Opinion
10 Civ. 428 (PAC)(MHD)
12-19-2011
MARTIN HODGE, Plaintiff, v. DR. WLADYSLAW SIDOROWICZ, MR. LYNN LILLEY, DR. TIMOTHY WHALEN, DR. CARL J. KEONINGSMANN, DR. LESTER WRIGHT, and MR. PEDRO DIAZ, Defendants.
Mr. Martin Hodge # 86-A-8851 Sullivan Correctional Facility 325 River Side Drive Box 116 Fallsburg, New York 12733-0116 Thomas M. Biesty, Esq. Assistant Attorney General for the State of New York 120 Broadway 24th Floor New York, New York 10271
REPORT & RECOMMENDATION and MEMORANDUM & ORDER
:
Pro se plaintiff Martin Hodge, an inmate in the New York State correctional system, commenced this lawsuit last year to complain principally about his treatment by medical personnel and senior officials at the Sullivan Correctional Facility, where he had been housed since 2004. In his complaint he focused particularly on his continuing back and eye problems, and asserted that various of the defendants had failed either to permit or to arrange treatment or had actively interfered with his treatments and/or medications. He also complained about the prison's alleged failure to accommodate these conditions in certain respects, particularly in its purported resistance to providing him a second or special mattress and vision-enhancement aids. Finally, he also referred to alleged heating problems in his cell, which he claimed had aggravated his discomfort from his back problems.
In April 2010 defendants moved to dismiss the complaint on a variety of grounds, a motion that the court granted in March 2011, albeit with leave to amend in limited respects. Hodge v. Sidorowicz, 2011 WL 1226280, *9 (S.D.N.Y. Mar. 24, 2011). Since the filing of that dismissal motion, and starting even before its final disposition by the District Court, the court has been gifted with several applications from both sides. These included a motion by plaintiff in December 2010 for what he described as a temporary restraining order and preliminary injunction. (See Hodge Decl. & Proposed Order to Show Cause, Dec. 27, 2010). At the same time, he sought leave to file an amended complaint. (See Hodge Dec. 27, 2010 letter to the Court; proposed Amended Complaint dated Dec. 27, 2010). Then, following the March 2011 dismissal of plaintiff's original complaint, he filed a different version of an amended complaint, dated April 14, 2011, as permitted by the court's decision. That newest version retained two defendants from the original complaint and added six newly identified defendants, although plaintiff never served the new defendants. This filing then triggered a June 15, 2011 motion by the two served defendants -- Dr. Wladyslaw Sidorowicz and Deputy Superintendent Lynn Lilley to dismiss Hodge's latest version of his pleading.
The various motions have now been fully briefed, and we turn to an assessment of them. For the reasons that follow, (1) we recommend that plaintiff's motion for injunctive relief be denied, (2) we deny plaintiff's motion to amend in the form of his December 2010 proposed complaint; and (3) we recommend that defendants' motion to dismiss the most recent iteration of the complaint be granted.
A. A History of Plaintiff's Proceedings
Plaintiff is serving a sentence of twenty-five years to life in the New York State prison system. See Hodge v. Greiner, 269 F.3d 104, 105 (2d Cir. 2001). Since his incarceration there in 1986, he has suffered from a number of medical problems, notably involving serious damage to his right eye and eyelid dating from adolescence and disc problems in his back.
As early as 1992, Hodge sued representatives of the Department of Correctional Services ("DOCS") for failing properly to treat his eye problems, all of which pre-dated his incarceration. In particular, he complained not only about delays in receiving medical attention -- particularly plastic surgery to repair eyelid damage and treatment of an ulcer in the same eye -- but also about the purported failure of DOCS medical staff to ensure that he underwent a corneal re-graft, as well as the alleged failure of DOCS to supply him with prescribed medications. Hodge, 1994 WL 519902 at *11-13. Following a bench trial, the court found that defendants had provided ample medical treatment for Hodge's various and highly intractable eye problems, that defendants were not responsible for an initial delay in carrying out a re-graft procedure and that they had not acted with deliberate indifference in finally determining that the corneal graft procedure was not justified in plaintiff's case. Id. at *9-12. The court also rejected plaintiff's complaints about alleged shortages of medicine in the prison. Id. at *13.
Plaintiff had undergone an unsuccessful corneal graft as well as other related eye surgery before his imprisonment. Hodge v. Coughlin, 1994 WL 519902, *2 (S.D.N.Y. Sept. 22, 1994).
In 2006 plaintiff filed suit against the Health Services Director at the Sing-Sing Correctional Facility and the DOCS Chief Medical Services Officer for the handling of his medical issues at the Sing-Sing Correctional Facility, where he had been confined for a number of years, until 2003. See Hodge v. Perilli, 2010 WL 2910158 (S.D.N.Y. July 12, 2000), adopted, 2010 WL 3932368, *6-12 (S.D.N.Y. Sept. 30, 2010). His principal claims in that case initially involved the refusal of the facility to continue to provide him a second mattress to relieve his back pain. In addition he complained that his 2003 transfer from Sing-Sing was in retaliation for his grievances about the mattress issue. Id. at *1, *7. In the course of that case, plaintiff repeatedly sought to amend his complaint to add numerous other defendants and additional claims, including asserting a variety of complaints about his treatment at the Sullivan Correctional Facility, to which he had been transferred in 2004. See Hodge v. Perilli, 2008 WL 141093, *1 (S.D.N.Y. Jan. 7, 2008); Hodge v. Perilli, 2009 WL 37522, *1 (S.D.N.Y. Jan. 5, 2009). The court denied these amendments insofar as they sought to add claims pertaining to Hodge's stay at Sullivan. Hodge, 2008 WL 141093 at *5-6; Hodge, 2009 WL 37522 at *1. The court also dismissed the injunctive portion of plaintiff's complaint. (Hodge v. Perilli, 06 Civ. 2480, Report & Recommendation ("R&R") 25-30, June 22, 2007; Order, July 25, 2007). At one point, Hodge also moved for a preliminary injunction to compel the Sullivan medical staff to provide treatment for his back that he thought preferable to what DOCS was then providing to him, and the court denied that motion. (Hodge, 06 Civ. 2480, R&R 10-16, Oct. 22, 2007). Finally, in September 2010, the court granted summary judgment for defendants as to the balance of the case. Hodge, 2010 WL 2910158 at *3-16; Hodge, 2010 WL 3932368 at *12.
Before that summary-judgment ruling, in November 2009 plaintiff filed the current lawsuit, targeting his treatment at Sullivan starting in 2006. In doing so, he named six individual defendants -- Dr. Wladyslaw Sidorowicz, the Sullivan Health Services Director; Mr. Lynn Li1ley, the Deputy Superintendent; Drs. Timothy Whalen and Carl Keoningsmann, both DOCS Regional Medical Directors; Dr. Lester Wright; and Mr. Pedro Diaz, a DOCS Regional Health Services Administrator. As we previously summarized his claims in this case, he alleged
that he was denied adequate pain medication for his back pain, was prevented from or delayed in seeing several specialists recommended during the course of his treatment for his back problems and eye problems, was denied certain treatments for his medical conditions and given others only after unreasonable delays, was repeatedly left without medication due to the incompetence or deliberate indifference of prison medical personnel, and was denied a double mattress in violation of a state court order.(R&R 1-2, Nov. 2, 2010). He also asserted that inadequate heating in the prison had aggravated his back condition. In addition, he complained about denial of reasonable accommodations for his eye problems and asserted that unspecified prison nurses had "tried to admit him to the prison infirmary against his wishes, in retaliation for his constant complaints about his back pain and the inadequacy of his medical care, and that they [had] falsified his medical records in retaliation for his repeated requests for specific medications and treatments following their denial." (Id. at 2).
In April 2010 defendants moved to dismiss this complaint. By Report and Recommendation issued November 2, 2010, we recommended that all claims be dismissed. We further proposed that the dismissal of two sets of claims -- concerning his medications and the prison heating system -- be without prejudice to plaintiff filing an amended complaint. (Id. at 67-68).
