Opinion
Civ. Action No. 9:10-CV-0734 (NAM/DEP)
08-19-2011
JOSE RODRIGUEZ, Plaintiff, v. N. SMITH, Nurse Administrator, Upstate Correctional Facility, Defendant.
FOR PLAINTIFF: JOSE RODRIGUEZ, pro se FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN Attorney General OF COUNSEL: JUSTIN C. LEVIN, ESQ. Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF:
JOSE RODRIGUEZ, pro se
FOR DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
Attorney General
OF COUNSEL:
JUSTIN C. LEVIN, ESQ.
Assistant Attorney General
HON. DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT, RECOMMENDATION AND ORDER
Plaintiff Jose Rodriguez, a New York State prison inmate who is proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C § 1983, alleging that during the course of his confinement he has been deprived of his civil rights. While difficult to decipher, when construed with the utmost generosity plaintiff's complaint appears to allege that defendant has been deliberately indifferent to and has failed to adequately treat his back pain. As relief, plaintiff requests only an order authorizing an x-ray to ascertain the source of his back pain.
In response to plaintiff's complaint the defendant has moved for its dismissal for failure to state a claim upon which relief may be granted. Defendant also seeks dismissal based upon her lack of personal involvement in the violations alleged, as well as on the ground of qualified immunity. After careful review of plaintiff's complaint in light of the arguments advanced by each party, for the reasons that follow, I recommend that defendant's motion be granted and that plaintiff's complaint be dismissed, though with leave to replead. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's amended complaint, the contents of which have been accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1733, 1734 (1964). While that amended complaint is the operative pleading and the object of defendants' motion, superceding all earlier filed complaints, see Harris v. City of New York, 186 F.3d 243,249 (2d Cir. 1999), plaintiff's initial complaint is also properly considered by the court when evaluating the plausibility of his claims, as is his response to defendant's motion, to the extent they support the allegations in his amended complaint. Hale v. Rao, No. 9:08-CV-1612, 2009 WL 3698420, at *3 n.8 (N.D.N.Y. Nov. 3, 2009) (Hurd, D.J. and Lowe, M.J.) ("[I]n cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside the complaint to the extent they are consistent with the allegations in the complaint.)
The plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Corrections and Community Supervision ("DOCCS") (formerly the New York State Department of Correctional Services, or the "DOCS"). See generally Amended Complaint (Dkt. No. 5) § 2. At all times relevant to his complaint, Rodriguez was housed within the Upstate Correctional Facility ("Upstate") located in Malone, New York. Id. at § 2.
Upstate is a maximum security prison comprised exclusively of special housing unit ("SHU") cells in which inmates are confined, generally though not always for disciplinary reasons, for twenty-three hours each day. See Samuels v. Selsky, No. 01 CIV. 8235, 2002 WL 31040370, at *4 n.11 (S.D.N.Y. Sept. 12, 2002).
In or about August 2009, plaintiff was diagnosed by Dr. Patrick as having a "broken disc" in his back, a condition which plaintiff attributes to an assault occurring on April 4, 2004, during the time of his incarceration. Amended Complaint (Dkt. No. 5) at §§ 6-7. While it appears that since the assault occurred Rodriguez has undergone several back x-rays over the time, he claims that yet another back x-ray is necessary to ascertain the source of his back pain. Amended Complaint (Dkt. No. 5) §§ 6-7. Plaintiff does not allege that his request for an additional x-ray was specifically denied by prison personnel; rather, he appears to be claiming that he has been waiting eight months to a year for approval of the requested back x-ray. Id. Plaintiff's amended complaint is unclear as to whether his doctor requested the administration of the x-ray, and whether the x-ray has been determined to be medically necessary. Id. In his complaint plaintiff expresses overall frustration at the inability of prison medical officials to diagnose and treat his ongoing back pain. Id.
As evidence of the seriousness of his back condition, plaintiff points to a medical examination conducted on January 27, 2011 by Dr. Adams, as a result of which the physician requested that the plaintiff undergo ultrasound testing. Plaintiff's Memorandum (Dkt. No. 15) pp. 9-10 and Exhibit. Plaintiff does not allege that he was denied the suggested ultrasound testing, but proffers Dr. Adams' request as further evidence of the seriousness of his back condition.
