Bennett v. Care Corr. Solution Med. Contracter

DONALD MACK BENNETT, Plaintiff, v. CARE CORRECTION SOLUTION MEDICAL CONTRACTER, CHIEF MEDICAL DIRECTOR/DR.RAUL ULLOA, CHRONIC CARE/DR. DELORES CURBELLA, N.P.LINDA BEYER, N.P. MICHAEL KELLY, N.P. DIANE TURFARO,L.P.N. CRYSTAL MAGIGANand WESTCHESTER COUNTY JAIL/LIASON, Defendants.

15 Civ. 3746 (JCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 24, 2017

OPINION & ORDER

Plaintiff Donald Mack Bennett, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983¹ alleging that Defendants Correct Care Solutions (sued herein as Care Correction Solution Medical Contracter [sic]) ("CCS"),² Dr. Raul Ulloa, Dr. Dolores Curbelo (sued herein as Delores Curbella), N.P. Linda Beyer, N.P. Michael Kelly, N.P. Diane Tufaro (sued herein as Diane Turfaro), L.P.N. Crystal Madigan (sued herein as Crystal Magigan) and Westchester County Jail/Liason [sic] (collectively, "Defendants") denied him adequate medical care inviolation of his rights under the Eighth Amendment.³ (Docket No. 9 ("Am. Compl.")). The Court dismissed sua sponte all of Plaintiff's claims that accrued prior to May 5, 2012 as time-barred. (Docket No. 7 at 2-3). Plaintiff filed his Amended Complaint on August 5, 2015, and seeks $262,500,000 in total damages, including punitive damages.⁴ (Am. Compl. at 6). Defendants moved to dismiss the Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on February 26, 2016.⁵,⁶ (Docket Nos. 43, 45 ("Def. Br.")). Defendants filed a Reply Memorandum on April 15, 2016. (Docket No. 48). Plaintiff filed an Opposition to Defendants' Motion to Dismiss on September 8, 2016, nearly six months after the March 30, 2016 Court-ordered deadline. (Docket Nos. 26, 68 ("Pl. Opp.")). The Court nevertheless has considered Plaintiff's Opposition.⁷ For the following reasons, Defendants' Motion to Dismiss is granted in its entirety.

I. BACKGROUND

For purposes of resolving the instant motion, this Court accepts as true the facts as stated in Plaintiff's Amended Complaint. Based on a liberal reading of the Amended Complaint, Plaintiff seems to allege that during the time he was incarcerated at the Westchester County Jail he received inadequate medical care and suffered "imminent serious dangerous physical injuries." (Am. Compl. at 1). In particular, Plaintiff claims that he had a facial cyst near his right eye, which he describes as an "imminent serious physical dangerous injury" that caused "excruciating pain." (Id. at 3 ¶ 1). Plaintiff underwent surgery on July 24, 2015 to have the cyst removed, but maintains that the surgery was originally scheduled for April 20, 2015, and complains of this three-month delay. (Id.). Plaintiff also claims that the cyst interfered with his vision, and summarily concludes that it could have been cancer and that the cancer could have spread because the surgery was delayed. (Id. at 3 ¶ 1, 5 ¶ 7). Plaintiff identifies a second cyst on his neck, which he describes as an "imminent serious physical dangerous threatening injury" and a "fatal medical issue." (Id.). He further complains that two of his medications were changed from pill form to liquid form, (Id. at 3 ¶ 1, 4 ¶ 6), and seems to argue that the cysts formed because of this change, (Pl. Opp. at 2-3). Additionally, Plaintiff claims that he contracted MRSA, an infection, when he had the surgery to remove the cyst near his eye, (Am. Compl. at 4-5 ¶¶ 6-7), and that his doctor stopped his blood thinner before his surgery and had not resumed it at the time of filing the Amended Complaint, (Id. at 3 ¶ 1). He also contends that the medical professionals at the facility gave him medication to which he was allergic and denied him prescription medication, but it is unclear from the submissions whether Plaintiff suffered any negative reactions. (Id. at 3 ¶¶ 2-3). Finally, Plaintiff complains that he was given the "wrong" medication for an infected knee, which took eight months to heal. (Id. at 4 ¶ 4). In sum, itappears that Plaintiff is arguing both about the medical treatment he received as well as the three-month delay in surgery on his cyst.

