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dismissing Eighth Amendment claim against supervisory defendant based upon the defendant's supposed enactment of an unwritten policy related to prescription pain medication because the plaintiff failed to plead facts related to the scope of the policy
Summary of this case from Santos v. Deborah Geer, P.A.Opinion
9:18-CV-1041 (BKS/TWD)
01-29-2019
THOMAS WILLIAMS, Plaintiff, v. R. ADAMS, et al., Defendants.
APPEARANCES: THOMAS WILLIAMS, Pro Se 96-A-3375 Fishkill Correctional Facility P.O. Box 1245 Beacon, NY 12508
APPEARANCES: THOMAS WILLIAMS, Pro Se
96-A-3375
Fishkill Correctional Facility
P.O. Box 1245
Beacon, NY 12508 BRENDA K. SANNES United States District Judge
DECISION AND ORDER
I. INTRODUCTION
Pro se plaintiff Thomas Williams ("plaintiff"), a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this action on or about August 31, 2018, with the filing of a complaint, accompanied by an application to proceed in the action in forma pauperis ("IFP"). Dkt. No. 1 ("Compl."); Dkt. No. 2 ("IFP Appl."). Following its review of plaintiff's IFP Application, the Court issued a Decision and Order dated November 5, 2018, determining that plaintiff had acquired "three strikes" for purposes of 28 U.S.C. § 1915(g) prior to commencing this action and that the complaint failed to allege any facts that would support a finding that plaintiff was in imminent danger at the time of filing. Dkt. No. 5 ("Nov. Order"). Accordingly, the Court denied plaintiff's IFP Application and directed him to pay the full statutory filing fee of $400 if he wished to proceed in the action. Nov. Order at 7. On or about December 6, 2018, the Court received the full filing fee from plaintiff. Dkt. No. 8. The Clerk of the Court has now forwarded to the Court plaintiff's complaint for review.
II. DISCUSSION
A. Standard of Review
In accordance with 28 U.S.C. § 1915A ("Section 1915A"), a court must review any "complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity" and must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint. . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A; see also Carr v. Dvorin, 171 F.3d 115, 116 (2d Cir. 1999) (per curiam) (holding that Section 1915A applies "to all civil complaints brought by prisoners against governmental officials or entities regardless of whether the prisoner has paid the filing fee"); Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (finding that both 28 U.S.C. §§ 1915(e)(2)(B) and 1915A provide a basis for screening prisoner's complaints).
In reviewing a pro se litigant's complaint, the Court has a duty to liberally construe the pleadings, Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and should exercise "extreme caution . . . in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond." Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983) (emphasis in original). Therefore, a court should not dismiss a complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." 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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). Although the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Rule 8 of the Federal Rules of Civil Procedure "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. at 678 (citing Twombly, 550 U.S. at 555). Thus, a pleading that only "tenders naked assertions devoid of further factual enhancement" will not suffice. Id. (internal quotation marks and alterations omitted).
B. Summary of the Complaint
The following facts are as alleged in plaintiff's complaint.
Between 2005 and 2007, plaintiff was confined in Clinton Correctional Facility ("Clinton C.F."), a prison operated by DOCCS, and under the care of defendant Medical Director Vivian Johnson. Compl. at 4. Similarly, between 2009 and 2010, defendant Doctor R. Adams was plaintiff's medical provider during a separate period of confinement in Clinton C.F. Id. As a result of acting as plaintiff's medical providers during those time periods, defendants Johnson and Adams became aware of plaintiff's medical conditions, which are described as follows:
[L]ife long chronic neck and lower back spinal conditions that required use of backbrace; hammer toes, wide feet and flat feet that required customized medical boots; and pain medication 'Ultram' helping serious, daily, pain and suffering.Id. (errors in original).
