Byas v. New York City Department of Correction

173 F.R.D. 385, 1997 U.S. Dist. LEXIS 9307, 1997 WL 370317
CourtDistrict Court, S.D. New York
DecidedJuly 1, 1997
DocketNo. 96 Civ. 8293 (JGK)
StatusPublished
Cited by6 cases

This text of 173 F.R.D. 385 (Byas v. New York City Department of Correction) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byas v. New York City Department of Correction, 173 F.R.D. 385, 1997 U.S. Dist. LEXIS 9307, 1997 WL 370317 (S.D.N.Y. 1997).

Opinion

OPINION AND ORDER

KOELTL, District Judge:

The plaintiff, Walter Byas, an inmate currently incarcerated at Sing Sing Correctional Facility, brings this pro se action pursuant to 42 U.S.C. § 1983 against the New York City Department of Correction (“Department of Correction”), James B. Kane, Warden of Anna M. Kross Center (“Kross Center”), Montefiore Medical Center (“Montefiore”), Dr. Flores and Dr. Farmer. The plaintiff alleges that he was denied adequate medical care and treatment in violation of the Eighth Amendment.

Defendant Department of Correction now moves to dismiss the plaintiffs claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). The plaintiff cross moves to amend his complaint to allege that an official policy, custom or practice of the Department of Correction caused the plaintiffs injury, and to strike the first, third and fourth affirmative defenses raised in the answer of defendants Montef-iore and Dr. Farmer. The plaintiff also filed a motion requesting leave to amend his complaint, pursuant to Fed.R.Civ.P. 15, to add M. Kishom, A. Hasan, J. Bernard, S. Head-ley and Dr. Dotsan as defendants in this action.

For the reasons explained below, defendant Department of Correction’s motion to dismiss the complaint is granted. The plaintiffs motions to amend his complaint to allege that an official policy, custom or practice of the Department of Correction caused the plaintiffs injury and to add Dr. Kishom, Dr. Hasan, Mr. Bernard, Dr. Headley and Dr. Dotsan as defendants in this action are denied without prejudice. Finally, the plaintiffs motion to amend his complaint to strike the first, third and fourth affirmative defenses raised in the answer of Montefiore and Dr. Farmer is denied.

I.

The plaintiff alleges the following facts in his complaint. On November 22, 1993, the plaintiff, who was at the time incarcerated at the Kross Center, located in the Rikers Island Correctional Facility Complex, was taken to the Kross Center medical clinic (“Clinic”) to be examined for a number of ailments, including the lack of feeling on the right side of his face, drooling and the loss of hearing in his right ear. (Compl.¶ IV(1).) Subsequently, the plaintiff was referred by Dr. Flores to a neurologist. (Compl.¶ IV(1).) However, the plaintiff did not receive a neurological examination. (Compl.¶ IV(1).)

On January 16,1994, the plaintiff returned to the Clinic after complaining about the same ailments, yet he received no treatment. (Compl.¶ IV(3).) On January 18, 1994, the plaintiff was examined by Dr. Kishom at the Clinic, but again received no treatment. (Compl.¶ IV(4).) On the same day, the plaintiff was examined by a neurologist at the House of Detention for Men (“H.D.M.”) hospital, who recommended to the Kross Center medical staff that the plaintiff receive a CAT scan and a mental health evaluation. (Compl.¶ IV(4).) On January 19, 1994, while at the Clinic, the plaintiff was again referred for a CAT scan. (Compl.¶ IV(5).) The plaintiff never received the CAT scan. (Compl.¶¶ IV(4) & IV(5).)

On January 21, 1994, the plaintiff was examined by defendant Dr. Farmer at the Clinic. (Compl.¶ IV(6).) On January 31, 1994, a medical staff member of the Clinic referred the plaintiff for a CAT scan and a neurological examination at H.D.M. (Compl.¶ IV(7).) The plaintiff never received a CAT scan but was examined by a neurologist. (Compl.¶ IV(7).) On both February 1, 1994 and February 10, 1994, the plaintiff underwent medical examinations at the Clinic. [387]*387(Compl.¶¶ IV(8), IV(9).) However, the plaintiff was subsequently transferred to the custody of the New York State Department of Correctional Services (“DOCS”) without receiving the CAT scan and was returned to the Kross Center on March 15, 1994. (Compl.¶¶ IV(10), IV(11).)

On March 16, 1994, the plaintiff returned to the Clinic and was examined by Dr. Hasan, who referred the plaintiff to a neurologist for consultation. (Compl.¶ IV(12).) Yet, the plaintiff did not receive a neurological examination. (Compl.¶ IV(12).) On March 21, 1994, while at the Clinic, the plaintiff was examined by Physicians Assistant Bernard and was again referred to a neurologist for consultation. (Cómpl.¶ IV(13).) On March 29, 1994, and once again on April 8,1994, the plaintiff was examined by Dr. Headley at the Clinic. (Compl.¶ IV(14), IV(15).) On April 28, 1994, the plaintiff returned to the Clinic and was again referred to a neurologist for consultation. (Compl.¶ IV(16).) On May 6, 1994, while at the Clinic, the plaintiff was examined by defendant Dr. Farmer, who referred him to a neurological examination, but the plaintiff never received such examination. (Compl.¶ IV(17).) On May 16, 1994, the plaintiff was transferred from the Kross Center to the H.D.M. (Compl.¶ IV(18).)

On May 18, 1994, the plaintiff was taken to the H.D.M. clinic and was examined by Dr. Dotsan, who referred the plaintiff to a neurologist for consultation. (Compl.¶ IV(19).) On May 23, 1994, the plaintiff was transferred from the H.D.M. to the C-73 Facility on Bikers Island. (Compl.¶ IV(20).) On May 25, 1994, a C-73 Facility medical staff member examined the plaintiff and referred him to a neurologist for consultation. (Compl.¶ IV(21).) On May 26, 1994, the plaintiff was once again examined in the C-73 clinic, and a consultation by an ear, nose and throat specialist was requested. (Compl.¶ IV(22).) On June 1,1994, the plaintiff was transferred to the custody of DOCS without receiving a CAT. scan. (Compl.¶ IV(23).)

The plaintiff was transported to Erie County Medical Center in Buffalo, New York, where he received a CAT scan which showed that he had sustained three strokes. (Compl.¶ IV(24).)

II.

On a motion to dismiss, the factual allegations of the complaint are to be accepted as true and all reasonable inferences are construed in the plaintiffs favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836, 115 S.Ct. 117, 130 L.Ed.2d 63 (1994); Adams v. Galletta, No. 96 Civ. 3750, 1997 WL 282234, at *1 (S.D.N.Y. May 27, 1997). A court should dismiss a complaint only “if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir.1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)); Adams, 1997 WL 282234, at *1. Where a pro se litigant is involved, although the same standards for dismissal apply, a court should give the pro se litigant special latitude in responding to a motion to dismiss. See Adams, 1997 WL 282234, at *1; Andujar v. McClellan, No. 95 Civ. 3059, 1996 WL 601522, at *1 (S.D.N.Y. Oct.21, 1996); Knowles v. New York City Dep’t of Corrections, 904 F.Supp. 217, 219 (S.D.N.Y.1995). Accordingly, the above facts are accepted as true for purposes of this motion.

Defendant Department of Correction argues, pursuant to Fed.R.Civ.P. 12

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Bluebook (online)
173 F.R.D. 385, 1997 U.S. Dist. LEXIS 9307, 1997 WL 370317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byas-v-new-york-city-department-of-correction-nysd-1997.