Parson v. Barboza

Filing 42

ORDER adopting 37 Report and Recommendations; granting in part and denying in part 27 Motion for Summary Judgment. Defendant Gates is DISMISSED as a defendant to this action. Signed by Judge Brenda K. Sannes on 8/18/16 (served on plaintiff via regular mail). (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
DRAHCIR S. PARSON,
Plaintiff,
v.
9:14-CV-1267 (BKS/CFH)
INSPECTOR BARBOZA, Warren County Jail and
CAPTAIN MIKE GATES,
Defendants.
________________________________________________
Appearances:
Drahcir S. Parson
Schenectady, NY 12303
Plaintiff, pro se
Gregg T. Johnson, Esq.
April J. Laws, Esq.
Lemire, Johnson & Higgins LLC
P.O. Box 2485
2534 Route 9
Malta, NY 12020
Attorney for Defendants
Hon. Brenda K. Sannes, U. S. District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Drahcir Parson brought this action against defendants Inspector Barboza
and Captain Mike Gates under 42 U.S.C. § 1983 alleging violations of his constitutional rights
while he was a pretrial detainee at the Warren County Jail. Dkt. No. 18. On December 18, 2015,

1

Defendants filed a motion for summary judgment seeking dismissal of the complaint. Dkt. No.
27. Plaintiff did not respond to Defendants’ motion. This matter was referred to United States
Magistrate Judge Christian F. Hummel who, on June 28, 2016, issued a Report-Recommendation
and Order recommending that Defendants’ motion be granted in part and denied in part. Dkt.
No. 37. Magistrate Judge Hummel recommended that Defendant’s motion for summary
judgment be granted as to all of Plaintiff’s claims against defendant Gates; denied as to Plaintiff's
excessive force claim against Barboza; and denied in all other respects. Dkt. No. 37 at 31.
Magistrate Judge Hummel advised the parties that under 28 U.S.C. § 636(b)(1) and Local Rule
72.1(c), they had fourteen days within which to file written objections to the report, and that the
failure to object to the report within fourteen days would preclude appellate review. Dkt. No. 37,
p. 31.
Defendant Barboza has filed objections to the Report-Recommendation. Dkt. No. 41.
Plaintiff has not filed objections or responded to the Defendant’s objections. For the reasons set
forth below, the Report-Recommendation is adopted in its entirety.
II. Standard of Review
This court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012); N.D.N.Y. L.R. 72.1(c). Findings and
recommendations as to which there was no properly preserved objection are reviewed for clear
error. Petersen, 2 F. Supp. 3d at 228-29; Fed. R. Civ. P. 72(b) advisory committee’s note to
1983 amendment.
Summary judgment may be granted only if all the submissions taken together “show that

2

there is no genuine issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” In re World Trade Center Lower Manhattan Disaster Site Litig., 758 F.3d
202, 210 (2d Cir. 2014). A fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v.
City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A fact is genuinely in dispute “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In
ruling on a summary judgment motion, the court “must construe the facts in the light most
favorable to the non-moving party and must resolve all ambiguities and draw all reasonable
inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d
Cir. 2003).
III. Discussion
Defendant Barboza objects to the recommendation that the motion for summary
judgment be denied as to the excessive force claim against her. Dkt. No. 41, p. 5. The excessive
force claim is based upon Defendant Barboza’s attempt to handcuff Plaintiff outside of his cell
on the afternoon of August 12, 2014, before transporting him to Administrative Segregation. In
the verified complaint Plaintiff asserts that Defendant Barboza “slammed me to the ground from
behind and then grabbed my right finger to break it as she began handcuffing me.” Dkt. No. 18,
p. 3. Defendant Barboza disputes this account. See Dkt. No. 37, pp. 13-14 (setting forth the
conflicting versions of the events).
Defendant argues that the “undisputed video evidence before the Court clearly shows
Barboza handcuffing Plaintiff by turning him to [sic] floor so his hands and knees were on the
floor in order to handcuff him without affording Plaintiff the opportunity to turn and confront her

