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Fortunato v. Bernstein

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Sep 1, 2015
12 Civ. 1630 (AT) (S.D.N.Y. Sep. 1, 2015)

Opinion

12 Civ. 1630 (AT)

09-01-2015

LOUIS FORTUNATO, Plaintiff, v. MEDICAL DIRECTOR BERNSTEIN, DR. BHOPLE, and OPTHAMOLOGIST DR. SABEN, Defendants.


MEMORANDUM AND ORDER :

Plaintiff pro se, Louis Fortunato, brings this action under 42 U.S.C. § 1983, alleging deliberate indifference to his serious medical needs in violation of the Eighth Amendment. Defendant Steven Zabin, M.D., moves to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants Vishwas Bhopale, M.D., and Frederick Bernstein, M.D., move to dismiss the amended complaint pursuant to Rules 12(b)(2), 12(b)(5), 12(b)(6) and 41(b) of the Federal Rules of Civil Procedure. For the reasons stated below, Bernstein and Zabin's motions to dismiss are GRANTED and Bhopale's motion is DENIED.

Zabin is incorrectly identified in the complaint as "Dr. Saben." Zabin Reply at 1, ECF No. 38.

Bhopale is incorrectly identified in the complaint as "Dr. Bhople." Bhopale & Bernstein Mem. at 1, ECF No. 46.

Bhopale and Bernstein also move to dismiss the amended complaint for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). However, they offer no supporting authority, and the Court finds none. Accordingly, dismissal on this ground is DENIED.

BACKGROUND

I. Factual Background

In July 2007, while incarcerated at Green Haven Correctional Facility ("Green Haven"), Plaintiff "started [to] experience los[s] of eyesight," Am. Compl. ¶ II.C, ECF No. 12; accord Compl. ¶¶ II.A-C, ECF No. 2, as well as pain and irritation, Compl. ¶ II.C. Plaintiff began going to "sick call" and, "after much persistence," he saw an optometrist three times between March 2008 and December 2009. Compl. ¶ II.D. Plaintiff was also sent to Fishkill Correctional Facility for a "visual field test," Compl. ¶¶ II.C-D; accord Am. Compl. ¶ II.D, but Bhopale, Plaintiff's "medical provider" at Green Haven, "never followed up on" the visual field test results, Compl. ¶ II.D. Instead, when Plaintiff would complain to Bhopale about the "same issues," Bhopale "always" told Plaintiff "it's nothing." Id. After "over a year," however, Bhopale "admitted [that] he didn't know how to read the eye test" results. Id.; accord Am. Compl. ¶ II.D. Bhopale then referred Plaintiff to an optometrist, who in turn referred Plaintiff to Zabin, an ophthalmologist. Id.; accord Am. Compl. ¶ II.D.

The following facts are taken from the original and amended complaints and accepted as true for the purposes of this motion. See A TSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). Although "an amended complaint ordinarily supersedes the original and renders it of no legal effect," Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977), the Court considers both the original and amended complaints here in light of Plaintiff's references to the original complaint in his amended complaint, Am. Compl. ¶¶ II.D, IV.I, and Plaintiff's pro se status, see, e.g., Washington v. Westchester Cnty. Dep't of Corr., No. 13 Civ. 5322, 2015 WL 408941, at *1 n.1 (S.D.N.Y. Jan. 30, 2015) ("[G]iven Plaintiff's pro se status, the Court will consider . . . facts from the [p]laintiff's [original] [c]omplaint that have not been repeated in the [a]mended [c]omplaint." (citations omitted)); Camarano v. City of New York, 624 F. Supp. 1144, 1147-48 (S.D.N.Y. 1986) ("[A] pro se civil rights complaint[] . . . must be given the benefit of incorporation." (internal quotation marks and citation omitted)).

At the ophthalmology appointment, Zabin "put [Plaintiff's] eyes thr[ough] a machine," which Plaintiff found difficult because it "was unusual to [his] eyes." Compl. ¶ II.D. Zabin "lost patience," became "very belligerent," and "ki[c]ked [Plaintiff] out of the room." Id.; accord Am. Compl. ¶ II.D. Zabin told Plaintiff that his eyes were "fine" and that "nothing [was] wrong." Compl. ¶ II.D; accord Am. Compl. ¶ II.D. In response, Plaintiff complained to Zabin that he "didn't even check." Compl. ¶ II.D. Separately, Plaintiff also "filed over 20 grievances," in response to which Bernstein and Green Haven's superintendent "wrote statements." Am. Compl. ¶ II.D. Several of these grievances were resolved "in [Plaintiff's] favor declaring [he] get medical attention." Id.

