J. PAUL OETKEN, District Judge

MEMORANDUM AND ORDER

:

Plaintiff Michael Patrick Giambalvo ("Plaintiff"), proceeding pro se, brings this action pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Diane Sommer, a physician at the Federal Correctional Institution in Otisville, New York ("FCI Otisville"). At the times relevant to this action, Plaintiff was an inmate at FCI Otisville. Plaintiff asserts that Defendant Sommer violated his constitutional right to be free from cruel and unusual punishment by refusing to provide him with medical shoes and medical boots in deliberate indifference to his medical needs.

Presently before the Court is Defendant's motion to dismiss Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and on the ground that Defendant is protected by qualified immunity. For the reasons set forth below, the motion to dismiss is denied. I. Background

Plaintiff asserts that on November 30, 2007, he consulted Dr. Michael Azumah, apparently a physician at U.S.P. Hazelton in Bruceton Mills, West Virginia, where Plaintiff was previously incarcerated, about an ingrown toenail on the fourth toe of his right foot. Mr. Giambalvo asserts that Dr. Azumah intentionally and maliciously ripped Plaintiff's toenail from his toe and then bandaged his toe so tightly that it resulted in severe and lasting injury.

Defendant Sommer was clinical director at FCI Otisville and Plaintiff's primary care physician. Plaintiff asserts that Dr. Sommer has been aware of Plaintiff's medical need for medical shoes and boots since at least October 31, 2008, when she received a request from Plaintiff for these items. (Ex. A-8.) On or around November 24, 2008, as alleged in the original complaint, Plaintiff was examined by a contracted specialist in podiatry, Dr. Eric Kaplan M.D., who examined Plaintiff and prescribed a new pair of specialized medical shoes and boots "to fit properly." (Ex. A-1.)

Plaintiff asserts that on December 19, 2008, as a direct result of the improperly fitted medical boots, he slipped on the ice, fell, and injured his left knee and his back.

On January 2, 2009, Plaintiff petitioned Dr. Sommer, as clinical director, for a "new pair of medical walking shoes" in accordance with Dr. Kaplan's recommendation that he be given medical shoes and boots. (Ex. A-3.) Plaintiff wrote that a pair of medical shoes previously issued to him on June 13, 2008, which he wore every day, were ruined as a result of use and washing. He further indicated that without the shoes his "pain increases with every step." (Id.) On January 5, 2009, Dr. Sommer responded, "we either order shoes or boots but only one pair." (Id.) On or around December 22, 2008, Plaintiff submitted an administrative grievance form BP-8 complaining that he had not yet been provided with the medical shoes and boots. (Ex. A-2.) He received a response from a counselor on January 13, 2009 indicating that "health services stated 'they are going to order you the specialized shoe and boots.'" (Ex. A-2.)

On February 19, 2009, Plaintiff was provided with a pair of Timberland boots, which were not medical boots and had no therapeutic value. (Am. Comp. ¶ 12.) Plaintiff was not provided medical shoes or medical boots as Dr. Kaplan had recommended.

A Bureau of Prisons Health Services Clinical Encounter administrative note dated March 13, 2009 indicates that Plaintiff approached Dr. Sommer on at least two occasions requesting that he receive medical shoes. (Ex. A-8 to original complaint, Dkt. No. 2.) Plaintiff also attached a consultation report to his original complaint showing that he visited Dr. Kaplan on April 8, 2009. (Ex. A-3 to original complaint.) In this document, Dr. Kaplan wrote that "proper shoes were recommended." Dr. Kaplan also suggested "possible amputation" of the digit if Plaintiff's pain persists and sympathetic dystrophy is eliminated as a cause. (Id.) Dr. Kaplan noted that the pain as reported by Plaintiff was "severe." (Id.)

At some point Plaintiff was provided with medical shoes. Plaintiff asserts that he was finally provided with a shoe on April 22, 2009, "six months from the time Dr. Sommer was first aware" of Plantiff's medical needs, although Plaintiff asserts that the shoes were not the correct size and were not the specific medical walking shoes recommended by Dr. Kaplan. (Am. Compl. ¶ 15, 18.) Plaintiff also asserts that in total he was delayed "ten months until he received the appropriate medical footwear, which Dr. Eric Kaplan recommended 'to prevent possible amputation.'" (Am. Compl. ¶ 19.)

