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dismissing § 1983 for compensatory or punitive damages against DOCS and individual officers in their official capacities
Summary of this case from Mitchell v. AnnucciOpinion
01 Civ. 6933 (GEL)
July 29, 2002
Stephen Gowins, Stormville, NY, pro se.
Susan M. Barbour, Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, on the brief), New York, NY, for Defendants.
OPINION AND ORDER
Plaintiff Stephen Gowins, proceeding pro se and in forma pauperis, brings this action alleging that the defendants violated the Eighth and Fourteenth Amendments of the U.S. Constitution, Title II of the Americans With Disabilities Act, 42 U.S.C. § 12131 et seq., and section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The defendants have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) on grounds of Eleventh Amendment immunity and failure to state a claim upon which relief may be granted. In response, Gowins seeks leave to amend his complaint. For the reasons that follow, leave to amend the complaint will be granted, and the defendants' motion for judgment on the pleadings will be granted in part and denied in part.
BACKGROUND
I. Factual Background
The facts alleged in the complaint are assumed to be true for purposes of this motion. Gowins is an inmate incarcerated at the Green Haven Correctional Facility. Being paraplegic, Gowins is confined to a wheelchair and is assigned to the Unit for the Physically Disabled ("UPD"). (Amend. Compl. ¶¶ 4, 6, 14.) Defendants Charles Greiner, Gayle Haponik, Dr. Carl Koenigsmann, Dr. Lester Silver, Jeff Richards, and Richard Muller are all Green Haven officials and are employed by the New York Department of Correctional Services, which also is named as a defendant. The Green Haven officials are sued in both their individual and official capacities. (Amend. Compl. ¶¶ 7-13.)
The complaint incorrectly identifies this defendant as "Dr. Lester Silvers."
The allegations in the complaint concern two incidents in which Gowins claims to have been injured. First, Gowins alleges that he suffered third-degree burns to his foot on August 25, 2000, as a result of scalding hot water that leaked from a showerhead in the UPD. (Amend. Compl. ¶¶ 18, 21.) Gowins maintains that he and other inmates in the UPD previously had complained about the hazards posed by extremely hot water leaking from the showerheads in the unit, and that UPD officers had requested the showerheads to be repaired on numerous occasions. According to Gowins, medical personnel and other officials at Green Haven had considered the issue as early as December 1997, and Gowins himself had filed a formal grievance about the situation a year prior to being injured by the scalding water. (Amend. Compl. ¶¶ 15-21.) Upon suffering the third-degree burns, Gowins noticed swelling and blisters on his foot; UPD nursing staff immediately informed Dr. Koenigsmann, the facility's medical director, who summoned Gowins to the treatment room. (Amend. Compl. ¶ 22.) A nurse subsequently treated Gowins's foot in the days that followed. (Amend. Compl. ¶ 23.) At some later point, Gowins noticed green fungus, blisters, and tremendous swelling over and between all five of his toes and suffered from night sweating and constant headaches, and as a result, he requested to be interviewed by the resident physician. (Amend. Compl. ¶ 23.)
Accordingly, on September 14, 2000, Gowins was interviewed by Dr. Silver regarding these various conditions. (Amend. Compl. ¶ 24.) Gowins claims that Dr. Silver became hostile and aggravated on account of the previous grievance that Gowins had filed about the leaky showerhead. (Amend. Compl. ¶ 24.) Regarding Dr. Silver's treatment to be inadequate, Gowins filed a grievance against Dr. Silver on September 27, 2000. (Amend. Compl. ¶ 25.) According to Gowins, Dr. Silver was angered by this grievance and, as a result, included a portion of Gowins's medical record in his written response to the grievance without Gowins's consent, resulting in disclosure of Gowins's medical information to other inmates who worked in the Grievance Office. (Amend. Compl. ¶¶ 24, 27.)