That examination occurred after both commencement of this action and the filing of plaintiff's amended complaint.
While not readily apparent from his complaint, in addition to plaintiff's claims with respect to his back pain and the failure of prison officials to order another back x-ray, he also appears to express concerns regarding two-week interruptions in his pain medication which occurred in December 2009, and again in June of 2010., See, e.g., Plaintiff's Memorandum of Law (Dkt. No. 15) pp. 8-9; see also Complaint (Dkt. No. 1) at pp. 3-4, ¶¶ 13-15. On January 6, 2010, defendant Smith, a nurse administrator at Upstate, responding to plaintiff's complaint regarding the first of those two delays in providing additional pain medication, admitted that his December 25, 2009 request was not filled due to a shortage in providers and two intervening holidays, but also advised Rodriguez that his December 31, 2009 request was filled. Complaint (Dkt. No. 1) Attachment at p. 7(unnumbered). Defendant Smith concluded her response by reminding plaintiff that it takes at least five days in order to process refill requests. Id.
It appears from plaintiff's submissions that his prescription for Ibuprofen 400 mg. may have been discontinued or suspended by prison medical officials, fearing that continued use of that particular prescription drug might result in liver damage to the plaintiff. Plaintiff's Memorandum (Dkt. No. 15) pp. 9-10.
In his original complaint plaintiff also appears to allege that he was denied the prescription drugs Lipitor and Metoprotol, placing him at increased risk of suffering a heart attack. See Complaint (Dkt. No. 1) pp. 12-13 (unnumbered). Lipitor is the trademarked version of the generic medication atorvastian calcium. Dorland's Illustrated Medical Dictionary 1077 (31st ed. 2007). Atorvastian calcium is an oral medication which acts to inhibit cholesterol synthesis in individuals with elevated cholesterol levels. Id. at 175. Metoprolol tartrate is the generic formulation of Lopressor and is a cardioselective blocking agent that is used to treat hypertension and other conditions. Id. at 1089, 1172. Plaintiff does not reiterate this claim in his amended complaint.
Plaintiff maintains that the delay in receiving the additional back x-ray and the denial of his medication is defendant Smith's responsibility in her capacity as a nurse administrator at Upstate. Complaint (Dkt. No. 1) ¶¶ 4, 16-17, 19; see also Amended Complaint (Dkt. No. 5) § 7. Plaintiff further alleges that defendant Smith is responsible for any treatment denials since all sick-call slips are sent to the nurse administrator's office for review. Amended Complaint (Dkt. No. 5) § 7.
II. PROCEDURAL HISTORY
Plaintiff's complaint, which is actually comprised of two nearly identical complaints, though dated earlier, were filed with the court on June 23, 2010. Complaint (Dkt. No. 1). The first complaint (Dkt. No. 1 at 1-7) sets forth his claims against Nurse Administrator Smith; in his second complaint, (Dkt. No. 1 at 8-20), plaintiff names Mr. Baker, a nurse at Upstate, as a defendant. Upon initial review of plaintiff's complaint pursuant to 28 U.S.C. § 1915A, on October 9, 2010, Senior District Judge Thomas J. McAvoy granted plaintiff's request for in forma pauperis status, but directed him to file an amended complaint within thirty days, noting several deficiencies in the original pleading. See generally Decision and Order (Dkt. No. 4). In his decision, inter alia, District Judge McAvoy found that Rodriguez had failed to allege any acts of deliberate indifference on the part of defendant Baker. Id.
Even though the original complaint is dated June 7, 2010, certain exhibits attached to the complaint bear later dates. See, e.g., Dkt No. 1 at pp. 14-16 (grievance response dated 6/18/10).
These pleadings are referred to herein collectively as the "complaint."
The court notes that although all claims against Nurse Baker were dismissed by virtue of Senior District Judge McAvoy's October 9, 2010 order, he is named as a defendant in a separate action commenced by the plaintiff in this court. See Rodriguez v. Baker, 9:10-CV-1122 (DNH/RFT).
