Ward v. Capra

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

LANGSDEN M. WARD,

Plaintiff, No. 16-CV-6533 (KMK)

v. OPINION & ORDER

SUPERINTENDENT MICHAEL CAPRA and

DR. RICHARD MAGILL,

Defendants.

Appearances:

Langsden M. Ward

Stormville, NY

Pro Se Plaintiff

Barbara K. Hathaway, Esq.

Bruce J. Turkle, Esq.

New York State Office of the Attorney General

New York, NY

Counsel for Defendants

KENNETH M. KARAS, District Judge:

Langsden M. Ward (“Plaintiff”), currently incarcerated at Green Haven Correctional

Facility, brings this pro se Action, pursuant to 42 U.S.C. § 1983, against Michael Capra

(“Capra”), Superintendent at Sing Sing Correctional Facility (“Sing Sing”), and Dr. Richard

Magill (“Dr. Magill”) (collectively, “Defendants”), alleging violation of his Eighth Amendment

rights for deliberate indifference to his serious medical needs while incarcerated at Sing Sing.

On March 13, 2018, the Court issued an Opinion & Order granting an earlier motion to dismiss

filed by Defendant Capra. (See Op. & Order (Dkt. No. 39).) Before the Court is Defendants’

Motion To Dismiss the Second Amended Complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) (the “Motion”). (Not. of Mot. (Dkt. No. 61).) For the reasons set forth herein, the

Motion is granted.

I. Background

A. Factual History

The following facts are drawn from Plaintiff’s Second Amended Complaint, (Second

Am. Compl. (“SAC”) (Dkt. No. 58)), and the exhibits attached to Plaintiff’s opposition to

Defendants’ Motion, (Aff. in Opp’n to Defs.’ Mot. (“Pl.’s Mem.”) (Dkt. No. 69)), and are taken

as true for the purpose of resolving the instant Motion.1

On May 8, 2014, Plaintiff broke his right index finger in four places while playing

basketball in the gym at Sing Sing. (SAC 4.) Plaintiff’s finger was examined by a non-party

nurse practitioner, Nurse Monroe, who recommended that Plaintiff be taken to an outside

hospital for further treatment. (Id.) Plaintiff was admitted to Mount Vernon Hospital and placed

in a hard cast. (Id.)

On June 18, 2014, Dr. Magill operated on Plaintiff’s finger and placed two pins in the left

side of his finger. (Id.; see also Pl.’s Mem. 10, 15 (medical records).) A post-operation follow-

up visit was “recommend[ed]” on July 3, 2014. (Pl.’s Mem. 15.)

On July 13, 2014, Plaintiff had an “emergency visit” with Nurse Monroe. (SAC 4.)

Monroe noticed that the pins were “protruding through the skin” of Plaintiff’s finger. (Id.)

Plaintiff alleges the finger was showing signs of “inf[]ection, discoloration, deformity, hardness,

lack of mobility, lack of flexibility, stiffness, [and] pusyness [sic].” (Id.) Plaintiff further alleges

the protrusion was caused by a “delay” in his medical treatment of “two weeks” as well as

1 Plaintiff’s filings in this case do not use consistent page numbering. The Court thus

cites to the ECF-generated page numbers stamped at the top right-hand corner of each page.

“surgical [error].” (Id. at 4–5.)

After “many visits to the outside doctor,” it was determined that Defendants “not only

created [Plaintiff’s] medical issues” but “damaged” the “fibrous membranes” and “tendons” of

his finger, which caused a “permanent shortening” and “deformity” of the finger joint. (Id. at 5.)

On July 13, 2018, Dr. Magill performed a second surgery on Plaintiff’s finger. (Id. at 6.)

Plaintiff was further treated with “physical therapy, which did not work,” as well as pain

medication and antibiotics, “which cleared up [Plaintiff’s] inf[]ection.” (Id.)

B. Procedural History

Plaintiff filed his initial Complaint on August 18, 2016. (Dkt. No. 2.) The Court granted

Plaintiff’s IFP request on September 30, 2016. (Dkt. No. 6.) On October 27, 2016, Chief Judge

McMahon issued an Order directing Plaintiff to file an Amended Complaint to detail his claims.

