Smith v. Hawthorne et al

Filing 32

DECISION AND ORDER: ORDERED that 31 Report and Recommendation is adopted in its entirety. ORDERED that 26 Motion for Judgment on the Pleadings is granted. Signed by U.S. District Judge Mae A. D'Agostino on 1/28/13. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
PAUL SMITH,
Plaintiff,
-v.-

9:11-CV-0542
(MAD/ATB)

BAKER, Nurse, Upstate Correctional Facility and
GEORGE WATERSON, Nurse, Upstate Correctional
Facility,
Defendants.

APPEARANCES:

OF COUNSEL:

PAUL SMITH
00-A-2268
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

CHARLES J. QUACKENBUSH, AAG

DECISION AND ORDER
On May 11, 2011, Plaintiff commenced this civil rights action alleging that Defendants
violated his Eighth Amendment right to constitutionally adequate medical care. See Dkt. No. 1.
On September 1, 2011, Plaintiff amended his complaint. See Dkt. No. 12. Liberally construed,
Plaintiff alleges that Defendants Baker and Waterson attempted to "poison" him several times and
that they were acting "in retaliation for the Physician Assistant." See id. at ¶ II(D). Plaintiff then
claims that he and Dr. Adams agreed that Plaintiff would be able "to get off the med cart as
needed." See id. Thereafter, Plaintiff states that "[t]hese two homosexual nurses" – presumably
referring to Defendants Baker and Waterson – attempted to "force a prescription on [him] without

an exam." See id. Plaintiff contends that Defendant Waterson is "crazy" and gives orders "like he
is the top guy." See id.
In the section of his amended complaint entitled "Injuries," Plaintiff refers to another
action pending in this district, Smith v. Rock, No. 9:11-CV-282 (NAM/CFH), and states that, as a
result of being assaulted and attacked by unnamed "officers," he has suffered injuries to his back,
lower spine, shoulders and has a "rib bone sticking out[.]" See id. at ¶ III. Although it appears
that Plaintiff is not referring to any conduct that is the basis for this action, he does, however,
state that "they" wish to attack him again, and that he is afraid to get an x-ray for his ribs because
Defendant Waterson is "setting him up." See id.
On May 21, 2012, Defendants filed a motion for judgment on the pleadings. See Dkt. No.
26. In a November 13, 2012 Report and Recommendation, Magistrate Judge Baxter
recommended that the Court grant Defendants' motion in its entirety and dismiss the amended
complaint. See Dkt. No. 31. Specifically, Magistrate Judge Baxter recommended that the Court
dismiss Plaintiff's deliberate indifference claim because "Plaintiff's reference to 'poison' appears
to relate to the fact that he disagrees about the medication that he is taking and argues that the
[D]efendant nurses are acting contrary to [P]laintiff's agreement with Dr. Adams about what
medication [P]laintiff should take." See id. at 10. As such, Magistrate Judge Baxter held that
mere disagreement with the prescribed treatment is insufficient to allege a plausible Eighth
Amendment deliberate indifference to serious medical needs claim. See id. Finally, Magistrate
Judge Baxter recommended that the Court grant the motion as to any claims of verbal harassment
and threats because Plaintiff's claims are entirely conclusory and fail to contain any specific
allegations of fact indicating a deprivation of rights. See id. at 11.

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Currently before the Court is Magistrate Judge Baxter's Report and Recommendation, to
which neither party has objected.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
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A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). In considering the legal sufficiency, a court must
accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the
pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)
(citation omitted). This presumption of truth, however, does not extend to legal conclusions. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009) (citation omitted). Although a court's review
of a motion to dismiss is generally limited to the facts presented in the pleading, the court may
consider documents that are "integral" to that pleading, even if they are neither physically
attached to, nor incorporated by reference into, the pleading. See Mangiafico v. Blumenthal, 471
F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d
Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 129 S. Ct. at 1949 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct. 1955).
Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
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entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the[] complaint must be dismissed[,]" id. at 570.
In reviewing a pro se case, the court "must view the submissions by a more lenient
standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.
Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court
is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently
forfeiting legal rights merely because they lack a legal education. Govan v. Campbell, 289 F.
Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Having carefully reviewed Magistrate Judge Baxter's Report and Recommendation, the
parties' submissions and the applicable law, the Court finds that Magistrate Judge Baxter correctly
recommended that the Court should grant Defendants' motion for judgment on the pleadings.
Plaintiff's complaint contains nothing but conclusory allegations, which often relate to conduct
and individuals not associated with this action, and fails to allege any plausible causes of action
against Defendants.
WHEREFORE, the Court hereby
ORDERS that Magistrate Judge Baxter's Report and Recommendation (Dkt. No. 31) is
ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion for judgment on the pleadings (Dkt. No. 26) is
GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further

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ORDERS that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal taken from this Decision
and Order would not be taken in good faith; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 28, 2013
Albany, New York

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