SELAH v. N.Y.S. DOCS COMMISSIONER

Full title: SELAM SELAH, Plaintiff, v. N.Y.S. DOCS COMMISSIONER, GLEN GOORD; DOCS…

Court: United States District Court, S.D. New York

Date published: Jul 24, 2006

04 Civ. 3273 (DC) (S.D.N.Y. Jul. 24, 2006)

Opinion

04 Civ. 3273 (DC).

July 24, 2006

SELAM SELAH Plaintiff Pro Se DIN 91-B-2388 Coxsackie Correctional Facility Coxsackie, New York.

ELIOT SPITZER Attorney General of the State of New York By: John M. Schwartz, Esq. Assistant Attorney General New York, New York.

MEMORANDUM DECISION

DENNY CHIN, District Judge

Pro se plaintiff Selam Selah bring this prisoner civil rights action pursuant to 42 U.S.C. § 1983, alleging generally that officials of the New York State Department of Correctional Services ("DOCS"), Fishkill Correctional Facility ("Fishkill"), and the New York State Parole Commission have denied him adequate mental health treatment and showed deliberate indifference to his mental health needs; unfairly denied him release on parole; and intentionally discriminated against him because of his status as a convicted sex offender who is mentally ill. Defendants John Culkin (sued herein as "DOCS Central Office Mental Health Coordinator"), James Stone (sued herein as "N.Y.S. Department of Mental Health, Director"), and Robert Rizzo (sued herein as "Fishkill Correctional Facility's Office of Mental Health, Unit Chief") (collectively, the "Moving Defendants") move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b) (6).¹ For the reasons that follow, the motion is granted.

1 The caption also names as defendants Commissioner of Corrections Glenn S. Goord and two officials of the state parole board. These defendants have not been served and, as the time to serve them has long expired, the complaint is dismissed as to them. See Fed.R.Civ.P. Rule 4(m).

BACKGROUND

A. The Original Complaint and Its Dismissal

Selah originally filed this action on June 19, 2003, making many of the same allegations that he makes here. On April 29, 2004, Chief Judge Mukasey granted Selah's request to proceed in forma pauperis and issued a screening order (the "Order") pursuant to 28 U.S.C. §§ 1915 and 1915A. The Order dismissed (1) Selah's claims regarding constitutional violations that occurred outside the Southern District of New York (Order at 2); (2) Selah's claims against Commissioner Goord, the DOCS Mental Health Coordinator, and Mental Health Commissioner Stone, because Selah had not alleged facts demonstrating those defendants had direct involvement with, knowledge of, or responsibility for the alleged deprivations of his civil rights (id. at 3); (3) Selah's claims against Brian Travis and Parole Board Commissioner Tappan regarding the unfair denial of his release on parole because Selah had failed to allege facts demonstrating a violation of his constitutional rights regarding parole (id. at 4); and (4) the claim of being unfairly subjected to behavior modification prison programs on the grounds that courts must give great deference to state prison authorities to adopt and execute policies and practices (id. at 5).

Judge Mukasey also dismissed Selah's claim of inadequate medical care, finding that the claim failed to allege the requisite facts required to present a cognizable claim under Section 1983. (Id. at 5-6). Finally, the Order noted that Selah's action could only be brought after he had exhausted any available administrative remedies, as required by 42 U.S.C. § 1997e(a). Selah was granted sixty days to amend his complaint to detail his claim of inadequate medical care and to allege that he had exhausted his administrative remedies with respect to that claim.