Plaintiff filed an amended complaint on October 20, 2010, in compliance with Senior District Judge McAvoy's order. Amended Complaint (Dkt. No. 5). In his amended complaint, which names only Nurse Administrator Smith as a defendant, plaintiff appears to assert a claim of deliberate medical indifference, centering upon the failure of prison officials to adequately treat his back condition and provide him with an x-ray and pain medication. See generally, id. As relief, plaintiff requests an order directing the defendant to authorize an additional x-ray to assist in the diagnosis and treatment of his back condition, and specifically disavows seeking recovery of monetary damages in the action. Id. at § 8.
In response to plaintiff's complaint, on January 27, 2011, defendant moved for its dismissal pursuant to the Federal Rule of Civil Procedure 12(b)(6), challenging the sufficiency of plaintiff's allegations and arguing that they do not support a plausible Eighth Amendment claim. Dkt. No. 14. In support of her motion, defendant asserts that dismissal is warranted on the grounds that 1) the complaint fails to state a cognizable deliberate indifference claim; 2) she was not personally involved in plaintiff's medical care; and 3) she is entitled to qualified immunity. Id. Defendant's motion, which plaintiff has opposed, see Dkt. No. 15, is now ripe for determination and has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
Defendant has also requested a protective order barring discovery pending resolution of the pending dismissal motion. Id.
III. DISCUSSION
A. Dismissal Motion Standard
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading, utilizing as a backdrop a pleading standard which, though unexacting in its requirements, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, __ U.S. __, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555, 127 S. Ct. 1955, (2007)). Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Id. While modest in its requirement, that rule commands that a complaint contain more than mere legal conclusions; "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 129 S. Ct. at 1950.
To withstand a motion to dismiss, a complaint must plead sufficient facts which, when accepted as true, state a claim which is plausible on its face. Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (citing Twombly, 550 U.S. at 570, 127 S. Ct. at 1974). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge [plaintiffs'] claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570, 127 S. Ct. at 1974).
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Cooper v. Pate, 378 U.S. 546, 546, 84 S. Ct. 1723, 1734 (1964); Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003), cert. denied, 540 U.S. 823, 124 S. Ct. 153 (2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). However, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Iqbal, 129 S. Ct. at 1949. In the wake of Twombly and Iqbal, the burden undertaken by a party requesting dismissal of a complaint under Rule 12(b)(6) remains substantial; the question presented by such a motion is not whether the plaintiff is likely ultimately to prevail, "'but whether the claimant is entitled to offer evidence to support the claims.'" Log On America, Inc. v. Promethean Asset Mgmt. L.L.C., 223 F. Supp.2d 435, 441 (S.D.N.Y. 2001) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995)) (citations and quotations omitted).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 127 S. Ct. at 2200 (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 292 (1976)) ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'") (internal quotations omitted); Davis v. Goord, 320 F.3d 346, 350 (2d Cir. 2003) (citation omitted); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.) (citation omitted).
B. Deliberate Medical Indifference
Plaintiff alleges that defendant Smith was deliberately indifferent to his serious medical needs because others working under her supervision, including Nurse Baker, denied or delayed refills of his prescription medication, and because medical personnel at Upstate have failed to arrange for a requested back x-ray. In response to these assertions, defendant contends that plaintiff's complaint fails to set forth a plausible deliberate indifference cause of action, in that it does not show that he suffers from a medical condition sufficiently serious to implicate the Eighth Amendment, nor was she indifferent to any such need.
Claims that prison officials have intentionally disregarded an inmate's medical needs fall under the umbrella of protection from the imposition of cruel and unusual punishment afforded by the Eighth Amendment. Estelle, 429 U.S. at 102, 104, 97 S. Ct. at 290, 291. The Eighth Amendment prohibits punishment that involves the "unnecessary and wanton infliction of pain" and is incompatible with "the evolving standards of decency that mark the progress of a maturing society." Id.; see also Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981)). To satisfy their obligations under the Eighth Amendment, prison officials must "ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Farmer, 511 U.S. at 832, 114 S. Ct. at 1976 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S. Ct. 3194, 3200 (1984)) (internal quotations omitted).
