Holloway v. Suffolk County Correctional Facility Medical

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TARELL T. HOLLOWAY,

Plaintiff,

ORDER

-against- 21-CV-5011(JS)(JMW)

ERROL D. TOULON, JR., Sheriff;

SUFFOLK COUNTY CORRECTIONAL

FACILITY; JOHN/JANE DOE, Medical

Dept. Suffolk County Corr. Fac.;

JANE/JOHN DOE, New York State/Suffolk

County; RICHARD GILBERT, Hand

Specialist of Peconic Bay Medical

Center;

Defendants.

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APPEARANCES

For Plaintiff: Tarell Holloway, Pro Se

483024

Suffolk County Correctional Facility

110 Center Drive

Riverhead, New York 11901

For Defendants: No Appearances.

SEYBERT, District Judge:

By Order dated November 16, 2021, the Court granted the

application of pro se plaintiff Tarell Holloway (“Plaintiff”),

currently incarcerated at the Suffolk County Correctional Facility

(“the Jail”), to proceed in forma pauperis (“IFP”) and sua sponte

dismissed his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b). (See Order, ECF No. 8.) Plaintiff was granted leave to

file an Amended Complaint; on December 17, 2021, he did so. (See

Am. Compl., ECF No. 10.) Upon review, the Court finds that

Plaintiff has not alleged a plausible claim for relief.

Accordingly, for the reasons set forth in the November 16, 2021

Order, and for the reasons that follow, Plaintiff’s claims brought

pursuant to 42 U.S.C. § 1983 (“Section 1983”) in the Amended

Complaint are DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b). The Court declines to exercise supplemental

jurisdiction over any remaining state law claims and such claims

are DISMISSED WITHOUT PREJUDICE.

BACKGROUND1

I. Plaintiff’s Original Complaint and

the Court’s November 16, 2021 Order

On or around September 27, 2021, Plaintiff filed a pro

se Complaint pursuant to Section 1983 against the Jail and three

“John Does” who were alleged to be employed at the Jail’s Medical

Unit, the Peconic Bay Medical Center, and the Stony Brook Medical

Center, respectively (the “John Does”), along with an application

to proceed IFP and a Prisoner Authorization form pursuant to the

Prison Litigation Reform Act (“PLRA”). (Compl., ECF No. 1; IFP

App., ECF No. 2; PLRA Form, ECF No. 3.)

Plaintiff complained that he was deprived adequate

medical care following an injury to his pinky finger allegedly

1 Excerpts from the Complaint and Amended Complaint are reproduced

here exactly as they appear in the original. Errors in spelling,

punctuation, and grammar have not been corrected or noted.

sustained during a basketball game at the Jail during recreation

time. (Compl., ECF No. 1, at ¶ II.)

By Order dated November 16, 2021, the Court carefully

considered Plaintiff’s claims and, even upon a liberal

construction, concluded that he had not alleged a plausible claim.

(See Order, ECF 8, in toto.) Specifically, the Court dismissed

Plaintiff’s claims against the Jail with prejudice because, as an

administrative arm of the municipality Suffolk County (“the

County”), the Jail has no independent legal identity; therefore,

the Jail could not be sued. (Id. at 7.) In an abundance of

caution and in light of Plaintiff’s pro se status, the Court also

considered whether the Complaint alleged a plausible claim when

construed against the County and concluded that it did not. (Id.

at 8-9.) Indeed, the Court explained that a plausible Section

1983 claim requires that a plaintiff show “‘how that the challenged

acts were performed pursuant to a municipal policy or custom.’”