(Order to Amend (Dkt. No. 7).) On December 7, 2016, Plaintiff filed a First Amended

Complaint. (Dkt. No. 8.)

Defendant Capra filed a motion seeking to dismiss the First Amended Complaint on May

1, 2017. (Dkt. No. 28.)2 Plaintiff filed his opposition on June 7, 2017. (Dkt. No. 29.) On June

15, 2017, Capra filed a reply. (Dkt. No. 33.) Plaintiff filed a second opposition on July 17,

2017. (Dkt. No. 36.) On March 29, 2018, the Court issued its earlier Opinion granting Capra’s

motion and dismissing the First Amended Complaint in its entirety. (Op & Order 15.) The

Court granted Plaintiff 30 days to amend. (Id.) Plaintiff thereafter requested an extension, which

the Court granted. (Dkt. No. 42.) However, Plaintiff did not file a second amended complaint,

and on May 23, 2018, the Court issued an Order directing the Plaintiff to show cause why this

2 At the time Capra filed the motion, Dr. Magill had not yet been served. (See Op. &

Order 5.) Dr. Magill was served on April 5, 2018, (Dkt. No. 40), following issuance of an Order

of Service, (Dkt. No. 37).

case should not be dismissed for failure to prosecute. (Dkt. No. 47.) Plaintiff responded to the

Order on June 4, 2018. (Dkt. No. 54.) On June 7, 2018, the Court directed that Plaintiff file a

second amended complaint by July 6, 2018. (Dkt. No. 53.) After a request for an extension,

(Dkt. No. 56), the Court extended Plaintiff’s time to file to August 12, 2018, (Dkt. No. 57). On

August 29, 2018, Plaintiff filed the instant Second Amended Complaint. (SAC (Dkt. No. 58).)

On September 7, 2018, Defendants — including Dr. Magill — filed a letter seeking a pre-

motion conference in anticipation of moving to dismiss. (Dkt. No. 59.) The Court set a briefing

schedule. (Dkt. No. 60.) On October 12, 2018, Defendants filed the instant Motion To Dismiss.

(Not. of Mot.; Defs.’ Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 62).) Plaintiff

filed his opposition on January 14, 2019. (Pl.’s Mem.) On January 31, 2019, Defendants filed a

reply. (Defs.’ Reply Mem. of Law (“Defs.’ Reply”) (Dkt. No. 71).)

II. Discussion

Defendants move to dismiss the Amended Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6) on grounds that it fails to correct the deficiencies identified in the Court’s

prior Opinion & Order. (Defs.’ Mem. 1.) In particular, Defendants argue that Plaintiff fails to

allege the personal involvement of Capra in any constitutional violation, that Plaintiff fails to

state an Eighth Amendment claim of deliberate indifference against either Defendant, that in any

event Dr. Magill is entitled to qualified immunity, and that Plaintiff has failed to exhaust his

administrative remedies. (Id. at 4–13.) The Court addresses each argument separately to the

extent necessary.

A. Standard of Review

The Supreme Court has held that, while a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “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.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations, quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil

Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.” Id. (quotation marks and alteration omitted).

Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated

adequately, it may be supported by showing any set of facts consistent with the allegations in the

complaint,” id. at 563, and a plaintiff need allege “only enough facts to state a claim to relief that

is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the

line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556

U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the

pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.

Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.”).

In considering a motion to dismiss, the Court “must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency

of a complaint we accept as true all factual allegations . . . .” (quotation marks omitted)).

Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all

reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d

302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.

2012)). Where, as here, a plaintiff proceeds pro se, the “complaint[] must be construed liberally

and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723

F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal

treatment afforded to pro se litigants does not exempt a pro se party from compliance with

relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559

(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,

605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding

procedural rules and to comply with them.” (italics and quotation marks omitted)).

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

consideration to facts stated on the face of the complaint, in documents appended to the

complaint or incorporated in the complaint by reference, and to matters of which judicial notice

may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation

marks and citation omitted). When a plaintiff proceeds pro se, however, the Court may consider

“materials outside the complaint to the extent that they are consistent with the allegations in the

complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug.

