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Milton v. McClintic

Rights Action Over Pistol Is Dismissed; Defendant Not State Actor Under 42 USC §1983

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DECISION AND ORDER Plaintiff Craig R. Milton, through counsel, brings this action against Elysa and William McClintic, pursuant to 42 U.S.C. §1983. Plaintiff alleges that both defendants are physicians and that they violated his constitutional rights in connection with certain events that occurred when he was receiving medical treatment in February 2019, as explained below. Service of process has been effected on both defendants, but William McClintic has not yet appeared in this action. Elysa McClintic (“Dr. McClintic”) has filed a motion to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. BACKGROUND The complaint alleges the following facts, which for purposes of the pending motion are accepted as true. Plaintiff is a United States Navy veteran who resides in Elmira, New York. In the past, he has received medical treatment at a health clinic in Elmira that is administered by the Department of Veterans Affairs (“VA”). On or about February 8, 2019, at the recommendation of an optometrist at the Elmira VA Clinic, plaintiff underwent surgery to correct a medical problem around his eyes. The surgery was performed by Dr. McClintic at Guthrie Robert Packer Hospital (“Packer”) in Sayre, Pennsylvania, where Dr. McClintic was employed. Neither Packer nor Dr. McClintic have any direct association with the VA. On February 13, 2019, plaintiff saw Dr. McClintic at Packer for a followup visit. During their conversation, he told her that although he was supposed to have been completely anesthetized during the operation, he was awake during part of it, and that he was unable to speak but he tried, unsuccessfully, to alert her to that fact by moving his arms and legs. He alleges that although he was in “tremendous pain” during the procedure, and that at the followup visit he thanked Dr. McClintic for working quickly so as not to “drag it out and make the surgery more painful.” Complaint

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