Opinion
9:11-CV-00804 (NAM/TWD)
07-02-2014
WOODROW FLEMMING, Plaintiff, v. NANCY SMITH, et al., Defendants.
APPEARANCES: WOODROW FLEMMING Plaintiff pro se P.O. Box 146 New York, New York 10039 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: RICHARD LOMBARDO Assistant Attorney General
APPEARANCES: WOODROW FLEMMING
Plaintiff pro se
P.O. Box 146
New York, New York 10039
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
OF COUNSEL: RICHARD LOMBARDO
Assistant Attorney General
THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Hon. Norman A. Mordue, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). In his original Complaint, Plaintiff set forth nine causes of action alleging numerous claims against forty-two defendants arising out of his confinement at Upstate Correctional Facility ("Upstate"). (Dkt. No. 1.) By Decision and Order dated June 28, 2012, Judge Mordue dismissed all but two of Plaintiff's causes of action asserted against twenty-one remaining defendants pursuant to 28 U.S.C. § 1915A(b).
The District Court found that the three-strikes provision of 28 U.S.C. § 1915(g) barred Plaintiff from proceeding in forma pauperis. (Dkt. No. 14). Plaintiff has filed more than thirty lawsuits in the Northern District of New York since 2005. See https://ecf.nynd.cir2. dcn/cgi-bin/iquery.pl?17461056886244-L_1_1-0-480245-pty-pla-plaintiff (last visited June 26, 2014).
The two surviving causes of action alleged the denial of adequate medical care and deliberate indifference to Plaintiff's serious medical needs in violation of his rights under the Eighth Amendment. The remaining Defendants were Upstate medical staff members Nancy Smith ("Smith"), Nurse Administrator; Evelyn Weissman ("Weissman"), M.D.; Richard Adams ("Adams"), M.D.; Patrick Johnson ("Johnson"), P.A.; Glenn Schruyer ("Schruyer"), R.N. II; Dianna Harvey ("Harvey"), R.N. II; Patsy Nakahara ("Nakahara"), R.N. II; George Waterson ("Waterson"), R.N. II; Marla Travers ("Travers"), R.N. II; Elizabeth White ("White"), R.N. II; Renee Holmes ("Holmes"), R.N. II; Dana Griffith ("Griffith"), R.N. II; Julia Gordon ("Gordon"), R.N. II; David Hammac ("Hammac"), R.N. II; Rodney Cook ("R. Cook"), R.N. II; Neil Cook ("N. Cook"), R.N. II; James Chesbrough ("Chesbrough"), R.N. II; Christy Conklin ("Conklin"), R.N. II; Kathy Sullivan ("Sullivan"), R.N. II; Rosanna Lordi ("Lordi"), R.N. II; and Candy Atkinson ("Atkinson"), R.N. II.
The matter is currently before the Court for the screening of Plaintiff's Amended Complaint (Dkt. No. 49), filed following the conditional grant of the remaining Defendants' motion to dismiss Plaintiff's Complaint with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(2) and (b)(6). (Dkt. No. 48.) For the reasons set forth below, the Court finds that Plaintiff has failed to correct the deficiencies in his original Complaint and recommends that Plaintiff's Amended Complaint be dismissed with prejudice.
I. BACKGROUND
A. Allegations of the Original Complaint
Plaintiff was confined at Upstate after being transferred there in 2005 for infirmary placement while he served time in the Special Housing Unit. (Dkt. No. 1 at 22-23.) In October of 2009, Plaintiff complained of feeling weak to Defendants Johnson, Atkinson, Sullivan, Smith, White, Harvey, and Nakahara. (Dkt. No. 1 at second ¶ 73.) Although Plaintiff alleged that the Defendants to whom he complained failed to act in response to his complaints, he acknowledged in his Complaint that he was taken to the hospital three times in connection with the weakness. Id. The third time, blood work revealed Plaintiff may have been being over-medicated at Upstate. Id.
According to Plaintiff, his original Complaint "consolidated issues from July 2008 within 3 years filing." (Dkt. No. 1 at ¶ 56.)