B. The Amended Complaint

Selah filed an amended complaint on October 7, 2004,² and the case was reassigned to the undersigned in April 2005. Although Judge Mukasey's order only granted Selah leave to replead his claim of inadequate medical care and exhaustion, Selah nevertheless makes many of the same allegations he made in his original complaint. Specifically, the amended complaint alleges that (1) DOCS and the Office of Mental Health failed to provide him with any "meaningful mental health care, treatment or services" for the purposes of rehabilitation or a cure (Am. Compl. ¶ 10); (2) he has been wrongfully denied parole (id. ¶ 11); (3) he is being "intentionally discriminated against . . . by virtue of his status as a convicted sex offender who is mentally ill," in violation of the Eighth Amendment (id. ¶ 12); (4) he is being denied equal protection because inmates with physical ailments get more effective treatment than he has received for his alleged mental ailments (id. ¶ 13); (5) various defendants have shown "deliberate indifference" to his mental health needs (id. ¶ 14); and (6) the DOCS Sex Offender Program ("SOP") "is not an appropriate alternative to treating him as a sex offender with mental illness," and the prison counselors running the program were "not appropriately qualified" to care for and treat him. (Id. at ¶ 17).

2 In another order issued on July 21, 2004, Judge Mukasey granted Selah an additional thirty days to file an amended complaint. The Amended Complaint, however, was filed forty-eight days after the extended deadline. Although the July 21st order expressly provided that filing an amended complaint after the extended deadline would result in dismissal, I will consider the Amended Complaint despite this procedural bar.

As to exhaustion, Selah alleges that he "submitted formal institutional grievances on the subject of being denied mental health care . . . and several more grievances on this same subject following that, plus appeals and lettered complaints all to no avail. Plaintiff has exhausted all of his administrative remedies against the Defendants pertinent to the issues involved in this case." (Id. at ¶ 16).

Selah asks for injunctive relief and $500,000 in damages, legal fees, and costs.

DISCUSSION

A. Law of the Case

As a preliminary matter, the Order dismissed all claims against the Moving Defendants, holding that the claims could only have been asserted based on the doctrines of respondeat superior or vicarious liability, and holding that those doctrines are not applicable to Section 1983 actions. (See Order at 3-4). The Order also granted Selah leave to amend his complaint only to replead his claims relating to inadequate medical care, and specifically stated that "plaintiff may not name any defendants [who] have been dismissed from this action by this Order." (Order at 9). Despite that admonition, Selah has once again named the Moving Defendants, asserting many of the same claims.

Under the law of the case doctrine, a decision on an issue of law becomes binding precedent in subsequent stages of the same litigation. In re PCH Assocs., 949 F.2d 585, 592 (2d Cir. 1991). It authorizes departure from a prior ruling when there has been an intervening change of controlling law, new evidence becomes available, or there is a "need to correct a clear error or prevent manifest injustice." Virgin Atl. Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citations omitted).

There has been no such showing here; thus, on this basis alone, the amended complaint must be dismissed, because Judge Mukasey's Order dismissing all claims against the Moving Defendants and prohibiting Selah from naming them in his amended complaint is the law of the case.

B. Exhaustion

As Judge Mukasey explained in the Order, 42 U.S.C. § 1997e(a) provides that "no action shall be brought with respect to prison conditions" under Section 1983 "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). This 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). The Order explained that DOCS has established an "Inmate Grievance Procedure" ("IGP"),³ and it admonished Selah to show in his amended complaint that "he has completely exhausted [all] administrative remedies through the highest level for the claim he seeks to present." (Order at 8-9).

3 The IGP is New York's administrative grievance program through which grievances may be formally or informally resolved.See 7 N.Y.C.R.R. § 701.7. As the Second Circuit has explained, the IGP "is a three-step process that requires an inmate to: (1) file a grievance with the [Inmate Grievance Resolution Committee], 7 N.Y.C.R.R. § 701.7(a) (1); (2) appeal to the superintendent within four working days of receiving the [Inmate Grievance Resolution Committee]'s written response, 7 N.Y.C.R.R. § 701.7(b) (1); and (3) appeal to the CORC in Albany, New York within four working days of receipt of the superintendent's written response, 7 N.Y.C.R.R. § 701.7(c) (1)." Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004).

