Black et al v. Pettitinato et al

Filing 34

MEMORANDUM DECISION AND ORDER, Defendant's motion to dismiss is granted on the ground that the second amended complaint fails to state a claim. The Clerk is directed to enter judgment in favor of defendant, dismissing the second amended com plaint. The Court certifies pursuant to 28 U.S.C. § 19l5(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). So Ordered by Judge Brian M. Cogan on 6/5/2017. (c/m)(fwd'd for jgm) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------THEADORE BLACK,
Plaintiff,
- against DR. GOLDBERG,
Defendant.
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MEMORANDUM DECISION
AND ORDER
16-cv-3941 (BMC)(RLM)

COGAN, District Judge.
Plaintiff pro se, a former pretrial detainee on Rikers Island and a serial litigant in this
Court, commenced this action against various correctional personnel and members of the prison
medical staff for a variety of different grievances. He is on his second amended complaint
because, after a series of Orders under 28 U.S.C. § 1915 and rulings on motions for
reconsideration, I dismissed sua sponte all of his claims against all defendants except one – an
Eighth Amendment 1 deliberate indifference claim against a prison doctor, Dr. Alan Goldberg,
for “refus[ing] to take action in any manner to help alleviate the pain in [plaintiff’s] feet.”
Familiarity with those prior Orders is assumed. Presently before the Court is Dr. Goldberg’s
motion to dismiss that claim. Plaintiff has failed to file an opposition, despite having obtained an
extension of time to do so. Nonetheless, I have considered the merits of defendant’s argument in
determining whether to grant the motion.
I previously discussed plaintiff’s deprivation of medical care claims against Dr. Goldberg
and two other doctors that plaintiff had sued in the original complaint at length in my initial

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I reference the Eighth Amendment for convenience, but recognize that as a pretrial detainee, plaintiff was subject
to the co-extensive standard under the Due Process Clause of the Fourteenth Amendment. See Caiozzo v. Koreman,
581 F.3d 63, 69 (2d Cir. 2009); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996).

§ 1915 decision that dismissed Dr. Goldberg and those other doctors and permitted plaintiff to
file an amended complaint. See Black v. Petitinato, No. 16-cv-1934, 2016 WL 3983590, *4-6
(E.D.N.Y. July 22, 2016) (“Black I”). Plaintiff’s first amended complaint asserted the same
claim against all three doctors. By Memorandum Decision and Order dated August 30, 2016, I
dismissed the claims against the other two doctors but permitted the claim against Dr. Goldberg
to proceed.
Plaintiff then filed a motion for reconsideration of my August 30, 2016 Order. I granted
plaintiff’s reconsideration motion and permitted him to file a second amended complaint.
Plaintiff’s second amended complaint fared no better than his first, and I again dismissed the
claims against the other two doctors, but permitted the claim against Dr. Goldberg to proceed.
Dr. Goldberg was thus left in the second amended complaint subject to his right to seek dismissal
under Federal Rule of Civil Procedure 12(b)(6).
Defendant is correct that plaintiff’s deliberate indifference claim against him fails to meet
the plausibility standard required under Bell Atlantic Corporation v. Twombly, 550 U.S. 544,
570 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Plaintiff posits his conclusion of
deliberate indifference or reckless disregard solely on the following facts: (1) he has diabetic
neuropathy in his feet that causes him pain; and (2) Dr. Goldberg refused to authorize plaintiff’s
receipt of supportive footwear despite a physician’s assistant authorization for such footwear. 2
As the Second Circuit has explained, Twombly requires a plaintiff to allege “‘enough facts to
‘nudge [the plaintiff’s] claims across the line from conceivable to plausible.’” In re Elevator

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As I have done in prior orders, because plaintiff is proceeding pro se, I am reading all of plaintiff’s allegations in
his various pleadings and submissions together, even though most do not appear in the second amended complaint.
I am giving him this leeway even though I had previously directed him that the second amended complaint had to
stand on its own and could not rely on allegations contained in plaintiff’s first two complaints. Plaintiff has
disregarded that direction.

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Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570). Plaintiff’s
allegations fail to meet this standard.
I incorporate by reference the extensive discussion of the supportive footwear cases in
Black I, 2016 WL 3983590, at *4, as it is equally applicable here. The bottom line is that
although I suppose it is “conceivable” that Dr. Goldberg acted maliciously or was recklessly
indifferent to plaintiff’s needs, on the facts alleged here, it is simply not plausible. Plaintiff has
failed to assert any factual allegations showing a basis for Dr. Goldberg’s malice towards him or
any reason why Dr. Goldberg was reckless in reaching his medical conclusion that he didn’t need
supportive footwear. After all, as more fully discussed in Black I, Dr. Goldberg’s job is to treat
prisoners. The second amended complaint offers no reason why Dr. Goldberg would not
prescribe supportive footwear if he believes that it would alleviate a prisoner’s pain (and that
there is pain, an assertion that a prison doctor doesn’t have to accept just because a prisoner
makes it). The cost of supportive footwear certainly isn’t coming out of Dr. Goldberg’s salary.
Instead, the only plausible interpretation of the factual allegations in plaintiff’s second amended
complaint is that Dr. Goldberg’s medical opinion was that plaintiff did not need supportive
footwear, notwithstanding a physician assistant’s contrary view.
This leads plaintiff squarely into the extensive line of authority holding that a prison
doctor’s disagreement with a prisoner over proper medical treatment does not constitute malice
or reckless disregard under the Eighth Amendment. See e.g. Hill v. Curcione, 657 F.3d 116, 123
(2d Cir. 2011); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998); Black I, 2016 WL
3983590, at *5. Indeed, even if a prison doctor commits malpractice, that, by itself, is not an
Eighth Amendment violation. Chance, 143 F.3d at 703 (quoting Hathaway v. Coughlin, 99 F.3d
550, 553 (2d Cir. 1996)); see also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003).

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Rather, a complaint must contain factual allegations showing that the doctor’s negligence was so
egregious that it is consistent with reckless indifference or malice. Id.
Even read in its most liberal light, plaintiff’s pleadings and submissions do not state a
claim of negligence, let alone an Eighth Amendment violation. He simply alleges that he wanted
a particular treatment that a physician’s assistant recommended, but the physician did not agree
with that recommendation. That is not a constitutional deprivation.
Accordingly, defendant’s motion to dismiss is granted on the ground that the second
amended complaint fails to state a claim. The Clerk is directed to enter judgment in favor of
defendant, dismissing the second amended complaint. The Court certifies pursuant to 28 U.S.C.
§ 19l5(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis
status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438,
444-45 (1962).
SO ORDERED.

Digitally signed by Brian
M. Cogan

______________________________________
U.S.D.J.
Dated: Brooklyn, New York
June 5, 2017

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