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finding that conflicting statements [offered by a non-party]-that the prisoner needed to refile [his grievance] and that the prisoner should await the results of DOCS's investigation-estopped the defendants from relying on the defense on non-exhaustion, or "[a]lternatively, . . . provided . . . a `special circumstance' under which the plaintiff's failure to pursue the appellate procedures specified in the IGP was amply justified."
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No. 03 Civ. 8736 (GEL).
August 31, 2004
Vincent Warren, pro se.
Eliot Spitzer, Attorney General of the State of New York, by Benjamin Lee, Assistant Attorney General (of Counsel), for defendants.
OPINION AND ORDER
Pro se plaintiff Vincent Warren, an inmate at Sing Sing correctional institution, brings the instant complaint for monetary relief under 42 U.S.C. § 1983 alleging deliberate indifference to his medical needs, inadequate medical care, and unlawful restraint in violation of the Eighth Amendment. The claims asserted arise out of an incident in which plaintiff slipped and fell on ice on the walkway of the prison's recreation yard. Warren brings claims against corrections officers ("C.O.s") Terry, Steven Purcell and Dennis McGill for an allegedly deliberate delay in escorting him to a follow-up medical appointment the day after the accident, against Officer Nicole Vivican for improperly chaining him to a stretcher on the way to the hospital and refusing to loosen his cuffs when they became too tight, against Dr. Hari Chakravorty for refusing him treatment, and against Officer Bisanette for interfering with the treatment eventually provided by another clinic doctor. Plaintiff seeks monetary relief in the amount of $100,000 in addition to legal fees and costs. Defendants move to dismiss on grounds of failure to exhaust administrative remedies under the PLRA, failure to state a constitutional claim, and qualified immunity. The motion will be granted in part and denied in part.
Plaintiff does not identify whether Terry is the defendant's first or last name, and provides no further identifying information beyond stating that s/he is a "C.O." (2d Am. Compl. ¶ 3.)
In the caption and throughout the Second Amended Complaint, Plaintiff refers to this defendant as "Vivica." However, the Attorney General's brief spells her name "Vivican." The Court will assume that the attorney representing her has used the correct spelling of her name, and will refer to her in this opinion as "Vivican."
Plaintiff similarly fails to identify the first name of Officer Bisanette.
As discussed below, plaintiff disavows any potential claims against defendants Hann, Christine, Henschel, and Thornton, who were named in his First Amended Complaint. See infra Part II.
PROCEDURAL HISTORY
On March 24, 2003, this Court's Pro Se Office received plaintiff's original complaint in the above-mentioned matter seeking monetary relief under 42 U.S.C. § 1983. By order dated November 5, 2003, the Honorable Michael B. Mukasey dismissed various claims and "grant[ed] plaintiff leave to amend his [original] complaint in order to detail his allegations of unlawful restraint and the denial of medical attention." Warren v. Thornton, No. 03 Civ. 8736, slip op. at 7 (S.D.N.Y. Nov. 5, 2003). Judge Mukasey also directed plaintiff to demonstrate that he had exhausted his administrative remedies for purposes of satisfying the requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("PLRA"). Id. at 6. Plaintiff timely filed an Amended Complaint on November 24, 2003, and the case was reassigned to this Court on December 30, 2003. Several of the defendants, represented by the Attorney General of the State of New York, filed the present motion to dismiss on April 30, 2004.
These defendants are Deputy Superintendent for Programs Delores Thornton, Officers Dennis McGill, Officer Steven Purcell, C.P. John Henschel, Officer Nicole Vivican, Officer Terry, Sergeant Susan Hann and Dr. Hari Chakravorty. The remaining defendants named in the Amended Complaint, Officers Fonree, Murfarn, and Bisanette and Nurse Christine have not requested representation from the Office of the Attorney General. (See D. Br. 1 n. 1.)
