Anthony v. Rosenberg

• Docket Number: 9:22-CV-0378 (BKS/CFH)
• Decision Date: 22 June 2023
• Parties: MAURICE ANTHONY, Plaintiff, v. KEVIN ROSENBERG, et al., Defendants.
• Court: U.S. District Court — Northern District of New York

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MAURICE ANTHONY, Plaintiff,
v.
KEVIN ROSENBERG, et al., Defendants.

No. 9:22-CV-0378 (BKS/CFH)

United States District Court, N.D. New York

June 22, 2023

MAURICE ANTHONY 14-A-2070 Plaintiff, pro se Upstate Correctional Facility

HON. LETITIA JAMES STEVE NGUYEN, ESQ. Assistant Attorney General Attorney General for the State of New York Attorney for Defendants

REPORT-RECOMMENDATION AND ORDER ^[1]

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

Plaintiff pro se Maurice Anthony ("Plaintiff"), an inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") brings this action pursuant to 42 U.S.C. § 1983 against defendants Kevin Rosenberg ("Rosenberg"), John Doe 1, and John Doe 2 for violations of his constitutional

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rights under the Eighth Amendment. Dkt. No. 1 ("Compl."). Plaintiff also asserts claims against Benjamin Oakes ("Oakes"), Amy Ferguson ("Ferguson") and John Does 3 through 10 for violations of Title II of the Americans with Disabilities Act ("ADA"). Id.

In lieu of an answer, Rosenberg moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P."), to dismiss the complaint as against him. Dkt. No. 30. Plaintiff opposed the motion (Dkt. Nos. 39, 43, and 54) and Rosenberg responded (Dkt. No. 40). For the following reasons, it is recommended that Rosenberg's motion to dismiss be granted.

I. BACKGROUND

The facts are related herein in the light most favorable to Anthony as the non-moving party. See subsection II(A) infra.

In October 2016, Plaintiff was diagnosed with "subjective visual disturbance of [the] left eye" and "traumatic cataract of [the] right eye." Dkt. No. 2 at 23. On or about January 13, 2017, Rosenberg examined Plaintiff "at the Harrison Optometrist." Compl. at ¶ 2. Rosenberg "used a flat head toungue [sic] suppressor type object to push between the top of Plaintiffs [sic] left eye ball and the bone of Plaintiffs [sic] left eye-brow and applied pressure in between, which caused Plaintiff pain." Id. Rosenberg diagnosed plaintiff with a retinal detachment and recommended surgery within one to two weeks. Dkt. No. 2 at 43.

On January 17, 2017, Plaintiff filed a grievance, related to his "outside medical care." Dkt. No. 2 at 4. Plaintiff complained that the "Harrison Center eye doctors" repeatedly "pok[ed] his left eye with a sharpe [sic] object." Id. Plaintiff claimed that the doctors injured his left eye and indicated that he would "like to press charges." ]d.

On February 3, 2017, Rosenberg performed surgery to repair a retinal eye detachment

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in Plaintiff's left eye. Dkt. No. 2 at 13.

Plaintiff alleges that Rosenberg exhibited deliberate medical indifference in violation of the Eighth Amendment and caused Plaintiff's retina to rupture, requiring emergency surgery and eventual "loss of vision, pain, and light sensitivity by the months of May & June of 2017." Compl. at ¶¶ 2-3.

II. DISCUSSION ^[2]

Rosenberg moves to dismiss the complaint arguing (1) he is not a state actor; (2) Plaintiff's Eighth Amendment claim against Rosenberg fails to state a cause of action; (3) Plaintiff's constitutional claim against Rosenberg is time-barred; and (4) Rosenberg was not timely served. Dkt. No. 30.

A. Legal Standard

Under Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a complaint for a plaintiff's "failure to state a claim upon which relief can be granted." When considering such a motion, a court must "construe plaintiff['s] complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiff['s] favor." Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009) (quoting Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009)) (internal quotation marks omitted). However, this "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." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009)) (internal quotation marks and alterations omitted).

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Accordingly, to survive a motion to dismiss, a complaint must state a claim for relief that is "plausible on its face." Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (explaining that the plausibility test "does not impose a probability requirement . . . it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct].")); see also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that "[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible....") (internal quotation marks and citation omitted). Determining whether plausibility exists is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.

Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to special solicitude, that a pro se litigant's submissions must be construed liberally, and that such submissions must be read to raise the strongest arguments that they suggest. At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not consistent with the pro se litigant's allegations, or arguments that the submissions themselves do not suggest, that we should not excuse frivolous or vexatious filings by pro se litigants, and that pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law

Treistman, 470 F.3d at 477 (internal quotation marks, citations, and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe his pleadings liberally.") (internal

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quotation marks and citations omitted).

1. Consideration of Submissions Outside the Pleadings

As a threshold issue, the Court must address the two documents attached in support of Defendant's motion to dismiss. See Dkt. No. 30-2 (Defendant's Declaration), Dkt. No. 30-3 (Clinic Staffing Agreement effective January 1, 2017 between Ophthalmology Medical Service Group, Inc. ("Upstate Ophthalmology") and Retina-Vitreous Surgeons of Central New York, P.C. ("RVS")).

Under Fed.R.Civ.P. 12(b), the "complaint includes . . . any statements or documents incorporated into it by reference." Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); see Fed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."). Even where a document is not incorporated by reference, the district court "may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (noting that a court may properly consider "documents possessed by or known to the plaintiff and upon which it relied in bringing the suit"); see also Riddick v. Watson, 503 F.Supp.3d 399, 411 (E.D. Va. 2020) (reasoning that the Court may consider documents submitted by the party moving to dismiss if the documents are integral to the complaint and their authenticity is undisputed) (citation omitted). "[I]n most instances where a document is purportedly integral to a complaint, the incorporated material is a contract or other legal document containing obligations upon which the plaintiff's complaint stands or falls, but which for some reason [. .. ]

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was not attached to the complaint." McLennon v. City of New York, 171 F.Supp.3d 69, 89 (E.D.N.Y. 2016) (internal quotation marks omitted) (citing Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006)).

In this case, Plaintiff's claims against Rosenberg are based on "whether [Rosenberg] had a duty to provide health care to the plaintiff" which depends on whether a contract existed. Hinton v. Corr. Corp. of Am., No. CIV.A. 08-778, 2009 WL 1651656, at *1-2 (D.D.C. June 11, 2009) (reasoning that a contract related to eye care and other medical services, which was not annexed or referenced in the complaint but submitted by defendant in support of motion to dismiss, could be considered by the court). Here, Plaintiff does not challenge the authenticity of the contract and cites to the Clinic Staffing Agreement in his opposition to the motion. See Dkt. No. 39 at ¶¶ 9-13, 16-17. Thus, the contract "may be considered on the motion to dismiss without converting the motion to one for summary judgment." See Hinton, 2009 WL 1651656, at *2.

B. State Actor

A plaintiff cannot hold a defendant liable under Section 1983 unless he or she can establish that the defendant acted under the color of state law. See 42 U.S.C. § 1983; see also Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999) (noting state action requirement under Section 1983). As the Supreme Court of the United States has held, "the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful." Sullivan, 526 U.S. at 50 (1999) (internal quotation marks and citations omitted). A plaintiff "bears the burden of proof on the state action issue." Hadges v. Yonkers Racing Corp., 918 F.2d 1079, 1083 n.3 (2d Cir. 1990).

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"[S]ection 1983 excludes from its reach...