In addressing plaintiffs' various claims, we took note of the substantial body of his medical records for the pertinent period, all of which had either been attached to or incorporated in the complaint or else was deemed integral to it. (Id. at 8-29). Based on that documentation, as well as plaintiff's lengthy and detailed description in the complaint of his encounters with the various defendants, we concluded that his Eighth Amendment claims could not survive. As we described them, they focused principally on Dr. Sidorowicz's alleged failure to provide proper care, including requested surgery, for plaintiff's vision problems, which had resulted from a childhood eye infection and included extensive corneal and eyelid scarring as well as incipient glaucoma, and the doctor's failure to provide adequate pain management and surgery for plaintiff's back pain, which was attributable to herniated discs and resulting nerve damage. Also at issue was the denial by DOCS regional medical directors of Hodge's request for a corneal re-graft. In addition, he recycled his complaint from his prior case that he had been denied a second mattress to alleviate back pain, although this occurred only for the limited time when he was in disciplinary isolation. Apart from these allegations, Hodge complained that Dr. Sidorowicz and prison nurses would stop his medications or deny them without any stated reasons, and he also asserted that on occasion the nurses recorded that he had received a medication when in fact he had not received it. (Id. at 7-28).
From our review of the substantial medical record before us, we held that plaintiff had not alleged a basis for finding that defendants had acted with deliberate indifference to his serious medical conditions. Rather, plaintiff's complaints about his care, when read in light of the record, reflected disagreements with the courses of treatment chosen by his medical providers and complaints about delays in obtaining surgery that also did not reflect indifference to his needs. We also rejected his mattress claim, which was predicated on the denial of such a mattress for 90 days while Hodge was in disciplinary segregation. (Id. at 46-53).
As for plaintiff's allegations that some staff nurses had denied him medications or falsified records to reflect that he had been given such medications, we noted that he had failed to identify or name as defendants the individuals assertedly responsible for this misconduct. Similarly, to the extent that he suggested that one nurse, exasperated with his repeated complaints, had threatened retaliation, we observed that he had not named that unidentified nurse as a defendant. Finally, to the extent that he may have been invoking an Eighth Amendment claim based on lack of adequate heat, we rejected the claim for his failure to name as a defendant whoever might have been responsible for that shortcoming. (Id. at 54-55).
As a secondary matter, we held that even if Hodge had adequately pled an Eighth Amendment claim against Dr. Sidorowicz and Medical Director Koeningsmann, his claims would have to be denied against four of the other defendants for failure to plead their personal involvement in this alleged wrongdoing. That group included defendants Whalen, Wright, Diaz and Lilley. (Id. at 55- 57).
We further read the pleading as seeking to assert claims under the Americans With Disabilities Act ("ADA") and possibly the Rehabilitation Act. Apart from the alleged denial of a second mattress, plaintiff alleged that he had been denied proper accommodation for his impaired vision, a denial that apparently included rejection of his requests for large-print materials, a magnifying glass, and a cassette player. We concluded that he had failed to plead either a denial of a reasonable accommodation (in light of the medical and other prison records, which reflected the extensive accommodations afforded to him, particularly for his vision impairment) or satisfaction of the requirement that he plead and prove denial of access to a prison service, program or activity as a result of a failure to accommodate a disability. (Id. at 58-62).
As for the nature of the dismissal, we recommended that all but two categories of claims be dismissed with prejudice. The only claims that we recommended be subject to re-pleading were his allegations of nurses withholding medication, falsifying his records and retaliating against him, and his complaint about a lack of heat in the prison. As to these claims, we observed that he would be required to name as defendants whoever was allegedly responsible for those actions or inactions as well as to satisfy the substantive pleading standards for such claims. As for the other claims, including the balance of his Eighth Amendment claims and his ADA and Rehabilitation Act claims, we urged their dismissal with prejudice. (Id. at 63-67).
Plaintiff filed objections to our R&R. During the pendency of that appeal, which defendants opposed, plaintiff proceeded to file another set of motions. One application sought what plaintiff styled as a temporary restraining order and preliminary injunction to require that DOCS afford him a corneal re-graft and remedial treatments for his damaged eyelids. The other asked for leave to file an amended complaint. The proposed amended pleading largely tracked the original complaint -- which we had recommended be dismissed -- though it added two new defendants (both assertedly responsible for arranging reasonable accommodations for disabled inmates) and extended plaintiff's narrative of complaints about the treatment of his eye and back problems past November 2009, the temporal cut-off of the original pleading. Defendants opposed both motions.
On March 24, 2011 the District Court adopted our November 2, 2010 R&R. Thus it dismissed the original complaint in its entirety, with the dismissal to be with prejudice except for plaintiff's claims against unidentified nurses for denial of medication, falsification of medical records and retaliation, and plaintiff's prison-heating claim. As to these claims, plaintiff was instructed that he must identify the wrongdoers and name them as defendants as well as comply with other pertinent pleading requirements. Hodge, 2011 WL 1226280 at *6-9.
In April 2011 plaintiff filed his amended complaint, dated April 14, 2011, purportedly in compliance with the March 24, 2011 directives of the District Court. In this third version of his complaint, he named no less than ten defendants, most of whom had not been included as parties in either of the two prior versions of his complaint. He again named Dr. Sidorowicz and Deputy Superintendent Lilley but did not include any of the other previously named defendants. Instead, he included four asserted members of the nursing staff (Ms. Sharon Lilley, Ms. Holly Miller, Mr. Bruce Ground and G. Eggler), a Ms. M. Linsly, Deputy Superintendent H. Moore, and two apparent John Doe defendants, referred to as Ms. Sergeant and John/Lane Doe Nurse. Despite naming these new defendants, plaintiff never arranged to serve them, and hence the only defendants who have been served with this pleading are Dr. Sidorowicz and Deputy Superintendent Lilley.
As for the substance of the new complaint, invoking a host of exhibits -- none supplied with the complaint but most later provided to the court -- Hodge again asserted his claims for denial of adequate medical care by Dr. Sidorowicz starting in 2006, including a delay in one of several visits to an eye surgeon following surgery in 2006, termination by the doctor of unspecified medications without first talking to plaintiff, delays in receiving an eye medication in 2007, refusal in 2007 to provide pain medications, and occasional failures by the nursing staff to administer unspecified medications. (Am. Compl. ¶¶ 3-7, 12, 15). He also reiterated his prior assertion that nursing staffers had made false entries in the medical records to the effect that he had received certain medications, that medications were disappearing from the prison clinic and that Dr. Sidorowicz, Nurse Administrator Lilley and Deputy Superintendent Lilley had failed to remedy the situation despite his complaints. (Id. ¶¶ 9, 9(2d), 10, 12, 14). As a separate matter, plaintiff expanded on his earlier complaint about heating, alleging that Deputy Superintendents Lilley and Moore "are doing everything they can to try to save the facility cost in heating" and that, as a result, temperatures in the prison did not reach 68 degrees Fahrenheit, as required by DOCS regulations. (Id. ¶ 16). He also alleged that these same cost-saving efforts made it difficult or impossible to have hot water in the cells and hot showers and that he had complained about these conditions, but to no avail. (Id. ¶¶ 16-17).
The amended complaint contains two paragraphs numbered 9.
In still another complaint about his treatment, plaintiff alleged that Dr. Sidorowicz had asked that plaintiff's cell be searched to look for outdated medications, a search that led to plaintiff being charged with a rule violation in a misbehavior report. According to plaintiff, a prison sergeant later found that charge to be baseless. (Id. ¶ 19).
Finally, plaintiff launched a series of complaints about the adequacy of the prison grievance system. He seems to complain either that his grievances were not properly filed or not upheld, and further asserts that various prison officials -- including Deputy Superintendent Lilley -- did not adequately investigate his grievances and other complaints, did not correct staff misconduct directed at him, and retaliated against him for filing grievances. (Id. ¶¶ 9, 9(2d), 11-13).
Plaintiff also asserted that Nurse Holly Miller -- one of the unserved defendants -- retaliated against him for his medical-records grievances by falsely accusing him of passing his medications to another inmate, a charge that led to a 90-day disciplinary stay in the special housing unit ("SHU") before the falsity was established. (Id. ¶ 12).
The filing of this amended complaint triggered a motion by defendants Sidorowicz and Lilley for dismissal. They contended that the complaint did not allege their personal participation in any constitutional torts, that Lilley was protected by a qualified-immunity defense and that plaintiff's heating and hot-water allegations did not state a cognizable claim. (Defs.' Dismissal Mem. of Law at 4-13; Defs.' Reply Dismissal Mem. of Law at 2-4). Plaintiff has opposed this motion.