Plaintiff also claimed to have serious medical problems with his left shoulder, back, hip and knees which Defendants knew about and nonetheless failed to diagnose, and denied his requests to be examined by a doctor and given treatment and therapy. Id. at ¶¶ 61, 63, 65, 67, 72, 74. Plaintiff identified the Defendants to whom he complained about his left shoulder, back, hip, and knee as Weissman, Smith, Johnson, Nakahara, Waterson, White, Holmes, Griffith, Gordon, Hammac, R. Cook, N. Cook, Chesbrough, Sullivan, Lordi, and Atkinson. Id. at ¶¶ 72, 73. Plaintiff also complained that on July 29, 2010, Defendant Adams, a physician at Upstate, took away the walking cane Plaintiff used for his left side and left leg weakness and his pain medication, without an examination or therapy. Id. at ¶ 68.
On September 28, 2010, Plaintiff fell and was taken to the emergency room at the Alyce Hyde Medical Center in Malone, New York, by authorization of Defendant Weissman, another Upstate physician. (Dkt. Nos. 1 at ¶ 74; 39-1 at 7-9.) X-rays taken of Plaintiff's lumbar spine, left shoulder, left hip, left knee, pelvis, c-spine, chest and ribs were negative. (Dkt. No. 1 at 52.) Plaintiff was also given a head CT scan and diagnosed with a concussion. Id.; Dkt. No. 39-1 at 9. Plaintiff alleged that neither his concussion nor complaints about head pain and nosebleeds after the fall were addressed following return to Upstate. (Dkt. No. 1 at ¶¶ 74-75, 77.) Plaintiff identified the Defendants to whom he complained about his headaches and nosebleeds for over the nine months following his concussion as Adams, Smith, Waterson, Atkinson, Sullivan, Lordi, Conklin, Hammac, Travers, White, Holmes, Griffith, R. Cook, and Schruyer. Id. While at Upstate, Plaintiff was given a blood test that revealed his blood platelet count was somewhat elevated. Id. at ¶ 76. The results of a follow up test on March 14, 2011, showed a more significantly elevated count of 869. Id. at ¶ 78 and 26. The normal range is 144-400. Id. Although Plaintiff alleged that the medical staff did nothing for him, he has also acknowledged in his Complaint that a decision was made to send to him to an outside doctor in April of 2011. Id. at ¶ 79. Defendant Adams ordered a hematology consult based upon the blood test results and report. (Dkt. No. 39-1 at 38.) Plaintiff signed a contract for specialty care on March 21, 2011. Id. Plaintiff was seen by a hematologist on April 26, 2011, and the results of his blood work were reviewed by a provider on May 2, 2011. (Dkt. No. 1 at 35.) Based upon the hematologist's recommendation, Plaintiff was prescribed Hydroxyurea 500 mg twice daily, ASA 325 mg daily, and an abdominal ultrasound and a follow-up hematology consult was ordered. Id.
B. Ruling on Defendants' Motion to Dismiss
Defendants moved to dismiss the remaining Eighth Amendment claims in Plaintiff's original Complaint on the grounds that: (1) the District Court lacked personal jurisdiction over the Defendants because Plaintiff failed to serve the summons and complaint in the manner required to obtain personal jurisdiction; (2) the Complaint failed to state a claim upon which relief could be granted under 42 U.S.C. § 1983; and (3) Defendants were entitled to qualified immunity. (Dkt. No. 36.)