Second, Gowins alleges that the defendants' failure to provide him "an accessible or accommodating bed specifically for his height and disabled needs" caused further injury to his foot. (Amend. Compl. ¶ 45.) Gowins is six feet, five inches tall, and the injury, which was the subject of a grievance he claims to have filed on November 10, 2000, resulted when his foot became caught between the gaps of the metal bedframe and the cinder block wall of his cell. (Amend. Compl. ¶ 29, 31.) When Gowins attempted to remove his foot from the gap, the edge of the bedframe cut the skin of his foot, causing sores, extensive bleeding, severe headaches, and night sweating. The nursing staff responded by providing him two pillows and "ordering" him to place those pillows on a small bookshelf approximately one foot from the end of the bed and to use that bookshelf as a footrest; Gowins maintains that this solution "made an (already) unsafe situation more hazardous and unsafe" and caused him further discomfort. (Amend. Compl. ¶¶ 34-35.)
Gowins claims to have complained to Dr. Koenigsmann and security personnel about the inadequate size of the bed and the hazards that it posed on a number of occasions and to have filed a grievance about that hazardous condition; he also maintains that the issue was considered by Green Haven officials as early as December 1999. (Amend. Compl. ¶¶ 29-31.)
While Gowins does not make clear whether this injury involved the same foot that was scalded by the leaky showerhead, he does refer to skin grafts on his foot that were "ripped open" when the foot became caught between the bedframe and the wall of the cell. (Amend. Compl. ¶¶ 31, 33).
II. Procedural History
Gowins filed this action on April 25, 2001, seeking monetary, equitable, and declaratory relief and alleging that the defendants violated (1) the Eighth and Fourteenth Amendments of the U.S. Constitution, by acting with deliberate indifference to a substantial risk of serious harm resulting from the failure to repair the leaky showerhead and to provide Gowins with adequate medical care; (2) the Due Process Clause of the Fourteenth Amendment, by disclosing a portion of his medical record without his consent, and (3) Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., and section 504 of the Rehabilitation Act, 29 U.S.C. § 794, by failing to provide a bed that suitably accommodates his height and disability. The complaint names the Green Haven officials as defendants in both their individual and official capacities and seeks compensatory and punitive damages and such further relief as the Court deems necessary.
The defendants filed an answer on January 14, 2002, and subsequently moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), arguing that Gowins's § 1983 claims are barred by the Eleventh Amendment and that the complaint fails to state a claim upon which relief may be granted. In response, Gowins now seeks leave to amend his complaint to substitute the New York State Department of Correctional Services ("DOCS") for the State of New York as a defendant; beyond this substitution of defendants, his proposed amended complaint does not seek to change his basic factual allegations or claims for relief in any material way. Accordingly, leave to amend the complaint is hereby granted. See Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999) ("relaxed standard" under Fed.R.Civ.P. 15(a) requiring that "leave to amend . . . be freely granted when justice so requires . . . applies with particular force to pro se litigants" (internal quotation marks and citations omitted)).
DISCUSSION
When adjudicating the defendants' motion for judgment on the pleadings under Fed.R.Civ.P. 12(c), "we apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations contained in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party." King v. American Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002). The "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotation marks and citations omitted). While the complaint must "give full notice of the circumstances giving rise to the plaintiffs claim for relief" it is not necessary that the plaintiff "also correctly plead the legal theory or theories and statutory basis supporting the claim." Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (quoting Marbury Mgmt., Inc. v. Kohn, 629 F.2d 705, 712 n. 4 (2d Cir. 1980)); See Brown v. Onconta, 235 F.3d 769, 783 (2d Cir. 2000) (Calabresi, J., dissenting from the denial of rehearing en banc) ("[A] statement of a specific legal theory is in no way needed for a pleading to survive a 12(b)(6) dismissal motion."). Moreover, "since most pro se plaintiffs lack familiarity with the formalities of pleading requirements, we must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency than we would when reviewing a complaint submitted by counsel." Lerman v. Bd. of Elections in City of New York, 232 F.3d 135, 139-40 (2d Cir. 2000). In order to justify dismissal of Gowins's pro se complaint, it must be "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 140 (internal quotation marks and citations omitted).
