Fessette v. Schroyer

Filing 9

DECISION AND ORDER: ORDERED that the Clerk is directed to add Kinter as a defendant to the docket report for this action. ORDERED that plaintiff's action is DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A. The Clerk is directed to close this case. Signed by Senior Judge Thomas J. McAvoy on 11/17/15. (Served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JEREMY A. FESSETTE,
Plaintiff,
v.

9:15-CV-0659
(TJM/TWD)

SCHROYER, GLENN, Physician, et. al.,
Defendants.

APPEARANCES:
JEREMY FESSETTE
15-A-3257
Plaintiff, pro se
Coxsackie Correctional Facility
P.O. Box 999
Coxsackie, New York 12051
THOMAS J. MCAVOY
Senior United States District Judge
DECISION and ORDER
I.

INTRODUCTION
Pro se plaintiff Jeremy Fessette commenced this civil rights action asserting claims

arising out of his confinement at the Clinton County Jail ("Clinton C.J."). Dkt. No. 1
("Compl."). In a Decision and Order filed July 17, 2015 ("July Order"), the Court granted
plaintiff's IFP application and, following review of the complaint in accordance with 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A, the Court determ ined that the complaint failed to
state a claim upon which relief could be granted and, therefore, was subject to dismissal.
Dkt. No. 4, generally. In light of his pro se status, plaintiff was afforded an opportunity to

submit an amended complaint. See id. at 10. Currently before the Court is plaintiff's
amended complaint. Dkt. No. 7 ("Am. Compl.").
II.

DISCUSSION

A.

Legal Standard
The legal standard governing the dismissal of a pleading for failure to state a claim

pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A w as discussed at length in the
May Order and it will not be restated in this Decision and Order. See July Order at 2-3. The
Court will construe the allegations in plaintiff's amended complaint with the utmost leniency.
See, e.g., Haines v. Kerner, 404 U.S. 519, 521 (1972) (holding that a pro se litigant's
complaint is to be held "to a less stringent standards than formal pleadings drafted by
lawyers.").
B.

July Order and Amended Complaint
In the July Order, the Court dismissed plaintiff's claim that defendants were

deliberately indifferent to his serious medical needs in violation of the Eighth Amendment.
See July Order at 9. Plaintiff was afforded the opportunity to amend the complaint.1 See id.
In the amended complaint, plaintiff names a new defendant, Sue Kinter ("Kinter"),
Nurse Administrator at Clinton C.J.2 See Am. Compl. at 2. On August 12, 2014, plaintiff was
booked into the Clinton C.J. for possession of prescription methadone. Dkt. No. 1-1 at 1-2.

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Plaintiff annexed thirty-one pages of exhibits to the amended complaint. To the extent that the exhibits
are relevant to the incidents described in the amended complaint, the Court will consider the amended complaint
as well as any documents attached as exhibits. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d
Cir. 1991) (the complaint is deemed to include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference).
2

The Clerk is directed to add this defendant to the docket report for this action.

2

On August 20, 2014, plaintiff's "medical issues and medications" were "faxed" to Clinton
County Jail. See id. at 3. Plaintiff's medical records revealed that he suffered from
degenerative bone disease, a traumatic brain injury and seizure disorder. See id. at 3-4. At
the time plaintiff arrived at Clinton C.J., he was prescribed and taking 30 mg of Adderall for
attention deficit disorder. See Dkt. No. 1-1 at 3. Kinter ordered Jail Physician Glenn
Schroyer ("Schroyer") not to give plaintiff the medication because plaintiff could use it to "get
high." See id. A fellow inmate, Devon Stirusky ("Stirusky"), was prescribed, and received,
the same medication. See Am. Compl. at 4. Seventy-six days after plaintiff was admitted to
Clinton C.J., plaintiff received medication. See Dkt. No. 1-1 at 3.
As a result of Kinter's and Schroyer's actions, plaintiff suffered a seizure while in the
shower and fell on his left arm breaking pins in his left elbow.3 See Am. Compl. at 4.
Sergeant Claney ("Claney")4, the officer on duty at the time that plaintiff fell, called Kinter and
asked what to do. See Dkt. No. 1-1 at 3. Kinter told Claney to put plaintiff in his cell with a
mattress on the floor and indicated that plaintiff would be seen the next day. See id.
Seventeen hours later, plaintiff was seen by the medical staff. See id. X-rays were taken
and plaintiff was referred to an orthopedic specialist. See id.
Plaintiff claims that Kinter failed to complete "a thorough medical history at the time
[plaintiff] arrived" at Clinton C.J. See Am. Compl. at 4. Plaintiff also claims that Schroyer
placed him in grave danger when he allowed plaintiff to "go thru withdrawl [sic] with no
medication." See id. at 4. Construed liberally, plaintiff claims that Kinter and Schroyer