ANALYSIS
We first address plaintiff's request for preliminary-injunctive relief and then turn to plaintiff's two separate efforts to amend his complaint.
I. The Preliminary-Injunction Request
Plaintiff seeks to compel Dr. Sidorowicz to arrange for him to undergo a corneal re-graft or a cornea transplant and to approve unspecified surgical and other treatment for glaucoma. He also refers to a desire to see a plastic surgeon for intervention to improve the functioning of his right eyelid. (See Pl.'s PI Mem. of Law at 2nd-7th pages; Hodge PI Decl. ¶¶ 3-13).
Plaintiff also asks for discovery in this case. (Id. ¶ 14). Since the current posture involves a dismissal motion on the face of the complaint, a demand for discovey is premature at best. We also note that plaintiff has accumulated substantial documentation relevant to his claims, which he has proffered to us as exhibits to the various versions of his complaint.
This is not the first time that plaintiff has sought surgical intervention by way of a motion for preliminary-injunctive relief. Indeed, in his immediately prior case, in 2007 he moved unsuccessfully for similar relief to compel DOCS to provide specific remedies, including surgery for his disc problems. We recommended denial on that occasion, see Hodge, 2008 WL 141093 at *1-2 (citing Hodge, 06 Civ. 02480, Oct. 22, 2007 R&R at 11-16), and for similar reasons we recommend denial now.
A. Standards for Preliminary-Injunctive Relief
When a party seeks a preliminary injunction, he bears the burden to demonstrate at least that "[]he will suffer irreparable harm absent injunctive relief, and . . . either (a) that . . . []he is likely to succeed on the merits, or (b) '"that there are sufficiently serious questions going to the merits to make them a fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party."' Moore v. Consol. Edison Co. of N.Y., Inc., 409 F.3d 506, 510 (2d Cir. 2005) (quoting No Spray Coal., Inc. v. City of New York, 252 F.3d 148, 150 (2d Cir. 2001) (per curiam)); accord, e.g., D.D. ex rel. V.D. v. N.Y. City Bd. of Educ., 465 F.3d 503, 510 (2d Cir. 2006).
If the movant seeks a mandatory injunction, that is, one that would require affirmative conduct by the defendant that would "alter the status quo" -- as plaintiff does here -- he must meet a higher standard. D.D. ex rel. V.D., 465 F.3d at 510 (citing Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). In that case, he "'must make a clear or substantial showing of a likelihood of success' on the merits, . . . a standard especially appropriate when a preliminary injunction is sought against government." Id. (quoting Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996))
To obtain a preliminary injunction under any of the operative tests in this circuit, the movant must demonstrate not only the requisite prospect for success on the merits of his claim, but also that the failure to provide the requested relief will cause him irreparable harm. Indeed, the Second Circuit has frequently reiterated that "irreparable harm is the single most important prerequisite for the issuance of a preliminary injunction." Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66-67 (2d Cir. 2007) (per curiam) (quoting Freedom Holdings, Inc. v. Spitzer, 408 F.3d 112, 114 (2d Cir. 2005)) (internal quotation marks omitted). To satisfy this requirement, the movant must show that he "will suffer 'an injury that is neither remote nor speculative, but actual and imminent,' and one that cannot be remedied 'if a court waits until the end of trial to resolve the harm.'" Id. at 66 (quoting Freedom Holdings, Inc., 408 F.3d at 114). Thus, "[w]here there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances." Moore, 409 F.3d at 510.
The Court has also said that because of the essential role of the irreparable-harm element, "the moving party must first demonstrate that such injury is likely before the other requirements for the issuance of an injunction will be considered." Id. (quoting Freedom Holdings, Inc., 408 F.3d at 114) (internal quotation marks omitted).
Preliminary-injunctive relief "is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quoting 11A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2948 at 129-30 (2d ed. 1995)) (internal quotation marks and emphasis omitted); see, e.g., Grand River Enter. Six Nations, 481 F.3d at 66; Hanson Trust PLC v. SCM Corp., 774 F.2d 47, 60 (2d Cir. 1985) (stating that the preliminary injunction "is one of the most drastic tools in the arsenal of judicial remedies"). Thus, even if the movant makes a colorable showing of likely irreparable harm and a sufficient prospect of success on the merits, the trial court has "wide discretion" in deciding whether an injunction pendente lite is appropriate under the circumstances. Moore, 409 F.3d at 511 (citing Green Party of N.Y. v. N.Y. State Bd. of Elections, 389 F.3d 411, 418 (2d Cir. 2004); Columbia Pictures Indus., Inc. v. Am. Broad. Cos., 501 F. 2d 894, 897 (2d Cir. 1974)). In exercising that discretion, the court should take into account the public interest, if relevant. See Register.com, Inc. v. Verio, Inc. 356 F.3d 393, 424, 432-33 (2d Cir. 2004).
Plaintiff refers to the public interest in his memorandum of law, arguing that "the grant of relief will serve the public interest because it is always in the public interest for prison officials to obey the law." (Pl.'s PI Mem. of Law at 7th page). This assertion begs the question of whether defendants are in fact violating plaintiff's legal rights, but in any event, as noted, movants have a heavier burden when attempting to obtain a preliminary injunction against the government than they do against any other party, see D.D. ex rel. V.D., 465 F.3d at 510, reflecting the courts' sensitivity to the need to avoid interfering with government administration of its own programs, a concern that is particularly acute in the context of the State's management of prison affairs.
B. Assessment of the Motion
Plaintiff proffers his own declaration, in which he recounts that he has diminished vision in his right eye. He further asserts that in the course of his incarceration at Sullivan he was seen by two outside consultants -- Drs. Belin and Eden -- who recommended that he undergo a corneal graft or, if that was not feasible, a corneal transplant. (Hodge PI Decl. ¶¶ 3, 5, 7, 10 & Exs. 33, 34). DOCS denied the request (id. ¶ 13), and he now seeks court intervention.
The history of plaintiff's difficulties with this eye begins in his childhood, when he contracted herpes zoster ophthalmicus, a viral infection that, among other ill effects, causes scarring damage to the cornea as well as to the skin surrounding the eye. Hodge, 1994 WL 519902 at *1. Plaintiff in fact suffered acute damage both to the cornea and to the lid of the eye. Id. Even before his 1986 incarceration, plaintiff underwent skin grafts and then a corneal transplant as well as plastic surgery for the eyelid, all of which proved to be unsuccessful. Id. at *2.
In 1992 plaintiff filed his first suit to compel DOCS to provide additional surgical intervention for his eye. Following a trial, Judge Preska recounted plaintiff's pertinent medical history, the very high risks of corneal surgery when the patient has herpes zoster, and the fact that plaintiff's prior procedures had failed. Id. at *1-2. She also explored in detail the extensive efforts of DOCS to afford plaintiff surgical care for his eye conditions, including plastic surgery on his eyelid and lens replacement -- both unsuccessful -- the scheduling at one point of a corneal re-graft procedure, a plan that was aborted when plaintiff refused a surgeon's plan for that procedure, and plaintiff's failure to cooperate with medical providers. Id. at *2-7. Based on its assessment of this record, as well as the credited opinion of defendants' expert to the effect that the failure of the surgical procedures was unsurprising, the court rejected plaintiff's Eighth Amendment claims. Id. at *7-12.
Plaintiff also asserted claims for delay in providing medication, as he does in this case, and the court rejected that claim as well. Id. at *13.
In this case defendants note plaintiff's history of unsuccessful procedures to deal with his corneal scarring, and further observe that the most recent independent corneal consultant to have examined plaintiff, Dr. Eden, concluded in March 2010 that plaintiff was a poor candidate for such surgery and that such a procedure was not advisable. (Sidorowicz Decl. ¶ 6 & Ex. A). That opinion was based on the history of Hodge's herpes infection and the prior surgical failures and was offered despite a prior recommendation for such surgery from another consultant. Dr. Eden's assessment was echoed by the medical decision-makers at DOCS. (Id. ¶ 6). As for the alternative of a corneal transplant, Dr. Sidorowicz noted that the DOCS rejection of this approach was based on two principal considerations. First, plaintiff has had three major surgeries seeking to address the corneal scarring, and all have been unsuccessful. Second, his eye suffers from "massive vascularization" and shows no indication of light perception, both of which conditions suggest that the proposed additional surgery would not provide relief. (Id. ¶¶ 7-8 & Ex. A).