2, 2013) (quotation marks omitted), including, as relevant here, “documents that a pro se litigant

attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6

(E.D.N.Y. Dec. 15, 2010) (italics omitted).

B. Analysis

1. Personal Involvement of Capra

Plaintiff alleges that Capra, as Superintendent at Sing Sing, received Plaintiff’s grievance

detailing his medical problems following his first surgery “but . . . chose to ignore [Plaintiff’s]

medical situation.” (SAC 6; see also id. at 5 (alleging that Capra “ignor[ed]” Plaintiff’s “serious

medical needs”).) Plaintiff further argues that Capra “failed to act on information indicating that

[Plaintiff’s] constitutional rights[] and medical needs were being violated.” (Pl.’s Mem. 3.) Yet,

“it is well-established that an allegation that” a supervisory official allegedly “ignored a

prisoner’s letter of protest . . . is insufficient to hold that officer liable for the alleged violations.”

Allah v. Annucci, No. 16-CV-1841, 2017 WL 3972517, at *7 (S.D.N.Y. Sept. 7, 2017)

(alterations and quotation marks omitted) (collecting cases); see also Dawkins v. Copeland, No.

17-CV-9926, 2019 WL 1437049, at *8 (S.D.N.Y. Mar. 31, 2019) (“[A] defendant’s mere receipt

of a grievance is insufficient to show [his] personal involvement in a constitutional

deprivation.”). Nor is Capra liable merely because of the supervisory nature of his position, for

“mere linkage in the prison chain of command is insufficient to implicate a . . . prison

superintendent in a § 1983 claim.” Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003)

(citation and quotation marks omitted); see also Styles v. Goord, 431 F. App’x 31, 33 (2d Cir.

2011) (holding personal involvement was not established in complaint alleging that “two high-

ranking prison officials[] were grossly negligent in failing to supervise unspecified subordinates

who concealed [the plaintiff’s] medical condition from him and thus delayed any treatment,”

because the plaintiff “did not allege . . . any facts concerning [the supervisory officials’]

particular conduct in supervising their subordinates” and were instead “premised [solely] on a

theory of supervisory liability”). Accordingly, Plaintiff fails to state Capra’s personal

involvement in the alleged constitutional violation.

2. Eighth Amendment

a. Applicable Law

“The Eighth Amendment forbids ‘deliberate indifference to serious medical needs of

prisoners.’” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir. 2013)

(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). An inmate’s claim of deliberate

indifference to his medical needs by those overseeing his care is analyzed under the Eighth

Amendment because it is an allegation that “conditions of confinement [are] a form of

punishment” and thus is a “violation of [the] Eighth Amendment right to be free from cruel and

unusual punishments.” Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). To state a deliberate

indifference claim, Plaintiff must plausibly allege (1) “that he suffered a sufficiently serious

constitutional deprivation,” and (2) that Defendants “acted with deliberate indifference.”

Feliciano v. Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017).

The first element is “objective” and requires Plaintiff show that the “alleged deprivation

of adequate medical care [is] sufficiently serious.” Spavone, 719 F.3d at 138 (citation and

quotation marks omitted). In other words, Plaintiff “must show that the conditions, either alone

or in combination, pose an unreasonable risk of serious damage to his health.” Walker v. Schult,

717 F.3d 119, 125 (2d Cir. 2013) (citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

Analyzing this objective requirement involves two inquiries: “whether the prisoner was actually

deprived of adequate medical care,” and “whether the inadequacy in medical care is sufficiently

serious,” which in turn “requires the court to examine how the offending conduct is inadequate

and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin

v. Goord, 467 F.3d 263, 279–80 (2d Cir. 2006) (citations omitted). “There is no settled, precise

metric to guide a court in its estimation of the seriousness of a prisoner’s medical condition.”

Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Nevertheless, the Second Circuit has offered

the following non-exhaustive list of factors to consider when evaluating an inmate’s medical

condition: “(1) whether a reasonable doctor or patient would perceive the medical need in

question as important and worthy of comment or treatment, (2) whether the medical condition

significantly affects daily activities, and (3) the existence of chronic and substantial pain.” Id.

(citation and quotation marks omitted).

