Opinion
00 Civ. 0149 (LTS)(HBP)
March 2, 2001.
THE HONORABLE LAURA TAYLOR SWAIN, United States District Judge,
I. Introduction
Plaintiff pro se, an incarcerated inmate, brings this action pursuant to 42 U.S.C. § 1983. In his complaint, plaintiff alleges that defendants failed to provide him with adequate medical treatment for severe lower back pain, causing plaintiff to suffer pain and numbness in his left leg and to have difficulty sleeping. Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). For the reasons that follow, I respectfully recommend that the defendants' motion be granted in part and denied in part.
Plaintiff has denominated his opposition to defendant's motion to dismiss as a "Cross Motion." Obviously, a plaintiff cannot cross move to dismiss, and since there has not even been an answer filed, a motion for judgment on the pleadings is premature at this time. As explained below, there are currently numerous issues of fact in the case. Deeming plaintiffs cross motion to be a motion for summary judgment, I respectfully recommend it be denied in light of the many issues of fact herein.
II. Facts
On February 2, 1997, while working as a porter at Green Haven Correctional Facility ("Green Haven"), plaintiff injured his back as he was lifting a pail that did not have a handle on it (Complaint at 6, ¶ 1).
On the following day, February 3, 1997, plaintiff went to Block Sick-Call ("BSC") and complained of back pains to the nurse (Complaint at 6, ¶ 2). Plaintiff returned to BSC a few days later again complaining of back pains and scheduled an appointment with Dr. Harry Mamis for February 10, 1997 (Complaint at 6, ¶ 3).
Dr. Mamis examined plaintiff on February 10, 1997, and plaintiff continued to see Dr. Mamis on several occasions throughout the month (Complaint at 6, ¶¶ 4, 5). Dr. Mamis prescribed pain medications, that plaintiff be relieved of his duties as a porter for nine (9) days, and that plaintiff be given meals in his housing unit and a double mattress. In addition, he sent plaintiff for physical therapy, which included moist heating pads, an ultra sound massage and back exercises (Complaint at 6, ¶ 5).
On March 4, 1997, Dr. Sreedahanan examined plaintiff, ordered that he go for x-rays and continue with physical therapy (Complaint at 6, ¶ 6). Approximately two weeks later, Dr. Sreedahanan met with plaintiff and diagnosed plaintiffs injury as a lumbar strain/sprain (Complaint at 6, ¶ 6). Plaintiff also had a Magnetic Resonance Imaging Test ("MRI") and an Electromyelogram ("EMG"), the results of which were negative (Complaint at 7, ¶ 2).
On April 17, 1997 and April 21, 1997, plaintiff alleges that he returned to BSC complaining of back pains and his inability to sleep (Complaint at 6, ¶ 6). Plaintiff also complained that his medications were not being refilled. Plaintiff was sent back to(his cell block without any further treatment (Complaint at 6, ¶ 7).
Byron Rodas, a physician's assistant ("P.A."), examined plaintiff on April 23, 1997 and continued to do so on many other occasions throughout the rest of 1997 (Complaint at 7, ¶ 1). Although P.A. Rodas prescribed several medications, plaintiff contends that the medications did not relieve his pain (Complaint at 7, ¶ 1). According to plaintiff, the treatment he was receiving — medications, elastic back support and physical therapy — were of little relief (Complaint at 7, ¶ 1).
On January 12, 1998, while plaintiff was receiving his medication, he lost his balance and fell on the ground due to the "weakness and numbness" in his left leg caused by his back pain (Complaint at 7, ¶ 3). Plaintiff was taken to Green Haven's Hospital Clinic ("Hospital Clinic"), examined by a nurse and later sent back to his cell block since "the nurse was satisfied that there was nothing wrong with [plaintiff]" (Complaint at 7, ¶ 3).
The following day, plaintiff was taken to the Hospital Clinic for his medication in a wheelchair because of his severe lower back pains and while he was there, requested additional medical treatment (Complaint at 7, ¶ 4).
Later that morning, plaintiff was examined by Dr. Norman H. Selwin (Complaint at 7, ¶ 1). After examining plaintiff, Dr. Selwin ordered a cervical collar and admitted plaintiff to the infirmary for a twenty-four hour observation period (Complaint at 7, ¶ 1). Plaintiff alleges that Dr. Selwin harassed him about the numerous grievance complaints that plaintiff filed (Complaint at 8, ¶ 1). Dr. Selwin then released plaintiff to his cell block (Complaint at ¶ 1).
On January 28, 1998, plaintiff was at the Hospital Clinic for his medication, and he again complained of severe lower back pain which made it very difficult for him to walk (Complaint at 8, ¶ 3). Plaintiff alleges that the nurse refused to see him and he was ordered to leave the clinic area (Complaint at 3, ¶ 3). After walking a few feet, plaintiff states that he "collapsed/passed out" and was taken to the emergency room where he regained consciousness and was told to return to the cell block (Complaint at 8, ¶ 3).
Plaintiff claims that his severe lower back pain persisted, that he requested to be assigned back specialist, but that his request was denied (Complaint at 8, ¶ 4). Plaintiff claims that he was also denied a "medical profile for unemployment" and was being "harassed by escorting officers to and from program, mess hall, and [the] medication run because [he] could not keep up with [the] groups." (Complaint at 8, ¶ 4).
On February 24, 1998, plaintiff was again examined by Dr. Sreedahanan who directed that plaintiff go for x-rays (Complaint at 8, ¶ 5). The x-rays revealed "[n]arrowed L5-S1 disc space [that] could indicate degenerative discogenic change at the lumbosacral junction" (Complaint at 9, ¶ 1).