Finally, Dr. Sidorowicz takes note of plaintiff's request for a plastic surgery consult regarding his eyelid. As noted, plaintiff had previously undergone several unsuccessful skin grafts before his incarceration, and other procedures after his imprisonment. Hodge, 1994 WL 519902, at *2. Most recently, he had had eyelid surgery in 2007. (Sidorowicz Decl. ¶ 9). Although the surgeon who had operated on plaintiff in 2007 had asked for a follow-up visit, Dr. Sidorowicz explained that DOCS had determined that this was unnecessary since plaintiff was being followed by a DOCS ophthalmologist who was monitoring plaintiff's eyelid. (Id.).
In view of this record, it is apparent that plaintiff fails to meet either prong of the pertinent preliminary-injunction test. Given plaintiff's history of failed corneal surgery and the recommendation of the latest outside consultant against another procedure, plaintiff obviously fails to demonstrate that denial to him of such a procedure will itself cause him irreparable harm, that is, harm that requiring the procedure would avert. Plaintiff has a serious condition that substantial medical opinion suggests is not amenable to correction by more surgery. Indeed, it is worth quoting Judge Preska on this point, citing Dr. Belin, the very doctor whom plaintiff invokes here: "After examining plaintiff, Dr. Belin concluded that plaintiff represents a high-risk corneal transplant patient, given his previous graft rejection and heavy vascularization." Hodge, 1994 WL 519902 at *9. Dr. Belin's recommendation against surgery was supported by a second consultant, Dr. Smith, who
recognized that there was a very guarded chance of success since plaintiff had a difficult case with a past history of surgeries and lid deformities. Additionally, Dr. Smith noted that the herpes zoster had attacked the eye, causing loss of sensation in the cornea and affecting the tissue. As a result, the eye, especially the surface of the eye (which is critical in a corneal transplant) would not heal well.Id.
Even plaintiff's expert generally agreed with this assessment. Id. at *9-10.
Moreover, the nature of the injunctive relief sought by plaintiff -- a directive to provide specific forms of treatment -- would be wholly inappropriate. Plaintiff offers no basis for this court to determine that such surgery -- whether by re-grafting or transplant -- would be the preferred course of treatment, and the court is in no position to second-guess the professional judgments of the prison's medical staff, as well as its outside consultant Dr. Eden, in this respect. As for Hodge's request for another consult with his plastic surgeon, he offers no evidence suggesting that there is any medical necessity for such a step.
Apart from plaintiff's failure to show that denial of the motion would inflict irreparable harm, he fails to meet the standard for showing a clear likelihood of success on the merits of his failure-to-treat claim. As we have previously observed in this and plaintiff's preceding case, to establish a constitutional claim based on the quality of medical care provided by the defendant, an inmate plaintiff must demonstrate "deliberate indifference to [his] serious medical needs." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This two-part test embodies both an objective and a subjective component. First, the physical condition of the plaintiff must be sufficiently serious; second, the failure to render proper care must result from "a sufficiently culpable state of mind." Hathaway, 37 F.3d at 66 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)).
As noted above, mandatory injunctions require that the movant meet a higher burden. Since plaintiff seeks a mandatory injunction requiring that the State provide specific forms of treatment, he must meet the more demanding test for likelihood of success.
Although we assume that plaintiff sufficiently demonstrates the existence of a serious medical condition, see generally Morales v. Mackalm, 278 F.3d 126, 132-33 (2d Cir. 2002) (per curiam), the record reflects that he has been given regular treatment -- including repeated eye surgeries -- and offered additional modes of treatment, some of which he has refused to accept. (Nov. 2, 2010 R&R at 8-13; Sidorowicz Decl. ¶ 9; e.g., Pl. Exs. 2-4, 6, 17, 32-34, 38, 43, 44). This record is entirely antithetical to a showing of deliberate indifference by defendants.
An official acts with deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety; the 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." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Disagreement with a course of treatment chosen by a medical provider does not suffice to demonstrate such indifference. See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Indeed, even negligence tantamount to medical malpractice does not amount to an Eighth Amendment violation. Estelle, 429 U.S. at 105-06; Chance, 143 F.3d at 703. Nonetheless, an act of malpractice will amount to deliberate indifference if "the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces 'a conscious disregard of a substantial risk of serious harm.'" Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
The record on the current motion -- including the extensive medical records that are part of the pleadings here -- reflect that plaintiff's eye complaints have been the subject of prolonged treatment efforts by DOCS both through its own physicians and by use of a variety of outside treaters, and that the treating physicians have pursued a number of treatment modalities to relieve plaintiff's ocular and related eyelid disorders. That record refutes the notion that Dr. Sidorowicz has ignored plaintiff's complaints or otherwise acted recklessly. Moreover, the fact that plaintiff -- who apparently has no medical training -- disagrees with one or several doctors' judgment or believes that other courses of treatment would be more effective does not demonstrate, or even suggest, any deliberate indifference by anyone on the DOCS medical staff. Necessarily, then, plaintiff has not shown a likelihood that he will succeed on the merits of his Eighth Amendment claim that he was denied medical care in violation of his constitutional rights, much less a clear likelihood of such success.
In sum, plaintiff satisfies neither prong of the preliminary-injunction test. Accordingly, we recommend that his motion for injunctive relief be denied.
II. Plaintiff's Motion to Amend
Prior to the District Court's dismissal decision, plaintiff sought to amend the original complaint. Subsequently, upon invitation by the District Court to file an amended complaint to replace a portion of the dismissed original complaint, he filed an amended pleading that differed significantly from the proposed complaint for which he had sought leave months earlier.
In view of plaintiff's filing of an amended complaint months after he had moved to amend in a somewhat different fashion, that motion is fairly read as moot. In any event, it is meritless.
Before assessing those merits, we briefly reiterate the oft-cited (especially in Hodge's cases) standards for a Rule 15 motion. Where, as here, a plaintiff may no longer amend the complaint as a matter of course, Rule 15(a) of the Federal Rules of Civil Procedure specifies that courts should "freely give" leave to amend "when justice so requires." As explained by the Supreme Court, such leave is to be liberally granted:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared
reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, "be freely given."Foman v. Davis, 371 U.S. 178, 182 (1962); accord, e.g., United States ex rel. Mar. Admin. v. Cont'l Ill. Nat'l Bank & Trust Co. of Chicago, 889 F.2d 1248, 1254 (2d Cir. 1989). As Foman suggests, one circumstance that justifies denial of a motion for leave to amend is a determination that the proposed amendment would be futile. See, e.g., Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir. 2006); Marchi v. Board of Coop. Educ. Servs., 173 F.3d 469, 477-78 (2d Cir. 1999). Futility may be shown by demonstrating that the proposed new pleading fails to state a cognizable claim and thus would be subject to dismissal under Rule 12(b)(6). See, e.g., Nettis v. Levitt, 241 F.3d 186, 193, 194 n.4 (2d Cir. 2001) (per curiam). That is the case here with regard to each of plaintiff's proposed amendments.
The traditional test on a Rule 12(b)(6) motion allowed the complaint to survive unless "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Leibowitz v. Cornell Univ., 445 F.3d 586, 590 (2d Cir. 2006) (per curiam) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The Supreme Court has since rejected this formulation, however, and hence, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombley, 550 U.S. 544, 570 (2007)) (internal quotation marks omitted). Under this new "plausibility standard," our analysis requires two steps. "First, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949) (internal quotation marks omitted). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. (quoting Iqbal, 129 S. Ct. at 1950). We remain obligated to "accept all factual allegations in the complaint as true and draw all reasonable inferences in [plaintiff's] favor." Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2009) (quoting Johnson v. Rowley, 569 F.3d 40, 43-44 (2d Cir. 2010)) (brackets in original). We also must still "construe a pro se complaint liberally." Harris, 572 F.3d at 72 (citing cases)). But we are "not required to draw unreasonable inferences or to credit legal conclusions at odds with plaintiff's own factual allegations." Solow v. Stone, 994 F. Supp. 173, 181 (S.D.N.Y. 1998) (citing De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir. 1996)). And "where 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.'" Iqbal, 129 S. Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). In short, the pleading must do more than "tender[] naked assertions devoid of factual enhancement", id. at 1949 (internal quotation marks omitted), and in doing so must "'raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Moreover, this requirement applies to the pleadings of pro se plaintiffs. See, e.g., Sheehy v. Brown, 335 Fed. App'x 102, 104 (2d Cir. 2009) (applying Iqbal); Carvel v. Cuomo, 357 Fed. App'x 382, 383-84 (2d Cir. 2009) (invoking Twombly plausibility standard); Dorsey v. Fischer, 2009 WL 4985421, *2, 4 (N.D.N.Y. Dec. 15, 2009) (same); Conseillant v. Lafontant, 2009 WL 2163263, *1 (N.D.N.Y. July 20, 2009) (same).
