaintiff's complaint reveal that while at McGregor, Marcy, and Orleans Thomas was examined and treated regularly for various medical ailments, including a lumbar back condition which required prescription medication and the use of a Transcutaneous Electrical Nerve Stimulation ("TENS") unit, and a heart condition for which he underwent surgery in September of 2008 while designated to Mt. McGregor. See Complaint (Dkt. No. 1) Attachment pp. 27, 36-37, 46, 60-77.
II. PROCEDURAL HISTORY
This action was commenced on April 20, 2009. Dkt. No. 1. In his complaint, which was accompanied by portions of his DOCS medical records, Thomas asserted a claim of deliberate medical indifference and named, as defendants, DOCS Commissioner Brian Fischer, DOCS Deputy Commissioner Lester Wright, M.D., and three DOCS prison physicians, including Dr. Douglas, employed at Orleans; Dr. Howard, a prison physician at Marcy; and Dr. M. Crook, who works at Mt. McGregor. Id.
Plaintiff brought this action in the United States District Court for the Western District of New York. Dkt. No. 1. The action was subsequently transferred to this district pursuant to an order issued by District Judge David G. Larimer on May 8, 2009. Dkt. No. 3.
Following transfer of the action to this district and initial review of the complaint, on October 21, 2009 District Judge Gary L. Sharpe issued a decision denying plaintiff's IFP application, without prejudice to his right of renewal upon the submission of additional necessary information concerning his financial status, dismissing plaintiff's claims against defendants Fischer and Wright based upon the lack of any facts indicating their personal involvement in the constitutional violations alleged, and denying plaintiff's request to return the case to the Western District of New York. Dkt. No. 13.
Following the submission of additional materials, plaintiff's application for leave to proceed in forma pauperis was later granted. See Dkt. No. 15.
In lieu of answering, the remaining three defendants have moved for an order dismissing plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. Dkt. No. 20. In their motion, defendants argue that plaintiff's complaint and supporting medical records reveal that he was treated regularly and adequately for his various medical conditions, and that his complaint reveals nothing more than his dissatisfaction with the treatment provided, a claim which is not constitutionally actionable. Id. Despite passage of the March 29, 2010 deadline for responding, plaintiff has failed to submit any opposition to defendants' motion, which is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Dismissal Motion Standard
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, ___ U.S. ___, ___, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Id. While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, 129 S.Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974).
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1723, 1734 (1964); Miller v. Wolpoff Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003), cert. denied, 540 U.S. 823, 124 S.Ct. 153 (2003); Burke v. Gregory, 356 F. Supp.2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) is substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "'but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp.2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995)) (citations and quotations omitted).
B. Eighth Amendment Deliberate Indifference Standard
Plaintiff's complaint challenges the adequacy of medical treatment provided to him by the three DOCS prison physicians sued. Claims that prison officials have intentionally disregarded an inmate's medical needs fall under the umbrella of protection from the imposition of cruel and unusual punishment afforded by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976). That amendment prohibits punishment that involves the "unnecessary and wanton infliction of pain" and is incompatible with "the evolving standards of decency that mark the progress of a maturing society." Id.; see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)). To satisfy their obligations under the Eighth Amendment, prison officials must "ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Farmer, 511 U.S. at 832, 114 S.Ct. at 1976 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S.Ct. 3194, 3200 (1984)) (internal quotations omitted).
A claim alleging that prison officials have violated the Eighth Amendment by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, No. 07-CV-2634 (JFB/ARL), 2010 WL 889787, at *7-8 (E.D.N.Y. Mar. 8, 2010). Addressing the objective element, to prevail in a case such as this a plaintiff must demonstrate a violation sufficiently serious by objective terms, "in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). With respect to the subjective element, a plaintiff must also demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). Claims of medical indifference are subject to analysis utilizing this Eighth Amendment paradigm. See Salhuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
1. Objective Requirement
Analysis of the objective, "sufficiently serious", requirement of an Eighth Amendment medical indifference claim begins with an inquiry into "whether the prisoner was actually deprived of adequate medical care . . .", and centers upon whether prison officials acted reasonably in treating the plaintiff. Salahuddin, 467 F.3d at 279. A second prong of the objective test addresses whether the inadequacy in medical treatment was sufficiently serious. Id. at 280. If there is a complete failure to provide treatment, the court must look to the seriousness of the inmate's medical condition. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). If, on the other hand, the complaint alleges that treatment was provided but was inadequate, the seriousness inquiry is more narrowly confined to that alleged inadequacy, rather than focusing upon the seriousness of the prisoner's medical condition. Salahuddin, 467 F.3d at 280. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in treatment . . . [the focus of] the inquiry is on the challenged delay or interruption, rather that the prisoner's underlying medical condition alone." Id. (quoting Smith, 316 F.3d at 185) (internal quotations omitted). In other words, at the heart of the relevant inquiry is the seriousness of the medical need, and whether from an objective viewpoint the temporary deprivation was sufficiently harmful to establish a constitutional violation. Smith, 316 F.3d at 186. Of course, "when medical treatment is denied for a prolonged period of time, or when a degenerative medical condition is neglected over sufficient time, the alleged deprivation of care can no longer be characterized as 'delayed treatment', but may properly be viewed as a 'refusal' to provide medical treatment." Id. at 186, n. 10 (quoting Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000)).
