Mora v. Hughes et al

Filing 27

DECISION AND ORDER denying 15 Motion to Dismiss by J. Rao. Signed by Hon. Elizabeth A. Wolford on 2/27/2017. (Copy of this order mailed to Plaintiff at Attica Correctional Facility) (EMS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

OSCAR MORA,

DECISION AND ORDER
Plaintiff,
v.

6:15-CV-06038 EAW

W. HUGHES, Deputy Supt. of Security;
J. RAO, Medical Doctor; and A. HA YNES,

Registered Nurse,
Defendants.

INTRODUCTION
Plaintiff Oscar Mora ("Plaintiff'), pro se and incarcerated at Attica Correctional
Facility ("Attica"), brings this action against three Attica employees-W. Hughes
("'Hughes"), Deputy of Security; J. Rao ("Dr. Rao"), a doctor; and A. Haynes ("Haynes"),
a nurse (collectively, "Defendants")-pursuant to 42 U.S.C. § 1983, alleging that
Defendants were deliberately indifferent to his serious medical needs in violation of the
Eighth Amendment.

(Dkt. I).

Dr. Rao moves to dismiss the complaint against him

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. 15-1). For the
reasons discussed below, the Court denies Dr. Rao ' s motion.

BACKGROUND
I.

Factual Background
The following facts are drawn from Plaintiff's complaint. (Dkt. 1).
Plaintiff ha ~ been incarcerated at Attica from 2008 until the present, including all

times relevant to this action. (Id. at

~

4 ). He suffers from "Brittle Type 1" Diabetes,
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which is "the most severe category of Type 1 Diabetes." (Id.

at~

17). Those who suffer

from Brittle Type 1 Diabetes "require constant readings of their blood sugar so as to not
go into shock or even die."

(Id.).

Additionally, "Type 1 Diabetics can experience

hypoglycemia (low blood sugar) or hyperglycemia (high blood sugar)," either of which
"can cause plaintiff to have seizures, coma, or even death." (Id.

at~

18).

On June 28, 2011, after several "severe" episodes of hypoglycemia, Plaintiff met
with Dr. Rao to discuss whether Plaintiff required a glucometer in his cell. (Id. at

~

20).

Dr. Rao agreed that Plaintiff needed a glucometer but claimed "it [would] likely be
denied by [the] administration." (Id.).
On April 5, 2012, Plaintiff was brought to the emergency room in a wheelchair
because of an episode of low blood sugar. (Id.

at~

19).

On June 26, 2012, Plaintiff met with Dr. Rao for a second time regarding
Plaintiffs need for a glucometer in his cell. (Id. at

~

20). Dr. Rao agreed that Plaintiff

needed the device but advised him to write to Hughes. (Id.). Plaintiff then wrote a letter
to Hughes, requesting approval for the glucometer.

(Id.).

Hughes denied Plaintiffs

request, citing security concerns. (Id.).
On October 10, 2012, Plaintiff sent Hughes another written request for a
glucometer, contending that "the Federal Bureau of Prisons allows certain inmates that
ha[ ve] diabetes to have glucose meters and lancets to allow these prisoners to better
maintain their blood sugar levels." (Id. at 21 ).
request. (Id.).

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Two days later, Hughes denied this

Throughout

2012

and

2013 ,

Plaintiff experienced

several

episodes

of

hypoglycemia, abnormal blood sugar, and related side effects. (See id. at

iii! 22-28).

For

example, on November 29, 2012, he had a hypoglycemic episode and was found
unconscious in his cell. (Id. at

if 22). On July 21, 2013, he suffered from headaches and

vomiting and was taken to the emergency room , where he discovered that "his blood
sugar was at a dangerous level of 403." (Id. at

if 23). On December 29, 2013, Plaintiff

had a hyperglycemic episode, but medical staff failed to respond; in particular, "Haynes
was on duty but failed to assess and administer insulin for [P]laintiff, stating to [an]
officer on duty , 'I ' m not going up there unless he ' s having a reaction."' (Id. at if 27).
Plaintiff filed two grievances concerning his medical care. The first was filed on
November 18, 2013 , and the second was filed on January 9, 2014, against Haynes for
allegedly inadequate medical care. (Id. at
grievance. (Id. at

iii!

10, 29). The Superintendent denied each

if 11). Plaintiffs subsequent appeals of those denials were also denied.

(Id. at iii! 12-13 ).
Based on the foregoing, Plaintiff claims that Defendants were deliberately
indifferent to Plaintiffs serious medical needs, in violation of the Eighth Amendment.

(Id. at

iii! 32-34).