When assessing a Rule 12(b)(6) motion, the court may not consider evidence proffered by the parties. Rather, it is limited to reviewing the four corners of the complaint, any documents attached to that pleading or incorporated into it by reference, any documents that are "integral" to the plaintiff's allegations even if not explicitly incorporated by reference, and facts of which the court may take judicial notice. See, e.g., ATSI Commc'ns, Inc., 493 F.3d at 98; Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). Judicial notice may be taken of the status of other lawsuits and the substance of papers filed in those actions. See, e.g., Anderson v. Rochester-Genesee Reg'l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir. 2003) (citing cases).
The bulk of plaintiff's allegations concern his medical treatment at Sullivan, most notably his dealings with Dr. Sidorowicz. For the period ending November 2009, he simply reiterates the allegations made in his original complaint, which, for reasons noted in our November 2, 2010 R&R, fail to state a claim either for denial of medical care under the Eighth Amendment or for violation of the ADA and Rehabilitation Act. (Prop. Am. Compl. ¶¶ 1-53). Since the District Court adopted our R&R, the inadequacy of plaintiff's proposed pleading to state these claims is law of the case.
The balance of the proposed pleading principally updates plaintiff's interaction with DOCS medical personnel and plaintiff's filing of grievances about these dealings. The additional allegations may be briefly summarized.
We note that plaintiff's proposed complaint cites numerous exhibits but he failed to annex any such documents to his pleading. Shortly after he filed the most recent version of his complaint in April 2011, he forwarded to us a set of 46 exhibits, which appear to represent most of the documents cited in both the proposed amended complaint and the current amended complaint.
According to Hodge, in January 2010 an outside vision clinic recommended that he be given special glasses and a magnifying glass. He reports that Dr. Sidorowicz did not authorize these items. (Id. ¶ 54). He next asserts that in March 2010 Dr. Sidorowicz refused to send him to a cornea specialist despite the recommendation of his glaucoma specialist. (Id. ¶ 57). He further alleges that he was scheduled sometime in April 2010 to see Dr. Sidorowicz but was told at the clinic that there was no such appointment. He also says that on March 29, 2010 Dr. Sidorowicz refused to see him. (Id. ¶ 59).
Plaintiff does not allege that he suffered any injury as a result of either of these alleged refusals by Dr. Sidorowicz, and we note that Mr. Hodge has been treated for corneal scarring and other vision problems throughout his stay with DOCS.
Plaintiff next alleges that in August 2010 he filed a grievance against Dr. Timothy Whalen, a DOCS medical official, because Whalen allegedly had refused him a medical treatment -- not specified by plaintiff -- that Dr. Sidorowicz had recommended. He seems to complain that Dr. Sidorowicz responded to the grievance even though under DOCS regulations it was Dr. Whalen who was required to respond. (Id. ¶ 60).
Plaintiff then recounts that he filed a grievance on September 9, 2010 because Dr. Sidorowicz had failed to arrange for him to see a glaucoma specialist on August 30, 2010. He recounts that he had seen that doctor on August 19, 2010 and that the doctor had requested to see him again, a request that Dr. Sidorowicz allegedly failed to honor. Hodge complains as well that around the same time a Ms. Cohen, a non-party from the nursing staff, lost his eyedrops. (Id. ¶ 61).
In the next paragraph he asserts that he filed another grievance on September 14, 2010. Then, a few days later, he says, Dr. Sidorowicz had his cell searched for outdated medications -- apparently a prison rule violation -- and he contends that Dr. Sidorowicz made this request to retaliate for plaintiff's prior grievance. According to plaintiff, the cell search led to charges against him, but the charges were eventually dismissed. (Id. ¶ 62). He then filed another grievance against Dr. Sidorowicz for these events, (Id.). Plaintiff further states that he filed still another grievance the next month, this one against Deputy Superintendent Lilley, for having failed to punish Dr. Sidorowicz. (Id. ¶ 63).
Plaintiff's remaining fact allegations pertain to his claims for denial of reasonable accommodations. He refers without specificity to a series of grievances in which he contended that he was not receiving accommodations for his impaired vision. He goes on to mention two proposed new defendants, Deputy Superintendent of Programs Malin and Deputy Commissioner Buther, who he asserts "are responsible for making sure disabled inmates are provided their full reasonable accommodations . . . ." (Id. ¶ 64).
None of these allegations suffice to state claims under the Eighth Amendment, the ADA or the Rehabilitation Act. The reference to Dr. Sidorowicz not sending plaintiff to a follow-up visit with a glaucoma specialist on one occasion does not suffice to state a claim for deliberate indifference. As recounted, the record reflects that plaintiff has been exhaustively seen and treated, both by DOCS physicians and by outside specialists for all of his eye problems. As for the alleged refusal to send Hodge to a cornea consultant in March 2010, again the record reflects that he has been seen by a host of cornea specialists and has undergone repeated surgeries for his cornea scarring, precluding a plausible assertion that Dr. Sidorowicz or any other DOCS official has acted with deliberate indifference to plaintiff's medical needs relating to his various eye problems. It also bears emphasis that plaintiff does not allege that the failure on this occasion by Dr. Sidorowicz to send him for still another visit to the cornea specialist in late August, a few weeks after his last visit to that doctor, caused plaintiff any injury.
Plaintiff's allegations about the denial of "special glasses" and a magnifying glass also cannot be deemed to state a plausible claim. As we noted in our November 2, 2010 R&R, the medical records proffered as part of plaintiff's original complaint reflect that in 2009 plaintiff was given a variety of accommodations for his vision difficulties, and that these included magnifiers and sunglasses, as well as sport eye protection, large print materials, a cassette player with a headphone, a lamp and a "PIT TV". (Nov. 2, 2010 R&R at 29, 61; Pl. Ex. 38). Moreover, when plaintiff sought prescription glasses, he was scheduled for an optometry appointment. (Nov. 2, 2010 R&R at 29). In short, the factual premise for his "reasonable accommodations" claims is false, as is evident from documentation integral to his pleadings in this case.
To the extent that plaintiff seeks to name proposed defendants Malin and Buther, his pleading is also deficient since he does not specify their participation in denying him any accommodation. (Prop. Am. Compl. ¶ 64).
Given the failure of plaintiff's claims to pass muster under the Rule 12(b)(6) standard, his proposed amendments would be futile. We thus deny his motion to amend the complaint.
III. Defendants' Motion to Dismiss
The District Court's March 24, 2011 decision dismissed the original complaint but allowed plaintiff to re-plead certain claims, specifically his claims regarding the alleged withholding of medications by facility nurses, the falsification of his medical records to reflect that he had received those medications, an asserted act of retaliation by one nurse, and the purported failure of the facility to maintain adequate heat in plaintiff's cell. Hodge filed a new complaint, dated April 14, 2011, in which he named Dr. Sidorowicz, Deputy Superintendent Lilley, six new defendants and two John Doe defendants. He never served the complaint on the new defendants, and Dr. Sidorowicz and Deputy Superintendent Lilley, the only remaining defendants from the original complaint, have since moved to dismiss the amended complaint in its entirety, contending principally that it fails to state a cognizable claim against them.
A. Assessment of Defendants' Dismissal Motion
The standard applicable in evaluating a motion to dismiss has been discussed above. See supra pp. 29-32.
The new pleading bears considerable resemblance to the original, and now dismissed, complaint. Plaintiff starts with his transfer to Sullivan, and alleges in some detail his claimed inability to obtain medical treatments that he deemed appropriate for his eye and back conditions and also lists an avalanche of grievances that he filed in response to what he perceived as mistreatment. He goes on to allege that on some days he was not given his prescribed medications and avers that on occasion the prison medical records reflected inaccurately that he had in fact been given those medications. He asserts that Dr. Sidorowicz should be held responsible because he never acted to correct this conduct and that Deputy Superintendent Lilley also should be deemed responsible for these events because it was his task, as Deputy Superintendent, to ensure that all prison employees complied with facility rules. (Am. Compl. ¶¶ 3-15).