On March 24, 1998, Dr. Moldover, a former physiatrist at Green Haven, examined plaintiff at the Hospital Clinic and increased his medication (Complaint at 9, ¶ 2). Dr. Moldover also recommended that plaintiff receive a Facet Injection Treatment and use a cane (Complaint at 9, ¶ 2). According to plaintiff, Dr. Moldover "made it clear to Dr. Mamis to make the necessary arrangements for this treatment..." (Complaint at 9, ¶ 2).
On April 2, 1998, plaintiff sent a letter to Dr. Selwin requesting a wheelchair but did not receive any response (Complaint at 9, ¶ 3). Two days later, plaintiff was taken by wheelchair to the Hospital Clinic due to severe lower back pains and numbness in his left leg (Complaint at 9, ¶ 4). On April 8, 1998, plaintiff again went to the Hospital Clinic on "Emergency Sick Call" due to his persistent back pains (Complaint at 9, ¶ 5). Miss McClain, a physician's assistant, examined plaintiff and spoke with Dr. Mamis, who told her that plaintiff did not need a wheelchair (Complaint at 9, ¶ 5). Thus, plaintiff was directed to walk back to his cell block (Complaint at 9, ¶ 5).
On April 10, 1998, plaintiff was moved to a different cell which did not have a "flat-steel bed," but rather a "poorly structured spring bed" (Complaint at 10). Plaintiff alleges that the spring bed further aggravated his back injury (Complaint at 10).
Dr. Moldover returned to Green Haven and examined plaintiff on May 12, 1998 (Complaint at 10, ¶ 1). Dr. Moldover informed plaintiff that a flat-steel bed would be "highly appropriate" (Complaint at 10, ¶ 1). At that time, the Facet Injection Treatment had not yet been scheduled (Complaint at 10, ¶ 1).
On October 1, 1998, Dr. Mamis examined plaintiff and prescribed a wheelchair for him (Complaint at 10, ¶ 3). Later that month, plaintiff was transported to St. Agnes Hospital for a consultation concerning the Facet Injection Treatment (Complaint at 10, ¶ 4). At that time, no further steps were taken with respect to that procedure (Complaint at 10, ¶ 4).
On February 24, 1999, plaintiff was transported to St. Agnes Hospital for a consultation to begin the Facet Injection Treatment (Complaint at 10-11). The procedure was scheduled for March 24, 1999. However, it was canceled two days prior to that date, and rescheduled for April 29, 1999 (Complaint at 11, ¶ 1). Plaintiff completed4he treatment on May 24, 1999 (Complaint at 11, ¶ 2).
On May 25, June 15 and July 14 of 1999, plaintiff complained of lower back pains to Dr. Mamis (Complaint at 11). According to plaintiff, Dr. Mamis asked plaintiff whether he had any lawsuit pending against New York State and informed him that his wheelchair would "eventually be taken away from him" (Complaint at 11). In addition, Dr. Mamis refused to renew plaintiffs medication and told plaintiff that there was nothing further that could be done for plaintiff and that "there was nothing to operate on" (Complaint at 11).
B. The Present Action
Plaintiff contends that he has been denied proper medical treatment for severe lower back pains and numbness in his left leg, both of which have resulted in plaintiffs inability to sleep and walk.
Defendants move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on the grounds that (1) all defendants are protected from suit in their official capacities by Eleventh Amendment immunity; (2) the Court lacks subject matter jurisdiction over plaintiffs state law claims; (3) defendants Artuz and Zwillinger were not personally involved in the deprivation of medical treatment alleged by plaintiff; (4) the complaint fails to state a claim, and (5) defendants Selwin, Mamis and Rodas are protected by qualified immunity.
III. Analysis
A. Eleventh Amendment Immunity
Defendants first argue that this Court lacks jurisdiction over certain aspects of plaintiffs claims because all defendants enjoy immunity from suit in their official capacities under the Eleventh Amendment. To the extent that plaintiff asserts claims against the defendants in their official capacities, defendants' motion should be granted.
"The Eleventh Amendment, where applicable, deprives a federal court of jurisdiction. Thus, prior to addressing the merits of this case [the Court] must first determine whether Eleventh Amendment immunity bars [its] jurisdiction." In re 995 Fifth Avenue Assocs., L.P., 963 F.2d 503, 506 (2d Cir. 1992) (citation omitted).
The Supreme Court has long held that the Eleventh Amendment applies not only to claims against a state by a citizen of another state, but also to claims brought against a state by one of its own citizens. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Hans v. Louisiana, 134 U.S. 1 (1890). There are two exceptions to Eleventh Amendment immunity: a state may be sued in federal court if Congress has enacted legislation abrogating the state's immunity, or if the state has consented to be sued in federal court. See Papasan v. Allain, 478 U.S. 265, 276 (1986);Pennhurst State School Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984);In re 995 Fifth Avenue Assocs., L.P., supra, 963 F.2d at 507.
Neither of these exceptions apply in the present case. First, it is now clear that 42 U.S.C. § 1983 was not intended to abrogate states' immunity under the Eleventh Amendment. See Quern v. Jordan, 440 U.S. 332, 343-44 (1979). Second, New York State has not consented to suit in federal court. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977); Vishevnik v. Supreme Ct., 99 Civ. 3611 (RWS), 1999 WL 796180 at *1 (S.D.N.Y. Oct. 6, 1999).