Since medical conditions vary in severity, a decision to leave a condition untreated may or may not raise constitutional concerns, depending on the circumstances. Harrison, 219 F.3d at 136-37 (quoting, inter alia, Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Relevant factors informing this determination include whether the plaintiff suffers from an injury or condition that a "'reasonable doctor or patient would find important and worthy of comment or treatment'", a condition that "'significantly affects'" a prisoner's daily activities, or "'the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (citation omitted); Lafave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *3 (N.D.N.Y. Apr. 3, 2002) (Sharpe, M.J.) (citation omitted).
2. Subjective Element
The second, subjective, requirement for establishing an Eighth Amendment medical indifference claim mandates a showing of a sufficiently culpable state of mind, or deliberate indifference, on the part of one or more of the defendants. Salahuddin, 467 F.3d at 280 (citing Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 2325 (1991). Deliberate indifference, in a constitutional sense, exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Leach v. Dufrain, 103 F. Supp.2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (citing Farmer, 511 U.S. at 837, 114 S.Ct. at 1979); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.) (same). Deliberate indifference is a mental state equivalent to subjective recklessness as the term is used in criminal law. Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40, 114 S. Ct. 1970).,
Mere negligence on the part of a physician or other prison medical official in treating or failing to treat a prisoner's medical condition, on the other hand, does not implicate the Eighth Amendment and is not properly the subject of a section 1983 action. Estelle, 429 U.S. at 105-06, 97 S.Ct. at 292; Chance, 143 F.3d at 703. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106, 97 S.Ct. at 292. Thus, for example, a physician who "delay[s] . . . treatment based on a bad diagnosis or erroneous calculus of risks and costs" does not exhibit the mental state necessary for deliberate indifference. Harrison, 219 F.3d at 139. If prison officials consciously delay or otherwise fail to treat an inmate's serious medical condition "as punishment or for other invalid reasons," however, such conduct is actionable as deliberate indifference. Harrison, 219 F.3d at 138; Kearsey v. Williams, No. 99 Civ 8646, 2005 WL 2125874, at *5 (S.D.N.Y. Sep. 1, 2005).
C. Plausibility Of Plaintiff's Medical Indifference Claim
Plaintiff's medical records reveal that prior to being incarcerated he underwent three lumbar disc operations and had a TENS unit implanted in his back to assist in managing any residual pain. See Complaint (Dkt. No. 1) Attachment pp. 27, 64. In addition, plaintiff underwent heart surgery, in September of 2008, while incarcerated at Mt. McGregor, during which a stint was implanted. Id. at pp. 71-76. Conspicuously lacking in either his complaint or the supporting documents are any factual allegations to support his claim that defendants were deliberately indifferent to his medical condition. Instead, plaintiff's deliberate indifference claim is set forth in wholly conclusory terms, which merely allege, for example, that he was "continuously denied proper treatment." See, e.g., Complaint (Dkt. No. 1) at p. 9. Such conclusory allegations do not suffice without supporting facts to establish a plausible medical indifference claim capable of withstanding a dismissal motion. Collins v. Artus, No. 9:08-CV-470, 2009 WL 606176, at * 6-7 (N.D.N.Y. Mar. 9, 2009) (McAvoy, S.J. Peebles, M.J.).
Plaintiff does not appear to complain regarding the treatment received for his heart condition.
Turning to the specific allegations advanced against the three named defendants, I conclude that they similarly fail to satisfy requirements of Iqbal and Twombly to demonstrate the existence of a plausible medical indifference claim.
1. Dr. M. Crook
Dr. M. Crook was employed at the relevant times as a prison physician at Mt. McGregor. While it is somewhat unclear, it appears that plaintiff's quarrel with Dr. Crook is limited to his assignment of Thomas to an upper bunk, as well as a requirement that plaintiff engage in work activities despite his medical conditions. See Complaint (Dkt. No. 1) Statement of Claims p. 9.