Selah's conclusory assertion that he has submitted "formal institutional grievances" and "exhausted all of his administrative remedies" plainly does not satisfy the Order's directive. Furthermore, defendants with their motion have submitted documentation to establish that Selah did not exhaust his administrative remedies with respect to the claims he now brings. Though Selah is presently incarcerated at Coxsackie Correctional Facility, he has been in DOCS custody since 1991 and at all times relevant to the Amended Complaint was incarcerated at Fishkill. The available DOCS records show that Selah initiated two grievances while incarcerated at Fishkill and appealed them to the Central Office Review Committee ("CORC"), the highest level of administrative review for grievances filed with the Inmate Grievance Program ("IGP"). Neither grievance related to the alleged denial of mental health care.

The first grievance was filed on June 17, 2002, and pertained to the alleged failure of DOCS to provide Selah with lactose enzyme tablets to treat his lactose intolerance. (Schwartz Decl. Ex. F). Selah also requested that he be allowed to see a medical provider of his choice. (Id.). CORC upheld the superintendent's determination that Selah did not need lactose enzyme tablets because the medical record indicated that he was not lactose intolerant. (Id.). CORC also determined that Selah was not entitled to be seen by the health care provider of his choice, and found no malfeasance on the part of the doctor that Selah complained about. (Id.).

The second grievance was filed on June 19, 2002. (Schwartz Decl. Ex. G). Selah alleged that he was being unfairly denied the opportunity to participate in the New York Theological Seminary class. (Id.). CORC denied the grievance, noting that Selah was a poor candidate due to his disciplinary history. (Id.).

Selah filed two additional grievances relating to medical care after June 2002, but both were filed while Selah was incarcerated at Great Meadow Correctional Facility, outside of the Southern District of New York. (Schwartz Decl. Ex. E). Similarly, he also filed two grievances after commencing this lawsuit that appear to relate to his claims in this case⁴ — one entitled "Sex Offender Care — [Office of Mental Health]," and the other entitled "Refuses Chemical Dependency/SOP Programs" — but both were filed while Selah was incarcerated at facilities outside the Southern District (Washington Correctional Facility and Mid-State Correctional Facility, respectively). (Id.). As Judge Mukasey noted, this Court is not the appropriate court for claims regarding treatment at facilities outside the Southern District of New York, and these grievances will not be considered here. (Order at 2; see 28 U.S.C. §§ 1391(b), 1406(a)).

4 The record includes the paperwork associated with the grievance Selah filed at Washington Correctional Facility ("Sex Offender Care — OMH"), but it does not include the grievance filed at Mid-State Correctional Facility ("Refuses Chemical Dependency/SOP Programs"). (Schwartz Decl. Exs. E, J).

Accordingly, it is apparent that Selah has not, as required, exhausted his administrative remedies for his claim of inadequate medical care, or, for that matter, any of the claims asserted in his amended complaint. This is an independent basis for dismissal of all claims.

C. The Merits

Finally, even if I were to ignore the above procedural bars and consider Selah's claims on the merits, it is apparent that they must be dismissed.

1. Applicable Law a. Section 1983

To state a claim under 42 U.S.C. § 1983 ("Section 1983"), a plaintiff must show that defendants, while acting "under color of state law," deprived plaintiff of his constitutional or statutory rights. Shabazz v. Vacco, No. 97 Civ. 3761 (DC), 1998 WL 901737, at *2 (S.D.N.Y. Dec. 28, 1998) (citing Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir. 1994)); see also 42 U.S.C. § 1983. To withstand a motion to dismiss, a Section 1983 complaint must set forth specific factual allegations indicating a deprivation of constitutional rights. Shabazz, 1998 WL 901737, at *2; see Alfaro Motors v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) ("[B]road, simple, and conclusory statements are insufficient to state a claim under § 1983."). Pro se complaints are to be liberally construed and interpreted "to raise the strongest argument that they suggest." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted).