The immunity enjoyed by the State of New York under the Eleventh Amendment extends to state officials, and bars "'a suit seeking money damages from a State official in his official capacity.'" Quartararo v. Catterson, 917 F. Supp. 919, 931 (E.D.N.Y. 1996), quoting Allah v. Commissioner, 448 F. Supp. 1123, 1125 (N.D.N.Y 1978). See also McMillian v. Monroe County, 520 U.S. 781, 785 n. 2 (1997); Kentucky v. Graham, 473 U.S. 159, 165-67 n. 19 (1985); Edelman v. Jordan, supra, 415 U.S. at 663. Thus, because all of the defendants in this action are New York State officials, plaintiffs claims must be dismissed to the extent that those claims are asserted against the defendants in their official capacities.
The Eleventh Amendment does not bar suits against state officials sued in their personal capacities, however. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991) ("[T]he Eleventh Amendment does not erect a barrier against suits to impose 'individual and personal liability' on state officials under § 1983"), quoting Scheuer v. Rhodes, 416 U.S. 232, 238 (1974);Dube v. State University of New York, 900 F.2d 587, 595 (2d Cir. 1990) (Eleventh Amendment "provides no immunity for state officials sued in their personal capacities"), cert. denied, 501 U.S. 1211 (1991);Trevathan v. Baruch College, 92 Civ. 8668 (JFK), 1994 WL 573299 at *4 (S.D.N.Y. Oct. 18, 1994) ("State officials sued in their individual capacities... may be held personally liable for actions taken in their official capacities."). /
Plaintiffs complaint does not indicate whether the defendants are being sued in their official or individual capacities. However, a pro se complaint must be liberally construed on a motion to dismiss, particularly where civil rights violations are alleged. George v. Lorenzo, 98 Civ. 0769 (LAP), 1999 WL 397473 at *1 (S.D.N.Y. June 15, 1999), citing Haines v. Kerner, 404 U.S. 519, 520 (1972). See also Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (when considering pro se pleadings, a court must "read [the] supporting papers liberally, and interpret them to raise the strongest arguments they suggest."). At least at the stage of a Rule 12 motion, where a pro se complaint is ambiguous, it should be construed as asserting claims against the defendants in both their official and individual capacities. See George v. Lorenzo, supra, 1999 WL 397473 at *2.
Accordingly, to the extent the complaint asserts claims against the defendants in their official capacities, it should be dismissed. However, "to the extent that Plaintiff ultimately seeks retroactive monetary damages against Defendants in their individual capacities for violations of his constitutional rights, the Eleventh Amendment does not bar his claims against them." Rivera v. Dyett, 88 Civ. 4707 (PKL), 1992 WL 233882 at *6 (S.D.N.Y. Sept. 10, 1992).
B. State Law Claims
Finally, plaintiff alleges that defendants were negligent and committed malpractice in their treatment of plaintiffs back injury. Defendants contend that this Court lacks subject matter jurisdiction because New York Corrections Law § 24 bars such claims against defendants in their individual capacities.
New York Corr. Law § 24 provides in pertinent part:
1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
2. Any claims for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state.
In Baker v. Coughlin, 77 F.3d 12, 13-14 (2d Cir. 1996), the Second Circuit held that a state prisoner's pendent state law claims for common law intentional tort, negligence, and medical malpractice are barred by Section 24. The Court in Baker held that Section 24, "by its plain terms, precludes the assertion of claims against corrections officers in any court, including federal courts.... It is of no significance that § 24(1) refers only to actions in state courts, because a federal court acts essentially as a state court in addressing pendent state law claims." Baker v. Coughlin, supra, 77 F.3d at 15. Accord Ruffin v. Deperio, 97 F. Supp.2d 346, 355-56 (W.D.N.Y. 2000).
Thus, I conclude that New York Corrections Law § 24 bars plaintiffs claims of negligence and malpractice against the defendants in their individual capacities. Since the
Eleventh Amendment bars these claims to the extent they are asserted against the defendants in their official capacity, these claims should be dismissed in their entirety.
C. Dismissal Pursuant. to Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) is properly granted only where, accepting all of the material allegations in the complaint as true, "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). See also Leather v. Ten Eyek, 180 F.3d 420, 423 (2d Cir. 1999); Diezcabeza v. Lynch, 97 Civ. 8991 (SHS), 1999 WL 1075941 at *5 (S.D.N.Y. Nov. 29, 1999). The issue on a motion to dismiss is "not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed, it may appear on the face of the pleading that a recovery is very remote and unlikely, but that is not the test."Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996), quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (internal quotation marks omitted).
1. Personal Involvement
Defendants first contend that plaintiffs claim of inadequate medical care must be dismissed as to defendants Artuz and Zwillinger because plaintiff has not sufficiently alleged they were personally involved in the constitutional deprivations claimed by plaintiff
It is fundamental that Section 1983 does not permit liability to be imposed on the basis of respondeat superior, Monell v. Department of Social Services, 436 U.S. 658, 694 n. 58 (1978); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); personal involvement is required.Leonhard v. United States, 633 F.2d 599, 621 n. 30 (2d Cir. 1980), cert. denied, 451 U.S. 908 (1981). As explained by Judge Jones,
In a section 1983 action, a defendant who holds a supervisory position is not liable merely because of his subordinates' actions, see Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986), nor simply because he occupies a high position in the prison hierarchy, See Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995). Rather, to be liable under section 1983, the defendant must have had some personal involvement in the alleged constitutional deprivations. See Colon 58 F.3d at 873; Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Such "personal involvement by a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the right of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, id.Trice v. Strack, 94 Civ. 4470 (BSJ), 1998 WL 633807 at *1 (S.D.N.Y. Sept. 14, 1998); see also Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989); McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir. 1983); Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir. 1979).