Plaintiff's medical records reveal that he entered Mt. McGregor on or about July 24, 2007. See Complaint (Dkt. No. 1) Attachment p. 64. Excerpts from plaintiff's AHR reveal that he was seen by Dr. Crook the day after his arrival at the facility and reported that he was doing well and was using his TENS Unit "infrequently". Complaint (Dkt. No. 1) Attachment p. 66. Plaintiff was provided with batteries for the device on August 20, 2007, and again reported doing well with the use of his TENS unit on September 25, 2007, and later on February 1, 2008. Id. at pp. 67-68.
Thomas' medical records reveal only one involvement on the part of Dr. Crook in the plaintiff's treatment while at Mt. McGregor and fail to support his claim of ongoing substantial pain as a result of his back surgery. Neither plaintiff's complaint, which is comprised wholly of conclusory allegations, nor the attached medical records demonstrate the existence of a plausible deliberate indifference claim against Dr. Crook. Because plaintiff's naked assertion that Dr. Crook violated his Eighth Amendment rights by refusing to provide him with a lower bunk permit and excuse him from work do not establish the existence of a plausible medical indifference claim, I recommend dismissal of the claims against defendant Crook. See Moolenaar v. Champagne, No. 9:03-CV-1464, 2006 WL 2795339, at * 7 (N.D.N.Y. Sept. 6, 2006) (Kahn, D.J. Peebles, M.J.).
2. Dr. T. Howard
Defendant Howard, at the relevant times, was a DOCS physician stationed at Marcy. Plaintiff's records reveal that he was transferred into Marcy on October 29, 2008. Complaint (Dkt. No. 1) Attachment p. 46. The medical records associated with Thomas' admission into Marcy note plaintiff's surgery on September 30, 2008 for the insertion of a stint/cardiac catheter and that he suffers from chronic back pain requiring the use of a TENS unit, for which he required batteries and a lower bunk permit. Id.
Plaintiff's medical records reveal that upon his arrival at Marcy he was seen by Dr. Howard on November 7, 2008, who reviewed his medical circumstances and assessed his needs, and was provided with both a bottom bunk pass and a permit to carry his TENS unit, and he was scheduled for a follow-up visit with a cardiologist. Id. at p. 76; see also id. at p. 48. Those records also reflect that plaintiff was seen again on November 9, 2008 at medical call out for a teaching session, and again on November 11, 2008 when he requested a new battery for his TENS unit. Complaint (Dkt. No. 1) Attachment at p. 47.
On November 13, 2008, Thomas was seen at the clinic; on that occasion he reported experiencing considerable pain in his lower back and requested pain medication, which was provided. Id. at p. 47. Thomas again was seen by medical personnel on November 14, 2008, at which time he was provided with a permit for use of his TENS unit. Id. at p. 48. Plaintiff was seen for a third time on November 21, 2008, once again complaining of lower back pain, with numbness going down his right leg to his knee; he was seen by Dr. Howard three days later, on November 24, 2008, and provided with a prescription for a pain reliever. Complaint (Dkt. No. 1) Attachment p. 49. Plaintiff made additional visits to the clinic on November 28 and December 1, 2008 regarding his medications and was provided with a refill prescription for Naproxyn on December 5, 2008. Id. at pp. 51-52.
Once again, nothing within plaintiff's medical records from Marcy, which are presumably offered to supplement the otherwise bald and conclusory allegations of his complaint, reveal that Dr. Howard was aware of a serious medical need on the part of the plaintiff but was deliberately indifferent to that need, and the claims against him also should be dismissed.
3. Dr. Douglas
Plaintiff was transferred into Orleans on January 23, 2009 and apparently remained there until his release from prison a few months later. Complaint (Dkt. No. 1) Attachment pp. 15-24. Plaintiff alleges that upon his arrival at Orleans he notified Dr. Douglas that he needed his TENS unit reprogrammed, but was told that due to the short time remaining before his release an outside consultation could not be arranged. Complaint (Dkt. No. 1) at pp. 7-8. Plaintiff bases his assertion that the TENS unit needed reprogramming on a letter dated February 6, 2007, from Dr. Robert Plunkett indicating that Thomas had an appointment scheduled for April 12, 2007 at the Buffalo General Hospital. See Complaint (Dkt. No. 1) Attachment p. 26. There is no indication whether the letter, which predated plaintiff's arrival at Orleans by nearly two years, was ever provided to DOCS officials, nor does plaintiff's AHR make any reference to an earlier request for such a referral. Id. Moreover, the letter does not state the purpose of the scheduled visit and does not suggest that it was to reprogram the TENS unit. Id.