This Court recommended that Defendants' motion to dismiss for failure to state a claim be granted with leave to amend. (Dkt. No. 45.) The Court's recommendation was based upon: (1) Plaintiff's failure to allege any non-conclusory facts suggesting deliberate indifference on the part of Defendants Johnson, Atkinson, Sullivan, Smith, White, Harvey, and Nakahara with regard to his claim of weakness, id. at 14-15; (2) Plaintiff's failure to allege non-conclusory facts plausibly showing that he had a serious medical condition with regard to his claims of pain in his back, hips, and knees, and failure to allege any non-conclusory facts suggesting deliberate indifference with regard to his frozen shoulder and pain in his back, hips and knees by Defendants Weissman, Smith, Johnson, Nakahara, Waterson, White, Holmes, Griffith, Gordon, Hammac, R. Cook, N. Cook, Chesbrough, Sullivan, Lordi, and Atkinson, id. at 16-20; (3) records annexed to Plaintiff's Complaint failed to support his claim that he needed a walking cane, and Plaintiff failed to allege non-conclusory facts showing deliberate indifference on the part of Defendant Adams in taking away the cane in July of 2010, id. at 20-21; (4) Plaintiff's failure to allege facts regarding the medication alleged to have been wrongfully discontinued by Adams, the medical condition for which the medication was being taken, and the facts and circumstances surrounding the alleged discontinuance, id. at 21; (5) Plaintiff's failure to allege sufficient facts to make a facially plausible showing that the headaches and nosebleeds of which he complained constituted serious medical conditions and failure to allege non-conclusory facts showing deliberate indifference with regard his concussion, headaches and nosebleeds by Defendants Adams, Smith, Waterson, Atkinson, Sullivan, Lordi, Conklin, Hammac, Travers, White, Holmes, Griffith, R. Cook, and Schruyer, id. at 22-23; and (6) failure to allege non-conclusory facts supporting a claim of deliberate indifference on the part of Adams or any other Defendant with regard to Plaintiff's claim that treatment for his elevated blood platelets was delayed. Id. at 23-24.
The District Court accepted this Court's recommendation that Defendants' motion to dismiss be granted for failure to state a claim, with leave to amend, and ordered that the action would be dismissed with prejudice for failure to state a claim unless Plaintiff filed an amended complaint within thirty-days. (Dkt. No. 48.) The District Court also ordered that if Plaintiff filed an amended complaint that survived initial review, new summonses were to be issued for defendants named in the amended complaint, since service of the initial summons and complaint on defendants was inadequate. Id.
C. Allegations of Amended Complaint
Plaintiff filed a nearly illegible handwritten Amended Complaint with voluminous exhibits on September 23, 2013. (Dkt. No. 49.) A day later, Plaintiff filed additional medical records and grievance records in support of his Amended Complaint. (Dkt. No. 50.) Plaintiff's Amended Complaint asserts the same Eighth Amendment claims for deliberate indifference to his serious medical needs as his original Complaint. While wordier and more repetitive than his original Complaint, the allegations in Plaintiff's Amended Complaint are no less conclusory and do not correct the deficiencies in the original Complaint.
A large number of the documents annexed to Plaintiff's Amended Complaint relate to matters that occurred prior to July 2008, the date Plaintiff identified as the start time for the claims asserted in his lawsuit and have no relevance in this action.
In his Amended Complaint, Plaintiff has also attempted to resurrect the supervisory claims relating to his placement and the inadequacy of his care in the special housing unit, as well as inadequate training and supervision claims against defendants Smith and Weissman and a number of original defendants, including Lester Wright, against whom the Complaint was dismissed on initial review. (See, e.g., Dkt. No. 49 at 24, 26, 32.) The claims, as asserted in the Amended Complaint, suffer from the deficiencies that led to their dismissal on initial review. (See Dkt. No. 21.)
II. LEGAL STANDARD
Under 28 U.S.C. § 1915A (2006), "[t]he court shall review . . . a complaint in a civil action in which a prisoner seeks redress from a[n] . . . employee of a governmental entity." 28 U.S.C. § 1915A(a) (2006). In conducting this review, "the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. §1915A(b)(1-2) (2006)
Although Plaintiff was released from custody in or about March of 2014 (Dkt. No. 56 at 2), he was incarcerated at the time this action was commenced and when he filed the Amended Complaint. (See Dkt. Nos. 1 and 49.) Therefore, § 1915A is applicable. See Rogers v. New York City Police Dept., No. 12 CV 3042 (CBA)(MG), 2012 WL 4863161, at *1 n.3, 2012 U.S. Dist. LEXIS 147663, at *4 n.3 (E.D.N.Y. Oct. 12, 2012) (a plaintiff who has been released from incarceration is still considered a prisoner under § 1915A if he was imprisoned at the time the action was commenced); see also Brown v. Jacobson, No. 98 Civ. 0565 LBS, 1999 WL 1125122, at * 5, 1999 U.S. Dist. LEXIS 18921, at *13-14 (S.D.N.Y. Dec. 8, 1999) (prisoner's complaint subject to heightened scrutiny under the Prison Litigation Reform Act of 1999 even after release from custody because it advances concerns about prison officials' misconduct) (citing Johnson v. Hill, 965 F. Supp. 1487, 1488 n.2 (E.D.Va. 1997)).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (superceded by statute on other grounds).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility 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. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted).