Plaintiff asserts that as a result of the problems with his toenail and the December 19, 2008 slip and fall accident, he is now wheelchair bound and is unable to walk on his right foot without the use of a "reverse heel" specialized boot.

II. Applicable Standards

On a motion to dismiss a complaint pursuant to Rule 12(b)(6), the Court accepts the complaint's factual allegations as true and draws inferences only in the plaintiff's favor. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). Nevertheless, to survive a motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).

Pro se status does not excuse a plaintiff from compliance with the pleading standards of the Federal Rules of Civil Procedure. Jenkins v. New York City Dept. of Educ., 10 Civ. 6159, 2011 WL 5451711, at *3 (S.D.N.Y. Nov. 9, 2011). At the same time, pro se complaints are held to less stringent standards than pleadings drafted by attorneys, and the court must read the plaintiff's pro se complaint liberally and interpret it as raising the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008).

III. Deliberate Indifference

Deliberate indifference by prison officials to a prisoner's serious medical need constitutes cruel and unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). To prevail on such a claim, a plaintiff must provide evidence of sufficiently harmful acts or omissions and intent to either deny or unreasonably delay access to needed medical care, or the wanton infliction of unnecessary pain by prison personnel. See id. at 104-06. Not every claim made by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment; neither negligence nor medical malpractice is sufficient. Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). The plaintiff must show conduct that is "repugnant to the conscience" or "incompatible with the evolving standards of decency that mark the progress of a maturing society." Estelle, 429 U.S. at 102, 105 (citations omitted).

A plaintiff must satisfy both a subjective and an objective prong to establish that a prison official was deliberately indifferent to an inmate's health. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 115 S. Ct. 1108 (1995); Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). First, the alleged deprivation must be, in objective terms, "sufficiently serious." Hathaway, 37 F.3d 66 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). This "standard contemplates 'a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Id. (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). "'[T]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain'" are factors that may indicate a medical need of sufficient seriousness. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). Moreover, a sufficiently serious deprivation occurs when a "prison official's act or omission . . . result[s] in the denial of 'the minimal civilized measure' of life's necessities.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

The second, subjective, prong of the standard requires that the charged official must have been actually aware of a substantial risk that the inmate would suffer serious harm as a result of the official's actions or inactions. Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). Thus, the plaintiff must allege that the charged official acted with a "sufficiently culpable state of mind." Id. (citing Wilson, 501 U.S. at 300). "'Deliberate indifference'" describes a mental state more blameworthy than negligence; but a plaintiff is not required to show that the defendant acted for the "'very purpose of causing harm or with knowledge that harm will result.'" Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003), cert. denied, 125 S. Ct. 971 (2005) (quoting Farmer, 511 U.S. at 835). A prison official does not act with deliberate indifference unless that 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 substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837; see also Hathaway, 37 F.3d at 66.

IV. Application of Law to Facts

A. Dr. Sommer's Personal Involvement

Defendant argues that Plaintiff has failed to allege that Dr. Sommer was personally involved in the alleged violations.

It is well established that respondeat superior does not provide a basis for liability in the Bivens context, and proof of a defendant's personal involvement is a prerequisite to damages. See Thomas v. Ashcroft, 470 F.3d 491, 498 (2d Cir. 2006) (concluding that plaintiff, who permanently lost his eyesight, had adequately alleged personal involvement of defendants in his deliberate medical indifference Bivens claim). To state the personal involvement of a supervisory defendant, a plaintiff must allege that the defendant: "(1) directly participated in the constitutional violation; (2) failed to remedy the violation after learning of it through a report or appeal; (3) created a custom or policy fostering the violation or allowed the custom or policy to continue after learning of it; (4) was grossly negligent in supervising subordinates who caused the violation; or (5) failed to act on information indicating that unconstitutional acts were occurring." Id. at 496-97 (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994)).