Plaintiff also refers to the heating system in the prison. He alleges that Deputy Superintendents Lilley and Moore were intent on saving money and that, in doing so they reduced "the amount of heat" in the prison, leading to indoor temperatures below 68 degrees Fahrenheit, the minimum required by DOCS regulation. (Id. ¶ 16). He also complains that, because of the cost-saving efforts of Lilley and Moore, the hot-water supply was inadequate, leading to an absence of hot showers and hot water in the cells. (Id. ¶ 17).
As an initial matter, because plaintiff's original complaint was dismissed with prejudice save for certain claims, to the extent that plaintiff raises claims in this April 2011 complaint that duplicate those dismissed with prejudice in his original complaint, such claims are barred. We therefore turn first to the medication claims. Since plaintiff never served any of the nursing defendants, his claims are limited to the contention that defendants Sidorowicz and Lilley should be held liable for any denial of medications, which he ascribes to one or more of the defendant nurses.
The nurses whom he directly links to a failure to provide medication are Bruce Ground, Holly Miller and G. Eggler. (Id. ¶¶ 9, 12). He also alleges that at various times he complained about these errors to Nurse Supervisor Lilley, who failed to act. (Id. ¶¶ 9, 9(2d), 10, 12).
Because plaintiff's claims against defendants Sidorowicz and Lilley are, by implication, premised on a theory of supervisory liability, we start by addressing the pertinent legal standards, which are currently in some flux. A plaintiff may not prevail on a constitutional tort claim against an individual defendant absent proof that the defendant was personally responsible in some way for the alleged misconduct. It is well settled that, regardless of a defendant's position in the governmental hierarchy, he cannot be held liable under section 1983 for an award of damages absent some form of personal involvement in the constitutional tort. See, e.g., Scott v. Fischer, 616 F.3d 100, 110 (2d Cir. 2010) (quoting McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)); Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
Until recently, the accepted standard for personal involvement by a supervisor was that articulated in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). In Colon the Court identified five categories of conduct that may demonstrate the personal involvement of a supervisory defendant. Such personal involvement, the Court held, may be shown by evidence that:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [plaintiff]s by failing to act on information indicating that unconstitutional acts were occurring.Id.; accord Provost, 262 F.3d at 154; Wright, 21 F.3d at 501; see also Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991) (quoting Williams v. Smith, 781 F. 2d 319, 323-24 (2d Cir. 1986)).
Recently, however, the scope of what qualifies as "personal involvement" by a supervisor has come into question by virtue of a 2009 decision in which the Supreme Court held, in a pleading context, that "[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 129 S. Ct. at 1948. The Second Circuit has not yet addressed how Iqbal affects the five categories of conduct that give rise to supervisory liability under Colon. However, because Iqbal specifically rejected the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution," id., several decisions in this district have held that Iqbal has nullified most of the longstanding Colon factors. See Bellamy v. Mount Vernon Hosp., 2009 WL 1835939, at *4, 6 (S.D.N.Y. June 26, 2009); Newton v. City of New York, 640 F. Supp. 2d 426, 448 (S.D.N.Y. 2009) ("[P]assive failure to train claims pursuant to section 1983 have not survived the Supreme Court's recent decision in Ashcroft v. Iqbal."). These courts have concluded that "[o]nly the first and part of the third Colon categories pass Iqbal's muster," and that "[t]he other Colon categories impose the exact types of supervisory liability that Iqbal eliminated," because only the first and third categories sufficiently allege personal involvement to permit supervisory liability to be imposed after Iqbal. Bellamy, 2009 WL 1835939 at *6; Spear v. Hugles, 2009 WL 2176725, at *2 (S.D.N.Y. July 20, 2009) ("The Supreme Court explicitly rejected the argument that, 'a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution.' . . . Accordingly, only the first and third Colon factors have survived the Supreme Court's decision in Iqbal.").
We disagree with this narrow interpretation of Iqbal, as have a number of other courts. See, e.g., Delgado v. Bezio, 2011 WL 1842294, at *8-9 (S.D.N.Y. May 9, 2011); Qasem v. Toro, 737 F. Supp.2d 147, 150-52 (S.D.N.Y. 2010); D'Olimpio v. Crisafi, 718 F. Supp.2d 340, 346-47 (S.D.N.Y. 2010). We believe, as observed in Sash v. United States, 674 F. Supp.2d 531 (S.D.N.Y. 2009), that "[i]t was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected the argument that a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution." Id. at 544 (internal citation omitted). Thus, as in the present case, where the claim does not require a showing of discriminatory intent, the personal-involvement analysis set forth in Colon should still apply. Id. (citation omitted); D'Olimpio, 718 F. Supp.2d at 347. Hence we look to earlier Second Circuit precedent that applies the tests of deliberate indifference or gross negligence to assess supervisory liability, a standard that demands a showing of actual or constructive notice by the supervisory defendant of constitutional torts committed by their subordinates. Sash, 674 F. Supp.2d at 544; cf. Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011).
Although Connick dealt solely with municipal liability under section 1983, we believe that its analysis is informative as to the scope of personal liability for supervisors and supports our conclusion that Colon remains viable. In the context of either municipal liability or supervisory liability, the Supreme Court has clearly stated that a defendant is only responsible for his own actions. Compare Connick, 131 S. Ct. at 1359 ("[U]nder § 1983, local governments are responsible only for 'their own illegal acts' . . . [t]hey are not vicariously liable under § 1983 for their employees' actions.") (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)) (emphasis in original), with Iqbal, 129 S. Ct. at 1948 ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). Hence, if failure-to-train claims or the "deliberate indifference" test for a supervisor's personal involvement in constitutional violations under § 1983 were no longer viable after Iqbal, we would expect that the same type of § 1983 claims would fail if asserted against a municipality. Yet in Connick, the Supreme Court applied the "deliberate indifference" test to a failure-to-train claim. 131 S. Ct. at 1360-66. Connick ultimately rejected municipal liability on the grounds that the plaintiff had not proven the "pattern of similar violations" establishing that the supervisory defendant had received adequate notice of the specific constitutional violation allegedly resulting from his failure to adequately train his subordinates, and thus failed to show a "'policy of inaction' [that] [was] the functional equivalent of a decision by the city itself to violate the Constitution." Id. at 1366 (quoting City of Canton v. Harris, 489 U.S. 378, 395 (1989)). The Court did not, however, suggest that municipal liability was unavailable because it was premised on a failure-to-train claim, compare Newton, 640 F. Supp.2d at 448, or allegations of deliberate indifference, which would seem to fall within Colon's fifth category of personal involvement. Compare Bellamy, 2009 WL 1835939 at *6.
Defendants attack the adequacy of plaintiff's allegations concerning their involvement. As they note, the extensive documentation that accompanies the amended complaint contains a letter from Hodge addressed to Nurse Supervisor Lilley, in which he referred to an apparently recent reduction in the daily number of doses that he was receiving of certain prescribed glaucoma eyedrops from four and three times a day to three and two times a day respectively, and he asked that she rescind the change. (Pl. Ex. 6; Biesty Decl. Ex. 1). This document indicates that a copy was sent to Dr. Sidorowicz, The complaint does not indicate whether the eyedrop dosage was subsequently increased or whether, if not, the refusal to do so caused any injury to plaintiff. Other than with regard to this one instance, the complaint is silent as to any notice to Dr. Sidorowicz that plaintiff did not receive any medications. Indeed, it is not entirely clear from the pleading that plaintiff in fact was denied specific medications or that such omissions were more than occasional errors by one or another nurse.
Defendants first argue that plaintiff should not be permitted to amend to assert the medication claim against them because our R&R, and by implication the District Court's order, limited plaintiff to adding as defendants any nurses who were responsible for the alleged denial of medication. (Defs.' Dismissal Mem. of Law at 5). We view this argument as too narrowly reading the court's decision. We noted that plaintiff had failed to allege that any named party was responsible for the medication failures, and we invited plaintiff to correct that omission, and in doing so we relied upon the allegation that one or more nurses had been responsible. If in fact plaintiff could plausibly allege that a supervisory official had some involvement in this conduct, we see no reason to preclude plaintiff from so alleging and asserting his claim against that individual.
