Summary
finding chronic pain during nine-month delay of surgery for hernia sufficient to support assumption that inmate suffered from serious medical condition on motion to dismiss
Summary of this case from Solek v. WallaceOpinion
09 Civ. 9924 (PKC) (JCF)
03-19-2012
KEVIN V. BYNG, Plaintiff, v. DR. LESTER WRIGHT, CHIEF MEDICAL OFFICER, et al., Defendants.
MEMORANDUM AND ORDER
:
Plaintiff Kevin V. Byng, proceeding pro se, brings this action pursuant to 28 U.S.C. § 1983 against various employees of the New York State Department of Correctional Services ("DOCS") in their individual and official capacities. Byng alleges that while he was incarcerated at Fishkill Correctional Facility ("Fishkill"), the defendants violated his constitutional rights by failing to attend to his medical needs. The defendants move for summary judgment under Rule 56, FED. R. CIV. P. For the reasons set forth below, the motion is granted.
BACKGROUND
The following facts are either undisputed or described in the light most favorable to the plaintiff. See, e.g., Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011). Plaintiff Kevin Byng was an inmate at Fishkill from June 2007 to February 2009. (Defs.' 56.1 ¶ 5; Pl.'s 56.1 Resp. ¶ 5.) Fishkill is a medium-security prison in the DOCS system. The four named defendants were DOCS prison officials at all times relevant to this action. Lester N. Wright, M.D., M.P.H. ("Dr. Wright") was the Deputy Commissioner and Chief Medical Officer of DOCS. (Wright Decl. ¶ 1.) Harry Mamis, M.D. ("Dr. Mamis") was a physician at Fishkill. (Mamis Decl. ¶ 1.) Mary D'Silva, D.D.S. ("Dr. D'Silva") was the State Dental Director of DOCS. (D'Silva Decl. ¶ 1.) Mahammed Samad, D.D.S. ("Dr. Samad") was a dentist at Fishkill. (Samad Decl. ¶ 1.) Byng's allegations arise from the defendants' failure to provide him adequate medical and dental care during his confinement at Fishkill. The Court reviews Byng's pertinent medical and dental conditions as they relate to each defendant below.
Byng also named as defendant Dr. Denise Williams. (Am. Compl. ¶ 11.) Byng withdrew his claim against Dr. Williams in his opposition to this motion, stating that he "can not [sic] prove deliberate indifference against" her. (Pl.'s Mem. L. Opp. at 16.) Accordingly, the Court dismisses Byng's Amended Complaint as against Dr. Williams.
I. Medical Conditions
a. Hepatitis C
Byng suffers from several medical conditions, including Hepatitis C, neutropenia, chronic fatigue syndrome, and chronic pain in the right upper quadrant of his abdomen. (Byng Aff. ¶¶ 3, 4.) Byng's allegations against Dr. Wright arise from two instances in which Dr. Wright denied Byng's requests for Hepatitis C treatment.
Hepatitis C ("HCV") is a viral infection of the liver. (Korsten Decl. ¶ 3.) Byng was first diagnosed with HCV in November 2004. (Byng Dep. at 38-39.) From April 2005 through March 2006, Byng underwent Rebetron therapy for HCV while incarcerated at another DOCS facility. (Id. at 41-42.) Rebetron therapy is a combination of Ribavirin pills and injections of Interferon. (Wright Decl. ¶ 3.) Byng's therapy was complicated by neutropenia, a chronic deficiency in a person's white blood cell count. Byng's physician ceased the treatment for one week on three separate occasions during the forty-eight week cycle due to Byng's low white blood cell counts. (Kim Decl. Ex. D at 30, 158, 171-73.) Byng completed his Rebetron cycle in April 2006. (Pl.'s 56.1 Resp. ¶ 5.)
After being incarcerated at Fishkill, Byng sought retreatment for his HCV. On September 27, 2007, Byng requested retreatment from his physician, Dr. Mamis. (Mamis Decl. ¶ 3.) Dr. Mamis recorded the request in Byng's medical records and noted that Byng's prior Rebtron cycle was complicated by a low white blood cell count. (Kim Decl. Ex. D at 38.) Dr. Mamis then referred Byng to an infectious disease specialist, Dr. Charles Rush, who recommended that Byng receive Rebatron therapy. (Korsten Decl. ¶ 6; Byng Dep. at 49.)
As Byng had requested, Dr. Mamis sought approval from Dr. Wright to treat Byng's HCV on October 26, 2007. (Mamis Decl. ¶ 6.) Dr. Wright's approval was required for an inmate to receive HCV treatment. (Wright Decl. ¶ 6.) The request Dr. Mamis submitted to Dr. Wright included Byng's August 2007 blood test results and a summary of his prior Rebetron cycle. (Kim Decl. Ex. D at 68-71.) Dr. Mamis also wrote to Dr. Wright that Byng's prior Rebetron cycle contained "multiple stops and starts due to low [white blood cell counts]" and that Byng "chronically refused" his neutropenia medication. (Id. Ex. E at 375-76.)
Dr. Wright denied the request. In an electronic reply to Dr. Mamis on October 29, 2007, Dr. Wright stated that Byng's prior treatment was a "failure," that his current ALT was normal, and that his Absolute Neutrophil Count ("ANC") was "below the minimum" level of 1,000. (Id. at 376.) DOCS' Hepatitis C Primary Care Practice Guideline ("HCV Guidelines") identified elevated ALT and an ANC higher than 1,000 as criteria for HCV treatment. (Id. Ex. F.) Byng's August 2007 blood test results confirm the data upon which Dr. Wright based his decision. (Id. Ex. E at 376; Korsten Decl. ¶ 7.)