3

. . . [and that] [a]s soon as Plaintiff was handcuffed – and stopped resisting – no further force was
used.” Dkt. No. 41, p. 10. Defendant further argues that there is no evidence Barboza acted
“maliciously and sadistically to cause harm” to Plaintiff. Dkt. No. 41, p. 10, 13 (quoting
Romano v. Howarth, 998 F.2d 101, 104 (2d Cir. 1993)). However, the subjective standard on
which Defendant relies – requiring a showing that the defendant acted maliciously and
sadistically -- is not applicable to pretrial detainees such as Plaintiff. See Kingsley, v.
Hendrickson, __ U.S. __, 135 S. Ct. 2466, 2473 (2015). As Magistrate Judge Hummel noted, in
order to establish an excessive force claim, Plaintiff must show “only that the force purposely or
knowingly used against him was objectively unreasonable.” Kingsley, 135 S. Ct. at 2473; see,
e.g., Roberts v. C-73 Medical Director, No. 1:14-cv-5198-GHW, 2015 WL 4253796, *3 n.3,
2015 U.S. Dist. LEXIS 91072, at *8 n.3 (S.D.N.Y. July 13, 2015). 1 Defendant argues that the
video shows that “Barboza used reasonable force.” Dkt. No. 41, p. 11-12. The Court has
reviewed the video from the three different surveillance cameras, and agrees with Magistrate
Judge Hummel that the video evidence does not “so utterly discredit” Plaintiff’s version such
that no reasonable juror could fail to believe defendant Barboza. Dkt. No. 37, p. 15 (quoting
Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007)).
Finally, because there is a factual dispute regarding whether Defendant Barboza’s use of
force was objectively unreasonable, she is not entitled to qualified immunity at this stage of the
proceedings. See Stephenson v. Doe, 332 F.3d 68, 77 (2d Cir. 2003). For the reasons detailed by
Magistrate Judge Hummel, defendant Barboza is not entitled to summary judgment on her

1

Copies of unpublished decisions are appended to this Decision for the convenience of the pro se
Plaintiff.
4

qualified immunity defense. Dkt. No. 37, pp. 29-30. Therefore, following de novo review, the
Court rejects Defendant Barboza’s objections to the Report-Recommendation.
The Defendants have not objected to the remaining portion of the ReportRecommendation. Dkt. No. 41, p. 5. The Court has reviewed the remaining portion for clear
error and found none. Accordingly, the Report-Recommendation is adopted in its entirety for the
reasons stated therein.
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 37) is
ADOPTED in all respects; and it is further
ORDERED that Defendants’ Motion for Summary Judgment (Dkt. No. 27) is (1)
GRANTED as to all of Plaintiff’s claims against Defendant Gates, (2) DENIED as to Plaintiff’s
excessive force claim against Defendant Barboza and (3) DENIED in all other respects; and it is
further
ORDERED that Defendant Gates is DISMISSED as a defendant to this action; and it is
further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Dated: August 18, 2016

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2015 WL 4253796

2015 WL 4253796
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Keno ROBERTS, Plaintiff,
v.
C–73 MEDICAL DIRECTOR, et al., Defendants.
No. 1:14–cv–5198–GHW.
|
Signed July 13, 2015.

MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, District Judge.
I. INTRODUCTION
*1 Plaintiff, appearing pro se, filed this case on July 7,
2014 under 42 U.S.C. § 1983, alleging, as relevant here,
that he received constitutionally inadequate medical care
while incarcerated on Rikers Island. See Dkt. No. 1. He
sued various persons and entities, including Dr. Kara
Greenwald, who treated him for approximately 10 days at
Bellevue Hospital. On January 16, 2015, Dr. Greenwald
filed a motion to dismiss the complaint under Federal Rule
of Civil Procedure 12(b)(6), for failure to state a claim. See
Dkt. Nos. 34–37.
Pursuant to a December 17, 2014 scheduling order, and
as discussed during a telephone conference with all parties
earlier that day, plaintiff's opposition to Dr. Greenwald's
motion to dismiss was due February 16, 2015. See Dkt.
No. 28. Plaintiff did not file an opposition or otherwise
respond to Dr. Greenwald's motion by the February 16,
2015 deadline. On May 28, 2015, still having received no
response, the Court issued an order notifying plaintiff that
if he did not respond to Dr. Greenwald's motion by June
18, 2015—four months after the original due date—the
Court would decide the motion without his opposition.
See Dkt. No. 42. On June 24, 2015, the Court received
a letter from plaintiff dated June 12, 2015, responding to
other issues raised in the Court's May 28, 2015 order. See
Dkt. No. 45. As plaintiff did not respond to or otherwise
address Dr. Greenwald's motion in that letter, the Court
has decided the motion without plaintiff's input. For
the reasons outlined below, defendant Dr. Greenwald's
motion to dismiss the complaint is GRANTED. Plaintiff

is granted leave to file an amended complaint within 30
days.