While at Orleans, plaintiff was issued permits for his TENS unit as well as for use of a bottom bunk. Complaint (Dkt. No. 1) Attachment pp. 15-16. Plaintiff was seen by medical personnel on January 29, 2009, though the entry associated with that visit is largely illegible, and on the following day was admitted to the facility's emergency room with a nose bleed, which apparently was packed by Dr. Lewis, who is not a defendant in this case, and was provided with a thirty-day prescription for Ultram, a pain reliever. Id. at pp. 19-20. Plaintiff again was seen on February 12, 2009 for a hypertension consultation, at which time he reported having "no complaints" and that he was "active in sports". Complaint (Dkt. No. 1) Attachment p. 20. On February 13, 2009, and again on February 27, 2009, plaintiff went to the medical unit requesting more Ultram. Id. at pp. 20-21. The last entries regarding medical treatment at Orleans reference visits on March 11, 2009, during which plaintiff reported suffering from discomfort, and again on March 12, 2009, when he stated that he suffered from chronic pain and requested and was given a prescription for Ultram. Id. at p. 22.
Ultram is a trademark preparation of tramadol hydrochloride, an opiod analgesic used for treatment of moderate to moderately sever pain following surgical procedures. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1977, 2027 (31st Ed. 2007).
As with defendants Howard and Crook, the allegations of plaintiff's complaint, as supplemented by the relevant medical records associated with his incarceration at Orleans, fail to reveal that defendant Dr. Douglas was either aware of any serious medical need on the part of the plaintiff, or that he failed to address such a need. Plaintiff's complaint therefore fails to assert a plausible medical indifference claim as against Dr. Douglas, and this portion of defendants' motion to dismiss should also be granted.
D. Leave to Replead
In light of my recommendation that plaintiff's complaint be dismissed as legally insufficient I will consider whether, in view of his pro se status, plaintiff should be permitted to file an amended complaint in an effort to cure the perceived deficiencies.
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991) (emphasis added); see also Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires"); see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003 (E.D.N.Y. 1995) (leave to replead granted where court could not say that under no circumstances would proposed claims provide a basis for relief).
In essence, plaintiff's complaint alleges that his medical needs were not met by the defendants, at least not to his complete satisfaction. Because plaintiff could potentially allege additional facts to satisfy his obligation to plead a plausible Eighth Amendment violation claim, I recommend that he be afforded the opportunity to file an amended complaint.
Plaintiff should be reminded, however, that any subsequent amended complaint submitted to the court should be in proper form, including separately numbered paragraphs each limited, to the extent practicable, to setting forth a single, discrete set of circumstances. See Fed.R.Civ.P. 10(b); see also Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, C.J.) ("complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning.") (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (other citations omitted)); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 U.S. Dist. LEXIS 7136, at *24-25 (N.D.N.Y. May 22, 1995) (Pooler, D.J.) (citation omitted). Any such amended complaint, which shall supersede and replace in its entirety the previous complaint filed by plaintiff, must contain a caption that clearly identifies, by name, each individual or entity that plaintiff is suing in the present lawsuit, and must bear the case number assigned to this action. See Harris v. City of N.Y., 186 F.3d 243, 249 (2d Cir. 1999) (citing Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)); Fed.R.Civ.P. 10(a).
IV. SUMMARY AND RECOMMENDATION
Plaintiff's Eighth Amendment cause of action, alleging deliberate medical indifference based upon treatment received by him from medical personnel at three separate prison facilities, is stated in wholly conclusory terms, with no factual allegations to support the claim. While plaintiff attempts to augment those skeletal allegations with records of his medical treatment at those facilities, they in fact fail to substantiate that the three named defendants were aware of but deliberately indifferent to any serious medical need on plaintiff's part. Rather, those records and plaintiff's complaint, at best, disclose his dissatisfaction with the treatment that he received from those doctors and others at the facilities. In light of plaintiff's failure to plead facts demonstrating the existence of a plausible deliberate medical indifference claim against any of the three defendants remaining in this case, it is hereby respectfully
RECOMMENDED that defendants' motion to dismiss (Dkt. No. 20) be GRANTED, and that plaintiff's complaint be dismissed as against the remaining defendants, with leave to replead.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
Dated: August 12, 2010