Because a court has a duty to show liberality towards pro se litigants, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), extreme caution should be exercised in ordering sua sponte dismissal of a pro se action. Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
III. ANALYSIS
Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure, among other things, that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
A claim that prison officials have intentionally disregarded an inmate's serious medical needs has both objective and subjective elements. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). "The plaintiff must show that she or he had a serious medical condition and that it was met with deliberate indifference." Id. at 72. (citation and internal quotation marks omitted). "The objective 'medical need' element measures the severity of the alleged deprivation, while the subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citation omitted).
A "serious medical condition" is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance, 912 F.2d at 607) (Pratt, J. dissenting) (citations omitted), accord Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain. Chance, 143 F.3d at 702-03.
Under the subjective element, medical mistreatment rises to the level of deliberate indifference only when it "involves culpable recklessness, i.e., an act or a failure to act . . . that evinces 'a conscious disregard of a substantial risk of serious harm.'" Id. at 703 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). "Deliberate indifference requires more than negligence but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66. To establish deliberate indifference, an inmate must prove that (1) a prison medical care provider was aware of facts from which the inference could be drawn that the inmate had a serious medical need; and (2) the medical care provider actually drew that inference. Farmer, 511 U.S. at 837; Chance, 143 F.3d at 702. The inmate then must establish that the provider consciously and intentionally disregarded or ignored that serious medical need. Farmer, 511 U.S. at 835. An "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Moreover, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . under the Eighth Amendment." Id. at 106. Stated another way, "medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id.; see also Smith, 316 F.3d at 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation."). However, malpractice that amounts to culpable recklessness constitutes deliberate indifference. Accordingly, "a physician may be deliberately indifferent if he or she consciously chooses an easier and less efficacious treatment plan." Chance, 143 F.3d at 703 (quoting Hathaway, 99 F.3d at 553).
Conclusory allegations that medical staff defendants were aware of a plaintiff's medical needs and failed to provide adequate care are generally insufficient to state an Eighth Amendment claim of inadequate medical care. See, e.g., Gumbs v. Dynan, No. 11-CV-857 (RRM)(LB), 2012 WL 3705009, at *12, 2012 U.S. Dist. LEXIS 120664, at *36 (E.D.N.Y. Aug. 26, 2012) ("[C]onclusory allegations that defendants were aware of plaintiff's medical needs and chronic pain but failed to respond are generally not sufficient proof of defendant's deliberate indifference and cannot survive a Rule 12(b)(6) motion to dismiss.") (citing Adekoya v. Holder, 751 F. Supp. 2d 688, 691, 697 (S.D.N.Y. 2011) (finding conclusory allegations that medical staff defendants were aware of plaintiff's medical needs and failed to provide adequate care insufficient to defeat a motion to dismiss a claim of inadequate medical care); Thomas v. Douglas, No. 9:09-CV-0548 (GLS/DEP), 2010 WL 3724183, at *5, 2010 U.S. Dist. LEXIS 97660, at *15 (N.D.N.Y. Aug. 12, 2010) (deliberate indifference claim set forth in wholly conclusory terms alleging that plaintiff was merely "continuously denied proper treatment," without supporting facts to establish a plausible medical indifference claim cannot survive a motion to dismiss). This case is no exception.