II. BACKGROUND
Plaintiff brings two claims: one alleging denial of adequate
medical care and one alleging excessive force. The
latter is not relevant to the current motion because
it does not involve Dr. Greenwald. As to the former,
plaintiff first alleges that he was wrongfully prescribed
the medication Simvastatin, which caused him to develop
Type 2 Diabetes. See Compl., Dkt. No. 1, at 4; Brief, Dkt.
No. 1–1, at 4–5. 1 After taking Simvastatin as prescribed,
on February 8, 2013, plaintiff alleges he “almost died when
his blood sugar levels escalated causing plaintiff to go into
shock, whereas, he was immediately rushed to Elmhurst
General Hospital near death.” Brief at 3; see also Compl.
at 4. “From Elmhurst General plaintiff was rushed to
Bellevue Hospital because the sugar level continued to go
out of control[ ]....” Brief at 4.
1

“Compl.” refers to the Civil Rights Complaint form
plaintiff filed; “Brief” refers to plaintiff's typed
submission attached to the form, formatted like a
standard complaint. Together, both documents form
plaintiff's original complaint. The Court distinguishes
between the two documents in citations only for the
sake of clarity.

It was at Bellevue Hospital that plaintiff was placed under
Dr. Greenwald's care. See Brief at 6. She treated him
from February 13 through 23, 2013. See id. Plaintiff
alleges that Dr. Greenwald “failed to provide plaintiff
with adequate medical care and treatment, as well as
grossly failed to prescribe adequate medications, because
of such, plaintiffs medical conditions as well as the blood
sugar levels could not be stabilized ....“ Id. Plaintiff further
alleges that he requested to see a specialist 2 but that
Dr. Greenwald denied this request until a point when
his physical condition had worsened. See Brief at 6, 7.
Once he saw the specialist, plaintiff says he was prescribed
medication and given dietary instructions. See Brief at 7.
Despite being scheduled to see the specialist “on a regular
basis,” plaintiff alleges that Dr. Greenwald still “failed
to prescribe any kind of medication for plaintiff that
could control his blood sugar levels, [and] because of such,
plaintiff's blood sugar level became so out of control[ ] that
it got erratic, and thereafter, was never stabilized.” Id.

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Plaintiff uses the terms “endrochronotogist” and
“endrochonologist” in his complaint form and
attached brief to refer to the type of specialist he
saw and/or requested. Because the type of specialist
is not important to deciding the current motion, the
Court assumes the two terms refer to the same type
of doctor, which the Court simply refers to as a
“specialist.”

*2 Upon his discharge from Bellevue, plaintiff was
treated at the North Infirmary Command (“NIC”) for
three days, where he alleges the staff “failed to provide
him with insulin, medication(s) and the appropriate diet.”
Brief at 5, 7. Plaintiff claims that at Bellevue, as well
as at Rikers, Elmhurst, and the NIC, “defendants ...
failed grossly to provide plaintiff with not only adequate
medical care and treatment; but failed to provide him
with adequate medication and an adequate diet sufficient
enough to meet hi[s] medical needs, that being sugar
diabetes.” Brief at 13.
Plaintiff alleges that he has suffered serious and longlasting effects from the allegedly inadequate medical
care he received. See, e.g., Compl. at 5 (defendants'
actions “[caused] irreparable injury and lif[e] long medical
treatment, care and medication to keep his now diabetes
under control”); Brief at 5 (“Since plaintiff was diagnosed
with type two diabetes, his medical conditions continue[ ]
to increas[e], get worse, and pose a direct and immediate
threat to plaintiffs life, [and] mental state of being....”);
Brief at 6 (“As a result of defendants individual[ ] and
or collective actions, plaintiff is still to date ... living with
irreparable injury, harm, pain and suffering as a result of
having [ ] type 2 diabetes ....”). Plaintiff alleges that Dr.
Greenwald's actions were a cause of these effects:
Because of inadequate medical care
and treatment, plaintiff continued
to experience other diabetes or
diabetic problems, that defendant
Greenwald failed to treat, as well
as her medical team failed to treat,
because of such, plaintiffs medical
conditions continued to get worse,
and worse, his pain got greater and
greater, and both [went] untreated.
This caused plaintiff prolong [ed]
pain, suffering, and continuing
health problems ....
Brief at 7.