The second element, which goes to mental state, requires Plaintiff show that the prison

officials were “subjectively reckless in their denial of medical care.” Spavone, 719 F.3d at 138

(citation omitted). This means that the official must have “appreciate[d] the risk to which a

prisoner was subjected,” and have had a “subjective awareness of the harmfulness associated

with those conditions.” Darnell, 849 F.3d at 35; see also Nielsen v. Rabin, 746 F.3d 58, 63 (2d

Cir. 2014) (“Deliberate indifference is a mental state equivalent to subjective recklessness,” and

it “requires that the charged official act or fail to act while actually aware of a substantial risk

that serious inmate harm will result.” (citation and quotation marks omitted)). In other words,

“[i]n medical-treatment cases not arising from emergency situations, the official’s state of mind

need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff

proves that the official acted with deliberate indifference to inmate health.” Id. (citation and

quotation marks omitted). An official’s awareness of the risk of serious harm can be established

through “inference from circumstantial evidence,” including “from the very fact that the risk was

obvious.” Farmer v. Brennan, 511 U.S. 825, 842 (1994). However, “mere negligence” is

insufficient to state a claim for deliberate indifference. Walker, 717 F.3d at 125 (quoting

Farmer, 511 U.S. at 835). Neither does “mere disagreement over the proper treatment . . . create

a constitutional claim,” and accordingly, “[s]o long as the treatment given is adequate, the fact

that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment

violation.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).

b. Objective Element

As the Court previously concluded, Plaintiff’s broken finger alone “does not constitute a

serious enough injury to satisfy the objective [element] of the deliberate indifference test.” (Op.

& Order 13 (collecting cases and quoting Laguna v. Kwan, No. 13-CV-7079, 2015 WL 872366,

at *4 (S.D.N.Y. Jan. 28, 2015)).) Nor does Plaintiff’s post-surgery finger infection — which,

Plaintiff alleges, was treated with antibiotics, (see SAC 6; Pl.’s Mem. 8) — satisfy the objective

element. See Laguna, 2015 WL 872366, at *4 (collecting cases for the proposition that

“infections do not generally constitute a serious medical need”). The Second Circuit has

instructed, however, that “it is appropriate to focus on the challenged delay or interruption in

treatment rather than the prisoner’s underlying medical condition alone in analyzing whether the

alleged deprivation” is sufficiently serious. Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir.

2003) (emphasis in original). Plaintiff alleges a treatment delay of two weeks, that is, that

following his initial surgery, Dr. Magill left the pins in Plaintiff’s finger two weeks past the due

date for removal, thereby causing infection and pain, necessitating the need for a second surgery,

and ultimately causing permanent deformity and stiffness in the finger. (SAC 4–6; Pl.’s Mem.

3–8.) For a delay in treatment to satisfy the objective element, the delay must generally

“involve[] either a needlessly prolonged period . . . , or [have] . . . caused extreme pain or

exacerbated a serious illness.” Ferguson v. Cai, No. 11-CV-6181, 2012 WL 2865474, at *4

(S.D.N.Y. July 12, 2012) (citations omitted). Here, drawing every reasonable inference in favor

of Plaintiff, the Court assumes that a two-week delay in treatment resulting in a pus-filled

infection as well as pins protruding from the finger caused Plaintiff “extreme pain” and

“exacerbated” an injury sufficient to satisfy the objective element.3 See Chance, 143 F.3d at

702–03 (holding that an infected tooth, which caused the plaintiff severe pain, rendered him

unable to chew for several months, and required an extraction, satisfied the objective element);

Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994) (holding objective element satisfied where

the plaintiff alleged a two-year delay in treatment of broken pins in hip and ongoing pain); cf.

Burgess v. Wright, No. 08-CV-725, 2009 WL 2971538, at *7–8 (N.D.N.Y. Sept. 11, 2009)

(holding that a broken finger and a “potential[]” infection did not satisfy the objective element).

c. Mental-State Element

Even assuming Plaintiff has satisfied the objective element, however, Plaintiff does not

allege facts suggesting that Dr. Magill had a “subjective awareness of the harmfulness associated

with” Plaintiff’s condition such that it could be said Dr. Magill acted with deliberate

indifference. Darnell, 849 F.3d at 35. Plaintiff alleges that Dr. Magill left the pins inside his

finger two weeks past his due date and thereafter performed a second surgery on the finger.