(Id. at 8 (quoting Tafolla v. County of Suffolk, No. 17-CV-4897,

2021 WL 3675042, at *10 (E.D.N.Y. Aug. 19, 2021) (Seybert, J.);

further citation omitted).) Further, the Court made clear that,

“[t]o establish the existence of a municipal policy or custom, the

plaintiff must allege:

(1) the existence of a formal policy which is

officially endorsed by the municipality; (2)

actions taken or decisions made by municipal

policymaking officials, i.e., officials with

final decisionmaking authority, which caused

the alleged violation of the plaintiff’s civil

rights; (3) a practice so persistent and

widespread as to practically have the force of

law or that was so manifest as to imply the

constructive acquiescence of senior

policymaking officials; or (4) that a

policymaking official exhibited deliberate

indifference to constitutional deprivations

caused by subordinates.

(Id. at 8 (quoting Avant v. Miranda, No. 21-CV-0974, 2021 WL

1979077, at *3 (E.D.N.Y. May 18, 2021) (Seybert, J.) (cleaned

up)).)

Moreover, with regard to Plaintiff’s claims against the

unidentified individuals, the Court considered whether Plaintiff

had sufficiently alleged the personal involvement of each such

individual in the alleged constitutional deprivation and concluded

that he had not. (See Order, ECF 8, at 9-10.) As the Court

explained, “[a] complaint based upon a violation under Section

1983 that does not allege the personal involvement of a defendant

fails as a matter of law and should be dismissed.” (Id. at 9-10

(citing Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir. 2010)).)

In addition, because Section 1983 liability requires

that “the challenged conduct was attributable at least in part to

a person who was acting under color of state law” (id. at 10

(citation omitted)), the Court dismissed Plaintiff’s claims

against the individuals alleged to work at Peconic Bay Medical

Center (“PBMC”) and at Stony Brook Medical Center (“SBMC”). (Id.)

Wholly absent were any allegations sufficient to reasonably find

that such individuals: were state actors; were “willful

participants in joint activity with the State;” or “conspired with

a state actor to violate [P]laintiff’s constitutional rights.”

(Id. at 10 (citations omitted).)

Finally, the Court found that Plaintiff’s allegations

did “not set forth a plausible deliberate indifference claim as a

result of the alleged delay and/or denial of adequate medical

attention in violation of the Eighth Amendment’s prohibition

against cruel and unusual punishment.” (See Order, ECF No. 8, at

11.) The Court explained that “[t]o state a claim for deliberate

indifference to a serious medical need, a plaintiff must show both

that his medical need was serious and that the defendants acted

with a sufficiently culpable state of mind.” (Id. (citation

omitted).) Indeed, the Court instructed that: “Prison officials

and other state actors who act with mere negligence will not be

held liable for constitutional violations because any [Section]

1983 claim for a violation of due process requires proof of a mens

rea greater than mere negligence.” (Id. at 11 (quoting Darnell v.

Pineiro, 849 F.3d 17, 33, 36 (2d Cir. 2017) (internal quotation

marks omitted)).) Applying these standards, the Court dismissed

Plaintiff’s deliberate indifference claims because Plaintiff did

“not allege any facts showing that anything [each individual]

personally did or failed to do violated Plaintiff’s rights” or

“that the state of mind of any of the John Doe Defendants was

sufficiently culpable.” (Id. at 12 (internal quotation marks and

citation omitted).)

In granting leave to amend the Complaint, the Court made

clear that the Amended Complaint must “address the pleading

deficiencies identified herein regarding his claims against the

John Doe Defendants.” (Order, ECF No. 8, at 12-13.) Further, the

Court warned that “Plaintiff must include factual allegations

relating to the acts or omissions of the John Doe Defendants that

give rise to his claims as well as descriptive information, such

as when and where these acts or omissions occurred, for purposes

of ascertaining the identities of the John Doe Defendants.” (Id.

at 13.)