Several months later, an optometrist referred Plaintiff to Westchester Medical Center ("Westchester"), where, on March 19, 2010, Plaintiff was told that he was "los[]ing his eyesight" because he had "middle stage[] glaucoma," Am. Compl. ¶¶ II.C-D; accord Compl. ¶ II.D. Following this diagnosis, Bhopale tried to persuade Plaintiff that he did not have glaucoma and cancelled for "some time" Plaintiff's medical trips, which the diagnosing physician at Westchester had told Plaintiff were necessary for the rest of his life. Compl. ¶ II.D. Plaintiff was also taken off his "medical hold" and subsequently transferred to Southport Correctional Facility ("Southport"). Id. While at Southport, an optometrist and an ophthalmologist again "tr[ied] to persuade" Plaintiff that he did not have glaucoma, though the ophthalmologist admitted that Plaintiff was losing his eyesight rapidly. Id. Following Plaintiff's subsequent transfer to Auburn Correctional Facility, he was referred to Upstate Medical Center in Syracuse, where he was told that his "eye sight is pretty bad" and again diagnosed with glaucoma on February 14, 2012. Id.

Plaintiff alleges that he is now "practically blind in [his] left eye and partially [blind] in his right eye," Compl. ¶ II.D, and has lost his peripheral vision, Am. Compl. ¶ III. Plaintiff contends that his glaucoma "could've been caught at early stages" if not for the "medical negligence and indifference" of Bhopale and Zabin. Compl. ¶ III; accord Am. Compl. ¶ II.D.

II. Procedural History

On March 5, 2012, Plaintiff filed the original complaint in this action against Green Haven's "W. Lee," the "Ophth[al]mologist who visits Green Haven," "Bhople," the State of New York, and Green Haven itself. On April 2, 2012, the Honorable Laura Taylor Swain issued an order of service that dismissed the claims against Lee, the State of New York, and Green Haven, and directed: (1) the Attorney General of the State of New York (the "Attorney General") to identify the John Doe ophthalmologist; (2) the Clerk of Court to issue a summons as to "Bhople"; and (3) Plaintiff to serve the summons and complaint on "Bhople" within 120 days of the issuance of the summons. ECF No. 9. Two days later, Judge Swain referred the matter to the Honorable Ronald L. Ellis for general pretrial purposes. ECF No. 10. On April 13, 2012, a summons was issued as to "Bhople." On May 17, 2012, the Attorney General's office filed a letter identifying "two outside providers [that] may correspond to [P]laintiff's description": (1) Steven "Zubin," an ophthalmologist; and (2) Richard Wurzel, an optometrist. ECF No. 11. That same day, Plaintiff filed an amended complaint dated May 5, 2012, naming "Bhople," Bernstein, and "Opthamologist Dr. Saben" as defendants. ECF No. 12. On June 5, 2012, amended summonses were issued as to "Bhople," Bernstein, and "Saben." On May 23, 2013, the case was reassigned to this Court. ECF No. 13.

On July 1, 2014, Judge Ellis issued an order of service directing the Clerk of Court to: (1) issue a new summons for Steven "Zubin"; (2) fill out a U.S. Marshals Service Process and Return form for "Zubin"; and (3) deliver a service package to the U.S. Marshals Service in order to effect service upon "Zubin." ECF No. 16. A summons was issued as to "Zubin" that same day and, on August 9, 2014, Zabin was served with the summons and amended complaint. ECF No. 17. Judge Ellis issued orders of service with respect to "Bhople" and Bernstein on October 8, 2014, ECF No. 21, and December 19, 2014, ECF No. 31, respectively. Summonses were issued as to "Bhople" and Bernstein on January 16, 2015 and, on March 9, 2015, Bhopale and Bernstein were each served with the summons and amended complaint. ECF Nos. 39, 40.

Judge Ellis construed the amended complaint to be asserting a claim against "Zubin" by naming "Dr. Saben." ECF No. 16 at 1.

Zabin's acknowledgment of service, ECF No. 17, makes clear that the Attorney General's office misspelled his last name in the letter filed on May 17, 2012, ECF No. 11.