Byng again sought retreatment in September 2008. (Kim Decl. Ex. D at 81.) During an examination, Dr. Rush observed that Byng's viral load "[w]as climbing rapidly" and recommended retreatment, stating that he "believe[d] an attempt [at] retreatment. . . is easily justifiable, i.e. there is a reasonable chance of success." (Id. at 81, 88.) Byng also contacted two outside physicians who both recommended treatment. (Pl.'s Mem. L. Opp. Ex. B24-B26.) One of the physicians, Dr. Gabriel Ionescu, M.D., a liver specialist, opined that "[i]f there is a good time to treat, it is now." (Id. at B26.) Based on Dr. Rush's consultant report, Byng's physician submitted another electronic treatment request to Dr. Wright on October 9, 2008. (Wright Decl. ¶ 9.) Dr. Edward Sottile, a supervising DOCS physician, also approved the request.
Dr. Wright again denied the request. Acknowledging that Byng's "prior treatment apparently was successful" and that he had a "large viral load," Dr. Wright cited Byng's "normal" ALT level as grounds for denial. (Pl.'s Mem. L. Opp. Ex. B27.) Dr. Wright instead recommended "monitor[ing]" Byng's ALT levels every six months. (Id.) On November 3, 2008, Byng was told of the denial and that Dr. Wright "would like his ALT monitored every six months . . . if it changes to above normal." (Kim Decl. Ex. D at 24.) At this time, the FDA had not approved any course of retreatment for HCV patients who had relapsed after undergoing prior Rebetron therapy. (Id. Ex. F.)
Following Byng's release from Fishkill, he began a cycle of Rebetron therapy at a private facility in May 2010. (Pl.'s 56.1 Resp. ¶ 10; Korsten Decl. ¶ 9.) However, Byng terminated the treatment after one month due to nausea, chills, headaches, and vomiting. (Byng Dep. at 57.) Thereafter, Byng neither sought nor underwent further HCV treatment. (Id.)
b. Right Inguinal Hernia
Byng suffers from chronic pain in the upper right quadrant of his abdomen ("RUQ"). (Byng Aff. ¶ 5.) Byng's allegations against Dr. Mamis arise in part from inadequate treatment Byng received for his RUQ.
Dr. Mamis first saw Byng on September 27, 2007 at which Byng alleges complaining of RUQ pain. (Pl.'s 56.1 Resp. ¶ 16.) Dr. Mamis recorded in Byng's medical records that Byng made a "routine visit" seeking retreatment for HCV, but did not record Byng's alleged RUQ complaint. (Kim Decl. Ex. D at 38.) Dr. Mamis next saw Byng on November 2 where Byng complained of RUQ pain, a bloated stomach, and a sore right thumb. (Byng Dep. at 48; Mamis Decl. ¶ 9.) Dr. Mamis scheduled an x-ray on Byng's right thumb, but did not order x-rays or further treatment on Byng's hernia-related pain. (Mamis Decl. ¶ 9; Kim Decl. Ex. D at 36.) Byng's medical records show that he complained of RUQ pain to other physicians on at least four prior occasions, including October 29, 2007. (Kim Decl. Ex. D at 37, 38-40.)
Dr. Mamis next saw Byng on January 3, 2008, this time finding a "questionable right inguinal hernia" and ordering a surgery consultation. (Id. at 34.) Byng then saw a surgeon who recommended surgery. (Pl.'s Mem. L. Opp. Ex. A3.) Dr. Mamis last saw Byng on February 15 when he prescribed Byng Ibuprofen to alleviate his hernia pain. (Kim Decl. Ex. D at 33.) Byng underwent hernia surgery on March 7, 2008. (Id. at 6-8.)
During this period, Byng submitted at least four requests that Dr. Mamis be replaced as his primary physician. (Pl.'s Mem. L. Opp. Ex. A10-A11.) Dr. Edward Sottile, a Medical Director at Fishkill, ultimately interviewed Byng about his complaints and replaced Dr. Mamis on March 31, 2008 "to prevent any further problems." (Kim Decl. Ex. D at 323.) Byng testified that he still experiences "chronic, at time severe" pain in his RUQ. (Byng Aff. ¶ 5.)
c. Neutropenia
Byng also alleges that Dr. Mamis failed to adequately attend to Byng's neutropenia, a chronic deficiency in a person's white blood cell count. (Mamis Decl. ¶ 4.) While previously incarcerated at another DOCS facility, Byng was prescribed Neupogen to medicate his neutropenia but refused to take it on multiple occasions because it caused him nausea, fatigue, migraine headaches, insomnia, and itching. (Byng Dep. at 38-39, 41-42.) Byng's medical records show that during his November 2, 2007 appointment with Dr. Mamis, Byng asked to see Dr. Rush regarding his neutropenia. (Kim Decl. Ex. D at 35.) Dr. Mamis denied the request, writing in Byng's medical record that there was "no reason" to see Dr. Rush. (Id.) Dr. Mamis testified that he based his denial on Byng's August 2007 blood test results, which showed a stable neutrophil count of 984. (Mamis Decl. ¶ 13; Kim Decl. Ex. D at 68-71.)
II. Dental Conditions
Byng's remaining allegations regard inadequate dental care. Byng alleges that Dr. D'Silva failed to promptly schedule extraction of two of Byng's teeth, and that Dr. Samad physically harmed Byng during a dental appointment. At all relevant times, Fishkill maintained a dental clinic from 8:00 AM to 12:00 PM every weekday. (D'Silva Decl. ¶ 10.) To enter the dental clinic, an inmate needed a Sick Call pass from his housing officer. (Id.) Fishkill also maintained a medical clinic wherein an inmate could receive dental care when the dental clinic was closed. (Id. ¶ 11.) As with the dental clinic, an inmate seeking dental care needed to obtain a Sick Call pass from his housing officer. (Id.) Byng alleges that housing officers "regularly" denied requests for a Sick Call pass and that the usual "process" was to complete an Inmate Request for Dental Services ("IRDS") form and submit it to the dental clinic. (Byng Aff. ¶ 8.)