On May 25, 2004, plaintiff filed his opposition brief along with a proposed Second Amended Complaint. Plaintiff's proposed Second Amended Complaint, if accepted for filing, would "ordinarily supersede the original and render it of no legal effect." International Controls Corp. v. Vesco, 556 F.2d 665, 668-69 (2d Cir. 1977). Although the proposed Second Amended Complaint was filed after the defendants' motion to dismiss, and was apparently never served on the individual defendants who remain pro se, the Court accepted it for filing despite lack of proof of service; a copy was thereafter mailed to the office of the Attorney General. The moving defendants had an opportunity to respond to it in their reply memorandum, and did so, urging the Court to reject its filing as futile and incorporating the arguments raised in their original motion by arguing that the Second Amended Complaint failed to cure the defects they had identified in that motion. (See D. Reply.)
The Court, however, finds that the Second Amended Complaint, which adds various defendants and drops others, but does not materially alter the central allegations contained in the Amended Complaint, significantly clarifies the scope of plaintiff's claims. Allowing plaintiff to file the Second Amended Complaint would not prejudice moving defendants, on whom it has been served through their attorney, and who have taken the opportunity to respond to its allegations. It is therefore in the interests of justice to permit its filing. Accordingly, the Court will proceed upon the Second Amended Complaint as to the moving defendants, and the facts asserted therein shall be accepted as true for purposes of this motion. See Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995).
As further clarified below, although the non-moving defendants have not yet been served with the Second Amended Complaint, with the exception of Officer Bisanette, the claims against each of them are dismissed here as meritless. Permitting the plaintiff to attempt service on those defendants would therefore be futile. However, because plaintiff asserts a colorable claim against Officer Bisanette, the Court will afford the plaintiff additional time to perform service solely on him.See infra Part IV.E.
BACKGROUND
On or about January 3, 2003, at approximately 9:15 a.m., Warren slipped and landed "neck first" on an ice-covered walkway inside the yard at Green Haven Correctional Facility. (2d Am. Compl. ¶¶ 5-6, 8.) In preparation for his transport to Green Haven's medical clinic, Correctional Officer Murfarn instructed plaintiff to roll onto his front, face down on the stretcher. (Id. at ¶ 12.) When plaintiff failed to do so because "he was in so much pain he couldn't move by himself," Murfarn handcuffed Warren "backwards" as he lay on the stretcher, placing "a black box over the cuffs, plac[ing] a chain through it, and wrapping the chain around the [stretcher]." (Id. at ¶¶ 9, 13, 14.) Warren then complained to Officer Murfarn that the position he was in was painful to his injured neck; Murfarn then "unlocked the chain and [rolled] plaintiff on top of his hands" and cuffed Warren's left ankle to the roll-out bed under the stretcher. (Id. at ¶¶ 15-17.)
There is some discrepancy between the date cited by plaintiff in his Second Amended Complaint and the date on the hospital report. (See Am. Compl. Ex. 1.) However, the Court will accept the dates alleged in plaintiff's complaint for purposes of this motion.
On the way to the hospital, Warren claims the EMS van hit a speed bump and his handcuffs then became tight on his wrists "because C.O. Murfarn never locked the cuffs so that they wouldn't get tighter." (Id. at ¶ 19.) Warren complained to all three correctional officers that his hand cuffs had become too tight and that his ankle cuffs were so tight that "he couldn't feel his toes on his left foot." (Id. at ¶ 20.) Officer Vivican told Warren that the cuffs could not be fixed while in transit, but that they would be fixed at a later point. (See id. at ¶ 21.)
When Warren arrived at the hospital at approximately 1:30 or 2:00 p.m., he again asked Officer Vivican to fix his cuffs. (Id. at ¶¶ 22-23.) When she denied his request, Warren then asked Officer Fonree to fix the cuffs, to which he replied, "I have to go with my fellow officer." (Id. at ¶ 23.) Warren then asked Officer Murfarn the same question, and while the record is not clear as to his exact response, it is apparent that he did not adjust either Warren's hand or ankle cuffs; Warren remained cuffed in the same manner from 1:30 until 7:00 p.m., even during a CAT Scan. (See id. at ¶¶ 23, 25-27.) As a result, "[a]fter hours of complaining, and being [i]gnored, plaintiff[']s left foot became numb and swollen [and his] hands did as well." On the return trip to Green Haven, plaintiff was "cuffed forward with the chain placed around his waist and the shackles properly placed on his ankles." (Id. at ¶ 28.) All told, Warren claims he was in pain for approximately 4-5 hours because of the handcuffing procedures used by these defendants. (Id. at ¶ 29.)
