Brennan v. NCAComp Inc.
| Docket Number | 3:22-CV-0127 (GTS/ML) |
| Decision Date | 25 April 2022 |
| Parties | KEVIN JOSEPH GABRIEL BRENNAN, Plaintiff, v. NCACOMP INC., Owner Kevin Gregory; JOLEEN M. BOLGER, (Snowdon) Manager, NCA Inc.; DR. ANNE M. CAULKINS; DR. IRA BREITE; and RENE BARNES (Picirrili), Defendants. |
| Court | U.S. District Court — Northern District of New York |
KEVIN JOSEPH GABRIEL BRENNAN Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
The Clerk has sent this pro se complaint together with an amended complaint, application to proceed in forma pauperis, and supplemental information to the in forma pauperis application filed by Kevin Joseph Gabriel Brennan (“Plaintiff”) to the Court for review. (Dkt. Nos. 1, 2, 4, 5.) For the reasons discussed below, I grant Plaintiff's in forma pauperis application (Dkt. No. 2) and recommend that Plaintiff's Amended Complaint (Dkt. No. 5) be dismissed in its entirety (1) in part with leave to amend, and (2) in part without leave to amend.
On February 10, 2022, Plaintiff commenced this action by the filing of a Complaint alleging that his rights were violated by defendants NCAComp Inc., Joleen Bolger, Dr. Anne M Caulkins, Dr. Ira Breite, and Rene Barnes (collectively “Defendants”). (Dkt. No. 1.) On March 25, 2022, Plaintiff filed an amended complaint as of right, which supersedes his original complaint. (See Dkt. No. 5 [Am. Compl.]); Int'l Controls Corp v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977) (). Thus, presently before the undersigned for review pursuant to 28 U.S.C. § 1915, is Plaintiff's Amended Complaint.
Plaintiff alleges that he is disabled based, at least in part, on an injury he sustained at work on November 1, 1995. (See generally Dkt. No. 5.)
Plaintiff alleges that “in the Spring of 2018” his workers' compensation case was ” and Defendant Bolger was assigned as his claim examiner. (Id.)
Plaintiff alleges that on December 14, 2018, he was injected with Depomedrol by Defendant Caulkins while he was also taking Meloxicam and Voltaren Gel. (Id.) Plaintiff alleges that in January 2019, he “experienced the worst episode of rectal bleeding he had ever had.” (Id.) Plaintiff alleges that due to his rectal bleeding, he went to “the Lourdes Walk-in,” where he was directed to stop taking the Meloxicam but the Voltaren Gel was not discussed. (Id.)
Plaintiff alleges that on February 10, 2019, he filled his prescription for Voltaren Gel, but the amount that he was usually prescribed doubled “from two tubes to four.” (Id.) Plaintiff alleges that, pursuant to New York State Workers' Compensation Law, any prescription medication change must be accompanied by either an appointment where the change was requested or a written order from a treating physician explaining why the change was necessary. (Id.) Plaintiff alleges that he did not request a change in the amount of Voltaren Gel and he has not seen any written order explaining a need for the increase. (Id.)
Plaintiff alleges that on February 26, 2019, he was examined by Dr. Saleem, who ordered a colonoscopy to determine the cause of Plaintiff's rectal bleeding. (Id.) Plaintiff alleges that Defendant Bolger “assisted the office staff” at Dr. Saleem's office “with completing the [C-4] form.” (Id.) Plaintiff alleges that he did not have the colonoscopy procedure because his request through workers' compensation was not approved and he did not have health insurance. (Id.)
Plaintiff alleges that, at some point in time, due to the rectal bleeding, on his own accord, he stopped taking all of the other medication he was prescribed except the Voltaren Gel. (Id.)
Plaintiff alleges that on June 1, 2019, he obtained health insurance. (Id.) Plaintiff alleges that on June 12, 2019, he scheduled his first colonoscopy, and was diagnosed with ulcerative colitis, which requires him to take Mesalamine for the rest of his life. (Id.) The same day, Plaintiff alleges that he applied the Voltaren Gel and looked closely at the container, which contained a warning to discontinue use if rectal bleeding occurred. (Id.) Plaintiff alleges that he immediately ceased use of Voltaren Gel and began taking Mesalimine, and the rectal bleeding stopped the following day. (Id.)
Plaintiff alleges that Voltaren Gel is “a powerful NSAID which contains the chemicals known to cause deterioration of the mucosal walls of the colon.” (Id.) Plaintiff alleges that Defendant Caulkins was aware of the risks associated with Voltaren and that in July of 2018, she stated that his Voltaren Gel dosage should not be increased due to toxicity. (Id.) Plaintiff alleges that he filed a medical malpractice lawsuit in New York State court against Defendant Caulkins, and that in retaliation, she improperly doubled his prescription for Voltaren Gel. (Id.)
Plaintiff alleges that Defendant Bolger improperly authorized his Voltaren Gel prescription change but failed to authorize the colonoscopy procedure. (Id.)
Plaintiff alleges that Defendant NCAComp and its employees intentionally deny medical treatment so that it does not have to pay for the treatment. (Id.)
Plaintiff alleges that Defendant Barnes is associated with the New York State Workers' Compensation Board and was aware that Plaintiff was being treated for rectal bleeding, that his Voltaren Gel prescription was doubled, and took no action to protect him. (Id.)
Plaintiff alleges that in December-of an unspecified year-he received a report completed by independent medical examiner Defendant Breite, which included several false claims and omitted significant information. (Id.)
Based on these factual allegations, Plaintiff appears to assert the following seven causes of action: (1) a claim that Defendant Caulkins retaliated against him by improperly doubling his prescription for Voltaren Gel after he filed a medical malpractice suit against her, and that Defendant Bolger authorized the improper increased prescription; (2) a claim that Defendant Bolger intentionally denied Plaintiff's necessary medical treatment by failing to provide information when requested and then providing inaccurate information; (3) a claim that Defendant NCAComp, through its employees, denied Plaintiff his prescribed gym membership in violation of New York State Workers' Compensation Law; (4) a claim that Defendant Caulkins falsified records by stating that Plaintiff's left hip replacement was not causally related to his work injury; (5) a claim that Defendant Breite violated his Hippocratic oath by stating that ulcerative colitis is not a disease, which caused violations of Plaintiff's “constitutional right to due process and equal access to medical treatment”; (6) a claim that Defendant Barnes has been e-mailed “many documents” and knows that Plaintiff “has been grossly denied his right to due process and access accommodations” and that he is permanently disabled but the Workers' Compensation Board refuses to identify him as such, which is a “gross violation of [his] right to life, liberty, and the pursuit of happiness” and an intentional infliction of emotional distress; and (7) a claim that pursuant to New York Workers' Compensation Law, Defendant NCAComp intentionally denied Plaintiff a medical procedure, which resulted in denial of his procedural and substantive due process rights and was a “gross violation of the covenant of ‘Exclusive Remedy.'” (Id.)
As relief, Plaintiff seeks $120,000.00 in damages from each of Defendants and treble damages pursuant to the Americans with Disabilities Act. (Id.)
“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1).[1] After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.[2]
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain 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) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all...
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