I. Eleventh Amendment Immunity
As a threshold matter, the defendants claim immunity from suit on account of the Eleventh Amendment to the U.S. Constitution, which provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." While the plain language of this constitutional provision creates no obstacle to Gowins's suit, which is brought by a citizen of New York against his own state and its officials, it is by now clear that the Supreme Court's Eleventh Amendment jurisprudence bears no relationship to the provision's text. See. e.g., Alden v. Maine, 527 U.S. 706, 714 (1999) (states' immunity from suit "neither derives from, nor is limited by, the terms of the Eleventh Amendment"); accord Fed. Mar. Comm'n v. S.C. State Ports Auth., 122 S.Ct. 1864, 1889 (2002) (Breyer, J., dissenting) (asserting that "interpretive principle" underlying Supreme Court's Eleventh Amendment jurisprudence "has no logical starting place"). Rather, notwithstanding the text of the Eleventh Amendment, the Supreme Court has declared a general principle of state immunity from private suit in federal court — whether by "Citizens of another State," "Citizens or Subjects of any Foreign State," or a state's own citizens — unless the state has consented to suit or Congress has explicitly and constitutionally abrogated the state's immunity. See e.g., Lapides v. Bd. of Regents of Univ. Sys. of Ga., 122 S.Ct. 1640, 1643 (2002); McGinty v. New York, 251 F.3d 84, 90-91 (2d Cir. 2001). "An official arm of the state," such as the New York State Department of Corrections, "enjoys the same Eleventh Amendment immunity from suit in federal court as is enjoyed by the state itself." Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999). If the suit seeks retrospective relief, such as damages, the state's immunity also is shared by state officers sued in their official capacities. However, the state's immunity is not shared by state officers to the extent that the suit seeks prospective injunctive or declaratory relief or seeks damages from the officers in their individual capacities. Ex parte Young, 209 U.S. 123, 159-60 (1908); see Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 122 S.Ct. 1753, 1760-61 (2002); Edelman v. Jordan, 415 U.S. 651, 664 (1974); Posr, 180 F.3d at 414; Ying Jing Gan v. City of New York, 996 F.2d 522, 529-30 (2d Cir. 1993).
Here, Gowins's complaint names as defendants DOCS, a state administrative agency, and a variety of Green Haven officials, all of whom are named in both their official and individual capacities. The foregoing rules make clear that Gowins cannot maintain a deliberate indifference claim under § 1983 for compensatory or punitive damages against DOCS or against the individual Green Haven officers in their official capacities. See Posr, 180 F.3d at 414. At the same time, Gowins is not barred by the Eleventh Amendment from proceeding under Ex parte Young to assert official capacity claims under § 1983 against the individual Green Haven officials for prospective injunctive or declaratory relief. Nor is Gowins barred from pursuing his claim for damages against the Green Haven officials in their individual capacities.
While Gowins's pro se complaint does not explicitly seek prospective injunctive relief, it does request declaratory relief and "such other and further relief as the Court deems necessary and/or in the interest of justice." (Amend. Compl. at 8-9). The Court construes the complaint's prayer for relief liberally to seek prospective injunctive relief to the extent that such relief may be available. See Lerman, 232 F.3d at 139-40 n. 3. Even if we were to give the complaint a more literal construction, the Court would still be obliged to afford the pro se plaintiff an "opportunity . . . to amend his complaint prior to dismissal for failure to state a claim, unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Cruz v. Gomez, 202 F.3d 593, 597-98 (2d Cir. 2000). Rather than forcing Gowins, the defendants, and the Court to go through the respective exercises of preparing, answering, and reviewing another amended complaint, both fairness and judicial efficiency dictate that we instead construe the pro se complaint liberally to raise the strongest arguments that it suggests.
With respect to Gowins's Rehabilitation Act and ADA claims, the underlying principles are more complicated. Under the law of this circuit, Gowins's damages claim against DOCS under the Rehabilitation Act is barred by the Eleventh Amendment altogether. Congress enacted the Rehabilitation Act pursuant to its authority under the Spending Clause, U.S. Const. art. I, § 8, cl. 1, and pursuant to that authority, Congress may require states to waive their immunity from suit as a condition of accepting those funds. See Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686-87 (1999); South Dakota v. Dole, 483 U.S. 203, 207 (1987). Indeed, Congress apparently amended the Rehabilitation Act in 1986, following the Supreme Court's decision in Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), for the very purpose of explicitly providing that a state "shall not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation of Section 504 of the Rehabilitation Act of 1973." Rehabilitation Act Amendments of 1986, § 1006, Pub.L. 99-506 (Oct. 21, 1986) (codified at 42 U.S.C. § 2000d-7).