Upon his return to Green Haven, plaintiff gave a copy of his medical discharge instructions to his block C.O. (See id. at ¶ 30-31; Am. Compl. Ex. 1.) This report shows that Warren was to have a follow-up examination by a doctor on the Green Haven Facility Staff "in the a.m.," presumably of the following day. (Am. Compl. Ex. 1.) The next day, at 7:15 a.m., Warren informed Officer Terry that his neck hurt and he needed to see a doctor. (Id. at ¶ 32.) At approximately 9:00 a.m., Officer Terry allegedly told Warren, "C.O. Purcell and C.O. McGill said you are not going anywhere." Id. at ¶ 33.) Warren then showed Officer Terry his medical permit but Officer Terry still refused to take him to the clinic, allegedly saying, "You heard what my partners said, you are not going anywhere. [Y]ou don't like it write a grievance." (Id. at ¶ 34.) As Officer Terry walked away, Warren yelled, "I'm in pain. I need a doctor" and "was told 5 to 6 times to shut up or they [the officers] will shut him up." (Id. at ¶ 35.) Other inmates began yelling on Warren's behalf and as a result, Officer Purcell turned off the power on Warren's "company." (Id. at ¶¶ 36-37.)
At approximately 11:30 a.m. that day, the clinic sent Officer Bisanette to escort Warren to the clinic because he had not reported earlier in the morning. (Id. at ¶ 38.) Warren avers that once in the clinic, he entered Dr. Chakravorty's office where the doctor refused to look over his X-ray or hospital report and told him to "get the hell out of his office" because "there was nothing wrong with him." (Id. at ¶¶ 39-40.) At some point Warren requested pain medication and Dr. Chakravorty demanded that Officer Bisanette remove Warren from his office. (Id. at ¶ 41.) As Warren walked through the clinic "in tears," Dr. Bendheim, another doctor in the clinic, called Warren into his office, looked over the St. Francis Hospital report and issued him a neck brace. (Id. at ¶ 43.)
Warren avers Officer Bisanette then barged into Dr. Bendheim's office trying to "snatch the neck brace off' him and that Dr. Bendheim had to step between Bisanette and Warren. (Id. at ¶ 44.) Officer Bisanette then gave Warren a direct order to exit and he did so, leaving behind his pain medication. (Id. at ¶¶ 44-45.) Warren did not receive pain medication until later that night, totaling over 40 hours that he went without pain medication after his accident. (Id. at ¶ 45.)
DISCUSSION
I. Standard on a Motion to Dismiss
On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept as true all well-pleaded factual allegations in the complaint and view them in the light most favorable to the plaintiff. Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). When adjudicating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the "issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996) (internal quotation marks and citations omitted). When deciding such a motion, the Court may consider documents attached to the complaint as exhibits or incorporated in it by reference, and such facts as are suitable for judicial notice pursuant to Fed.R.Evid. 201. Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991). All reasonable inferences are to be drawn in the plaintiffs' favor, which often makes it "difficult to resolve [certain questions] as a matter of law." In re Independent Energy Holdings PLC Sec. Litig., 154 F. Supp. 2d 741, 748 (S.D.N.Y. 2001).
"While the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice." Leeds, 85 F.3d at 53. However, "[a] pro se complaint, 'however inartfully pleaded,' must be held to 'less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976), quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court will not dismiss a pro se complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Thomas v. City of New York, 143 F.3d 31, 36-37 (2d Cir. 1998).