A claim alleging that prison officials have violated the Eighth Amendment by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, No. 07-CV-2634 (JFB/ARL), 2010 WL 889787, at *7-8 (E.D.N.Y. Mar. 8, 2010). Addressing the objective element, to prevail a plaintiff must demonstrate a violation sufficiently serious by objective terms, "in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). With respect to the subjective element, a plaintiff must also demonstrate that defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). Claims of medical indifference are subject to analysis utilizing this Eighth Amendment paradigm. See Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
1. Objective Requirement
Analysis of the objective, "sufficiently serious," requirement of an Eighth Amendment medical indifference claim begins with an inquiry into "whether the prisoner was actually deprived of adequate medical care . . .", and centers upon whether prison officials acted reasonably in treating the plaintiff. Salahuddin, 467 F.3d at 279. A second prong of the objective test addresses whether the inadequacy in medical treatment was sufficiently serious. Id. at 280. If there is a complete failure to provide treatment, the court must look to the seriousness of the inmate's medical condition. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). If, on the other hand, the complaint alleges that treatment was provided but was inadequate, the seriousness inquiry is more narrowly confined to that alleged inadequacy, rather than focusing upon the seriousness of the prisoner's medical condition. Salahuddin, 467 F.3d at 280. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in treatment. . . [the focus of] the inquiry is on the challenged delay or interruption, rather that the prisoner's underlying medical condition alone." Id. (quoting Smith, 316 F.3d at 185) (internal quotations omitted). In other words, at the heart of the relevant inquiry is the seriousness of the medical need, and whether from an objective viewpoint the temporary deprivation was sufficiently harmful to establish a constitutional violation. Smith, 316 F.3d at 186. Of course, "when medical treatment is denied for a prolonged period of time, or when a degenerative medical condition is neglected over sufficient time, the alleged deprivation of care can no longer be characterized as 'delayed treatment', but may properly be viewed as a 'refusal' to provide medical treatment." Id. at 186, n.10 (quoting Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000)).
Since medical conditions vary in severity, a decision to leave a condition untreated may or may not raise constitutional concerns, depending on the circumstances. Harrison, 219 F.3d at 136-37 (quoting, inter alia, Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Relevant factors informing this determination include whether the plaintiff suffers from an injury or condition that a "'reasonable doctor or patient would find important and worthy of comment or treatment'", a condition that "'significantly affects'" a prisoner's daily activities, or "'the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (citation omitted); Lafave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *3 (N.D.N.Y. Apr. 3, 2002) (Sharpe, M.J.) (citation omitted).
In this instance, plaintiff alleges that he has been diagnosed with a "broken disc" in his back following a prison assault. "Depending upon the facts presented, severe back pain, especially if lasting an extended period of time . . . may qualify as a serious medical need[]'under the Eighth Amendment." Benjamin v. Kooi, No. 9:07-CV-0506, 2010 WL 985844, at * 7 (N.D. N.Y. Feb. 25, 2010) (Homer, M.J.) (citing and quoting Mendoza v. McGinnis, No. 05-CV-1124, 2008 WL 4239760 at *10 & n.16 (N.D.N.Y. Sept. 11, 2008)); see also Guarneri v. Hazzard, No. 06-CV-0985, 2008 WL 552872, at *6 (N.D.N.Y. Feb. 27, 2008) (Mordue, C.J. and Homer, M.J.) (holding that severe back pain, especially if long-lasting, can amount to a serious medical need); Faraday v. Lantz, No. 03-CV-1520, 2005 WL 3465846, at *5 (D. Conn. Dec. 12, 2005) (holding that persistent complaints of "lower back pain caused by herniated, migrated discs [and] sciatica ... " leading to severe pain constitute a serious medical need); Nelson v. Rodas, No. 01-CV-7887 (RCC/AJP), 2002 WL 31075804, at *14 (S.D.N.Y. Sept.17, 2002) (holding that "[s]evere back pain, especially if lasting an extended period of time, can amount to a serious medical need"). Plaintiff's allegations regarding his back condition are therefore sufficient to plausibly satisfy the first portion of the objective requirement under the Eighth Amendment. See Rhames v. Federal Bureau of Prisons, No. 00 CIV. 4338AKH, 2002 WL 1268005, at *7 (S.D.N.Y. June 6, 2002).