However, notwithstanding the clarity both of this language and of Congress's authority under the Spending Clause, the Second Circuit recently concluded that acceptance of federal funds by New York "is not sufficient . . . to find that New York actually waived its . . . immunity" from suit under the Rehabilitation Act. Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 113 (2d Cir. 2001), reh'g denied, No. 00-9223 (2d Cir. Mar. 14, 2002). The Second Circuit held that while 42 U.S.C. § 2000d-7 constitutes a valid and clear "expression of Congress's intent to condition acceptance of federal funds on a state's waiver of its Eleventh Amendment immunity," New York nevertheless "ha[s] not knowingly waived its sovereign immunity from suit" because at the time it accepted those federal funds, New York did not even realize it might be immune because "by all reasonable appearances state sovereign immunity had already been lost." Id. at 113-15 (emphasis added).
Other circuits have not concurred in this view. See Douglas v. Cal. Dep't of Youth, 271 F.3d 812, 819 (9th Cir. 2001) (holding that states are subject to suit in federal court under Rehabilitation Act § 504 if they accept federal funds, and characterizing Rehabilitation Act as "classic example" of Congress properly conditioning states' receipt of federal funds upon waiver of sovereign immunity); Bell Atlantic Md., Inc. v. MCI WorldCom., Inc., 240 F.3d 279, 292 (4th Cir. 2001) (noting that it had "readily concluded" in recent prior case that "any State reading [ 42 U.S.C. § 2000d-7] would clearly understand that, by accepting [Rehabilitation Act] funding, it was consenting to resolve disputes regarding alleged violations of the Act's anti-discrimination provisions in federal court" (citation omitted)), rev'd on other grounds sub nom. Verizon Md., Inc. v. Pub. Serv. Com'n of Md., 122 S.Ct. 1753 (2002); Jim C. v. United States, 235 F.3d 1079, 1081 (8th Cir. 2000) (en banc) (holding that state agency waives immunity from suit in federal court under Rehabilitation Act by accepting federal funds); Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000) (Easterbrook, J.) (holding that the "Rehabilitation Act is enforceable in federal court against recipients of federal largess" since statute properly conditions states' receipt of funds upon waiver of immunity); Sandoval v. Hagan, 197 F.3d 484, 493 (11th Cir. 1999) (concluding that "plain language" of parallel provision in 42 U.S.C. § 2000d-7 "manifests an unmistakable intent to condition federal funds on a state's waiver of sovereign immunity" from suit under Title VI), rev'd on other grounds sub nom. Alexander v. Sandoval, 532 U.S. 275 (2001); cf. MCI Telecomms. Corp. v. Illinois Bell Tel. Co., 222 F.3d 323, 342-44 (7th Cir. 2000) (holding that states voluntarily waive immunity "by accepting the federal government's invitation to act as regulators of the local telephone market" under the Telecommunications Act of 1996). While the Fifth Circuit has reached the same conclusion as the Second Circuit, that court only considered the Rehabilitation Act as an enactment pursuant to section 5 of the Fourteenth Amendment, concluding that the parties had waived any arguments relying on the Spending Clause. Reickenbacker v. Foster, 274 F.3d 974, 984 (5th Cir. 2001). See also Lane v. Pefia, 518 U.S. 187, 200 (1996) (noting "the care with which Congress responded to our decision in Atascadero by crafting an unambiguous waiver of the States' Eleventh Amendment immunity in [ 42 U.S.C. § 2000d-7]").
Nor is it altogether clear why New York's continued acceptance of federal funds does not now operate as a waiver of the state's immunity from suit in federal court. Surely, now that the Second Circuit has explained to the state of New York the unmistakable clarity with which Congress has expressed its intent to condition New York's acceptance of federal funds upon its waiver of immunity, Garcia, 280 F.3d at 113, continued acceptance of those funds can only be understood as the "intentional relinquishment or abandonment of a known right or privilege." Coll. Sav. Bank, 527 U.S. at 682 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); cf. Zerbst, 304 U.S. at 464 ("The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case."). Nevertheless, this Court is of course bound by the Second Circuit's decision in Garcia until it is reversed or overruled.