Notwithstanding the fact that a supervisory official may be held liable for failing to remedy a constitutional violation after learning of the violation through a report or appeal, inaction following receipt of letters from a prisoner regarding alleged violations does not automatically render an official personally liable under Section 1983.
In Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997), the plaintiff sent two letters to the defendant prison official. The first letter, an appeal from an administrative segregation hearing, was referred by the receiving official to another official for determination. The second letter was a status inquiry to which the official responded by informing the prisoner that a decision had been rendered. The Second Circuit found that this conduct on the part of the defendant official, without more, "[did] not demonstrate the requisite personal involvement" to support a finding of liability. 116 F.3d at 51.
Similarly, in Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), the Second Circuit found insufficient personal involvement by an official who received a prisoner's letter complaint but did not investigate the prisoner's claims, noting that "[t]he contents of the letter are not specified; we do not know, therefore, whether the letter was one that reasonably should have prompted [the official] to investigate." 58 F.3d at 873.
District courts have generally been reluctant to find personal involvement sufficient to support liability where a prison official's involvement is limited to the receipt of a prisoner's letters or complaints. See Woods v. Goord, 97 Civ. 5143 (RWS), 1998 WL 740782 at *6 (S.D.N.Y. Oct. 23, 1998) ("Receiving letters or complaints, however, does not render [defendant] personally liable under § 1983."); Cox v. Colgane, 94 Civ. 6361 (DAB), 1998 WL 148424 at *9 (S.D.N.Y. Mar. 27, 1998) ("'It is well-established that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violations."'), quoting Higgins v. Artuz, 94 Civ. 4810 (SS), 1997 WL 466505 at *7 (S.D.N.Y Aug. 14, 1997), citing Greenwaldt v. Coughlin, 93 Civ. 6551 (LAP), 1995 WL 232736 (S.D.N.Y. Apr. 19, 1995); Watson v. McGinnis, 964 F. Supp. 127, 130 (S.D.N.Y. 1997); Bolanos v. Cough1in, 91 Civ. 5330 (KC), 1993 WL 762112 at *25 (S.D.N.Y. Oct. 15, 1993) ("To impose liability under such circumstances would be inconsis- tent with the purpose of Section 1983 to hold only those responsible for violations liable."); Garrido v. Coughlin, 716 F. Supp. 98, 100 (S.D.N.Y; 1989) ("[Defendant's] only alleged connection to this case — that he ignored [plaintiff's] letter of protest and request for an investiga- tion of the allegations made in this action — is insufficient to hold him liable.., for the alleged violations."). But see Heron v. Dalsheim, 95 Civ. 2625 (JFK), 1999 WL 2871 at *5 (S.D.N Y Jan. 4, 1999) ("Courts have found personal involvement where a plaintiff has sent letters to or orally informed the official of an ongoing constitutional violation." (citations omitted)).
Defendants argue that plaintiff's claim of deliberate medical indifference must be dismissed as to defendants Artuz and Zwillinger, because plaintiff failed to demonstrate any personal involvement on behalf of these individuals, aside from naming them in the case caption.
The only direct reference to Artuz and Zwillinger in plaintiffs complaint is in the caption. However, plaintiff has filed a putative cross-motion containing allegations concerning their knowledge (Plaintiffs Cross-Motion, dated July 21, 2000 ("Cross-Motion"). Since plaintiff is proceeding pro se, I will consider plaintiffs complaint amended to include these additional allegations. See Goldstein v. State of New York, 00 Civ. 7463 (LTS), 2000 WL 1880325 at *1 (S.D.N.Y. Dec. 28, 2000); Leggett v. Associate Warden Miranda, 97 Civ. 6417 (WHP), 1999 WL 461070 at *2 (S.D.N.Y. July 7, 1999), citing Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987); Lucas v. New York City, 842 F. Supp. 101, 104 n. 2 (S.D.N.Y. 1994); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990).
Defendant Christopher Artuz was the Superintendent of Green Haven at the time of the events in issue. On or about April 8, 1998, plaintiff sent a letter to Artuz complaining of back pain and claiming that he needed a wheelchair (Cross-Motion, Ex. "Artuz"). Artuz subsequently advised plaintiff that he had forwarded his letter to Zwillinger (Cross-Motion, Ex. Artuz, Letter dated April 13, 1998). Plaintiff subsequently sent three other letters to Artuz — one requesting information about plaintiffs transfer to another cell, one addressing plaintiffs need for the Facet Injection Treatment and the other complaining of his back pain and his lack of a wheelchair (Cross-Motion, Ex. "Artuz").('Artuz responded by advising plaintiff that his letters were forwarded to the appropriate people — Acting Deputy Kaplan regarding the transfer and Zwillinger regarding the medical issues (Cross-Motion, Ex. "Artuz"). Thus, plaintiff has failed to allege personal involvement by Artuz since his involvement was limited solely to the receipt of these letters. See Sealy v. Giltner, supra, 116 F.3d at 51.
Defendant Larry Zwillinger was the Health Services Administrator at Green Haven at all relevant times. However, unlike Artuz, defendant Zwillinger's involvement extends beyond the mere receipt of letters. Zwillinger sent plaintiff numerous letters containing some explanation or justification concerning the issues raised by plaintiff in his letters to defendant Artuz.
In response to plaintiffs requests to Artuz for additional medical treatment, Zwillinger responded as follows: "Dr. Selwin has reviewed your record and sees no medical necessity for additional testing or other medical care. You are currently under the care of a primary care provider and specialist, and you should continue to follow their direction." (Cross-Motion, Ex. "Zwillinger", Letter dated April 23, 1997).
