Cite as 117 F.Supp.2d 301 (S.D.N.Y. 2000)
the Due Process Clause).[1] As these cases also make plain, however, “mere negligence” does not state a constitutional claim. Estelle v. Gamble, 429 U.S. at 107, 97 S.Ct. 285; Weyant v. Okst. 101 F.3d at 856. A prisoner must allege facts or omissions sufficient “to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. 285.
The pleadings in this case do not evidence deliberate indifference by Dr. Avellini to Webb’s medical condition. To the contrary, Dr. Avellini plainly recognized that Webb’s prior surgery increased his risk of contracting testicular cancer. The doctor’s challenged actions were undertaken to ensure that no evidence of tumor growth was present. If, as Webb asserts, Dr. Avellini failed to conduct the examination with a reasonable degree of medical care and thereby caused him to sustain damages, plaintiff may well have a state action for malpractice, but “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Id.
The court hereby dismisses plaintiff’s § 1983 claim against Dr. Avellini.
Conclusion
For the reasons stated in this memorandum, the court hereby dismisses all of plaintiff’s federal claims against defendants Goldstein, Schwartz, Jans, Bruffee, Barall, Hynes, Johnson, Gibbs, Avellini, Mack, and McCartney. To the extent these claims implicate the validity of Webb’s prior conviction, the dismissal is without prejudice to refile if plaintiff should ever succeed in having his conviction reversed, vacated, or expunged. To the extent the claims challenge defendants’ request for or disclosure of Webb’s prison medical records, the claim is dismissed with prejudice.
The Clerk of the Court is directed to transfer the remaining claims as follows: (1) plaintiff’s federal and state claims against any members of the medical staff of the Sullivan Correctional Facility are hereby transferred to the Southern District of New York, where they are properly venued; (2) plaintiff’s state law claims against all other named defendants, as well as any unnamed assistant district attorneys. Correction employees and parole officials, are to be transferred to the New York Supreme Court for Kings County. The Clerk is then to mark the full case closed.
SO ORDERED.
SHL IMAGING, INC., Plaintiff,
v.
ARTISAN HOUSE, INC., Max Munn, Interiors, Inc., and Photo-2-Art, Ltd., Defendants.
No. 98 CIV. 1708(WHP).
United States District Court,
S.D. New York.
Sept. 28, 2000.
- ↑ Although plaintiff also cites the Fourth and Fifth Amendments in his complain, it seems this is because plaintiff thinks the state court erred in even ordering his physical examination. As already noted, this claim cannot be entertained by this court because it implicated the viability of Webb’s criminal conviction. See Heck v. Humphrey, 512 U.S. at 487, 114 S.Ct. 2364.
