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determining that a private physician was a state actor when his employer was "a party to a contract that require[d] him to provide medical services to prisoners in the State of New York"
Summary of this case from Norman v. Mount Vernon Hosp.Opinion
01 CIV. 3126 (DLC).
February 13, 2002.
Richard J. Cardinale, Cardinale, Hueston Marinelli, Brooklyn, New York, For Plaintiff.
Hillary A. Tennant, Assistant Attorney General, New York, New York, For Defendants Christopher Artuz, Norman Selwin, Thomas Scales, Lyn Forgit, Patricia Taegder, and the State of New York.
Martin B. Adams, Kopff, Nardelli Dopf, LLP, New York, New York, For Defendant David Messinger.
OPINION AND ORDER
Plaintiff Mark Garraway ("Garraway") brings this action pursuant to 42 U.S.C. § 1983 and state law, against defendants Christopher Artuz ("Artuz"), Superintendent of Green Haven Correctional Facility ("Green Haven"); Dr. Norman Selwin ("Selwin"), medical director of Green Haven; Thomas Scales ("Scales"), a doctor at Green Haven; Lyn G. Forgit ("Forgit"), a nurse at Green Haven; Patricia Taegder ("Taegder"), a nurse at Green Haven; the State of New York ("New York State"); and Dr. David Messinger ("Messinger"), a doctor at Westchester Medical Center, alleging that he was denied adequate medical care while under the care and custody of the New York State Department of Correctional Services, in violation of his constitutional and civil rights. Garraway filed his complaint on April 13, 2001, and this Court granted his request for counsel on July 13, 2001. Interrogatories and discovery requests were served in July by defendants, and these were answered by Garraway on August 6.
This defendant's name is spelled incorrectly in the caption.
Defendants Artuz, Selwin, Scales, Taegder, Forgit, and New York State (collectively, the "State Defendants"), move to dismiss the complaint for the plaintiff's failure to exhaust administrative remedies as required under the Prison Litigation Reform Act. Defendant Artuz also moves to dismiss for his lack of personal involvement in the alleged violations. Defendant Messinger argues that he is not a state actor and that the plaintiff has alleged medical malpractice and not a violation of the Eighth Amendment. The briefing schedule for these motions was delayed to allow a notice of appearance to be entered on behalf of the plaintiff. These motions are denied.
Garraway concedes that the Eleventh Amendment bars his suit against New York State, as well as any claim for damages against the individual State Defendants in their official capacities.
BACKGROUND
The facts alleged in the complaint are as follows. Garraway is currently incarcerated at Green Haven, and was an inmate there at all relevant times for purposes of this action. On October 26, 1998, at approximately four o'clock in the morning, Garraway awoke suddenly, experiencing "severe sharp chest pains," "excruciating burning and aching in his left side," and vomiting. He went to emergency sick call, and was later admitted to the Green Haven facility hospital (IPC Unit) for observation. Garraway informed a nurse, Betsy Wang, that he had had a heart murmur as a youth. A physician's assistant instructed Wang to give Garraway two aspirin. At this time, Garraway's blood pressure was 160/120. At 5:00 a.m., his pressure was 140/90, and at 8:00 a.m. it was 170/110. While at the IPC Unit, Garraway was given an electrocardiogram ("EKG"), and was told by defendant Selwin that he was suffering from gas. At 10:00 a.m., Garraway's blood pressure was 128/70 and he continued to experience "severe chest pains." Also at this time, an "acute change in blood pressure" was noted.That night, on October 27, at approximately 1:00 a.m., Garraway's blood pressure was 140/80. His chest pains had decreased by that time, but Garraway continued to express concerns about his high blood pressure and his high cholesterol level. He was discharged at 8:30 a.m., given Zantax 150 mg, and again told by Selwin that he was suffering from gas. Also at this time, a "consult was submitted" for Garraway to see Dr. Lester Silver ("Dr. Silver").
On October 29, Garraway went to sick call complaining of "major chest pains" and constipation. He was seen by a male nurse, given a laxative, and ordered to leave sick call. Later that day, at approximately 10:00 p.m., Garraway returned to sick call complaining of chest pains. He was told by a female nurse that he had gas, given Zantax, and again ordered to leave sick call.