Analysis of the objective prong also requires a second inquiry, under which the treatment provided to the plaintiff for his back condition is examined. In this instance it is clear from his pleadings that Rodriguez has received treatment including x-rays as well as pain medication. Plaintiff's pain medication claim is focused not upon a failure to treat, but rather upon two delays of modest duration - for two weeks in June 2010 and two weeks over Christmas vacation in December 2009 - in providing prescribed pain medication. See Complaint (Dkt. No. 1) at p. 2, ¶¶ 13-15 and p. 7. Such minor and inconsequential delays are insufficient to satisfy the objective prong of the Eighth Amendment deliberate indifference test, and are not properly characterized as a constitutionally significant "refusal" to provide medical treatment. See De Jesus v. Albright, No. 08 Civ. 5804(DLC), 2011 WL 814838, at * (S.D.N.Y. Mar. 9, 2011) (citing Smith, 316 F.3d at 186).
Similarly, the alleged refusal or delay in providing an x-ray, given that by his own admission has undergone previous back x-rays, fails to satisfy the objective prong of the controlling test and represent a refusal to provide treatment; instead, this portion of plaintiff's claims presents nothing more than a classic disagreement over a course of diagnosis and treatment which is not actionable under the Eighth Amendment. Lewis v. Johnson, No. 9:08-CV-482, 2010 WL 3785771, at * 18 (N.D.N.Y. Aug. 5, 2010) (Baxter, M.J.) ("Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment.") (citing Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001)), report and recommendation adopted, 2010 WL 3762016 (Apr. 1, 2010) (McAvoy, S.J.). I therefore recommend dismissal of plaintiff's deliberate indifference claims for failure to meet the objective prong of the controlling test.
2. Subjective Element
Turning to the second, subjective requirement for establishing an Eighth Amendment medical indifference claim, I conclude that the plaintiff has not alleged facts sufficient to show that defendant Smith acted with a sufficiently culpable state of mind. The second prong of the test mandates a showing of deliberate indifference on the part of one or more of defendants. Salahuddin, 467 F.3d at 280 (citing Wilson v. Seiter, 501 U.S. 294, 300, 111 S. Ct. 2321, 2325 (1991)). Deliberate indifference, in a constitutional sense, exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference." Farmer, 511 U.S. at 837, 114 S. Ct. at 1979; Leach v. Dufrain, 103 F. Supp. 2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (citing Farmer); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.) (same). Deliberate indifference is a mental state equivalent to subjective recklessness as the term is used in criminal law. Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40, 114 S. Ct. 1970).
Mere negligence on the part of a physician or other prison medical official in treating or failing to treat a prisoner's medical condition, on the other hand, does not implicate the Eighth Amendment and is not properly the subject of a section 1983 action. Estelle, 429 U.S. at 105-06, 97 S. Ct. at 292; Chance, 143 F.3d at 703. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106, 97 S. Ct. at 292. Thus, for example, a physician who "delay[s] ... treatment based on a bad diagnosis or erroneous calculus of risks and costs" does not exhibit the mental state necessary for deliberate indifference. Harrison, 219 F.3d at 139. If prison officials consciously delay or otherwise fail to treat an inmate's serious medical condition "as punishment or for other invalid reasons," however, such conduct is actionable as deliberate indifference. Harrison, 219 F.3d at 138; Kearsey v. Williams, No. 99 Civ 8646, 2005 WL 2125874, at *5 (S.D.N.Y. Sep. 1, 2005).
Plaintiff's complaint lacks any factual allegations plausibly demonstrating that defendant Smith was deliberately indifferent to his serious medical needs. Plaintiff has not alleged that defendant Smith refused to provide him with the proper and necessary medical treatment for his back pain. Instead, Rodriguez contends that he continues to await a decision as to whether to approve a requested back x-ray, without identifying the actual decisionmakers, not that medically necessary back x-rays were denied by defendant Smith. Additionally, plaintiff has not alleged any facts demonstrating that the delay in approval exposed him to an excessive risk of harm of which defendant Smith was or reasonably should have been aware; there are no allegations in plaintiff's complaint that his condition has deteriorated, or that his pain has substantially increased and interfered with his ability to performed daily activities while awaiting further treatment.