DISCUSSION

I. Sufficiency of Service of Process

Before addressing the merits of Plaintiff's claim, Defendants raise a number of procedural arguments stemming from Plaintiff's delays in effectuating service of the amended complaint. Bernstein and Bhopale move to dismiss the amended complaint pursuant to Rule 12(b)(5), arguing that Plaintiff failed to properly effectuate service within the 120-day timeframe specified by Federal Rule of Civil Procedure 4(m). The court, however, has discretion under Rule 4(m) to grant an extension of time to serve the defendant with or without good cause, Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007), and "[a] party appearing without counsel is afforded extra leeway in meeting the procedural rules governing litigation," Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) (noting that "trial judges must make some effort to protect a party so appearing from waiving a right to be heard because of his or her lack of legal knowledge"). Accordingly, dismissal on Rule 12(b)(5) grounds is DENIED.

Bernstein and Bhopale's request in the alternative that the Court dismiss the amended complaint pursuant to Rule 41(b) is also DENIED. A dismissal under Rule 41(b) for failure to prosecute "remains a harsh remedy to be utilized only in extreme situations," LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001) (internal quotation marks omitted), and the Court does not find that Plaintiff's delays in effectuating service justify dismissal on that ground, see Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir. 1988) (detailing factors to be considered in granting Rule 41(b) dismissal), particularly given the "special leniency regarding procedural matters" that courts are to give pro se litigants, LeSane, 239 F.3d at 209.

Zabin likewise moves to dismiss the amended complaint for reasons relating to service of process, albeit on the grounds that Plaintiff is barred from suit because he did not serve his amended complaint on Zabin until after the applicable statute of limitations had run. Although it is true that Plaintiff did not serve his complaint on Zabin within the applicable limitations period, Plaintiff filed his complaint within the limitations period. Because the filing rather than service of a complaint "commences" an action for the purposes of a Section 1983 action, Salahuddin v. Harris, 657 F. Supp. 369, 374 (S.D.N.Y. 1987) (citing Bomar v. Keyes, 162 F.2d 136, 140-41 (2d Cir. 1947)), dismissal on these grounds is DENIED.

Bhopale and Bernstein also appear to suggest that the Court lacks personal jurisdiction because Plaintiff's service upon Bhopale and Bernstein was ineffective, as Plaintiff allegedly failed to comply with a New York state procedural rule governing service upon natural persons. See N.Y. C.P.L.R. § 308(2). State procedural rules have no application in a Section 1983 action. Cf. Hanna v. Plumer, 380 U.S. 460, 473-74 (1965). Accordingly, dismissal on Rule 12(b)(2) grounds is DENIED.

II. Failure to State a Claim

A. Motion to Dismiss Standard

To survive a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff is not required to provide "detailed factual allegations" in the complaint, but must assert "more than labels and conclusions." Twombly, 550 U.S. at 555. Ultimately, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. On a Rule 12(b)(6) motion, the court may consider only the complaint, documents attached to the complaint, matters of which a court can take judicial notice, or documents that the plaintiff knew about and relied upon in bringing suit. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). The court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-movant. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

The court must "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted). "The policy of liberally construing pro se submissions is driven by the understanding that implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks, citation, and brackets omitted). Although the court is "obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports, [the court] cannot invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Finally, "the court should not dismiss 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 marks and citation omitted).

B. Deliberate Indifference Standard

To state an Eighth Amendment claim under Section 1983 on the basis of inadequate medical care, a prisoner must allege "deliberate indifference to [his or her] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The deliberate indifference standard includes both objective and subjective components. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011). The objective component requires that "the alleged deprivation . . . be sufficiently serious, in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks and citation omitted). The subjective component requires that "the charged official . . . act with a sufficiently culpable state of mind" (i.e., "with deliberate indifference to inmate health"). Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). "Deliberate indifference is a mental state equivalent to [criminal] recklessness," which means that "the charged official [must] act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id.

Thus, to survive a Rule 12(b)(6) motion to dismiss, "the prisoner must plausibly allege that the official knew of the prisoner's serious [medical] need and deliberately disregarded it." Villar v. Ramos, No. 13 Civ. 8422, 2015 WL 3473413, at *3 (S.D.N.Y. June 2, 2015) (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994); Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003)) (additional citation omitted). "[M]ere allegations of negligent malpractice do not state a claim of deliberate indifference . . . ." Hathaway, 99 F.3d at 553; see also Estelle, 429 U.S. at 106 ("[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.").

C. Application

Defendants do not contest that Plaintiff's injuries are "sufficiently serious" within the meaning of the deliberate indifference standard, see Hathaway v. Coughlin, 99 F.3d at 554, and prior decisions in this Circuit clearly establish that the injuries alleged by Plaintiff constitute a "serious medical need." See, e.g., Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (finding a serious medical need where plaintiff alleged that his glasses were necessary to avoid double vision, loss of depth perception, and injuries resulting from falling or walking into objects); Liner v. Fischer, No. 11 Civ. 6711, 2013 WL 4405539, at *19 (S.D.N.Y Aug. 7, 2013) (finding inadequate treatment for glaucoma leading to vision loss to be a serious medical need). The question, therefore, is whether Plaintiff has plausibly alleged that each Defendant acted "with a sufficiently culpable state of mind," i.e., "while actually aware of a substantial risk that serious inmate harm will result." Salahuddin, 467 F.3d at 280. Plaintiff's allegations regarding each Defendant's state of mind are evaluated in turn.

1. Bhopale

Plaintiff alleges in substance that Bhopale received the results of a "visual field test" performed by a specialist, but did not know how to read the test and waited for "over a year" before informing Plaintiff and referring him to someone competent to do so. See supra at Part I. During that period, Plaintiff repeatedly visited Bhopale complaining of his vision loss, and Bhopale "always" told Plaintiff that "it's nothing." Id. Although a physician's error in reading a diagnostic test would ordinarily amount to medical malpractice at most, see Estelle, 429 U.S. at 106, Plaintiff's allegation that Bhopale did not know how to read the results of the visual field test transforms his claim into one of constitutional dimension. A physician's failure to act while aware of an inmate's serious medical need can constitute deliberate indifference within the meaning of the Eighth Amendment. Salahuddin, 467 F.3d at 280 ("[T]he charged official [must] act or fail to act while actually aware of a substantial risk that serious inmate harm will result."); see also Shomo v. City of New York, No. 03 Civ. 10213, 2005 WL 756834, at *10 (S.D.N.Y. Apr. 4, 2005) (citing Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)) (noting that "deliberately refus[ing]" to treat a medical condition "with conscious disregard of the substantial risk of serious harm" constitutes deliberate indifference). Here, Bhopale's failure to act while aware of Plaintiff's serious medical needs can be inferred from: (1) Bhopale's knowledge that he was unable to read the eye test; (2) his decision not to take any further action despite that knowledge; and (3) his contemporaneous receipt of repeated complaints from Plaintiff regarding his vision loss. Chavis, 618 F.3d at 170 (noting that the court is "obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports"). Although Bhopale did eventually take action by referring Plaintiff to a capable optometrist, the Second Circuit has held that "a prolonged delay in treatment could support an inference of deliberate indifference," particularly where "doctors withheld relevant information regarding the cause of the pain." Hernandez, 341 F.3d at 146 (describing its holding in Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994)). The "over a year" delay alleged here is of sufficient length, cf. Hernandez, 341 F.3d at 146 (finding a "matter of months" insufficient to support an inference of deliberate indifference), and as in Hathaway, Bhopale "withheld relevant information" (i.e., his inability to read the visual field test) such that Plaintiff was unable to move forward with treatment for his serious medical needs. Hernandez, 341 F.3d at 146. Dismissal on Rule 12(b)(6) grounds is therefore DENIED.

Bhopale also argues for Rule 12(b)(6) dismissal on the basis of qualified immunity. A defendant who raises the affirmative defense of qualified immunity on a motion to dismiss "must accept the more stringent standard applicable to this procedural route" and "the facts supporting the defense [must] appear on the face of the complaint." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (suggesting that a qualified immunity defense is more commonly resolved on a motion for summary judgment). Thus, a defendant can successfully dismiss on qualified immunity grounds only "if the complaint fails to allege the violation of a clearly established constitutional right." Burton v. Lynch, 664 F. Supp. 2d 349, 368 (S.D.N.Y. 2009) (internal quotation marks omitted). Because the Eighth Amendment deliberate indifference claim adequately pled by Plaintiff here would constitute "the violation of a clearly established right" if proven, id., dismissal on the basis of qualified immunity is DENIED. --------

2. Zabin

Following Bhopale's referral of Plaintiff to an eye specialist, Plaintiff visited Zabin, who began testing Plaintiff's eyes but "lost patience," became "very belligerent," and "kicked [Plaintiff] out of the room" after Plaintiff started having difficulty with the test. See supra at Part I. Although Plaintiff's allegations suggest that Zabin deliberately refused him treatment, Plaintiff's failure to allege that Zabin did so while "actually aware" of Plaintiff's "serious medical need" is fatal to his claim. Salahuddin, 467 F.3d at 280. Plaintiff does not, for example, claim that he informed Zabin of his vision loss or that Zabin was given medical records that would have reflected Plaintiff's complaints to Bhopale. Although Zabin may have been aware of the existence of some issue with Plaintiff's vision under the circumstances, the court "cannot invent factual allegations that [the plaintiff] has not pled" and assume that Zabin was aware that Plaintiff had a "serious medical need." Chavis, 618 F.3d at 170. Dismissal on Rule 12(b)(6) grounds is therefore GRANTED.