II. Abandoned Claims
Defendants argue that plaintiff's claims based on his slip-and-fall should be dismissed for failure to state a constitutional violation. This issue has been mooted. In his opposition brief plaintiff disavows any intention to pursue a claim for negligence regarding his actual fall; he explains, quite sensibly, that as directed by the Court, he merely attempted to explain what happened in "step by step detail," but that he is not seeking damages for the fall, only for the alleged excessively harsh restraint and the alleged denial of medical care that followed. (See P. Opp. 3 at ¶ 1.) Equally sensibly, and aware of the rule of liberal construction of pro se complaints, defendants interpreted plaintiff's account of the accident as seeking to state a claim. Plaintiff has now cleared up his intentions. Accordingly, to the extent that his complaint could be construed as making any such claim, it is to that extent dismissed on consent.
Similarly, defendants' argument that plaintiff's claims against Thornton, Hann and Henschel should be dismissed is mooted by the plaintiff's having dropped these defendants from the Second Amended Complaint on May 25, 2005. Plaintiff again disavows any intention of seeking damages against individuals who were not personally involved, once again attributing his naming all of these defendants to understandable ignorance of court procedure and a desire to be thorough. (See id. at 4, at ¶ 2.) The complaint will be dismissed as against these individuals on consent.
III. Exhaustion Under the PLRA
The threshold question in any suit regarding prison conditions is whether the plaintiff has complied with the exhaustion requirement of the PLRA. The PLRA provides, in relevant part: "No action shall be brought with respect to prison conditions under . . . any federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative procedures as are available are exhausted." 42 U.S.C. § 1997e(a). This requirement applies to suits such as this one that grow out of particular incidents, as well as to suits that more generally address the conditions of a prisoner's confinement. Porter v. Nussle, 534 U.S. 526, 532 (2002). Although the Second Circuit has clarified that failure to exhaust administrative remedies does not deprive the courts of jurisdiction, exhaustion is still a statutory prerequisite to bringing suit. Richardson v. Goord, 347 F.3d 431, 433-34 (2d Cir. 2003). Plaintiffs must therefore exhaust all available administrative appeals prior to filing a complaint, or face its dismissal. Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), overruled on other grounds by Porter, 534 U.S. at 532 (2002). It is uncontested that the Department of Correctional Services ("DOCS") maintains an internal, three-step grievance procedure for addressing prisoner complaints, and that this system applies to complaints like those brought here. See N.Y. Correct. Law. § 139 (McKinny's 2004); N.Y. Comp. Codes R. Regs. Tit. 7 §§ 701.1-701.16 (2004).
Defendants argue that plaintiff's complaint is defective for two related reasons: First, although they concede that plaintiff has exhausted his administrative remedies with respect to the majority of his claims, they assert that plaintiff failed to demonstrate in accordance with Judge Mukasey's November 5 Order that he exhausted his administrative remedies on his claims of inadequate medical treatment against Dr. Chakravorty. (D. Br. 6) In support, they offer a sworn statement that after a search of Central Office Review Committee ("CORC") records, they have found "no record that any grievance appeal by plaintiff was received relating to his claim that . . . Dr. Chakravorty was deliberately indifference [ sic] to plaintiff's medical condition." (Eagen Decl. ¶ 6.) Second, they argue that based on this procedural deficiency, plaintiff's complaint must be dismissed in its entirety.
It bears emphasis that it is not the plaintiff's burden to plead the elements of exhaustion in the complaint itself, but rather, the defendant's burden to raise and prove failure to exhaust in its answer or motion to dismiss. Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004); Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) ("[A] defendant in a prisoner § 1983 suit may also assert as an affirmative defense the plaintiff's failure to comply with the PLRA's requirements."). However, in this case, plaintiff was specifically directed by Judge Mukasey's November 5, 2003, Order to "show that he has completely exhausted the state's administrative remedies through the highest level for each claim he seeks to present." Warren, No. 03 Civ. 8736, slip op. at 7 (S.D.N.Y. Nov. 5, 2003). Dismissal would be appropriate, either on the defendant's motion or by the court sua sponte, where the plaintiff has failed to produce evidence rebutting the defense of lack of exhaustion after being afforded the opportunity to do so. See Snider v. Melindez, 199 F.3d 108, 112 (2d Cir. 1999); Hucks v. Artuz, No. 99 Civ. 10420, 2001 WL 210238 (S.D.N.Y. Feb. 27, 2001).