II. The Amended Complaint2

On December 17, 2021, Plaintiff timely filed an unsigned

Amended Complaint that continues to seek liability against the

Jail and adds as defendants: Sheriff Toulon; New York State;

Suffolk County; Richard Gilbert (“Dr. Gilbert”); Jane/John Doe

2 Given that Plaintiff’s Amended Complaint is unsigned, it is not

properly before the Court. See FED. R. CIV. P. 11(a) (instructing

that all pleadings must be signed by the party if the party is not

represented by an attorney). However, given Plaintiff’s pro se

status, the Court has reviewed the Amended Complaint and finds, as

explained herein, that it suffers from the same substantive

deficiencies as the original Complaint. See Harris v. Admin. for

Child. Servs., No. 20-CV-6832, 2021 WL 972361, at *1, n.1 (S.D.N.Y.

Jan. 26, 2021) (accepting pro se plaintiff’s unsigned amended

complaint for purposes of sua sponte screening pursuant to 28

U.S.C. § 1915), appeal dismissed, No. 21-586, 2021 WL 4167372 (2d

Cir. Aug. 10, 2021).

Medical Department at SCCF; and Jane/John Doe New York

State/Suffolk County (collectively, “Defendants”). (Am. Compl.,

ECF No. 10, at 1-2.) Like the original Complaint, the Amended

Complaint complains that Plaintiff did not receive adequate

medical care for his injured pinky. (Id., in toto.)

According to the Amended Complaint, Plaintiff, “a

federal pretrial detainee . . . awaiting sentencing,”3 injured his

right pinky finger on March 31, 2021 while playing basketball

during yard time. (Am. Compl. at 3.) Plaintiff alleges that he

“heard a pop” and informed “John Doe” officer that he hurt his

pinky and asked to be taken to “medical”. (Id. at 3-4.) Plaintiff

next alleges that he was seen by a nurse, “Jane Doe”, who examined

his pinky and said that “the pinky look[s] broken” but a doctor

would have to make that determination. (Id. at 4.) Plaintiff

alleges that he “had to wait to be seen” by a doctor, Dr. John

Doe, who examined Plaintiff’s finger and concluded it was sprained.

Plaintiff claims that he complained to the doctor that he could

not feel his pinky and that “the swelling was getting worse.”

(Id.) Although Plaintiff asked to go to the emergency room for an

3 Having pled guilty before the undersigned to Count One in the

felony charging indictment, Plaintiff is a convicted inmate. See

United States v. Holloway, No. 20-CR-00469(JS), Jan. 11, 2021

Minute Entry (ECF No. 10) (E.D.N.Y. Jan. 22, 2021) (changing plea

to guilty). He currently awaits sentencing. See id., Nov. 17,

2021 Elec. Scheduling Order (adjourning sentencing until April 15,

2022).

X-ray, Plaintiff claims that the doctor sent him “back to his dorm

without any type of treatment for the injury, no ice nor pain

meds.” (Id.)

Plaintiff alleges that he complained “to every ‘John

Doe’ that worked the dorm about him not being able to move his

pinky and discomfort.” (Am. Compl. at 5.) According to his

allegations, Plaintiff “was sent to Peconic Bay Medical Center to

be evaluated after 3½ days of complaining about not having movement

and discomfort along with swelling.” (Id.) Plaintiff alleges

that an X-ray taken at PBMC revealed that his pinky was

“dislocated” and, as a result, Plaintiff was referred to a hand

specialist, Dr. Gilbert. (Id.) Plaintiff claims that Dr. Gilbert

told Plaintiff that he did not feel comfortable treating Plaintiff

because Plaintiff is in Jail and, instead, referred Plaintiff for

physical therapy. (Id. at 5-6.) Plaintiff further alleges that

although Dr. Gilbert explained that surgery could also be done “to

fix the problem”, he did not “feel comfortable doing it” and that

“since [] Plaintiff was being treated by someone at Stonybrook

Medical Center, [] Plaintiff needed to go back [. . .] there.”

(Id. at 6.) Plaintiff alleges that he was taken to SBMC where a

hand specialist, Dr. Wang, performed “right small finger proximal

interphalangeal surgery” on December 3, 2021. (Id.)

As a result of the foregoing, Plaintiff seeks to recover

a damages award in the sum of $5 million “for pain and suffering

and for future side effects that will occure.” (Id.)