Plaintiff alleges at one point that several types of prescribed pills were misplaced or missing from the medical clinic (Am. Compl. ¶ 10), but he never specifies that these failings led to his not receiving his medication for any prolonged period of time, much less that such loss of pills was due to anything more than possible staff negligence.
Under the circumstances, plaintiff fails to plead either deliberate indifference or any personal responsibility by Dr. Sidorowicz. The letter to Nurse Lilley, though also copied to Dr. Sidorowicz, is not a sufficient basis for holding him responsible for failures to medicate plaintiff. See, e.g., Goris v. Breslin, 402 Fed. App'x 582, 584 (2d Cir. 2010). The letter does not even mention such a problem and rather takes issue with Dr. Sidorowicz's clinical decision to limit the glaucoma eyedrops to three and two doses per day, respectively. That is a professional judgment by the doctor in charge of plaintiff's medical care and is not a basis to hold him potentially liable either for failure to provide medication by the nurses or for deliberate indifference based on his determination of the proper number of daily doses.
In substance, plaintiff seeks to hold the doctor liable based on the theory that he had supervisory responsibility for the performance of medical functions by all medical personnel at the prison and that he should therefore be deemed liable for the failure of one or more nurses on occasion to provide medications. (Am. Compl. ¶ 4). Such a respondeat superior theory of liability is not available under section 1983. See, e.g. Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (per curiam).
As for Deputy Superintendent Lilley, plaintiff does not allege that he had any responsibility for medical treatment. All that he does assert is the general nostrum that, as Deputy Superintendent for Administration, he had responsibility for the job performance of all prison employees. (Am. Compl. ¶ 14). The incorporated documents do show that on one occasion, in June 2009, Mr. Lilley responded to a complaint by plaintiff about not being given his medications on certain scattered dates, but that response reflects that Mr. Lilley had asked Nurse Administrator Lilley to investigate the specific complaint made by Hodge, and that she had reported to him that the nurses in question had no recollection of any failure to provide the medications on the dates for which the records reflected that he had been given his medications. (Pl. Ex. 39). She also reported to Lilley that the nurses understood the procedures for recording a failure to medicate on a given date. As for Deputy Superintendent Lilley's conclusion, he advised plaintiff that he had found "no solid proof" that Hodge had not been given his medications on the specific dates listed by plaintiff, but that if plaintiff was correct in his account, that omission did not reflect any pattern that would suggest an intention by the nurses not to provide the medications or to falsify the prison records about Hodge's receipt of medications. Rather, he suggested, if there were omissions, it likely reflected an inadvertent error by a nurse to record the non-delivery of a medicine to plaintiff. Lilley also reported to plaintiff that spot checks had been made, apparently in response to Hodge's complaint, and that they did not reflect any repeat of the alleged prior errors. (Pl. Ex. 39; Biesty Decl. Ex. 2).
This record is inconsistent with any claim of deliberate indifference by Deputy Superintendent Lilley to plaintiff's medical needs. As noted, he arranged for an investigation of plaintiff's complaint and the report delivered by the medical supervisor directly responsible for the performance of the facility's nursing staff reflected no deliberate misconduct by those staffers. Moreover, the defendant's inquiry triggered a further follow-up in the form of spot checks, apparently by the nursing supervisor, which confirmed that the nurses were now following proper procedures. Under these circumstances, Deputy Supervisor Lilley cannot be said to have exhibited deliberate indifference to plaintiff's medical needs, and hence the amended complaint, insofar as it seeks to assert an Eighth Amendment claim against him based on nothing more than respondeat superior, cannot withstand scrutiny.
Defendant Lilley also asserts, as an alternative ground for dismissal of these claims, that he is entitled to a qualified-immunity defense for his actions in dealing with plaintiff's complaint about the medications. (Defs.' Dismissal Mem. of Law at 7-8). That assertion seems plausible in view of the pertinent allegations of the complaint, as elucidated in the exhibits incorporated by plaintiff, but we need not rule definitively on that ground in view of the self-evident inadequacy of the amended complaint to state an Eighth Amendment claim against Lilley.
Finally, this record reflects the absence of any plausible claim against either defendant based on what appears to have been occasional errors in not providing medications. Such omissions, if any, appear to reflect nothing more than possibly occasional negligence by nurses, and there is no pled basis for inferring that these errors reflect either defendants' deliberate indifference or a serious threat to plaintiff's health or a denial of his "basic human needs". Jolly, 76 F.3d at 480.
The remaining claims by plaintiff concern the prison heating system. He names both Deputy Superintendent Lilley and the Plant Superintendent Moore (whom he never served), and alleges deficiencies in the level of air heat and the hot water supply to his cell. He contends that these two named defendants sought to save money by lowering the performance of the heating system and that this deprived him of his right to adequate conditions of confinement.
To state a claim for a constitutional violation based on conditions of confinement, a plaintiff must allege that a prison official was deliberately indifferent to a substantial risk of serious harm to him. See Helling v. McKinney, 509 U.S. 25, 35-36 (1993). Thus, the plaintiff must meet two requirements. First, the risk of harm or deprivation must objectively be "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). Second, a prison official must have a "sufficiently culpable state of mind," id., and that state of mind in prison-condition cases is one of "deliberate indifference" to inmate health and safety. Helling, 509 U.S. at 35.
A convicted prisoner's claim of deliberate indifference by those overseeing his care is analyzed under the Eighth Amendment because the right that the plaintiff seeks to vindicate arises from the Eighth Amendment's prohibition of "cruel and unusual punishment." Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (quoting Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996)).
Plaintiff's allegations about heating conditions, even if liberally construed, fail to satisfy either branch of the Eighth Amendment theory on which he relies. They do not meet the objective element for a claim since plaintiff fails to allege facts from which a trier of fact could find that defendants exposed him to conditions that posed a substantial threat to his health or deprived him of the ability to satisfy his basic human needs. Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curiam); see also Helling, 509 U.S. at 32-33. The alleged deprivation must be "sufficiently serious," that is, it must deny plaintiff "the minimal civilized measure of life's necessities." Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer, 511 U.S. at 834). Only serious threats to health are sufficient to sustain a conditions-of-confinement claim because "society does not expect or intend prison conditions to be comfortable." Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999); see also Hudson v. McMillian, 503 U.S. 1, 9 (1992) ("[R]outine discomfort is 'part of the penalty that criminal offenders pay for their offenses against society.'") (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
With regard to the heating system and air temperature, Hodge asserts that at various times the system did not satisfy the DOCS regulatory requirement that air temperature be at least 68 degrees Fahrenheit. This theory fails because the asserted violation of state regulations would not itself demonstrate that the conditions of confinement were in violation of Eighth Amendment requirements. See, e.g., Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (noting that violation of a state regulation "alone would not be enough generally to establish a constitutional claim"); see also Edwards v. Tarascio, 369 Fed. App'x 182 (2d Cir. 2010) ("The violation of a prison regulation does not automatically establish that all the elements of an Eighth Amendment violation have been satisfied.").
Plaintiff goes on to say that at times his cell was so cold that he had to sleep in his clothes. (Biesty Decl. Ex. 3). However, his allegations about the lack of indoor heat do not meet the fairly stringent requirement that the challenged prison conditions pose a substantial threat to the health or safety of the inmate. Even if we assume that prolonged exposure to a room chill sufficient to compel the inmate to wear his day clothes at night might eventually pose such a threat, the Second Circuit has made clear that occasional chill in the prison setting is not ordinarily sufficient to trigger constitutional protection. See, e.g., Trammell v. Keane, 338 F.3d 155, 164-65 (2d Cir. 2003) (citing cases). Plaintiff's pleading, as further elucidated by both the documents that plaintiff incorporated in his pleading and the related documents that are integral to his allegations, reflect that plaintiff was complaining in his various grievances about short-term dips in temperature.