With respect to defendants' second argument, although the question was unsettled at the time this motion was briefed, the Second Circuit has since held that the PLRA does not require a court to dismiss an entire action where the plaintiff has failed to exhaust one or more of the component claims. Ortiz v. McBride, No. 02-0088, ___ F.3d ___, 2004 WL 1842644, at *12 (2d Cir. Aug. 18, 2004). Although there may be cases in which the exhausted and unexhausted claims are so intertwined that exhaustion should be required, that is not the case here. Plaintiff's claims against Dr. Chakravorty deal with his alleged failure to provide treatment to the plaintiff for injuries arising from his accident, and are entirely severable from the rest of his exhausted claims. The law is now clear that the fact that a plaintiff failed to exhaust administrative remedies with respect to a particular claim therefore does not require dismissal of his entire complaint. Thus, defendants' argument of failure to exhaust applies, at most, to the claim against Dr. Chakravorty, and cannot justify dismissal of plaintiff's other claims.
In any event, plaintiff argues that even his claim against Dr. Chakravorty should not be dismissed for failure to exhaust. Although failure to exhaust will normally result in dismissal, the Second Circuit has recently made clear in a series of decisions that there are exceptions to this rule, and has outlined a three-part inquiry in determining whether a plaintiff's failure to exhaust should preclude a claim from proceeding:
Depending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact "available" to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether "special circumstances" have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.Hemphill v. New York, No. 02-0164, ___ F.3d ___, 2004 WL 1842658, at *5 (2nd Cir. Aug. 18, 2004) (citations and quotations omitted).
In support of his argument that his unexhausted claim should not be dismissed, plaintiff submits an original letter that he avers constitutes the original grievance filed, as well as a "return of grievance" form purporting to reject his grievance. The form begins by stating, "your grievance received on 2/12/03 is being returned to you for one or more of the following reasons. Please feel free to correct the noted problems and to resubmit the grievance." Incredibly, by way of explanation, the letter states, "Your grievance is medical and needs to be investigated. It will take a minute before a response."
Under the standard recited above, administrative remedies were arguably "available" to the plaintiff, who could have pursued an appeal or reformulated the grievance had he been able to understand the disposition of his complaint. Nonetheless, DOCS's own response to his grievance estops defendants from relying on the defense of failure to exhaust. First, it is impossible to determine from the "return of grievance form" whether plaintiff's grievance had been rejected or accepted: Although the nature of the form suggests that the grievance had not been accepted for filing, the explanation suggests that it had been accepted and that an "investigat[ion]" and "response" were to be expected in due course. It was thus entirely unclear whether an appeal through the administrative process was called for in the first place. Second, even if the plaintiff were to discern that the grievance had in fact been rejected, it is wholly unclear what the plaintiff could have done to "correct" the problem, as the explanation provided indicates that the "problem" was merely that the claim required investigation. How the plaintiff should have proceeded in light of this baffling response is beyond this Court, and was presumably beyond the plaintiff, who does not dispute that he failed to pursue the matter further. It is thus wholly due to DOCS's own failure to provide simple guidance on how appropriately to proceed that the plaintiff failed to exhaust his administrative remedies. Alternatively, even if the communication to the plaintiff did not estop the defendants from raising the defense of exhaustion, the Court finds that the ambiguous message provided to the plaintiff constitutes a "special circumstance" under which the plaintiff's failure to pursue the appellate procedures specified in the IGP was amply justified. See Giano v. Goord, No. 02-0105, ___ F.3d ___, 2004 WL 1842652 (2d Cir. Aug. 18, 2004). The defendants' motion to dismiss the claims against Dr. Chakravorty for failure to comply with the PLRA's exhaustion requirement will therefore be denied.