By contrast, Gowins's damages claim against DOCS under Title II of the ADA is not altogether barred by the Eleventh Amendment, although the Eleventh Amendment does place severe limits on his ability to assert that claim. As with the Rehabilitation Act, there is no question that Congress unequivocally intended Title II, which was enacted pursuant to Congress's authority under both the Commerce Clause, U.S. Const. art. I., § 8, cl. 3, and the Fourteenth Amendment, to abrogate state immunity from suit. See 42 U.S.C. § 12202 ("A State shall not be immune under the eleventh amendment . . . from an action in [a] Federal or State court of competent jurisdiction for a violation of this chapter"). Nevertheless, the Second Circuit has applied the one-two punch of Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72-73 (1996), which holds that Congress may not base its abrogation of the state's Eleventh Amendment immunity upon the powers enumerated in Article I, and City of Boerne v. Flores, 521 U.S. 507, 520 (1997), which sharply constrains the ability of Congress to enact legislation pursuant to its authority under section 5 of the Fourteenth Amendment, to limit the extent to which Title II may be applied to the states. See Garcia, 280 F.3d at 108-11. The net result of the Second Circuit's decision is that Gowins only can maintain his claim against DOCS under Title II of the ADA to the extent that the alleged violation "was motivated by discriminatory animus or ill will based on the plaintiffs disability." Id. at 111. But see Hason v. Med. Bd. of Cal., 279 F.3d 1167, 1171 (9th Cir.) (reaffirming circuit precedent holding that Title II constitutes a valid abrogation of state immunity), reh'g en banc denied, ___ F.3d ___, 2002 WL 1371054 (9th Cir. Jun. 26, 2002); Popovich v. Cuvahoga County Court of Common Pleas, 276 F.3d 808, 812, 813-16 (6th Cir. 2002) (en banc) (concluding Title II does not constitute a valid abrogation of state immunity under the Equal Protection Clause, but does constitute a valid abrogation of immunity under the Due Process Clause), petition for cert. filed, 70 U.S.L.W. 3656 (Apr. 8, 2002) (No. 01-1503).
Accordingly, Gowins may not sue DOCS under § 1983 or the Rehabilitation Act at all, and may sue DOCS under the ADA only to the extent that the alleged violation resulted from discriminatory animus based on his disability. To the extent that Gowins seeks prospective injunctive or declaratory relief from the Green Haven officials in their official capacities, his claims under § 1983, the Rehabilitation Act, and the ADA all may proceed under Ex parte Young to the extent such relief may be available. Posr, 180 F.3d at 414; Garcia, 280 F.3d at 115 see also Bd. of Trustees of the Univ. of Ala. v. Garrett, 121 S.Ct. 955, 968 n. 9 (2001). Finally, Gowins may seek damages under § 1983 from the Green Haven officials in their individual capacities, but under the Second Circuit's decision in Garcia, he may not sue those officials in their individual capacities for damages under either the Rehabilitation Act or Title II of the ADA. Garcia, 280 F.3d at 107; Hallett v. New York State Dep't of Corrs., 109 F. Supp.2d 190, 199-200 (S.D.N.Y. 2000).
II. Failure to State a Claim
A. Deliberate Indifference
The Eighth Amendment's prohibition of "cruel and unusual punishments" requires prison officials to "take reasonable measures to guarantee the safety of the inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). "A prison official's `deliberate indifference' to a substantial risk of serious harm to an inmate violates the Eighth Amendment," whether that harm results from inadequate medical care or the denial of humane conditions of confinement. Farmer v. Brennan, 511 U.S. 825, 828 (1994); see Estelle v. Gamble, 429 U.S. 97, 104-105 (1976) ( Eighth Amendment prohibits "deliberate indifference to serious medical needs of prisoners," whether "manifested by prison doctors in response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed"). In order to prevail on a claim for "deliberate indifference" under the Eighth Amendment, a prisoner must prove (1) that "the alleged deprivation [is] . . . in objective terms, "sufficiently serious,'" and (2) that the defendants "act[ed] with a sufficiently culpable state of mind.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)); see also Farmer, 511 U.S. at 837 (holding that "deliberate indifference" exists only if prison 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 must also draw that inference").
