United States District Court, D. Vermont
REPORT AND RECOMMENDATION AND ORDER (DOCS. 6,
M. Conroy, United States Magistrate Judge.
Joshua Many, proceeding pro se, brings this action
under 42 U.S.C. § 1983 against Defendants, the Vermont
Department of Corrections (DOC) and Centurion Healthcare
(Centurion) (collectively, “Defendants”). Many
alleges that when he entered DOC custody in May 2017, he had
an existing health condition consisting of shotgun pellets
lodged in his leg and claims that-although he has requested
care for pain associated with the pellets-Defendants are
acting in collusion to deny him adequate healthcare. (Doc. 6
at 1-2.) For relief, Many seeks a hearing, an
“immediate medical injunction, ” appointment of
counsel, and leave to amend to seek monetary damages.
(Id. at 2-3.)
addition to Many's requests for counsel and leave to
amend, presently before the Court is Defendants' Motion
to Dismiss under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted.
(Doc. 10.) Although the Court informed Many of the importance
of responding to a motion by Defendants, warning him that
failure to respond may result in dismissal of his case
(see Doc. 4 at 3-4), he has nevertheless not
responded to the Motion.
that Many has failed to allege facts sufficient to state a
plausible claim against Centurion or the DOC, I recommend
that the Motion to Dismiss (Doc. 10) be GRANTED and the
Complaint (Doc. 6) be DISMISSED for failure to state a claim.
However, I recommend Many be afforded leave to amend as
further discussed below. Many's request for appointment
of counsel (id. at 3) is DENIED at this time.
and Procedural Background
sparse facts alleged in Many's three-page Complaint (Doc.
6) are supplemented by the information gleaned from the
attachments to the Complaint, consisting of DOC grievance
forms. Many entered the custody of the DOC on May
30, 2017, with “an existing health issue after being
shot with a shotgun just prior to arrest.”
(Id. at 1.) He alleges Defendants are responsible
for his safety and health care. (Id.)
2, 2017, he submitted a request for care to address
“issues of pain and lead pellets in his leg and hip
area.” (Id. at 1-2.) After receiving no care,
on July 28, 2018, Many filed a grievance because the
condition was becoming more painful. (Doc. 6-2.) On July 29,
2018, he submitted a second grievance addressing the same
issue. (Doc. 6-4.) On August 9, 2018, he again sought medical
attention, complaining of pain related to his condition.
(Doc. 6 at 2.) August 20, 2018, he submitted a third
grievance (id.), and, on September 22, 2018, an
appeal to the Director of Health Services. (Doc. 6-7.)
November 7, 2018, Many's appeal was “sustained and
he was to see an outside provider for medical care.”
(Doc. 6 at 2; see also Doc. 6-10 (“We have
requested an appointment with the provider be scheduled to
reconsider your request for an appointment with an outside
specialist. . . . Your grievance is sustained.”).)
Because he did not receive an outside appointment and he
continued to suffer pain and increasing symptoms, Many filed
this action, alleging he has exhausted all remedies. (Doc. 6
at 2.) On March 20, 2019, the Court granted Many's
request to proceed in forma pauperis and his
Complaint was filed. (See Docs. 1, 4, 6.)
Legal Standard for a Rule 12(b)(6) Motion to Dismiss
evaluating whether to dismiss a complaint for failure to
state a claim upon which relief can be granted under Federal
Rule of Civil Procedure 12(b)(6), the court tests the
pleading for “facial plausibility.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
This does not require a plaintiff to provide “detailed
factual allegations” to support his claims,
Twombly, 550 U.S. at 555, but allegations that
“are so vague as to fail to give the defendants
adequate notice of the claims against them” are subject
to dismissal. Sheehy v. Brown, 335 Fed.Appx. 102,
104 (2d Cir. 2009); see also Twombly, 550 U.S. at
555 (“Factual allegations must be enough to raise a
right to relief above the speculative level.”).
assessing the adequacy of the pleadings, a court must accept
all factual assertions as true and draw all reasonable
inferences in favor of the plaintiff. Lanier v. Bats
Exch., Inc., 838 F.3d 139, 150 (2d Cir. 2016). A
complaint is properly dismissed where, as a matter of law,
“the allegations in [it], however true, could not raise
a claim of entitlement to relief.” Twombly,
550 U.S. at 558. Because Many is representing himself, in
addition to accepting his factual allegations as true, the
Court is also required to read his Complaint liberally and
construe it to raise the strongest possible argument.
Harris v. Miller, 818 F.3d 49, 56-57 (2d Cir. 2016)
42 U.S.C. § 1983, a plaintiff may bring suit
“against ‘[e]very person who, under color of any
statute . . . of any State . . . subjects, or causes to be
subjected, any citizen . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws.'” Wyatt v. Cole, 504 U.S. 158,
161 (1992) (alterations in original) (quoting 42 U.S.C.
§ 1983). “The purpose of § 1983 is to deter
state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and
to provide relief to victims if such deterrence fails.”
Id. The Supreme Court has identified two elements of
a § 1983 claim: “a plaintiff [(1)] must allege the
violation of a right secured by the Constitution and laws of
the United States, and [(2)] must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
1983 does not itself create or establish a federally
protected right; instead, it creates a cause of action to
enforce federal rights created elsewhere, such as a federal
constitutional right. Albright v. Oliver, 510 U.S.
266, 271 (1994). Although Many does not cite to a specific
constitutional provision that Defendants violated, because
Many was a state prisoner when his claims arose, this Court
construes Many's claim as alleging that Defendants
deprived him of his Eighth Amendment right to adequate
medical care. Under the test established by the Supreme Court
in Estelle v. Gamble, 429 U.S. 97, 104 (1976), the
inquiry in a § 1983 action like this is generally
“whether the treating physician or other prison
official was deliberately indifferent to a prisoner's
serious medical needs.” Hathaway v. Coughlin,
37 F.3d 63, 68 (2d Cir. 1994). This test has objective and
subjective components. Hill v. Curcione, 657 F.3d
116, 122 (2d Cir. 2011). The objective prong looks to the
severity of the alleged deprivation while the subjective
prong asks whether the prison official acted with a
sufficiently culpable state of mind. See Smith v.
Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003).
the objective prong, the Court must determine “whether
the prisoner was actually deprived of adequate medical
care” and “whether the inadequacy in medical care
is sufficiently serious.” Salahuddin v. Goord,
467 F.3d 263, 279-80 (2d Cir. 2006). To determine whether a
deprivation reaches the requisite threshold, these two
inquiries are “tailored to the specific circumstances
of each case.” Smith, 316 F.3d at 185. Several
factors are relevant to the seriousness of the medical
condition: whether a reasonable doctor or patient would
comment on the condition; whether the prisoner's daily
activities are affected by the condition; and whether the
condition causes chronic and substantial pain.
Salahuddin, 467 F.3d at 280. If the prisoner
complains of a delay or interruption in treatment, the
seriousness inquiry “focuses on the challenged delay or
interruption in treatment rather than the prisoner's
underlying medical condition alone.” Id.
(alteration and internal quotation marks ...