Byng first received dental treatment on January 7, 2008, visiting the dental clinic during Sick Call. (Kim Decl. Ex. G at 389.) Byng complained of a cavity in tooth #15 and a crack in tooth #2. (Id.) Dr. Ahmed, the attending dentist, noted in Byng's dental record that tooth #15 was "non-restorable" and recommended extraction of both teeth. (Pl.'s Mem. L. Opp. Ex. C1.) The dental record does not indicate that Byng complained of any pain, and no further treatment was scheduled. (Id.)
In the months that followed, Byng wrote to DOCS a series of complaints regarding his two cracked teeth. Byng's dental records show DOCS received at least four complaints: an Inmate Request for Dental Services ("IRDS") dated March 16, an Inmate Request Form ("IRF") dated July 7, an IRDS dated November 25, and an IRF dated December 24, 2008. In his July 7 IRF, Byng stated that he had "been waiting for months" for extraction of his two cracked teeth. (Kim Decl. Ex. D at 272-73; id. Ex. G at 393-94.) In his November 25 IRDS, Byng reiterated that he had "been filling out these requests for over (6) months." (Id. Ex. G at 382.) These four complaints were all stamped "Received" by Fishkill's Dental Department. Byng also wrote a letter to Fishkill's Grievance Office on December 1, 2008 alleging his complaints were being "intentionally ignored." (Id. Ex. D at 308-09.) Byng also alleges that he wrote at least seven complaints in addition to the four received by DOCS and filed in his dental record, including a letter to D'Silva dated August 14, 2008. (See, e.g., Pl.'s Mem. L. Opp. Ex. C3-C6, C8, C10, C22.)
In response to Byng's complaints, Fishkill's dental clinic scheduled an appointment and sent to Byng at least five written memoranda. Byng received a memo on April 9, 2008 stating "Appointment Scheduled," and another on June 10, 2008 confirming that Byng was "already on [the] list because of [Byng's] previous request." (Id. Ex. C7, C9.) Another memo dated August 19 advised Byng to notify his unit officer on his "next sick call day" to receive treatment. (Id. Ex. C11.) Byng was further told on December 8 that he was "scheduled for a dental appointment in the near future" and received another memo on December 23 reiterating that he was "already" scheduled for an appointment. (Id. Ex. C18; Kim Decl. Ex. D at 311.) Karen Bellamy, an official of DOCS' Central Office Review Committee, wrote to Byng in January 2009 that any delay "was due to staff shortages." (Pl.'s Mem. L. Opp. Ex. C16.)
Byng was next seen on January 2, 2009, again visiting the dental clinic during Sick Call. (Id. Ex. C1.) Byng alleges Dr. Samad, the attending dentist, "intentionally banged" on one of his teeth using a metal instrument. (Samad Decl. ¶ 5.) Byng further alleges that Dr. Samad "yanked" his neck backward and told Byng to "shut up." (Id. ¶ 6.) Byng detailed his allegations against Dr. Samad in a grievance letter. (Pl.'s Mem. L. Opp. Ex. C14-C15.) Byng's dental record shows that the appointment resulted in Dr. Samad taking x-rays of Byng's two affected teeth and Byng "le[aving] without asking [Dr. Samad] anything." (Id. Ex. C1.)
The dental appointment DOCS had scheduled for Byng occurred on January 7, 2009. (Defs.' 56.1 ¶ 22; Pl.'s 56.1 Resp. ¶ 22.) Dr. Williams administered anesthesia and extracted the root of plaintiff's tooth #2. (D'Silva ¶ 7.) Dr. Williams also prescribed Motrin for Byng's pain and scheduled a follow-up appointment. (Id.) Byng attended his follow-up appointment, but refused treatment because he did "not feel well, [was] sick to [his] stomach and ha[d] a migraine headache." (Kim Decl. Ex. D at 263.) Byng did not seek further treatment and later removed "what was left" of tooth #15 himself using a pair of pliers. (Pl.'s 56.1 Resp. ¶ 20.)
GOVERNING LAW
I. Summary Judgment Standard
Summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), FED. R. CIV. P. It is the initial burden of a movant to come forward with evidence on each material element of his claim or defense sufficient to demonstrate that he is entitled to relief as a matter of law. See Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts showing that there is a genuine issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
A fact is material if it "might affect the outcome of the suit under the governing law," meaning that "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the non-moving party. Costello, 632 F.3d at 45; accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986). In reviewing a motion for summary judgment, the court may scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c)(3). In the absence of any disputed material fact, summary judgment is appropriate. Rule 56(a).
"A party opposing summary judgment does not show the existence of a genuine issue of fact to be tried merely by making assertions that are conclusory or based on speculation." Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (internal citation omitted); see also Anderson, 477 U.S. at 249-50 (holding that summary judgment may be granted if the opposing evidence is "merely colorable" or "not significantly probative") (citations omitted). At the summary judgment stage, the opposing party "must offer some hard evidence showing that its version of the events is not wholly fanciful." Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005). The opposing party's facts "must be material and of a substantial nature, not fanciful, frivolous, gauzy, spurious, irrelevant, gossamer inferences, conjectural, speculative, nor merely suspicions." Contemporary Mission, Inc. v. U.S. Postal Serv., 648 F.2d 97, 107 n.14 (2d Cir. 1981) (internal quotations omitted).
Local Civil Rule 56.1 of this District requires a summary judgment movant to submit a statement with numbered paragraphs setting forth "the material facts as to which the moving party contends there is no genuine issue to be tried." Local Civil Rule 56.1(a). "Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party." Local Civil Rule 56.1(c). "Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c)." Local Civil Rule 56.1(d). "A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Rule 56(c). "Therefore, only admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009) (internal quotations omitted).
A pro se party's submissions are to be read liberally, a requirement that is especially strong in the summary judgment context where claims are subject to a final dismissal. See Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988) ("[S]pecial solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment."). However, proceeding pro se does not relieve a litigant from the usual requirements of summary judgment. A pro se plaintiff's "bald assertion, completely unsupported by evidence," does not satisfy his burden as the non-movant. See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
II. Deliberate Indifference to Serious Medical Needs
The Eighth Amendment prohibits infliction of "cruel and unusual punishments," including punishments that "involve the unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153, 173 (1976). A prison official's "deliberate indifference to [the] serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976). To state a "cognizable" Eighth Amendment claim in this context, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id. at 106.
The deliberate indifference standard has two prongs. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The first prong is objective: the alleged deprivation of medical care must be "sufficiently serious." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The second prong is subjective: the charged official must have acted with a "sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). A prisoner must satisfy both prongs to prevail on his claim. See id.
Under the objective prong, a prisoner must prove that the alleged deprivation of medical treatment was sufficiently serious, amounting to "a condition of urgency . . . that may produce death, degeneration, or extreme pain." Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (internal quotations omitted). "There is no settled, precise metric" as to how serious the condition must be. Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). A court thus considers the facts and circumstances of the particular case, including whether "a reasonable doctor or patient would find [the ailment] important and worthy of treatment;" whether the ailment's presence significantly affects the prisoner's daily activities; and whether the pain is "chronic and substantial." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotations omitted). "[I]n most cases, the actual medical consequences that flow from the alleged denial of care will be highly relevant to . . . whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003).
The subjective prong requires the prisoner to establish that the defendant acted with a "sufficiently culpable state of mind." Wilson, 501 U.S. at 298. The standard is deliberate indifference to the prisoner's health. Salahuddin, 467 F.3d at 280. "[A] prison official does not act in a deliberately indifferent manner 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 a substantial risk of serious harm exists, and he must also draw the inference.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Farmer, 511 U.S. at 837). Courts equate this standard to that of recklessness under criminal law. See Farmer, 511 U.S. at 839-40. As such, a prisoner must show "more than negligence, but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66; see also Salahuddin, 467 F.3d at 279 ("[N]ot every lapse in medical care is a constitutional wrong."). "Whether a course of treatment was the product of sound medical judgment, negligence, or deliberate indifference depends on the facts of the case." Chance, 143 F.3d at 703.
ANALYSIS
I. Claims Against the Defendants in Their Official Capacities
Byng sues the four named defendants in both their official and individual capacities. Absent a waiver or valid congressional override, the Eleventh Amendment bars an action for damages by a private plaintiff against the state. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). This immunity extends to state officials acting in their official capacity. Kentucky v. Graham, 473 U.S. 159, 169 (1985). Agencies and departments of the state are also immune. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Section 1983 does not abrogate Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332, 338 (1979). Damages are thus not recoverable in a section 1983 action against state officials acting in their official capacities. Davis v. New York, 316 F.3d 93, 101-02 (2d Cir. 2002).
Byng alleges deliberate indifference to his medical and dental needs by the four named defendants in "both" their individual and official capacities. (Am. Compl. at 1.) As a state agency, DOCS is entitled to assert Eleventh Amendment immunity. Davis, 316 F.3d at 101. As all of Byng's allegations arise from acts committed by the defendants acting as officials employed by DOCS, Byng's section 1983 claims against the defendants in their official capacities are dismissed. See, e.g., id. (granting immunity from prisoner's section 1983 claims to DOCS officials).
However, Byng's allegations against the defendants in their individual capacities are not barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 2731 (1991). The Court addresses the merits of those claims below.
II. Claims Against the Defendants in Their Individual Capacities.
a. Dr. Wright
Byng alleges that Dr. Wright was deliberately indifferent to his medical needs by denying Rebetron therapy on October 26, 2007 and November 3, 2008 over the recommendations of Byng's treating physicians. (Am. Compl. ¶¶ 22, 36.) "[A] deliberate indifference claim can lie where prison officials deliberately ignore the medical recommendations of a prisoner's treating physicians." Johnson, 412 F.3d at 404 (internal citations omitted). A prison official's conscious decision to prescribe an "easier and less efficacious treatment plan" may also establish deliberate indifference. Brock, 315 F.3d at 167 (internal quotations omitted). However, "[i]t is well-established that mere disagreement over the proper treatment does not create a constitutional claim." Chance, 143 F.3d at 703. "[C]laims based on differences of opinion over matters of medical judgment[] fail to rise to the level of a [section] 1983 violation." Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972). This Court assumes that HCV qualifies as a serious medical condition. See Pabon v. Wright, 2004 WL 628784, at *5 (S.D.N.Y. Mar. 29, 2004) (collecting cases); see also Salahuddin, 467 F.3d at 281 (presuming that five-month delay in receiving HCV treatment was sufficiently serious).
In Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005), the Second Circuit reversed a grant of summary judgment to Dr. Wright where the plaintiff, a DOCS prisoner with HCV, alleged Dr. Wright's deliberate indifference in denying him treatment over the recommendations of his treating physicians. See id. at 404-05. Despite the physicians' unanimous view that ribavirin therapy was appropriate, Dr. Wright denied the request because the plaintiff had tested positive for marijuana on a single occasion—mandatorily disqualifying him under DOCS' HCV Guidelines. See id. The Second Circuit held that a reasonable jury could conclude that Dr. Wright had acted with a sufficiently culpable state of mind "by reflexively following the Guideline's substance abuse policy" in denying treatment. Id. at 406.
Johnson does not dictate the outcome of this case. Unlike in Johnson, the record shows that Dr. Wright was in possession of and considered Byng's medical records, August 2007 blood test results, and prior Rebetron cycle in denying treatment. In the October 29, 2007 denial, Dr. Wright relayed to Dr. Mamis: "Prior treatment failure. Current ALT normal. Current ANC below the minimum 1000. Treatment not indicated." (Kim Decl. Ex. E at 376.) Dr. Wright's decision was thus based on at least three factors pertaining to Byng's individualized medical profile: his ALT level, reflecting his liver function, his ANC level, reflecting his white blood cell count, and his relapse following an already-completed Rebetron cycle. (Wright Decl. ¶¶ 7, 8.)
Similarly, there is insufficient evidence that Dr. Wright acted with a culpable state of mind in denying Byng's second request for treatment. In his reply dated November 3, 2008, Dr. Wright stated in full:
His prior treatment apparently was successful and although he has a large viral load now he has normal ALT. Why not monitor ALT every 6 months and if it takes significant elevation consider retreatment then; hopefully with more effective therapy then.(Pl.'s Mem. L. Opp. Ex. B27.) Byng's physician discussed with him Dr. Wright's opinion, informing Byng that Dr. Wright "would like his ALT monitored every six months" and that treatment would be "reconsider[ed]" if his ALT rose above normal. (Kim Decl. Ex. D at 24.) As with the previous request, Dr. Wright was in possession of Byng's medical records, blood test results, and a summary of Byng's prior Rebetron cycle when he rendered his decision. (Pl.'s Mem. L. Opp. Ex. B27.) Dr. Wright testified under oath that he also considered Byng's heightened risk of infection and difficulties with neupogen, his neutropenia medication. (Wright Decl. ¶ 10.) Byng offers no admissible evidence disputing that Dr. Wright's decision was the result of his own medical judgment, or that DOCS officials did not "regularly monitor[]" his ALT levels using liver function tests during Byng's final months at Fishkill. (Id. ¶ 8.) "So 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.
Testimony from other physicians familiar with Byng's medical profile supports Dr. Wright's denial as the product of a well-considered medical judgment. Mark Korsten, M.D., the defendants' expert witness, testified that Byng "failed to achieve a sustained viral response" from his 2005 Rebetron cycle and that there exists "no published data" proving Rebetron therapy's effectiveness in treating patients who relapse. (Korsten Decl. ¶ 11.) And Dr. Mamis, Byng's physician until March 2008, advised Fishkill's superintendent that Rebetron therapy was "very risky" given Byng's "prior history of neutropenia." (Kim Decl. Ex. D at 324.) "[T]he law is clear that a difference of opinion . . . even among medical professionals themselves, as to the appropriate course of medical treatment does not in and of itself amount to deliberate indifference." Williams v. M.C.C. Institution, 1999 WL 179604, at *7 (S.D.N.Y. Mar. 31, 1999) (Preska, J.). Byng's "mere disagreement over the proper treatment does not create a constitutional claim." Chance, 143 F.3d at 703.
In this case, Dr. Wright neither "reflexively" nor "mechanically" relied on the HCV Guidelines, nor was he willfully blind to potential risks to Byng's health. Cf. Johnson, 412 F.3d at 404-06; Verley v. Wright, 2007 WL 2822199, at *11 (S.D.N.Y. Sept. 27, 2007). No reasonable jury could conclude that Dr. Wright was deliberately indifferent to Byng's serious medical needs. Dr. Wright made a considered medical judgment and is entitled to summary judgment as to Byng's claims against him.
b. Dr. Mamis
Byng alleges that Dr. Mamis was deliberately indifferent to his serious medical needs by: intentionally delaying Byng from seeing Dr. Rush for HCV treatment; "sabotaging" his September 2007 recommendation to Dr. Wright for HCV treatment; delaying Byng's hernia operation by not examining his abdominal pain; refusing to treat his neutropenia; and refusing to changed his "soiled, leaking dressing" after Byng's hernia operation. (Am. Compl. ¶ 68.) The Court addresses each of these five allegations in turn.
Byng's first allegation that Dr. Mamis intentionally delayed him from seeing Dr. Rush for his HCV fails under both prongs of the deliberate indifference standard. Byng's medical records show that Dr. Mamis first saw Byng on September 27, 2007 for a "routine visit." (Kim Decl. Ex. D at 38.) Byng's records also show that Dr. Mamis recorded Byng's request for HCV treatment, and that Dr. Mamis referred Byng to Dr. Rush that same day for a consultation that occurred on October 23, 2007. (Pl.'s Mem. L. Opp. Ex. B12.) "When the basis for a prisoner's Eighth Amendment claim is a temporary delay" in treatment, it is "the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition" on which the Court must focus. Carpenter, 316 F.3d at 185 (emphasis in original). Byng comes forward with no evidence that he sustained a serious adverse health effect between his September 27 visit with Dr. Mamis and his October 23 consultation with Dr. Rush, or that Dr. Mamis was deliberately indifferent in processing his referral the very day he first saw Byng.
Byng next alleges that Dr. Mamis "sabotaged" his HCV treatment recommendation by including "incorrect medical information." (Am. Compl. ¶ 22.) The electronic form Dr. Mamis submitted to Dr. Wright contained Byng's August 2007 blood test results and medical history. (Kim Decl. Ex. E at 375-76.) Also included was Dr. Mamis's statement that Byng's prior Rebetron therapy contained "multiple stops and starts" due to low white blood cell counts and that Byng "chronically refus[e]d neupogen." (Id.)
Byng has failed to come forward with evidence that Dr. Mamis acted with a sufficiently culpable state of mind in recommending HCV treatment. Byng offers no evidence that the blood test results referred to in the electronic form were inaccurate; to the contrary, the results match Byng's August 2007 laboratory results. (Id. Ex. D at 68-71; Korsten Decl. ¶ 7.) Byng's daily medical records from his 2005 Rebetron cycle confirm that his white blood cell count fluctuated and that he refused neupogen on multiple occasions. (See, e.g., Kim Decl. Ex. D at 149-52, 155-58, 167.) Indeed, Byng's medical records contain two "Refusal of Medical Examination And/Or Treatment" forms, both signed by Byng, wherein he objected to taking his neupogen. (Id. at 229, 238.) Dr. Sottile, a supervising physician, confirmed to Byng in a memorandum dated November 4, 2008 that Byng's physicians had "given the data to Dr. Wright" and that Dr. Wright had "[a]ll of the correct medical information." (Id. at 299, 303.)
Even had Dr. Mamis mistakenly represented Byng's medical data to Dr. Wright, this error alone would not carry Byng's burden of coming forward with evidence of a culpable state of mind. Mere negligence is insufficient to satisfy the subjective prong of the deliberate indifference standard. Hathaway, 37 F.3d at 66; see, e.g., Farid v. Ellen, 2006 WL 59517, at *11 (S.D.N.Y. Jan. 11, 2006) (granting summary judgment where plaintiff "speculat[ed] that [his physician] had somehow doctored plaintiff's medical records to fabricate details of his medical history" on single occasion). Byng has failed to show deliberate indifference to serious medical needs on the part of Dr. Mamis as it relates to this allegation.
Third, Byng alleges that Dr. Mamis ignored his RUQ pain for nine months beginning in July 2007, delaying examination of and operation on his hernia. (Am. Compl. ¶¶ 18, 68.) When the basis of a deliberate indifference claim is a delay in treatment, the focus is the "particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition." Carpenter, 316 F.3d at 186. Byng alleges that from the day he was incarcerated at Fishkill on June 12, 2007, he suffered "chronic, at times severe pain" that made it difficult to walk. (Am. Compl. ¶¶ 18, 26, 68.) Byng's hernia operation occurred on March 7, 2008. (Pl.'s Mem. L. Opp. Ex. A5.) The Court assumes that Byng's chronic RUQ pain during this period was a sufficiently serious medical condition.
Accepting this allegation as true and drawing all reasonable inferences in his favor, Byng has failed to show that Dr. Mamis acted with a sufficiently culpable state of mind. Byng alleges that he complained of hernia-related pain on four occasions in June and August 2007, but to physicians other than Dr. Mamis. (Pl.'s 56.1 Resp. ¶ 16.) There is no evidence in Byng's medical records that Dr. Mamis examined Byng prior to September 27, 2007 or that Byng complained of RUQ pain during this appointment. (Kim Decl. Ex. D at 38.) The entirety of Byng's case are the allegations in his Amended Complaint that Dr. Mamis simply ignored Byng's complaint. "[C]onclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of N.Y., 88 F.3d 63, 71 (2d Cir. 1996) (citing Matsushita, 475 U.S. at 587 (1986)); see, e.g., Cain v. Jackson, 2007 WL 2193997, at *7 (S.D.N.Y. July 27, 2007) (Preska, J.) (granting summary judgment on section 1983 deliberate indifference claim where prisoner offered "no evidence or testimony, other than her own allegations"). Byng has not come forward with evidence that Dr. Mamis was "aware of facts from which [an] inference could be drawn that a substantial risk of serious harm exist[ed]" and that he "actually" drew that inference. Hathaway, 37 F.3d at 66.
Dr. Mamis's alleged failure to diagnose Byng's hernia during their next appointment on November 2, 2007, accepted as true, does not satisfy the subjective prong of the deliberate indifference standard. "[N]egligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim." Chance, 143 F.3d at 703. Byng's medical records reflect that Dr. Mamis examined Byng's RUQ, and found no "definitive signs of a hernia." (Kim Decl. Ex. D at 36.) Moreover, Dr. Mamis ordered x-rays for Byng's ailing right thumb and diagnosed Byng's hernia the very next time he saw Byng on January 3, 2008. (Id. at 33-34.) Dr. Mamis's error in failing to diagnose Byng's hernia on September 27 or November 2 "suggests at most several acts of negligence over a prolonged period. That is not enough to support an Eighth Amendment violation." Hernandez v. Keane, 341 F.3d 137, 145-46 (2d Cir. 2003) (affirming summary judgment where prisoner alleged his physician failed to schedule follow-up appointment and hand surgery for prisoner over three-month period).
Byng's fourth allegation that Dr. Mamis refused to allow him to see Dr. Rush about his neutropenia condition fails under both prongs of the deliberate indifference standard. (Am. Compl. ¶¶ 24, 68.) First, nowhere in the Amended Complaint nor in his opposition does Byng allege suffering any adverse health effects, serious or otherwise, from any delay in seeing Dr. Rush regarding his neutropenia. "[T]he essential test is one of medical necessity and not one simply of desirability." Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Here, Byng has failed to show a sufficiently serious medical condition approaching a condition of urgency, extreme pain, or death. Chance, 143 F.3d at 702-03.
Furthermore, Byng has failed to present admissible evidence showing that Dr. Mamis's decision was not the product of his own medical judgment. Dr. Mamis first saw Byng on September 27, 2007, during which Dr. Mamis found "no reason" for a neutropenia consultation with Dr. Rush. (Kim Decl. Ex. D at 35.) At the time, Dr. Mamis was in possession of Byng's August 2007 blood test results, which showed an ANC level at 984 (id. at 70), as well as Byng's prior medical records listing multiple instances in which Byng refused neupogen. (Id. at 229, 238.) Dr. Mamis concluded that based on Byng's stable ANC level and history of side effects with neupogen, further treatment was not indicated. (Mamis Decl. ¶ 13.) "The defendant's belief that his conduct poses no risk of serious harm (or an insubstantial risk of serious harm) need not be sound so long as it is sincere." Salahuddin, 467 F.3d at 281. Beyond the allegations in his Amended Complaint, Byng offers no evidence that Dr. Mamis was aware of and consciously disregarded a substantial risk of serious harm to Byng's health in not referring him to Dr. Rush. Farmer, 511 U.S. at 835-37. "[D]ifference of opinion between a physician and a patient does not give rise to a constitutional right or sustain a claim under [section] 1983." United States ex rel. Hyde v. McGinnis, 429 F2d 864, 867 (2d Cir. 1970).
Byng's final allegation against Dr. Mamis—that he refused to change his "soiled, leaking" dressing after his hernia surgery—also fails under both prongs of the deliberate indifference standard. (Am. Compl. ¶ 68.) This allegation does not rise to "a condition of urgency[] that may produce death, degeneration, or extreme pain." Hathaway, 99 F.3d at 553. Byng has not shown that his temporarily soiled dressing "significantly affect[ed] his daily activities" or caused him "chronic and substantial pain." Chance, 143 F.3d at 702-03. Byng has also failed to come forward with sufficient evidence which, if believed, would permit a reasonable fact-finder to find in his favor on deliberate indifference under the subjective prong. Byng offers no evidence that Dr. Mamis was present during Byng's surgery or was responsibility for changing his dressing. Dr. Mamis swore in his declaration that he has "never changed a patient's dressing." (Mamis Decl. ¶ 14.) Byng has come forward with no admissible evidence showing that Dr. Mamis was deliberately indifferent in not doing so in his case.
For the foregoing reasons, summary judgment is granted as to Byng's claims against Dr. Mamis.
c. Dr. D'Silva
Byng alleges that Dr. D'Silva was deliberately indifferent to his serious medical needs by "failing to act on repeated request[s]" for dental treatment. (Am. Compl. ¶ 68.) An unresolved dental condition may be sufficiently serious to support an Eighth Amendment claim. See Chance, 143 F.3d at 702. "A cognizable claim regarding inadequate dental care, like one involving medical care, can be based on various factors, such as the pain suffered by the plaintiff, the deterioration of the teeth due to a lack of treatment, or the inability to engage in normal activities." Id. (internal citations omitted). A dental condition is sufficiently serious if it causes the prisoner "great pain, difficulty in eating, and deterioration of [his] other teeth." Brock, 315 F.3d at 162-63 (citing Chance, 143 F.3d at 702-03). This Court assumes that the delay in Byng's dental treatment amounted to a sufficiently serious medical condition.
"[I]t 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." Wright v. Smith, 31 F.3d 496, 501 (2d Cir. 1994). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1948 (2009). In fact, "[i]n a § 1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term 'supervisory liability' is a misnomer." Id. Accordingly, "each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." Id. "Thus, under Iqbal, a defendant can be liable under section 1983 only if that defendant took an action that deprived the plaintiff of his or her constitutional rights," either through direct participation or by creating a custom or policy under which unconstitutional practices occurred. De La Rosa v. N. Y. City 33 Precinct, 2010 WL 1737108, at *4 & n.2 (S.D.N.Y. April 27, 2010) (citing Bellamy v. Mt. Vernon Hosp., 2009 WL 1835939, at *6 (S.D.N.Y, June 26, 2009)).
Byng has failed to come forward with admissible evidence supporting Dr. D'Silva's direct participation in the delay in Byng's dental treatment. First, Dr. D'Silva was the State Dental Director for the entire DOCS system. She was not a dentist at Fishkill, and did not work at the Fishkill Dental Clinic. (D'Silva Decl. ¶¶ 1, 4.) Nor did she schedule dental appointments for inmates. (D'Silva Reply Decl. ¶ 7.) As State Dental Director, Dr. D'Silva worked in DOCS' central office in Albany. (D'Silva Reply Decl. ¶ 6.) Byng comes forward with no evidence showing that Dr. D'Silva's participated in scheduling or denying him dental treatment. (Cf. id. ¶¶ 4, 7, 12.) Mere proof of Dr. Silva's "linkage in the prison chain of command" is insufficient to impose liability under section 1983. Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1983).
Furthermore, Byng has not come forward with sufficient evidence to permit a reasonable fact-finder to find that Dr. D'Silva created a policy or custom of denying Byng dental treatment. No admissible evidence indicates Dr. D'Silva received or responded to any of Byng's complaints, or that she was responsible for scheduling or approving dental appointments at Fishkill or any other DOCS facility. (D'Silva Reply Decl. ¶¶ 3-7.) Byng also offers no evidence disputing the daily operating hours for Fishkill's Dental Clinic or the Sick Call procedure, neither of which required an appointment. Instead, Byng alleges that on two occasions unnamed Fishkill housing officers denied him a Sick Call pass, but offers no evidence of their identities, whether they reported to Dr. D'Silva, or whether they were acting pursuant to a policy created by Dr. D'Silva. Moreover, Byng's dental records show that he received treatment at the Dental Clinic twice using the Sick Call method. (Kim Decl. Ex. G at 389.)
Indeed, Byng admits that he "finally called down to" the Dental Clinic to receive treatment in early 2009. (Pl.'s 56.1 Resp. ¶ 20.)
Byng alleges that Dr. D'Silva "purposely ignored [his] numerous requests" for dental care (Byng Dep. at 61, 66), but offers no admissible evidence that Dr. D'Silva ever received or reviewed any such requests. Indeed, Dr. D'Silva swore under oath that no inmate complaint would have been sent to her even if it were directly addressed to her. (D'Silva Reply Decl. ¶¶ 3, 4.) Dr. D'Silva swore she never received any correspondence from Byng, never corresponded with an inmate, and did not sign the Dental Clinic response forms Byng received on April 9, 2008 and June 10, 2008 allegedly bearing her signature. (Id. at ¶¶ 3-6; Pl.'s Mem. L. Opp. at C7, C9.) Byng's unsworn writings do not raise a genuine issue of material fact as to this allegation. See, e.g., Tarullo v. Def. Contract Audit Agency, 600 F. Supp. 2d 352, 360 (D. Conn. 2009) ("Because the Plaintiff presents no evidence rebutting [Defendant]'s affidavit [that Defendant had no access to Plaintiff's records], he has not demonstrated the existence of an issue of fact for the jury to decide."); Blanc v. Sagem Morpho, Inc., 2009 WL 1813236, at *8 & n.6 (E.D.N.Y. June 25, 2009) ("As unsworn statements, [plaintiff's] letters are inadmissible in opposition to summary judgment, but even if they were admissible, they do not contradict Defendants' evidence" contained in sworn declaration).
Dr. D'Silva swore that the signature on these forms were not signed by her and do not reflect her handwriting. (D'Silva Reply Decl. ¶ 5.) --------
Even had Dr. D'Silva received Byng's complaints, "an allegation that a prison official received correspondence and did not act on it does not state a claim for personal involvement under section 1983." Johnson v. Wright, 234 F. Supp. 2d 352, 364 (S.D.N.Y. 2002), rev'd on other grounds, 412 F.3d 398 (2d Cir. 2005). The Supreme Court explicitly rejected the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution." Iqbal, 129 S. Ct. at 1949. Even prior to Iqbal, it was "well-established that an allegation that an official ignored a prisoner's letter of protest . . . is insufficient to hold that official liable for the alleged violations." Accord Johnson, 234 F. Supp. 2d at 363 (collecting cases); Johnson v. Goord, 2004 WL 2199500, at *7 (S.D.N.Y. Sept. 29, 2004) ("[T]he receipt of letters or grievances or complaints from inmates is insufficient to impute personal involvement.").
Although a DOCS employee once wrote to Byng that "the delay in [Byng] being seen was due to staff shortages" (Pl.'s Mem. L. Opp. Ex. C16), Byng offers no evidence that Dr. D'Silva authorized or adopted this letter, was aware of its contents, or was responsible for staff shortages at the Fishkill facility. "To defeat summary judgment," the non-movant "must do more than simply . . . rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554. Even were the Court to attribute Bellamy's statement to Dr. D'Silva, "[e]vidence of understaffing, without more, is not proof of official policy." Clay v. D'Silva, 2011 WL 1135939, at *3 (N.D.N.Y. Feb. 1, 2011). Understaffing may support a section 1983 claim "only if more complete funding and staffing were possible, and . . . it was the deliberate intent of the policy making official not to adequately fund and staff the jail, having in mind a gross indifference to the medical needs of . . . detainees." Id. (internal citations omitted). Byng adduces no such evidence as to Dr. D'Silva's intent to do so in this case. Accordingly, summary judgment is granted as to Byng's claims against Dr. D'Silva.
d. Dr. Samad
Byng's allegations against Dr. Samad arise from Byng's January 2009 dental appointment. Byng alleges that Dr. Samad "intentionally banged" on Byng's tooth with a mirror instrument "once or twice," and "yanked" Byng's neck backward while sitting in a dental chair. (Am. Compl. ¶ 60.) Byng allegedly sustained a sore neck for which he did not seek further treatment or medical attention. (Byng Dep. at 65.)
Viewed in their most favorable light, these allegations do not constitute a sufficiently serious medical condition under the deliberate indifference standard. They do not present "a condition of urgency[] that may produce death, degeneration, or extreme pain." Hathaway, 99 F.3d at 553. Nor do they "violate contemporary standards of decency." Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002.) Byng's allegations, accepted as true, constitute "minor discomfort or injury" insufficient to carry his burden under the objective prong. Martinez v. Glover, 2001 WL 1491278, at *4 (S.D.N.Y. Nov. 26, 2001); see, e.g., Banks v. Stewart, 2010 WL 2697075, at *15 (S.D.N.Y. July 6, 2010) (Sullivan, J.) (cut finger "simply was not sufficiently serious to satisfy the objective" prong); Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 306-11 (S.D.N.Y. 2001) (bleeding finger); Bonner v. N.Y. City Police Dep't, 2000 WL 1171150, at *4 (S.D.N.Y. Aug. 17, 2000) (swollen hand). Summary judgment is therefore granted as to Byng's claims against Dr. Samad.
CONCLUSION
For the reasons stated above, the defendants' motion to dismiss (Docket # 31) is GRANTED. The Clerk shall close the case and enter judgment for the defendants. Byng has not made a substantial showing of the denial of a constitutional right and, accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253: see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and in forma pauperis status is denied.
Counsel for the defendants are directed to provide to the plaintiff copies of all unreported cases cited herein.
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
March 19, 2012