III. LEGAL STANDARDS
a. Motion to Dismiss
Under Federal Rule of Civil Procedure 8(a)(2), a
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.”
Rule 8 “does not require detailed factual allegations,
but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
When ruling on a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), the Court “must accept
all allegations in the complaint as true and draw all
inferences in the nonmoving party's favor.” LaFaro v. New
York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d
Cir.2009). The Court, however, is not required to credit
“mere conclusory statements” or “[t]hreadbare recitals of
the elements of a cause of action.” Iqbal, 556 U.S. at
678. To survive a motion to dismiss under Rule 12(b)(6),
the plaintiff must allege facts that, if accepted as true,
“state a claim to relief that is plausible on its face.” Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). To meet this plausibility standard, the plaintiff
must “plead[ ] factual content that allows the court to draw
the reasonable inference that the defendant[s][are] liable
for the misconduct alleged.” Id.
*3 Because he is proceeding pro se, the Court must
liberally construe plaintiff's submissions and “interpret[ ]
[them] to raise the strongest arguments that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d
Cir.2006) (emphasis in original); see also, e.g., Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro
se is to be liberally construed ....”). “This admonition
‘applies with particular force when a plaintiff's civil
rights are at issue.’ “ Bell v. Jendell, 980 F.Supp.2d
555, 558 (S.D.N.Y.2013) (quoting Maisonet v. Metro.
Hosp. & Health Hosp. Corp., 640 F.Supp.2d 345, 348
(S.D.N.Y.2009)).

b. Section 1983 Claim for Inadequate Medical Care While
Incarcerated
To prevail on a claim brought under 42 U.S.C. §
1983, plaintiff must show that Dr. Greenwald “acted
under color of state law and that she deprived him
of a right secured by the Constitution or laws of the

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United States.” Palmieri v. Lynch, 392 F.3d 73, 78 (2d
Cir.2004) (citing Pitchell v. Callan, 13 F.3d 545, 547 (2d
Cir.1994)). Because plaintiff is a pretrial detainee in state
custody, he “receives protection against mistreatment at
the hands of prison officials under ... the Due Process
Clause of the Fourteenth Amendment,” rather than the
Eighth Amendment, which is applicable only to convicted
prisoners. Caiozzo v. Koreman, 581 F.3d 63, 69 (2d
Cir.2009).
Plaintiff alleges that Dr. Greenwald and various other
defendants denied him constitutionally adequate medical
care. In the Second Circuit, courts analyze such claims
“under the same standard irrespective of whether they are
brought under the Eighth or Fourteenth Amendment.”
Id. at 72. “In order to establish an Eighth [or Fourteenth]
Amendment claim arising out of inadequate medical care,
a prisoner [or pretrial detainee] must prove ‘deliberate
indifference to his serious medical needs.’ “ Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir.1998) (quoting
Estelle v. Gamble, 429 U.S. 97, 104 (1976)) (internal
alteration omitted). This standard has an objective and
a subjective prong: 3 “First, the alleged deprivation must
be, in objective terms, sufficiently serious. Second, the
defendant must act with a sufficiently culpable state of
mind.” Id. (internal citation omitted). “An official acts
with the requisite deliberate indifference when that official
‘knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.’ “ Id. (quoting Farmer v. Brennan, 511 U.S. 825,
837 (1994)); see also Caizzo, 581 F.3d at 6566.
3

In its recent decision in Kingsley v. Hendrickson, the
Supreme Court held that a pretrial detainee bringing
a claim for excessive force under the Fourteenth
Amendment must meet an objective standard by
showing “only that the force purposely or knowingly
used against him was objectively unreasonable.” No.
14–6368, 2015 WL 2473447, at *5 (U.S. June 22,
2015) (abrogating Murray v. Johnson No. 260, 367
F. App'x 196, 198 (2d Cir.2010)). In contrast, a
convicted prisoner bringing a claim for excessive
force under the Eighth Amendment must meet a
subjective standard by showing that the force was
applied “maliciously and sadistically to cause harm,”
and not “in a good-faith effort to maintain or restore
discipline.” Hudson v. McMillian, 503 U.S. 1, 6–
7 (1992). The decision in Kingsley dealt only with

excessive force claims, thus the Court continues to
abide by Second Circuit precedent setting forth a
subjective standard for cases involving allegations
of deliberate indifference to a pretrial detainee's
serious medical needs, which is identical to the
standard for convicted prisoners under the Eighth
Amendment. See Caiozzo v. Koreman, 581 F.3d 63,
69 (2d Cir.2009). In Arroyo v. Schaefer, the Second
Circuit noted that due process does not require
more than the Eighth Amendment. 548 F.2d 47, 50
(2d Cir.1977). That premise did not change in this
context-the Eighth Amendment still requires intent;
the Fourteenth Amendment requires no more. The
Fourteenth Amendment standard here only changes
if the Supreme Court changes the Eighth Amendment
floor.

IV. ANALYSIS
a. Objective Prong: Sufficiently Serious Deprivation
“[G]iven the fact-specific nature of Eighth Amendment
denial of medical care claims, it is difficult to
formulate a precise standard of ‘seriousness' that is
adequately sensitive (in the sense of capturing those
medical conditions properly within the realm of Eighth
Amendment concern) yet appropriately specific.” Smith
v. Carpenter, 316 F.3d 178, 187 (2d Cir.2003). Thus,
“[t]here is no settled, precise metric to guide a court in
its estimation of the seriousness of a prisoner's medical
condition.” Brock v. Wright, 315 F.3d 158, 162 (2d
Cir.2003). In assessing seriousness, courts take into
account factors such as: “the existence of an injury that
a reasonable doctor or patient would find important
and worthy of comment or treatment; the presence of a
medical condition that significantly affects an individual's
daily activities; or the existence of chronic and substantial
pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d
Cir.1998) (internal alteration omitted). “A serious medical
need is generally characterized by ‘a condition of urgency,
one that may produce death, degeneration, or extreme
pain.’ “ Ferguson v. Cai, No. 11–cv–6181 (PAE), 2012 WL
2865474, at *3 (S.D.N.Y. July 12, 2012) (quoting Johnson
v. Wright, 412 F.3d 398, 403 (2d Cir.2005)).
*4 “[I]f the unreasonable medical care is a failure to
provide any treatment for an inmate's medical condition,
courts examine whether the inmate's [underlying] medical
condition is sufficiently serious.” Salahuddin v. Goord,
467 F.3d 263, 279–80 (2d Cir.2006) (emphasis added).
But where an inmate alleges “an unreasonable delay
or interruption in ... treatment, the seriousness inquiry