3. Bernstein

Unlike Bhopale and Zabin, Bernstein did not treat Defendant directly, but instead appears to have played a supervisory role at Green Haven. See Am. Compl. ¶ II.D. Supervisory status, "without more," is not sufficient to subject a defendant to Section 1983 liability. Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002) (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam). Rather, some "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal quotation marks omitted). Such personal involvement may be shown by evidence that the defendant: (1) participated directly in the alleged constitutional violation; (2) failed to remedy the constitutional violation after being informed of the wrong; (3) created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue; (4) was grossly negligent in supervising subordinates who committed the alleged violation; or (5) was deliberately indifferent to ongoing unconstitutional acts. Id.

Although the continuing validity of the Colon factors has been called into question by the Supreme Court's ruling in Iqbal, see Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (noting that Iqbal "may have heightened the requirements" for supervisory liability beyond those articulated in Colon); Liner, 2013 WL 4405539, at *15 (describing a split in this District as to Iqbal's effect on Colon), the Court need not address this doctrinal question as Plaintiff's claims against Bernstein fail even assuming that Colon continues to apply with full force. Bernstein's involvement with Plaintiff's medical care appears to have been restricted to his role in Green Haven's grievance process. Specifically, Plaintiff alleges that he "filed over 20 grievances," some of which were "resolved in [Plaintiff's] favor," "declaring [that he] get medical attention." See supra at Part I. As part of this grievance process, Bernstein allegedly "wrote statements." Id. Such factual allegations are insufficient to establish personal involvement—glancing participation in grievance processes is insufficient to establish the personal involvement necessary for supervisory liability. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (holding that corrections commissioner's referral of inmate grievance to a prison administrator and commissioner's subsequent written status update to inmate did not constitute personal involvement); Rivera v. Pataki, No. 04 Civ. 1286, 2005 WL 407710, at *22-23 (S.D.N.Y. Feb. 7, 2005) (collecting cases). Although some courts have found personal involvement where a supervisor's actions consist of more than the mere receipt of grievances, Johnson, 234 F. Supp. 2d at 363-64 (noting that "personal involvement will be found . . . where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint"), such decisions have required factual allegations of involvement more specific than Plaintiff's vague contention here that Bernstein "wrote statements" as part of the grievance process, see, e.g., Ramos v. Artuz, No. 11 Civ. 149, 2001 U.S. Dist. LEXIS 10327, at *27-28 (S.D.N.Y. 2001) (denying motion to dismiss where defendant's involvement "went beyond merely the receipt of complaint letters" and where he "defended and explained Green Haven's treatment of plaintiff, both to plaintiff and to Legal Aid Society"); cf. Sealey, 116 F.3d at 51. Moreover, Plaintiff makes no allegation that Bernstein was responsible for a policy or custom under which unconstitutional practices occurred, nor does he allege that Bernstein failed to adequately supervise his subordinates. Accordingly, dismissal on Rule 12(b)(6) grounds is GRANTED.

CONCLUSION

For the reasons stated above, Bernstein and Zabin's motions to dismiss are GRANTED and Bhopale's motion is DENIED. However, because "a liberal reading of the complaint . . . indicat[es] that a valid claim might be stated," Cuoco, 222 F.3d at 112 (internal quotation marks and citation omitted), the Court grants Plaintiff leave to file an amended complaint by October 15, 2015 to address the pleading deficiencies described above. If Plaintiff fails to file an amended complaint by October 15, 2015 and does not show good cause to excuse such failure, this action may be dismissed with prejudice. See Fed. R. Civ. P. 41(b).

Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies 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 any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

The Clerk of Court is directed to terminate the motions at ECF Nos. 24 and 44 and to mail a copy of this order and all unpublished cases cited herein to Plaintiff pro se.

SO ORDERED. Dated: September 1, 2015

New York, New York

/s/_________

ANALISA TORRES

United States District Judge


Summaries of

Fortunato v. Bernstein

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
Sep 1, 2015
12 Civ. 1630 (AT) (S.D.N.Y. Sep. 1, 2015)
Case details for

Fortunato v. Bernstein

Case Details

Full title:LOUIS FORTUNATO, Plaintiff, v. MEDICAL DIRECTOR BERNSTEIN, DR. BHOPLE, and…

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Sep 1, 2015

Citations

12 Civ. 1630 (AT) (S.D.N.Y. Sep. 1, 2015)

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