United States District Court, D. Massachusetts
Randall Ashley, Plaintiff, Pro se, Malne , NY.
For Berkshire Medical Center, Inc., Defendant: Dennis M. LaRochelle, LEAD ATTORNEY, Cain, Hibbard, & Myers, PC, Pittsfield , MA.
For Dr. Steven Silver, Defendant: John G. Bagley, LEAD ATTORNEY, Jeffrey K. O'Connor, Morrison Mahoney LLP, Springfield , MA.
MEMORANDUM AND ORDER WITH REGARD TO DEFENDANTS' MOTIONS TO DISMISS (Document Nos. 18 and 26)
KENNETH P. NEIMAN, U.S. Magistrate Judge.
Proceeding pro se, Randall Ashley (" Plaintiff" ), an inmate at the Bane Hill Correctional Facility in Malone, New York, commenced this medical malpractice action in the United States District Court for the Southern District of New York against Berkshire Medical Center (" BMC" ), Dr. Steven Silver, and the New York State Office of Children and Family Services (" Children and Family Services" ). The claims arise out of a medical procedure performed in 1994. District Judge Loretta A. Preska dismissed the claims against Children and Family Services under 28 U.S.C. § 1915A(a) on Eleventh Amendment state sovereign immunity grounds and transferred the remaining claims against BMC and Dr. Silver to this court pursuant to 28 U.S.C. § 1406(a).
BMC and Dr. Silver (together, " Defendants" ) have since filed motions to dismiss.
The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. For the following reasons, the court will grant Defendants' motions.
I. Standard of Review
When faced with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept the allegations of the complaint as true, drawing all reasonable inferences in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir. 1992). Moreover, " Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what that . . . claim is and the grounds upon which it rests.'" Sepú lveda-Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 28 (1st Cir. 2010). Recently, the Supreme Court made clear that, under Bell A. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint that states a plausible claim for relief, on its face, will a survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court explained that " [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." Id. Still, a pro se plaintiff is " entitled to liberal construction of his allegations, no matter how inartfully pled." Stern v. Haddad Dealerships of the Berkshires, Inc., 477 F.Supp.2d 318, 321 (D. Mass. 2007).
The following facts come directly from Plaintiff's complaint and are stated in a light most favorable to him. Young v. Lepone, 305 F.3d 1, 8 (1st Cir. 2002). In 1994, Plaintiff, who was thirteen years-old, was in the custody of Children and Family Services, which sent him to BMC in Pittsfield, Massachusetts, " to have me[t]al pins" surgically inserted in his body. Dr. Silver, a Massachusetts resident, performed the operation, during which Plaintiff awoke but was put back to sleep. Plaintiff alleges that Dr. Silver, at some point, should have removed the pins, which remain in his left leg and cause severe pain. In fact, Plaintiff alleges, he has been in severe pain " for the past 19 years" as result of the pins. Plaintiff's mother, Terry Ashley, " knew of all the medical procedures that were . . . administered and conducted" by BMC staff and Dr. Silver. In addition, Children and Family Services knew that the pins were to be removed but never sent Plaintiff to have the problem corrected. Plaintiff " ...