Since defendant Baker was previously dismissed from this action, plaintiff's sole allegation with respect to his pain medication is that he did not receive refills of his pain medication in a timely manner. While the pertinent chronology is not clearly stated, it appears that two delays, each of a two-week duration, are implicated in this portion of plaintiff's deliberate indifference claim. Such a claim is substantially deficient in that plaintiff's complaint fails to show subjectively that defendant Smith acted intentionally or was aware that the delays in providing pain medication refills would expose Rodriguez to an excessive risk to his health. Baskerville v. Blot, 224 F. Supp. 2d 723, 735-36 (S.D.N.Y. 2002) (holding that delay in receipt of prescription refills is insufficient to give rise to an Eighth Amendment claim of medical indifference) (citation omitted). It appears that, rather than being intentional, the delay in providing refills is attributable at least in part to untimely requests by the plaintiff, defendant Smith having responded to plaintiff's prison complaint by advising him that he needed to request refills in a timely manner to ensure that there were no lapses in his medication.
In sum, plaintiff's complaint is devoid of any allegations suggesting that Nurse Smith, the sole remaining defendant, knew of and disregarded an excessive risk to plaintiff's health or safety. I therefore recommend that the court find that plaintiff's complaint fails to allege a plausible Eighth Amendment deliberate medical indifference cause of action since plaintiff has not alleged sufficient facts to satisfy the subjective prong of the governing test. See Young v. Coughlin, No. 93 Civ. 262 DLC, 1998 WL 32518, at *4-7 (S.D.N.Y. 1998), aff'd, 182 F.3d 902 (2d Cir. 1999).
C. Personal Involvement
Defendant Smith's motion also seeks dismissal of plaintiff's claims against her on the ground that plaintiff's complaint fails to allege a sufficient degree of involvement on her part in the constitutional deprivations alleged to support a finding of liability against her.
While this is raised as an independent ground for dismissal there clearly is considerable overlap between the arguments supporting this point and defendant's contention that plaintiff has not met the subjective prong of the controlling Eighth Amendment test.
Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under section 1983. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) and McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282 (1978)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
Plaintiff alleges that Nurse Baker denied plaintiff access to pain medication and that defendant Smith had actual knowledge of the denial. He also appears to contend that as a nurse administrator it was defendant's responsibility to authorize and arrange for the requested x-ray. Plaintiff has not, however, alleged any facts showing that Nurse Administrator Smith was directly involved in his treatment. Instead, it appears likely that plaintiff has named defendant Smith as a defendant based principally upon her supervisory position as a nurse administrator at Upstate. Amended Complaint. (Dkt. No. 5) at ¶ 7 ("she have this responsibility following her code as administrator.").
It is well-established that a supervisor such as the defendant cannot be liable for damages under section 1983 solely by virtue of being a supervisor; there is no respondeat superior liability under section 1983. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. Instead, culpability on the part of a supervisory official for a civil rights violation must be established in one of several ways, including by showing that the individual 1) has directly participated in the challenged conduct; 2) after learning of the violation through a report or appeal, has failed to remedy the wrong; 3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) was grossly negligent in managing the subordinates who caused the unlawful event; or 5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom., Ashcroft v. Iqbal, _ U.S.__,129 S. Ct. 1937 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d
The issue of supervisory liability for civil rights violation was addressed by the Supreme Court recently in its decision in Ashcroft, 129 S. Ct. 1937. The Second Circuit has yet to address the impact of Iqbal upon the categories of supervisory liability under Colon. Lower courts have struggled with this issue, and specifically whether Iqbal effectively calls into question certain prongs of the Colon five-part test for supervisory liability. See Sash, 674 F. Supp. 2d at 542-544; see also Stewart v. Howard, No. 9:09-CV-0069 (GLS/GHL), 2010 WL 3907227, at *12 n.10 (N.D.N.Y. Apr. 26, 2010) ("The Supreme Court's decision in [Iqbal] arguably casts in doubt the continued vitality of some of the categories set forth in Colon.") (citations omitted), report and recommendation adopted, 2010 WL 3907137 (Sept. 30, 2010) . While some courts have taken the position that only the first and third of the five Colon categories remain viable and can support a finding of supervisory liability, see, e.g., Bellamy v. Mount Vernon Hosp., No. 07 CIV. 1801, 2009 WL1835939, at *6 (S.D.N.Y. June 26, 2009), aff'd, 387 Fed. App'x 55 (2d Cir. 2010), others disagree and conclude that whether any of the five categories apply in any particular case depends upon the particular violations alleged and the supervisor's participatory role, see, e.g., D'Olimpio v. Crisafi, Nos. 09 Civ. 7283 (JSR), 09 Civ. 9952 (JSR), 2010 WL 2428128, at *5 (S.D.N.Y. Jun. 15, 2010); Qasem v. Toro, No. 09 Civ. 8361 (SHS), 2010 WL 3156031, at *4 (S.D.N.Y. Aug. 10, 2010).
Page 26 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
Defendant Smith's review and response to plaintiff's complaints and grievances could arguably bring her squarely within the second of the five potential grounds under Colon and Iqbal for establishing personal involvement on the part of a supervisory employee. Some courts have held that personal liability against a supervisor with no direct involvement in the offending conduct may nonetheless lie where a "supervisor's 'involvement went beyond merely the receipt of complaint letters,' to 'responding, explaining the treatment and defending the institution.'" Woods v. Goord, No. 01 Civ. 3255 (SAS), 2002 U.S. Dist LEXIS 7157, at *27-31, 2002 WL 731691, at *7-9 (S.D.N.Y. Apr. 23, 2002) (Schendlin, J.) (internal citations omitted); see also Baez v. Harris, No. 9:01-CV-807, 2007 WL 446015, at *2 (N.D.N.Y. Feb. 7, 2007) (Mordue, C.J.) (fact that defendant Selsky responds personally to all disciplinary appeals by inmates found sufficient to withstand summary judgment motion based on lack of personal involvement); Rashid v. Hussain, No. 95- Civ. 676, 1997 U.S. Dist. LEXIS 16132, at *9-10, 1997 WL 642549, at *3 (N.D.N.Y. Oct. 15, 1997) (Pooler, J.). This basis for finding supervisory liability does not apply in this case, however, since by the time defendant responded to plaintiff's grievance regarding prescription medication on January 6, 2010 it appears the prescription had been written, and plaintiff should have received medication; thus the violation was not ongoing, and the defendant therefore could not have intervened to end the violation. Reid v. Bezio, No. 9:10-CV-609, 2011 WL 1577761, at * 7 (N.D.N.Y. Mar. 30, 2011) (Homer, M.J.) (citing Shomo v. City of New York, 579 F.3d 176, 184 (2d Cir. 2009) and Harnett v. Barr, 538 F. Supp. 2d 511, 524 (N.D.N.Y. 2008)), report and recommendation adopted, 2011 WL 1585067 (Apr. 26, 2011) (Mordue, C.J.).
Drawing all inferences and resolving all ambiguities in plaintiff's favor, I conclude that plaintiff has not sufficiently alleged defendant Smith's personal involvement in any constitutional violation relating to the delay in refilling his prescription medication, or delay in providing an x-ray to withstand defendant's dismissal motion. See Charles v. N.Y. State Dep't of Corr. Servs., No. 9:07-CV-1274, 2009 WL 890548, at *5-9 (N.D.N.Y. Mar. 21, 2009) (Hurd, J. and DiBianco, M.J.). As such, I recommend that plaintiff's deliberate indifference claim also be dismissed on the ground that defendant was not personally involved in the conduct giving rise to his claim.
D. Leave to Amend
In light of my recommendation that plaintiff's complaint be dismissed for failure to allege a plausible Eighth Amendment deliberate indifference cause of action, I next consider whether, in light of his pro se status, he should be allowed to file an amended complaint in an effort to cure perceived deficiencies by restating the deficient claims and asserting additional facts demonstrating the existence of plausible constitutional claims.
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without granting leave to amend at least once if there is any indication that a valid claim might be stated. Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir.1991) (emphasis added); see also Fed. R. Civ. P. 15(a) (leave to amend "shall be freely given when justice so requires"); see also Mathon v. Marine Midland Bank, N.A., 875 F.Supp. 986, 1003 (E.D.N.Y.1995) (leave to replead granted where court could not say that under no circumstances would proposed claims provide a basis for relief). The court must next determine whether plaintiff is entitled to the benefit of this general rule, given the procedural history of the case.
Although plaintiff has been given the opportunity to amend his complaint once, based upon the scant and difficult-to-decipher pleading that is now before the court, I am unable to conclude with complete confidence that plaintiff cannot possibly allege the existence of a viable constitutional claim based upon the circumstances that he has set forth in his original complaint and amended complaint. Accordingly, I recommend that plaintiff be granted one final opportunity to amend his complaint.
Plaintiff is reminded, however, that the law in the Second Circuit clearly provides that "complaints relying on the civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (other citations omitted)); Pourzandvakil v. Humphry, No. 94-CV-1594, 1995 U.S. Dist. LEXIS 7136, at *24-25 (N.D.N.Y. May 22, 1995) (Pooler, D.J.) (citation omitted). In his amended complaint, plaintiff therefore should clearly set forth the facts, including the wrongful acts that give rise to the claim, the dates, times and places of the alleged acts, and the identity of each individual who committed each alleged wrongful act. Such an amended complaint must replace the existing second amended complaint, must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court, see Harris v. City of N.Y., 186 F.3d 243, 249 (2d Cir. 1999) (citing Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994)); Fed. R. Civ. P. 10(a), and should specifically allege facts indicating the involvement of the named defendant in the constitutional deprivations alleged in sufficient detail to establish the they were tangibly connected to those deprivations. See Bass, 790 F.2d at 263.
F. Protective Order
Defendant also moves pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure for a protective order staying discovery pending the resolution of defendant's motion to dismiss. That rule provides, in relevant part, that
[a] party or any person from whom discovery is sought may move for a protective order in the court where the action is pending . . . The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (A) forbidding the disclosure or discovery.Fed. R. Civ. P. 26(c)(1); see also, Spencer Trask Software and Information Services, LLC v. RPost Intern. Ltd., 206 F.R.D. 367, 368 (S.D.N.Y. 2002) (granting stay of discovery pending determination of motion to dismiss where court found defendants presented "substantial arguments" for dismissal of many if not all of the claims in the lawsuit); United States v. County of Nassau, 188 F.R.D. 187, 188-89 (E.D.N.Y. 1999) (granting stay of discovery during the pendency of a motion to dismiss where the "interests of fairness, economy and efficiency . . . favor[ed] the issuance of a stay of discovery," and where the plaintiff failed to claim prejudice in the event of a stay.).
In light of my recommendation that the court dismiss plaintiff's complaint with leave to amend, I find that good cause exists for issuing an order to protect the defendant from the burden of discovery until the court acts upon this report and, if adopted, until plaintiff files an amended complaint that is accepted for filing by the court, the defendant responds to the amended complaint, and the court issues its standard pretrial scheduling order pursuant to Rule 16 of the Federal Rules of Civil Procedure.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's Eighth Amendment cause of action, which alleges deliberate medical indifference premised on delays he has experienced in receiving medical treatment while incarcerated at Upstate, falls short of alleging sufficient facts showing that prison medical personnel were deliberately indifferent to his serious medical needs, and that defendant Smith was personally involved in the constitutional deprivation alleged.As such, I am recommending that plaintiff's claim of deliberate medical indifference be dismissed although in deference to his pro se status, I also recommend that he be given one final opportunity to amend his complaint to eliminate the perceived substantive shortcomings.
In view of my recommendations on the merits, I have not addressed defendant's alternative claim that she is entitled to a defense of qualified immunity.
Based upon the foregoing discussion, it is hereby respectfully
RECOMMENDED that defendant's motion to dismiss plaintiff's amended complaint (Dkt. No. 5) be GRANTED, and that plaintiff's complaint in this action be DISMISSED, with leave to replead; and it is further
RECOMMENDED that plaintiff be afforded thirty days from any decision adopting this report and recommendation to file an amended complaint, and that in the event that plaintiff fails to timely file an amended complaint the action be DISMISSED with no further action by the court.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the Clerk of the Court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; and it is further
ORDERED, that pending a final determination in connection with the instant motion and the submission of an amended complaint which is accepted for filing with the court, defendant's submission of a response to that amended complaint, and the issuance by the court of its standard Rule 16 pretrial scheduling order, discovery in this action is STAYED; and it is further
ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
Dated: August 19, 2011
Syracuse, NY
David E. Peebles
U.S. Magistrate Judge