DISCUSSION

I. Legal Standards

A. Consideration of the Amended Complaint

Pursuant to 28 U.S.C. § 1915

Section 1915 requires a district court to dismiss an in

forma pauperis complaint or amended complaint if the action is

frivolous or malicious, fails to state a claim upon which relief

may be granted, or seeks monetary relief against a defendant who

is immune from such relief. See 28 U.S.C. §§

1915(e)(2)(B)(i)-(iii); 1915A(b). An action is frivolous as a

matter of law when, among other things, it is based on an

“indisputably meritless legal theory” or when it “lacks an arguable

basis in law . . . or [when] a dispositive defense clearly exists

on the face of the complaint.” Livingston v. Adirondack Beverage

Co., 141 F.3d 434, 437 (2d Cir. 1998) (citation omitted). The

Court is required to dismiss the action as soon as it makes such

a determination. See 28 U.S.C. § 1915A; Avant v. Miranda, No. 21-

CV-0974, 2021 WL 1979077, at *2 (E.D.N.Y. May 18, 2021).

Courts are obligated to construe the pleadings of a pro

se plaintiff liberally and to interpret them to raise the

“strongest [claims] that they suggest.” Triestman v. Fed. Bureau

of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation

marks and citations omitted) (emphasis in original). “But the

‘special solicitude’ in pro se cases[] has its limits –- to state

a claim, pro se pleadings still must comply with Rule 8 of the

Federal Rules of Civil Procedure, which requires a complaint to

make a short and plain statement showing that the pleader is

entitled to relief.” Wynn v. Regus Mgmt. Grp. LLC, No. 21-CV-

3503, 2021 WL 2018967, at *1 (S.D.N.Y. May 17, 2021) (quoting

Triestman, 470 F.3d at 475).

B. Section 1983

Section 1983 provides that:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State . . . subjects, or causes to be

subjected, any citizen of the United States

. . . to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured . . . .

42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff

must “allege that (1) the challenged conduct was attributable at

least in part to a person who was acting under color of state law

and (2) the conduct deprived the plaintiff of a right guaranteed

under the Constitution of the United States.” Rodriguez v.

Shoprite Supermarket, No. 19-CV-6565, 2020 WL 1875291, at *2

(E.D.N.Y. Apr. 15, 2020) (internal quotation marks and citation

omitted).

II. Application of 28 U.S.C. § 1915

A. Claims Against the Jail

As a threshold matter, the Court already dismissed

Plaintiff’s claims against the Jail with prejudice because it is

a non-suable entity. (See Order, ECF No., 8 at 7-8.) Cf. Griffin

v. Fludd, No. 19-CV-0107, 2019 WL 3253181, at *3 (E.D.N.Y. July

18, 2019) (Seybert, J.) (dismissing Section 1983 claims against

the Nassau County jail with prejudice pursuant to 28 U.S.C. §§

1915(e)(2)(b)(ii) and 1915A(b) because, as an administrative arm

of the Nassau County, the jail was a non-sueable entity). Because,

“‘under New York law, departments that are merely administrative

arms of a municipality do not have a legal identity separate and

apart from the municipality and therefore, cannot sue or be sued.”

Sturgis v. Suffolk County Jail, No. 12-CV-5263, 2013 WL 245052, *2

(E.D.N.Y. Jan. 22, 2013) (Seybert, J.) (quoting Davis v. Lynbrook

Police Dep’t, 224 F. Supp. 2d 463, 477 (E.D.N.Y. 2002)),

Plaintiff’s claims against the Jail are implausible; therefore,

these claims are DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. §§

1915(e)(2)(B)(ii), 1915A.

B. Claims Against Suffolk County

Similarly, given Plaintiff’s pro se status, the Court

liberally construed Plaintiff’s Complaint as against the

municipality, Suffolk County, and concluded that Plaintiff did not

sufficiently allege a plausible Section 1983 claim against it.