1. Individual Capacity Claims Against the Green Haven Officials
In order to prevail in an action for damages in an individual capacity claim under § 1983, a plaintiff must establish the defendant's personal involvement in the constitutional violations alleged. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983") (internal quotation marks and citations omitted). A plaintiff must "allege a tangible connection between the acts of the defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). Supervisory officials cannot be held liable under § 1983 solely for the acts of their subordinates, See Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 691 (1978), but may be found personally involved by evidence of their (1) direct participation in the alleged constitutional violation; (2) failure to remedy a wrong after learning of it; (3) creation or maintenance of a policy under which unconstitutional acts occurred; (4) gross negligence in managing subordinates who committed the unconstitutional acts; or (5) deliberate indifference by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Prison officials may not "be held personally responsible simply because [they were] in a high position of authority in the prison system." Wright, 21 F.3d at 501; see also McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1978) ("The fact that [supervisory defendant] was in a high position of authority is an insufficient basis for the imposition of personal liability").
Here, Gowins maintains that the defendants acted with deliberate indifference to his well-being in violation of the Eighth Amendment by failing to repair the leaky showerhead and adequately to treat his injuries. Accepting the allegations in his complaint as true for the purposes of deciding this motion, the Court assumes arguendo that the injuries suffered by Gowins are, "in objective terms, `sufficiently serious" to give rise to an Eighth Amendment claim. Chance, 143 F.3d at 702-03; see also Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000) (since medical conditions "vary in severity . . . a decision to leave a condition untreated will be constitutional or not depending on the facts of the particular case"). However, the complaint does not sufficiently allege that defendants Greiner, Haponik, Richards, or Muller were in any way personally involved with the acts or omissions of which Gowins complains. Indeed, Gowins makes no factual allegations at all concerning Haponik, Richards, and Muller, and his only reference in the complaint to Greiner merely notes Gowins's appeal to Greiner of his grievance concerning the leaky showerhead (Amend. Compl. ¶ 20), which is not itself sufficient personal involvement to support a claim against him under § 1983. Accordingly, Gowins's individual capacity claim for deliberate indifference will be dismissed as to defendants Greiner, Haponik, Richards, and Muller on the ground that the complaint does not state any personal involvement by those defendants in the alleged Eighth Amendment violations.
With respect to defendants Koenigsmann and Silver, Gowins has sufficiently alleged their personal involvement with the constitutional violations that he claims. Gowins maintains that the hazards allegedly posed by the leaky showerhead were considered at a December 1997 meeting of the "Inter-Disciplinary Committee" — a body that Gowins alleges to have been coordinated by Koenigsmann, the Green Haven medical director, and other Green Haven medical personnel — but that no action was taken in response. (Amend. Compl. ¶ 16.) To the extent that it states that Koenigsmann failed to remedy these alleged wrongs after learning of its existence, the complaint sufficiently alleges Koenigsmann's personal involvement. See Colon, 58 F.3d at 873. With respect to the allegedly inadequate treatment of his injuries, Gowins's allegations of personal involvement are even more direct, since he contends that he was summoned to the treatment room by Koenigsmann and actually treated for his injuries by Silver. (Amend. Compl. ¶¶ 22-27.)
Defendants' motion therefore reduces to the question of whether the complaint sufficiently alleges that Koenigsmann and Silver knew of and disregarded the plaintiffs serious medical needs. It is clear that "mere disagreement over the proper treatment" is insufficient to state a claim for deliberate indifference — "[s]o long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance, 143 F.3d at 703. Nor does a prison physician's negligence, without more, constitute an Eighth Amendment violation — even if the physician's negligence constitutes medical malpractice. Id.; Hathaway, 99 F.3d at 553. At the same time, "certain instances of medical malpractice may rise to the level of deliberate indifference . . . when the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces a substantial risk of serious harm.'" Hathaway, 99 F.3d at 553. see Chance, 143 F.3d at 703 (deliberate indifference may arise from physician's conscious choice of "`an easier and less efficacious' treatment plan" (quoting Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974)).
Whether a course of treatment by prison physicians "was the product of sound medical judgment, negligence, or deliberate indifference depends on the facts of the case." Chance, 143 F.3d at 703. Here, Gowins alleges that through his participation on the "Inter-Disciplinary Committee," Koenigsmann knew about the hazards allegedly presented by the showerhead, but deliberately chose not to act; he further alleges that Silver provided inadequate treatment of his injuries, and that Silver was not merely negligent but "hostile" and "spiteful" towards Gowins on account of his grievance. Bearing in mind our obligation to construe Gowins's pro se complaint liberally, Lerman v. Bd. of Elections in City of New York, 232 F.3d 135, 139-40 (2d Cir. 2000), these allegations are sufficient to state a claim under the Eighth Amendment. Whether or not Gowins ultimately "will be able to prove his allegations," judgment on the pleadings at this stage of the litigation would be premature, since it is not yet "beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him to relief." Chance, 143 F.3d at 704.