IV. Merits of Remaining Claims
A. Legal Standard for Eighth Amendment Claims
Cruel and unusual punishment under the Eighth Amendment constitutes the "unnecessary and wanton infliction of pain."Hope v. Pelzer, 536 U.S. 730, 737 (2002). To state a claim for cruel and unusual punishment, a plaintiff's allegations must satisfy both an objective and a subjective test. Farmer v. Brennan, 511 U.S. 825, 838-39 (1994); accord Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995). "First, the alleged deprivation must be, in objective terms, 'sufficiently serious.'" Hathaway, 37 F.3d at 66, quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)), and citing with approval Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting) (standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain") (citations omitted). Second, since the Eighth Amendment bars "only the unnecessary and wanton infliction of pain," the subjective prong requires that the prison official accused have acted with a sufficiently culpable state of mind. Wilson, 501 U.S. at 297-98. It is therefore necessary that the prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference can be drawn that a substantial risk of serious harm exists, and he must also draw the inference."Farmer, 511 U.S. at 837.
In the case of excessive use of force by prison guards, the objective component does not require any particular "quantity of injury," for "[w]hen prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency are always violated." Hudson v. McMillian, 503 U.S. 1, 9 (1992). Thus, in cases of deliberate use of force, the subjective standard predominates: the "core judicial inquiry" is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." 503 U.S. at 6-7. Nonetheless, the Eighth Amendment "excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind." Id. at 8-9; accord Branham v. Meachum, 77 F.3d 626, 630 (2d Cir. 1996).
The standard for deliberate indifference to medical needs is more stringent. The Supreme Court has ruled that allegations of indifference to serious medical needs of prisoners may constitute "the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment." Estelle, 429 U.S. at 104-05 (internal citations omitted.) However, in such cases, the objective standard predominates; a plaintiff may state such a constitutional claim only if the injury or illness is objectively serious. Hudson, 503 U.S. at 9; see also, e.g., Sonds v. St. Barnabas Hosp. Correctional Health Servs., 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) ("[A] cut finger, even where skin is 'ripped off,' . . . does not, as a matter of law, qualify as an injury severe enough to justify civil rights relief."); Veloz v. New York, 35 F. Supp. 2d 305, 312 (S.D.N.Y. 1999) (foot condition involving a fracture, bone cyst and arthritis not sufficiently serious); Evering v. Reilly, No. 98 Civ. 6718, 2001 WL 1150318, at *9 (S.D.N.Y. Sept. 28, 2001) (soreness and redness of vaginal area and bruises not sufficiently serious);Henderson v. Doe, No. 98 Civ. 5011, 1999 WL 378333, at *2 (S.D.N.Y. Jun. 10, 1999) (broken finger not sufficiently serious).
A prisoner may state an Eighth Amendment claim "whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed." Estelle, 429 U.S. at 105. Where the basis of a plaintiff's claim is a delay in providing access to the requisite medical care, the Second Circuit has limited claims establishing Eighth Amendment violations to "cases in which, for example, officials deliberately delayed care as a form of punishment; ignored a 'life-threatening and fast-degenerating' condition . . . or delayed major surgery." Demata v. New York State Correctional Dept. of Health Services, 198 F.3d 233 (2d Cir. Sept. 17, 1999) (Table of Decisions, text of summary order in WL) (citations and quotations omitted). In addition, "[w]hen the basis for a prisoner's Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in 'objective terms, sufficiently serious,' to support an Eighth Amendment claim." Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (emphasis in original).
B. Officers Vivican, Fonree, and Murfarn
Plaintiff alleges that defendants Vivican, Fonree, and Murfarn used excessive force in restraining him on his trip to the hospital. His claim is that his cuffs became too tight when the van in which he was being transported hit a bump, and that the defendant officers failed to adjust his cuffs when he complained of pain both during the trip and upon his arrival at the hospital. Although the use of excessively tight handcuffs can constitute a violation of the Eighth Amendment, see, e.g., Davidson v. Flynn, 32 F.3d 27, 30-31 (2d Cir. 1994), the plaintiff's claim here must fail. On the objective front, it appears highly unlikely that the injuries plaintiff alleges to have suffered as a result of the restraints, namely pain in his wrists and pain, numbness and swelling in his foot and ankle, would be considered sufficiently serious to rise to the level of an Eighth Amendment violation. There is no indication that the plaintiff suffered any lasting injury from the use of the restraints, and although the Court would be willing to accept his averments for purposes of this motion to dismiss, his injuries appear more than likely to prove de minimis.
However, the Court need not resolve this question, because the complaint does not satisfy the subjective requirement: plaintiff fails to allege any improper or wanton motive for the officers' actions. First, plaintiff's complaint itself makes no allegation that the officers deliberately placed the cuffs on too tightly, alleging only that the cuffs became too tight in transit because the officers "had never locked the cuffs so they wouldn't get tighter." (2d Am. Compl. ¶ 19.) Indeed, plaintiff states that when he first complained of discomfort due to the position in which he was initially cuffed prior to transit, Officer Murfarn readjusted his position in response. (Id. ¶¶ 12-17.) There is thus no indication that the tightening of the cuffs while in transit was anything but inadvertent. Second, plaintiff has never, in any version of his complaint, attributed any improper or retaliatory motive to the defendant officers, either in attaching the cuffs in this manner in the first instance, or in failing to loosen them once he complained. On the contrary, plaintiff admits that he was told in response to his complaints "that the chain could not be loosen[ed] to fix the cuffs in transit." (Id. at ¶ 21.) The complaint itself therefore suggests a legitimate penological justification for the officers' actions. While their refusal to adjust plaintiff's restraints may appear callous, in the absence of any allegation of improper or wanton motive, plaintiff's constitutional claim for use of excessive force must fail.
C. Officers Terry, Purcell, and McGill
Warren claims that by delaying his follow-up clinic appointment for approximately three and a half to four hours Officers Terry, Purcell and McGill were deliberately indifferent to the pain he was suffering from the neck injury that occurred the day before. Even accepting as true plaintiff's allegations that McGill, and Purcill acted deliberately in delaying his treatment, the less than four-hour delay alleged does not rise to the level of an Eighth Amendment violation. By the time of the claimed delay, the plaintiff had already seen a doctor, and had not been diagnosed with any severe or life-threatening condition. Warren presents no evidence, nor does he claim, that the delay caused by these officers in bringing him to his non-emergency follow-up visit caused or had the ability to cause death, degeneration, or extreme pain. While Warren claims to have suffered pain, it is clear that the interruption in treatment did not sufficiently exacerbate the situation so as to provide grounds for an Eighth Amendment violation.
In this case, since Warren's claim does not pass the objective test, it necessarily must fail under the subjective standard. In order for the correctional officers to have a culpable state of mind, they must "know of and disregard an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837. As previously established, the brief delay in treatment caused by officers Terry, Purcell and McGill posed no "excessive" risk to Warren's health or safety. Here, the correctional officers had no reason to suspect an emergency situation; while plaintiff had received a "permit" from his hospital visit the day before indicating that he needed treatment, there is no allegation that the permit indicated that such treatment needed to be provided on an urgent basis. See, e.g., Freeman v. Strack, No. 99 Civ. 9878, 2000 WL 1459782, at *9 (S.D.N.Y. Sept. 29, 2000) (no Eighth Amendment claim against nurse who scheduled inmate's appendectomy two hours later rather than seeing inmate immediately where "[t]here was nothing in [the inmate]'s medical history which would have put [the nurse] on notice that [plaintiff] was suffering from the onset of appendicitis . . . and there is no evidence that [the officer] gave [the nurse] any reason to believe that there was an emergency on hand"). Because these defendants had no reason to suspect such an emergency existed, there was nothing for them to ignore.
Although the Court can make no findings at this stage of the proceedings as to the seriousness of plaintiff's underlying injury, it is clear that the situation was not sufficiently urgent that the brief delay in receiving non-emergency follow-up treatment rises to the level of a constitutional violation. Because Warren's claim satisfy neither the objective nor the subjective prongs of the deliberate indifference test, his claims against Officers Terry, Purcill and McGill must be dismissed.