On November 2, Garraway was seen by Dr. Silver at the clinic and given the following medications: Lipitor, Zantax, and ECASA (coated aspirin). During this visit, Dr. Silver also ordered a stress test to be conducted at Saint Agnes Hospital. Garraway alleges that, for the remainder of the month of November, he continued to experience "excruciating chest pains," he consistently went to sick call with this complaint, and was repeatedly told that he was suffering from gas. On November 9, Garraway returned to sick call complaining of pain "so excruciating that [he] had to repeatedly sit down to catch his breath." He was given Ibuprofen and told to leave sick call.
On November 11, Garraway returned to sick call complaining of "a foamy liquid coming up from in his throat," "a serious tight burning in his chest," pains and nausea. He requested to be taken to an outside hospital for treatment, but was given Lipitor and Zantax and again ordered to leave sick call. Later that day, Garraway returned to sick call, and was confined to a cell until the morning of the following day. The next day, November 12, Garraway was seen by Scales, who performed an EKG, diagnosed his condition as a "throat condition," and prescribed Omeprazone 20 mg. On November 13, Garraway returned to sick call complaining of "excruciating chest pains." He was seen by defendant Forgit, who allegedly told him she was "tired of seeing" him, and that there was nothing wrong with him. Garraway again requested to be taken to an outside hospital and was ordered to leave sick call. Garraway was seen by Dr. Silver on November 24, and provided with Prilosec and Norvasc. The next day, plaintiff filed an inmate grievance seeking medical intervention.
In a stress test conducted at Saint Agnes Hospital on December 7, 1998, Garraway tested "borderline positive." Scales examined the plaintiff on December 9, reviewed the results of Garraway's stress test, and noted that plaintiff was now "asymptomatic" after taking medication.
On December 16, Garraway's mother sent a letter to defendant Artuz which noted that Garraway was "extremely ill" and "suffering with a heart problem." The next day, Garraway went to sick call, and a note was made by a female nurse that he needed to see Dr. Silver. On December 21, Garraway returned to sick call complaining of "severe sharp chest pains" and dizziness. On December 23, Garraway was taken to Saint Agnes Hospital where he saw Dr. Joseph Tartaglia ("Dr. Tartaglia"). Based upon his examination and review of the plaintiff's records, Dr. Tartaglia informed Garraway that he had suffered a series of minor heart attacks on October 26, 1998. Garraway was immediately admitted to the hospital. On December 24, defendant Messinger performed a full angioplasty and prescribed medication.
Garraway alleges that Messinger improperly prescribed medication to him, which caused him to experience choking in his sleep and to spit up significant amounts of blood. Plaintiff further alleges that, during the evening of January 3, 1999, defendant Taegder assumed the blood was coming from the back of Garraway's throat and provided ice chips for him to suck on. The next morning, allegedly witnessed by two corrections officers, Garraway vomited "enough blood . . . that it would fill a large plastic gray trash can a good inch." Garraway was transported by ambulance to Vassar Brothers Hospital where he was diagnosed with "upper gastrointestinal bleeding secondary to gastritis." At that hospital, Dr. Arthur Walczyk ("Dr. Walczyk") wrote a report which stated that plaintiff's gastritis and general bleeding throughout the stomach were "likely medication related secondary to the combination of Ticlid and Aspirin." Garraway stayed at Vassar Brothers Hospital for several days, and was informed that he had been taking "too much" medication, and that the medication "caused ulceration in [his] lower esophagus and stomach." Thereafter, Garraway returned to Green Haven.
Defendant Messinger has stated in an affidavit submitted in connection with these motions that, upon admission, Garraway's medications were aspirin, Lopressor, Norvasc, and Lovenox. Prior to performing the invasive procedure, Messinger prescribed valium, aspirin, and Ticlid. Upon discharge, he discontinued the Lovenox, but instructed Garraway to continue with the Ticlid.
Garraway further alleges that as recently as October 11, 2000, he "began experiencing excruciating chest pains, shortness of breath and [a] tingling sensation in the right arm." When he went to the nurse's station to seek medical attention, defendant Taegder "refused to provide" such attention, and "displayed antagonistic behavior." Garraway alleges that Taegder then "went inside the security bubble and began smoking and totally disregarded [his] serious medical needs." Garraway alleges that he filed an inmate grievance complaint regarding this incident, and exhausted his administrative remedies.
Garraway alleges that these actions by the State Defendants constituted deliberate indifference to his serious medical needs in violation of the Eighth and Fourteenth Amendments, as well as deprivation of liberty without due process in violation of the Fifth and Fourteenth Amendments, and that the actions of defendants Scales, Selwin, and Messinger constituted negligence and medical malpractice and/or gross negligence under state law.
DISCUSSION
A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must "accept as true all allegations in the complaint," Hayden v. County of Nassau, 180 F.3d 42, 47 (2d Cir. 1999), and "draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action. Where a party is proceeding pro se, as Garraway was when he filed his complaint, the court has an obligation to "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest."McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (citation omitted).
A. State Defendants' Motion to Dismiss
1. Exhaust Administrative Remedies
The State Defendants argue that Garraway's complaint should be dismissed because he has failed to exhaust administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997. The PLRA provides that
[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a) (emphasis supplied). Thus, a court must dismiss a prisoner's complaint regarding prison conditions if the plaintiff has failed to exhaust his administrative remedies prior to filing the complaint. Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001).
The PLRA does not define "prison conditions," but "the plain language of `prison conditions' suggests those aspects of prison life affecting the entire population, such as the food, medical care, recreational facilities and the like." Id. at 119 (citation omitted) (emphasis in original). On the other hand, the exhaustion requirement does not apply to claims where the plaintiff alleges that he "was singled out for the denial of medical services." Id. at 120; see also Lawrence v. Goord, 238 F.3d 182, 185 (2d Cir. 2001); Nussle v. Willette, 224 F.3d 95, 106 (2d Cir. 2000), cert. granted, 121 S.Ct. 2213 (June 4, 2001). With the possible exception of the events of November 13, 1998, and October 11, 2000, the complaint "contains no allegations that the kinds of responses he received to his medical needs were different or more particularized than the responses generally received by other prisoners." Neal, 267 F.3d at 121. Consequently, the PLRA's exhaustion requirements apply to the bulk of Garraway's allegations.
The plaintiff contends he exhausted the available administrative remedies. The administrative grievance procedure is contained in Section 701.7, N Y Comp. Codes R. Regs. First, an inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC"). Id. at § 701.7(a). Following unfavorable resolution of the complaint at the IGRC level, an inmate is expected to appeal to the superintendent. Id. at § 701.7(b). Upon disposition by the superintendent, the final step in the administrative review process is an appeal to the Central Office Review Committee ("CORC"). Id. at § 701.7(c). Only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to Section 1983 in federal court. See, e.g., Sulton v. Greiner, No. 00 Civ. 0727 (RWS), 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000); Petit v. Bender, No. 99 Civ. 0969 (SHS), 2000 WL 303280, at *2-3 (S.D.N.Y. March 22, 2000).
Garraway alleges that he "filed and exhausted grievances and appealed such to CORC," but without success. This allegation is sufficient to defeat the State Defendants' motion to dismiss on the ground of failure to exhaust administrative remedies.
The State Defendants report that they have found no record of a grievance having been filed. The plaintiff has responded with some evidence of his filing of grievances. Resolution of this factual dispute must await discovery.
2. Lack of Personal Involvement
The State Defendants argue that defendant Artuz must be dismissed from this action because Garraway has failed to allege sufficiently his personal involvement. "`It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir. 2001) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted)). The requisite personal involvement of supervisors exists if, "for example, the defendant (1) created or permitted the continuance of a policy that caused the alleged deprivation, (2) failed to remedy the alleged deprivation after learning of it, or (3) was grossly negligent in managing subordinates who caused the alleged deprivation." K A Radiologic Technology Services, Inc. v. Commissioner of the Department of Health of the State of New York, 189 F.3d 273, 278 (2d Cir. 1999).
The complaint describes a "fax letter" that Garraway's mother sent to defendant Artuz on December 16, 1998, which reported that Garraway was being denied adequate medical care and that his case was being mismanaged by medical personnel at Green Haven. Ms. Welborn's letter stated that Garraway was "suffering with a heart problem," and that she was "disturbed that he [was] not being medically monitored properly." Ms. Welborn asked Artuz to "take a minute or two to assist [her] with this emotionally upsetting situation," and stated, "I do not want my son to die due to the lack of proper medical attention. Anything that you can do on my behalf would be greatly appreciated." In a letter to Ms. Welborn dated December 21, 1998, Artuz responded that he had "discussed the care [Garraway was] receiving with [his] medical staff," and that Garraway's care was being "monitored closely by [Green Haven] medical staff on a frequent basis." In conclusion, Artuz stated that the Green Haven medical staff would "continue to assess Mr. Garraway's medical condition." Seven days after Ms. Welborn notified Artuz of her concerns, and following two additional visits by Garraway to sick call (on December 17 and 21), Garraway was taken to Saint Agnes Hospital on December 23. Because concerns about Garraway's medical treatment for serious health problems were communicated directly to Artuz, and seven days passed before Garraway was taken to an outside hospital, further proceedings are necessary to determine whether Artuz's response conformed with the requirements of the Eighth Amendment, including whether he conducted a sufficient investigation and acted with sufficient alacrity. See, e.g., Gaston v. Coughlin, 249 F.3d 156, 166 (2d Cir. 2001); Johnson, 239 F.3d at 255.
B. Messinger's Motion To Dismiss
1. State Actor
Messinger argues that because he is not employed by any government agency and is not a party to any contract with the state or a state agency, he is not a state actor. To state a claim under Section 1983, a plaintiff must plead that an alleged deprivation of rights protected by federal law "was committed by a person acting under color of state law."West v. Atkins, 487 U.S. 42, 48 (1988). Analyzing the function of the physician, the Supreme Court held in West that where a state has delegated the provision of medical services to private physicians, whether by contract or more direct employment arrangement, those physicians are properly considered state actors and, as such, may be held liable under Section 1983. Id. at 55-57.
To support his argument that he is not a state actor, Messinger has submitted evidence, thereby converting his motion to one for summary judgment. It is unnecessary to determine whether the plaintiff should be permitted to conduct discovery before addressing this motion since the very evidence submitted by Messinger indicates that the motion should be denied. Messinger's evidence indicates that, while he is not himself a party to a contract with the New York State Department of Corrections, he is a party to a contract that requires him to provide medical services to prisoners in the State of New York. The policy justifications underlying the Supreme Court's decision in West apply with equal force to the circumstances presented here, even if the contractual relationship is indirect. It is Messinger's "function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State." Id. at 55-56. Accordingly, Messinger's provision of medical services to a ward of the State, pursuant to a contractual arrangement, constitutes state action, and his motion to dismiss and for summary judgment on this ground must be denied.
2. Merits of the Claims
Messinger asserts that the allegations against him amount to no more than a claim of medical malpractice, and as such are not sufficient to support an action under Section 1983. To state an Eighth Amendment claim for denial of adequate medical care, a plaintiff must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. See Farmer v. Brennan, 511 U.S. 825, 834 (1994);Estelle, 429 U.S. at 105. To meet this standard, the plaintiff must allege (1) a "sufficiently serious" condition, one that "may produce death, degeneration, or extreme pain," Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citation omitted), and (2) that the defendant acted with a sufficiently culpable state of mind, which must be "the equivalent of criminal recklessness;" id., namely, when the official "knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it." Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (citation omitted). "[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." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Mere negligence or medical malpractice does not constitute deliberate indifference, Hathaway, 99 F.3d at 553, **nor do mere differences of opinion between the prisoner and the defendant concerning the proper course of treatment. Chance, 143 F.3d at 703. At the same time, however,
while `mere medical malpractice' is not tantamount to deliberate indifference, certain instances of medical malpractice may rise to the level of deliberate indifference.Hathaway, 99 F.3d at 553. Accordingly, "not every instance of medical malpractice is, a priori, precluded from constituting deliberate indifference." Id. The subjective element of the inquiry "`entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Id. (quoting Farmer, 511 U.S. at 835). Garraway's factual allegations are sufficient to plead the existence of a serious medical need and deliberate indifference to that need.
Messinger also contends that he is entitled to summary judgment because Garraway failed to submit an affidavit of a medical expert or to marshal other proof in response to the affidavit that Messinger submitted in support of this motion. "Only in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery." Commercial Cleaning Services, L.L.C. v. Colin Service Systems, Inc., 271 F.3d 374, 386 (2d Cir. 2001) (citation omitted); see also Kosakow v. New Rochelle Radiology Assoc., P.C., 274 F.3d 706, 735 (2d Cir. 2001). Because Garraway has not been afforded a sufficient opportunity to conduct discovery, Messinger's summary judgment motion is premature.
CONCLUSION
In light of the foregoing, the State Defendants' motion to dismiss the action because of failure to exhaust administrative remedies and to dismiss the claims against defendant Christopher Artuz is denied. The claims against New York State are dismissed, as well as any claims against the individual State Defendants in their official capacities. The motions brought by defendant David Messinger are denied.
SO ORDERED: