# Nielsen v. Rabin > Court of Appeals for the Second Circuit · February 13, 2014 · 746 F.3d 58 URL: https://www.frixlaw.com/law-library/cases/8412824 ## Case - **Full name:** Charles NIELSEN v. Elaine A. RABIN M.D., Bill De Blasio, Mayor — NYC Michael A. Stocker M.D. Chairperson-NYC-HHC Christopher Constantino, Exec.Dir.Elmhurst Hosp. Sylvia Tschenyavsky M.D. - **Court:** Court of Appeals for the Second Circuit - **Decided:** February 13, 2014 - **Citations:** 746 F.3d 58; 2014 WL 552805 - **Precedential status:** Published - **Opinion:** Dissent by Jacobs - **Judges:** Jacobs, Kearse, Straub - **Cited by:** 864 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8412824 ## How later opinions describe it (automated extraction) - acknowledging that “leave to amend a complaint may be denied when amendment would be futile” - holding that a court has no obligation to “credit conclusory allegations or legal conclusions couched as factual allegations.” (citation and internal quotation marks omitted) - noting that although a “pro se complaint should not be dismissed without the [cJourt granting leave to amend at least once[,] .. . leave to amend a complaint may be denied when amendment would be futile” (citations and quotation marks omitted) - noting that although a “pro se litigant should not be dismissed without the [c]ourt granting leave to amend at least once[,] . . . leave to amend a complaint may be denied when amendment would be futile” (citations and quotation marks omitted) - finding that a district court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff ## Opinion text DENNIS JACOBS, Circuit Judge, dissenting: I respectfully dissent. It is common ground that Nielsen’s initial complaint was properly dismissed. It alleged that he received minimal medical treatment for serious injuries after police officers informed his treating physicians that Nielsen had attacked two of the officers. 1 The majority and I agree that these allegations, even if proven, cannot sustain a Fourteenth Amendment due process claim for deliberate indifference. 2 See Majority op. at 61, 64. The holding of the majority is that an amended complaint would survive if augmented by two incremental allegations made in Nielsen’s opposition to the motion to dismiss: that the officers accompanying Nielsen told Dr. Rabin that (1) one of the officers Nielsen attacked was a woman, and (2) Nielsen “should be ignored and left alone.” I am of the view that these two allegations do not render plausible the claim that Dr. *65 Rabin withheld medical services from a patient with serious visible injuries. 3 It is implausible that a doctor would neglect a patient at the request of a malicious policeman. In any event, the claim is defeated by a review of the medical file (attached as an exhibit to the declaration of counsel in support of Dr. Rabin’s motion to dismiss). It reflects that Nielsen did not report symptoms indicative of serious injury, that Nielsen was examined by multiple medical professionals, that some treatment was administered, that what was done reflected a medical consensus, and that Nielsen was told to return for follow-up attention. The claim thus becomes that two doctors violated their oaths and that a nurse falsely reported that Nielsen was in a low level of pain at the time of discharge, all at the behest of police officers who told the doctors that their patient should be neglected. This claim, which is absurd, is easily classed as implausible. The chief error of the majority opinion is to ignore the medical record, which is expressly referenced and relied upon in the complaint — and which may therefore be considered on a motion to dismiss. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). I “[A] complaint is deemed to include any ... documents incorporated in it by reference.” Cor tec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42 , 47 (2d Cir.1991). True, “not every document referred to in a complaint may be considered incorporated by reference.” Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150 , 156-57 (2d Cir.2006). But a document that is relied on in plaintiffs drafting of the complaint may be considered on a motion to dismiss. See Time Warner, 282 F.3d at 153 (“ ‘[Wjhere plaintiff has actual notice of all the information in the movant’s papers and has relied upon these documents in framing the eom-plaint[,] the necessity of translating a Rule 12(b)(6) motion into one under Rule 56 is largely dissipated.’” (quoting Cortee, 949 F.2d at 48)). This rule has been applied with equal force to pro se plaintiffs. See, e.g., Youssef v. Halcrow, Inc., 504 Fed. Appx. 5 (2d Cir.2012); Lobaito v. Chase Bank, 529 FedAppx. 100 (2d Cir.2013). Nielsen’s complaint invokes the medical record in support of allegations about his injuries at arrival in the emergency room, his treatment, his discharge plan, and his condition at discharge. The complaint quotes the medical record directly twice and refers to it no less than five times. (Quotes and references are in the margin. 4 ) The medical record was therefore properly considered by the district court on the motion to dismiss. The medical record confirms that Nielsen’s claims are implausible. He arrived at the emergency room of Elmhurst Hospital *66 Center around 8pm on March 17, 2008. His chief complaint on arrival, according to the triage notes written by nurse Anna Ford, was: “My back hurts.” Nielsen reported lower right-sided back pain and reported that this condition had been chronic for 30 years. Also, Nielsen had an abrasion on the bridge of his nose extending above the left eyebrow, which was not bleeding. According to her notes, Dr. Rabin approached Nielsen as he slept a few hours later, and he screamed when she tapped him on the shoulder to wake him up. Nielsen complained of lower back pain and reported that the police had assaulted him “with fists all over.” Dr. Rabin found no bruising on Nielsen’s back and no evidence of a spinal injury; she could not determine an area of localized tenderness; and she found that Nielsen had full range of motion. Dr. Rabin’s assessment was lower back pain, possibly mild bruising, or malingering. Shortly after, a second physical examination was done by Dr. Sylvia Tschenyav-sky, who recorded her findings on the chart. Nielsen’s neck and face were non-tender. Nielsen’s “[n]ose appears with 2cm abrasion on nasal bridge no swelling. The mucosa and septum are without evidence of trauma. No septal hematoma noted. There is no rhinorrhea.” Nielsen’s hearing was okay. (He claims he suffered hearing loss.) Heart rate and rhythm, and respiratory rate and effort were all normal. A musculoskeletal examination disclosed no gross deformities, full range of motion, no edema, no signs of trauma to the back, and no paraspinal tenderness. Dr. Tschenyavsky diagnosed lower back pain. Nielsen was directed to follow up with the Diagnostic Clinic one week later at the Rikers Island Correctional Facility. When he was discharged at 3:30am, nurse Marie Fleurantin recorded that Mr. Nielsen was alert and oriented, and that he had a pain level of two on an ascending scale of one to ten. That medical record forecloses a finding that Dr. Rabin had the mental state that amounts to deliberate indifference: actual awareness and disregard of “a substantial risk that serious inmate harm will result.” See Majority op. at 63. The risk of “serious inmate harm” must be dire: “a condition of urgency, one that may produce death, degeneration, or extreme pain.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). Nielsen’s complaint, viewed together with the medical record (and his opposition brief), fails to plausibly allege that Dr. Rabin was aware that Nielsen had an urgent condition requiring immediate treatment. The contemporaneous notes recorded by two doctors and three nurses reflect no complaint by Nielsen of a broken nose (or any of the other serious injuries he alleges). Nielsen’s allegation that he “complained of severe pain” is contradicted by the nurse’s note that at discharge his pain level was at the low end of the spectrum. Nielsen may have screamed when he was tapped to rouse him from sleep, but that startled reaction does not support a plausible claim that Nielsen was in “severe pain.” There is no indication that Nielsen screamed (or otherwise expressed discomfort) during two physical examinations in which the doctors palpated his face, neck, chest, back, and shoulders. Nielsen’s claim is not rendered plausible by the police officers’ alleged advice to Dr. Rabin that Nielsen “should be ignored and left alone.” Dr. Rabin and another doctor and nurses all examined Nielsen and treated him. And Dr. Rabin’s discharge plan prescribed re-evaluation in a week’s time. We need not consider whether, in the circumstances, the medical staff should have taken X-rays, or done a CT-scan or MRI; *67 such omissions (assuming they were indicated) might support a malpractice claim, but they do not sustain a claim of deliberate indifference. “A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice y(4)27” Estelle v. Gamble, 429 U.S. 97, 105 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976). II The