(See Order, ECF No. 8, at 8-9.) As the Court already explained,

the County “cannot be held liable under Section 1983 on a

respondeat superior theory” and a “plaintiff is required to show

that the challenged acts were performed pursuant to a municipal

policy or custom.” (Id. at 8 (internal quotation marks and

citations omitted).)

Notwithstanding the Court’s clear guidance concerning

the minimum requirements to plausibly allege a Section 1983 claim

against the County, Plaintiff has failed to do so. Even when

liberally construing the Amended Complaint, there are simply no

factual allegations that a municipal policy or custom existed which

caused the alleged constitutional deprivations. (See Am. Compl.,

in toto.) Like the original Complaint, the Amended Complaint is

wholly devoid of any allegations from which the Court can

reasonably construe a plausible Section 1983 claim against the

County. Thus, Plaintiff’s Section 1983 claims against Suffolk

County claims are DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(b)

and 1915A(b).

C. Claims Against Sheriff Toulon

To state a claim for relief under Section 1983 against

an individual defendant, a plaintiff must allege the personal

involvement of the defendant in the alleged constitutional

deprivation. Farid v. Elle, 593 F.3d 233, 249 (2d Cir. 2010). In

Iqbal, the Supreme Court held that “[b]ecause vicarious liability

is inapplicable to . . . [Section] 1983 suits, a plaintiff must

plead that each Government-official defendant, through the

official’s own individual actions, has violated the Constitution.”

Iqbal, 556 U.S. at 676. A complaint based upon a violation under

Section 1983 that does not allege the personal involvement of a

defendant fails as a matter of law and should be dismissed.

Johnson v. Barney, 360 F. App’x 199, 201 (2d Cir. 2010).

Here, although Plaintiff names Sheriff Toulon as a

Defendant in the caption of his Amended Complaint, Plaintiff

includes no factual allegations of conduct or inaction

attributable to Sheriff Toulon. (See Am. Compl., in toto.)

Indeed, Sheriff Toulon is not mentioned at all in the body of the

Amended Complaint. (See id.)

To the extent Plaintiff seeks to impose Section 1983

liability on Sheriff Toulon given the supervisory position he

holds, the Second Circuit has made clear that there is “no special

test for supervisory liability.” Tangreti v. Bachmann, 983 F.3d

609, 616 (2d Cir. 2020). Rather, in order “[t]o hold a state

official liable under § 1983, a plaintiff must plead and prove the

elements of the underlying constitutional violation directly

against the official without relying on a special test for

supervisory liability.” Id. at 620. However, after affording

Plaintiff an opportunity to “allege the personal involvement of

the defendant in the alleged constitutional deprivation” (Order,

ECF No. 8, at 9), Plaintiff has not done so. Accordingly, in the

absence of any allegations against Sheriff Toulon in the Amended

Complaint, Plaintiff’s Section 1983 claims against Sheriff Toulon

are DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

D. Claims Against Dr. Gilbert

As noted above, to state a plausible Section 1983 claim,

a plaintiff must allege that the challenged conduct was committed

by a person acting under color of state law. (See supra at 10.)

Thus, private parties are not generally liable under Section 1983

because such liability may only be imposed upon wrongdoers “who

carry a badge of authority of a State and represent it in some

capacity, whether they act in accordance with their authority or

misuse it.” Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488

U.S. 179, 191 (1988) (citation omitted). Like the original

Complaint, the Amended Complaint does not allege that Dr. Gilbert

is a state actor.

As the Court explained in its November 2021 Order

dismissing Plaintiff’s Section 1983 claims against the “John Doe”

alleged to work at PMBC, “private actors may be considered to be

acting under the color of state law for purposes of § 1983 if the

private actor was a willful participant in joint activity with the

State or its agents, or who conspires with a state actor to violate

a plaintiff’s constitutional rights.” (Order, ECF No. 8, at 10

(internal quotation marks and citations omitted).) In order to

state a Section 1983 conspiracy claim, a plaintiff must allege:

“(1) an agreement between a state actor and a private party; (2)

to act in concert to inflict an unconstitutional injury; and (3)

an overt act done in furtherance of that goal causing damages.”

Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 (2d Cir.

2002) (citing Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.

1999)).

Notwithstanding the Court’s guidance in its November

2021 Order, in his Amended Complaint, Plaintiff does not include

any allegations such that the Court could reasonably find state

action by Dr. Gilbert. Accordingly, in the absence of state

action, Plaintiff’s Section 1983 claim against Dr. Gilbert is not

plausible; therefore, this claim is DISMISSED pursuant to 28 U.S.C.

§§ 1915(e)(2) (b)(ii); 1915A(b).

E. Claims Against the “John Doe” Defendants

Finally, although the Court made clear that, “[t]o state

a claim for relief under Section 1983 against an individual

defendant, a plaintiff must allege the personal involvement of the

defendant in the alleged constitutional deprivation” (Order, ECF

No. 8, at 9-10), Plaintiff has not sufficiently alleged conduct or

inaction by any individual Defendant. (See Am. Compl., in toto.)

“Because vicarious liability is inapplicable to . . . [Section]

1983 suits, a plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has

violated the Constitution.” Iqbal, 556 U.S. at 676. A complaint

based upon a violation under Section 1983 that does not allege the

personal involvement of a defendant fails as a matter of law and

should be dismissed. Johnson v. Barney, 360 F. App’x 199, 201 (2d

Cir. 2010).

Moreover, as in the original Complaint, Plaintiff’s

allegations in his Amended Complaint fail to set forth a plausible

deliberate indifference claim as a result of the alleged delay

and/or denial of adequate medical attention in violation of the

Eighth Amendment’s prohibition against cruel and unusual

punishment. (See Am. Compl., in toto.) To state a claim for

deliberate indifference to a serious medical need, a plaintiff

must show both that his medical need was serious and that the

defendants acted with a sufficiently culpable state of mind, i.e.,

the charged official acted or failed to act “while actually aware

of a substantial risk that serious inmate harm will result.”

Paschal-Barros v. Balatka, No. 20-3150-CV, 2021 WL 5268000, *1 (2d

Cir. Nov. 12, 2021) (Summary Order) (internal quotation marks and

citation omitted). Prison officials and other state actors who

act with mere negligence will not be held liable for constitutional

violations because “any § 1983 claim for a violation of due process

requires proof of a mens rea greater than mere negligence.”

Darnell v. Pineiro, 849 F.3d 17, 33, 36 (2d Cir. 2017); see also

Grimmett v. Corizon Med. Assocs. of N.Y., No. 15-CV-7351, 2017 WL

2274485, at *4 (S.D.N.Y. May 24, 2017) (holding that more than

negligence is required to hold a defendant liable for violating

either the Eighth or Fourteenth Amendment) (citing Darnell, 849

F.3d at 36). Negligence that would support a claim for medical

malpractice does not rise to the level of deliberate indifference

and is not cognizable under Section 1983. See Salahuddin v. Goord,

467 F.3d 263, 280 (2d Cir. 2006). Further, a difference of opinion

regarding what constitutes an appropriate response and treatment

is not enough to state an actionable claim of deliberate

indifference. Ventura v. Sinha, 379 F. App’x 1, 2-3 (2d Cir.

2010).