A. Plaintiff's Weakness Claim
Plaintiff has again alleged that he suffered from weakness and dizziness in October of 2009 that resulted in his being hospitalized, thus making a plausible showing that he suffered from a serious medical condition. (Dkt. Nos. 49 at ¶¶ 36-42; 49-1 at 32-47.) However, the allegations in Plaintiff's Amended Complaint with regard to the deliberate indifference component of his Eighth Amendment claim are as conclusory, and therefore as inadequate, as those in his original Complaint.
In his original Complaint, Plaintiff alleged in conclusory fashion that he complained about his weakness to Defendants Johnson, Atkinson, Sullivan, Smith, White, Harvey, and Nakahara, and they did nothing. (Dkt. No. 1 at ¶ 73.) In his Amended Complaint, Plaintiff has alleged, again in conclusory fashion, that he complained about the weakness not only to the Defendants identified in his original Complaint, but also to Defendants Griffith, Holmes, Gordon, Waterson, Chesbrough, N. Cook, R. Cook, Hammac, Lordi, and Weissman, and that they all intentionally denied or delayed treatment. (Dkt. No. 49 at ¶¶ 39, 42.)
The absence of specific allegations as to how each defendant was deliberately indifferent to Plaintiff's weakness and dizziness is fatal to his claim. See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) ("[B]road, simple, and conclusory statements are insufficient to state a claim under § 1983."). Therefore, the Court recommends that Plaintiff's Eighth Amendment claim in his Amended Complaint with regard to his weakness and dizziness in October of 2009 be dismissed with prejudice.
B. Plaintiff's Left Shoulder, Back, Hip, and Knee Complaints and Stopping Pain Medication
In his Amended Complaint, Plaintiff again alleges that he had a frozen left shoulder and back, hip, and knee problems that left him in severe pain. (Dkt. No. 49 at ¶¶ 36, 42-44.) As with his original Complaint, Plaintiff has failed to allege facts making a plausible showing that his chronic back pain and hip and knee problems were severe enough to constitute a serious medical condition for Eighth Amendment purposes. Id.
Plaintiff has alleged in conclusory fashion in his Amended Complaint that Defendants Johnson, Adams, Smith, Weissman, Harvey, Hammac, R. Cook, N. Cook, Chesbrough, Conklin, Sullivan, Waterson, Travers, White, Holmes, Griffith, Gordon, Lordi, Atkinson, and Nakahara knew of his frozen shoulder and back, hip, and knee problems and pain and acted with deliberate indifference in denying him the proper medical care and attention and pain medication. Id. at ¶¶ 43-44.
In his Amended Complaint, Plaintiff alleges that discontinuance of the drug Ultram constituted cruel and unusual punishment. (Dkt. No. 49 at ¶ 43.) However, according to the Superintendent's decision on Plaintiff's Grievance No. UST-43915-10, dated September 29, 2010, attached to Plaintiff's Amended Complaint, investigation of the grievance revealed that:
. . . grievant was seen by his primary provider on 07/29/10. Based on exam and evaluation of medical issues, M.D. ordered Ultram to be tapered down and discontinued. Risk factors associated with Ultram in conjunction with current medical problems can lead to seizures and Seratonin Syndrome. Tylenol 325 mg two times a day for pain was ordered.
This Court explained in its Report-Recommendation and Order on Defendants' motion to dismiss that conclusory allegations that medical staff defendants were aware of a plaintiff's medical needs and failed to provide adequate care were insufficient to state an Eighth Amendment claim for deliberate indifference to a serious medical condition. (Dkt. No. 45 at 14-15.) See e.g., Adekoya, 751 F. Supp. 2d at 691 (finding conclusory allegations that medical staff defendants were aware of plaintiff's medical needs and failed to provide adequate care insufficient to defeat a motion to dismiss a claim of inadequate medical care).
Plaintiff has failed to correct the pleading deficiency in his original Complaint with regard to Defendants' alleged deliberate indifference to his frozen shoulder, chronic back pain, and hip and knee problems and need for medication, despite having been given an opportunity to do so. Therefore, the Court recommends that Plaintiff's Eighth Amendment claim in his Amended Complaint with regard to his shoulder, back, hip, knee, and pain medication be dismissed with prejudice.
C. Plaintiff's Cane
Plaintiff alleges in his Amended Complaint that Defendant Adams, knowing Plaintiff had a weak left hip and many problems with his knee and needed a walking cane to help him stand, took away the cane. (Dkt. No. 49 at ¶ 45.) Plaintiff's conclusory assertion that he needed a cane is contradicted by grievance proceeding documents annexed by Plaintiff to his Amended Complaint. See Matusovsky, 186 F. Supp. 2d at 399-400. Plaintiff filed a grievance on July 30, 2010, complaining that on the day before, Defendant Adams, who had never seen him before, took away his cane without first doing an MRI. (Dkt. No. 49-1 at 83.) The Internal Review Grievance Committee found that investigation revealed that there was no clinical indication for the cane, and that RN's had observed Plaintiff ambulating with good physical mobility, upright posture, and steady gait. Id. at 98. On appeal from denial of the grievance, the Superintendent affirmed, indicating that Plaintiff had been evaluated by his provider, and there was no indication for a cane. Id. at 9. The Central Office Review Committee affirmed, noting that a cane was not medically indicated.
Plaintiff's conclusory allegation that he needed a cane, particularly when contradicted by the grievance documents he himself has submitted, along with his failure to allege facts showing a deliberate indifference to his alleged need for a cane on Defendant Adams' part, fails to make a plausible showing that Plaintiff's Eighth Amendment rights were violated, and the Court recommends that his claim regarding the cane be dismissed with prejudice.
D. Head Pain and Nosebleeds
Plaintiff alleges in his Amended Complaint that he complained about headaches and his daily nose bleeds to Defendants Smith, Weissman, Harvey, Atkinson, Nakahara, Lordi, Hammac, R. Cook, N. Cook, Chesbrough, Conklin, Sullivan, Waterson, Travers, White, Holmes, and Griffith, and they treated his medical needs with deliberate indifference by refusing him the necessary medical treatment. (Dkt. No. 49 at ¶¶ 46-47.) As with his initial Complaint, Plaintiff's allegations regarding the Defendants' deliberate indifference are conclusory and wholly inadequate to make a plausible showing of deliberate indifference. See e.g., Adekoya, 751 F. Supp. 2d at 691, 697. Therefore the Court recommends that Plaintiff's Eighth Amendment claim regarding his headaches and nosebleeds be dismissed with prejudice.
E. Plaintiff's Elevated Platelets
In his Amended Complaint, Plaintiff alleges that Defendant Adams did not send him to an outside doctor for a month after finding out his platelet level was elevated to eight-hundred. (Dkt. No. 49 at ¶ 48.) On a claim based upon a significant delay in receiving treatment, "a plaintiff must allege that the individuals causing the delay had the requisite state of mind, which . . . is the equivalent of criminal recklessness." Jones v. Vives, 523 F. App'x 48, 50 (2d Cir. 2013) (citing Hathaway, 99 F.3d at 553. The allegations in Plaintiff's Amended Complaint regarding Defendant Adams' state of mind in treating Plaintiff for elevated blood platelets and referring him to an outside physician are no less deficient than those in his original Complaint. Therefore, the Court recommends that Plaintiff's Eighth Amendment claim with regard to his platelet count be dismissed with prejudice.
It is not at all clear that the one month delay in outside treatment alleged by Plaintiff was significant under the circumstances.
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ACCORDING, it is hereby
RECOMMENDED, that Plaintiff's Amended Complaint (Dkt. No. 49) be dismissed with prejudice under 28 U.S.C. § 1915A; and it is
ORDERED, that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) ( per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). Dated: July 2, 2014
Syracuse, New York
/s/__________
Thérèse Wiley Dancks
United States Magistrate Judge
(Dkt. No. 49-1 at 64, 91.) See Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 399-400 (S.D.N.Y. 2002) (noting that in evaluating a Rule 12(b)(6) motion, a court may consider documents attached to the complaint as exhibits, and "[i]f a plaintiff's allegations are contradicted by such a document, those allegations are insufficient to defeat a motion to dismiss.")