Villafane v. Sposato, CV 16-3674 (JFB) (AKT)

Decision Date22 August 2017
Docket NumberCV 16-3674 (JFB) (AKT)
PartiesCARLOS VILLAFANE, Pro Se Plaintiff, v. MICHAEL SPOSATO, Nassau County Sheriff, and ARMOR CORRECTIONAL HEALTH SERVICE, Defendants.
CourtU.S. District Court — Eastern District of New York

CARLOS VILLAFANE, Pro Se Plaintiff,
v.
MICHAEL SPOSATO, Nassau County Sheriff,
and ARMOR CORRECTIONAL HEALTH SERVICE, Defendants.

CV 16-3674 (JFB) (AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 22, 2017


REPORT AND RECOMMENDATION

A. KATHLEEN TOMLINSON, Magistrate Judge:

I. PRELIMINARY STATEMENT

Pro se Plaintiff Carlos Villafane ("Villafane" or "Plaintiff") brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging violations of the Fifth, Eighth and Fourteenth Amendments, as well as the Prison Litigation Reform Act. See generally Complaint ("Compl.") [DE 1]. Defendants Michael Sposato and Armor Correctional Health Services of New York s/h/a Armor Correctional Health Service (collectively, "Defendants") have moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). Notice of Motion [DE 19]. Judge Bianco referred Defendants' Motion to Dismiss to this Court for a Report and Recommendation as to whether the motion should be granted. DE 33.

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II. BACKGROUND

A. Factual Background

The following factual allegations have been taken from Plaintiff's Complaint and the Plaintiff's Opposition to Defendants' motion to dismiss. Because Plaintiff is proceeding pro se, the Court is obligated to construe his pleadings liberally "to raise the strongest arguments that they suggest." See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d. Cir. 2006)) (collecting cases) (internal quotation marks omitted).1 All facts alleged by Plaintiff are assumed to be true for purposes of deciding the motion to dismiss and are construed in a light most favorable to Plaintiff as the non-moving party. See, e.g., LaFaro v. N.Y. Cardiothoracic Grp., 570 F.3d 471, 475 (2d Cir. 2009) (quoting Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.

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2003)); Matthews v. City of N.Y., 889 F. Supp. 2d 418, 425 (E.D.N.Y. 2012) (citing LaFaro, 570 F.3d at 475-76).

1. Plaintiff's Medical Issues

On or about September 11, 2013, Plaintiff was taken to the Nassau County Correctional Center ("NCCC"), referred to by Plaintiff in his Complaint as the "Nassau County Jail." See Compl. § III.B. At that time, Plaintiff had a broken left forearm. Id. § III.C. Despite informing the "medical department" about his condition, Plaintiff was "neglected intentionally without pain medication." Id. On September 14, 2013, Plaintiff was taken to the "Nassau County University Hospital, where the doctor had [Plaintiff] x-rayed set [his] arm in a soft cast." Id. A doctor advised Plaintiff that he needed surgery and told "the officials" to bring Plaintiff back to the hospital for surgery on September 17, 2013. Id. The NCCC did not produce Plaintiff for the surgery on that date and "still refused to give [Plaintiff] the said prescribed...pain medication." Id.

On September 24, 2013, Plaintiff was examined at the NCCC by a visiting orthopedist "who expressed shock" that Plaintiff "had not received any surgery." Id. According to Plaintiff, the orthopedist "entered an order on my medical chart by directing a nurse to write down that it was extremely urgent that I have surgery." Id. Once again, however, the NCCC "knowingly ignored, and intentionally did denied [sic] [Plaintiff] the proper medical procedures and also continued to deny...the pain medication or any type of medication to aliviate [sic] the pain." Id. On October 9, 2013, Plaintiff was transported to Nassau University Medical Center where his arm was again x-rayed. Id. The doctor told him that his arm was in fact broken. Id. The doctor also told him that because he had not received surgery, his arm would have to be rebroken "and that the surgery cost too much money and the facility wouldn't pay." See id. Plaintiff's arm was then set in a hard cast and Plaintiff complained again about the pain. Id.

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Around the end of October 2013, Plaintiff appeared before Judge Hurley in connection with his criminal case. See id. Plaintiff complained to his lawyer about the NCCC's treatment of him. Id. Plaintiff states that his lawyer spoke to Judge Hurley and that Judge Hurley recommended that Plaintiff "be transferred to the Metropolitan Detention Center in Brooklyn, New York." Id.

On November 5, 2013, Plaintiff was transferred to the Metropolitan Detention Center ("MDC"). Id. Sometime thereafter, MDC officials transported Plaintiff to the "[B]rooklyn Medical Center and Kingsbrook Hospital from 2014 through 2015." Id. At the Brooklyn Medical Center, Plaintiff underwent the surgery that he needed — his arm was rebroken and set with two metal plates and metal screws. Id. According to Plaintiff, "my arm is not the same I don't have 100% use of my left wrist and my left hand and I am in constant pain." See id.

