McMahon, J.

MEMORANDUM DECISION AND ORDER GRANTING MOTION TO DISMISS AMENDED COMPLAINT

:

INTRODUCTION

Plaintiff Alexei Ramey brings this pro se action pursuant to 42 U.S.C. § 1983 against Superintendant Ada Perez, Commissioner Brian Fischer, and Officer Kevin Roblee. Plaintiff alleges violations of his constitutional rights by all Defendants, all of whom were employees of the New York State Department of Corrections and Community Supervision at the time of the incident in question, and seeks injunctive relief and monetary relief. Plaintiff was incarcerated at the Downstate Correctional Facility ("Downstate") at the time of the incident, and is currently an inmate in the Clinton Correctional Facility Annex ("Clinton").

Defendants Perez, Fischer, and Roblee move to dismiss the Amended Complaint ("Complaint") for failure to state a claim. Fed. R. Civ. P. 12(b)(6). Their motion is granted.

I. Background

The following facts, assumed to be true for this motion to dismiss, are drawn from the Complaint and the exhibits attached to the Complaint. The Court cannot consider and has not considered the log book that Defendants submitted as Exhibit B to the Declaration of Neil Shevlin in its review.

On February 14, 2012, while incarcerated at Downstate Correctional Facility, Plaintiff sustained injuries to his lower back, left hip, and left ankle when a loose handrail detached from the wall as he was heading downstairs, causing him to fall. (Am. Compl., Sect. II) (Am. Compl., Exh. A). Plaintiff alleges that he had sharp pains in his lower back after he fell, and went to the "ER and filed a[n] accident report but no pain medication was provided." (Am. Compl., Exh. A). After Plaintiff was reviewed by the medical department, he arrived back at his cell in the 3E Complex building. Dissatisfied with his treatment, he asked for additional emergency medical care. (Am. Compl., Sect. II). The night officer—later identified as Officer Roblee in Plaintiff's Opposition to the Motion to Dismiss—denied his request. (Id.). As a result, Plaintiff remained in his cell all night in pain. (Id.). Plaintiff was transferred to Clinton on February 15, 2012, the next morning. (Pl.'s Opp. at 4).

Before leaving Downstate, Plaintiff filed a grievance (Am. Compl., Exh. A), complaining about (1) the fall and the loose handrail, and (2) the failure to give him proper medical treatment. He demanded compensation for his injuries, and asked that an investigation be performed, including taking pictures of the broken handrail.

Superintendant Perez responded to his grievance on March 7, 2012. Superintendent Perez stated that the grievance was allowed only to the extent that the requested investigation had been conducted, but was otherwise denied. He noted that "monetary reparation is not an obtainable remedy via the Inmate Grievance Program." (Am. Compl., Exh. B). Superintendant Perez advised the Plaintiff to go to sick call at his current facility, Clinton, if he had medical concerns. (Id.).

On March 14, 2012, Plaintiff sent a letter to Superintendent Perez appealing the resolution of his grievance by the Inmate Grievance Resolution Committee ("IGRC"). (Am. Compl., Exh. C). Plaintiff asserted that "proper medical care" required that he be sent to a specialist or to a hospital, rather than treating him at Downstate. He again asked for compensation and demanded the handrail be fixed, asserting that an officer's comment that the "hand railing has been loose for over a week now" (noted in the original grievance) "proved" the facility's "negligence." (Id.).

On August 1, 2012, the Central Office Review Committee ("CORC") upheld the original determination. (Am. Compl., Exh. D). CORC stated "that the handrail has been reinstalled by maintenance staff." (Id.). CORC further noted that, after he fell, Plaintiff was "examined by medical staff with no bruising or swelling to his back area noted" (Id.). Finally, CORC noted that since Plaintiff's transfer he had been seen "by his primary care provider for a chronic back condition" three times, and is "scheduled for a physical therapy evaluation." (Id.). CORC concluded that it "has not been presented with sufficient evidence to substantiate improper medical care or malfeasance by staff." (Id.).

Plaintiff submitted a FOIL request for the inmate injury report and his medical records to Downstate, but was advised in August 2012 that his medical record was not at Downstate and was likely at Clinton. (Am. Compl., Exh. E).

In the complaint, Plaintiff reveals that since his transfer to Clinton he has (1) been issued a back brace, (2) received physical therapy in July and August 2012, (3) been administered Percocet during October 2012, (4) had an MRI in December 2012 (results unknown), and (5) received steroid injections in March 2013. (Am. Compl., Sect. III).