In a letter dated April 16, 1998, Zwillinger responded to plaintiffs request for a wheelchair as follows: "[Dr. Selwin] is well aware of your medical complaints. He reviewed your status just a few days ago and made no changes in your treatment plan. He still believes walking is the proper therapy for your long term health." (Cross-Motion, Ex. "Zwillinger", Letter dated April 16, 1998).
With respect to the delay of the Facet Injection Treatment, Zwillinger responded as follows:
In response to your letter of September 8, 1998, be advised your consultation request for an Epideural Injection [has] been approved and is awaiting scheduling. It has unquestionably been a long time since this request was made, but we are trying to expedite this appointment.
(Cross-Motion, Ex. "Zwillinger", Letter dated September 14, 1998). Approximately ten days later, plaintiff received a letter from Zwillinger that stated the following: "You will go for this injection as soon as [t]he date of the appointment arrives. What was ordered for you is not a common procedure, and it has been very difficult to secure an appointment." (Cross-Motion, Ex. "Zwillinger", Letter dated September 25, 1998).
In response to plaintiffs complaints of his difficulty walking and his need for a wheelchair, Zwillinger responded: "[B]e advised you were already issued a wheelchair to come to the clinic for medication." (Cross-Motion, Ex. "Zwillinger", Letter dated October 15, 1998).
In response to plaintiff complaints to Chief Medical Officer Lester Wright concerning the medical treatment he was receiving, Zwillinger responded:
[P]lease be advised that you have received appropriate evaluation for your medical complaints. You have had an MRI and an EMG, both of which yielded normal findings. You have been seen by the Physiatrist and sent to Physical Therapy. You have been diagnosed with a Lumbar Strain, which is not a serious ailment, though painful at times. A significant portion of the population have this type of condition and deal with it on a daily basis.
(Cross-Motion, Ex. B, Letter dated January 20, 1998).
Finally, Zwillinger answered a letter from Luis Pellecier, a legal assistant at the Legal Aid Society, concerning plaintiffs treatment and care. Specifically, the letter notified Zwillinger that plaintiff had contacted the Legal Aid Society and complained about his back injury and the pain he was still experiencing (Cross-Motion, Ex. A, Letter dated February 9, 1998). On February 25, 1998, Zwillinger responded as follows:
[P]lease be advised Mr. Ramos has had diagnostic tests, been examined by specialists and received strong medication. All tests and exams have been negative for any significant pathology. He has been diagnosed with a lumbar strain, which will hopefully resolve after Physical Therapy is complete. If Mr. Ramos' complaints continue, he will be examined by Dr. Moldover, a consulting Physiatrist on site once per month, in late March.
(Cross-Motion, Ex. A, Letter dated February 25, 1998).
Based on the foregoing, I find that Zwillinger's involvement went beyond merely
the receipt of complaint letters. Zwillinger defended and explained Green Haven's treatment of plaintiff, both to plaintiff and to Legal Aid Society. Further, Zwillinger admitted that the delay of plaintiffs injection treatment was "unquestionably long" and a lumbar strain, "while sometimes painful" was "not a serious ailment." (Cross-Motion, Ex. B, Letter dated January 20, 1998). Contrary to the complaint letters inColon v. Coughlin, supra, 58 F.3d at 865, which were not specific enough to "know.., whether the letter was one that reasonably should have prompted [the official] to investigate," the letters here are quite specific, providing great detail about plaintiffs alleged back condition, his request for a wheelchair and flat-steel bed, the delay in the recommended treatment, and the allegedly disabling nature of plaintiffs pain. Therefore, in light of Zwillinger's alleged failure to respond appropriately to information concerning plaintiffs condition, dismissal based on Zwillinger's lack of personal involvement is not appropriate at this time. See Lowrance v. Coughlin, 862 F. Supp. 1090, 1109 (S.D.N.Y. 1994) (personal involvement found where defendant was put on notice of retaliatory transfer by receipt of plaintiffs letter and response thereto).
2. Deliberate Indifference to a Serious Medical Condition
Plaintiffs claim of inadequate medical care is analyzed under the "deliberate indifference" standard articulated by the Supreme Court inEstelle v. Gamble, 429 U.S. 97, 104 (1976) ("[D]eliberate indifference to serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain,'... proscribed by the Eighth Amendment."). See Helling v. McKinney, 509 U.S. 25, 31-32 (1993).
A claim of deliberate indifference involves an objective component and a subjective component. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994);Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998); Hemmings v. Gorczyk, 134 F.3d 104, 108-09 (2d Cir. 1998).
The objective component is satisfied if the alleged deprivation is "sufficiently serious." Farmer v. Brennan, supra, 511 U.S. at 834; Hudson v. McMillian, 503 U.S. 1, 9 (1992) ("Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are serious.") (internal quotation marks omitted). A medical condition is considered serious if it is "a condition of urgency" that may result in "degeneration" or "extreme pain." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). See also Thomas v. Arevalo, 95 Civ. 4704 (SS), 1998 WL 427623 at *5 (S.D.N.Y. July 28, 1998).
