Varney v. Jmany
Filing
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MEMORANDUM DECISION re: 23 MOTION to Dismiss . filed by J. Many. Defendant's motion to dismiss the second amended complaint is GRANTED. The Clerk is instructed to terminate the motion (Doc. #23), and close the case. The Court c ertifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Vincent L. Briccetti on 4/14/2015) Copies Mailed By Chambers. (rj)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KENNETH VARNEY,
:
Plaintiff,
:
:
v.
:
:
JOANNE MANY,
:
Defendant.
:
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MEMORANDUM DECISION
13 CV 5285 (VB)
Briccetti, J.:
Plaintiff Kenneth Varney, proceeding pro se, brings this Section 1983 prisoner civil rights
action alleging defendant Joanne Many, a corrections counselor at Fishkill Correctional Facility
(“Fishkill”), was deliberately indifferent to his medical needs and intentionally discriminated
against him as a hearing impaired inmate.
Now pending is defendant’s unopposed motion to dismiss the Second Amended
Complaint (“SAC”). (Doc. #23). For the following reasons, the motion is GRANTED.
The Court has subject matter jurisdiction under 28 U.S.C. § 1331.
BACKGROUND
In deciding the pending motion, the Court accepts as true all well-pleaded factual
allegations in the SAC, and draws all reasonable inferences in plaintiff’s favor.
Plaintiff alleges he suffers from a hearing impairment. (SAC § II-D). On May 18, 2013, 1
plaintiff allegedly met with defendant, his assigned corrections counselor, and requested
reasonable accommodations for his hearing impairment. Plaintiff alleges defendant knew of his
hearing impairment, but refused to provide him accommodations. (Id.). Plaintiff allegedly never
1
Plaintiff alleged in his original and amended complaint that the incident occurred on June
18, 2013. (See Docs. ##2, 5).
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received any accommodations for his hearing impairment while incarcerated at Fishkill, and
states as a result, he has lost his hearing entirely. (Id. §§ II-D, III).
DISCUSSION
I.
Standard of Review
In deciding a Rule 12(b)(6) motion to dismiss, the Court evaluates the sufficiency of the
operative complaint under the “two-pronged approach” announced by the Supreme Court in
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,” are not
entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss.
Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are
well-pleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of
“plausibility.” Id. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is
facially plausible “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. at 678. “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.” Id.
Because plaintiff is proceeding pro se, the Court must construe his submissions liberally
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) (per curiam) (internal quotation marks
omitted). “Even in a pro se case, however . . . threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d
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162, 170 (2d Cir. 2010) (internal quotation marks omitted). Nor may the Court “invent factual
allegations” plaintiff has not pleaded. Id.
II.
Section 1983 Claim
To assert a viable Section 1983 claim for constitutionally inadequate medical care based
on a violation of the Eighth Amendment, plaintiff must allege “acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 106 (1976). To do so, plaintiff must plead facts showing (i) the alleged deprivation of
medical care is objectively, sufficiently serious, and (ii) the official in question acted with a
“sufficiently culpable state of mind.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006).
Even assuming plaintiff’s alleged hearing loss is sufficiently serious to satisfy the
objective prong of the deliberate indifference test, the SAC does not plausibly allege defendant
acted with a sufficiently culpable state of mind.
To satisfy the subjective prong of the deliberate indifference test, plaintiff must plead
facts showing more than mere negligence by defendant. Hernandez v. Keane, 341 F.3d 137, 144
(2d Cir. 2003); see also Estelle v. Gamble, 429 U.S. at 105-06 (noting negligence in diagnosis or
treatment is insufficient to state a valid Eighth Amendment claim, and emphasizing “[m]edical
malpractice does not become a constitutional violation merely because the victim is a prisoner”).
Specifically, “the deliberate indifference standard requires the plaintiff to prove that the prison
official knew of and disregarded the plaintiff’s serious medical needs.” Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998).