II. The Complaint

Plaintiff asserts that two of his constitutional rights have been violated: his Eighth Amendment right to be free from cruel and unusual punishment, and his Fourteenth Amendment right to due process of law. The text of the Amended Complaint reveals that underlying both purported constitutional violations is Plaintiff's assertion that he was left in his cell on the night of February 14-15, while in pain after his fall, without proper medical attention. This contention does not state a claim for a due process violation, since it is well settled that complaints about inadequate medical care arise exclusively under the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104-05(1976).

Plaintiff also alleges a claim for negligence due to the loose handrail (Amended Compl., Sect. E, at 4). Claims for negligence do not rise to the level of constitutional violations and cannot be brought under 42 U.S.C. § 1983. The Supreme Court has concluded that "the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property." Daniels v. Williams, 474 U.S. 327, 328 (1986). "[L]iability for negligently inflicted harm is categorically beneath the threshold of constitutional due process." County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998).

It his thus apparent that Plaintiff's complaint, to the extent it states any claim at all, states only an Eighth Amendment claim. The analysis that follows will proceed from that premise.

The only items that were grieved in the February 15, 2012 grievance that is attached to the Amended Complaint were the loose handrail that occasioned Plaintiff's fall and the lack of medical care over the ensuing night. In his Complaint, Plaintiff relies on a number of additional factual allegations that were never grieved, as required under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), in order to bolster his Eighth Amendment claim. For example, Plaintiff claims that Superintendent Perez transferred him to Clinton while his back hurt, and that Perez did not send plaintiff's medical records, or cause them to be sent, to Clinton rapidly enough, which occasioned delay in his receipt of medical care at that facility. (Am. Compl., Sect. II). None of this appears in his February 15 grievance (Am. Compl., Exh. A).

DISCUSSION

I. Standard for Motion to Dismiss

In deciding a motion to dismiss under Rule 12(b)(6), the Court must liberally construe all claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003); see also Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007).

However, to survive a motion to dismiss, "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 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." Id. (citing Twombly, 550 U.S. at 556). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotations, citations, and alterations omitted). Thus, unless a plaintiff's well-pleaded allegations have "nudged [his] claims across the line from conceivable to plausible, [the plaintiff's] complaint must be dismissed." Id. at 570; Iqbal, 556 U.S. at 680.

"A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). A court must interpret pro se filings "to raise the strongest arguments that they suggest." Harris v. Westchester Cnty. Medical Ctr., No. 08 Civ. 1128, 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006)).

II. Plaintiff's Ungrieved Claims Must be Dismissed.

As previously noted, Plaintiff has failed to file a grievance regarding his transfer to Clinton, or the delay or quality of the medical care he received at Clinton. Under the PLRA, 42 U.S.C. § 1997e(a), all available remedies must be exhausted. The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Because it is apparent from the Amended Complaint that Plaintiff failed to exhaust his administrative remedies as to these discrete incidents, they cannot be the basis for his Eighth Amendment claim.

III. Plaintiff's Claims Against Defendants Fischer and Perez Are Dismissed for Lack of Personal Involvement.

Personal involvement is a prerequisite to an award of damages under section 1983. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Individual liability under § 1983 requires that a defendant was personally involved in the alleged violation. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Blaylock v. Borden, 547 F. Supp. 2d 305, 309-10 (S.D.N.Y. 2008), aff'd, 363 F. App'x 786 (2d Cir. 2010).

The Second Circuit has held that the personal involvement of a supervisory defendant may be shown by evidence that:

(1) the defendant participated directly in the alleged constitutional violation,

(2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong,

(3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom,

(4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or

(5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

However, in 2009, the Supreme Court held that "[b]ecause vicarious liability is inapplicable to . . . [section] 1983 suits, a plaintiff must [prove] that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). There has been considerable division among the district courts of the Second Circuit as to whether Iqbal abrogates several factors of the Colon test and if so to what extent. Compare Bellamy v. Mount Vernon Hosp., No. 07 Civ. 1801, 2009 WL 1835939, at *6 (S.D.N.Y. June 26, 2009) (finding that Iqbal abrogated three of the Colon categories), aff'd 387 Fed. App'x 55 (2d Cir. 2010) (summary order), and Newton v. City of New York, 640 F. Supp. 2d 426, 448 (S.D.N.Y. 2009) ("[P]assive failure to train claims pursuant to section 1983 have not survived the Supreme Court's recent decision in Ashcroft v. Iqbal."), with Qasem v. Toro, 737 F. Supp. 2d 147, 151 (S.D.N.Y. 2010) (declining to adopt the "narrow interpretation of Iqbal" advanced by Bellamy and Newton), and Jackson v. Goord, 664 F. Supp. 2d 307, 324 & n.7 (S.D.N.Y. 2009) (holding Colon standard is unaffected by Iqbal in deliberate indifference case, because Iqbal "involved discriminatory intent."). This Court has explained its position that Colon remains the standard in this Circuit for deciding whether personal involvement by supervisory officials is sufficiently alleged in the context of the Eighth Amendment. See Plunkett v. City of New York, No. 10 Civ. 6778 (CM), 2011 WL 4000985, at *8-9 (S.D.N.Y. Sept. 2, 2011).