To state a claim for damages under Section 1983, a plaintiff must allege specific facts to demonstrate that the defendants were personally or directly involved in the violation, that is, that there was "personal participation by one who ha[d] knowledge of the facts that rendered the conduct illegal." Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001). The personal involvement required may be satisfied by showing the defendant (i) personally participated in the violation, (ii) was grossly negligent in supervising subordinates who committed wrongful acts, or (iii) exhibited deliberate indifference by failing to act on information indicating the unconstitutional acts were occurring. Id. at 154.

b. Application i. Eighth Amendment Claims

Selah's principal claims are based on the alleged lack of mental health care that he received at Fishkill. He alleges that the defendants denied him adequate mental health treatment and showed deliberate indifference to his mental health needs. The amended complaint does not allege facts constituting a deprivation of Selah's rights under the Eighth Amendment, and therefore must be dismissed.

To establish an inadequate medical care claim under Section 1983, a plaintiff must show that defendants were deliberately indifferent to his serious medical needs. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The standard for deliberate indifference has both an objective prong and a subjective prong.See Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citations omitted).

The former requires that the alleged deprivation of care be sufficiently serious in objective terms: the plaintiff's condition must present a "condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway, 37 F.3d at 66 (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting)). In the Second Circuit, "[a] serious medical condition exists where 'the failure to treat a prisoner's condition could result in . . . the unnecessary and wanton infliction of pain.'" Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). The subjective prong requires a showing that the defendants were aware of plaintiff's serious medical needs and consciously disregarded a substantial risk of serious harm.Hathaway, 37 F.3d at 66. That is, "the charged official must act with a sufficiently culpable state of mind." Id.

The amended complaint alleges vaguely that Selah suffers "from one form of mental health illness or another," but does not include specific information about any particular mental illness, or any diagnoses from a medical professional. (Am. Compl. ¶ 10). The only details of Selah's alleged condition are statements that his crimes "[are] due to behavior influenced or caused by mental illness," and that his "mental health history and records show[s] that his instant offenses stem from some form or another of mental illness." (Id. at ¶¶ 10, 12).

Selah's conclusory allegation that he suffers from some kind of mental illnesses that caused or influenced his criminal behavior is insufficient to rise to the level of a constitutional violation for failure to provide medical care. If sufficiently serious, the denial of mental health care may constitute a violation of the Eighth Amendment. McCoy v. Goord, 255 F. Supp. 2d 233, 259 (S.D.N.Y. 2003) (citing Young v. Coughlin, No. 93 Civ. 262 (DLC), 1998 WL 32518, at *4 (S.D.N.Y. Jan. 29, 1998)). Here, however, there is no allegation, as required, of "pain, discomfort or risk to health," Farinaro v. Coughlin, 642 F. Supp. 276, 279 (S.D.N.Y. 1986), nor is there support for the claim of mental illness in the form of "medical evidence, such as a physician's diagnosis." Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995). Compare Sims v. Daley, No. 95 Civ. 3239 (LAP), 1997 WL 33608 (S.D.N.Y. Jan. 29, 1997) (hearing voices with history of mental illness is serious medical need);Chance, 143 F.3d at 702-03 (cavities that caused extreme pain, tooth degeneration, and eating difficulties are serious medical need), with Singleton v. Perilli, No. 03 Civ. 2271 (DC), 2004 WL 74238, at **1, 3 (S.D.N.Y. Jan. 16, 2004) (glaucoma that interfered with academic classes is not serious medical need);Doe v. Goord, No. 04 Civ. 570 (GBD), 2006 U.S. Dist. LEXIS 21074, at **2-3, 7-8 (past heroin recidivism is not serious medical need); Harris v. Lord, 957 F. Supp. 471, 475-76 (S.D.N.Y. 1997) (instability and need to talk with someone to calm down not serious medical needs).

Furthermore, Selah's apparent disagreement with the treatment regime available also fails to state a sufficient claim. Mere differences of opinion between Selah and the Moving Defendants concerning the proper course of treatment do not give rise to an Eighth Amendment violation. Boomer v. Lanigan, No. 00 Civ. 5540 (DLC), 2001 WL 1646725, at *3 (S.D.N.Y. Dec. 17, 2001). As the Second Circuit has noted, "[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.

