Clanton v. Killinger et al

Filing 20

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 7 Motion to Dismiss. Clerk of the Court is directed to terminate this action. Signed by Hon. Charles J. Siragusa on 9/18/13. (KAP)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

WILLIAM CLANTON,
Plaintiff,
DECISION AND ORDER
11-CV-6382 CJS

-vNURSE KILLINGER, et al.,
Defendants.

INTRODUCTION
William Clanton (“Plaintiff”), a prison inmate in custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”), is suing pursuant
to 42 U.S.C. § 1983, alleging that DOCCS staff violated his federal constitutional rights
by exhibiting deliberate indifference to his medical needs. Now before the Court is
Defendants’ motion to dismiss the complaint (Docket No. [#7]). The application is
granted.
BACKGROUND
Plaintiff is suing DOCCS medical staff employed at both Attica Correctional
Facility (“Attica”) and Wyoming Correctional Facility (“Wyoming”). The Complaint
maintains that in January, 2010, a nurse at Attica told him that, according to his medical
file, he had been diagnosed with cirrhosis of the liver some fourteen years earlier, in
1996, by medical staff at Elmira Correctional Facility (“Elmira”). The Complaint alleges
that Plaintiff became very distraught at this news, since he had never been told of that
diagnosis, and that he subsequently developed headaches, high blood pressure,
anxiety, depression and a skin rash, due to stress caused by the diagnosis.

The Complaint alleges that Plaintiff’s aunt attempted to obtain Plaintiff’s medical
records from Attica, but someone there denied her request. The Complaint indicates
that Plaintiff wrote to Defendant Dr. Laskowski, a doctor at Attica, about his cirrhosis
diagnosis and the anxiety, headaches, rash and high blood pressure, but that
Laskowski’s only response was to indicate that Plaintiff’s skin disorder was not related
to his other medical problems. The Complaint further indicates that in April 2010,
defendant Nurse Killinger notified him that he would be meeting with a clinician to
discuss his health problems.
The Complaint further contends that in November, 2010, Plaintiff met with
defendant “John Doe,” the Facility Health Director at Attica, who told him that he did not
actually have cirrhosis of the liver, and that the information concerning such a prior
diagnosis was mistaken.
Finally, the Complaint indicates that Plaintiff was subsequently transferred from
Attica to Wyoming, and that at Wyoming, defendant Nurse Mohring “did nothing”
concerning Plaintiff’s medical problems, and did not research the circumstances
concerning the conflicting cirrhosis diagnoses.
Liberally construing the Complaint which Plaintiff drafted pro se, it indicates that
he is presently unsure 1 about whether he actually has cirrhosis of the liver, since no
one has shown him medical records or testing data to confirm the absence or presence
of such disease. In this regard, it seems that Plaintiff contends that Defendants caused
him psychic harm by failing to give him a satisfactory explanation as to whether he has

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Plaintiff’s counsel insists that the Complaint indicates that Plaintiff actually has cirrhosis of the liver,
but the Court does not agree.

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a potentially life-threatening medical condition. Plaintiff further contends that
Defendants were deliberately indifferent to his serious medical needs, with regard to
both the cirrhosis diagnosis and the ensuing anxiety, depression, high blood pressure,
rash and headaches, by failing to treat him. Plaintiff sued Defendants in both their
official and individual capacities.
On March 27, 2012, Defendants filed a motion to dismiss (Docket No. [#7]),
which has three aspects. First, Defendants maintain that the “official capacity claims”
should be dismissed. Second, Defendants contend that the Complaint fails to allege
that they were personally involved in the alleged constitutional violation. And third,
Defendants argue that a mis-diagnosis is insufficient to establish a deliberateindifference medical claim.
On February 28, 2013, Plaintiff filed a memo of law in opposition to the motion to
dismiss. Such memo does not oppose the portion of the motion seeking dismissal of
the official capacity claims, and the Court therefore deems such claims abandoned.
Plaintiff maintains, however, that the Complaint sufficiently avers that Defendants were
personally involved in the alleged constitutional violations. Plaintiff also contends that
the Complaint adequately alleges that Defendants were deliberately indifferent to his
serious medical needs, in two ways. First, Plaintiff indicates that the Complaint states
that he in fact does have cirrhosis of the liver, and that Defendants failed to treat him for
that condition. Second, Plaintiff maintains that the Complaint adequately pleads that
Defendants failed to treat his skin rash, high blood pressure, headaches, anxiety and
depression.