(SAC 4–6; Pl.’s Mem. 3–5, 7–8.) “[A] delay in treatment 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.” Pabon v. Wright, No. 99-CV-2196, 2004 WL 628784, at *8 (S.D.N.Y. Mar. 29,

2004) (citation and quotation marks omitted), aff’d, 459 F.3d 241 (2d Cir. 2006). That is,

“denying or delaying needed treatment for a serious medical condition constitutes deliberate

3 The Court notes that some cases have found even longer delays in treating a broken

finger insufficiently prolonged to satisfy the objective element. See, e.g., Beaman v. Unger, 838

F. Supp. 2d 108, 110 (W.D.N.Y. 2011) (ten-week delay); Aho v. Hughes, No. 03-CV-1552, 2005

WL 2452573, at *7 (D. Conn. Sept. 30, 2005) (two-month delay). However, these cases

involved broken fingers alone and did not involve allegations of infection, protruding pins, and

permanent deformity.

indifference for Eighth Amendment purposes only if,” for example, the “official[] delayed care

as a form of punishment, ignored a life-threatening and fast-degenerating condition for several

days, or delayed major surgery.” Myrie v. Calvo, 615 F. Supp. 2d 246, 248 (S.D.N.Y. 2009)

(citation omitted). Here, Plaintiff alleges no facts plausibly suggesting that Dr. Magill

intentionally or knowingly delayed the removal of the pins at all, let alone delayed the removal

having learned of the complications arising out of the first surgery. Plaintiff does not allege, for

example, that he complained to Dr. Magill directly or that Dr. Magill otherwise became aware of

the complications associated with Plaintiff’s first surgery and thereafter chose not to promptly

act. Indeed, Plaintiff alleges no facts at all going to Dr. Magill’s mental state or awareness of

Plaintiff’s condition following his first surgery. There is no allegation, then, that plausibly

supports a claim that Dr. Magill “consciously disregarded a substantial risk of serious harm

through deliberate delay of treatment.” Pabon, 2004 WL 628784, at *8; see also Hanner v.

Westchester County, No. 16-CV-7610, 2019 WL 1299462, at *6 (S.D.N.Y. Mar. 21, 2019)

(dismissing deliberate indifference claim where the “plaintiff fail[ed] to make any non-

conclusory allegations suggesting any defendant acted with deliberate indifference in causing the

delay”); Bennett v. Care Correction Sol. Med. Contracter, No. 15-CV-3746, 2017 WL 1167325,

at *8 (S.D.N.Y. Mar. 24, 2017) (dismissing deliberate indifference claim based on three-month

delay in surgery where the plaintiff had “not alleged any conduct or behavior that would suggest

the delay was caused by [the defendants’] deliberate indifference”), appeal dismissed, 2018 WL

1756123 (2d Cir. 2018); Myrie, 615 F. Supp. 2d at 248 (dismissing deliberate indifference claim

based on delayed treatment where “[n]o facts [were] pleaded tending to show that [the]

defendant . . . took affirmative steps to ensure that [the plaintiff] would not receive his [medical]

treatment”); Bell v. Jendell, 980 F. Supp. 2d 555, 562 (S.D.N.Y. 2013) (collecting cases for the

proposition that courts dismiss deliberate indifference claims in which inmates “merely allege a

delay in the provision of medication or treatment, but fail to allege that the delay was either

intentional or reckless”); cf. Hemmings v. Gorczyk, 134 F.3d 104, 108–09 (2d Cir. 1998)

(holding the plaintiff stated a deliberate indifference claim in which the complaint alleged, inter

alia, that medical personnel willfully ignored an “easily observable” ruptured Achilles tendon

about which the plaintiff “complained about for almost two months before being referred to a

specialist”); Kucharczyk v. Westchester County, 95 F. Supp. 3d 529, 542 (S.D.N.Y. 2015)

(holding the plaintiff stated a deliberate indifference claim where the defendant told him that “the

surgery was not going to happen because [the] . . . injuries were not life threatening, and he

would therefore have to wait to receive surgery until he was transferred or . . . released”); Lloyd

v. Lee, 570 F. Supp. 2d 556, 569 (S.D.N.Y. 2008) (denying motion to dismiss where doctors