Plaintiff claims that Dr. Rao's failure to advocate in favor of allowing

Plaintiff to have a glucometer constituted deliberate indifference to Plaintiffs serious
medical needs.

(Id. at

if 33 , 7).

Plaintiff seeks an order directing Defendants to

immediately allow Plaintiff to have a glucose meter, as well as damages. (Id. at 7-8).

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II.

Proceedings in this Court

Plaintiff filed his complaint on January 21, 2015. (Dkt. 1). This Court granted
Plaintiff leave to proceed informapauperis on September 29, 2015. (Dkt. 6).
On May 15, 2016, Dr. Rao moved to dismiss the complaint with respect to the
claims asserted against him. (Dkt. 15). The Court issued a scheduling order, setting June
13 , 2016, as the deadline for Plaintiff to respond in opposition to Dr. Rao's motion, and
June 30, 2016 , as the deadline for Dr. Rao to submit a reply. (Dkt. 16). The Court stated
that it would determine the motion on the papers submitted, without oral argument. (Id.).
On June 8, 2016, Plaintiff filed a response in opposition to Dr. Rao's motion. (Dkt. 17).
Dr. Rao did not submit a reply.
DISCUSSION
I.

Standard of Review

In considering a motion to dismiss, a court generally may only consider "facts
stated in the complaint or documents attached to the complaint as exhibits or incorporated
by reference." Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). A
court should consider the motion "accepting all factual allegations in the complaint and
drawing all reasonable inferences in the plaintiffs favor." Ruotolo v. City of New York,
514 F.3d 184, 188 (2d Cir. 2008) (citation omitted). To withstand dismissal, a plaintiff
must set forth "enough facts to state a claim to relief that is plausible on its face." Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 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." Ashcroft v. Iqbal, 556 U.S. 662,

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678 (2009); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) ("The plausibility
standard is not akin to a probability requirement. A well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and
that a recovery is very remote and unlikely." (citations and internal quotation marks
omitted)).
''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." Twombly, 550 U.S. at 555
(alteration and citations omitted).

Thus, "at a bare minimum, the operative standard

requires the 'plaintiff to provide the grounds upon which his claim rests through factual
allegations sufficient to raise a right to relief above the speculative level."' Goldstein v.

Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (alteration and citations omitted).
" It is well-settled that pro se litigants generally are entitled to a liberal construction

of their pleadings, which should be read 'to raise the strongest arguments that they
suggest. "' Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (quoting Graham v.

Henderson, 89 F.3d 75, 79 (2d Cir. 1996)); see also McEachin v. McGuinnis, 357 F.3d
197, 200 (2d Cir. 2004) ("[W]hen [a] plaintiff proceeds prose . .. a court is obliged to
construe his pleadings liberally, particularly when they allege civil rights violations.").

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II.

Deliberate Indifference

Plaintiff alleges that Dr. Rao has subjected him to cruel and unusual punishment in
deliberate indifference to his serious medical needs in violation of the Eighth
Amendment. (Dkt. 1 at i133) .
"The Eighth Amendment, which applies to the states under the Due Process
Clause of the Fourteenth Amendment, guarantees freedom from cruel and unusual
punishment." Jones v. Westchester Cty. Dep 't of Corrs. Med. Dep 't, 557 F. Supp. 2d
408 , 413 (S.D.N. Y. 2008).

An Eighth Amendment claim arising out of inadequate

medical care requires a plaintiff-inmate to demonstrate that a defendant was deliberately
indifferent to a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976); see

also Farmer v. Brennan, 511 U.S. 825, 834 ( 1994 ). A claim for deliberate indifference
has both an objective and a subjective component. Wilson v. Seiter, 501 U.S. 294, 29899 (1991 ).
Objectively, a medical need is serious for constitutional purposes if it presents '"a
condition of urgency' that may result in 'degeneration' or 'extreme pain."' Chance v.

Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d
63 , 66 (2d Cir. 1994)). "Subjectively, the official charged with deliberate indifference
must have acted with the requisite state of mind, the 'equivalent of criminal
recklessness."' Lapierre v. Cty. of Nassau, 459 F. App'x 28, 29 (2d Cir. 2012) (quoting

Hathaway, 99 F.3d at 553). Specifically, a plaintiff must prove that the prison official
knew of a serious medical condition and nonetheless disregarded the plaintiffs medical
needs.