Plaintiff names as Defendants six individuals who were doctors, nurse practitioners or licensed practical nurses from whom he received the treatment described above, or with whom he otherwise interacted. His specific claims against each Defendant are outlined below.

Plaintiff's claims against Defendant CCS are brought together with his claims against Defendant Dr. Ulloa. (Am. Compl. at 3 ¶ 1). Plaintiff alleges that Defendant Dr. Ulloa postposed the surgery to remove the cyst from near his right eye by three months, from April 20, 2015 to July 24, 2015. (Id.). Plaintiff further maintains that Defendant Dr. Ulloa stopped his blood thinner on July 22, 2015, prior to the surgery, and had not put him back on it by July 30, 2015, thereby putting him at risk for a stroke, a grand mal seizure and a heart attack. (Id.). Plaintiff also avers that Defendant Dr. Ulloa changed two medications from pill form to liquid form, which Plaintiff claims caused him to suffer an upset stomach, vomiting and cold sweats. (Id.). Finally, Plaintiff claims that Dr. Ulloa committed medical malpractice. (Id. at 5(III)).

Plaintiff alleges that Defendant Dr. Curbelo falsified medical documents and mistakenly gave him Digioxon [sic], to which he claims he is allergic. (Am. Compl. at 3 ¶ 2).⁸ There is no information regarding why Plaintiff was taking Digioxon [sic] and what damages, if any, he suffered from this alleged error. Plaintiff further makes claims of medical malpractice against Defendant Dr. Curbelo. (Id. at 5(III)).

Plaintiff's complaints against Defendant N.P. Beyer are that she denied him his prescribed medications in January 2015, and has slandered and defamed his character. However, Plaintiff does not elaborate further. (Am. Compl. at 3 ¶ 3). He also alleges that she retaliated against him for filing grievances, but does not describe any retaliatory conduct.⁹ (Id.). Finally, Plaintiff alleges negligent infliction of emotional distress against Defendant N.P. Beyer. (Id. at 5(III); Pl. Opp. at 5).

It is unclear exactly what Plaintiff's claims are against Defendant N.P. Tufaro. The most generous interpretation is that Plaintiff contends that Defendant N.P. Tufaro prescribed the "wrong" medication sometime in 2013, 2014 or 2015 to treat a knee infection that was caused by an allergic reaction to a "sponge material." (Am. Compl. at 4 ¶ 4). He further claims that N.P. Tufaro knew about or should have remembered the infection, and that his leg took eight months to heal. (Id.).

Plaintiff alleges that Defendant Nursing Supervisor N.P. Michael Kelly slandered, libeled and defamed Plaintiff's character, but offers no further information regarding these allegations. (Am. Compl. at 4 ¶ 5). Plaintiff also appears to claim that he was "racially profiled" by Defendant N.P. Kelly, but does not explain what this means, nor does he provide any further detail to support this claim. (Id.).

Finally, Plaintiff accuses Defendant L.P.N. Crystal Madigan of changing his medication from pill to liquid form, causing injury to his kidney and liver. (Am. Compl. at 4 ¶ 6). Plaintiff further claims that Defendant Madigan started rumors, slandered his name and defamed his character. (Id.). Plaintiff provides no further information to support these allegations. He alsoclaims negligent infliction of emotional distress against Defendant L.P.N. Madigan. (Id. at 5(III); Pl. Opp. at 5).

II. LEGAL STANDARDS

A. Motion to Dismiss Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). First, a court deciding a motion to dismiss must accept all of the factual allegations in the complaint as true, and draw all reasonable inferences in favor of the non-moving party. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'") (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); LaFaro v. N.Y. Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) ("On a motion to dismiss . . . we must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor.") (citations and internal quotation marks omitted)). The facts alleged must be more than 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.") (citing Twombly, 550 U.S. at 555 ("[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.") (alteration, citation and internal quotation marks omitted)).

Second, the court must determine whether the allegations, accepted as true, "plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. "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." Id. at 678 (citing Twombly, 550 U.S. at556). Determining whether a complaint states a plausible claim to relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. "'[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,' a complaint is insufficient under Fed. R. Civ. P. 8(a) because it has merely 'alleged' but not 'show[n] that the pleader is entitled to relief.'" 9 Recordings Ltd. v. Sony Music Entm't, 165 F. Supp. 3d 156, 160 (S.D.N.Y. 2016) (quoting Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)) (internal quotation marks omitted)). If a plaintiff...