The only pertinent exhibit actually proffered with the amended complaint (Pl. Ex. 41) reflects that an inmate (likely plaintiff) complained on October 12, 2009 that for several days before October 15, 2009 the outside early morning temperatures had fallen to between 26 and 45 degrees and that the radiators in the prison were not providing heat. The grievant observed that as a result the indoor temperatures were "no where at 68 degrees." As a result, he said, he and other prisoners had to wear sweatshirts and sweatpants on top of other clothes, including at night. Noting that DOCS regulations were said to require 68 degrees as a minimum, his complaint was that the prison should be providing heat not just as of October 15 each year but before that date if the outside temperature was cold enough to justify it. In response, the plant superintendent (we assume Mr. Moore) reported on October 15, 2009 that the heat was on and the maintenance staff was working to be sure that all sections of the prison housing had heat. In particular he noted that engineers were in the process of bleeding the air from the heating system -- a necessary step to ensure that radiators do their job properly and at full strength. The Superintendent then reiterated Mr. Moore's summary of the situation. On an appeal by Hodge on a related complaint to the IGRC, the Board ruled that the Superintendent should ensure that the radiator in plaintiff's cell "work[s] the same as all working cells." (Pl. Ex. 41).
Plaintiff annexes an unsigned grievance labeled "Hodge 86A8851", a disposition by the Superintendent on an appeal by an inmate identified as W. Randall and a decision by the Inmate Grievance Resolution Committee ("IGRC") on a complaint, apparently to the same effect, by Hodge. (Pl. Ex. 41).
Plaintiff's amended complaint also cites several other heat-related grievances filed by Hodge (e.g., Am. Compl. ¶ 17), and defendants have supplied the underlying paperwork of those grievances and their disposition in support of their motion. (Biesty Decl. Exs. 3 & 4). In Grievance SUL/19234/10, Hodge complained in early-May 2010 that "All this past week the outside temperature has been dropping below 40 degrees at night." He went on to state:
[Deputy] Lilley kept professing to the inmate population . . . [t]hat the heating system was controlled by outside temperature controls. This facility has spent thousands upon thousands of dollars on trying to fix the heating system . . . from 2007, and here it is 2010 and this heating system is still not working right with the thousands upon thousands of dollars spent to fix it. And those so[-]called outside temperature controls Dept. Lilley professed about are not working to turn on or off the heating system when the temperature goes below or above 68 degrees.(Biesty Decl. Ex. 3). Finally, plaintiff reported that on the previous two nights the outdoor temperatures had dropped to 37 and 36 degrees respectively, that the day of the grievance (May 9, 2010) the night temperature was expected to dip to 33 to 34 degrees, and that the prison had no heat, forcing inmates "to sleep fully clothed and with the use of several blankets." He asked that the heating system be turned on again "and properly controlled." (Id.).
This grievance elicited a ruling by the Superintendent reciting that Deputy Superintendent Moore had reported that the heating was turned on again on May 9. The Superintendent went on to say that "[t]he new heating control system is an on-going project and will soon be complete." He further recited that once this was completed the system "will operate properly and be regulated with the outside air temperature." In response to this statement Hodge took an appeal, stating, "This heating repair [p]reject has been going on since 2006. [H]eating complaints dating back to 2000. When is it going to be corrected, and how much more thousands of dollars later[?]" Ultimately the Central Office Review Committee ("CORC") work sheet noted that the "heat control system is ongoing and has been stalled by the NYS fiscal situation". (Biesty Decl. Ex. 3).
This documentation confirms both that plaintiff's complaints involved short-term exposure to chilliness in the prison and, at most, discomfort rather than a serious threat to inmate health and safety. These circumstances cannot plausibly be said to meet the objective element of an Eighth Amendment conditions-of-confinement claim. Similarly, the documentation incorporated in the complaint or integral to it reflects that plaintiff does not plead a plausible claim that Mr. Lilley tried to save DOCS money by shutting down the heating system and thereby acted with deliberate indifference to the health or safety of the inmates. Indeed, it is readily apparent from plaintiff's own words, as well as the reports that were prepared in response to his grievances, that DOCS had been spending large amounts of money over a period of years to update an apparently balky heating system and that the failure of that still uncompleted update was attributable to engineering and State financial problems and not to any desire by Lilley to shortchange the inmates.
At one point plaintiff referred to some inmates getting colds, but he does not suggest that he so suffered and in any event he was in no position to diagnose the cause of other inmates' colds. Finally, the occasional cold-weather cold cannot be found to justify a conclusion that the underlying conditions in the prison were constitutionally inadequate.
Plaintiff's complaints about the lack of hot water is equally deficient. He asserts that inmates were deprived of hot showers and hot water in their cells. (Am. Compl. ¶ 17). Even assuming that to be the case, that deprivation can scarcely be said to amount to a condition so severe and pervasive as to threaten inmate health or safety. In any event, both the grievance cited by plaintiff in his complaint in support of this claim and the response of DOCS grievance personnel -- copies of which are proffered by defendants -- all demonstrate that there is even less to this claim than is suggested on the face of the pleading. In grievance SUL/19334/10, dated June 26, 2010, Hodge complained about "Hot Water in the Cells". (Biesty Decl. Ex. 4). He noted that he had previously complained about this condition, that he had been told that it would be corrected and that Deputy Superintendent Moore had in fact corrected it. The gist of this grievance was that "now the hot water in the cells is back to being just about warm." He also reported that when the showers are being used, the water in his cell "gets colder". He asked that the water in his cell remain "hot" "and not warm." (Id.). This grievance elicited a report from Deputy Superintendent Moore that on June 29 he had turned up the heat in the water system and that when he checked the next day the water temperature in the cells on plaintiff's block, both in the cells and in the showers, was "good". (Id.). Based on this report the Superintendent deemed the grievance resolved. Plaintiff then appealed, stating, "After this very [g]rievance hearing two work orders had to be put in because the water still gets cold and is not being corrected." CORC then adopted the Superintendent's conclusion and told plaintiff to address any future problems of this sort "to area supervisory staff". (Biesty Decl. Ex. 4).
This set of documents reflects that plaintiff's hot water complaint does not suggest in any meaningful sense that he was exposed to a condition that posed a serious threat to his health or safety or denied him "a basic human need". As he himself described the problem, he was given only warm water in his cell, and when the showers were run, the cell water became colder. Whatever the frustration that this problem -- familiar to many New York City apartment dwellers -- might have caused him, it cannot be plausibly said to amount to an Eighth Amendment violation. Hence, plaintiff's allegations in this respect fail to meet the objective standard for an Eighth Amendment violation.
The documentation also precludes a finding that Deputy Superintendent Lilley acted in this respect with deliberate indifference to inmates' health or safety. Indeed, there is no indication that he was involved in any way, and in any event plaintiff reported to DOCS that the hot-water system was not working properly despite the prison having spent a lot of money and having filled out several work orders, thus reflecting once again an engineering problem, and not a refusal by Lilley to deal with the issue in pursuit of cost savings. In short, plaintiff cannot plausibly demonstrate that he was victimized by constitutionally prohibited disregard for his welfare.
In sum, we conclude that the April 2011 amended complaint cannot withstand Rule 12(b)(6) scrutiny. We therefore recommend that defendants' motion to dismiss it be granted. Moreover, since this is plaintiff's second try at drafting a viable complaint (indeed a third if we count his motion to amend), and since we conclude that he cannot remedy the pleading deficiencies that we have noted, the dismissal should be with prejudice.
To the extent that some of the claims in the current amended complaint remain open against the unserved defendants, we recommend that they be dismissed under Fed. R. Civ. P. 4(m) for failure to serve those defendants, unless plaintiff can demonstrate good cause for this failure, presumably on appeal from this Report and Recommendation.
CONCLUSION
For the reasons noted, (1) we recommend that plaintiff's motion for a preliminary injunction be denied, (2) we deny plaintiff's motion to amend the original complaint, and (3) we recommend that defendants' motion to dismiss the April 2011 amended complaint be granted and that that pleading be dismissed with prejudice.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Paul A. Crotty, Room 735, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York 10007. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). Dated: New York, New York
December 19, 2011
RESPECTFULLY SUBMITTED,
/s/_________
MICHAEL H. DOLINGER
UNITED STATES MAGISTRATE JUDGE Copies of the foregoing Report and Recommendation have been mailed this date to: Mr. Martin Hodge
# 86-A-8851
Sullivan Correctional Facility
325 River Side Drive
Box 116
Fallsburg, New York 12733-0116 Thomas M. Biesty, Esq.
Assistant Attorney General
for the State of New York
120 Broadway
24th Floor
New York, New York 10271