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DISCUSSION
Defendants have moved to dismiss the complaint for failure to state a claim, and
the standard for such motions is well settled:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in
order to give the defendant fair notice of what the claim is and the
grounds upon which it rests. While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true (even if
doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65, 167 L.Ed.2d
929 (2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir.2007) (“To survive dismissal, the plaintiff must provide the grounds upon which
his claim rests through factual allegations sufficient ‘to raise a right to relief above the
speculative level.’ ”) (quoting Bell Atl. Corp. v. Twombly ) (footnote omitted).
When applying this “plausibility standard,” the Court is guided by “two working
principles”:
First, although a court must accept as true all of the allegations contained
in a complaint,2 that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice. Second, only a complaint
2

The Court must accept the allegations contained in the complaint as true and draw all reasonable
inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir.1999), cert. den.
531 U.S. 1052, 121 S.Ct. 657 (2000). Moreover, since Plaintiff is proceeding pro se, the Court is required to
construe his submissions liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir.1994).

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that states a plausible claim for relief survives a motion to dismiss, and
determining whether a complaint states a plausible claim for relief will be a
context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (citations and internal quotation marks
omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not shown—that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937,
1950 (2009) (citation omitted).
The Complaint purports to state 8th Amendment Adeliberate indifference@ medical
claims, and the law concerning such claims is clear:
In order to establish an Eighth Amendment claim arising out of inadequate
medical care, a prisoner must prove deliberate indifference to his serious
medical needs. This standard incorporates both objective and subjective
elements. The objective >medical need= element measures the severity of
the alleged deprivation, while the subjective >deliberate indifference=
element ensures that the defendant prison official acted with a sufficiently
culpable state of mind.
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. [T]he
Supreme Court [has] explained that the Eighth Amendment's prohibition
on cruel and unusual punishments encompasses the deliberate failure to
treat a prisoner's serious illness or injury resulting in the infliction of
unnecessary pain and suffering. Because society does not expect that
prisoners will have unqualified access to health care, a prisoner must first
make this threshold showing of serious illness or injury in order to state an
Eighth Amendment claim for denial of medical care. Similarly, a prisoner
must demonstrate more than an inadvertent failure to provide adequate
medical care by prison officials to successfully establish Eighth
Amendment liability. An official acts with the requisite deliberate
indifference when that official knows of and disregards an excessive risk
to inmate health or safety, a state of mind equivalent to the familiar
standard of >recklessness' as used in criminal law.
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Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003) (citations and internal
quotations omitted). Courts have repeatedly held that disagreements over treatment do
not rise to the level of a Constitutional violation. See, Chance v. Armstrong, 143 F.3d
698, 703 (2d Cir.1998) (AIt is well-established that mere disagreement over the proper
treatment does not create a constitutional claim.@). Similarly, negligence constituting
medical malpractice, without more, will not establish a constitutional claim. Id. (citation
omitted).
In the instant case, liberally construing Plaintiff’s complaint, he maintains that in
2010, he was told by a non-party nurse at Attica that he had been diagnosed with
cirrhosis of the liver back in 1996 at Elmira. Plaintiff told the nurse that she was
mistaken, but he also contends that he became worried about the possibility that he
actually had cirrhosis, to the point that he developed headaches, a rash and
hypertension. Plaintiff’s assertion that a causal nexus exists between those events is
purely conclusory, and appears to be only his opinion. In that regard, for example, he
indicates that Dr. Laskowski told him that his skin rash was not related to any other
disorder. In any event, Plaintiff indicates that he received “sick call” visits for those
alleged stress-related ailments, and that Defendants have provided him with care
including blood pressure screening and a “skin biopsy.” Ten months after being told
that he had cirrhosis, Plaintiff met with Attica’s Facility Health Director, who told him that
he did not have cirrhosis, and that the reference to such a diagnosis was “a mistake.”
However, Plaintiff seems unconvinced by that assertion, and maintains that Defendants
should have “researched” the matter sooner and provided him with a better explanation.