3

The complaint lacks facts establishing when this injury occurred.

4

Claney is not a defendant herein.

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violated his Eighth Amendment rights and discriminated against plaintiff. See Am. Compl. at
5.
C.

Analysis
1.

Eighth Amendment

Plaintiff alleges that Kinter and Schroyer violated his Eighth Amendment rights and
were deliberately indifferent to his serious medical needs when they discontinued his
medication and failed to review his complete medical history.5 See Dkt. No. 1-1 at 3.
Construed liberally, plaintiff also alleges that Kinter was deliberately indifferent to his medical
needs after he fell in the shower because she delayed medical treatment. See id. at 3.
In the July Order, the Court found that plaintiff had not plead facts to suggest that he
suffered from a serious medical condition. See July Order at 8. The Court dismissed all
Eighth Amendment claims reasoning:
Even assuming plaintiff's injuries were sufficiently serious, to
satisfy the second prong of the analysis, plaintiff must allege
facts to demonstrate that defendant "knew of and disregarded
an excessive risk to his health or safety." Sales v. Barizone,
No. 03 Civ. 6691, 2004 WL 2781752, at *18 (S.D.N.Y. Dec. 2,
2004) (citing Farmer, 511 U.S. at 837). The complaint lacks
any such facts. At best, the complaint contains allegations
related to negligence and malpractice, which are not actionable
under section 1983. See Morales v. New York State Dep't of
Corrs., 842 F.2d 27, 30 (2d Cir. 1988); see also Hathaway, 99
F.3d at 553. Plaintiff claims that he has not been provided with
the same standard of care that he received outside of the
facility, see Compl. at 3, 4, but does not allege that Schroyer
acted with any malice or that he was "deliberately indifferent."
There are no allegations to plausibly suggest that the fourteen
day delay in treatment amounted to deliberate indifference to

5

The legal standards and caselaw involving Eighth Amendment violations related to deliberate
indifference to medical needs was discussed in the July Order and it will not be restated in this Decision and
Order. See July Order at 5-8.