A. Personal Involvement of Commissioner Fischer

Plaintiff brings suit against Commissioner Fischer, in his official and individual capacities, alleging only that Commissioner Fischer violated his constitutional rights because "DOCS chain of command falls on the commissioner." (Am. Compl., Sect. II). Plaintiff does not contend that Commissioner Fischer played any personal role in denying him medical care. Commissioner Fischer's position as commissioner is patently insufficient to establish his personal involvement for the purposes of a section 1983 action. See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). Thus, Plaintiff's claim against Commissioner Fischer is dismissed for lack of personal involvement.

B. Personal Involvement of Superintendent Perez

Plaintiff claims that Superintendent Perez violated his rights by "not relieving [him] of medical wrongs" and by transferring him to Clinton while leaving him in pain, as well as by denying his grievance, in which he requested "proper medical attention." (Am. Compl., Sect. II) Plaintiff also claims that Superintendent Perez "continued" to deny him medical care—in effect, preventing him from receiving medical care at his new facility—by failing to transfer the incident report and his medical records to Clinton. (Id.).

As noted above, much of this—the transfer allegations, the denial of the grievance and the failure to obtain sufficiently rapid medical care at Clinton (a facility where Perez does not work)—has not been grieved, and so cannot serve as the basis for Eighth Amendment liability. However, even if Plaintiff had grieved these issues, the claims against Perez would have to be dismissed, because his complaint alleges no facts that, if true, would demonstrate that Superintendent Perez (1) was involved in effecting Plaintiff's transfer to Clinton on February 15, 2012, let alone that he personally made the decision put Plaintiff on the bus knowing that Plaintiff was in pain; (2) had anything to do with the speed with which Plaintiff's medical records reached Clinton; or (3) had anything to do with decisions made at Clinton—a facility located over 200 miles from Downstate, where Perez was Superintendent—about what medical care was appropriate for Plaintiff. Therefore, the complaint fails to allege Perez's personal involvement sufficiently to withstand a motion to dismiss.

This leaves only Officer Roblee as a defendant in this action.

IV. Plaintiff's Request for Injunctive Relief is Dismissed as Moot.

Plaintiff seeks an injunction requiring Fischer, Perez and Roblee to provide safe conditions for inmates at Downstate, as well as to provide him and other inmates at Downstate with proper medical care.

The request is dismissed as moot. Plaintiff is currently incarcerated at Clinton, while the events leading to this action occurred at Downstate. "In this circuit, an inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility." Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006).

In addition, to the extent that plaintiff seeks an injunction relating to the safety of the handrail, his claim is moot because, as noted by CORC in its denial of plaintiff's appeal, the "handrail has been reinstalled by maintenance staff." (Compl. Exh. D). The relief plaintiff seeks has already been accomplished.

V. Plaintiff's Eighth Amendment Claim Against Officer Roblee is Dismissed.

In order to establish an Eighth Amendment claim arising out of inadequate medical treatment, a prisoner must prove "deliberate indifference to [his] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976).

The Eighth Amendment, which applies to the states under the Due Process Clause of the Fourteenth Amendment, guarantees freedom from cruel and unusual punishment. The Eighth Amendment "imposes a duty on prison officials to ensure that inmates receive adequate medical care." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). In Salahuddin, the Second Circuit explained in detail the conditions that must be met to show that a prison official has violated this duty. See generally Manley v. Mazzuca, 2007 WL 162476, at *4-5 (S.D.N.Y. Jan. 19, 2007).

First, the deprivation of care must be "sufficiently serious." Salahuddin, 467 F.3d at 279; see also Farmer, 511 U.S. at 825. This requirement is objective, and is analyzed using a two-part inquiry. Initially, the Court must determine whether the inmate was actually denied adequate care. See Salahuddin, 467 F.3d at 279-80. Prison officials are not obligated to provide inmates with whatever care the inmates desire. Rather, prison officials fulfill their obligations under the Eighth Amendment when the care provided is "reasonable." Id. at 280 (citing Farmer, 511 U.S. at 844-47).

Second, if the care provided was unreasonable, courts must inquire as to whether that inadequacy was "sufficiently serious." Id.; see also Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). "Factors relevant to the seriousness of a medical condition include whether 'a reasonable doctor or patient would find [it] important and worthy of comment,' whether the condition 'significantly affects an individual's daily activities,' and whether it causes 'chronic and substantial pain.'" Salahuddin, 467 F.3d at 280 (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). This analysis requires an examination both of the harm already caused to the prisoner and the likelihood that harm will continue or increase without additional treatment. See id. Thus, the "seriousness" inquiry will vary based on the nature of the treatment provided and the claim asserted by the inmate. See Salahuddin, 467 F.3d at 280

The second component is subjective, and requires that the prison official involved act with a "sufficiently culpable state of mind." Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). This is satisfied by a showing that the official acted with "deliberate indifference" toward Plaintiff's health, a state of mind akin to criminal recklessness. Id. "This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Salahuddin, 467 F.3d at 280.

Plaintiff alleges that he asked for an emergency medical review after he returned to his cell after he was reviewed by the medical department, and Officer Roblee denied his request. (Compl. Sect. II). Thus, Plaintiff alleges he spent the entire night in pain. (Id.). He insists that the proper medical course would have been to send him immediately to a hospital or to a specialist for his back pain.

The complaint must be dismissed because Plaintiff has not sufficiently pleaded facts satisfying either the subjective or objective component in order to make out a claim for "deliberate indifference to serious medical needs."

Regarding the objective component, Plaintiff has not pleaded facts to allege that "a condition of urgency, one that may produce death, degeneration, or extreme pain" existed to prove that the deprivation of care was sufficiently serious. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). While Plaintiff alleges that he has suffered chronic pain, his claim against Officer Roblee deals with a single night, on which his condition was far from life threatening. Furthermore, Plaintiff received medical care immediately after the incident and was cleared by a nurse for return to his cell. Plaintiff believes that he should have been taken to the hospital, but he has no right to receive the medical treatment of his choice; he only has the right not to be denied medical treatment altogether. Plaintiff affirmatively pleads that he was treated, albeit (in his view) inadequately. This sort of difference of opinion about what type of treatment is appropriate does not rise to the level of an Eighth Amendment violation in a situation like this one, where Plaintiff did not suffer from any condition of urgency. "It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. 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 v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).

Plaintiff also has not pleaded sufficient facts to satisfy the subjective component of the Salahuddin test; he pleads no facts tending to show that Officer Roblee knew Plaintiff had a condition of urgency yet chose to ignore it. Plaintiff alleges that Officer Roblee violated his constitutional rights by "leaving [him] in his cell all night without seeking any medical treatment." ((Compl. Sect. II). However, no facts are alleged indicating that Officer Roblee had the required "sufficiently culpable state of mind," or that Officer Roblee was "aware of a substantial risk that serious inmate harm will result." Salahuddin, 467 F.3d at 280. Plaintiff had already been seen by medical personnel after his fall. He complained of pain in the night, but not every instance of pain requires a trip to a medical facility. "The Constitution does not . . . contemplate that prisoners receive unfettered access to medical care." Cain v. Jackson, No. 05 Civ. 3914, 2007 WL 2193997, at *5 (S.D.N.Y. July 27, 2007) (quoting Alston v. Howard, 925 F. Supp. 1034, 1040 (S.D.N.Y. 1996). The fact that Plaintiff asked to see a doctor for a second time but was denied does not, without more, impute to Officer Roblee the subjective mental state necessary to make out an Eighth Amendment deliberate indifference claim where, as here, the Plaintiff had already been seen by medical personnel and his own pleading reveals nothing more than "mere disagreement over the proper treatment." Chance, supra.

CONCLUSION

For the foregoing reasons, the Complaint is dismissed with prejudice for failure to state a claim. The Clerk of the Court is directed to (1) remove Docket No. 22 and 27 (erroneously docketed as a motion, which it is not) from the Court's list of pending motions, (2) enter judgment dismissing the complaint in its entirety, and (3) close the file. Dated: January 31, 2014

/s/_________

U.S.D.J. BY ECF TO ALL COUNSEL