Lugo v. Senkowski

• Decision Date: 25 September 2000
• Docket Number: No. 99-CV-1213 (LEK)(RWS).,99-CV-1213 (LEK)(RWS).
• Citation: 114 F.Supp.2d 111
• Parties: George LUGO, Plaintiff, v. Daniel SENKOWSKI, Superintendent of Clinton Correctional Facility; Dr. Lee, Medical Director of Clinton Correctional Facilty; Patrick Edwards, Parole Officer, Defendants.
• Court: U.S. District Court — Northern District of New York

114 F.Supp.2d 111

George LUGO, Plaintiff, v. Daniel SENKOWSKI, Superintendent of Clinton Correctional Facility; Dr. Lee, Medical Director of Clinton Correctional Facilty; Patrick Edwards, Parole Officer, Defendants.

No. 99-CV-1213 (LEK)(RWS).

United States District Court, N.D. New York.

September 25, 2000.

George Lugo, Marcy, NY, pro se.

Victoria Hunter Hay, Office of Atty. General, New York City, for Defendants.

MEMORANDUM — DECISION AND ORDER

KAHN, District Judge.

Presently before the Court is Defendants' motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6). For the reasons set forth below, the motion is granted in part and denied in part.

I. BACKGROUND

Plaintiff filed the instant Complaint on August 5, 1999 pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth and Fourteenth Amendment rights. Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs. Specifically, Plaintiff alleges that he was denied timely and adequate treatment for a kidney stone while incarcerated at Clinton and Coxsackie Correctional Facilities. Plaintiff further contends that he was wrongfully paroled while he was awaiting surgery. Finally, Plaintiff alleges that he was denied contact with his doctor while out on parole by defendant Edwards, his parole officer.

Defendants filed the pending motion to dismiss on December 30, 1999 arguing that Plaintiff has failed to state a claim upon which relief may be granted.

II. ANALYSIS

A motion to dismiss pursuant to Fed. R.Civ.P. 12(b)(6) must be denied "unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In assessing the sufficiency, "all factual allegations in the complaint must be taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir.1991), and all reasonable inferences must be construed in favor of the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir.1988).

[C]onsideration is limited to the factual allegations in [the] complaint, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in Plaintiffs' possession or of which Plaintiffs had knowledge and relied on in bringing suit.

Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993).

The Rules do not require the plaintiff to set out in detail the facts upon which the claim is based, but only that a defendant be given "fair notice of what the claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a practical matter and, as a matter of law, are insufficient to state a claim. See Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.1987).

Where a motion to dismiss is made prior to any discovery or the filing of an answer, the court is loath to dismiss the complaint, regardless of whether the plaintiff is unlikely to prevail, unless the defendant can demonstrate that plaintiff is unable to prove facts which would entitle him to relief. See Wade v. Johnson Controls, Inc., 693 F.2d 19, 22 (2d Cir.1982); Egelston v. State Univ. College, 535 F.2d 752, 754 (2d Cir.1976). "This caution against dismissal applies with even greater force where the complaint is pro se, or where the plaintiff complains of a civil rights violation." Easton v. Sundram, 947 F.2d 1011, 1015 (2d Cir.1991) (citations omitted).

A. Statute of Limitations

Defendants claim that most of Plaintiff's claims are barred by the statute of limitations. Claims brought in federal court under § 1983 have a statute of limitations of three years. See Pinaud v. County of Suffolk, 52 F.3d 1139, 1156 (2d Cir.1995) (citing Owens v. Okure, 488 U.S. 235, 250-51, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989). Plaintiff's Complaint was filed on August 5, 1999.

Plaintiff, although claiming that August 2, 1996 should be considered the appropriate cutoff date for his claims, acknowledges in his papers that only two of his claims survive the statute of limitations: (1) his claim that defendants Senkowski and Lee were deliberately indifferent to his serious medical need when they allowed him to be released on parole and (2) his claim that defendant Edwards was deliberately indifferent to his serious medical need when he allegedly prevented him from returning to his treating hospital for follow up surgery. Accordingly, Plaintiff's remaining claims are dismissed as time-barred.

B. Failure to State a Claim

In order to establish an Eighth Amendment claim arising out of inadequate medical care, as made applicable to states by the Fourteenth Amendment, a prisoner must prove "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This standard includes both subjective and objective components. "First, the alleged deprivation must be, in objective terms, `sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994) (citations omitted). Second, subjectively, the defendant "must act with a sufficiently culpable state of mind." Id. An official acts with deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Although not addressed by the parties, an initial question raised by Plaintiff's complaint, is whether Plaintiff, as a parolee, is entitled to the protections of the Eighth Amendment. The government's obligation to provide medical services to incarcerated individuals established in Estelle is an exception to the general rule that the Due Process Clause does not generally place affirmative duties on the state. See DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 196, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). In DeShaney, the Court addressed the state's duty to a child who had notified state officials of his father's abuse. In rejecting the child's argument that an affirmative duty to protect existed, the Court examined and explained the Estelle holding:

[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs — e.g., food, clothing, shelter, medical care, and reasonable safety — it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.

Id. at 199-200, 109 S.Ct. 998 (citations omitted). Accordingly, it may be argued that because a parolee, although subject to the terms of his parole agreement, does not suffer sufficient limitation on his freedom to "act on his own behalf," the government should not have an affirmative duty to assume responsibility for his safety.

In Wakefield v. Thompson, 177 F.3d 1160 (9th Cir.1999), the Ninth Circuit addressed this issue in holding that a parolee requiring medication beyond his release was owed an affirmative duty by the state. The court held that "a prisoner's ability to secure medication `on his own behalf' is not restored the instant he walks through the prison gates and into the civilian world." Id. at 1164. The court reasoned that, because it could take parolees a number of days or even weeks to obtain new medication, "the period of time during which prisoners are unable to secure medication `on their own behalf' may extend beyond the period of actual incarceration." Id. Accordingly, the court held that the state was required to provide him with enough medication to cover the period of time "reasonably necessary to permit him to consult a doctor and obtain a new supply." Id.

The Court finds the Ninth Circuit's reasoning in Wakefield persuasive and holds that it applies to these circumstances as well. The relevant facts alleged by Plaintiff in this action resemble those of the plaintiff in Wakefield. Here, Plaintiff alleges that he had surgery to remove his kidney stones shortly before his release on parole from Clinton Correctional Facility ("Clinton") and was told by his treating physician that follow up surgery within several weeks was needed to remove a metal stent from his kidney. Plaintiff was released on parole several weeks thereafter with the stent still inside his body. In other words, Plaintiff was released in the midst of an ongoing surgical process, at approximately the time that the second leg of the procedure was to be completed. Only five days into his parole, Plaintiff was admitted into Bellevue Hospital in Manhattan with severe pain. Defendants allegedly provided Plaintiff no assistance in obtaining the medical treatment he needed. Moreover, Plaintiff alleges that defendant Edwards prevented him from returning to Albany to have the follow up surgery performed by his treating physician. Just as in Wakefield, Plaintiff was undergoing continuing treatment at the time he was released, was in need of medical aid in the period...