2. Grievances

In his Opposition to the Defendants' Motion to Dismiss, Plaintiff states that while detained at the NCCC, he lodged numerous complaints about his left arm as well as other issues, through grievance forms and sick-call requests. See Plaintiff's Opposition ("Pl's. Opp'n") [DE 30] at 4-5. Plaintiff represents that he could not tell what the officer wrote on most of the complaint forms and that there were times when the officer informed Plaintiff that he "had to sign the form because soon [he would] be taken to the Hospital." Id. at 4. Plaintiff further maintains that on "some of the forms the officer wrote that the Plaintiff Refuse [sic] to sign while writing a later date." Id. Plaintiff asserts that those statements are not true because he had, in fact, signed the form on an earlier date. Id. Plaintiff points out that defendants' counsel referred to the Prison Litigation Reform Act ("PLRA") in the motion papers. Id. According to Plaintiff, the PLRA "makes it harder for prisoners to file lawsuits in federal court." Id. Plaintiff adds that

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the fact is that the Plaintiff was Transferred from a county holding facility to a Federal Transcient [sic] facility which is A different jurisdiction, with different Rules and Regulation, to wit your complaints go to Washington D.C. besides your Honor the Plaintiff was Released, he was Free when he submitted this Law Suits so I am Asking your Honor to Please don't dismiss my lawsuit Please Allow a jury to decide.

Id. at 6.

3. Claims Set forth in the Instant Action and Relief Sought

Plaintiff represents that he has filed the instant action against Armor Correctional Health Services of New York ("Armor") for intentionally failing to provide him with "prop[]er medical care" and against Sheriff Michael Sposato for "allowing [Armor] to do so" and for not "monitoring [the] medical department." Compl. § II.D. According to Plaintiff, Defendants' conduct constitutes violations of the Eighth and Fifth Amendments of the Constitution, the Equal Protection Clause and the Prison Litigation Reform Act. Id. § II.B. Plaintiff seeks $5,000,000 in monetary damages to compensate him for his pain and suffering, mental anguish and inability to have full use of his left hand. Id. § IV.

B. Procedural History

Pro se Plaintiff Villafane commenced this action by filing a Complaint on June 24, 2016. See DE 1. By Order entered July 6, 2016, Judge Bianco who was assigned to this civil case, granted Plaintiff's Motion for Leave to Proceed in Forma Pauperis. DE 5. The Nassau County Attorney's Office, on behalf of Nassau County Sheriff Michael Sposato, filed an Answer to the Complaint on September 9, 2016. DE 12. On October 6, 2016, the law firm of Lewis Brisbois Bisgaard and Lewis ("Lewis Brisbois") filed a letter application to Judge Bianco seeking a pre-motion conference for purposes of moving to dismiss the Complaint against Armor. DE 15. On October 12, 2016, Judge Bianco issued an Order waiving the pre-motion conference requirement and setting a briefing schedule on Armor's motion to dismiss. DE 16. Lewis Brisbois filed the

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motion to dismiss on November 14, 2016 on behalf of both defendants. DE 19. Pursuant to Judge Bianco's Scheduling Order, Plaintiff's Opposition to the motion was due to be filed by December 28, 2016, and Defendants' Reply, by January 11, 2017. DE 16.

On December 19, 2016, Plaintiff notified the Court of a change in his address. DE 22. Judge Bianco posted an Electronic Order on December 23, 2017 stating that due to Plaintiff's address change, Defendants were unable to serve him with a copy of their motion. See 12/23/2016 Electronic Order. Judge Bianco set a revised briefing schedule, directing Plaintiff to file his Opposition by January 25, 2017 and Defendants to file their Reply by February 8, 2017. Id.

On January 9, 2017, Plaintiff filed a motion for extension of time to file his Opposition, which Judge Bianco granted. DE 26, 27. The deadline for Plaintiff to submit his Opposition was extended to February 24, 2017. The filing date for the Reply was extended to March 10, 2017. DE 27. On March 3, 2017, Judge Bianco issued an Order directing Plaintiff to file his Opposition by March 20, 2017, or alternatively, to send a letter communicating to the Court why no Opposition had been filed. DE 28. The Court warned Plaintiff that a failure to respond may result in dismissal of his case, with prejudice, for failure to prosecute his claims. Id. On March 17, 2017, Plaintiff filed a letter explaining that he mailed a copy of his Opposition to Defendants via Fedex on February 24, 2017. DE 29. Plaintiff further stated that he requested additional time to respond to Defendants' motion so that he could obtain medical records from two hospitals where he received treatment. Id. Plaintiff's Opposition was filed with the Clerk's Office on March 23, 2017. DE 30. In addition to arguing the merits of his case, Plaintiff informed the Court that the 87 pages of unpublished opinions provided to him by the Defendants

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were not legible. Id. Plaintiff also requested...

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