Royal v. Annuci et al

Filing 40

OPINION AND ORDER re: 33 MOTION to Dismiss Complaint as against Estate of Dr. Goulding. filed by Rhonda Murray, Carl J. Koenigsmann, MD, Anthony Annuci, Kathleen Gerbing, Estate of Dr. Herbert Goulding, 16 MOTION to Dismiss < i>. filed by Rhonda Murray, Carl J. Koenigsmann, MD, Anthony Annuci, Kathleen Gerbing: Plaintiff Richard Royal, proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983, alleging that while he was incarcerated a t Otisville Correctional Facility ("Otisville"), defendants Anthony Annucci, Acting Commissioner of the Department of Corrections and Community Supervision ("DOCCS"); Carl J. Koenigsmann, M.D., Chief Medical Officer of DOCCS; Kath leen Gerbing. Superintendent of Otisville; Rhonda Murray, a Nurse Administrator at Otisville; and the Estate of Dr. Herbert Goulding, were deliberately indifferent to plaintiff's medical needs in violation of his rights under the Eighth Amendmen t of the United States Constitution. Before the Court are a motion to dismiss the complaint filed by defendants Annucci, Koenigsmann Gerbing, and Murray (Doc #16), and a separate motion to dismiss filed by defendant Estate of Dr. Goulding (Doc. #33). Defendants' motions to dismiss are GRANTED. The Clerk is instructed to terminate the motions (Does. ##16, 33). The Clerk is further instructed to mail a copy of this Opinion and Order to plaintiff. Plaintiff is granted leave to file an amended complaint as to the Regional Medical Director only. Plaintiff's amended complaint, if any, shall be filed by August 31, 2017, in accordance with Part Ill above. Plaintiff is directed to utilize the amended complaint form attached hereto. If plai ntiff fails to submit or chooses not to submit an amended complaint by August 31, 2017, the Court will dismiss this 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). (Signed by Judge Vincent L. Briccetti on 7/27/2017) Copies Mailed By Chambers. (jwh)

112

Copies14 cd
1
Chambr\
L. Briccettj

UNI FED STA FES DISTRICT COURT
SOT. TIIERN DISTRICT OF NEV YORK

:nt

RICHARD ROYAL
Plaintiff,

OPINION AND ORDER

I6CV6517(VB)
AN PHONY ANNL CCI,
CARL J. KOENIGSMANN, Mi).,
KATHLEEN GERBING,
RIIONDA MURRAY and
ESTATE OF I)R. HERBERT GOULDING
Defendants.

:

LSDC SDNY
DOCUMENT
ELECTRONICALLY FILED

DOC

#:____________________

FILED:

lj 2

7(

Briccetti, J.:
Plaintiff Richard Royal, proceeding pj se and in forma pauperis, brings this action under
42 U.S.C.

§

1983. alleging that while he was incarcerated at Otisville Correctional Facility

(OtisviIle”), defendants Anthony Annucci, Acting Commissioner of the Department of
Corrections and Community Supervision (DOCCS”); Carl J. Koenigsmann, M.I)., Chief
Medical Officer of DOCCS; Kathleen Gerbing. Superintendent of Otisville; Rhonda Murray, a
Nurse Administrator at Otisville; and the Estate of Dr. Herbert Goulding, were deliberately
indifferent to plaintiff’s medical needs in iolation of his rights under the Eighth Amendment of
the United States Constitution.
Before the Court are a motion to dismiss the complaint filed by defendants Annucci,
Koenagsmann Gerhing, and Murras (I)oc #16). and a separate motion to dismiss filed by
dLILOdant FstatL

‘

Di (JuuldinL (I)u

For the reasons set forth below, the motions to dismiss arc GRANTLD
The Court has subject matter jurisdiction under 28 U.S.C.

§

1331.

