Jimenez v. F.C.I. Otisville- Bureau of Prison et al

Filing 74

OPINION & ORDER: re: 62 MOTION to Dismiss . filed by Diane Sommer. For the foregoing reasons, the Defendant's motion to dismiss is GRANTED. Only Plaintiffs FTCA negligence claim remains. The parties are directed to notify Magistrate Judge McCarthy of this decision. The Clerk of Court is respectfully directed to terminate the motion at ECFNo. 62. (Signed by Judge Nelson Stephen Roman on 7/28/2017) (ap)

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DOCUMENT
ELECTRO NI CALL y FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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VIRGILIO JIMENEZ,

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Plaintiff,
No. 14-cv-5166 (NSR)
OPINION & ORDER

-againstM.D. DIANE SOMMER, P.A. BRIDGET BAKER,
UNITED STATES,
Defendants.
NELSONS. ROMAN, United States District Judge

Plaintiff Virgilio Jimenez ("Plaintiff') brings this action prose, 1 against Defendants Diane
Sommer, M.D. ("Sommer"), Bridget Baker, P.A. ("Baker") and the United States (collectively,
"Defendants"),2 alleging negligence with respect to the maintenance of the Federal Conectional
Institution in Otisville, New York ("Otisville"), and deliberate indifference toward serious medical
needs caused by an ankle fracture Plaintiff sustained in a fall while incarcerated at Otisville.
Plaintiff asserts a Bivens claim for violation of his Eighth Amendment rights3 and a negligence
claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§
1346(b), 2671-2680. Before this court is Defendant's motion to dismiss the Bivens claim asserted

in Plaintiffs Amended Complaint. For the foregoing reasons, Defendant's motion to dismiss is
GRANTED.

1

Plaintiff received assistance with his opposition brief from law student interns in the form of research and help
formulating arguments. (See Pl. Opp. to Def. Mot. to Dismiss, at I, ECF No. 61.)
2
By Order dated September 16, 2014, this Court dismissed Plaintiff's claims against Defendant Warden Hufford of
Otisville and the United States Bureau of Prisons ("BOP") for failure to state a claim. (See ECF No. 7 .) The Court
construed the Complaint to allege claims under the FTCA, which required adding the United States as a defendant,
and directed the Clerk to amend the caption to reflect this addition. (Id.) Furthermore, on February 3, 2016, the Court
dismissed Plaintiff's medical malpractice claim under the Federal Tort Claims Act, and Ewens claim. (See ECF
No.35.) The undersigned subsequently granted Plaintiff's partial motion for reconsideration and reinstated Plaintiff's
Bivens claim. (See ECF No. 51.)
3
See Bivens v. Six Unknown Named Agents ofFederal Bureau ofNarcotics, 403 U.S. 388 (1971) ("Bivens").

I

BACKGROUND
The following facts are drawn from Plaintiff’s Amended Complaint, ECF No. 46, unless
otherwise indicated. 4
Plaintiff’s action arises out of an incident that occurred when he was incarcerated at F.C.I.
Otisville. (See Am. Compl. at 1.) Plaintiff alleges that the windows above the cell in which he
was housed were damaged, and that when it rained puddles of water would form on the ground.
(Id.) On the night of June 28, 2013, it rained, causing large puddles to form. (Id.) Early the next
morning, an officer unlocked all of the cell doors and presumably prompted the inmates to step
out by yelling “clear.” (Id.) Plaintiff stepped out of his cell and proceeded to walk toward a
staircase. (Id.) After taking a few steps, Plaintiff slipped, “crashing” into the floor, hitting his
head, lower back, right ankle and right wrist. (Id.) Plaintiff was able to get up, but could not walk.
(Id.)
A fellow inmate assisted in bringing Plaintiff to the medical facility, where he was seen by
R.N. Cheryl Brooks (“RN Brooks”). (Id. at 2.) RN Brooks observed Plaintiff’s injuries, gave him
four Ibuprofen tablets and crutches, 5 which he contends were mismatched, and according to the

4

Plaintiff asks the Court to take judicial notice of medical records (the “Medical Records”) attached to his opposition
brief, on the basis that they are incorporated by reference and integral to the complaint. (See Pl. Opp. at 3.) In the
alternative, Plaintiff asks for permission to file a second amended complaint to include these records. (Id.) Both
parties refer to these records. (See id; see, e.g., Def. Reply In Support of Mot. to Dismiss, at 5, ECF No. 64.) Although,
on a motion to dismiss, the Court’s review is generally limited to the facts alleged in the complaint, given Plaintiff’s
desire to amend, the Court will take judicial notice of these records for the purposes of this motion. See Martinez v.
Aycock-W., 164 F. Supp. 3d 502, 508 (S.D.N.Y. 2016) (“in deciding a motion to dismiss a pro se complaint, it is
appropriate to consider ‘materials outside the complaint’ including ‘documents that a pro se litigant attaches to his
opposition papers’”) (citing Alsaifullah v. Furco, 12-CV-2907 ER, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2,
2013); Agu v. Rhea, 09–CV–4732, 2010 WL 5186839, at *4 n. 6 (E.D.N.Y. Dec. 15, 2010)).
5
Plaintiff’s Amended Complaint indicates he received crutches on July 3, 2013, but his Medical Records indicate he
received crutches on the same day of his accident, after being seen by RN Brooks. (Compare Am. Compl. at 2 with
Plaintiff’s Medical Records Attached to Pl. Opp. (“Medical Records”), at 24, ECF No. 61.) See Tavares v. New York
City Health & Hosps. Corp., 13-CV-3148 (PKC) (MHD), 2015 WL 158863, at *3 (S.D.N.Y. Jan. 13, 2015) (“While
a court deciding a motion to dismiss must generally accept the complaint’s factual allegations as true, it is permitted
to reject the truthfulness of those allegations when they are contradicted by matters of which judicial notice may be
taken”); see also Matusovsky v. Merrill Lynch, 186 F. Supp. 2d 397, 400 (S.D.N.Y. 2002) (“a court may consider
documents attached to the complaint as exhibits, or incorporated by reference, as well as any documents that are

2

Medical Records, recommended elevation and that he follow up at “sick call” as needed. (Id.;
Medical Records at 24.) On July 3, 2013, Plaintiff was seen by P.A. Bridget Baker (“PA Baker”).
(Am. Compl. at 2.) X-rays were performed, revealing that Plaintiff’s ankle was fractured. (Id.;
Medical Records at 27.) According to the Medical Records, Plaintiff reported no excessive pain
at this time, but had been using the crutches incorrectly and bearing weight on the ankle; he was
also experiencing swelling and decreased range of motion in the area. (Id.) Plaintiff was also
given an air-cast, and anti-inflammatories for the pain and swelling (Medical Records at 29-30;
see also Pl. Opp. at 4 (indicating receipt of “air-cast”), and given a vaccine to help him with
dizziness and vomiting due to a concussion he sustained from the fall. (Am. Compl.at 2.) Plaintiff
contends that he was refused a wheelchair and told that he could not be taken to the hospital due
to a “holiday schedule” at the time. (Id.)
On or about July 5, 2013, Plaintiff obtained a wheelchair. (Id.; Medical Records at 33.)
Plaintiff alleges that the wheelchair had no foot rest and loose screws. (Am. Compl. at 3.) A few
days later, on July 9, 2013, Plaintiff was taken to a hospital off-site, where a second x-ray was
performed, and his ankle was put in a cast. (Id. at 3.) Later that same month, on July 19, 2013,
Plaintiff went to medical to address damage to his cast. (Id.) Specifically, the cast was breaking
apart because it had been dragging on the floor due to the lack of a foot rest on his wheelchair, and
water damage, as Plaintiff had received nothing to protect the cast during showers. (Id.) Plaintiff
alleges that when he was leaving the Medical Unit, a warden noticed the state of the wheelchair
and ordered P.A. Baker to provide Plaintiff with a new one, which was presumably received. (Id.)

integral [there]to …. If a plaintiff's allegations are contradicted by such a document, those allegations are insufficient
to defeat a motion to dismiss.”)

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On July 23, 2013, Plaintiff returned to the Medical Unit for lower back pain and received a
“vaccine.” (Id.)
On August 8, 2013, Plaintiff’s cast was removed and Plaintiff’s foot was placed in a “boot,”
which was removed on August 28, 2013; Plaintiff was given ibuprofen for his pain. (Id.) Months
later, on November 14, 2013, Plaintiff went to medical for lower back pain and dizzy spells. (Id.
at 4.)
Plaintiff contends that he continues to suffer from back pain, and his ankle and foot
continue to swell up whenever he walks around for more than thirty minutes to two hours, or
whenever he climbs stairs. (Id.) Plaintiff also states that both his ankle and wrist “have never been
the same” and that he cannot “run around” like he used to. (Id.)
As to Dr. Sommer, Plaintiff alleges that she was aware of his fall because, as the head of
the medical unit at Otisville F.C.I. “all decisions big or small go thru [sic] her.” (Id. at 4.) Plaintiff
alleges that Sommer was aware he required immediate medical attention, including pain
medication, a wheelchair, x-rays, MRIs, and a lower tier cell. (Id.) Plaintiff notes that he did not
receive an x-ray until five days after his fall, and a cast until six days after an x-ray revealed he
had a fracture, and that, as such, his needs were not met in a timely fashion. (Id. at 4-5.)
STANDARD ON A MOTION TO DISMISS
Under Rule 12(b)(6), the inquiry is whether the complaint “contain[s] sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); accord
Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While legal conclusions can provide the
framework of a complaint, they must be supported by factual allegations.” Id. at 679. To survive
a motion to dismiss, a complaint must supply “factual allegations sufficient ‘to raise a right to
relief above the speculative level.’” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
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(2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). The Court must take all material factual
allegations as true and draw reasonable inferences in the non-moving party’s favor, but the Court
is “‘not bound to accept as true a legal conclusion couched as a factual allegation,’” or to credit
“mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal,
556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
In determining whether a complaint states a plausible claim for relief, a district court must
consider the context and “draw on its judicial experience and common sense.” Id. at 662. A claim
is facially plausible when the factual content pleaded allows a court “to draw a reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678.
Furthermore, with regard to pro se Plaintiffs, the Court must “‘construe [ ] [the]
[Complaint] liberally and interpret[ ] [it] to raise the strongest arguments that [it] suggest[s].’”
Martinez, 164 F. Supp. 3d at 508 (quoting Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir.2013).
Yet, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from
compliance with relevant rules of procedural and substantive law.” Id. (quoting Bell v. Jendell,
980 F.Supp.2d 555, 559 (S.D.N.Y.2013) (emphasis added) and citing Caidor v. Onondaga Cty.,
517 F.3d 601, 605 (2d Cir.2008) (“[P]ro se litigants generally are required to inform themselves
regarding procedural rules and to comply with them.”)).
DISCUSSION
I.

Eighth Amendment Claim
Plaintiff alleges that Defendant failed to provide him with adequate, timely medical

treatment for injuries sustained from his fall while incarcerated at Otisville. (Pl. Opp. at 8-13.)
Defendant moves to dismiss this claim on the grounds that Plaintiff has failed to plausibly allege
that Defendant was deliberately indifferent to his serious medical needs. (Def. Mem. at 6-12.)
Defendant also asserts that she is protected by the qualified immunity doctrine.
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Under Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (1972), a plaintiff may bring
a claim against a federal officer in her personal capacity for a violation of certain constitutional
rights. “To state a claim under Bivens, a plaintiff must allege that an individual defendant
personally committed a specific wrongful act that violated a well-established constitutional right
of which a reasonable person would have known.” Adekoya v. Holder, 751 F. Supp. 2d 688, 694
(S.D.N.Y. 2010) (citing Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987)); see Barbaro v. U.S. ex
rel. Fed. Bureau of Prisons FCI Otisville, 521 F. Supp. 2d 276, 281 (S.D.N.Y. 2007) (“The
elements of a Bivens claim are: (1) that a defendant acted “under color of federal law” (2) “to
deprive plaintiff of a constitutional right.”) (quoting Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.
1995)). In this instance, Plaintiff alleges a deprivation of adequate medical care in violation of the
Eighth Amendment. Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996).
In order to show that prison medical treatment was so inadequate that it could amount to
“cruel or unusual punishment” prohibited by the Eighth Amendment, a plaintiff must demonstrate
that “the defendant[’s] actions or omissions amounted to ‘deliberate indifference to a serious
medical need.’” Shuler v. Edwards, 485 F. Supp. 2d 294, 297–98 (W.D.N.Y. 2007) (citing Estelle
v. Gamble, 429 U.S. 97, 106 (1976)). This test has both a subjective and objective component,
requiring a plaintiff to plausibly allege: “(1) objectively, the deprivation the inmate suffered was
sufficiently serious that he was denied the minimal civilized measure of life’s necessities,” and
“(2) subjectively, the defendant official acted with a sufficiently culpable state of mind, such as
deliberate indifference to inmate health or safety.” Martinez v. Aycock-W., 164 F. Supp. 3d 502,
510–11 (S.D.N.Y. 2016) (citing Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)).
Broadly interpreted, the Amended Complaint alleges deliberate indifference to a serious
medical need based on two aspects of Plaintiff’s medical treatment: the delay in receiving medical

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treatment; and the adequacy of the medical care received. To reiterate, Plaintiff contends that
Defendant provided inadequate care by allowing six days to pass between Plaintiff’s diagnosis of
a distal fibula fracture, and the provision of a cast (with a total of nine days between the accident
and casting), which caused “extra unnecessary pain and suffering.” (See Am. Compl. at 8.)
Plaintiff also contends that the care he received was inadequate because he required pain
medication, a wheelchair, x-rays, MRIs, and a lower tier cell following his fall. (See id. at 4.) The
Court notes that according to the Amended Complaint, Plaintiff received ibuprofen, vaccines for
dizziness and back pain, x-rays, crutches, a wheelchair (which may have been replaced by one of
better quality), an “air-cast,” a fiber glass cast, and a “boot.” (See id. at 2-3; Pl. Opp. at 4; Medical
Records at 30; 37.)
I.

Objective Prong of Deliberate Indifference Claim
“Only an ‘unquestioned and serious deprivation of basic human needs’ or of the ‘minimal

civilized measure of life’s necessities’ will constitute a violation of Plaintiff’s Eighth Amendment
rights.” Martinez, 164 F. Supp. 3d at 511 (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
To determine whether there has been an objectively, sufficiently serious deprivation the Court
considers “whether the prisoner was actually deprived of adequate medical care,” and if so,
whether “the inadequacy in medical care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d
263, 278–79 (2d Cir. 2006). As to the first consideration, adequate medical care is often considered
“reasonable care” or that which would not result in liability. Martinez, 164 F. Supp. 3d at 511. As
to the second consideration, Courts look to “how the offending conduct is inadequate and what
harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin, 467 F.3d
at 280. Harm is considered “sufficiently serious” if it could “produce death, degeneration, or
extreme pain,” Hill v. Curcione, 657 F3d. 116, 122 (2d Cir. 2011) (internal quotation marks and
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citations omitted), or “the failure to treat [the] condition could result in further significant injury
or the unnecessary and wanton infliction of pain.” Harrison v. Barkley, 219 F.3d 132, 136 (2d
Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).
a) Medical Treatment Plaintiff Received
Plaintiff alleges he was deprived of adequate medical care because he did not receive pain
medication, a wheelchair, x-rays, MRIs, and a lower tier cell. (See id. at 4.) According to
Plaintiff’s Amended Complaint, immediately after his fall he was brought to the medical unit
where he was examined by R.N. Brooks, who gave him four ibuprofen, crutches, (which Plaintiff
contends were “mismatched,”) and an air-cast. (Am. Compl. at 2; Pl. Opp. at 4.) Five days later,
on July 3, 2013, he was seen by P.A. Barker who performed an x-ray, revealing an ankle fracture.
(Id.; Pl. Opp. at 4.) Plaintiff also alleges he was given vaccinations to assist with his dizziness and
vomiting. (Am. Compl. at 2.) Two days later, on July 5, 2013, according to Plaintiff’s Medical
Records, a request was made for him to be issued a wheelchair. (See Medical Records at 33.) The
following day, Plaintiff was given a wheelchair which he contends was broken. (Am. Compl. at
2-3.) Three days after that, he was taken to an outside hospital, where another x-ray was
performed, and his ankle was placed in a cast. (Id.) Ten days later, on July 19, 2013, he went to
medical due to damage to his cast; on that day, a new wheelchair was ordered for him. (Id. at 3.)
Four days later, on July 23, 2013, he returned to medical due to lower back pain and was given a
vaccine. (Id.) On August 8, 2013, sixteen days later, the cast was removed and his foot was placed
in a “boot.” (Id.) On August 28, the boot was removed and he was given ibuprofen for pain. (Id.)
Plaintiff’s medical records indicate that he was given medication for pain and inflammation
throughout this time. (See generally, Medical Records at 24-42.)

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Based upon Plaintiff’s own complaint and documents incorporated therein, the Court
cannot find that the medical care he received was inadequate under the Eighth Amendment
deliberate indifference standard. Plaintiff was seen within hours of his accident, and based upon
his own allegations, within several days of the injury, Plaintiff appeared to receive regular
treatment, which included pain medication, x-rays, crutches, a wheelchair (which may have been
replaced by one of better quality) and a cast. See Santiago v. City of New York, No. 98-cv- 6543
(RPP), 2000 WL 1532950, at *6 (S.D.N.Y. Oct. 17, 2000) (holding that plaintiff failed to state a
deliberate indifference claim because he received prompt medical treatment within hours after he
complained of pain). Plaintiffs’ contention that he should have received other forms of treatment
amounts to a difference of opinion as to appropriate medical treatment, which is not actionable
under the Eighth Amendment. See Wandell v. Koenigsmann, 99-CV-8652 (WHP), 2000 WL
1036030, at *3 (S.D.N.Y. July 27, 2000) (“it is well established that mere differences in opinion
regarding medical treatment do not give rise to an Eighth Amendment violation.”)
(citing Muhammad v. Francis, 9-CV-2244 (SS), 1996 WL 657922, at *6 (S.D.N.Y. Nov. 13, 1996)
(internal citations omitted)); see also id. *4 (citing Skinner v. Bloschak, 1988 WL 96799, at *1
(E.D. Pa. Sept. 14, 1988) (allegations of failure to provide crutches “describe a medical malpractice
claim, and not the deliberate and harmful indifference to [plaintiff’s] medical needs required”)).
The Court also notes that injuries both similar to Plaintiff’s and of a more severe nature
have not been found to rise to the level of a “serious medical condition” warranting Eighth
Amendment protection. See Chatin v. Artuz, 28 F. App’x 9, 10 (2d Cir. 2001) (Plaintiff’s
“condition, which medical staff diagnosed as a sprained ankle, a bone spur, and a neuroma, did
not rise to the level of seriousness that the Eighth Amendment requires.”); Patterson v. Westchester
Cnty, 13-CV-9194, PAC AJP, 2014 WL 1407709, at *7 (S.D.N.Y. Apr. 11, 2014), report and

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recommendation adopted, 13-CV-0194 (PAC) (AJP), 2014 WL 2759072 (S.D.N.Y. June 16,
2014) (finding plaintiff’s torn ankle ligaments did not establish serious medical and noting
“[u]nlike cases where injuries demonstrate the requisite urgency leading to death, degeneration or
extreme pain, the case law holds that prisoner complaints about ligaments or other ankle problems
do not establish the objective prong of the deliberate indifference standard”); Sloane v. Borawski,
64 F. Supp. 3d 473, 494 (W.D.N.Y. 2014) (“broken ribs, an ankle fracture and a lower right-side
back injury” not sufficiently serious to meet objective prong); Bonner v. New York City Police
Dep’t, 99–CV–3207, 2000 WL 1171150, at *4 (S.D.N.Y. Aug. 17, 2000) (holding that the inability
to “close” a finger due to inadequate treatment of swelling in one’s hand is insufficiently serious
to constitute Eighth Amendment violation because the “[c]ourt could [not] conclude plaintiff
suffered or suffers from a condition that may produce death, degeneration, or extreme pain”)
(emphasis added); see also Gomez v. Zwillinger, 1998 U.S. Dist. LEXIS 17713, at *16 (S.D.N.Y.
November 6, 1998) (holding that back pain and discomfort were not sufficiently serious).
However, even assuming, without deciding, that a fractured distal fibula constitutes a
serious medical need, the Court notes that in similar cases involving fractured fibulas, courts in
this Circuit have denied deliberate indifference claims (even, for example, where there was a
seventeen-day delay between an x-ray and surgery) on the basis that the care provided was
adequate where Defendants “took steps to immobilize the ankle area, gave plaintiff crutches and
pain relievers, and provided for further evaluation and treatment;” finding in light of this treatment
that “[a]ll that the record shows, then, is that the x-rays and surgery were not performed as soon
as plaintiff would have liked.” Shuler, 485 F. Supp. 2d at 299. Based upon the foregoing, even
drawing all reasonable inferences in favor of Plaintiff, the allegations of inadequate medical care
are legally insufficient to satisfy the objective standard of a deliberate indifference claim.

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b) Alleged Delay in Receipt of Cast
Plaintiff also alleges that he was provided inadequate medical care in the form of a six-day
delay between his x-ray and the receipt of a cast, and that this delay was “sufficiently serious”
under the objective prong. (See Pl. Opp. at 8.)
As to the first inquiry of the objective prong – whether Plaintiff was actually deprived of
inadequate medical care – the Court notes that delays longer than the one complained of here have
not been found to constitute an inadequacy in care. See also Torres v. Alers, 2005 WL 2372741
at *1 (S.D.N.Y. Sept. 26, 2015) (finding that failure to order an x-ray until two months after
plaintiff fractured distal fibula did not give rise to a claim of deliberate indifference) (emphasis
added); see also Patterson v. Westchester Cnty, 13-CV-9194, 2014 WL 1407709 at *24 (S.D.N.Y.
Apr. 11, 2014) (no deliberate indifference claim where plaintiff’s ankle was x-rayed three days
after injury but was not diagnosed as suffering from torn ligaments until eleven days after injury);
Ruiz v. Homerighouse, 01-CV-0266E (SR), 2003 WL 21382896 (W.D.N.Y. Feb. 13, 2003)
(finding that a one week delay in visit to orthopedist for treatment of a hand fracture was not
sufficiently serious where Plaintiff received splint, ace bandage and ibuprofen). Thus, the six-day
delay between an x-ray and cast (and even the nine-day delay between the initial injury and cast)
are not sufficient to be deemed inadequate under the Eighth Amendment.
“Where the challenge is to the adequacy of the treatment provided, such as in cases where
treatment is alleged to have been delayed or interrupted, the seriousness inquiry [of the objective
prong] focuses on the particular risk of harm faced by a prisoner due to the challenged deprivation
of care, rather than the severity of the prisoner’s underlying medical condition considered in the
abstract.” Rosseter v. Annetts, 10-CV-1097 (NAM) (TWD), 2012 WL 4486082, at *9 (N.D.N.Y.
June 29, 2012), report and recommendation adopted, 9:10-CV-1097 (NAM) (TWD), 2012 WL
11

4482858 (N.D.N.Y. Sept. 27, 2012) (internal quotation marks and citations omitted); see Smith v.
Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (“where the prisoner … brings a narrower denial of
medical care claim based on a temporary delay or interruption in treatment, the serious medical
need inquiry can properly take into account the severity of the temporary deprivation alleged by
the prisoner.”). Along these same lines, “[t]o establish an Eighth Amendment claim based on the
denial of medical care, “[the] plaintiff must make an ‘objective’ showing that the deprivation was
‘sufficiently serious,’ or that the result of defendant’s denial was sufficiently serious.” Smith v.
Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (internal quotation marks and citations omitted). “In
cases where temporary delays or interruptions in the provision of medical treatment have been
held to satisfy the objective seriousness requirement, they have involved either a needlessly
prolonged period of delay or a delay that caused extreme pain or exacerbated a serious illness.”
Gantt, 09-CV-7310 (PAE), 2013 WL 865844, at *9 (S.D.N.Y. Mar. 8, 2013). See Hill, 657 F3d.
at 122 (delay “sufficiently serious” if it could have resulted in “death, degeneration or extreme
pain,”).
As indicated above, the “delay” alleged does not rise to the level of inadequate medical
care as a matter of law. Even assuming as Plaintiff alleges, that the delay created “unnecessary”
pain, suffering, discomfort, and affected his mobility, these injuries are not sufficiently serious as
a matter of law to satisfy the objective prong of a deliberate indifference claim. See e.g., Bonner,
2000 WL 1171150, at *4 (inability to “close” a finger due to inadequate treatment of swelling in
one’s hand insufficiently serious where it did not “produce death, degeneration, or extreme pain”);
Chatin, 1999 U.S. Dist. LEXIS 11918, at *4-6, 11 & n.5 (S.D.N.Y. Aug. 4, 1999) (prisoner’s foot
condition, which involved pain and swelling was not sufficiently serious), aff’d, 99-0266, 2002
U.S. Dist. LEXIS 86 (2d Cir. Jan. 3, 2002) (unpublished opinion). Nor are these alleged ailments

12

sufficient to show that the modest delay, nor overall treatment received here, placed Plaintiff at
risk of serious harm.
As such, Plaintiff has failed to satisfy the objective prong of his Eighth Amendment
deliberate indifference claim with regard to both the allegedly inadequate treatment received, and
the alleged delay in receiving a cast.
II.

Subjective Prong
To satisfy the subjective component of a deliberate indifference claim a plaintiff must

plausibly allege that Defendant “kn[e]w[] of and disregard[ed] 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.” Farmer v. Brennan,
511 U .S. 825, 834 (1994); see Salahuddin v. Goord, 467 F.3d at 280 (requisite mental state
“requires that … [defendant] act[ed] or fail[ed] to act while actually aware of a substantial risk that
serious inmate harm [would] result.”) (internal quotation marks and citations omitted). Thus, the
mental state required is akin to “recklessness” in criminal law. Phelps v. Kapnolas, 308 F.3d 180,
186 (2d Cir. 2002). The Court notes that simple negligence, or inadvertent failure to provide
adequate medical care, even if it amounts to medical malpractice, is not enough to plausibly allege
deliberate indifference. Pabon v. Wright, 459 F.3d 241, 248 at *10 (2d Cir. 2006); see also
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (noting that “negligent malpractice does
not state a claim of deliberate indifference.”); See Torres, 2005 WL 2372741, at 3 (“At most,
Defendant might be accused of negligence in failing to order an x-ray of Plaintiff’s ankle, but ...
simple negligence, even if it amounts to medical malpractice, does not establish deliberate
indifference.”).

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Plaintiff alleges that Defendant Sommer was aware of his fall and broken ankle, but failed
to recommend proper medical treatment in the form of a cast. (See, e.g., Pl. Opp. at 12.) Plaintiff
also argues that Defendant Sommer was deliberately indifferent because he was not treated until
six days after an x-ray revealed his ankle was fractured, and nine-days after the incident. This
conclusory assertion does not indicate that Sommer had the requisite culpable state of mind to
satisfy the subjective prong of a deliberated indifference claim. See Skyers v. Sommer, 12-CV3432, 2016 WL 4484241, at *14 (S.D.N.Y. Aug. 23, 2016) (finding that conclusory assertions that
defendant was deliberately indifferent because plaintiff was not treated for four days did not satisfy
the subjective prong of a Bivens claim); James v. Correct Care Solutions, 13-CV-0019 (NSR),
2013 WL 5730176, at *6 (S.D.N.Y. Oct. 21, 2013) (noting that even if plaintiff’s burn wounds
were untreated on multiple occasions over the course of three weeks, plaintiff needed to allege
more than a mere delay in treatment to make a plausible claim that defendant had a culpable state
of mind); see also Bell v. Jendell, 980 F. Supp. 2d 555, 562) (S.D.N.Y. Oct. 31, 2013) (dismissal
of deliberate indifference claim warranted where prisoners merely alleged a delay in the provision
of medication or treatment, but failed to allege that the delay was either intentional or reckless);
Crique v. Magill, 12-CV-3345 (PAC) (GWG), 2013 WL 3783735, at *3 (S.D.N.Y. July 9, 2013)
(dismissing claim where plaintiff failed to show that defendant “knowingly or intentionally”
delayed his treatment, and noting that “while delays in providing necessary medical care may in
some cases demonstrate deliberate indifference, the Second Circuit has reserved those instances to
cases when prison officials deliberately delayed care as a form of punishment, ignored a lifethreatening and fast-degenerating condition for three days or delayed major surgery for over two
years”) (internal quotation marks and citations omitted)). To the contrary, the medical records
incorporated by reference in Plaintiff’s complaint indicate that the Medical Unit was fairly

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attendant to his medical needs. Plaintiff merely disagrees with the course of treatment provided
by Sommer and Medical Unit staff; as previously indicated supra, at 9, as a matter of law,
disagreement over the course of treatment is insufficient to support a deliberate indifference claim.
Gantt, 2013 WL 865844, at *10 (“mere disagreement over the proper treatment does not create a
constitutional claim.”) (internal quotation marks and citations omitted). Furthermore, Plaintiff’s
own submissions indicate that Sommer was away on July 5, 2013; returned on July 9, 2013 and
reviewed the records on that same day; and, that Plaintiff received his cast on that very same date.
(See ECF No. 61 at 33, 35.)
Construing the Amended Complaint in the light most favorable to Plaintiff, he alleges no
facts that suggest that Sommer was aware of his medical needs and consciously disregarded a
substantial risk of serious harm to his health. Nor does he allege any conduct that could be deemed
to reach the extreme level equivalent to criminal recklessness. As such, Plaintiff has failed to
allege sufficient facts to satisfy both the subjective and objective prongs. Accordingly, Plaintiff
has not alleged a plausible claim of deliberate indifference. 6
II.

Qualified Immunity
Given the Amended Complaint fails to state a claim for a violation of Plaintiff’s

constitutional rights, Sommer is “qualifiedly immune to suit from the Bivens claim”. Skyers v.
Sommer, 12-CV-3432, 2016 WL 4484241, at *6 (S.D.N.Y. Aug. 23, 2016). The qualified
immunity doctrine protects federal and state officials from suit for acts undertaken in their official
capacity if “(1) their conduct does not violate clearly established constitutional rights, or (2) it was
objectively reasonable for them to believe their acts did not violate those rights.” Id. (citing
Martinez v. Simonetti, 202 F.3d 625, 633-34 (2d Cir. 2000)). As such, “the qualified immunity
6

Given Plaintiff fails to plausibly allege a Bivens claim against Defendant, the Court expresses no opinion as to
whether Plaintiff would have adequately pled personal involvement on her part otherwise.

15

standard 'gives ample room for mistaken judgments by protecting all but the plainly incompetent
or those who knowingly violate the law.'" Id. (citing Hunter v. Bryant, 502 U.S. 224, 229 (I 991)).
Plaintiff has not plausibly alleged conduct that violated any established constitutional right, or that
Defendant's actions were objectively unreasonable. As such, Sommer is also entitled to qualified
immunity. 7
CONCLUSION

For the foregoing reasons, the Defendant's motion to dismiss is GRANTED.

Only

Plaintiffs FTCA negligence claim remains. The parties are directed to notify Magistrate Judge
McCarthy of this decision. The Clerk of Court is respectfully directed to terminate the motion at
ECFNo. 62.
Dated:

July 28, 2017
White Plains, New York

SO ORDERED:

7

Plaintiff points to a series of actions against Sommer that \Vere, according to Plaintiff, "successfully dis111issed," as
proof of a "custom of indifference" in order to demonstrate So1nmer s personal involvement in "unconstitutional
practices." (See Pl. Opp. at 18.) Plaintiff acknowledges the appropriate legal standards to be applied to a Bil'ens
claim. (See id. at 6-13.) The Court has applied these standards to Plaintifrs Bivens claim, and finds Plaintifrs
remaining arguments with regard to a "culture of routine indifference," (see id. at 19), unavailing here.
1

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