As a threshold matter, Plaintiff’s alleged pinky injury

is not sufficiently serious. See Price v. Koenigsmann, No. 19-

CV-4068, 2022 WL 125818, at *6 (S.D.N.Y. Jan. 13, 2022) (“[M]inor

injuries, such as a broken finger, have consistently been held to

fall below the objective level of harm required to maintain a claim

for deliberate indifference under the Eighth Amendment.”); see

also Norman v. Mount Vernon Hosp., No. 17-CV-9174, 2020 WL 4432063,

at *8 (S.D.N.Y. July 31, 2020) (“‘[B]roken finger [alone] does not

constitute a serious enough injury to satisfy the objective prong

of the deliberate indifference test.’”) (quoting Laguna v. Kwan,

No. 13-CV-7079, 2015 WL 872366, at *4 (S.D.N.Y. Jan. 28, 2015)

(collecting cases); Magee v. Childs, No. 04-CV-1089, 2006 WL

681223, at *4-5 (N.D.N.Y. Feb. 27, 2006) (finding that the

plaintiff’s pleading failed to state a cognizable deliberate

medical indifference claim because an allegation that the

plaintiff suffered a broken finger did not satisfy the objective

element), report and recommendation adopted, 2006 WL 1555588

(N.D.N.Y. June 6, 2008); Rivera v. Johnson, No. 95-CV-0845, 1996

WL 549336, at *2 (W.D.N.Y. 1996) (“A broken finger, without more,

simply does not present a condition of urgency of the type that

may produce death, degeneration or extreme pain which

correspondingly merits constitutional protection.”). Indeed,

Plaintiff alleges that he suffered only “discomfort”, and

experienced “numbness” and “swelling.” (Am. Compl., at 4-5.)

Even assuming that the alleged injury to Plaintiff’s

finger constitutes a sufficiently serious medical condition,

Plaintiff’s allegations concerning the initial misdiagnosis of his

injury, the failure to provide ice or pain medication immediately

following his injury, or the delay in medical treatment at the

hospital do not rise to the level of deliberate indifference. See

Harris v. Westchester County Med. Ctr., No. 08-CV-1128, 2011 WL

2637429, at *3 (S.D.N.Y. July 6, 2011) (first quoting Anderson v.

Lapolt, No. 9:07–CV–l 184, 2009 WL 3232418, at *13 (N.D.N.Y. Oct.

1, 2009) (regarding alleged misdiagnosis, finding that without

more, “[a]llegations of negligent treatment and misdiagnosis do

not state a cause of action under the Eighth Amendment”); then

citing Burgess v. County of Rensselaer, No. l:03–CV–00652, 2006 WL

3729750, at *8 (N.D.N.Y. Dec. 18, 2006) (“[A] claim of

misdiagnosis, faulty judgment, or malpractice without more to

indicate deliberate indifference, is not cognizable under section

1983.” (internal quotations and citation omitted))).

Further, the alleged three- or four-day delay in sending

Plaintiff to the hospital for X-rays does not deprive Plaintiff of

his Eighth Amendment right to be free from cruel and unusual

punishment. See Miller-Harris v. Dinello, No. 16-CV-0541, 2018 WL

5728115, at *5 (N.D.N.Y. Aug. 7, 2018) (“[A] delay in providing an

x-ray for [a hand fracture] injury of two weeks does not rise to

a level sufficient to establish medical indifference”), report and

recommendation adopted, 2018 WL 4204245 (N.D.N.Y. Sept. 4, 2018);

see also Ocasio v. Deluke, No. 08-CV-0051, 2010 WL 6001595, at *14

(N.D.N.Y. Sept. 3, 2010) (finding a delay of approximately one

month in performing x-ray did not constitute an inordinate amount

of time sufficient to rise to a level of constitutional

significance), report and recommendation adopted, 2011 WL 864898

(N.D.N.Y. Mar. 8, 2011). Similarly, the alleged delay in having

the surgery “does not violate the constitution unless it involves

an act or failure to act that evinces a conscious disregard of a

substantial risk of serious harm.” Price, 2022 WL 125818, at *7.

Critically, Plaintiff alleges only that Dr. Gilbert declined to

perform the surgery because Plaintiff was already being treated by

a doctor at SBMC and because of Plaintiff’s incarceration. Neither

reason proffered by Plaintiff suggest that the delay was in

“conscious disregard of a substantial risk of serious harm.” Id.;

(cf. Am. Compl. at 6.)

