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noting that "[e]pilepsy, or an epileptic seizure, is a serious condition"
Summary of this case from Flores v. CookOpinion
00 CIV. 5540 (DLC).
December 17, 2001.
Rodney Boomer, Pro Se, Elmira Correctional Facility, Elmira, NY., for Plaintiff.
Andrew Zwirling, Garbarini Scher, New York, NY., Attorney[s] for Defendants[s].
OPINION AND ORDER
Plaintiff pro se Rodney Boomer ("Boomer") brings this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging excessive force and deprivation of medical treatment in violation of the Eighth Amendment. Two of the defendants, Dr. Patel and St. Barnabas Hospital (collectively, the "defendants"), move to dismiss the claims against them in a second amended complaint, pursuant to Rule 12(b)(6), Fed.R.Civ.P. For the reasons stated below, their motion is denied.
BACKGROUND
The facts as alleged by Boomer are as follows. On September 14, 1999, Boomer was incarcerated at Rikers Island. On that day, a correctional officer opened the "food slot" in Boomer's cell to feed him. Boomer informed the officer that he was epileptic and complained that he was "feeling ill." The officer left Boomer's food slot open and told him to get some air while the officer contacted the medical department.
Boomer waited at his food slot "feeling extremely dizzy and gasping for air," but no medical personnel came. About 30 minutes later, defendants Captain Wheeler and corrections officers White, Weather, Santana, Martin, and Conquet came to Boomer's cell in "full riot gear." Boomer tried to explain to Captain Wheeler that he was epileptic and feeling sick, but Captain Wheeler "swiftly cut the plaintiff off by spraying chemical agent into [his] eyes, face and hair." Boomer immediately experienced a "violent seizure attack with one of his arms still hanging out of the food slot." Captain Wheeler ordered the security staff to open and close the cell door several times while Boomer was having convulsions and while Boomer's arm was still hanging out of the food slot.
When Boomer regained consciousness, he was lying face down in the Central Punitive Segregation Unit ("CPSU") in-take shower stall. He had severe arm, neck, and shoulder pain and "excruciating back pain." A medical staff person came to the shower stall and interviewed Boomer. This person did not conduct an examination of him, did not perform any blood tests to determine Boomer's "Dilantin level," and did not take any x-rays.
Boomer was taken to an "unauthorized" isolation cell by corrections officers, and was later taken to the CPSU medical clinic. At the clinic, Dr. Patel interviewed Boomer, but did not give him a medical exam or any medical treatment. Boomer alleges that Dr. Patel was fully aware that Boomer was epileptic, that he took "Dilantin medications," and that he suffered from "an extreme violent seizure disorder," yet nonetheless had authorized the corrections officers' use of a "chemical agent" against Boomer.
Boomer alleges that these actions by Dr. Patel constituted deliberate indifference and cruel and unusual punishment in violation of the Eighth Amendment, and constituted negligence under state law. Boomer further claims that St. Barnabas failed adequately to train and supervise its employees, and therefore contributed to Dr. Patel's actions in violation of the Eighth Amendment and state law.
DISCUSSION
A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.'"Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.
Where, as here, a party is proceeding pro se, this Court has an obligation to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest."Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1998). "Though a court need not act as an advocate for pro se litigants, in pro se cases there is `a greater burden and a correlative greater responsibility upon the district court to insure that constitutional deprivations are redressed and that justice is done.'" Davis v. Kelly, 160 F.3d 917, 922 (2d Cir. 1998) (citation omitted). Nevertheless, a pro se plaintiff's "conclusory allegation . . . without evidentiary support or allegations of particularized incidents, does not state a valid claim." Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990).
A. Exhaust Administrative Remedies
The defendants argue that Boomer's second amended complaint should be dismissed because he has failed to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). The PLRA provides that
[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a) (1994) (emphasis supplied). Thus, a court must dismiss a prisoner's complaint regarding prison conditions and may not allow it to proceed if the plaintiff has failed to exhaust his administrative remedies prior to filing the complaint. Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001)
The PLRA does not define "prison conditions," but "`[t]he plain language of `prison conditions' suggests those aspects of prison life affecting the entire population, such as the food, medical care, recreational facilities and the like.'" Neal, 267 F.3d at 119 (citation omitted) (emphasis in original). On the other hand, the exhaustion requirement does not apply to claims where the plaintiff alleges that he "was singled out for the denial of medical services." Id. at 120. Since the second amended complaint "contains no allegations that the kinds of responses he received to his medical needs were different or more particularized than the responses generally received by other prisoners,"id. at 121, the PLRA's exhaustion requirements apply to Boomer's allegations.
In his second amended complaint and in opposition to the motion to dismiss, Boomer asserts that although he attempted to file grievances, he was frustrated in those efforts by prison officials. Boomer alleges that he filed a complaint through the Inmate Grievance Resolution Program ("IGRP"), but was told by a staff member that his complaints were not grievances handled by the program. Boomer has submitted a copy of the grievance he alleges that he filed. In the grievance, Boomer alleged that he was not visited by the medical staff after he complained to the corrections officer that he felt sick. He also alleged that he "was taken to CPSU clinic and verbally interviewed by Doctor. I received no examination despite that fact that I told him my back, head, neck was hurting severely." "A court may not dismiss for failure to exhaust unless the court determines that [administrative] remedies are available." Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999). Boomer's submissions are sufficient at this stage to defeat the motion to dismiss, and at a minimum raise issues of fact as to the availability of administrative remedies.
The grievance is dated incorrectly. It is dated September 14, 1998; the alleged incident took place on September 14, 1999.
While Boomer did not allege in the grievance that the doctor authorized the use of a chemical against him, that allegation is not subject to exhaustion because it concerns a "particular instance of excessive force or assault," Nussle v. Willette, 224 F.3d 95, 100 (2d Cir. 2000), rather than a prison condition.
The cases on which the defendants rely are inapposite. In each instance the inmate admitted that he had not pursued administrative remedies. See Sonds v. St. Barnabas, No. 00 Civ. 4968 (CM), slip op. at 3 (S.D.N.Y. May 21, 2001); Harris v. N YC. Dep't of Corrections, No. 00 Civ. 7164 (NRB), slip op. at 8 (S.D.N.Y. July 25, 2000).
B. Deliberate Indifference
The defendants assert that plaintiff fails to state a claim against them for deliberate indifference under the Eighth Amendment. To state an Eighth Amendment claim for denial of adequate medical care, a plaintiff must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 105 (1976). To meet this standard, the plaintiff must allege (1) a "sufficiently serious" condition, one that "may produce death, degeneration, or extreme pain," Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citation omitted), and (2) that the defendant acted with a sufficiently culpable state of mind, which must be "the equivalent of criminal recklessness;" namely, when the official "knows of and disregards an excessive risk to inmate health or safety." Id. (citation omitted). Mere negligence or medical malpractice does not constitute deliberate indifference, id., nor do mere differences of opinion between the prisoner and the defendants concerning the proper course of treatment. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Rather, officials must "intentionally deny or delay access to medical care or intentionally interfer[e] with the treatment once prescribed." Estelle, 429 U.S. at 104-05.
The parties have briefed this claim under the Eighth Amendment standard, which would apply to sentenced prisoners. The complaint is silent as to whether Boomer was a sentenced prisoner or a pretrial detainee in September 1999, when the alleged incident took place. Since the Fourteenth Amendment standard for parallel claims made on behalf of detainees would not change the result here, Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996), the motion can be decided without any explicit representation regarding Boomer's status.
The plaintiff has sufficiently alleged that Dr. Patel was aware of Boomer's epilepsy, and that despite this knowledge, he authorized the use of a chemical agent against him, which caused severe injuries, and that Dr. Patel failed adequately to treat the injuries, including an injury causing him excruciating pain, that Boomer sustained as a result of an epileptic seizure. Epilepsy, or an epileptic seizure, is a serious condition, see Williams v. M.C.C. Inst., No. 97 Civ. 5352 (LAP), 1999 WL 179604, at *10 (S.D.N.Y. Mar. 31, 1999), and these allegations concern serious medical needs.
Defendants argue that Boomer's allegations reflect nothing more than differences of opinion regarding medical treatment, and negligent treatment. Boomer has alleged sufficient facts to plead deliberate indifference to serious medical needs.
Given the fact that the claim against Dr. Patel has survived this motion to dismiss, the Court declines to consider at this point whether the claim against the hospital should be dismissed.
C. Qualified Immunity
The defendants assert that the doctrine of qualified immunity protects them from liability under Section 1983 for the claims of deliberate indifference to medical needs because plaintiff has not alleged facts that the defendants knew or should have known that their treatment of plaintiff would violate plaintiff's constitutional rights. Qualified immunity protects state actors sued in their individual capacity from a suit for damages. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001); Lewis v. Cowen, 165 F.3d 154, 166 (2d Cir. 1999). A state actor is qualifiedly immune if either "(a) the defendant's action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law." Johnson, 239 F.3d at 250.
It was clearly established by September 1999, that prison officials may not be deliberately indifferent to an inmate's serious medical needs. See Estelle v. Gamble, 429 U.S. at 104. The plaintiff has alleged sufficient facts to defeat the assertion of qualified immunity at this stage of the proceedings.
D. Sufficiency of Service of Process
While the defendants also moved to dismiss the complaint on the ground that they had not yet been served with process, it appears that Dr. Patel has since been served. In any event, the time for service has not yet expired. Accordingly, the Court declines to dismiss the complaint on the ground of improper service.
As a pro se litigant proceeding in forma pauperis, Boomer is entitled to rely on service by the United States Marshals. See Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986) To the extent that the Marshal's Service does not serve St. Barnabas within the 120 days allowed to do so, that time period may be extended for good cause.
CONCLUSION
For the reasons stated, the motion to dismiss by Dr. Patel and St. Barnabas is denied.