“knew that [the plaintiff] was experiencing extreme pain and loss of mobility,” but “[n]ine

months went by after [an] MRI was first requested before the MRI was actually taken,” resulting

in the plaintiff experiencing ongoing pain for over a year). Rather, the allegations contained in

the Second Amended Complaint suggest that Dr. Magill acted with “negligence amounting to

medical malpractice,” which is “insufficient to state a claim of deliberate indifference.” Whitley

v. Ort, No. 17-CV-3652, 2018 WL 4684144, at *8 (S.D.N.Y. Sept. 28, 2018) (citations omitted);

see also Hernandez v. Keane, 341 F.3d 137, 145–46 (2d Cir. 2003) (holding no Eighth

Amendment violation where doctor failed, inter alia, to have pins and wires removed from the

plaintiff’s broken hand within prescribed time after hand surgery, because the “evidence

. . . suggests at most several acts of negligence over a prolonged period”); Melvin v. County of

Westchester, No. 14-CV-2995, 2016 WL 1254394, at *7 (S.D.N.Y. Mar. 29, 2016) (holding that

“treatment of a prisoner’s medical condition generally defeats a claim of deliberate indifference”

(citation and quotation marks omitted)).

Accordingly, Plaintiff fails to state an Eighth Amendment claim against Dr. Magill.4

3. State Law Claims

To the extent Plaintiff alleges state law claims of negligence and medical malpractice,

they are barred by New York Correction Law § 24, which provides that “[n]o civil action shall

be brought in any court of the state . . . against any officer or employee of [DOCCS] . . . in his or

her personal capacity, for damages arising out of any act done or the failure to perform any act

within the scope of employment and in the discharge of duties by such officer or employee.”

N.Y. Correct. Law § 24; see also Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996) (holding that

§ 24 applies to claims in federal court). Therefore, “[c]ourts in the Second Circuit have long

held that [§] 24 precludes a plaintiff from raising state law claims in federal court against state

employees in their personal capacities for actions arising within the scope of their employment.”

Davis v. McCready, 283 F. Supp. 3d 108, 123 (S.D.N.Y. 2017). Here, Defendants clearly were

DOCCS employees performing their duties at Sing Sing when the alleged constitutional

violations occurred. Any state law claims must therefore be dismissed.

III. Conclusion

For the foregoing reasons, Defendants’ Motion To Dismiss is granted. The Second

Amended Complaint is dismissed in its entirety. Dismissal is with prejudice.5 The Clerk of the

4 Because the Court concludes that Plaintiff fails to allege Capra’s personal involvement

and fails to state an Eighth Amendment claim against Dr. Magill, it need not consider

Defendants’ other arguments that Dr. Magill is entitled to qualified immunity and that Plaintiff

has failed to exhaust his administrative remedies. (Defs.’ Mem. 9–13.)

5 Even pro se plaintiffs are not entitled to amend a complaint if the complaint “contains

substantive problems such that an amended pleading would be futile.” Lastra v. Barnes & Noble

Court is respectfully requested to terminate the pending motion, (Dkt. No. 61), to mail a copy of

this Opinion to Plaintiff, and to close this case.

SO ORDERED.

DATED: April $0, 2019

White Plains, New York Ly

fee

KENNETH M. KARAS

UNITED STATES DISTRICT JUDGE

Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan. 3, 2012). Here, Plaintiff

“has already had two [previous] bites at the apple, and they have proven fruitless.” Melvin, 2016

WL 1254394, at *24 n.19 (citation, alterations, and quotation marks omitted); see also Al-

Qadaffi v. Servs, for the Underserved (SUS), No. 13-CV-8193, 2015 WL 585801, at *8

(S.D.N.Y. Jan, 30, 2015) (denying leave to amend where the plaintiff “has already had one

chance to amend his [c]omplaint, and there is still no indication that a valid claim might be stated

if given a second chance”), aff'd, 632 F, App’x 31 (2d Cir. 2016). The Court finds that further

amendment on these claims would be futile.

15