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Herman v. Samad

Deliberate Indifference Claims Are Denied as Time-Barred by Limit Period for §1983 Claims

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MEMORANDUM DECISION AND ORDER I. INTRODUCTION On August 17, 2023, Plaintiff Daniel Herman initiated this action pursuant to 42 U.S.C. §1983 against Defendants Imtiaz Samad and David Dinello, alleging a claim for deliberate indifference under the Eighth Amendment. (Dkt. No. 1.) Plaintiff subsequently moved before the United States Judicial Panel on Multidistrict Litigation (“MDL Panel”) for transfer of the action, along with numerous other actions filed by Plaintiff’s counsel, under 28 U.S.C. §1407 for coordinated or consolidated pretrial proceedings. (Dkt. No. 5.) On December 7, 2023, the MDL Panel denied Plaintiff’s §1407 motion. In re N.Y. Dep’t of Corr. & Cmty. Supervision Medications With Abuse Potential Prisoner Litig., No. MDL 3086, __ F. Supp. 3d __, 2023 WL 8539909, at *3, 2023 U.S. Dist. LEXIS 219565, at *5 (J.P.M.L. Dec. 7, 2023).¹ Presently before the Court is Defendant Samad’s motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 27.) The motion is fully briefed. (Dkt. Nos. 28-29.) For the following reasons, Defendant’s motion to dismiss is granted, and Plaintiff is granted to leave amend. II. FACTS² A. Medications With Abuse Potential Policy Plaintiff, who was held in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) from 2019 to 2021, alleges that Defendant’s continued refusal to represcribe Neurontin to treat Plaintiff’s chronic pain due to DOCCS policies and customs constitutes deliberate indifference. (Dkt. No. 1,

332-38.) DOCCS’ “policy on Medications With Abuse Potential” (“MWAP”) was promulgated on June 2, 2017. (Id.

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