Stuart v. Recktenwald et al

Filing 31

OPINION & ORDER: the Plaintiff's motion to withdraw defendants McKinney and Recktenwald is GRANTED; Defendants' motion to dismiss is GRANTED; and Plaintiff's claims against the Defendants are dismissed in accordance with this opinion. The Court respectfully directs the Clerk to terminate the motions at ECF Nos. 23 and 25 and close the case. (Signed by Judge Nelson Stephen Roman on 11/6/2015) (lnl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LEROY A. STUART,
Plaintiff,
14 cv 7389 (NSR)

-againstMONICA RECKTENW ALD, WARDEN; DR. D.
SOMMER, CD-MD; C.L. MCKINNEY, HAS; MR.
KNIBBS, PARAMEDIC; MR. TARALLO, PA,

OPINION & ORDER

Defendants.
NELSONS. ROMAN, United States District Judge:
Leroy Stuart ("Plaintiff') brings this action against defendants Monica Recktenwald,
Diane Sommer, Chester McKinney, Jacob Knibbs, and Daniel Tarallo for deliberate indifference
to his medical needs. Before the Coutt are the Plaintiffs motion to withdraw certain
defendants and the Defendants' motion to dismiss. Plaintiff has not submitted opposition to
the Defendants' motion. For the following reasons, Plaintiffs motion to withdraw defendants
and Defendants' motion to dismiss are GRANTED.
PLAINTIFF'S MOTION TO WITHDRAW DEFENDANTS

As a preliminary matter, Plaintiff moved pursuant to Rule 12(b)(l) of the Federal
Rules of Civil Procedure to withdraw defendants Monica Recktenwald and C.L. McKinney.
The Government consented to Plaintiffs motion. (See Defendants' Reply Memorandum of
Law in Further Suppo1t of Defendants' Motion to Dismiss the Complaint, ECF No. 29, at 2.)
The Court therefore grants Plaintiffs motion to withdraw defendants Recktenwald and
McKinney, and the instant motion to dismiss will be decided with regards to defendants Diane
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and Daniel Tarallo (collectively, "Defendants").

BACKGROUND
The following facts are derived from the Complaint filed by Plaintiff and Exhibits B-E
to the declaration of Stephanie Scannell-Vessalla (Exhibits B-E, ECF Nos. 27:2-5), Staff
Attorney at the Consolidated Legal Center in New York, NY, submitted by Defendants in
support of their motion to dismiss. Exhibits B-E are copies of Plaintiff’s administrative
remedies and the Bureau of Prisons’ (“BOP”) responses thereto. 1
Plaintiff is an inmate at the Federal Correctional Institute in Otisville, NY. (Compl. §
III.) During his incarceration, Plaintiff developed health issues for which he sought medical
care. (Id. ¶¶ 1-2.) Specifically, Plaintiff was bleeding from his rectum. (Id. ¶ 1.) On February
28, 2014, Plaintiff was triaged for his condition. (Id.) Plaintiff then attended a sick call at
Health Services on March 3, 2014, complaining of acute pain and discharge of blood from his
rectum. (Id. ¶ 2.) At this visit, defendant Knibbs (a paramedic) assisted Plaintiff and informed
Plaintiff that he would be placed on a “call-out” and he should have a scheduled doctor visit
within four to seven days. (Id. ¶ 3.)
As of March 21, 2014, Plaintiff had yet to see a doctor or be scheduled for a visit so he
submitted a complaint in the form of an Informal Resolution – the first step of the BOP’s

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The Court may properly consider Plaintiff’s administrative submissions as well as the responses
thereto because Plaintiff incorporated them into the Complaint by reference. Specifically, paragraphs 4-11 of the
Complaint describe, in detail, Plaintiff’s attempts to remedy the situation and the BOP’s responses. McDowall v.
Metro. Corr. Ctr., No. 08-CIV-8329 (BSJ), 2010 WL 649744, at *7 (S.D.N.Y. Feb. 22, 2010) (citing Gregory v.
Daly, 243 F.3d 687, 691 (2d Cir.2001)) (“The Court may consider the administrative remedies attached to the
Johnson Declaration on this motion to dismiss without converting it into a motion for summary judgment
because Plaintiff's administrative remedies and the BOP's responses have been incorporated into the Complaint
by reference.”) See also Lockwood v. Fed. Bureau of Prisons, No. 13 CIV. 8104 ALC, 2015 WL 4461597, at *2
(S.D.N.Y. July 21, 2015) (considering evidence regarding BP-8’s because it was incorporated into the complaint
by reference). Therefore, the Court will not convert the instant motion into a motion for summary judgment, and
Plaintiff’s unsigned affidavits need not be considered because they are not “written instrument[s] attached to the
complaint, statements or documents incorporated into the complaint by reference, [or] documents possessed by
or known to the plaintiff and upon which the plaintiff relied in bringing the suit.” Manley v. Utzinger, No. 10
Civ. 2210 (LTS)(HBP), 2011 WL 2947008, at *1 n.1 (S.D.N.Y. July 21, 2011).

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remedial scheme. 2 (Id. ¶ 4.) In response to Plaintiff’s Informal Resolution, McKinney
acknowledged that Plaintiff had yet to be seen by a doctor and scheduled him for a call-out on
April 3, 2014. (Id. ¶¶ 5-6.) Plaintiff was not placed on call-out on April 3 nor was he seen by
any doctor at that point. (Id. ¶ 6.) The day after this failed appointment, Plaintiff filed a BP-9,
claiming he had been denied medical treatment. (Id. ¶ 7.) Throughout April and May, Plaintiff
exhausted his administrative remedies by submitting complaints to the appropriate
administrators and appealing unfavorable decisions. (See Id. ¶¶ 7-11.)
Plaintiff was evaluated by a doctor for his condition on April 7, 2014 and April 22,
2014. (Exhibit E at 3.) Plaintiff was advised to take over-the-counter medication and adjust
his diet. (Id.) In addition, Plaintiff was seen by gastroenterology on May 23, 2014, where the
staff recommended Plaintiff see a gastroenterologist and undergo a colonoscopy. (Id. at 1-2.)
As of the date of the final administrative appeal—June 13, 2014—Plaintiff was awaiting
scheduling of his gastroenterology appointment. (Id.) Plaintiff alleges that many of his
scheduled appointments during the April-June time period were cancelled and that he has
endured excruciating pain while awaiting treatment of his medical condition. (Id. at 1.)
STANDARD OF REVIEW
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)

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An inmate’s first step of administrative relief requires him or her to “present an issue of concern
informally to staff, and staff shall attempt to informally resolve the issue before an inmate submits a Request for
Administrative Remedy.” 28 C.F.R. § 542.13(a). The staff must complete its informal resolution within 20 days.
See 28 C.F.R. § 542.14(a). The inmate must then submit “a formal written Administrative Remedy Request, on
the appropriate form (BP–9),” within “20 calendar days the date on which the basis for the Request occurred.”
28 C.F.R. § 542.14(a). The BP–9 is submitted to the inmate's institution. See 28 C.F.R. § 542.14(c)(4). If the
inmate is dissatisfied with the institution's response to his BP–9, he “may submit an Appeal on the appropriate
form (BP–10) to the Regional Director within 20 calendar days of the date of the Warden signed the response” to
his BP–9. 28 C.F.R. § 542.15(a). And an “inmate who is not satisfied with the Regional Director's response may
submit an Appeal on the appropriate form (BP–11) to the General Counsel within 30 calendar days of the date
the Regional Director signed the response.” Id. See generally Macias v. Zenk, 495 F.3d 37, 42 (2d Cir.2007)
(summarizing BOP scheme). Plaintiff has exhausted all of these requirements.

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for failure to state a claim upon which relief can be granted, a complaint must include
“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 Atlantic Corp. v. Twombly,
550 U.S. 554, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
“When there are well-pleaded factual allegations [in the complaint], a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Iqbal, 556 U.S. at 679. The court must “take all well-plead factual allegations as true,
and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff[
].” Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth does not
extend to “legal conclusions, and threadbare recitals of the elements of the cause of action.”
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. 662) (internal
quotation marks omitted). A plaintiff must provide “more than labels and conclusions” to
show he is entitled to relief. Twombly, 550 U.S. at 555.
Where a Plaintiff fails to oppose a motion to dismiss a complaint for failure to state a
claim, automatic dismissal is not merited. 3 In such a situation, “the sufficiency of a complaint
is a matter of law that the court is capable of determining based on its own reading of the
pleading and knowledge of the law.” McCall v. Pataki, 232 F.3d 321, 322–323 (2d Cir. 2000).
As with all Rule 12(b)(6) motions, on an unopposed motion to dismiss, a court is to “assume

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The Court acknowledges the difficulties the pro se Plaintiff would have faced had this motion been
converted into one for summary judgment; specifically, Plaintiff had trouble, without the benefit of discovery,
gathering relevant evidence (i.e., affidavits) to support his claims. However, Plaintiff’s claim that he is
“precluded from arguing in opposition to the motion to dismiss [and is] hamstrung in overcoming its rule 12
motion” is unfounded. (See ECF No. 24 at p. 2.) Plaintiff was free to submit legal arguments in opposition of
Defendants’ motion to dismiss but failed to do so. As noted in the discussion, the Court will nonetheless address
the merits of the motion.

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the truth of a pleading's factual allegations and test only its legal sufficiency.” Id. at 322. “If a
complaint is sufficient to state a claim on which relief can be granted on its face, the plaintiff's
failure to respond to a Rule 12(b)(6) motion does not warrant dismissal.” Accurate Grading
Quality Assur., Inc. v. Thorpe, No. 12 CIV. 1343 ALC, 2013 WL 1234836, at *5 (S.D.N.Y.
Mar. 26, 2013).
DISCUSSION
I.

Eighth Amendment
Plaintiff's present cause of action pursuant to 42 U.S.C. § 1983 relates to the

Defendants' alleged denial of medical care during the time that Plaintiff was incarcerated at
FCI-Otisville. “Because Section 1983 imposes liability only upon those who actually cause a
deprivation of rights, personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.” Blyden v. Mancusi, 186
F.3d 252, 264 (2d Cir. 1999) (citation and internal quotation marks omitted).
The Cruel and Unusual Punishments clause of the Eighth Amendment forms the basis
of a convicted prisoner’s claim that he or she is not being provided adequate medical care.
Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (citing Weyant v. Okst, 101 F.3d 845,
856 (2d Cir. 1996)). An Eighth Amendment claim of inadequate medical care requires a
demonstration of “deliberate indifference to [a prisoner's] serious medical needs.” Estelle v.
Gamble, 429 U.S. 97, 104 (1976).
To sustain a claim of deliberate indifference, Plaintiff must allege that (1) objectively,
the deprivation of adequate medical care was sufficiently serious, and (2) subjectively,
defendants acted with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834
(1994); Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006). “The objective component
requires that the alleged deprivation must be sufficiently serious, in the sense that a condition
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of urgency, one that may produce death, degeneration, or extreme pain exists.” Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citing Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir. 1996)) (internal quotation marks omitted). For the subjective prong, the official
charged with deliberate indifference must act with a “sufficiently culpable state of mind.” See
Wilson v. Seiter, 501 U.S. 294, 298 (1991). A prison official may only be found liable if “the
official knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511
U.S. at 837.
Medical malpractice does not rise to the level of a constitutional violation unless the
malpractice involves culpable recklessness—“an act or a failure to act by [a] prison doctor
that evinces a conscious disregard of a substantial risk of serious harm.” Hill, 657 F.3d at 123
(citing Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)) (internal quotation marks
omitted). See also Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (observing that
“negligent malpractice do[es] not state a claim of deliberate indifference”). “Because the
Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute
for state tort law, not every lapse in prison medical care will rise to the level of a
constitutional violation.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003).
As to each defendant, therefore, Plaintiff is required to allege personal involvement in
the actions demonstrating deliberate indifference to his medical needs. For the following
reasons, Plaintiff’s allegations of deliberate indifference on behalf of each defendant are
insufficient as a matter of law.
A.

Dr. Diane Sommer

Plaintiff wholly fails to reference defendant Sommer in both the Complaint and the
administrative requests for relief considered by this Court on the instant motion. Without
knowing what, if any, part Dr. Sommer played in providing medical care to Plaintiff, it is
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impossible for this Court to draw an inference that Dr. Sommer could be liable for the alleged
conduct. Because Plaintiff has not alleged personal involvement of Dr. Sommer, the claims
against Dr. Sommer should be dismissed. See Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir.
2006) (“[A] plaintiff must allege that the individual defendant was personally involved in the
constitutional violation”).
Even if the Court were to draw an inference that Dr. Sommer was personally involved
in the medical care and decisions laid out in the Complaint and Exhibits B-E, the record does
not support an inference that the alleged unreasonable delay or lack of proper medical care
was attributable to Dr. Sommer’s deliberate indifference to Plaintiff’s condition. Plaintiff was
seen at least three times by medical staff, who evaluated his condition and released him with
instructions for medication and treatment. Plaintiff was further instructed to undergo an
endoscopy—which was pending scheduling at the time of this filing—so the medical staff
could further diagnose and treat any illness Plaintiff may have. To the extent the Court could
draw an inference that Dr. Sommer was involved in this treatment, the Court nevertheless
finds that this is well within the range of reasonable medical care and certainly does not rise to
a level of deliberate indifference, which requires a culpability above mere negligence. The
Court therefore dismisses the claims against defendant Sommer.
B.

Daniel Tarallo

The Complaint similarly does not contain any allegations regarding defendant Tarallo.
Tarallo is, however, mentioned in the additional exhibits examined by the Court on the
motion. Specifically, in Exhibit D (Plaintiff’s BP-10), Plaintiff explains that Tarallo examined
him on April 7, 2014. As the Court has noted above, however, though Tarallo was personally
involved in Plaintiff’s medical treatment, Plaintiff has failed to allege any conduct that
establishes Tarallo was deliberately indifferent to his medical needs. On the contrary, Tarallo
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examined Plaintiff, recommended a course of treatment, and saw him again to follow up
(presuming the April 22 visit was also with defendant Tarallo). These actions are consistent
with reasonable medical treatment and do not demonstrate that Tarallo consciously
disregarded a substantial risk of harm. For these reasons, the Court finds that the claims
against defendant Tarallo must be dismissed.
C.

Jacob Knibbs

Defendant Knibbs, a paramedic, saw Plaintiff for his first visit on March 3, 2014. The
Complaint alleges that defendant Knibbs informed Plaintiff that he would be placed on callout and would be seen within four to seven days. Though Plaintiff was not seen until over a
month later, he does not allege—in the Complaint before this Court or any administrative
complaint—that this delay was in any way due to the reckless wrongdoing of defendant
Knibbs. Even if the Court were to find the delay from March 3 until Plaintiff’s first visit on
April 7 was unreasonable and attributable to misconduct on behalf of defendant Knibbs, this
could, at most, amount to negligence and would therefore not be sufficient to sustain a claim
of deliberate indifference. See Williams v. Wright, 162 F. App'x 69, 71-72 (2d Cir. 2006)
(internal citations omitted) (“To the extent the [] defendants are in any way responsible for
this delay—which is not clear from the record—the conduct, at worst, demonstrates
negligence, not deliberate indifference and, thus, cannot support an Eighth Amendment
claim.”).
II.

Qualified Immunity
“In this Circuit, a defendant may [raise qualified immunity in a pre-answer motion to

dismiss], but the defense is held to a higher standard than if it were asserted in a motion for
summary judgment.” Sledge v. Bernstein, No. 11 Civ. 7450(PKC)(HBP), 2012 WL 4761582,
at *4 (S.D.N.Y. Aug. 2, 2012); see also McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004)
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(a defense of qualified immunity in a motion to dismiss can only be sustained if plaintiff
cannot state any facts that would prevent the application of qualified immunity). "Qualified
immunity shields federal and state officials from money damages unless a plaintiff pleads
facts showing (I) that the official violated a statutory or constitutional right, and (2) that the
right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 131
S. Ct. 2074, 2080 (2011); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
("Government officials performing discretionary functions, generally are shielded from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known."). Because
Plaintiff has failed to allege a violation of a constitutional right, the Defendants are entitled to
qualified immunity.

CONCLUSION
For the foregoing reasons, the Plaintiffs motion to withdraw defendants McKinney
and Recktenwald is GRANTED; Defendants' motion to dismiss is GRANTED; and
Plaintiffs claims against the Defendants are dismissed in accordance with this opinion. The
Court respectfully directs the Clerk to terminate the motions at ECF Nos. 23 and 25 and close
the case.

fvDated:

November_!:!_, 2015
White Plains, New York

SO ORDERED:

NE~

United States District Judge

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