The subjective component of a deliberate indifference claim is satisfied where a plaintiff can show that the defendants acted with "a sufficiently culpable state of mind." Farmer v. Brennan, supra, 511 U.S. at 834-35. An official acts with deliberate indifference when that official "knows of and disregards an excessive risk to inmate health or safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." 511 U.S. at 837. See also Wilson v. Seiter, 501 U.S. 294, 298-302 (1991); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). "In certain instances, a physician may be deliberately indifferent if he or she consciously chooses "an easier and less efficacious' treatment plan." Chance v. Armstrong, supra, 143 F.3d at 703. "'"[M]ere medical malpractice" is not tantamount to deliberate indifference,' but it may rise to the level of deliberate indifference when it 'involves culpable recklessness, i.e., an act or a failure to act. that evinces "a conscious disregard of a substantial risk of serious harm.'"" Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000), quoting Chance v. Armstrong, supra, 143 F.3d at 703.
a. Seriousness of Plaintiffs Condition
Plaintiff alleges that he suffers from "severe lower back pains" that causes weakness and numbness in his left leg, making it difficult for him to walk. Plaintiff was diagnosed with a lumbar strain/sprain and at least one x-ray revealed a narrowed disc space (Complaint at 4). Defendants contend that plaintiffs alleged back injury does not qualify as a "sufficiently serious medical need." (Memorandum of Law in Support of Defendant's Motion to Dismiss, dated May 15, 2000 at 13-14 ("Defendant's Mem. of Law")).
Defendants cite no authority for the proposition that the back injury alleged by plaintiff cannot constitute a "serious" injury. To the contrary, at least two opinions in this District have held that such injuries may constitute a serious injury. As Judge Sweet stated in Cole v. Artuz, 97 Civ. 0977 (RWS), 2000 WL 760749 at *5 (S.D.N.Y. June 12, 2000):
A chronic back injury may not be as dramatic(as some other ( conditions found to satisfy the deliberate indifference standard. See, e.g., Williams, 508 F.2d at 544 (loss of ear), but it is not therefore insufficient as a matter of law. It is not dissimilar to the condition of chronic tooth pain and degenerative disease requiring extraction, which the Second Circuit found sufficient to survive a motion to dismiss on the pleadings. See Chance, 143 F.3d at 702. Indeed, this court has previously found allegations of chronic back injuries causing extreme pain sufficiently serious to survive a motion. See Gill [v. Gilder, 95 Civ. 7933 (RWS), 1996 WL 103837, at *5 (S.D.N.Y. Mar. 8, 1996] (finding plaintiff stated Eighth Amendment claim where condition was chronic back condition necessitating inter alia special furniture in his cell).
Although it is entirely possible that plaintiffs claim will not withstand a motion for summary judgment, see generally Williams v. M.C.C. Institution, 97 Civ. 5352 (LAP), 1999 WL 179604 at *9 (S.D.N.Y. Mar. 31, 1999), the only issue at this stage is whether plaintiffs alleged injury is so inherently trivial that it cannot constitute "serious"injury. In view of plaintiffs allegations of persistent, serious and disabling pain, plaintiff has at least alleged "serious" injury.
Since plaintiff has alleged sufficient facts to satisfy the objective element of the Estelle test, dismissal on this ground is inappropriate.
b. Deliberate Indifference
Defendants next argue that even if plaintiffs condition is serious, plaintiff cannot satisfy the subjective component of Estelle.
As noted above, the Eighth Amendment does not require prison officials to provide every form of treatment that is theoretically possible or every form of treatment that would be available to an individual who is not incarcerated. See Hudson v. MeMillian, supra, 503 U.S. at 9("[Slociety dots not expect that prisoners will have unqualified access to heath care ....")
"At a minimum, there must be at least some allegations of a conscious or callous indifference to a prisoner's rights." Zaire v. Dalsheim, 698 F. Supp. 57 59 aff'd 904 F.2d 33 (2d Cir. 1990). Claims based on differences of opinion, however, are not sufficient to constitute "conscious or callous indifference." Williams v. Coughlin, 650 F. Supp. 955, 956 (S.D.N.Y. 1987); Medical decisions will constitute "indifference" only when they are contrary to accepted medical standards. Harding [v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y. 1984), aff'd, 762 F.2d 990 (2d Cir. 1985)].Webb v. Jackson, 92 Civ. 2149 (SS), 1994 WL 86390 at *2 (S.D.N.Y. Mar. 16, 1994). See also Youngberg v. Romeo, 457 U.S. 307, 323 (1982) (civilly committed patient states a claim for liability under Section 1983 "only when the decision by the [medical] professional is such a substantial departure from accepted professional judgment, practice or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment").
i. Dr. Mamis
Plaintiff alleges that beginning on February 10, 1997 and continuing for the remainder of 1997, he sought treatment from defendant Dr. Hany Mamis, his primary care provider, for back pain. According to plaintiff, Dr. Mamis prescribed pain medications, directed that plaintiff be relieved of his duties as a porter for nine (9) days and directed that plaintiff be given meals in the housing unit, a double mattress and physical therapy (Complaint at 6, ¶ 5).
In March of 1998, Dr. Moldover directed Dr. Mamis "to make the necessary arrangements for [Facet Injection] treatment to be carried out as soon thereof' (Complaint at 9, ¶ 2). On April 8, 1998, plaintiff contends that Dr. Mamis instructed the Hospital Clinic nurse that plaintiff "must not be in a wheelchair," despite plaintiffs complaints of severe lower back pain and his inability to walk (Complaint at 9, ¶ 5). According to plaintiff, it was not until October of 1998, six months later, that Dr. Mamis approved a wheelchair for plaintiff (Complaint at 10). In addition, plaintiff alleges that during an appointment in May 1999, Dr. Mamis asked plaintiff whether he had a law suit pending and told him that his wheelchair would "eventually be taken away from him...."(Complaint at 11, ¶ 3).
In June and July of 1999, plaintiff continued to complain of lower back pains, pain in his left leg and his inability to sleep. Dr. Mamis informed plaintiff that there was nothing he could do for him. Furthermore, Dr. Mamis told plaintiff that surgery was not an option because there was "nothing to operate on" (Complaint at 11).
While it may be that the delay in plaintiffs Facet Injection Treatment was a result of innocent scheduling difficulties and that there was no surgical procedure to correct plaintiffs condition or alleviate his pain, those are not questions that can be decided as a matter of law on a motion pursuant to Fed.R.Civ.P. 12(b)(6). While it appears from the face of the complaint that plaintiff was afforded some treatment, the issue presented by an Eighth Amendment deliberate indifference claim involves some degree of inquiry into the appropriateness of the treatment for the condition. The mere fact that some treatment is provided does not, without more, defeat a prisoner's claim for deliberate indifference to a serious medical condition. For example, there can be no serious dispute that if a prison physician accurately diagnosed an inmate as suffering from acute appendicitis and treated the condition with nothing but aspirin, the physician would be guilty of deliberate indifference. See generally Chance v. Armstrong, supra, 143 F.3d at 703.
While there can be no dispute that deliberate indifference requires a greater degree of culpability than mere malpractice and the fact that plaintiff was repeatedly seen and treated by a number of doctors is difficult to reconcile with the claim that defendants are guilty of"conscious or callous disregard" of plaintiffs rights, there is no evidence currently before me concerning the appropriateness of the treatment to the condition alleged. Thus, I have no basis for determining whether the treatment provided to plaintiff falls within the broad range of acceptable responses to a prisoner's medical complaints. Accordingly, the motion to dismiss the complaint as to Mamis should be denied. See Hemmings v. Gorcyzk, supra, 134 F.3d at 108-09 ("While we agree that the fact that [plaintiff] received some medical attention, including two x-rays, substantially weakens his claim of deliberate indifference, we are not prepared to say that his claims is so devoid of merit as to justify dismissal at this early stage."); Gill v. Gilder, 95 Civ. 7933 (RWS), 1996 WL 103837 at *5 (S.D.N.Y. Mar. 8, 1996) (denying motion to dismiss deliberate indifference claim where defendants presented no evidence concerning the appropriateness of the treatment afforded plaintiff).
ii. Dr. Selwin
Dr. Selwin initially examined plaintiff on January 13, 1998, at which-time he ordered , a cervical collar and admitted plaintiff to the infirmary/for a twenty-four hour observation period. According to plaintiff, Dr. Selwin harassed him about the numerous grievance complaints he filed (Complaint at 8, ¶ 1).
Plaintiff sent Dr. Selwin numerous letters between April and July of 1998 addressing his various medical concerns (Cross-Motion, Ex. "Selwin"). In April 1998, plaintiff informed Dr. Selwin of"the agony and pain [he] experience[s]" in order to go to the hospital, receive his medications, and eat his meals. Plaintiff informed Dr. Selwin that he had been using a cane, but that it was not helping his pain. In May 1998, plaintiff alerted Dr. Selwin to the fact that he was now being forced to sleep on a spring bed instead of a flat-steel bed, which was further aggravating his back condition.
Finally, in July 1998, plaintiff sent Dr. Selwin two letters that explained in detail the pain plaintiff was experiencing as a result of the spring bed and his need for a wheelchair to get his medication. In addition, plaintiff informed Dr. Selwin of the delay in plaintiffs Facet Injection Treatment, which was recommended by Dr. Moldover. The record does not reflect any direct responses by Dr. Selwin, although Zwillinger did inform plaintiff that Dr. Selwin "is well aware of [plaintiff s] medical complaints and condition." (Cross-Motion, Ex. "Zwillinger", letter dated April 16, 1998).
It appears from Dr. Selwin's initial treatment of plaintiff, i.e., ordering a cervical collar and admitting plaintiff to the infirmary for twenty-four hour observation, that Dr. Selwin recognized some condition causing plaintiff pain. However, the record does not reflect any additional follow-up treatment by Dr. Selwin, or any affirmative response to plaintiffs concerns regarding his need for a wheelchair or the pain caused by sleeping on the spring bed. Here again, the questions concerning plaintiffs ability to walk to the hospital for doctors' appointments or to receive his medication, to walk to the dining facilities to eat his meals, and his being forced to sleep on a spring bed are matters that cannot be decided as a matter of law on a motion pursuant to Fed.R.Civ.P. 12(b)(6). Therefore, defendants' motion should also be denied as to defendant Selwin. See Cole v. Artuz, supra, 2000 WL 760749 at *6 ("although case [was] a close one, in light of the heavy burden on the defendant to prevail on a 12(b)(6) motion," the Court concluded that plaintiff established the subjective component by establishing that his doctor ignored the requested medical restriction for plaintiff to sleep in the bottom bunk and issued a contrary order permitting plaintiff to sleep in either top or bottom); See also Gill v. Gilder, supra, 1996 WL 103837 at *5 (plaintiff suffering from severe back pain stated an Eighth Amendment claim by alleging that despite such pain, he was not given the proper furniture, i.e, a stool or steel bed).
iii. P.A. Rodas
Plaintiff has failed to allege deliberate indifference with respect to P.A. Rodas. Plaintiff claims that defendant Rodas treated plaintiff with medications, elastic back support, and physical therapy, although argues that such treatment provided little relief. However, plaintiff does not allege that he informed Rodas of the continuing nature of his pain or that Rodas, if aware of such pain, ignored plaintiffs complaints. These allegations are insufficient to state a claim for conscious or callous indifference to a serious medical condition, and defendants' motion should be granted as to defendant Rodas.