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See, Complaint [#1] p. 5(b) (“First, I was informed that I was specifically diagnosed with
cirrhosis of the liver in 1996 and now, without any specifics, I was being told the
diagnosis was a mistake. . . . No reassurance comes from a statement which
unsupported, states, the past diagnosis was all a mistake.”). Plaintiff filed an inmate
grievance solely concerning the liver diagnosis, the denial of which was ultimately
upheld by the Central Office Review Committee (“CORC”), which advised him that he
could always “review, obtain copies and challenge the accuracy of his medical records
in accordance with Health Services Policy Manual Item #4.10". See, attachments to
Complaint [#1]. There is no indication that Plaintiff ever filed a grievance concerning
the alleged headaches, stress or hypertension.
The court sympathizes with Plaintiff and recognizes that the false diagnosis must
have been very upsetting. The Court also believes that DOCCS, out of common
decency, ought to provide Plaintiff with a reasonable explanation for how the mistake
was made. On the other hand, it is unclear whether Plaintiff followed CORC’s
instructions for obtaining his medical records.3
However, a mistaken diagnosis does not amount to a constitutional violation,
particularly where, as here, none of the Defendants is alleged to have been responsible
for the mistaken diagnosis. Plaintiff essentially maintains that Defendants violated his
constitutional rights by failing to put his mind at ease over the circumstances that led to

3

The Complaint indicates that Plaintiff asked his aunt to obtain his medical records, and that she was
“rebuked by the facility and was given no information.” The pleading further states that Plaintiff “was shown
no medical records concerning the original diagnosis” and “was given no information,” but does not expressly
state what attempts Plaintiff made to obtain such information.

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the mistake.4 Plaintiff indicates that he still feels that he is “in the dark” about his
condition5, but he does not plausibly plead facts suggesting that he actually has
cirrhosis of the liver. The Court finds that such facts do not plausibly state a
constitutional violation. See, Maqbool v. University Hosp. of Medicine & Dentistry of
New Jersey, Civil Action No. 11–4592 (MLC), 2012 WL 2374689 at *9 (D.N.J. Jun. 13,
2012) (“[I]nconsistencies or differences in medical diagnoses, short delays
unaccompanied by arbitrary or unduly burdensome bureaucratic procedures, refusal to
consider an inmate's self-diagnoses, to summon the medical specialist of the inmate's
choice, or to perform tests or procedures that the inmate desires, to explain to the
inmate the reason for medical action or inaction, or to train the inmate to perform
medical procedures cannot amount to cruel and unusual punishment.”) (citations
omitted). To the extent that Plaintiff complains about the lack of treatment for his
headaches, rash and hypertension, the Court similarly finds that the pleading fails to
state an actionable claim.6
CONCLUSION
Defendants= motion [#7] is granted, and this action is dismissed with prejudice.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from
this Order w ould not be taken in good faith and leave to appeal to the Court of

4

The Complaint [#1] states, in pertinent part: “This was a mistake, which warranted that each of the
Defendants in their individual and official capacities, take some responsible action to rectify the situation and
alleviate the resulting physical injuries, plaguing the Plaintiff on a daily basis for more than a year since being
informed of the diagnosis.” Id. p. 5(d).
5

Complaint [#1] p. 5(b).

6

Additionally, although Defendants did not raise this point, Plaintiff admittedly did not exhaust his
administrative remedies as to an alleged lack of treatment for those conditions before commencing this action.

8

Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438
(1962). Further requests to proceed on appeal in forma pauperis should be directed
on motion to the United States Court of Appeals for the Second Circuit in
accordance w ith Rule 24 of the Federal Rules of Appellate Procedure. The Clerk of
the Court is directed to terminate this action.
So Ordered.
Dated:

September 18, 2013
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge

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