It

i

BACKGROUND
For purposes of ruling on a motion to dismiss, the Court accepts all factual allegations of
the complaint as true, and draws all reasonable inferences in plaintiff’s fievor.
On April 28,2014, plaintiff suffered a “crushing and tearing” injury to his left palm near
his thumb while working as a porter at Otisville. (Compl. ¶1). Plaintiff was examined by a
nurse who cleaned and bandaged plaintiff’s wound. Plaintiff continued to experience pain in his
hand while the injury healed.
On June 30,2014, plaintiff reported to sick call to address the ongoing pain he was
experiencing in his hand. Plaintiff was examined by Dr. Goulding, who ordered x-rays and
prescribed 600 milligrams of ibuprofen to plaintiff. (Compl. 14).
On July 30, 2014, an x-ray was performed on plaintiff’s hand, which did not reveal
evidence of an injury that warranted further attention. Nonetheless, plaintiff continued to
experience pain and “gradual stiffness” in his hand. (Compi. ¶ 6).
On October 6, 2014, plaintiff reported to sick call due to ongoing pain and swelling in his
hand. Plaintiffwas examined by non-party Dr. R. Ferdus, who recommended that plaintiff see
an orthopedic surgeon. This referral was denied by the Regional Medical Director of DOCCS.
Instead, plaintiff was referred to physical therapy.
On January 2, 2015, plaintiff began physical therapy, which continued until April 3,
2015, when plaintiff’s physical therapist recommended further evaluation by an orthopedic
surgeon. This time, the referral for plaintiff to see an orthopedic surgeon was approved.
On April 16, 2015, plaintiff was evaluated by an orthopedic surgeon. The surgeon
administered a cortisone shot and told plaintiff to come back in six weeks. On May 28, 2015,
plaintiff returned to the surgeon, still complaining of pain in his hand. The surgeon
recommended a surgical procedure, which was denied. Dr. Ferdus also attempted to obtain
2

approval of the recommended surgery from the Regional Medical Director, but was similarly
unsuccessful.
On July 27, 2015, plaintiff filed a grievance with the Inmate Grievance Resolution
Committee (“1GRC’) for what plaintiff claimed to be a lack of “proper medical attention.”
(Compl, at 4). The grievance was investigated by Nurse Rhonda Murray, who confirmed
surgery was recommended and denied.
On August 17, 201 5, plai ntiff was examined by Dr. Ferdus, who again recommended that
plaintiff see a surgeon. On September 3,2015, plaintiff was examined by a surgeon who
allegedly stated he “could not understand why the surgery was being denied.” (Compl.

¶

18).

Between September 11,2015, and December 1,2015, plaintiff made ten trips to sick call
concerning the ongoing pain and swelling in his hand.
On November 3, 2015, plaintiff filed another grievance with the IGRC, complaining that
Dr. Goulding had either misfiled or not filled out the forms for plaintiff to have surgery. On
November 22, 2015, after appealing to Superintendent Kathleen Gerbing, plaintiff’s surgery was
approved.
On March 9, 2016, plaintiff received hand surgery, twenty months after he first reported
to sick call and eleven months after it was first recommended.
DISCUSSION
I.

Standard of Review
In deciding a motion to dismiss under Rul.e I 2(b)(6), the Court evalu.ates the sufficiency

of the complaint under the “two-pronged approach” announced by the Supreme Court in
licftv.1bal, 556 U.S. 662, 679 (2009). First, plaintifPs 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, “[wjhen there are
wellpleaded factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief: licrpyl bal, 556 U.S. at 679.
To survive a Rule 1 2()() motion, the allegations in the complaint must meet a standard
ofplausibility.” crofy1 bal, 556 U. at 678; Bell AtI, 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. lqbal, 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,” j,.
Because plaintiff is proceeding pg se, the Court must construe his submissions liberally
and “interpret them to raise the strongest arguments that they suggest.” Pabon v. Wright, 459
F.3d 241, 248 (2d Cir. 2006) (internal citation omitted). Applying the pleading rules
permissively is particularly appropriate when, as here, a

g plaintiff alleges civil rights

violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “Even in
apse 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 162, 170 (2d Cir.
2010) (internal citation omitted). Nor may the Court “invent factual allegations [plaintiffj has
not pled.”

..

II.

Analysis
A.

Personal Involvement of Annucci. Gerbin& Kosrn3nandN4r1ay

Defendants argue that Annucci, Gerbing, Koenigsmann, and Murray were not personally
involved in any alleged constitutional violation, and accordingly the complaint should be
dismissed as against them.
The Court agrees.
To state a claim under

§ 1983, a plaintiff must allege (I) the deprivation of a right

secured by the Constitution or laws of the United States (2) which has taken place under color of
state law” Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997). Plaintiff must also allege
defendants’ personal involvement in the claimed violation of plaintiffs rights. Provost v. City of
Newburgh, 262 F.3d 146, 154 (2d Cir. 2001). In other words, a plaintiff bringing a Section 1983
claim “must plead that each Government-official defendant, through the official’s own individual
actions, has violated the Constitution.” Ashcroft v. lgbal. 556 U.S. at 676.
A supervisor’s personal involvement in an alleged constitutional violation may be
established if:
“(l)actual direct participation in the constitutional violation, (2) failure to remedy a wrong
after being informed through a report or appeal, (3) creation of a policy or custom that
sanctioned conduct amounting to a constitutional violation, or allowing such a policy or
custom to continue, (4) grossly negligent supervision of subordinates who committed a
violation, or (5) failure to act on information indicating that unconstitutional acts were
occurring.”
Richardson v. Goord. 347 F.3d 431, 435 (2d Cir. 2003) (internal quotation omitted).

After A
oft Ibal, district courts within the Second Circuit have been divided as to
whether claims alleging personal involvement under the second, fourth. and fifth of these factors
remain viable. Seeg pv jtofNewYprk, 2016 WL 916424, at *15 (S.D.N,Y. Mar. 7,
201 6) (collecting cases), The Second Circuit has yet to resolve this dispute.

With respect to Annucci, plaintiff argues that as Acting Commissioner of DOCCS,
Annucci should have eventually become aware of plaintiffs issues receiving medical treatment
through the chain of command. (PL’s Affirm. at 3). Plaintiff further argues Annucci is liable
because he ‘is responsible for all aspects of the smooth running of[DOCCS},” (Compl. at 5).
However, ‘mere linkage in the prison chain of command” is insufficient to implicate a state
commissioner of corrections or a prison superintendent in a

§

1983 claim.’ Richardson v.

Goord. 347 R3d at 435, Moreover, plaintiff alleges no facts indicating Annucci would have
learned of plaintiffs issues with his hand. Seegj.gy,,v.pjgiin, 857 F. Supp. 214, 218
(N,D,N.Y, 1994). affd in part. rev’d in part sub nom., Sealey v. Giltner, 116 F,3d 47 (2d Cir,
1997) (Commissioner of DOCCS ‘not under the obligation to review every one of the thousands
of cases dealt with” by those underneath him).
Accordingly, plaintiff fails to allege Annucci was personally involved in any alleged
constitutional violation.
As to Gerbing, plaintiff argues Gerbing should have become aware of plaintiffs issues
from reading plaintiffs grievance. (Compl. at 5). However, the mere fact that Gerbing received
plaintiffs grievance is not itself enough to involve her in any alleged constitutional violation.
See Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002) (“The fact that Superintendent
Greiner affirmed the denial of plaintiffs grievance—which is all that is alleged against him—is
insufficient to establish personal involvement or to shed any light on the critical issue of
supervisory l.iabi.Iity, and more particularly, k.nowledge on the part of the defendant.”) (internal
quotation omitted).
Moreover, as with Annucci, plaintiff cannot establish Gerbing’s liability solely based on
her position in the DOCCS hierarchy. See Richardson v. Goord, 347 F.3d at 435.

6

Additionally, Gerbing approved xrays for plaintiff upon receiving plaintiff’s July 17,
2014, grievance, and eventually approved plaintiff’s November 3. 2015, grievance, which
resulted in plaintiffs surgery. (Compl. at 4—5) Accordingly, even if Gerbing was aware of
plaintifPs problem, she remedied the existing wrong and was thus not personally involved in any
alleged constitutional violation. See Richardson v. Goord, 347 F,3d at 435 (personal
involvement requires a “failure to remedy a wrong”) (emphasis added).
Plaintiff also argues Gerbing passed off the grievances to her supervisors, but this is
precisely the procedure Gerbing had a duty to follow, See 7 N.Y.C.R.R.

§

701 .5(d)(1) (any

appeals of a grievance from the Superintendent go to the Central Office Review Committee).
Accordingly, because plaintiff fails to allege Gerbing was personally involved in any
alleged constitutional violation, plaintiffs claims against her must be dismissed.
Likewise, plaintiff fails to allege the personal involvement of Dr. Koenigsmann. The
Second Circuit has held a Chief Medical Officer’s receipt of a prisoner’s letters is insufficient to
establish personal liability. Goris v. Breslin, 402 F. App’x 582, 584 (2d Cir. 2010) (summary
2
order). Moreover, plaintiff does not even allege Dr. Koenigsmann received any of plaintiffs
grievances, nor should any assumption be made that Dr. Koenigsmann knew of plaintiffs
situation. Much like Annucci, Dr. Koenigsmann is “not under an obligation to personally
review, investigate and respond to every one of the thousands of letters dealt with by his staff.”
Goris v. Breslin, 2009 WL 1955607, at *7 (E.D.N.Y. July 6,2009), affd, 402 F. App’x 582 (2d
Cir. 2010) (summary order). In fact, plaintiff specii.ically alleges it was the R egional Medical
Director—who is not a named defendant—who denied plaintiff’s requests for medical assistance.

2

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).
7

(Compl.

¶J 10, 16). Plaintiff, therefore, has not alleged that Dr. Koenigsmann was personally

involved in any alleged constitutional violation. g Moore v. Wright, 2008 WL 41 86340, at *5
(N.D.N,Y. Sept. 10, 2008) (finding the Chief Medical Officer not involved when Regional
Medical Director affirmed previous administrative denials).
Finally, as to defendant Murray, plaintiff first concedes “he does not have a valid
argument to put [Nurse Administratorj Murray in the same area of influence as the other
defendants.” (Pl.’s Affirm,

¶ 5). Plaintiff alleges Murray investigated plaintiffs grievance

(Compl. at 4), but “[djistrict courts in this circuit have routinely held that a nurse administrator
who investigates a grievance does not become personally involved in the underlying
constitutional violation.” Williams v. Smith. 2015 WL 1179339, at *8 (N.D.N.Y. Mar. 13, 2015)
(collecting cases). Moreover, plaintiff states no additional facts connecting Murray with the
allegedly inadequate medical care he received.
Accordingly, plaintiff fails to allege Murray was personally involved in any alleged
constitutional violation.
B.

Deliberate Indifference of Dr. Goulding

Defendant Estate of Dr. Goulding argues plaintiff has called to plead Dr. Goulding’s
deliberate indifference to plaintiffs serious medical needs.
The Court agrees.
To assert a claim foi’ constitutionally inadequate medical care under the Eighth
Arnendm.ent’s ban against cruel and unusual punishment, plaintiff must allege “acts or orn.issions
sufficiently harmful to evidence deliberate indifference to serious medical needs.” .Estelle v.
Gamble, 429 U.S. 97, 106 (1976). This test has both an objective and a subjective component:
plaintiff must plead facts showing (i) the alleged deprivation of medical care is “sufficiently

8

serious.” and (ii) the officials in question acted with a “sufficiently culpable state of mind.”
Salahuddin v, Goord, 467 F.3d 263, 27980 (2d Cir. 2006).
The objective component has two subparts. “The first inquiry is whether the prisoner
was actually deprived of adequate medical care,” keeping in mind that only “reasonable care” is
required, Salahuddin v. Goord, 467 F.3d at 279 (citing Farmer v. Brennan, 51 1 U.S. 825, 839—
40 (1970)). “Second. the objective test asks whether the inadequacy in medical care is
sufficiently serious” by examining “how the offending conduct is inadequate and what harm, if
any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin v. Goord, 467 F.3d
at 280 (citing HeWing v. McKinney, 509 U.S. 25, 32—33 (1993)).
In determining whether an alleged injury is a “serious” medical condition, “factors that
have been considered include [tihe existence of an injury that a reasonable doctor or patient
would find important and worthy of comment or treatment; the presence of a medical condition
that significantly affects an individual’s daily activities; or the existence of chronic and
substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation
omitted). In cases challenging the adequacy of the medical treatment that was given, “the
seriousness inquiry is narrower. For example, if the prisoner is receiving ongoing treatment and
the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness
inquiry ‘focuses on the challenged delay or interruption in treatment rather than the prisoner’s
underlying medical condition alone.” Salahuddin v. Goord, 467 F.3d at 280 (quoting Smith v.
çgpç,pter, 316 F,3d 178, 185 (2d Cir. 2003)).
The subjective component requires a showing that defendants were aware of plaintiffs
serious medical needs and consciously disregarded a substantial risk of serious harm.
Salahuddin v. Goord, 467 F.3d at 280. “[Tihe charged official must act with a sufficiently

9

culpable state of mind.” Id. (quoting Wilson

Seiter. 501 U.S. 294. 300 (1991)). It is well

.

established that “negligence, even if it constitutes medical malpractice. does not, without more,”
give rise to a constitutional claim,

ggy,,,rmstroflg. 143 F.3d at 703.

Plaintiff has alleged a sufficiently “serious medical condition” within the meaning of the
deliberate indifference standard. Plaintiff alleges he “receied a crushing and tearing injury to
[hisi left palm near [his] thumb joint” (Compl.

‘

I), and states that surgery later resealed a

fracture in his hand. (Pl.’s Affirm. ¶ 3). Plaintiff further alleges he suffered consistent and
chronic pain that produced “gradual stiffness” and swelling in his hand. (Compl. ¶i 6,9, 19).
Courts in this circuit have found hand injuries, including broken bones, to constitute a
sufficiently serious medical injury.

,

Youngblood v. City of New York, 2016 WL

3919650. at *4 (S.D.N.Y. June 27, 2016); Viningv. Dep’t of Corr., 2013 WL 2036325, at *5
(S.D.N.Y. Apr. 5,2013) (collecting cases); see also Paul v. Bailey. 2013 WL 2896990, at *9
(S.D.N.Y. June 13. 2013) (significant chronic pain may constitute a serious medical condition).
Moreover, plaintiffs second facility doctor, physical therapist, and surgeon all allegedly
recommended surgery, which tends to support a claim that plaintiff’s hand injury was in fact
serious. Brock v. Wright, 3 1 5 F.3d 1 58, 162 (2d Cir. 2003) (“[W]hether a reasonable doctor.
would perceive the medical need in question as important and worthy of comment or treatment”
is a factor weighing in favor of satisfaction of the objective prong of an Eighth Amendment
claim) (internal quotation marks omitted).
Plaintiff does not. however, adequately allege that Dr. Goulding acted with deliberate
indifference to his serious medical needs—. plaintiff fails to plead the subjective prong of a
deliberate indifference claim. Plaintiff claims Dr. Goulding treated plaintiff by ordering xrays
and prescribing pain killers, neither of which relieved plaintiffs lingering pain. (Pl.’s Affirm.

10

¶

3). Plaintiff contends that because Dr. Goulding prescribed ineffectual treatment—x-rays that
did not discover the fracture and medication (ibuprofen) that is allegedly dangerous—Dr.
Goulding’s medical care of plaintiff was inadequate, which establishes deliberate indifference.
(1d.J3,6).
However, the fact that these treatments were allegedly ineffective does not make them
constitutionally inadequate.
First, that plaintiff may have preferred a different method of treatment does not render the
chosen method constitutionally inadequate. Chance v, Armstrong, 143 F.3d at 703 ([MJere
disagreement over the proper treatment does not create a constitutional claim. 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.”). This is also true where two medical
professionals prescribed different methods oftreatment. Williams v. M.C.C. Inst., 1999 WE
179604, at *7 (S.D.N.Y Mar. 31, 1999) (“[A] difference of opinion.. among medical
.

professionals themselves[] as to the appropriate course of medical treatment does not in and of

itself amount to deliberate indifference.”). Thus, the fact that Dr. Ferdus recommended a
different course of action does not necessarily support plaintifEs claim that Dr. Goulding
provided constitutionally inadequate medical care.
Second. while it may be true that the x-rays did not reveal the fracture in plaintiff’s hand,
and these xray results may well have informed Dr. Goulding’s allegedly ineffectual treatment
(i.e.. prescribing pain medication rather than surgery), “a delay in treatment based on a bad
diagnosis or erroneous calculus of risks and costs, or a mistaken decision not to treat based on an
erroneous view that the condition is benign or trivial or hopeless

11

.

.

.

will not constitute deliberate

indifference.”

ane x. Borawski. 64 F. Supp. 3d 473. 493 (W.D.N.Y, 2014) (citing Harrison v.

Barkley, 219 F.3d 132, 139 (2d Cir, 2000)).
Third, b’ his own account, plaintiff was examined and treated by Dr. Goulding, and
plaintiff has alleged no facts from hich it could be inferred that Dr. Goulding knew of and
disregarded “an excesshe risk to [plaintifrsj health or safety.” See Farmer v. Brennan, 511 U.S.
at 837.
Finally, plaintiff has alleged at most that Dr. Goulding was negligent in his initial
treatment of plaintiff, specifically by not discovering the fracture, prescribing allegedly
dangerous medication (P1.’ s Affirm. ¶j 2—3). and submitting or otherwise misfiling forms that
would hae enabled plaintiff to receive surgery. (Compi. at 5). However, as noted above, mere
negligence or even medical malpractice does not meet the threshold for deliberate indifference.
Chance v. Armstrong. 143 F.3d at 703; see also Estelle v. Gamble, 429 U.S. at 106.
Accordingly, plaintiff’s claims against Dr. Goulding must be dismissed.
Ill.

Leave to Amend
A district court ordinarily should not dismiss a p g complaint 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. Moritsjigi, 222 F.3d 99, 112
(2d Cir. 2000) (quoting Gomez v. USAA Fed. Say. Bank. 171 F.3d 794. 795 (2d Cir. 1999)). A
court must grant leave to amend “unless the court can rule out any possibility, howeer unlikely
it might be, that an amended complaint would succeed in stating a claim.” Gomez v. USA\ Fed.

Say. Bank, 171 F.3d 794, 796 (2d Cir. 1999).
Here, the complaint. een liberally construed, does not contain allegations suggesting
plaintiff has valid deliberate indifference claims against any of the named defendants that

12

plaintifi has merely inadequately or inartfully pleaded” and therefore should be given a chance
to reframe” Cuoco v Moritsugu, 222 F3d at 112. On the contrary, the Court finds that
repleading would be futile because the problems with plaintiffs claims are substantive, and
supplementary or improved pleading will not cure the deficiencies of the complaint.

j.

Accordingly, the Court declines to grant plaintiff leave to amend his complaint against the
named defendants.
However, the Court sua sponte grants plaintiff leave to file an amended complaint to
assert a claim against the Regional Medical Director. Should plaintiff choose to file an amended
complaint, plaintiff is directed to include in his amended complaint (i) the identity of the
Regional Medical Director, including his or her name and address, and (ii) all relevant facts
plaintiff may truthfully allege against the Regional Medical Director. To be clear, plaintiff may
not attempt to re-plead his claims against any other defendant.
Because the amended complaint will completely replace the original complaint, plaintiff
should include in the amended complaint all information necessary to state a claim against the
Regional Medical Director.
If plaintiff chooses to amend, the deadline to submit his amended complaint containing
all of his allegations against the Regional Medical Director is August 31, 201 7.
The Court expresses no opinion as to whether an amended complaint naming the
Regional Medical Director would survive a motion to dismiss.

13

CONCLUSION
Defendants’ motions to dismiss are GRANTED.
The Clerk is instructed to terminate the motions (Does. ##16, 33).
The Clerk is further instructed to mail a copy of this Opinion and Order to plaintiff.
Plaintiff is granted leave to file an amended complaint as to the Regional Medical
Director only. Plaintitis amended complaint, if any, shall be filed by August 31, 2017, in
accordance with Part Ill above. Plaintiff is directed to utilize the amended complaint form
attached hereto. If plaintiff fails to submit or chooses not to submit an amended complaint by
August 31, 2017, the Court will dismiss this 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
ofan appeal. See Coppedge v United States, 369 U.S. 438, 444-45 (1962).
Dated: July 27, 2017
White Plains. NY
SO ORDERED:

Vincent L, Briccetti
United States District Judge

14

_______

___________________________________

UNiTED ST\ri Diiiicr CoJRr
SOLTIIFR\ Dii RIC I UF XF\ YoRk

Write

the

fuli

To no

name of each plaintiff

f

ed out by C!erc Ofce

AM ENDED

COMPIAINT

-against-

(Prisoner)
Do

YOU

2
want a juiy trial
Z No

Yes

Write the full name of each defendant. If you cannot fit the
names of all of the defendants in the space provided, please
write “see attached” in the space above and attach an
additional sheet of paper with the full list of names. The
names listed above must be identical to those contained in
Section

IV.

NOTICE
The

public can access electronic court files. For privacy and security reasons, papers

filed

full
full name of a person known to be a minor; or a complete financial account
number. A filing may include only: the last four digits of a social security number; the year of
an individual’s birth; a minors initials; and the last four digits of a financial account number
See Federal Rule of Cvl Procedure 5 2
with the court should therefore
birth date; the

not

contain: an individual’s

full

social security number or

L

LEGAL. BASIS FOR CLAIM

State below the federal legal basis for your claim, if known. This form is designed pnmarily for
prisoners challenging the constitutionality of their conditions of confinement; those claims are
often brought under 42 U S C § 1983 (against state, county, or municipal defendants> or in a
“8k/ens” action (against federal defendants).

E \ iolation of my tederal constitutional rights

IL

PLAINTIFF INFORMATION

Each plaintiff must provide the following information, Attach additional pages if necessary

First Name

Last Name

Middle Initial

State any other names (or different forms of your name) you have ever used, including any name
you have used in previously filing a lawsuit.

Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency
and the ID number (such as your DIN or NYSID) under which you were held)

Current Place of Detention

Institutional Address

County, City

III.

State

PRISONER STATUS

Indicate below whether you are a prisoner or other confined person:

El Tm,n..igra.tion detainee
El Convicted and sentenced prisoner
El Other:

Zip Code

IV.

DEFENDANT INFORMATION

To the best of your ability, provide the following information for each defendant. If the correct
information is not provided, it could delay or prevent service of the complaint on the defendant.
Make sure that the defendants listed below are identical to those listed in the caption. Attach
additional pages as necessary.
I)etcndart I
First Name

Shield

Last Name

Current Job Title (or other identifying information)
Current Work Address
State

County, City

Zip Code

Defendant 2:
First Name

Shield It

Last Name

Current Job Title (or other identifying information)
Current Work Address
State

County, City

Zip Code

Detr’ndant 3:
First Name

Shield It

Last Name

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

[)efendant 4:
First Name

Shied

Last Name

Current Job Title (or other identifying information)
Current Work Address
County, City

State

Zip Code

V.

STATEMENT OF CLAIM

Place(s) ot occurrence:

Date(s of occurrence:

FACTS:
State here briefly the FACTS that support your case. Describe what happened, how you were
harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach
additional pages as necessary.

Page 4

INJURIES:
If you were injured as a result of these actions, describe your injuries and what medical treatment,
if any, you required and received.

VI.

RELIEF

State briefly what money damages or other relief you want the court to order.

VII.

PLAINTIFF’S CERTIFICATION AND WARNINGS

By snnint below, I certify to the best of my knowledge, information, and belief that: 1) tIie
complaint is not being presented for an improper purpose isuch as to harass, cause unnecessary
delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law
or by a nonfrivolous argument to change existing law; (3) the factual contentions have
evidentiary support or, if specifically so identified, will likely have evidentiarv support after a
reasonable opportunity for further investigation or discovery: and (4) the complaint otherwise
complies with the requirements of Federal Rule of Civil Procedure 11.

I understand that it I file three or more cases while I am a prisoner that are dismissed as
wino aiocrs status in
frivolous, malicious, or for failure to state a claim, I may he denied
future cases.
I also understand that prisoners must exhaust administrative procedures before filing an action
in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be
dismissed if I have not exhausted administrative remedies as required.
I agree to provide the Clerk’s Office with any changes to my address. I understand that my
failure to keep a current address on file with the Clerk’s Office may result in the dismissal of my
case.
Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to
proceed without prepayment of fees, each plaintiff must also submit an IFP application.

Plaintiff’s Signature

Dated
First Name

Last Name

Middle Initial

Prison Address
County, City

State

Zip Code

Date on whch am delivering this comolaint to prison authoritms for mailing: