Nelson v. Wright et al

Filing 24

MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge Randolph F. Treece's October 20, 2011 Report-Recommendation and Order (Dkt. No. 22) is ADOPTED in its entirety; and it is further ORDERED that pursuant to 28 U.S.C. § 1915(e)(2)(B )(ii), Nelson's Amended Complaint (Dkt. No. 19 ) is DISMISSED; and it is further ORDERED that the Clerk close this case; and it is further ORDERED that the Clerk provide a copy of this Memorandum- Decision and Order to the parties by mail and certified mail. Signed by Judge Gary L. Sharpe on 12/5/2011. (Attachments: # 1 Report and Recomendation) (ptm) (Copy of MDO and attached Report and Recommendation served on plaintiff by certified mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DENNIS NELSON,
Plaintiff
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Civil No. 9:10-CV-997
(GLS/RFT)

LESTER WRIGHT, Medical Chief; DR. JOHN DOE,
Marcy Correctional Facility,
Defendants.
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RANDOLPH F. TREECE
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER
I. BACKGROUND
This civil rights action originated on August 18, 2010, with the filing of a Complaint. Dkt.
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No. 1, Compl. In his pro se Complaint, Plaintiff named as Defendants Lester Wright, Chief Medical
Officer, and Dr. John Doe. On March 19, 2011, Defendant Wright moved, pursuant to Federal Rule
of Civil Procedure 12(b)(6), for dismissal of the action. Dkt. No. 16. Despite being granted an
extension of time, Plaintiff did not oppose the Motion. On September 14, 2011, this Court issued
a Report-Recommendation and Order wherein we recommended that Defendant’s Motion be granted
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without prejudice and that the Doe Defendant also be dismissed without prejudice. Dkt. No. 18.
In both instances, we found that Plaintiff failed to attribute any personal involvement of either
Defendant in any wrongdoing. In light of his pro se status, we further recommended that prior to
outright dismissing the action, Plaintiff be afforded an opportunity to amend his Complaint in order
to extrapolate on his claims that the Defendants violated his Eighth Amendment rights.
Approximately one week later, on September 22, 2011, Plaintiff submitted an Amended

Complaint. Dkt. No. 19, Am. Compl. Thereafter, on October 6, 2011, the Honorable Gary L.
Sharpe, United States District Judge, approved and adopted this Court’s Report-Recommendation
in its entirety and referred the Amended Complaint to this Court for review. Dkt. No. 20.
II. DISCUSSION
A. Applicable Law
Section 1915(e) of Title 28 of the United States Code directs that, when a plaintiff seeks to
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proceed in forma pauperis, “the court shall dismiss the case at any time if the court determines that
. . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may
be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B). On January 25, 2011, Plaintiff’s request to proceed with this matter in
forma pauperis was granted. Dkt. No. 7. Thus, 28 U.S.C. § 1915(e) applies and it is this Court’s

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responsibility to determine whether Plaintiff may properly maintain the Amended Complaint prior
to permitting service to be accomplished.
Moreover, under 28 U.S.C. § 1915A, a court must, as soon as practicable, sua sponte review
“a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer
or employees of a governmental agency” and must “identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to

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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(a) & (b); see also Carr v. Dvorin, 171 F.3d 115,
116 (2d Cir. 1999) (per curiam). With these standards in tow, we review Plaintiff’s Amended
Complaint.

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B. Plaintiff’s Amended Complaint
We first not that in the caption of his Amended Complaint, Plaintiff names as Defendants
“Lester Wright, Medical Chief” and “John Doe as Dr. Vadlamudi.” See Am. Compl. However, no
where in his amended pleading does he refer to nor state any factual allegation against Defendant
Wright. And, by Affidavit, dated, but not notarized, October 13, 2011, Plaintiff consents to the
withdrawal of Defendant Wright. Dkt. No. 21. Thus, to the extent Plaintiff is voluntarily
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withdrawing his claim against Defendant Wright, we would recommend that such request be
granted. In any event, because Plaintiff once again has failed to assert any personal wrongdoing
against Defendant Wright, we would recommend dismissing him from this lawsuit due to Plaintiff’s
failure to state a claim.
As to the claims against newly identified Defendant Vadlamudi, the Court notes that

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Plaintiff’s Amended Complaint suffers from the same infirmities as his original Complaint. Plaintiff
once again claims that his Eighth Amendment rights were violated when, while at Marcy
Correctional Facility, he was purportedly denied medical care for his serious medical needs. As we
found in our previous Report-Recommendation and Order, Plaintiff succeeds on one prong of his
Eighth Amendment claim, but not on the second.
To state an Eighth Amendment claim for denial of adequate medical care, a prisoner must

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demonstrate that prison officials acted with “deliberate indifference to serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976). The plaintiff must allege conduct that is “‘repugnant
to the conscience of mankind’ or ‘incompatible with the evolving standards of decency that mark
the progress of a maturing society.’” Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y. 1992), aff’d, 970
F.2d 896 (2d Cir. 1992) (quoting Estelle v. Gamble, 429 U.S. at 102, 105-06). This standard

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contains both objective and subjective elements. Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir.
2003). “The objective ‘medical need’ element measures the severity of the alleged deprivation,
while the subjective ‘deliberative indifference’ element ensures that the defendant prison official
acted with a sufficiently culpable state of mind.” Id. at 183-84 (citing Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir. 1998) & Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). The
subjective element “entails something more than mere negligence . . . [but] something less than acts
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or omissions for the very purpose of causing harm or with knowledge that harm will result.”
Hathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)).
As to the objective prong, Plaintiff sufficiently sets forth enough facts to draw the conclusion
that his medical condition is, in fact, sufficiently serious to warrant protection under the Eighth
Amendment. His Amended Complaint, including the attachments thereto, sufficiently show that he
is diabetic who suffers from cellulitis, poor circulation, Hepatitis B, and has an infection on his leg.

