Miller v. Ramineni

• Decision Date: 29 February 2016
• Docket Number: No. 9:14-CV-1351 (DNH/CFH),9:14-CV-1351 (DNH/CFH)
• Parties: JESSE J. MILLER, Plaintiff, v. DR. SUBBARAO RAMINENI; at al., Defendants.
• Court: U.S. District Court — Northern District of New York

JESSE J. MILLER, Plaintiff, v. DR. SUBBARAO RAMINENI; at al., Defendants.

No. 9:14-CV-1351 (DNH/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 29, 2016

APPEARANCES:

JESSE J. MILLER

Plaintiff Pro Se

12-B-0543

Fishkill Correctional Facility

P.O. Box 12508

Beacon, NY 12508-0307

HON. ERIC T. SCHNEIDERMAN

Attorney General for the

State of New York

The Capitol

Albany, New York 12224-0341

Attorney for Defendants

OF COUNSEL:

NICOLE HAIMSON, ESQ

Assistant Attorney General

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER¹

Plaintiff pro se Jessie J. Miller ("Miller"), an inmate currently 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 alleging that defendants Dr. Ramineni,R.N. Wayne Visallr, Correction Officers Wiggins and Barker, and John Doe(s) #1-13, Correction Officers at Mid-State Correctional Facility (collectively "defendants," where appropriate), violated his constitutional rights under the Eighth Amendment. Am. Compl. (Dkt. No. 13) at 1-5. Presently pending is defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6). Dkt. No. 24-1. Miller did not oppose.² For the reasons that follow, it is recommended that defendants' motion be granted.

I. Background

The facts are reviewed in the light most favorable to the non-moving party. At all relevant times, Miller was incarcerated at Mid-State. Miller claims that defendants violated the Eighth Amendment by denying him access to proper medical care. Am. Compl. at Dk. No. 13 at 20-21.

A. Facts³

The events giving rise to Miller's claim occurred between March and April of anunspecified year⁴ during his incarceration at Mid-State Correctional Facility ("Mid-State"). See generally Am. Compl. Sometime on March 17, Miller noticed that his acne had become sore, and he submitted a request for sick call that evening. Am. Compl. at ¶ 1. On March 18, at approximately 6:30 AM, Miller went on sick call and was provided with cream. Id. at ¶ 2.

One week later, on March 25, Miller developed a "bump" under his right arm pit, causing "a little pain, but not too serious." Am. Compl. at ¶ 3. On March 26, Miller informed Officer Wiggins that the "bump" under his arm was causing severe pain and numbness in his arm and requested emergency sick call, which Wiggins denied. Id. at ¶ 4. Later that day, Miller made two similar requests to John Doe #1 and John Doe #2, correction officers, which were also denied. Id.

On March 27, Miller explained to John Doe #3, a correction officer, that he was experiencing severe pain and numbness in his arm resulting from the "bump" and requested emergency sick call, which was denied. Am. Compl. at ¶ 5. Later that morning, while attending his masonry vocational class, Miller's teacher noticed the bump and that Miller was unable to perform his work due to the pain that he was experiencing. Id. Miller's teacher arranged for him to be seen at emergency sick call. Id. R.N. Visallr examined Miller at emergency sick call later that day and documented that Miller had impaired mobility, swelling, and redness on his right arm and that his bicep had swollenthree (3) to four (4) inches into his right arm pit. Id. R.N. Visallr diagnosed Miller with cellulitis, prescribed him 500mg of the antibiotic Keflex, and instructed him to return to sick call if the symptoms worsened. Id. Between March 28 to April 3 the bump remained relatively unchanged and Miller's diminished ability to engage in physical activity continued. Id. at ¶ 6.

On March 29, while working at his cleaning job at the infirmary, Miller explained to Officer Barker that he was unable to work due to the pain that he was experiencing and requested consultation with one of the nurses. Am. Compl. at ¶ 7. Officer Barker denied Miller's request and told him to sit down rather than work. Id. On April 3, Miller's bump became more painful, rendering him unable to eat or sleep and impairing his mobility. Id. at. ¶ 8. Miller described his symptoms to John Doe #5 and requested emergency sick call, which was denied. Id. On April 4, Miller explained his symptoms to John Does #6, #7, and #8, and made requests for emergency sick call, which we"re all denied. Id. at ¶ 9. The bump "popped" over night. Id. at ¶ 10. By the next morning, April 5, the bump "started to feel better," and by that night the bump "went down in size and started to feel better." By the morning of April 6, the bump was "going away." Id. at ¶ 11.

While showering on April 6, Miller "pressed on [his] left upper chest while washing" and experienced "a pain." Am. Compl. at ¶ 11. Miller noticed a "little bump" on his chest that was slightly larger than a pimple, which he "paid no attention to," since he "normally . . . get[s] acne on [his] chest. Id. Over the course of the day, the "bump" became red and swollen. Id. Miller requested emergency sick call, which was denied by John Does #9 and #10. Id. On April 7, the bump became "even worse" and Miller requestedemergency sick call from the "am, pm and evening officers," which was again denied. Id. at ¶ 12.

On April 8, Miller went to emergency sick call where he was seen by Nurse P. Reese⁵ at 7:45 AM, and then by Dr. Ramineni at 10:00 AM. Am. Compl. at ¶ 13. Dr. Ramineni increased Miller's antibiotic dosage, noted that Miller had no drainage or fever, and instructed him to return if the bump became worse. Id. Dr. Ramineni examined the bump by looking at it, but did not perform any additional "tests," and told Miller to return if it worsened. Id. On April 9, the bump swelled, his pain increased, and Miller felt sick, feverish, and had difficulty moving. Id. at ¶ 14. Miller explained his condition and requested emergency sick call from correction officers John Does #11, 12, and 13; all requests were denied. Id. Miller asserts that "one officer told me [the] only way to emergency sick call was if I was dying or bleeding to death." Id. Miller does not specify which officer made this statement.

On April 10, Miller went to emergency sick call and saw Nurse Santamour.⁶ Am. Compl. at ¶ 15. Miller was then brought to St. Elizabeth's hospital in Utica, where he was seen by a physician and admitted for observation. Id. On April 13, Miller was diagnosed with Methicillin-resistant staphylococcus aureus ("MRSA") and moved into an isolation room at the hospital. Id. at ¶ 18. Miller returned to Mid-State on April 15, where he was admitted to the infirmary and continued on his antibiotic treatment. Id. at ¶ 19. On April23, Miller was placed on a nasal ointment. Id. at ¶ 20. On April 26, Miller was discharged from the infirmary into general population and remained on antibiotics and nasal ointment treatment. Id. at ¶ 21. On April 24, Dr. Mannava, a Mid-State physician, cleared Miller of MRSA. Id. at ¶ 22.⁷

II. Discussion

A. Legal Standard⁸

A plaintiff's claim can be dismissed for failure to state a claim under FED. R. CIV. P.12(b)(6) if the court finds that "'it appears beyond doubt that the plaintiff can prove no set off acts in support of his claim which would entitle him to relief.'" Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957). To defeat a motion to dismiss, a claim must include "facial plausibility . . . 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, 678 (2009) (citing Bell Atlantic Corp. v. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (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 . . . .") (citations omitted)).

Still, "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.'" Twombly, 550 U.S. at 555 (citations omitted). Although a complaint attacked under the standard set forth in Rule 12(b)(6) does not require 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." Id. These factual allegations must raise the possibility of relief above a "speculative level" and are based on "the assumption that all of the complaint's allegations are true." Id.

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

[t]here are many cases in which we have said that a prose litigant is entitled to special solicitude, . . . that a prose 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 prose submissions claims that are not consistent with the prose litigant's allegations, . . . or arguments that the submissions themselves do not suggest, . . . that we should not excuse frivolous or vexatious filings by prose litigants . . . and that prose status does not exempt a party from compliance with relevant rules of procedural and substantive law

. . . .

Id. (citations, internal quotation marks, and footnote omitted) (internal quotations omitted); see also Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we...