On or about October 13, 2015, plaintiff returned to Clinton C.F. Compl. at 5. Defendant Adams was assigned as plaintiff's medical care provider. Id. Plaintiff informed defendant Adams in appointments in November 2015 and February 2016 that his customized back brace and medical boots were stolen in June 2015. Id. at 5-6. Plaintiff notified defendant Adams during those appointments that he experienced "daily, serious" pain in his back and needed an ankle brace for an old Achilles tendon injury "that causes soreness and weakness in plaintiff's right ankle." Id. Plaintiff requested that defendant Adams prescribe Ultram (morphine) for his pain. Id. At the November appointment, defendant Adams told plaintiff that he could not prescribe plaintiff anti-inflammatory medications because plaintiff is allergic to them, and that he would not prescribe Ultram "or any other medication" to plaintiff. Id. at 5. At the February appointment, defendant Adams promised plaintiff that he would consult with defendant Johnson about prescribing plaintiff morphine pain medication. Id. at 6. During both appointments, defendant Adams denied plaintiff's requests for back and ankle braces and medical boots. Id. at 5-6.
On November 30, 2016, plaintiff had a third appointment with defendant Adams. Compl. at 7. Plaintiff requested replacement of his customized back brace and medical boots, a right ankle brace, and "pain medication." Id. Plaintiff informed defendant Adams that he was experiencing pain from his back and foot conditions and showed defendant Adams the "blisters, corns and calluses developing o[n] plaintiff's feet from being forced to wear State issued non medical boots." Id. Defendant Adams told plaintiff that he was going to request x-rays and for plaintiff to be seen by a specialist for his "feet, neck and back." Id. Defendant Adams also "took plaintiff's defective, old, customized medical boots" so he could "take pictures of [them]." Id. at 8. The boots were returned to plaintiff on December 5, 2016. Id.
The complaint explains that plaintiff's customized boots were stolen in June 2015 and that they were thereafter replaced by "defective customized medical boots." Compl. at 7. The complaint does not explain why the second pair of medical boots were defective. Id.
On November 23, 2016, plaintiff was again seen by defendant Adams. Compl. at 8. At that appointment, defendant Adams told plaintiff that the x-rays showed that plaintiff has "severe degenerative disc disease in plaintiff's neck," "a herniated disc in plaintiff's lower back," and "hammer toes deformities on both feet." Id. Defendant Adams ordered an MRI of plaintiff's back and told plaintiff that his foot condition required customized medical boots. Id.
Plaintiff arrived at the Clinton C.F. clinic on January 25, 2017, and was given a "pair of regular State boots with a different outter [sic] sole." Compl. at 8. Plaintiff was told by the nurse that defendant Adams ordered the boots for plaintiff and directed that "plaintiff . . . try them on." Id. at 9. The boots caused plaintiff pain because they were "to[o] tight and narrow, had no arch support insoles, [did not] support plaintiff's weak right old achilles tendon injury and had no boot high toe for plaintiff's hammer toes to have space." Id. Accordingly, plaintiff refused the boots. Id.
On May 19, 2017, plaintiff complained to defendant Adams again about his pain and asked for pain medication and customized medical boots. Compl. at 9-10. Defendant Adams told plaintiff he would request that plaintiff receive "the orthopedic medical boots plaintiff [was] suppose[d] to receive." Id. at 10.
Defendant Adams prescribed plaintiff physical therapy, and plaintiff attended sessions between February 6, 2017 and June 6, 2017. Compl. at 9. Physical therapy provided plaintiff pain relief for "less than a half hour after [each session]." Id. Upon completion of physical therapy in June 2017, plaintiff received a permit for a Tens-Unit device, but it "was not effective in reducing plaintiff's serious, daily[] pains alone." Id. at 9, 11.
On unknown dates, defendant Adams (1) referred plaintiff to an orthopedic specialist for approval of customized medical boots, (2) prescribed plaintiff Motrin for his pain, (3) informed plaintiff that narcotic pain medication is not prescribed in New York State prisons, and (4) denied plaintiff's request for back and ankle braces. Compl. at 11. At some point in time, plaintiff stopped taking Motrin because it was ineffective. Id. Plaintiff then received a prescription for Cymbalta. Id. It was also ineffective in treating his pain and caused him to suffer allergic reactions. Id. Plaintiff stopped taking Cymbalta on August 29, 2017.
Plaintiff learned on September 4, 2017, during a "sickhall" visit, that defendant Adams "never put plaintiff in to be seen by an outside foot specialist," and that the reason plaintiff was denied medical boots was because defendant Adams "failed to give adequate information to support plaintiff's need for [them]." Compl. at 12.
Plaintiff was transferred to Bare Hill Correctional Facility on September 11, 2017, and his medical provider at that facility ordered plaintiff back and ankle braces in November 2017, and plaintiff received "new, customized replacement medical boots on or about July 5, 2018." Compl. at 12-13.
In her capacity as Medical Director, defendant Johnson was complicit in defendant Adams' inadequate medical treatment of plaintiff while he was confined in Clinton C.F. between October 2015 and September 2017. Compl. at 14-16. Defendant Carl Koenigsmann, the Chief Medical Officer for DOCCS, adopted an unwritten policy in or about May 2015, discontinuing the practice of recommending and prescribing narcotic pain medications to DOCCS inmates. Id. at 17. Defendant Koenigsmann also contributed to defendant Adams' inadequate medical treatment by failing to properly train, manage, and supervise him. Id.
Plaintiff's complaint asserts Eighth Amendment deliberate medical indifference claims against defendants Adams, Johnson, and Koenigsmann. Compl. at 18-20.
C. Analysis
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 ("Section 1983"), which establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States. 42 U.S.C. § 1983. "Section 1983 itself creates no substantive rights[ but] provides . . . only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993). To state a cognizable claim under Section 1983, a complaint must allege "(1) 'that some person has deprived [the plaintiff] of a federal right,' and (2) 'that person who has deprived [the plaintiff] of that right acted under color of state law.'" Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)) (alteration omitted); accord, Byng v. Delta Recovery Servs. LLC, 568 F. App'x 65, 65-66 (2d Cir. 2014).
The Eighth Amendment prohibits punishment that is "incompatible with the evolving standards of decency that mark the progress of a maturing society[,] or which involve the unnecessary and wanton infliction of pain[.]" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (internal quotation marks and citations omitted)). While the Eighth Amendment "does not mandate comfortable prisons, . . . neither does it permit inhumane ones[.]" Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotation marks and citation omitted). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] . . . [i]n less serious cases, . . . may result in pain and suffering which no one suggests would serve any penological purpose." Id. (internal quotation marks and citations omitted).
A claim alleging that prison officials have violated an inmate's Eighth Amendment rights by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F. Supp. 2d 344, 356 (E.D.N.Y. 2010). To meet the objective requirement, the alleged deprivation must be "sufficiently serious." Farmer, 511 U.S. at 844; see also Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006) ("[T]he objective test asks whether the inadequacy in medical care is sufficiently serious."). Factors informing this inquiry 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 (internal quotation marks and alterations omitted). Determining whether a deprivation is sufficiently serious requires a court to examine the seriousness of the deprivation, and whether the deprivation represents "a condition of urgency, one that may produce death, degeneration, or extreme pain[.]" Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (quotation marks omitted). Importantly, it 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, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003).
To satisfy the subjective requirement, a plaintiff must demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id.; see also Farmer, 511 U.S. at 837 ("[T]he 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."). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40).
1. Defendant Adams
Because the Court assumes, for purposes of this Decision and Order, that the complaint sufficiently alleges facts that satisfy the objective element of a deliberate medical indifference claim, the Court has confined its analysis to the subjective element.
According to the complaint, between November 2015 and November 2016, defendant Adams learned from plaintiff at two separate appointments that he was suffering from chronic back, neck, ankle, and foot conditions that left him in serious chronic pain. Compl. at 5-7. Defendant Adams responded to plaintiff's complaints at an appointment on February 3, 2016, by indicating to plaintiff that he would consult with defendant Johnson about prescribing plaintiff morphine medication. Id. at 6. According to plaintiff, defendant Adams never consulted with defendant Johnson. Id. Otherwise, during the one-year period between November 2015 and November 2016, defendant Adams took no action to address plaintiff's conditions or complaints, despite his role as plaintiff's primary care provider. Id. at 5-7. In light of the Court's obligation to liberally construe a pro se litigant's pleadings, defendant Adams will be required to respond to plaintiff's medical indifference claim for his treatment of plaintiff between November 2015 and November 2016.
The Court reaches a different conclusion with respect to the medical indifference claim arising between November 2016 and September 2017. According to plaintiff's complaint, during that period of time, defendant Adams took a number of steps to treat plaintiff's conditions and symptoms. In particular, defendant Adams (1) ordered x-rays of plaintiff's back, feet, and neck; (2) ordered an MRI of plaintiff's lower back; (3) special-ordered a pair of (non-customized) boots for plaintiff; (4) prescribed four months of physical therapy; (5) prescribed plaintiff 400 milligrams of Motrin for his pain, and then Cymbalta when plaintiff stopped taking the Motrin; and (6) told plaintiff that he would refer him to an orthopedic specialist for customized medical boots. Id. at 7-9, 11. In addition, both in February 2016 and November 2016, defendant Adams promised to discuss with defendant Johnson the possibility of prescribing plaintiff morphine for his pain. Id. at 6, 8. Presumably defendant Adams' ability to prescribe morphine pain medications was hampered by the prison and/or DOCCS policy (to which the complaint refers) regarding a restriction against prescribing inmates narcotic pain medications. Even assuming these allegations are true, however, defendant Adams' consistent treatment of plaintiff - through diagnostic examinations, prescription of non-narcotic pain medications, physical therapy, and consultations with other medical providers - reflects constitutionally adequate care in the context of a prison facility. Moreover, there are no allegations in the complaint that the failure to prescribe plaintiff's preferred choice of pain medication was in reckless disregard to plaintiff's health and safety, especially in light of the other treatment defendant Adams provided between November 2016 and September 2017.
Although it is alleged that plaintiff later learned that defendant Adams never took the necessary steps for plaintiff to be seen by a specialist, there are no allegations supporting an inference that the failure to do so amounted to deliberate indifference (rather than, for instance, negligence). Compl. at 12.
In summary, even liberally construed, the allegations in the complaint concerning the period between November 2016 and September 2017 amount to a mere disagreement with the course of treatment administered by defendant Adams, which is not sufficient to state a plausible deliberate medical indifference. See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("[M]ere disagreement over the proper treatment does not created 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."); see also Hill, 657 F.3d at 123(finding that plaintiff's complaint failed to state a deliberate medical indifference claim where it alleged that defendants prescribed plaintiff Motrin instead of a stronger pain medication and declined to order a nerve conduction study as requested by the plaintiff). Accordingly, plaintiff's deliberate medical indifference claim asserted against defendant Adams with respect to the period of treatment between November 2016 and September 2017 is dismissed for failure to state a claim on which relief may be granted pursuant to Section 1915A(b)(1).
2. Defendants Johnson and Koenigsmann
"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [Section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable for his actions under Section 1983. See Iqbal, 556 U.S. at 683 ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a Section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). With respect to individuals sued based on their supervisory capacities (like defendants Johnson and Koenigsmann in this action) it is well settled that "vicarious liability is inapplicable to . . . [Section] 1983 suits." Iqbal 556 U.S. at 676.
The complaint alleges that defendant Johnson learned of the allegedly inadequate medical treatment plaintiff was being provided at Clinton C.F. and did not take any action to resolve the problem, and that defendant Koenigsmann enacted the policy on which defendant Adams relied in denying plaintiff narcotic pain medication. Prior to the Supreme Court's decision in Iqbal, the Second Circuit held that supervisory personnel may be considered "personally involved" under five different circumstances. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). In particular, supervisors can be found personally involved if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon, 58 F.3d at 873 (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)).