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focuses on the challenged delay or interruption in
treatment rather than the prisoner's underlying medical
condition alone.” Id. (quoting Smith, 316 F.3d at 185).
Courts have found that diabetes is a sufficiently serious
medical condition. See, e.g., Colon v. Cnty. of Nassau, No.
12–cv–4466 (JS)(SIL), 2014 WL 4904692, at *6 (E.D.N.Y.
Sept. 26, 2014); Beatty v. Davidson, 713 F.Supp.2d 167,
174 (W.D.N.Y.2010) (collecting cases). However, because
plaintiff alleges that Dr. Greenwald unreasonably delayed
his treatment for diabetes, the Court focuses on “the
particular risk of harm faced by [plaintiff] due to the
challenged deprivation of care, rather than the severity
of [his] underlying medical condition[ ] considered in the
abstract.” Smith, 316 F.3d at 186.
“[A] short interruption of care, even if the underlying
medical condition is serious, does not constitute a serious
medical need where the ‘alleged lapses in treatment
are minor.’ “ Bell v. Jendell, 980 F.Supp.2d 555, 559–
60 (S.D.N.Y.2013) (quoting Smith, 316 F.3d at 186)).
Because plaintiff alleges that he saw a specialist and
received medication at some point during his stay at
Bellevue, the alleged delay in Dr. Greenwald's care was
necessarily less than his full 10–day stay. See Brief at
7. In cases involving less-serious medical conditions and
consequences of the delay, courts in this district have
found similarly short delays were insufficiently serious.
See, e.g., Patterson v. Westchester Cnty., No. 13–cv–
0194 (PAC)(AJP), 2014 WL 1407709, at *7 (S.D.N.Y.
Apr. 11, 2014) report and recommendation adopted, 2014
WL 2759072 (S.D.N.Y. June 16, 2014) (3–day “delay in
taking and reporting the results of an x-ray that revealed
torn ankle ligaments does not constitute a sufficiently
serious treatment delay”); Hamm v. Hatcher, No. 05–
cv–503 (ER), 2013 WL 71770, at *9 (S.D.N .Y. Jan. 7,
2013) (10–day delay in receiving prescribed antidepressant
medications was insufficient where only adverse medical
consequence was withdrawal symptoms).
“Where temporary delays or interruptions in the provision
of medical treatment have been found to satisfy the
objective seriousness requirement in this Circuit, they have
involved either a needlessly prolonged period of delay, or a
delay which caused extreme pain or exacerbated a serious
illness.” Ferguson v. Cai, No. 11–cv–6181 (PAE), 2012
WL 2865474, at *4 (S.D.N.Y. July 12, 2012) (collecting
cases); see also Bell, 980 F.Supp.2d at 560 (5–day delay
in care was sufficiently serious where plaintiff alleged that

he suffered serious symptoms—including vomiting while
sleeping—as a result of the delay).
*5 Plaintiff alleges that he “was rushed to Bellevue
Hospital” from Elmhurst “because the sugar level
continued to go out of control[ ] placing plaintiff's life
on a notice[.]” Brief at 4. He claims that for at least
part of the 10 days he was at Bellevue, Dr. Greenwald
“failed to prescribe adequate medications” and denied him
access to a specialist. See Brief at 6–7. He alleges that
these delays resulted in his blood sugar level becoming
“so out of control[ ] that it got erratic, and thereafter,
was never stabilized .” Brief at 7. He also alleges that as
a result, his “medical conditions continued to get worse,
and worse, his pain got greater and greater, and both
[went] untreated,” which caused him “prolong[ed] pain,
suffering, and continuing health problems.” Brief at 7.
Plaintiff claims that Dr. Greenwald's alleged delay in care
caused him “great[ ]” pain and exacerbated his diabetes.
Although the alleged delay was short, construing this
pro se plaintiff's claims liberally, as the Court must, and
mindful that at the motion to dismiss stage the Court must
accept plaintiff's allegations as true, the Court finds that
the plaintiff has alleged a sufficiently serious medical need
that was not addressed by Dr. Greenwald to meet the
objective prong of the Fourteenth Amendment analysis. 4
4

The Court notes that “[a]lthough adverse medical
effects are not required to prove a constitutional
violation, ... in most cases, the actual medical
consequences that flow from the alleged denial of care
will be highly relevant to the question of whether
the denial of treatment subjected the prisoner to a
significant risk of serious harm.” Hamm v. Hatcher,
No. 05–cv–503 (ER), 2013 WL 71770, at *8 (S.D.N.Y.
Jan. 7, 2013) (quoting Smith, 316 F.3d at 187, 188).
Thus, as the Second Circuit has recognized, “the
‘seriousness' determination in Eighth Amendment
denial of medical care cases will often be ill-suited
for resolution at the pleading stage and will have to
await summary judgment proceedings, at which point
a fully developed medical record will inform the court
as to the nature of the inmate's condition.” Smith, 316
F.3d at 188, n. 14 (quoting Gutierrez v. Peters, 111
F.3d 1364, 1372 (7th Cir.1997)) (internal alteration
omitted).

b. Subjective Prong: Sufficiently Culpable State of Mind

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Plaintiff must also plausibly allege that Dr. Greenwald
“knew of and disregarded an excessive risk to [his] health
or safety and that she was both aware of facts from
which the inference could be drawn that a substantial risk
of serious harm existed, and also drew the inference.”
Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir.2009)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994))
(internal alterations omitted). This requires “something
more than mere negligence.” Cuoco v. Moritsugu, 222
F.3d 99, 106 (2d Cir.2000). Plaintiff must allege facts
which, if true, would show that Dr. Greenwald acted
with “a state of mind ‘equivalent to the familiar standard
of ‘recklessness' as used in criminal law.’ “ Smith v.
Carpenter, 316 F.3d 178, 183–84 (2d Cir.2003) (quoting
Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir.2002) (per
curiam)). “Medical malpractice does not rise to the level of
a constitutional violation unless the malpractice involves
culpable recklessness.” Hill v. Curcione, 657 F.3d 116, 123
(2d Cir.2011).
Plaintiff alleges that he was “rushed” to Bellevue with
“out of control” blood sugar levels. Brief at 4. He alleges
that he continually requested to see a specialist but that
Dr. Greenwald denied his requests. Brief at 6. He alleges
that “[i]t was only when plaintiff's physical conditions
continued to get worse, did defendant Greenwald's
conditions with regards to treating plaintiff change,
defendant then ordered that plaintiff be examined by a
specialist, that he had been requesting, but denied. After
plaintiff was finally examined by a specialist, medication
was prescribed along with a dietary instructions and
orders.” Brief at 7.
*6 But “[a] difference of opinion between a prisoner and
prison officials regarding medical treatment does not, as
a matter of law, constitute deliberate indifference.” Sonds
v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d
303, 311–12 (S.D.N.Y.2001) (citing Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir.1998)); see also Brown v.
McElroy, 160 F.Supp.2d 699, 706 (S.D.N.Y.2001) (“[T]he
fact that a plaintiff feels that more should have been
done for his condition is not a sufficient basis for
a deliberate indifference claim.”). “Issues of medical
judgment cannot be the basis of a deliberate indifference
claim where evidence of deliberate indifference is lacking.”
Hill v. Curcione, 657 F.3d 116, 123 (2d Cir.2011) (citing
Hernandez v. Keane, 341 F.3d 137, 146–48 (2d Cir.2003)).
“Although a delay in providing necessary medical care
may in some cases constitute deliberate indifference, this

Court has reserved such a classification for cases in
which, for example, officials deliberately delayed care as a
form of punishment, ignored a ‘life-threatening and fastdegenerating’ condition for three days, or delayed major
surgery for over two years.” Demata v. New York State
Corr. Dep't of Health Servs., 198 F.3d 233 (2d Cir.1999)
(table) (citations omitted).
Plaintiff does not allege facts sufficient to show that
Dr. Greenwald acted with deliberate indifference. The
circumstances surrounding his admission to Bellevue and
his alleged physical condition at the time may support
an inference that a serious risk of harm existed, but
plaintiff must also allege facts which, if true, would show
that Dr. Greenwald in fact drew that inference and then
consciously disregarded it. He has not done so. In fact,
plaintiff acknowledges that when he condition worsened,
Dr. Greenwald referred him to a specialist, which does
not support a contention that she acted with deliberate
indifference. “Bereft of any allegations of ulterior motive
or culpable recklessness, the [complaint] asks the Court
to examine the reasonableness per se of the doctor's
decision .... This analysis would necessarily require a
detour from what is cognizable under Section 1983 into
what is squarely within the purview of a negligence or
medical malpractice claim.” Washington v. Westchester
Cnty. Dep't of Correction, No. 13–cv–5322 (KPF), 2015
WL 408941, at *9 (S.D.N.Y. Jan. 30, 2015)).
The Court finds that the plaintiff has failed to
allege that Dr. Greenwald acted with the requisite
deliberate indifference to meet the subjective prong of the
Fourteenth Amendment analysis.

V. CONCLUSION
For the reasons outlined above, Dr. Greenwald's motion
to dismiss plaintiff's complaint against her is GRANTED
without prejudice. Plaintiff is granted leave to file an
amended complaint within 30 days from the date of this
order.
The Clerk of Court is directed to terminate the motion
pending at Docket Number 35.
SO ORDERED.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

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Roberts v. C-73 Medical Director, Not Reported in F.Supp.3d (2015)
2015 WL 4253796

All Citations
Not Reported in F.Supp.3d, 2015 WL 4253796
End of Document

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

© 2016 Thomson Reuters. No claim to original U.S. Government Works.

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