majority opinion reflects two fallacies that are indulged with some frequency in our opinions. First, there is insufficient appreciation that this section 1983 action is a personal claim against the individual assets of Dr. Rabin, and that the defense costs of such a claim alone can wipe out a college fund or equity on a home. See, e.g., Kentucky v. Graham, 473 U.S. 159, 165 , 105 S.Ct. 3099 , 87 L.Ed.2d 114 (1985) (“[A]n award of damages against an official in his personal capacity can be executed only against the official’s personal assets.... ”). The plausibility test in cases such as this is a safeguard against a financial injustice that can often outweigh the harm claimed by a plaintiff. True, some or many defendants are indemnified by employers or insurers (though insurance may not cover intentional acts); but such an arrangement would be dehors the record, and may not be considered by us in deciding whether a claim survives through the expense of discovery and extended motion practice. See Gonzalez v. City of Schenectady, 728 F.3d 149 ,162 n. 6 (2d Cir.2013). Second, the majority’s ruling on plausibility unintentionally implies a certain disrespect for the ethics of doctors and nurses. The majority deems it plausible that each of these medical professionals (and all of them together) would allow a patient’s suffering to go unabated at the say-so of policemen expressing hostility to a person in custody. We would never deem such dereliction plausible if alleged against a lawyer. An analogy illustrates the point. It often happens that criminal defendants who are convicted accuse their lawyers of being in league with the prosecutor to sabotage their defense. 5 And in every criminal trial, the prosecutor tells the courtroom, including the defense counsel sitting right there, that the defendant has committed offenses that justify punishment. I cannot think that we would deem it plausible that a defense lawyer would bring about his client’s conviction at the behest of the prosecutor, and I cannot think that such an allegation would be deemed plausible even if defense counsel was deficient, or ineffective, or failed to take appropriate measures. The betrayal of a client seems to us (as lawyers and judges) wholly implausible because we internalize certain professional values. I would extend the same respect to the medical and nursing profession in this analogous case. * * * The complaint was properly dismissed, and the district court had no duty to allow an amendment that would be futile for the reasons I have outlined. . See Compl. at 4 ("The Police Officer’s [sic] stated to said Doctor’s [sic] that I had ‘beat up two police officer's [sic].' ... [No] significant testing was performed and no significant treatment was provided at the time.”). . Nielsen alleged a violation of his Fourteenth Amendment due process rights because the alleged withholding of medical attention took place during his pretrial arrest and detainment. The claim is analogous to an Eighth Amendment claim of deliberate indifference, and is governed by the same body of law. . Although leave to amend should be granted to a pro se plaintiff at least once, this applies only "when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.1999). . "[T]here were multiple abrasions in my facial areas as noted in the medical report.... The defendant Doctor’s [sic] then released me to the custody of the New York City Police Department with a statement that I was alert and oriented, and my level of pain and discomfort was at’2/10' (indicating a low level of pain in their opinion) and I was ambulatory. Their only discharge plan was for me to be reevaluated within one week. This despite the fact that they stated in their triage report that I screamed when lightly touched when my shoulder was touched. Th[ei]r diagnosis was that I had merely sustained mild bruising and there was no evidence of a spinal injury, suggesting I was simply 'MALINGERING.' " Compl. at 4. . See, e.g., United States v. Smith, 640 F.3d 580 (4th Cir.2011); Azania v. Bechert, No. 98-1648, 172 F.3d 52 , 1999 WL 38092 (7th Cir. Jan. 8, 1999); Williams v. Silverman, No. 12-974, 2013 WL 6578980 (E.D.Pa. Dec. 16, 2013); Richard v. Girdich, No. 3-cv-920, 2009 WL 2045685 (N.D.N.Y. July 10, 2009); Jones v. Diner, No. 9-cv-204, 2009 WL 1285842 (E.D.Arlc. May 5, 2009); Pitts v. Wynder, No. 5-cv-1038, 2006 WL 2092582 (E.D.Pa. July 24, 2006); Stifel v. Lindhorst, 393 F.Supp. 1085 (D.C.Pa.1975), aff'd, 529 F.2d 512 (3d Cir.1975). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8412824. Public record. Not legal advice.