In Iqbal, however, the Supreme Court explained that "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. The Court noted that "[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue." Id. There, the alleged constitutional violation was discrimination based on race, religion, or national origin in violation of the First and Fifth Amendments. Id. at 668-69. For such claims, "the plaintiff must plead and prove that the defendant acted with discriminatory purpose." Id. at 677. The Court rejected the plaintiff's argument that a supervisor may be liable for "knowledge and acquiescence in their subordinates' use of discriminatory criteria to make classification decisions among detainees," because "purpose, rather than knowledge is required" to impose liability. Id. at 677.
In this Circuit, "Iqbal has engendered conflict . . . about the continued vitality of the supervisory liability test set forth in Colon," Reynolds v. Barrett, 685 F.3d 205 n.14 (2d Cir. 2012), and the Second Circuit has not resolved the conflict. See, e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) ("We express no view on the extent to which the Supreme Court's decision in Ashcroft v. Iqbal, . . . 'may have heightened the requirements for showing a supervisors' personal involvement with respect to certain constitutional violations.'" (quoting Grullon v. New Haven, 720 F.3d 133, 139 (2d Cir. 2013))).
Recently, this Court had occasion to consider the impact of Iqbal on the supervisor liability/personal involvement test set forth in Colon. Montanez v. City of Syracuse, No. 16-CV-0550, 2019 WL 315058 (N.D.N.Y. Jan. 25, 2019). In that case, the Court concluded that the Colon analysis still applies where the constitutional claim asserted does not require a showing of discriminatory intent, "insofar as it is 'consistent with the particular constitutional provision alleged to have been violated.'" Id. at 18 (citing Delgado v. Bezio, No. 09-CV-6899, 2011 WL 1842294, at *9 (S.D.N.Y. May 9, 2011) (quoting Qasem v. Toro, 737 F. Supp. 2d 147, 151-52 (S.D.N.Y. 2010)); see also Marom v. City of N.Y., No. 15-CV-2017, 2016 WL 916424, at *15 (S.D.N.Y. Mar. 7, 2016); Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009). Because the constitutional claim asserted in this case (Eighth Amendment deliberate medical indifference) does not require a showing of discriminatory intent and is based, instead, on whether defendants acted with deliberate indifference to the plaintiff's health and safety, the Court will apply the Colon factors.
a. Defendant Johnson
Plaintiff alleges that he wrote defendant Johnson three letters during his confinement in Clinton C.F. in July 2016, October 2016, and May 2017. Compl. at 15-16. In each of the letters, plaintiff complained of the medical treatment he was receiving from defendant Adams. Id. Defendant Johnson did not respond to any of the letters. Id. According to plaintiff, defendant Johnson contributed to defendant Adams' deliberate medical indifference by failing to respond to his letters. Id. Given the nature of these allegations, the Court has considered whether they plead sufficient facts to plausibly allege that defendant Johnson was personally involved in denying plaintiff constitutionally adequate medical treatment under the second Colon factor.
In this Circuit, "[a] supervisor may be liable in an action brought under [section] 1983 if he exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Vincent v. Yelich, 718 F.3d 157, 173 (2d Cir. 2013) (internal quotation marks and emphasis omitted); Toliver v. City of N.Y., 530 F. App'x 90, 93 (2d Cir. 2013) (remanding to allow the plaintiff to file an amended complaint that included allegations of ongoing injuries "and that supervisory personnel were, as he claims, aware that particular officers were harassing and assaulting inmates"). In the context of a medical indifference claim, the Second Circuit has recognized that individual defendants who hold supervisory positions may be held liable where they learned of ongoing constitutionally deficient treatment being provided to a plaintiff and took no action to remedy the violation. See McKenna v. Wright, 386 F.3d 432, 437-38 (2d Cir. 2004) (determining that the complaint included sufficient allegations against the defendant-supervisor where the plaintiff alleged the defendant rejected his grievance complaining of inadequate medical treatment and the defendant was responsible for the prison's medical program); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (reversing the district court's summary judgment determination in favor of the DOCCS Commissioner because the record contained a dispute of material fact concerning whether the plaintiff sent a letter to the commissioner complaining of the ongoing inadequate medical treatment being provided to him at the prison in which he was confined). Regardless of the specific ongoing constitutional violation alleged, to find that the supervisor was personally involved under the second Colon factor, a complaint must allege sufficient facts to place the supervisor on notice of the continuing constitutional violation and that the supervisor had the authority and ability to remedy the violation. See Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013) (concluding that, at the pleading stage, a plaintiff is "entitled to have the court draw the reasonable inference-if his . . . complaint contain[s] factual allegations indicating that [a l]etter was sent to [the defendant] at an appropriate address and by appropriate means-that [the defendant] in fact received the [l]etter, read it, and thereby became aware of the alleged conditions of which [the plaintiff] complained"); McKenna, 386 F.3d at 437-38 (noting that the defendant-supervisor was responsible for the prison's medical program); Richardson, 347 F.3d at 435 (noting that whether the defendant-supervisor was personally involved under the second Colon factor depended on the contents of the plaintiff's letter because the contents would reflect what the defendant-supervisor knew); Rahman v. Fisher, 607 F. Supp. 2d 580, 585 (S.D.N.Y. 2009) ("[A] supervisor may be liable for her failure to remedy a violation only in those circumstances where the violation is ongoing and the defendant has an opportunity to stop the violation after being informed of it.").
In this case, the allegations in plaintiff's complaint against defendant Johnson do not plausibly suggest that she was sufficiently on notice of a constitutional violation. According to the complaint, plaintiff wrote to defendant Johnson on July 25, 2016, "[c]omplaining about the deliberate denial/ and or delay of adequate medical care and treatment by [defendant] Adams, for plaintiff's daily, serious, neck and lower spinal pains; replacement of stolen 'customized backbrace; customized medical boots; hammer toes, flat feet, corns and calluses serious pains; right ankle achilles tendon soreness and weakness; right anklebrace and pain medication." Compl. at 15 (errors in original). Plaintiff wrote defendant Johnson again on October 18, 2016, "about the same medical issues and needs," and then a third letter on May 22, 2017, "[c]omplaining about [defendant] Adams['] continous, deliberate, denial in providing plaintiff the needed medical care and treatment plaintiff's medical conditions warranted." Id. at 16. Even assuming defendant Johnson received plaintiff's letters and read them, the contents of the letters, as alleged in plaintiff's complaint, do not give rise to a plausible inference that defendant Johnson was on notice that plaintiff was receiving constitutionally inadequate medical treatment. As described in plaintiff's complaint, the letters describe only plaintiff's specific requests and then conclusorily accuse defendant Adams of "deliberate . . . [in]adequate medical care and treatment." Id. at 15. And, as described above, plaintiff's disagreement with defendant Adams' course of treatment does not create a constitutional claim. Without more, the Court finds that the complaint fails to allege sufficient facts to plausibly allege defendant Johnson's personal involvement in any deliberate medical indifference claim. For that reason, that claim is dismissed as asserted against defendant Johnson for failure to state a claim upon which relief may be granted pursuant to Section 1915A(b)(1).
The Court notes that plaintiff only described the contents of the letters in his complaint and did not attach the letters to the complaint or otherwise provide them as exhibits.
b. Defendant Koenigsmann
With respect to defendant Koenigsmann, plaintiff alleges that he created an unwritten DOCCS policy and/or custom discontinuing the prescription of narcotic pain medications to prison inmates. Compl. at 17. Given the nature of these allegations, the Court has considered whether they plead sufficient facts to plausibly allege that defendant Koenigsmann was personally involved under the third Colon factor.
Although the complaint alleges that defendant Adams indicated to plaintiff that there was a policy in place in which inmates were being denied narcotic pain medication, the complaint otherwise alleges no facts whatsoever concerning the details or scope of the policy. Plaintiff's allegations that defendant Adams promised to consult with defendant Johnson about the possibility of prescribing plaintiff narcotic pain medication suggests that whatever policy was in effect (if any) had contours and exceptions, and that it was not (as plaintiff suggests) a blanket policy that refused all inmates narcotics under all circumstances. Accordingly, plaintiff's complaint does not sufficiently allege facts plausibly suggesting that defendant Koenigsmann enacted an unconstitutional policy or that the policy, as alleged, was carried out in a manner in which defendant Koenigsmann knew or should have known violated plaintiff's constitutional rights.
Plaintiff's additional allegation that defendant Koenigsmann is responsible for the alleged inadequate medical treatment provided by defendant Adams because he failed to "train, manage and supervise [defendant] Adams," Compl. at 19, is vague and conclusory and does not support a cognizable constitutional claim.
For all of these reasons, plaintiff's deliberate medical indifference claim asserted against defendant Koenigsmann is dismissed for failure to state a claim pursuant to Section 1915A(b)(1).
III. SERVICE OF PROCESS
As indicated above, the only claim that survives the Court's initial review is plaintiff's Eighth Amendment medical indifference claim asserted against defendant Adams concerning defendant Adams' treatment of plaintiff between November 2015 and November 2016. Because plaintiff paid the filing fee in this action (following the denial of his application for in forma pauperis status), plaintiff is responsible for serving the summons and complaint on defendant Adams. In light of the fact that plaintiff is incarcerated and proceeding pro se, and in order to advance the disposition of this action, plaintiff may request an order from the Court directing service by the United States Marshal, provided that plaintiff pays the service fee to the United States Marshal in full in advance by money order or certified check. For service by mail, the fee is $8.00 per summons and complaint. Plaintiff is advised that, if initial service is unsuccessful, he will be required to pay the United States Marshal any additional fee, also in advance, for subsequent service attempts according to the fee schedule set by the United States Marshal.
Payment in cash or by personal check is not acceptable.
IV. CONCLUSION
WHEREFORE, it is
ORDERED that plaintiff's complaint (Dkt. No. 1) is accepted for filing to the extent it asserts an Eighth Amendment deliberate medical indifference claim against defendant Adams concerning the medical treatment defendant Adams provided to plaintiff at Clinton C.F. between November 2015 and November 2016; and it is further
ORDERED that the remainder of plaintiff's Eighth Amendment deliberate medical indifference claims asserted against defendant Adams, Johnson, and Koenigsmann are DISMISSED without prejudice for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1); and it is further
Should plaintiff seek to pursue any of the claims dismissed without prejudice, he must file an amended complaint. Any amended complaint, which shall supersede and replace the original complaint in its entirety, must allege claims of misconduct or wrongdoing against each named defendant that plaintiff has a legal right to pursue, and over which jurisdiction may properly be exercised. Any amended complaint filed by plaintiff must also comply with the pleading requirements of Rules 8 and 10 of the Federal Rules of Civil Procedure. Plaintiff's deadline to amend his pleading as a matter of course is set forth in Rule 15(a) of the Federal Rules of Civil Procedure.
ORDERED that plaintiff is afforded an opportunity to request an order from the Court directing service by the United States Marshal and provide payment of the service fee ($8.00) to the United States Marshal in full by money order or certified check; and it is further
ORDERED that, upon plaintiff's submission of a request for assistance with service of process, the Clerk shall return the file to the Court for consideration; and it is further
ORDERED that, if plaintiff does not submit a request for assistance with service of process within 14 days of the filing date of this Decision and Order, the Clerk shall issue a summons and forward it to plaintiff, who shall be responsible for effecting service of process on defendant Adams. Upon issuance of the summons, the Clerk shall send a copy of the summons and complaint to the Office of the New York State Attorney General, together with a copy of this Decision and Order; and it is further
ORDERED that the Clerk of the Court serve on plaintiff a copy of this Decision and Order, along with a copy of any unreported cases cited to in this Decision and Order.
IT IS SO ORDERED.
Dated: January 29, 2019
/s/ _________
Brenda K. Sannes
U.S. District Judge