D. Dr. Chakravorty
Plaintiff brings claims against Dr. Chakravorty based on his allegation that once he got to the clinic, the doctor "refused to look over [his] x-ray and hospital report," that he "told him to 'get the hell out of his office and there was nothing wrong with him,'" and that he had plaintiff forcibly removed from his office without offering him the treatment or pain medication ordered by the hospital. (2d Am. Compl. ¶¶ 39-41.) Unlike the allegations of delay against Terry, Purcell and McGill, these allegations are sufficient to state a claim for a constitutional violation. The complaint does not allege mere delay in access to medical care, but rather, an outright refusal by a physician to provide previously-ordered treatment. Drawing all inferences in favor of the plaintiff, the refusal to conduct a sufficient examination on a patient who had suffered a neck injury due to a slip and fall the day before, or to provide the follow-up treatment ordered by a hospital, could result in both severe pain and serious degeneration of the patient's condition. Plaintiff's assertion that upon the his leaving Dr. Chakravorty's office, Dr. Bendheim examined him, reviewed his hospital report, and issued him the ordered treatment, also lends credence to plaintiff's claims that the injury was sufficiently serious to warrant prompt attention. It is thus reasonable to infer from plaintiff's allegations that doctor Chakravorty, who had full access to these same reports, "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837.
Whether the plaintiff's underlying injury was, in fact, serious enough to warrant immediate attention is not for the Court to determine at this phase of the proceedings, but must await further development of the evidentiary record. The matter will almost certainly become clearer once plaintiff has received all relevant medical records and taken the depositions of the appropriate medical personnel, including that of Dr. Bendheim. Should the injury in fact prove slight, the Eighth Amendment would not be implicated. And of course, a finder of fact may or may not accept Warren's account of his encounter with Dr. Chakravorty. For the time being, however, the Court must accept as true plaintiff's averments of extreme pain, and defendants' motion to dismiss plaintiff's claims against Dr. Chakravorty must be denied.
Defendants correctly point out that the plaintiff has not identified a diagnosis for his injuries or specified whether it caused any lasting damage. Plaintiff's original Amended Complaint alleged injuries including a "broken nose, nose bleed, neck strain . . . pain in legs, lower back[,] neck, pain in feet and severe migraines." (Am. Compl. ¶ IV-A.). His Second Amended Complaint omits this list of injuries. However, he alleges that at various times, he was "in so much pain he couldn't move by himself" (2d Am. Compl. ¶ 12), that he "screamed from the pain" (id. at ¶ 42), and that he was "in complete pain and frustration" (id. at ¶ 39). For purposes of the instant motion, the Court construes these allegations liberally to suggest an underlying injury sufficiently serious to implicate a possible constitutional violation.
E. Officer Bisanette
Plaintiff alleges that Bisanette "yank[ed] plaintiff out of the chair" after Dr. Chakravorty ordered plaintiff to leave his office causing plaintiff to "scream from the pain," that once plaintiff was being treated by Dr. Bendheim, Bisanette "barged into the office and [tried] to snatch the neck brace off plaintiff," and that Bisanette then ordered plaintiff to leave, causing him to leave behind the pain medication that Dr. Bendheim had provided. Assuming again that plaintiff's underlying injury was in fact serious, the behavior alleged would constitute intentional interference with prescribed medical treatment, and could therefore state a claim for deliberate indifference to plaintiff's medical needs.
However, as defendants point out, there is no evidence that defendant Bisanette, who is not represented by the Attorney General's office, has been served with any complaint in this matter, or that plaintiff has even attempted service of the Second Amended Complaint on him (or on any other defendant). Because plaintiff states a colorable claim against Officer Bisanette, the Court will permit plaintiff additional time to perform service on Bisanette in accordance with the terms set forth below; failure to do so will result in dismissal of any claims against him. Because all potential claims against the remaining defendants who have not yet been served are here dismissed as meritless, plaintiff need not perform service on them.
CONCLUSION
Accordingly, the motion to dismiss plaintiffs' section 1983 claims is granted, with the exception of his claims against Dr. Chakravorty. Pursuant to the discretionary authority granted in Fed.R.Civ.P. 4(m), the Court will allow plaintiff an additional month from the date of entry of this Order on the docket to serve defendant Bisanette, the sole additional defendant remaining; failure to do so will result in dismissal of any remaining claims against him.
The Clerk of the Court is respectfully directed to mark defendants' motion (Doc. # 19, dated April 30, 2004) as closed.
SO ORDERED.