4

a serious medical need. In this case, plaintiff was treated by
Schroyer and received medications. These actions do not
demonstrate deliberate indifference. Additionally, although
plaintiff claims that he was not given the same medicine "that
he was on upon entry to this facility," plaintiff's allegations
suggest a disagreement with treatment which fails to state an
Eighth Amendment claim.
July Order at 8-9.
Despite the fact that plaintiff was afforded the opportunity to amend his complaint, the
amended complaint does not cure the deficiencies in the original pleading related to this
claim. Even assuming that plaintiff suffered from a serious medical need, plaintiff has not
plead that defendants were aware that failing to review plaintiff's full medical history would
result in an excessive risk to plaintiff's health or that defendants acted with the necessary
culpable state of mind. See Holmes v. Fell, No. 92 Civ. 1296, 856 F.Supp. 181 (S.D.N.Y.
June 24, 1994) (the plaintiff failed to establish that the nurse intentionally disregarded his
medical history).
Additionally, the amended complaint does not contain any facts suggesting that
defendants were actually aware that discontinuing plaintiff's Adderall, for any period of time,
would cause him substantial pain. Indeed, the exhibits annexed to the amended complaint
belie plaintiff's allegations. From September 8, 2014 through October 31, 2014, plaintiff
submitted eighteen sick call requests. See Dkt. No. 1-1 at 8-18. Only one sick call request
related to plaintiff's Adderall prescription. See id. Specifically, on October 10, 2014, plaintiff
complained that he could not concentrate and stated that he needed his m edication, "for
appropriate level of care." See id. at 8. A response, dated October 27, 2014, indicated " will
research Dr. Disney records." See id. The amended complaint and exhibits lack any further
facts related to plaintiff's Adderall medication or the alleged side effects plaintiff experienced
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from defendants' withholding the medication. Discontinuing a medication, without more,
does not show sufficient disregard to plaintiff's medical needs to give rise to a constitutional
claim. See Douglas v. Stanwick, No. 98 CV 6249, 93 F. Supp.2d 320, 326 (W .D.N.Y. April
17, 2000) (the plaintiff never complained of pain in his hand and thus, the defendant had no
reason to believe that the plaintiff was suffering from pain that over-the-counter medications
were not adequately treating) (citing Jones Bey v. Wright, No. 3:93 CV 0440, 1996 W L
277961 *6 (N.D. Ind. May 14, 1996) (defendant's decision to discontinue pain medication that
plaintiff had been taking at county jail was decision regarding appropriate medical treatment,
and plaintiff's disagreement with that decision did not establish deliberate indif ference)).
At best, plaintiff's allegations suggest negligence or medical malpractice and are
insufficient to establish any constitutional violation. See Hernandez v. Keane, 341 F.3d 137
(2d Cir. 2003); see also Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("So long as
the treatment given is adequate, the fact that a prisoner might prefer a different treatment
does not give rise to an Eighth Amendment violation."); Broschart v. O'Connor-Ryerson, No.
9:11-CV-0405 (LEK/GHL), 2012 W L 555307, at *3 (N.D.N.Y. Jan. 17, 2012) report and
recommendation adopted, No. 9:11-CV-00405 LEK, 2012 W L 555407 (N.D.N.Y. Feb. 21,
2012) ("[a]t most, the plaintiff alleges that the defendant committed medical malpractice
because she should have been aware of the dangers of abrupt withdrawal from Percodan
and, accordingly, we[a]ned [the plaintiff] off the medication.").
To the extent that plaintiff claims he was not treated in an expeditious manner after his
fall, the facts fall far short of demonstrating that any defendant acted with reckless disregard
or deliberate indifference to his medical needs. If officials deliberately delayed care as a

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form of punishment and ignored a "life threatening and fast-degenerating" condition, the
delay may constitute deliberate indifference. See Demata v. New York State Corr. Dep't of
Health Servs., 198 F.3d 233 (2d Cir. 1999). Here, the facts alleged fail to plausibly suggest
that Kinter deliberately withheld medical treatment for the purpose of punishing plaintiff. The
amended complaint is void of any facts establishing that the seventeen hour delay resulted in
a "fast degenerating" condition or "life threatening" harm to plaintiff. See Lee v. Frederick,
No. 02-CV-6177, 519 F.Supp.2d 320, 328 (W .D.N.Y. Oct. 22, 1997); see also McMillon v.
Davidson, No. 05-CV-6558, 873 F.Supp.2d 512, 515 (W .D.N.Y. July 9, 2012) (the plaintiff did
not allege that he suffered any long-lasting harm as a result of the alleged delay of a few
days in receiving pain medication).
For the reasons set forth herein and in the July Order, plaintiff's Eighth Amendment
claims are dismissed pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) f or failure to state a
claim.
2.

Fourteenth Amendment - Equal Protection

Plaintiff claims that Schroyer and Kinter were "bias[ed] towards anyone on the
methadone program" and discriminated against plaintiff. See Dkt. No. 1-1 at 2, 4. The
Fourteenth Amendment's Equal Protection Clause mandates equal treatment under the law.
Essential to that protection is the guarantee that similarly situated persons be treated equally.
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). "In order to
establish an equal protection violation, the plaintiff must show that he way treated differently
than other people in similar circumstances and must establish that such unequal treatment
was the result of intentional and purposeful discrimination," typically against an identifiable or
suspect class, such as race or religion. Chaney v. Koupash, No. 04-CV-0126 (LEK/DRH),
7

2008 WL 5423419, at *20 (N.D.N.Y. Dec. 30, 2008) (citation omitted); Phillips v. Girdich, 408
F.3d 124, 129 (2d Cir. 2005). In addition, a valid equal protection claim may be brought by a
"class of one" "where the plaintiff alleges that she [or he] has been intentionally treated
differently from others similarly situated and that there is no rational basis f or the difference in
treatment." Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Neilson v. D'Angelis, 409
F.3d 100, 105 (2d Cir.2005).
Here, plaintiff claims that he was treated differently due to the fact that he was
prescribed methadone and treated with "psych meds" by a physician. See Dkt. No. 1-1 at 4.
Even assuming that "addicts constitute a viable 'class', prison authorities may treat members
of such a group differently than non-addicts, as long as the disparate treatment is rationally
related to a valid public policy goal." Wright v. Genovese, No. 07-CV-473 (LEK/ATB), 694
F.Supp.2d 137, 162 (N.D.N.Y. March 9, 2010) aff'd, 415 F. App'x 313 (2d Cir. 2011). "For
prison medical officials dispensing narcotic pain medications on which inmates could become
dependent, it is hardly irrational to consider the inmate's perceived addiction or history of
substance abuse as a factor in making the medical judgment about what drug to prescribe."
Id. (citations omitted). Further, while plaintiff identified and compared himself to another
inmate, Stirusky, the amended complaint lacks any facts suggesting how Stirusky and
plaintiff were similarly situated. Accordingly, plaintiff's Fourteenth Amendment Equal
Protection claim is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may be granted.
3.

Negligence

Throughout the amended complaint, plaintiff claims that Schroyer and Kinter were
negligent. See Dkt. No. 1-1 at 2, 4. Allegations of negligence do not give rise to
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constitutional violations and are not cognizable under § 1983. Hendricks v. Coughlin, 942
F.2d 109, 113 (2d Cir. 1991).
Despite a liberal reading of the pleading, a review of plaintiff's amended complaint
reveals that the amended complaint does not cure the deficiencies identified in his original
complaint. The Court finds that the amended complaint does not comply with the Court's
July Order and thus, plaintiff's claims are dismissed in their entirety pursuant to 28 U.S.C. §
1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be
granted.
III.

Leave to Amend to Cure Deficiencies
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant 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." Branum v. Clark, 927 F.2d 698, 704–05 (2d
Cir.1991); see also Fed.R.Civ.P. 15(a) ("The court should freely give leave when justice so
requires."). An opportunity to amend is not required, however, where "the problem with [the
plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco
v. Moritsugu, 222 F.3d 99, 112 (2d Cir.2000); see also Cortec Indus. Inc. v. Sum Holding
L.P., 949 F.2d 42, 48 (2d Cir.1991) ("Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice."). Stated
differently, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it
is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987
F.2d 129, 131 (2d Cir.1993); accord, Brown v. Peters, No. 95–CV–1641, 1997 W L 599355,
at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
In this instance, plaintiff has already been provided one opportunity to amend his
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complaint. The deficiencies with his original complaint, identified by the court in its decision,
have not been cured with the amended complaint. Accordingly, the Court finds that any
further amendment would be futile.
IV.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that the Clerk is directed to add Kinter as a defendant to the docket report

for this action; and it is further
ORDERED that plaintiff's action is DISMISSED with prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A. The Clerk is directed to close this case; and it is
further
ORDERED that the Clerk serve a copy of this Decision and Order on plaintiff.

SO ORDERED.
Dated: November 17, 2015

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