OPINION AND ORDER Plaintiff Rafael Torres, proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. §1983 against defendants Correct Care Solutions, LLC (“CCS”) and Dr. Elizabeth Kulesza.1 Plaintiff alleges defendants, in failing to treat his swollen knee timely or properly, were deliberately indifferent to his serious medical needs in violation of the Fourteenth Amendment.Now pending is defendants’ motion to dismiss the complaint pursuant to Rule 12(b)(6). (Doc. #15).For the reasons set forth below, the motion is GRANTED. However, plaintiff is granted leave to file an amended complaint as to his Fourteenth Amendment deliberate indifference claims in accordance with the instructions below.The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1331.BACKGROUNDFor the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in plaintiff’s favor, as set forth below. In addition, because plaintiff is proceeding pro se, the Court also considers allegations made for the first time in an October 24, 2018, letter plaintiff submitted in support of his claims, to which plaintiff attached medical records (Doc. #22), as well as plaintiff’s declaration in opposition to the motion to dismiss, which contained additional medical records (Doc. #25 (“Pl. Decl.”)). See, e.g., Vlad-Berindan v. MTA N.Y.C. Transit, 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10, 2014).2Plaintiff was confined at Orange County Jail (“OCJ”) at all relevant times. Plaintiff alleges on April 13, 2018, his left knee became swollen, causing him pain and preventing him from sleeping. Plaintiff believes the swelling was related to his diabetes, however medical records attached to plaintiffs October 24, 2018, submission indicate plaintiff also had a “meniscus tear years ago.” (Doc. #22 at 6).3 In any case, plaintiff alleges he notified a correction officer of the knee pain, who “tried to get me down to an emergency sick call to no avail.” (Doc. #2 (“Compl.”) at 3).Plaintiff alleges he submitted multiple sick call slips to the “Orange County Jail medical department, Correct Care Solutions” over the course of the following week, and only then was he given medical attention. (Compl. at 3). By that time, plaintiff alleges, his knee had swelled such that he was no longer able to bend his knee or walk. Thus, according to plaintiff, he was “moved and carried” from a top tier cell to a handicap cell on the lower level to allow him to receive meals and use the showers more conveniently. (Pl. Decl. at 2).Plaintiff also alleges a physical therapist prescribed him an ice pack, hot compress, treatment from a TENS unit, and pain medication, but Dr. Kulesza, who subsequently examined plaintiff’s knee, refused to let plaintiff receive such treatment. Plaintiff further alleges Dr. Kulesza promised to send plaintiff for an MRI of his knee but never made him an appointment.Plaintiff alleges he can no longer walk normally, but must instead use a cane, attend physical therapy sessions, and take Motrin for continued pain. Further, plaintiff alleges his knee pain prevents him from leaving his cell for meals or activities and leaves him unable to sleep.DISCUSSIONI. Standard of ReviewIn deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). First, plaintiff’s legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).The Court must liberally construe submissions of pro se litigants and interpret them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation omitted) (collecting cases). Applying the pleading rules permissively is particularly appropriate when, as here, a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “Even in a pro se case, however…threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation marks and citation omitted). Nor may the Court “invent factual allegations” plaintiff has not pleaded. Id.II. Fourteenth Amendment ClaimsDefendants argue plaintiff fails to state a claim for deliberate indifference to his medical needs with respect to either the alleged delay in medical care or Dr. Kulesza’s allegedly improper subsequent treatment of his knee.4The Court agrees.A. Deliberate Indifference StandardDeliberate indifference claims brought by pretrial detainees are analyzed under the Due Process Clause of the Fourteenth Amendment, rather than under the Eighth Amendment, because “[p]retrial detainees have not been convicted of a crime and thus ‘may not be punished in any manner — neither cruelly and unusually nor otherwise.’” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (quoting Iqbal v. Hasty, 490 F.3d 143, 168 (2d Cir. 2007)). To state a deliberate indifference claim, plaintiff’s allegations must satisfy two prongs: an objective prong and a mens rea prong. Id. Namely, plaintiff must plausibly allege “that the challenged conditions were sufficiently serious,” and defendants “acted with at least deliberate indifference to the challenged conditions.” Id.To plead the objective prong, a pretrial detainee must plausibly allege the challenged conditions, “either alone or in combination, pose[d] an unreasonable risk of serious damage to his health.” Darnell v. Pineiro, 849 F.3d at 30 (quoting Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013)). “There is no ‘static test’ to determine whether a deprivation is sufficiently serious; instead, ‘the conditions themselves must be evaluated in light of contemporary standards of decency.’” Id. (quoting Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)).In the context of medical care, two inquiries determine whether a deprivation is objectively serious. “The first inquiry is whether the prisoner was actually deprived of adequate medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). Because “the prison official’s duty is only to provide reasonable care,” prison officials are liable only if they fail “‘to take reasonable measures’ in response to a medical condition.” Id. at 279-80 (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994)).The second inquiry is “whether the inadequacy in medical care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d at 280. If the allegedly offending conduct “is a failure to provide any treatment for an inmate’s medical condition, courts examine whether the inmate’s medical condition is sufficiently serious.” Id. (citation omitted). If the offending conduct is the “medical treatment given,” however, “the seriousness inquiry is narrower.” Id. When “the prisoner is receiving appropriate on-going treatment for his condition,” and brings a “denial of medical care claim based on a temporary delay or interruption in treatment,” courts look to “the severity of the temporary deprivation alleged by the prisoner,” not “the severity of the prisoner’s underlying medical condition.” Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).To plead the mens rea prong, a pretrial detainee must plausibly allege “that the defendant-official acted intentionally…, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed…even though the defendant-official knew, or should have known,” of the risk. Darnell v. Pineiro, 849 F.3d at 35. The Fourteenth Amendment’s mens rea prong “is defined objectively” and “can be violated when an official does not have subjective awareness that the official’s acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm.” Id.“[D]istinguishing between negligent and reckless medical care is a difficult task, especially at the motion-to-dismiss stage where courts lack the benefit of expert opinion.” Zhang v. City of New York, 2018 WL 3187343, at *8 (S.D.N.Y. June 28, 2018) (internal quotation omitted). Courts often look to the “degree of risk associated with the negligent treatment.” See id. (internal quotation omitted) (collecting cases).Moreover, “[i]t is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to” a constitutional violation. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (citation omitted). This is also true where two medical professionals prescribe different methods of treatment. See Williams v. M.C.C. Inst., 1999 WL 179604, at *7 (S.D.N.Y. Mar. 31, 1999), aff’d sub nom. Williams v. Cohen, 101 F. App’x 862 (2d Cir. 2004) (summary order). Further, “[w]hether to order an MRI or similar diagnostic treatments is a classic example of a matter for medical judgment.” Victor v. Milicevic, 361 F. App’x 212, 215 (2d Cir. 2010) (summary order) (internal quotation omitted).B. ApplicationPlaintiff’s allegations fail to satisfy the mens rea element as to either the alleged delay in medical care or Dr. Kulesza’s allegedly improper subsequent treatment of his knee.First, plaintiff’s allegations fail to suggest Dr. Kulesza played any role in the alleged one-week delay between the onset of his knee pain and his first medical examination. Plaintiff’s only allegation concerning this delay is that a correction officer took plaintiff to emergency sick call “to no avail.” (Compl. at 3). Plaintiff does not mention Dr. Kulesza in relation to the alleged delay nor explain how Dr. Kulesza was involved in preventing plaintiff from receiving medical attention. Plaintiff’s allegations are all the more confounding because medical records attached to plaintiffs October 24, 2018, submission indicate plaintiff saw Dr. Kulesza on April 14, 2018 — one day after plaintiff’s knee allegedly first started to swell — yet plaintiff fails to allege he told Dr. Kulesza about his knee or that Dr. Kulesza refused to examine plaintiffs knee at that visit. (Doc. #22 at 4).Second, plaintiff’s allegations fail to suggest Dr. Kulesza acted with sufficient mens rea in her subsequent treatment of plaintiff’s knee. Indeed, plaintiff’s medical records indicate plaintiff received extensive medical care, including specifically from Dr. Kulesza. On April 20, 2018, Dr. Kulesza prescribed plaintiff pain medication, arthritis cream, and a knee sleeve. Dr. Kulesza also scheduled a follow-up appointment with plaintiff for the following