Defendant Sommer was the Clinical Director at FCI Otisville at the times relevant to this action and was Plaintiff's primary health care provider. Plaintiff alleges that Dr. Sommer was the individual at FCI Otisville responsible for implementing the medical care and recommended treatments, including treatments recommended by Dr. Kaplan, and that she was in a position to order Plaintiff's medical shoes and boots. (Am. Compl. ¶ 5.) Plaintiff further alleges that Dr. Sommer was fully aware that Plaintiff was being denied proper treatment, as evidenced by the fact that she personally signed off on his consultation request. (Am. Compl. ¶ 7.)

Plaintiff's allegations are sufficient, if presumed true, to demonstrate that Dr. Sommer was personally involved in the alleged constitutional violations.

B. Serious Medical Need

Defendant argues that Plaintiff's medical condition does not constitute a serious medical need and does not satisfy the objective component of the deliberate indifference standard. Defendant cites several cases in support of her argument. See, e.g., Shakur v. Furey, No. 08 Civ. 1187, 2010 WL 1416836, at *5 (D. Conn. Apr. 8, 2010) (granting summary judgment against a plaintiff with a leg length discrepancy because his preference for "corrective footwear over using a lift does not suffice to state an Eighth Amendment claim of deliberate indifference to medical needs"); Veloz v. New York, 35 F. Supp. 2d 305, 312 (S.D.N.Y. 1999) (prisoner's foot problem, which involved arthritis and pain, was not sufficiently serious); Cole v. Scully, No. 93 Civ. 2066, 1995 WL 231250, at *5 (S.D.N.Y. Apr. 18, 1995) (prisoner's delay in receiving special footwear while recovering from bunion surgery was not sufficiently serious). The Court approaches the analysis of these cases keeping in mind the Second Circuit's guidance that it "is a far easier task to identify a few exemplars of conditions so plainly trivial and insignificant as to be outside the domain of Eighth Amendment concern than it is to articulate a workable standard for determining seriousness at the pleading stage." Chance v. Armstrong, 143 F.3d 698, 702-03 (2d Cir. 1998) (internal citations and quotation marks omitted). Further recognizing the difference between disposing of a case on a Rule 12(b)(6) motion and resolving a case later in the proceedings, the Court concludes that the cases cited by Defendant are not controlling. See id. at 701.

Unlike the plaintiffs in Shakur and Veloz, Mr. Giambalvo alleges that he was actually prescribed a medical shoe by a specialist and that Defendant Sommer was deliberately indifferent to his receipt of this medical shoe. In Shakur, in contrast, "[t]he records consistently show[ed] that the examining podiatrist determined that the Plaintiff did not require special footwear. . . ." 2010 WL 1416836, at *5. Likewise, the Veloz plaintiff asserted that he was denied a course of treatment for his ankle that he believed to be the most appropriate, not that he was denied care that a doctor prescribed as appropriate. 35 F. Supp. 2d at 312 ("[T]he remaining of Veloz's complaints as to the care he received from Dr. Organ amount to a difference of opinion as to the correct course of treatment."). In fact, the doctor in Veloz specifically declined to provide the plaintiff "a wheel chair, crutches, or cane after the operation" so that plaintiff would remain "ambulatory after the surgery so as to avoid the stiffness and atrophy of disuse." Id. at 312. Here, however, it is alleged that Dr. Kaplan prescribed use of the medical shoes to reduce Plaintiff's pain and to reduce the possibility of amputation—facts that support an inference of a serious medical need.

Defendant also relies on Cole, where the plaintiff, who suffered from a bunion deformity, brought an Eighth Amendment claim after he was delayed in receiving special footwear. 1995 WL 231250, at *3. In Cole, the court held that the bunion deformity did not constitute a serious medical condition, noting that requiring plaintiff "to wear the wrong kind of shoes for a time as a matter of law does not demonstrate that he suffered from a 'condition of urgency, one that may produce death, degeneration, or extreme pain.'" Id. at *4 (quoting Hathaway, 37 F.3d at 66). Nevertheless, the nature of Mr. Cole's injury, a bunion requiring surgery, is different from the injury to Mr. Giambalvo's toe, which allegedly caused severe pain and possibly required amputation, and the denial of shoes in Mr. Giambalvo's situation has consequences of potentially much greater seriousness. Notably, the Cole opinion was issued after the close of discovery upon a complete factual record. Here, discovery has not yet started and may reveal relevant information about the extent of Plaintiff's pain or the degeneration of his condition.