iv. Zwillinger
Since the nature and extent of Zwillinger's involvement with plaintiff is set forth in detail on pages 17-21 above, I will not restate that involvement here. I
In Hall v. Artuz, 954 F. Supp. 90, 95 (S.D.N.Y. 1997), the Court denied summary judgment where plaintiff alleged deliberate indifference by Lawrence Zwillinger based on Zwillinger's failure to act in response to plaintiffs complaint letters and two letters from the Legal Aid Society discussing plaintiff being denied access to medically necessary physical therapy and knee braces. There, Zwillinger's admission that plaintiff did in fact need such treatment, combined with the evidence "relating to whether [plaintiff] was denied access to medically necessary care, [was held to be] sufficient to raise a genuine issue of material fact as to whether Zwillinger... [was] deliberately indifferent to [plaintiffs] medical needs." 954 F. Supp. at 95. Here, Zwillinger received several letters from plaintiff concerning the disabling nature of plaintiffs condition and a letter from Legal Aid Society that expressed concerns regarding plaintiffs medical treatment. Zwillinger also responded to plaintiffs request for a wheelchair by informing plaintiff that "[he was] already issued a wheelchair to come to the clinic for medication" (Cross-Motion, Ex. "Zwillinger", Letter dated October 15, 1998). As noted above, Zwillinger defended and explained Green Haven's treatment of plaintiff, both to plaintiff and to the Legal Aid Society. In doing so, Zwillinger admitted that the delay in the Facet Injection Treatment was "unquestionably long" and that plaintiffs lumbar strain was "sometimes painful." (Cross-Motion, Ex. B, Letter dated January 20, 1998). In order to make such assertions, Zwillinger certainly had to familiarize himself with plaintiffs medical treatment and condition. However, upon learning such information, whether Zwillinger's subsequent failure to act constituted deliberate indifference cannot be decided as a matter of law on a motion pursuant to Fed.R.Civ.P. 12(b)(6). Therefore, defendants' motion should also be denied as to defendant Zwillinger.
D. Qualified Immunity
Defendants also assert that the complaint must be dismissed because defendants Selwin, Mamis, and Rodas enjoy qualified immunity from suit. In light of my above findings with respect to Zwillinger, I will also address whether Zwillinger would enjoy qualified immunity from suit.
It was clearly established by 1999 that the Eighth Amendment prohibited prison officials from being deliberately indifferent to an inmate's serious medical needs. See Estelle v. Gamble, supra, 429 U.S. at 104;LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998); Wright v. Dee, 54 F. Supp.2d 199, 204 (S.D.N.Y. 1999); Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 185 (N D.N.Y. 1996). Thus, dismissal on the basis of qualified immunity can be granted with respect to plaintiffs deliberate indifference claim only if defendants' conduct was objectively reasonable.
An official's conduct is "objectively reasonable" if reasonable, similarly-situated officials could disagree as to its legality.
We explained in Lennon [v. Miller, 66 F.3d 416, 420 (2d Cir. 1995)] that a government official's actions will be considered objectively reasonable if "officers of reasonable competence could disagree" on the legality of defendant's actions. Lennon, 66 F.3d at 420 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1095-96, 89 L.Ed.2d 271 (1986) (internal quotation marks omitted)). In making this inquiry we consider whether any reasonable jury "looking at the evidence in the light most favorable to, and drawing all inferences most favorable to, the plaintiffs, could conclude that it was objectively unreasonable for the defendant[s]" to believe that their actions were not clearly violating the plaintiffs' established federally protected rights. Id. (quoting Halperin v. Kissinger, 807 F.2d 180, 189 (D.C. Cir. 1986) (internal quotation marl's omitted)). If so, summary judgment is denied. "[I]f the court determines that the only conclusion a rational jury could reach is that officers would disagree about the legality of the defendants' conduct under the circumstances, summary judgment for the officers is appropriate." Id. at 421.Danahy v. Buscaglia, 134 F.3d 1185, 1190 (2d Cir. 1998). See also Tierney v. Davidson, 133 F.3d 189, 196 (2d Cir. 1998); Salim v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996); Cartier v. Lussier, 955 F.2d 841, 846 (2dCir. 1992).
Plaintiff alleges that defendants ignored his complaints concerning the severity of his back pain, his inability to walk and his difficulty sleeping and delayed his Facet Injection Treatment. With respect to defendants Mamis, Selwin and Zwillinger, these allegations raise issues of fact as to the reasonableness of defendants' conduct and are sufficient to defeat defendants' motion to dismiss on qualified immunity grounds. See Wright v. Dee, supra, 54 F. Supp.2d at 204. However, since plaintiff failed to allege that defendant Rodas was advised of the continuing nature of plaintiffs pain or that Rodas ignored plaintiffs complaints, Rodas is protected by the doctrine of qualified immunity. It was "objectively reasonable" based upon plaintiffs apparent medical condition for Rodas to have believed that his actions did not violate plaintiffs federal rights.
IV. Conclusion
For all the foregoing reasons, I respectfully recommend that (1) the complaint be dismissed in its entirety to the extent that it can be construed as asserting claims against the defendants in their official capacities; (2) the complaint be dismissed to the extent it asserts state law claims against the defendants; (3) the complaint be dismissed in its entirety as to defendant Artuz; (4) plaintiffs claim of deliberate indifference be dismissed against Rodas, and (5) defendants' motion to dismiss as to defendants Zwillinger, Mamis and Selwin be denied. Finally, treating plaintiffs cross motion as a motion for summary judgment, I respectfully recommend that the motion be denied.
V. Objections
Pursuant to 28 U.S.C. § 636 (b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of this Report to file written objections. See also Fed.R.Civ.P. 6(a) and 6(e). Such objections (and responses thereto) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, United States District Judge, 40 Centre Street, Room 426, New York, New York 10007, and to the chambers of the undersigned, 500 Pearl Street, Room 750, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO OBJECT WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).