Finally, insofar as Plaintiff alleges the failure to

provide ice or pain medication constituted cruel and unusual

punishment, the Court disagrees. See Laurent v. Edwin, 528 F.

Supp. 3d 69, 87 (E.D.N.Y. 2021) (“A claim based on an inmate’s

disagreement with the defendant[’s] medical judgment as to the

proper course of treatment cannot support a constitutional claim

for deliberate indifference.”); Norman, 2020 WL 4432063, at *10

(“[T]he decision to prescribe medication, or not, is a medical

determination.” (internal quotation marks and citation omitted)).

In sum, Plaintiff has not plausibly alleged either a sufficiently

serious constitutional deprivation or that the John Does acted

with deliberate indifference, see Prince, 2022 WL 125818, at *6;

(cf. Am. Compl., in toto); hence, his deliberate indifference

claims fail. Thus, since Plaintiff’s allegations do not rise to

the level of cruel and unusual punishment under the Eighth

Amendment, his Section 1983 deliberate indifference claims are

DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

* * *

To the extent the Amended Complaint can be construed to

assert any state law claims, i.e., a claim for negligence, the

Court declines to exercise supplemental jurisdiction over any such

claims and DISMISSES them WITHOUT PREJUDICE. See 28 U.S.C. §

1367(c)(3); Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350

(1988); see also Delaney v. Bank of Am. Corp., 766 F.3d 163, 170

(2d Cir. 2014) (“In general, where the federal claims are dismissed

before trial, the state claims should be dismissed as well.”).

III. Leave to Amend

A pro se plaintiff should ordinarily be given the

opportunity “to amend at least once when a liberal reading of the

complaint gives any indication that a valid claim might be stated.”

Shomo v. City of N.Y., 579 F.3d 176, 183 (2d Cir. 2009) (internal

quotation marks and citation omitted). Here, Plaintiff has already

been afforded that opportunity. “[P]articularly where, as here,

plaintiff has been afforded an opportunity to replead along with

substantial guidance from the district court as to nature of such

an amendment, and the plaintiff fails to provide any facts which

arise to a cognizable claim, dismissal is appropriate.” Foulke v.

Donahoe, No. 10-CV-4061, 2011 WL 7111450, at *2 (E.D.N.Y. Dec. 20,

2011), report and recommendation adopted sub nom., Foulke v.

Potter, 2012 WL 259929 (E.D.N.Y. Jan. 27, 2012) (dismissing the

pro se plaintiff’s amended complaint that was “little different

from [the] plaintiff’s initial complaint”). Moreover, for the

reasons set forth herein, Plaintiff’s Eighth Amendment claims are

not plausible; therefore, further amendment would be futile.

Hence, the Court declines to permit further amendment. Kim v.

Kimm, 884 F.3d 98, 105 (2d Cir. 2018) (cleaned up) (“[I]t is within

the sound discretion of the district court to grant or deny leave

to amend.”).

CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s

Section 1983 claims are dismissed in their entirety with prejudice

pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii) and 1915A(b)(1);

IT IS FURTHER ORDERED that any remaining state law claims

are dismissed without prejudice;

IT IS FURTHER ORDERED that the Clerk of the Court shall

ENTER JUDGMENT and mark this case CLOSED;

IT IS FURTHER ORDERED that, pursuant to 28 U.S.C.

§ 1915(a)(3), the Court certifies that any appeal from this Order

would not be in good faith and, therefore, in forma pauperis status

is DENIED for the purpose of any appeal. See Coppedge v. United

States, 369 U.S. 438, 444-45 (1962); and

IT IS FURTHER ORDERED that the Clerk of the Court shall

mail a copy of this Order, together with a copy of the Court’s

November 16, 2021 Order (ECF No. 8), to the pro se Plaintiff at

his address of record and include the notation “Legal Mail” on the

envelope.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: March 21, 2022

Central Islip, New York