Bryant v. Wright
Opinion
SUMMARY ORDER
Plaintiff John Bryant, appearing pro se, appeals from the Rule 12(b)(6) dismissal of his complaint alleging deliberate indifference to his medical needs, in violation of the Eighth Amendment. See 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a motion to dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although all allegations contained in the complaint are assumed to be true, this tenet is “inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). A claim will have “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.” Id. We “construe[ ] liberally” pro se submissions, interpreting them “to raise the strongest arguments that they sug *14 gest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted; emphasis in original).
Applying these principles, we affirm for substantially the same reasons stated in the magistrate judge’s thorough and well-reasoned August 31, 2010 report and recommendation. It is a common exercise of judgment to place prisoners on generic medications, and this act, without more, does not suggest the recklessness necessary for a constitutional claim of deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 107, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hernandez v. Keane, 341 F.3d 137, 147 (2d Cir. 2003). Moreover, the complaint acknowledges that prison doctors were “trying to stop” the ensuing dermatological side effects of the medication at issue, Compl. at 3, Bryant v. Wright, 1:09 cv 2456(GBD)(GWG) (S.D.N.Y. Mar. 18, 2009), ECF No. 2, and grievance forms attached to the pleading show that Bryant had been seen by a dermatologist and had received medical treatment for his skin ailment. The bare allegation that the treatments have so far been unsuccessful is insufficient to state a claim for deliberate indifference. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (distinguishing medical malpractice from deliberate indifference, which requires “culpable recklessness”).
Bryant’s argument that he should have been given leave to re-plead is baseless because the district court gave him thirty days from the entry of its order to file an amended pleading, which he failed to do. We have considered Bryant’s remaining arguments, and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- John BRYANT, Plaintiff-Appellant, v. M.D. Dr. Lester WRIGHT, Assoc. Commissioner, Dr. J. Perilli, Head Admin., and Dr. A. Bahkis (Sing Sing Dr.), Defendants-Appellees
- Cited By
- 7 cases
- Status
- Unpublished