Hudson v. Heath et al

Filing 22

ORDER: ORDERS that Magistrate Judge Dancks' July 31, 2013 20 Report- Recommendation and Order is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendants' motion to dismiss the complaint (Dkt . No. 12 ) is GRANTED; and the Court further ORDERS that Plaintiff's Eighth Amendment claims are DISMISSED with leave to amend; and the Court further ORDERS that Plaintiff's Fourth Amendment and official capacity claims are DISMISSED wit hout leave to amend; and the Court further ORDERS that, if Plaintiff wishes to proceed with any claims that the Court has dismissed with leave to amend, he shall file an amended complaint, as directed below, within THIRTY (30) DAYS of the date of t his Order; and the Court further ORDERS that, if Plaintiff fails to submit an amended complaint within THIRTY (30) DAYS of the date of this Order, judgment will be entered in Defendants' favor, without further Order of this Court. Signed by U.S. District Judge Mae A. D'Agostino on 9/3/2013. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CALVIN HUDSON,
Plaintiff,
vs.

9:12-cv-1655
(MAD/TWD)

WAYNE HEATH, Superintendent, Greene
Correctional Facility, and JOY ALBRIGHT,
Nurse Administrator, Greene Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

CALVIN HUDSON
09-A-6314
Greene Correctional Facility
P.O. Box 975
Coxsackie, New York 12051
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

ROGER W. KINSEY, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
On October 30, 2012, Plaintiff commenced this civil rights action pursuant to 42 U.S.C. §
1983, alleging that Defendants deprived him of adequate medical care in violation of the Eighth
Amendment. See Dkt. No. 1 at 10-11. Plaintiff also claims that Defendants violated the Fourth
Amendment. See id. at 10-13.
On February 27, 2013, Defendants moved to dismiss the complaint. See Dkt. No. 12-1.
Plaintiff opposed the motion. See Dkt. No. 15. In a July 31, 2013 Report-Recommendation and

Order, Magistrate Judge Dancks recommended that the Court grant Defendants' motion but
permit Plaintiff leave to amend. See Dkt. No. 20. Specifically, Magistrate Judge Dancks found
that Plaintiff's claims against Defendants in their official capacities are barred by the Eleventh
Amendment. See id. at 4-5. As to Plaintiff's deliberate indifference to a serious medical need
claim, the Report recommended that the Court find the complaint failed to allege facts plausibly
suggesting that Defendants' delay in providing treatment was sufficiently serious to state an
Eighth Amendment claim. See id. at 9-11. Moreover, as to Defendant Albright, Magistrate Judge
Dancks found that the complaint fails to provide facts establishing that she had a sufficiently
culpable state of mind. See id. at 11-12. Regarding Defendant Heath, Magistrate Judge Dancks
found that Plaintiff failed to allege that Defendant Heath was personally involved in any of the
alleged conduct. See id. at 12-13. Finally, Magistrate Judge Dancks recommended the Court find
that, since prisoners cannot assert Fourth Amendment claims regarding cell searches this claim
should be dismissed with prejudice. See id. at 13-14.1 Neither party objected to Magistrate Judge
Dancks' Report-Recommendation and Order.
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,

The Court notes that, in alleging that Defendants violated his Fourth Amendment rights,
Plaintiff simply claims that the denial/delayed medical care is what caused this violation. See
Dkt. No. 1 at 12-13.
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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).
A motion to dismiss for failure to state a claim upon which relief can be granted 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) (citation omitted). 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 ASTI 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, 556 U.S. 662, 678 (2009)
(citation omitted).

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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." Id. at 555 (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
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.
Despite this recent tightening of the standard for pleading a claim, complaints by pro se
parties continue to be accorded more deference than those filed by attorneys. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quotation omitted). As such, Twombly and Iqbal
notwithstanding, this Court must continue to "'construe [a complaint] broadly, and interpret [it] to
raise the strongest arguments that [it] suggests.'" Weixel v. Bd. of Educ., 287 F.3d 138, 146 (2d
Cir. 2002) (quotation omitted).
When a pro se complaint fails to state a cause of action, the court generally "should not
dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (internal quotation and citations omitted). Of course, an opportunity to amend is
not required where "[t]he problem with [the plaintiff's] cause of action is substantive" such that
"better pleading will not cure it." Id. (citation omitted).

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Having carefully reviewed the July 31, 2013 Report-Recommendation and Order and the
applicable law, the Court finds that Magistrate Judge Dancks correctly recommended that the
Court should grant Defendants' motion to dismiss. The complaint fails to allege sufficient facts to
plausibly establish either the objective or subjective element of an Eighth Amendment deliberate
indifference claim. See Sledge v. Fein, No. 11 Civ. 7450, 2013 WL 1288183, *5-*7 (S.D.N.Y.
Mar. 28, 2013) (finding that a delay in prescribing appropriate treatment for an inmate's asthma
was not "sufficiently serious" for purposes of the Eighth Amendment even though the plaintiff
had hit his head during an asthma attack he experienced as a result of the delay). Further, the
report correctly recommended dismissing Defendant Heath because Plaintiff fails to indicate how
he was involved in the alleged conduct and he appears to have been included simply due to his
position as Superintendent of Greene Correctional Facility. Finally, Magistrate Judge Dancks
correctly determined that Plaintiff's Fourth Amendment claim should be dismissed with prejudice.
See Chaney v. Koupash, No. 04-CV-136, 2008 WL 5423419, *13 (N.D.N.Y. Sept. 26, 2008)
(citing cases). Although an unwarranted search could become a constitutional violation if it was
conducted in retaliation for a prisoner's exercise of a First Amendment right, Plaintiff has not
alleged any facts to suggest that he engaged in a "protected activity." See Brown v. Goord, No.
9:04-CV-0785, 2007 WL 607396, *14 (N.D.N.Y. Feb. 20, 2007) (citation omitted).
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' July 31, 2013 Report-Recommendation and
Order is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss the complaint (Dkt. No. 12) is GRANTED;
and the Court further

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ORDERS that Plaintiff's Eighth Amendment claims are DISMISSED with leave to
amend; and the Court further
ORDERS that Plaintiff's Fourth Amendment and official capacity claims are
DISMISSED without leave to amend; and the Court further
ORDERS that, if Plaintiff wishes to proceed with any claims that the Court has dismissed
with leave to amend, he shall file an amended complaint, as directed below, within THIRTY (30)
DAYS of the date of this Order;2 and the Court further
ORDERS that, if Plaintiff fails to submit an amended complaint within THIRTY (30)
DAYS of the date of this Order, judgment will be entered in Defendants' favor, without further
Order of this Court; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: September 3, 2013
Albany, New York

Any amended complaint submitted by Plaintiff in response to this MemorandumDecision and Order must set forth a short and plain statement of the facts he relies on in support
of his claims, and which names one or more specific individuals who engaged in acts of
misconduct or wrongdoing which violated his constitutional rights. Any amended complaint filed
shall supersede and replace in its entirety the original complaint, and therefore must be a
complete pleading which sets forth all of the claims that Plaintiff wants this Court to consider
as a basis for awarding relief herein.
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