Finally, Selah has not alleged with the requisite specificity any acts or failures by any of the Moving Defendants. Even reading the amended complaint in the light most favorable to plaintiff, no facts are alleged to suggest that any of the Moving Defendants were personally involved in or aware of any of the alleged wrongdoing. The amended complaint contains only statements of the defendants' positions, all of which are supervisory. (Am. Compl. ¶¶ 3-9). It contains no allegations of any direct or personal involvement in the alleged constitutional violations, a prerequisite to a damage award under 42 U.S.C. § 1983. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Nor has Selah alleged that defendants had actual or constructive notice of the alleged violations. See McCann v. Coughlin, 698 F.2d 112, 125 (2d Cir. 1985).

Selah's pleadings do not include allegations against any of the unnamed members of the mental health or medical staffs. "It is well-settled that 'where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.'"McCoy, 255 F. Supp. 2d at 258 (quoting Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999)). Moreover, as Judge Mukasey noted, liability for damages in an action brought under 42 U.S.C. § 1983 may not be based on the doctrines of respondeat superior or vicarious liability. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citations omitted). The Second Circuit has repeatedly held that "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections . . . in a § 1983 claim." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). For all the foregoing reasons, Selah's Eighth Amendment claims are dismissed.

3. Additional Claims

In addition to the medical claims, Selah also alleges that he was unfairly denied release on parole and that he was intentionally discriminated against because of his status as a convicted sex offender with a mental illness, in violation of the Equal Protection clause. (Am. Compl. ¶¶ 11-13). These claims are rejected. First, as noted above, they are barred by the doctrine of law of the case as well as the requirement of exhaustion. Second, as to the claim of denial of parole, "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholz v. Inmates of Nebraska Penal Corr. Complex, 442 U.S. 1, 7 (1979). Moreover, even if Selah had alleged facts sufficient to bring a claim of wrongful denial of parole, it would be a matter to be resolved in the state court system. (See Order at 4-5).

As to the equal protection claim, Selah does not include the nature of this alleged discrimination or any specific discriminatory acts apart from reiterating his medical claims and alleging that the defendants "discriminate[d] against him by virtue of his designation as a sex offender, his mental illness, and punishing him for behavior influenced or caused by mental illness." (Id. at ¶ 12; Selah Decl. ¶ 7). To prove a violation of the Equal Protection Clause, a plaintiff must demonstrate that he was intentionally treated differently from others similarly situated as a result of intentional or purposeful discrimination directed at an identifiable or suspect class. See Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995) (citations omitted). Neither sex offenders nor the mentally ill are a suspect class warranting heightened equal protection scrutiny.Artway v. Attorney Gen., 81 F.3d 1235, 1267 (3d Cir. 1996);City of Cleburne v. Cleburne Living Ctr., 473 U.S. at 445-46. Consequently, plaintiff must show that "the disparity in treatment cannot survive the appropriate level of scrutiny which, in the prison setting, means that he must demonstrate that his treatment was not reasonably related to [any] legitimate penological interests." Phillips v. Girdich, 408 F.3d 124, 129 (2d Cir. 2005) (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)).

Selah's equal protection claim rests only on his conclusory allegation that he has suffered discrimination by defendants, without any further facts in support. Insofar as he is classified as a sex offender who is mentally ill, Selah does not present any information regarding resultant disparate treatment that was not reasonably related to legitimate penological interests. Furthermore, his treatment is a matter of prison administration to be made by the professionals in charge of his care. See Turner v. Safley, 482 U.S. 78, 84-85 (1987). Accordingly, this claim must also be dismissed.

CONCLUSION

For the reasons set forth above, the Moving Defendants motion to dismiss is granted and the amended complaint is dismissed. Because plaintiff has not made a substantial showing of the denial of a constitutional right, I decline to issue a certificate of appealability, and I certify that any appeal of this memorandum decision would not be taken in good faith. See 28 U.S.C. § 1915(a) (3). The Clerk of the Court shall enter judgment accordingly and close this case.

SO ORDERED.