week. Further, plaintiff received physical therapy on April 27 and May 4, 2018, and by the second physical therapy appointment, plaintiff had reported decreased knee pain. Plaintiff was also moved to a different cell tier to accommodate his injury. And according to plaintiff’s medical records, plaintiff received a radiological knee exam on April 26, 2018, and an x-ray on November 8, 2018.Plaintiff’s allegations as to Dr. Kulesza’s treatment fail to satisfy the mens rea prong for the additional reason that plaintiff fails to suggest there was any degree of risk associated with Dr. Kulesza’s treatment of his knee. Not only are there no allegations that plaintiff’s knee became worse due to Dr. Kulesza’s treatment, but there is some indication plaintiff’s knee got better, as plaintiff reported decreased knee pain by his second physical therapy visit. Moreover, to the extent plaintiff argues Dr. Kulesza should have provided the treatment prescribed by the physical therapist, as noted above, “mere disagreement over the proper treatment does not create a constitutional claim.” Chance v. Armstrong, 143 F.3d at 703.Accordingly, plaintiffs deliberate indifference claim against Dr. Kulesza is dismissed.III. Monell ClaimAs plaintiff has not adequately pleaded an underlying violation of his constitutional rights, his Monell claim against CCS is dismissed. See Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006) (district court “was entirely correct” in declining to address a Monell claim after finding no underlying constitutional violation).IV. State Law ClaimsDefendants argue the Court should either dismiss or decline to exercise supplemental jurisdiction over any plausible state law claims asserted in the complaint. Because the Court is granting plaintiff leave to file an amended complaint, it declines to entertain those arguments at this time. They may, however, be renewed, if and when defendants move to dismiss the amended complaint.V. Leave to AmendRule 15(a)(2) of the Federal Rules of Civil Procedure instructs that courts “should freely give leave” to amend a complaint “when justice so requires.” Liberal application of Rule 15(a) is warranted with respect to pro se litigants, who “should be afforded every reasonable opportunity to demonstrate that [they have] a valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (internal quotation omitted). District courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation omitted).Here, because a liberal reading of plaintiff’s complaint indicates a valid Fourteenth Amendment claim might be stated, and as plaintiff has not previously amended his complaint, the Court grants plaintiff leave to file an amended complaint and replead his deliberate indifference claims to the extent he can do so clearly, concisely, truthfully, and plausibly.To the greatest extent possible, plaintiff’s amended complaint must address the deficiencies identified in this Opinion and Order and must:1. describe all relevant events, stating the facts that support plaintiff’s case, including what each individual defendant did or failed to do;2. include a clear explanation of what health issues he attributes to any untimely or improper medical treatment;3. include any details explaining why he believes defendants untimely or improperly treated him;4. give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;5. describe how each defendant’s acts or omissions violated plaintiff’s rights and describe the injuries plaintiff suffered as a result of those acts or omissions; and6. include any facts regarding the existence of an official CCS policy or custom that caused the deprivation of a constitutional right.Essentially, the body of plaintiff’s amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violation occurred; where such violation occurred; and why plaintiff is entitled to relief.Finally, the amended complaint will completely replace, not supplement, the existing complaint. Therefore, plaintiff must include in the amended complaint all information necessary for his claims. However, plaintiff is directed to include in his amended complaint only those facts and documents he believes plausibly support a violation of his constitutional rights.CONCLUSIONThe motion to dismiss is GRANTED. However, plaintiff is granted leave to file an amended complaint as to his Fourteenth Amendment deliberate indifference claims in accordance with the instructions above.Plaintiff shall file his amended complaint by no later than July 19, 2019, and shall utilize the amended complaint form attached hereto. If plaintiff fails to file an amended complaint or seek additional time to do so by July 19, 2019, the Court will direct the Clerk to enter judgment in defendants’ favor and close the case.The Clerk is instructed to terminate the motion. (Doc. #15).The Court certifies pursuant to 28 U.S.C. §1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).SO ORDERED:Dated: June 18, 2019White Plains, NY