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Plaintiff was successful in establishing his serious medical condition with his original Complaint.
However, Plaintiff fails to show that he has been deprived medical treatment for this serious medical
need, or that treatment was delayed. Furthermore, as to the subjective prong, Plaintiff once again
fails to allege that the named Defendant, now Dr. Vadlamudi, acted in such a way that could be
viewed as deliberately indifferent to those serious medical needs. Instead, Plaintiff emphasizes the
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seriousness of his medical condition and how rapidly it is deteriorating. But the Court is flummoxed
as to what role Dr. Vadlamudi played in failing to treat the condition. All we know from reading
the Amended Complaint is that Dr. Vadlamudi treated Plaintiff.1 The attachments to the pleading

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It further appears that Plaintiff was being treated in the Marcy RMU or Regional Medical Unit. Regional
Medical Units have been established by the Department of Correctional Services to provide long term nursing care and
rehabilitative services to inmates whose condition requires a higher level of care than is available in the general prison
(continued...)

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are not helpful to Plaintiff, in fact, they suggest, if they are to be believed, that Plaintiff has
interfered with his own recovery by failing to follow medical recommendations and instructions and,
at times, by refusing other recommended treatment. For example, attached to the Amended
Complaint is a letter, dated November 26, 2010, from Carl J. Koenigsman, M.D., Deputy
Commissioner/Chief Medical Officer of the New York State Department of Correctional Services,2
and is addressed to a law fellow with the Sylvia Rivera Law Project, who presumably was
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representing Plaintiff at that time. The letter, which was written in response to an inquiry regarding
Plaintiff’s medical care, states as follows:

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Mr. Nelson is a diabetic with an ulcer on his lower extremity. He also has a
DVT of his lower extremity. Mr. Nelson has received medical evaluation and
treatment for these conditions. However, progress toward improvement of these
conditions has been hampered by noncompliance with recommended treatments.
DVT is treated with warfarin and regular monitoring of blood work. He has
refused these treatments at times. As well, at times he refuses dressing changes for
the ulcer on his leg. He has been noted to tamper with the dressing on the ulcer and
may be getting external contamination from self inoculation with feces.
The medical staff at Marcy are attending to Mr. Nelson’s medical problems
in spite of his noncompliance with treatment recommendations and undermining of
his care. He does not have gangrene of the extremity, but he is at risk of such. In
communicating with your client, please assist DOCS medical staff by stressing the
importance of regular compliance with medication, blood work, dressing changes,
and glycemic control.
Am. Compl. at p. 6.3
A prisoner who declines medical treatment cannot turn around and sue the medical professional

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whose judgment the prisoner has questioned and even defied. Jones v. Smith, 784 F.2d 149, 151-52

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(...continued)
population. Rosario v. New York State Dep’t of Corr. Servs, 2003 WL 22429271, at * 1 (S.D.N.Y. Sept. 24, 2003).
2

In April 2011, the Department of Correctional Services and the Division of Parole were merged into one entity,
now referred to as the Department of Corrections and Community Services.
3
Plaintiff did not label his attachments, thus the citation reference is to the page number automatically assigned
by the Court’s Case Management Electronic Case Filing System.

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(2d Cir. 1986) (affirming lower court ruling that a prisoner who declines medical treatment cannot
establish an Eighth Amendment claim for medical deliberate indifference); Hardy v. Diaz, 2010 WL
1633379, at *6 n.12 (N.D.N.Y. Mar. 30, 2010) (noting that skipping medical appointments and
failing to comply with treatment directions can undermine an Eighth Amendment medical
indifference claim); Guarneri v. Hazzard, 2010 WL 1064330, at *13 (N.D.N.Y. Mar. 22, 2010)
(“Plaintiff’s history of refusing to comply with the directions of the medical staff and physicians
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undermines his claims of deliberate indifference.”) (citations omitted); Brown v. White, 2010 WL
985184, at * 8 & 11 (N.D.N.Y. Mar. 15, 2010) (Sharpe, D.J., adopting Rep. Rec.) (“The fact that
plaintiff might have preferred an alternative treatment or believes that he did not get the medical
attention he desired does not rise to the level of a constitutional violation.”) (citing Dean v.
Coughlin, 804 F.2d 207, 215 (2d Cir. 1986)); Amin v. Cnty. of Onondaga, 2006 WL 1650764, at *8
(N.D.N.Y. June 13, 2006) (noting that plaintiff’s non-compliance with medical advice and treatment

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provided an additional ground for dismissing his medical indifference claim).
The other attachments to the Amended Complaint merely show that Plaintiff was sent out
for emergency care, and on at least one occasion, Dr. Vadlamudi approved the callout. Despite
being given an opportunity to do so, Plaintiff has failed to allege that Dr. Vadlamudi participated
in any wrongdoing, thus, Plaintiff fails to state a claim for which relief could be granted. As such,
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we recommend that this action be dismissed in its entirety pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
III. CONCLUSION
WHEREFORE, for the reasons stated herein, it is hereby
RECOMMENDED, that the Amended Complaint be dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim upon which relief can be granted; and it is further

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ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and
Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1)(C), the parties have fourteen (14) 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 (14) DAYS WILL
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PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing
Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 29 U.S.C. §
636(b)(1); FED. R. CIV. P. 72 & 6(a).

Date: October 20, 2011
Albany, New York
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