Plaintiff fails to plead facts indicating defendant acted with the requisite mental state to
satisfy the subjective prong of the deliberate indifference test. Plaintiff alleges defendant knew
he suffered from hearing loss, yet still refused to provide accommodations. However, to
establish the second prong of the analysis, an inmate must show that the prison official knew of
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and disregard an excessive risk to inmate health and safety. While it is reasonable to infer
defendant knew her denial would negatively affect plaintiff’s daily activities, it is not reasonable
to infer defendant had knowledge of, and disregarded, any substantial risk of serious harm to
plaintiff’s hearing. Defendant’s denial of hearing aids and other applicable accommodations did
not expose plaintiff to serious risk of bodily harm, and even if it did, there is no allegation or
reason to think that defendant knew of such a risk. See e.g., Blanche v. Pirelli, 2009 WL
2499737, at *6 (S.D.N.Y. Aug. 7, 2009) (defendant’s refusal to treat plaintiff’s broken finger did
not in itself expose plaintiff to a serious risk of bodily harm, and therefore, it was not reasonable
to infer that defendant had knowledge of, and disregarded, any substantial risk of serious harm). 2
While the Court is sympathetic to plaintiff’s alleged worsening hearing, plaintiff does not
allege defendant had the requisite intent necessary to state an Eighth Amendment claim.
Accordingly, plaintiff has failed to plead a cognizable constitutional injury, and his Section 1983
claim must be dismissed.
III.
ADA and Rehabilitation Claims
Construing the SAC to raise the strongest arguments it suggests, plaintiff also brings
claims pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and
the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 791 et seq.
The ADA and the Rehabilitation Act “impose identical requirements,” so courts analyze
claims under both statutes together. Rodriguez v. City of N.Y., 197 F.3d 611, 618 (2d Cir.
1999). To state a claim under either statute, plaintiff must plead “(1) that he is a ‘qualified
individual’ with a disability; (2) that he was excluded from participation in a public entity’s
services, programs or activities or was otherwise discriminated against by a public entity; and
Plaintiff will be provided with copies of all unpublished opinions cited in this decision.
See Lebron v. Sanders, 557 F.3d 76, 79 (2d. Cir. 2009).
2
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(3) that such exclusion or discrimination was due to his disability.” Hargrave v. Vermont, 340
F.3d 27, 34-35 (2d Cir. 2003). Critically, plaintiff must allege his mistreatment “‘was motivated
by either discriminatory animus or ill will due to disability.’” Elbert v. N.Y. State Dep’t of Corr.
Servs., 751 F. Supp. 2d 590, 594-95 (S.D.N.Y. 2010) (quoting Garcia v. S.U.N.Y. Health
Sciences Ctr. of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001)). “Courts routinely dismiss ADA
suits by disabled inmates that allege inadequate medical treatment, but do not allege that the
inmate was treated differently because of his or her disability.” Id. at 595 (collecting cases).
Plaintiff fails plausibly to allege how defendant discriminated against him because of his
hearing impairment. The SAC is devoid of any allegation defendant excluded plaintiff from or
denied plaintiff the benefits of any services, programs, or activities because of his hearing
impairment. Plaintiff merely asserts that his disability was not adequately treated, not that he
was treated inadequately because of his disability. Accordingly, plaintiff fails to state a claim
under the ADA or the Rehabilitation Act.
IV.
Leave to Amend
Although a district court ordinarily should not dismiss pro se claims for failure to state a
claim “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) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999)),
here, liberally construed, the SAC contains no allegations suggesting plaintiff has valid claims
that he has merely “inadequately or inartfully pleaded” and therefore should “be given a chance
to reframe.” Id. Moreover, the SAC merely reiterates and expands upon claims the Court has
already dismissed, without addressing—much less remedying—the deficiencies the Court
previously cited in dismissing those claims. (See Docs. ##4, 6). Accordingly, the Court declines
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to grant plaintiff leave to amend. See Foman v. Davis, 371 U.S. 178, 182 (1962) (“repeated
failure to cure deficiencies by amendments previously allowed” grounds for denial of leave to
amend).
CONCLUSION
Defendant’s motion to dismiss the second amended complaint is GRANTED.
The Clerk is instructed to terminate the motion (Doc. #23), and close the case.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962).
Dated: April 14, 2015
White Plains, NY
SO ORDERED:
____________________________
Vincent L. Briccetti
United States District Judge
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