Whitenack v. Armor Med.
| Decision Date | 28 May 2013 |
| Docket Number | 13-CV-2071 (SJF)(ARL) |
| Parties | KEITH WHITENACK CC #13001602, Plaintiff, v. ARMOR MEDICAL; SHERIFF SPOSATO, Nassau County Correctional Facility; NASSAU COUNTY; and CLERK OF THE COURT, Nassau County-DA Office, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On April 3, 2013, incarcerated pro se plaintiff Keith Whitenack ("plaintiff") filed a civil rights complaint in this Court pursuant to 42 U.S.C. § 1983 ("Section 1983") against defendants, Armor Medical ("Armor"); Sheriff Sposato of the Nassau County Correctional Facility ("Sheriff Sposato"), Nassau County ("the County") and Clerk of the Court at the Nassau County DA's Office ("the Clerk") (collectively, "defendants"), accompanied by a Prisoner Authorization Form and an application to proceed in forma pauperis. Since plaintiff's financial status, as set forth in the declaration in support of his application for leave to proceed in forma pauperis, qualifies him to commence this action without the prepayment of the filing fees, see 28 U.S.C. § 1915(a)(1), the application to proceed in forma pauperis is granted. However, for the reasons set forth below, plaintiff's complaint is dismissed in part pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915 A(b)(1) for failure to state a claim for relief.
Plaintiff alleges: (1) that from December 5, 2011 through March 10, 2012, he was refused medical treatment by a doctor at the Nassau County Correctional Center ("NCCC") for an injury to his right bicep; (2) that from August 2012 through December 2012, despite the recommendation of three (3) doctors, the Armor medical director refused to send him to a dermatologist for a mole on his chest, which turned out to be malignant melonoma that needed immediate surgery, as a result of which his cancer progressed from Stage 0 or Stage I to Stage IIA; (3) that "food at the [NCCC] had feces in it numerous times," inmates are not provided toilet paper, the prices for telephone calls are too high and the commissary is overpriced and does not have "nutrients or real food;" (4) that in September or October 2012, two (2) grievances that he filed "'disappeared' and were never addressed" and his dorm was served sour or spoiled chicken salad and was not provided a replacement meal after they complained to an officer and corporal in that dorm; (5) that the grievance procedure at the NCCC "is horrible," insofar as inmates need to ask a correction officer for a grievance form and there is no civilian panel to handle grievances that are filed; (6) that the two (2) visits per week allowed pretrial detainees is insufficient and pretrial detainees should not be required to wear identification cards indicating that they are "inmates;" (7) that his requests to obtain his medical records, sick calls, doctors' notes and grievances have been ignored; (8) that correction officers at the NCCC bang the cell gates to wake the inmates up and that the banging is "approved by the sheriff and County;" (9) that Dr. Beju from Armor misdiagnosed and mistreated his complaints of not being able to urinate, as a result of which he was in pain for four (4) months, until he had "uritheral stricture" surgery in January 2013; (10) that the NCCC does not "rotate the menu" so inmates are served the same food for months, the meals are "served on unsanitary spoons" and do not meet the minimumnutritional requirements; (11) that Armor has taken him off the pain medication previously prescribed to him for degenerated discs and two (2) herniated discs and has not prescribed proper medication or physical therapy; and (12) that Armor staff "refus[e] treatment, refus[e] meds and are not qualified to treat people." Plaintiff seeks "to be paid [an unspecified amount] for pain & suffering caused by the [NCCC], medical staff and County;" to have "changes * * * made to medical ASAP;" to have the NCCC's commissary "changed & be like Rikers & Riverhead where you can get food not just junk;" to have the prices for telephone calls be made cheaper; damages in the amount of one million dollars ($1,000,000.00) "for being left with advancing cancer & not being able to pee for 4 months;" and "to be put on Interferon for [his] liver (Hep C) or [his] Dr. said [he] could have liver failure w/in the 6 months * * *."
Under both the Prison Litigation Reform Act, 28 U.S.C. § 1915A, and them forma pauperis statute, 29 U.S.C. § 1915(e)(2), a district court must dismiss a complaint if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. §§ 19I5A(b) and 1915(e)(2)(B)(i-iii). See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) ().
It is axiomatic that district courts are obliged to read pro se complaints plaintiff liberally, see Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976))Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), and to construe them "to raise the strongest arguments [that they] suggest[]."Jabbar v. Fischer, 683 F.3d 54, 56 (2d Cir. 2012) (quotations, alterations and citations omitted). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of "all well-pleaded, nonconclusory factual allegations in the complaint." Harrington v. County of Suffolk 607 F.3d 31, 33 (2d Cir. 2010); see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct 1937, 1949-50, 173 L. Ed. 2d 868 (2009).
Nevertheless, a complaint must plead sufficient facts to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 127 S. Ct. 1955, 1974, 167 L. Ed. 2d 929 (2007). The pleading of specific facts is not required; rather a complaint need only give the defendant "fair notice of what the . . . claim is and the grounds upon which it rests." Erickson, 551 U.S. 89, 127 S. Ct. at 2200 (quotations and citations omitted); see also Anderson News, LLC v. American Media, Inc, 680 F.3d 162, 182 (2d Cir. 2012). cert. denied, 133 S. Ct. 846, 184 L. Ed. 2d 655 (Jan. 7, 2013) (accord). "A pleading that offers 'labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.'" Ashcroft, 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S. Ct. 1955)' see also Gallop v. Cheney, 642 F.3d 364, 368 (2d Cir. 2011) (accord). The plausibility standard requires "more that a sheer possibility that defendant has acted unlawfully." Ashcroft, 556 U.S. at 678, 129 S. Ct. at 1949; see also Wilson v. Merrill Lynch & Co., Inc., 671 F.3d 120, 128 (2d Cir. 2011) (accord).
Section 1983 of Title 42 of the United States Code provides, in relevant part:
A Section 1983 claim must allege the personal involvement of any individual defendant in the purported constitutional deprivation. Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010) (quoting Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006)); see also Costello v. City of Burlington, 632 F.3d 41, 48-9 (2d Cir. 2011). "Personal involvement" may be established by evidence of direct participation in the challenged conduct, or by evidence of a supervisory official's "(1) failure to take corrective action after learning of a subordinate's unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates." Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d Cir. 2003); see also Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, 127 (2d Cir. 2004); Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254-55 (2d Cir. 2001). "The fact that [a defendant] was in a high position of authority is an insufficient basis for the imposition of personal liability." Al-Jundi v. Estate of Rockefeller, 885F.2d 1060, 1065 (2d Cir. 1989); see also Back, 365 F.3d at 127; Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). A complaint based upon a violation under Section 1983 that does not allege facts establishing the personal involvement of an individual defendant fails as a matter of law. See Costello, 632 F.3d at 48-9.
Plaintiff has not alleged the direct participation of the Clerk in any of the wrongdoing alleged in his complaint, nor any basis upon which to find the Clerk liable in a supervisory capacity. Accordingly, plaintiff's Section 1983 claims against the Clerk are dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim for relief.
a. Leave to Amend
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