Drawing all inferences in Plaintiff's favor, as the Court must, the Court concludes that Plaintiff has sufficiently alleged that he had a serious medical need. Plaintiff has alleged that he suffered severe and degenerative pain and that he had difficulty walking without medical shoes. Moreover, Plaintiff has alleged, and accompanying documents corroborate, that a specialist in podiatry recommended the use of medical shoes as a part of Plaintiff's treatment. In addition, Plaintiff alleged that as a result of the denial of the shoes, Plaintiff suffered with each step and sustained further injuries, resulting in a slip and fall accident and in Plaintiff's confinement to a wheelchair. Mobility is fundamental to our continued health, and the denial of reasonable care that could prevent the loss of the ability to circumambulate is indeed serious. The Court concludes that discovery could shed light on whether Plaintiff's medical need was of such seriousness and urgency that the failure to address it promptly amounted to a violation of Plaintiff's constitutional rights.

It is true, as Defendant argues, that Plaintiff has no constitutional interest in receiving a certain brand or type of medical shoe. See, e.g., Chance, 143 F.3d at 703. However, the gravamen of Plaintiff's complaint is not that he was denied a specific model of medical shoe, but that he was denied the necessary care that would have prevented degeneration of his condition. It remains to be shown (among other things) whether providing a pair of Timberland boots to an individual requiring a medical boot is adequate.

C. Dr. Sommer's Subjective Knowledge

As discussed above, an official is not deliberately indifferent unless she "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.

Plaintiff has adequately alleged that Dr. Sommer was aware of Plaintiff's requests for medical shoes and boots. Indeed, Plaintiff's repeated requests for these items are well documented. For example, Plaintiff submitted a grievance to Dr. Sommer dated January 2, 2008, to which Dr. Sommer responded "we either purchase shoes or boots but only one pair." (Ex. A-3). Yet, the purchase of these items was delayed.

The Court next considers whether there are allegations that Dr. Sommer knew or should have known that the delay risked substantial harm to Plaintiff. See Hathaway, 37 F.3d at 66. Plaintiff has alleged that Dr. Sommer failed to respond appropriately to his requests for proper footwear until ten months after she was first informed of his medical need. Dr. Sommer had been informed that Plaintiff was in a great deal of pain, that amputation of Plaintiff's toe might be necessary if other treatments continued to fail, and that a specialist in podiatry had recommended that Plaintiff wear a medical shoe. It is further alleged that Dr. Sommer did not allow Plaintiff to be provided with medical footwear until Plaintiff sustained further and serious injury.

Taking into account Plaintiff's pro se status, the Court concludes that Plaintiff has alleged sufficient facts to show that despite being aware of the harm to Plaintiff, Dr. Sommer failed to provide adequate medical care in deliberate indifference to Plaintiff's medical need.

D. Qualified Immunity

Defendant argues that Dr. Sommer is entitled to qualified immunity. Government officials "performing discretionary functions generally . . . are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Wilson v. Layne, 526 U.S. 603, 609 (1999) (internal quotation marks and citation omitted).

For qualified immunity to bar suit at the motion to dismiss stage, "[n]ot only must the facts supporting the defense appear on the face of the complaint, but, as with all Rule 12(b)(6) motions, . . . the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (citations omitted); accord Peoples v. Fischer, No. 11 Civ. 2694, 2012 WL 1575302, at *7 (S.D.N.Y. May 3, 2012).

As explained above, Plaintiff's allegations, construed in his favor, are sufficient to allege a violation of the "deliberate indifference" standard, which was sufficiently clearly established under the law at the time of the alleged events. Qualified immunity may be applicable in this case, but a determination must await factual development relating to whether and how defendant prison officials may have caused Plaintiff to suffer by depriving him of medical shoes and boots. Accordingly, Defendant's motion to dismiss Plaintiff's claims based on qualified immunity is denied.

V. Conclusion

For the foregoing reasons, Defendant's motion to dismiss is DENIED. Defendant shall file an answer to Plaintiff's amended complaint within four weeks from the issuance of this order.

The Clerk of Court is directed to close the motion at docket entry number 23. SO ORDERED. Dated: New York, New York

September 19, 2012

/s/_________

J. PAUL OETKEN

United States District Judge