Hawthorne v. Macelaru et al

Filing 6

DECISION AND ORDER: ORDERED, that Plaintiff's Amended Complaint (Dkt. No. 5 ) is accepted for filing and is the operative pleading in this action. ORDERED, that the Clerk shall (i) terminate Dr. Mandalaywala, Jane Doe #1, and Jane Doe #2 as defendants, and (ii) revise the docket to add Nurse Sturgeon as a defendant in this action. ORDERED, that Plaintiff's claim that Dr. Macelaru was deliberately indifferent to his serious medical needs in violation of his Eighth Amendment righ ts is DISMISSED in accordance with 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), and that the Clerk shall terminate Dr. Macelaru as a defendant. ORDERED, that the Clerk shall issue a summons and forward it to the U.S. Marshal for ser vice on defendant Sturgeon. ORDERED, that a response to the Amended Complaint shall be filed by defendant Sturgeon or her counsel as provided for in the Federal Rules of Civil Procedure. Signed by Senior Judge Lawrence E. Kahn on 7/17/17. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RUDOLPH HAWTHORNE,
Plaintiff,
-against-

9:17-CV-0438 (LEK/CFH)

DRAGOS MACELARU, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
Pro se plaintiff Rudolph Hawthorne filed his Complaint in this action on April 20, 2017,

seeking to assert Eighth Amendment claims arising out his confinement at Upstate Correctional
Facility (“Upstate C.F.”). Dkt. No. 1 (“Complaint”). Upon review of the Complaint in
accordance with 28 U.S.C. §§ 1915(e) and 1915A, this Court concluded that the allegations in
the Complaint failed to plausibly suggest that any of the defendants were deliberately indifferent
to Plaintiff’s serious medical needs in violation of the Eighth Amendment. Dkt. No. 4 (“May
Order”) at 2–8. In light of his pro se status, Plaintiff was given the chance to file an amended
complaint if he wished to avoid dismissal of this action. Id. at 9. Plaintiff duly filed an Amended
Complaint, which is before the Court for review. Dkt. No. 5 (“Amended Complaint”).
II.

DISCUSSION
In his Amended Complaint, Plaintiff names Dr. Macelaru and Nurse Sturgeon as

defendants. Am. Compl. at 1. Plaintiff realleges his claim against Dr. Macelaru arising from the
carpal tunnel surgery Dr. Macelaru performed on his left hand in January 2016. Id. at 2. As
alleged, Dr. Macelaru did not follow the “protocol or procedure” used in his earlier, successful

surgery on Plaintiff’s right hand. Id. Plaintiff further alleges (as he did in his Complaint) that he
continued to experience severe pain in his left hand following the surgery, and that he sought
evaluation and treatment at sick call over a period of several months. Id. In December 2016,
Plaintiff underwent testing, which showed that he still had carpal tunnel in his left hand, and that
“the surgery was not a success.” Id.
Since January 31, 2017, Plaintiff has sought medical treatment for his left hand at sick
call on many occasions. Id. at 3. Nurse Sturgeon has continually refused to schedule Plaintiff to
see a physician. Id. On May 8, 2017, Nurse Sturgeon told Plaintiff that he would receive
treatment only if he were transferred to another facility or “when I go home.” Id. Plaintiff states
that he continues to experience significant pain and loss of function in his left hand, and he seeks
an award of damages. Id.
Upon review, the Court finds that the Amended Complaint does not include sufficient
factual allegations against Dr. Macelaru to plausibly suggest that he acted with deliberate
indifference to Plaintiff’s serious medical needs, was reckless in his treatment of Plaintiff, or
provided medical treatment that was constitutionally inadequate. As discussed in the May Order,
May Order at 5–7, an unsuccessful surgical outcome does not suffice to state a cognizable Eighth
Amendment claim of deliberate indifference. See, e.g., Chance v. Armstrong, 143 F.3d 698, 703
(2d Cir. 1998) (“[N]egligence, even if it constitutes medical malpractice, does not, without more,
engender a constitutional claim.”). While Plaintiff alleges in his Amended Complaint that Dr.
Macelaru did not follow the same “protocol and procedure” in the second surgery as he had in
the first, Am. Compl. at 2–3, this conclusory assertion does not warrant a different conclusion.

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As a result, the Court finds that the Amended Complaint fails to state a claim against Dr.
Macelaru.
Mindful of the Second Circuit’s instruction that a pro se plaintiff’s pleadings must be
liberally construed, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008),
the Court finds that the Amended Complaint alleges enough facts about Nurse Sturgeon to
require a response from her. In so ruling, the Court expresses no opinion as to whether Plaintiff’s
claim against Nurse Sturgeon can withstand a properly filed dispositive motion.
III.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Amended Complaint (Dkt. No. 5) is accepted for filing and

is the operative pleading in this action; and it is further
ORDERED, that the Clerk shall (i) terminate Dr. Mandalaywala, Jane Doe #1, and Jane
Doe #2 as defendants, and (ii) revise the docket to add Nurse Sturgeon as a defendant in this
action; and it is further
ORDERED, that Plaintiff’s claim that Dr. Macelaru was deliberately indifferent to his
serious medical needs in violation of his Eighth Amendment rights is DISMISSED in
accordance with 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), and that the Clerk shall
terminate Dr. Macelaru as a defendant; and it is further
ORDERED, that the Clerk shall issue a summons and forward it to the U.S. Marshal for
service on defendant Sturgeon; and it is further
ORDERED, that a response to the Amended Complaint shall be filed by defendant
Sturgeon or her counsel as provided for in the Federal Rules of Civil Procedure; and it is further
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ORDERED, that all pleadings, motions and other documents relating to this action shall
bear the case number assigned to this action and shall be filed with the Clerk of the United States
District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St.,
Syracuse, New York 13261-7367. Plaintiff shall also comply with any requests by the Clerk’s
Office for any documents that are necessary to maintain this action. Motions must comply with
Local Rule 7.1 of the Northern District of New York; motions will be decided on submitted
papers, without oral argument, unless otherwise ordered by this Court. Plaintiff must promptly
notify the Clerk’s Office and opposing counsel (in writing) of any change in his address; his
failure to do so may result in the dismissal of this action; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on
Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

July 17, 2017
Albany, New York

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