Farmer, 511 U.S. at 837 (holding that a prison official does not act in a

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deliberately indifferent manner towards an inmate unless he "knows of and disregards an
excessive risk to inmate health or safety"); see also Beaman v. Unger, 838 F. Supp. 2d
108, 110 (W .D.N.Y. 2011) ("To establish deliberate indifference, ... [a] plaintiff must
prove that the defendants had a culpable state of mind and intended wantonly to inflict
pain. ").
More than medical malpractice is required to establish a constitutional violation.
"Medical malpractice does not rise to the level of a constitutional violation unless the
malpractice involves culpable recklessness .... " Hill v. Curcione, 657 F.3d 116, 123
(2d Cir. 2011) . Similarly, mere negligence is not actionable. "A [prisoner's] complaint
that a physician has been negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth Amendment." Estelle , 429
U.S. at 106.
Consistent with those principles, " [i]t has long been the rule that a prisoner does
not have the right to choose his medical treatment as long as he receives adequate
treatment." Hill, 657 F .3d at 123. "[M]ere 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." Chance, 143 F.3d at 703.

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III.

Application

Dr. Rao moves to dismiss Plaintiffs complaint on the ground that Plaintiff failed
to sufficiently allege the subjective component of a deliberate indifference claim, 1
arguing that Plaintiff failed to "allege any facts suggesting Dr. Rao acted with
recklessness. " (Dkt. 15-1 at 2-3 ). Dr. Rao contends that Plaintiffs factual allegationsthat Dr. Rao examined plaintiff, concluded that a glucometer was medically appropriate,
and approved the device- actually undermine any claim that Dr. Rao acted with
recklessness. (Id. at 3 ). According to Dr. Rao, Plaintiff "is attempting to hold Dr. Rao
liable for the fact that, according to Plaintiff, a Deputy Superintendent overruled the
doctor." (Id.).
Plaintiff responds that Dr. Rao mischaracterizes the allegations in the complaint;
he does not allege that Dr. Rao approved the glucose meter, but rather that Dr. Rao "only

advised Plaintiff that he requires a glucometer and never actually contacted ... Hughes
regarding approval of the glucometer." (Dkt. 17 at 6). 2

Defendants do not challenge the objective component of Plaintiffs deliberate
indifference claim. (Dkt. 15-1 at 2 ("For purposes of this motion, Defendants do not
dispute that Plaintiff has pied a serious medical need.")).
2

In his response, Plaintiff also states that "during the course of discovery, [he] has
become aware that this denial of health care was not an isolated incident. In fact, there
appears to be a pattern of care denial at this facility. According to medical records, when
considering the totality of episodes (hypoglycemic and hyperglycemic) [P]laintiff has
endured, it is clear that ... [D]efendants acted with deliberate indifference." (Dkt. 17 at
7). Plaintiff did not raise this "pattern of care denial" claim in his complaint. The Court
is not required to consider claims that are raised for the first time in opposition to a
motion. See Cohen v. New York, 481 F. App ' x 696, 697 (2d Cir. 2012).

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Liberally construed, Plaintiffs allegations concerning Dr. Rao are adequate to
state a claim of deliberate indifference. Plaintiff alleges that Dr. Rao knew of his Brittle
Type I Diabetes and but nonetheless failed to take the necessary steps to ensure that
Plaintiff would receive what Dr. Rao agreed was a medically-necessary device, in
disregard of an excessive risk to Plaintiffs health. Plaintiff alleges that Dr. Rao was
Plaintiffs "care provider" and was "responsible for medical care generally," from which
it can reasonably be inferred that Dr. Rao bore a responsibility to ensure that his patient
received the glucometer. (Dkt. 1 at

~

33 ). Plaintiff does not allege "mere disagreement

over the proper treatment. " Chance, 143 F.3d at 703. Rather, Plaintiff alleges that Dr.
Rao agreed that the device was medically necessary and the proper treatment, but
nonetheless failed to ensure that Plaintiff received it, despite Plaintiffs repeated
hospitalizations and severe symptoms that resulted from his apparently uncontrolled
diabetes. At this stage, the Court finds Plaintiffs pleadings sufficient to allege that Dr.
Rao acted intentionally in disregard to a risk to Plaintiff. Cf Engles v. Jones , 144 F.
Supp. 3d 413, 425 (W.D.N .Y. 2015) (concluding that prisoner alleged sufficient facts on
the subjective prong when he had alleged that a nurse, inter alia, had for several months
denied the prisoner a splint for his broken finger).

CONCLUSION
For the foregoing reasons, Dr. Rao's motion to dismiss (Dkt. 15) is denied. Dr.
Rao is directed to file an answer to Plaintiffs complaint within 30 days of the date of this
Decision and Order.

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SO ORDERED.

Dated: February 27, 2017
Rochester, New York

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