Accordingly, the defendants' motion will be granted as to Gowins's individual capacity claim for deliberate indifference against Greiner, Haponik, Richards, and Muller, but not as to the individual capacity claim against Koenigsmann and Silver.
2. Official Capacity Claims Against the Green Haven Officials
As discussed above, Gowins's complaint seeks declaratory relief as well as damages from the defendants, and the Court liberally construes his pro se complaint to seek injunctive relief to the extent that any such relief may be available. Injunctive relief may be obtained in a § 1983 action for deliberate indifference to a substantial risk of serious harm — even absent an official's personal involvement — if the complaint alleges that the official had "responsibility to ensure that prisoners' basic needs were met, and the complaint adequately alleged deliberate indifference" to a substantial risk of serious harm. Koehl v. Dalsheim, 85 F.3d 86, 88-89 (2d Cir. 1996); see Davidson v. Scully, 148 F. Supp.2d 249, 254 (S.D.N.Y. 2001) (collecting cases). Here, Gowins alleges that all of the defendants, including the four supervisory defendants as well as the two physicians, Koenigsmann and Silver, were aware of the hazardous conditions allegedly created by the showerhead and the failure to provide adequate medical care for his injuries, and while the complaint does not specifically so allege, it is clear from the complaint that the supervisory defendants are ultimately responsible for the actions of their subordinates at Green Haven. Accordingly, if Gowins is able to prove his contentions regarding the seriousness of the alleged deprivations and the state of mind of the defendants, he may well be entitled to injunctive or declaratory relief. Koehl, 85 F.3d at 89.
Accordingly, Gowins's official capacity claim for deliberate indifference against the Green Haven officials may proceed, and the defendants' motion is denied as to that claim.
0f course, if the evidence later establishes that the allegedly hazardous showerhead has been repaired by DOCS officials, so as to eliminate the alleged hazard, then Gowins's official capacity claim for prospective relief may well turn out to be moot.
B. Right to Confidentiality
Gowins also claims that Silver "spitefully and without plaintiffs permission or consent, submitted a portion of his medical record with his response" to Gowins's grievance. (Amend. Compl. ¶ 27.) Construing the complaint liberally to assert that Silver's conduct violated Gowins's right to privacy or confidentiality under the Fourteenth Amendment, the complaint fails to state a claim upon which relief may be granted. Without question, the Due Process Clause of the Fourteenth Amendment protects inmates such as Gowins from the unwanted disclosure of "information relating to the status of one's health." Doe v. City of New York, 15 F.3d 264, 267 (2d Cir. 1994). Prison officials may "impinge on that right only to the extent that their actions are "reasonably related to legitimate penological interests.'" Powell v. Schriver, 175 F.3d 107, 112 (2d Cir. 1999). In this case, Gowins alleges that Silver "submitted a portion of [Gowins's] medical record in response" to a grievance asserting that Silver's treatment had been inadequate" and that Silver did "not want to treat [Gowins] and his injuries," and that as a result, inmates who worked in the prison's Grievance Office may have had access to his medical information. (Amend. Compl. ¶¶ 25, 27.) However, having placed his medical condition at issue by filing a grievance alleging inadequate medical care, Gowins cannot be heard now to complain that in response to that grievance, the treating physician included not only an explanation of how he treated Gowins, but also relevant documentation from Gowins's medical record to support his version of events. Such disclosure is reasonably related to the legitimate penological interest of adjudicating Gowins's grievance and establishing whether or not the medical care he received was adequate. Accordingly, the defendants' motion will be granted as to Gowins's right to privacy claim.
C. Rehabilitation Act and Americans With Disabilities Act
Gowins finally claims that the defendants' failure to respond and to correct the hazardous conditions that he identifies constitutes a violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and Title II of the ADA, 42 U.S.C. § 12131 et seq. (Amend. Compl. ¶¶ 28-35, 43-47.) As discussed above, notwithstanding the Eleventh Amendment, both the Rehabilitation Act claim and the ADA claim may proceed under Ex parte Young as claims for prospective injunctive relief against the individual Green Haven officials named in their official capacities.
While the ADA claim also may proceed against DOCS (and the individual Green Haven officials in their official capacities) for damages to the extent that the violations that Gowins alleges were "motivated by discriminatory animus or ill will based on the plaintiffs disability,"
Section 504 of the Rehabilitation Act and Title II of the ADA provide similar substantive protections to prisoners with disabilities. See. e.g., Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995). To state a claim for relief under the Rehabilitation Act, a prisoner must establish that (1) he is a "qualified individual with a disability" within the meaning of the statute; (2) he is "otherwise qualified" to participate in the program or activity in question, or to enjoy the services or benefits being offered; (3) he is being excluded from participation or enjoyment solely by reason of his disability; and (4) the entity denying the inmate participation or enjoyment receives federal financial assistance. 29 U.S.C. § 794 (a); Clarkson, 898 F. Supp. at 1036. Similarly, to state a prima facie claim for relief under Title II of the ADA, a prisoner must show that (1) he is a "qualified individual with a disability" within the meaning of the statute; (2) he is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his disability; and (3) the entity that provides the service, program, or activity is a public entity. Clarkson, 898 F. Supp. at 1037; see also 42 U.S.C. § 12132.
As a "wheelchair bound physically disabled individual," Gowins certainly is covered by the protections of the Rehabilitation Act and Title II of the ADA. See 42 U.S.C. § 12102 (2)(A) (ADA provision defining an individual's disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual"); 29 U.S.C. § 706 (8)(B)(i) (Rehabilitation Act provision defining a person's disability as "a physical or mental impairment which substantially limits one or more of such person's major life activities"). However, the conduct of which he complains does not appear to bear any relationship to that Garcia, 280 F.3d at 111, Gowins does not allege that these violations resulted from any such ill will or discriminatory animus and, therefore, fails to state a claim for relief on that basis. disability. Gowins concedes that the alleged inadequacy of his prison bed derives primarily from his six-foot five-inch height, which resulted in his feet hanging over the edge of the bed and becoming caught between the gaps between the bedframe and the cinder block wall of his cell. (Compl. ¶¶ 28, 30, 41.) And a person's height is not ordinarily an "impairment" covered as a disability by the Rehabilitation Act or the ADA. As the Second Circuit has observed, "but is important to distinguish between conditions that are impairments and physical, psychological, environmental, cultural and economic characteristics that are not impairments." Francis v. City of Meriden, 129 F.3d 281, 284 (2d Cir. 1997) (quoting EEOC interpretive guidance to ADA regulations). Under both the ADA and the Rehabilitation Act, "[t]he definition of the term `impairment' does not include physical characteristics such as eye color, hair color, lefthandedness, or height, weight or muscle tone that are within "normal" range and are not the result of a physiological disorder." Id. at 284; see also Andrews v. Ohio, 104 F.3d 803, 808 (6th Cir. 1997) ("[P]hysical characteristics that are "not the result of a physiological disorder' are not considered `impairments' for the purposes of determining actual or perceived disability" (citation omitted)). While Gowins also alleges that the bed did not sufficiently accommodate his "disabled needs," Compl. ¶ 41, the complaint is devoid of any factual allegations indicating why or how the bed was inadequate on account of his disability, rather than his height. Accordingly, the defendants' motion will be granted as to Gowins's claims under the Rehabilitation Act and Title II of the ADA.
There is no need, therefore, to address the defendants' additional contention that Gowins's allegations concerning the inadequacy of his bed fail to state a claim concerning the denial of "the benefits of some service, program, or activity" within the meaning of the ADA, 42 U.S.C. § 12132. (Def. Br. 18-19.).
CONCLUSION
Accordingly, for the foregoing reasons, the defendants' motion for judgment on the pleadings is DENTED as to (1) Gowins's claim under § 1983 and the Eighth Amendment against Koenigsmann and Silver in their individual capacities, and (2) to the extent that it seeks prospective injunctive or declaratory relief his claim under § 1983 and the Eighth Amendment against Greiner, Haponik, Richards, Muller, Koenigsmann, and Silver in their official capacities. The defendants' motion is GRANTED as to all other claims.SO ORDERED: