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holding “five Colon categories still apply after Iqbal ” and gathering cases
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09 Civ. 6470 (WHP)
01-05-2012
ANGEL MARTINEZ, Plaintiff, v. JOHN PERILLI, M.D., and KYEE TINT MAW, M.D. Defendants.
Copies mailed to: Angel Martinez 3892 Woodthrush Dr. Kissimmee, FL 34744 Plaintiff Pro Se Donald Nowve, Assistant Attorney General Office of New York State Attorney General 120 Broadway, 24th Floor New York, New York 10271 Counsel for Defendants
MEMORANDUM & ORDER
:
Plaintiff pro se Angel Martinez ("Martinez") brings this federal civil rights action against John Perilli, M.D., former Medical Director at Sing Sing Correctional Facility ("Dr. Perilli") and Kyee Tint Maw, M.D. ("Dr. Maw") in their individual capacities. Both defendants move to dismiss the Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, the defendants' motion to dismiss the Second Amended Complaint ("Complaint") is denied.
BACKGROUND
Martinez has been in the New York State Department of Correctional Services's custody since 1997 and was confined at Fishkill Correctional Facility in Beacon, New York. (Complaint ¶ 2.) On June 1, 2007, while Martinez was incarcerated at Sing Sing Correctional Facility ("SSC"), he underwent hernia surgery. (Complaint ¶ 15.) Following this surgery, he experienced "excruciating pain" in his left testicle, and informed Drs. Perilli and Maw. (Complaint ¶ 15.) Three months later, on September 27, 2007, Martinez was taken to Fishkill's Regional Medical Unit ("RMU") for medical evaluation, (Complaint ¶ 15.) Following that evaluation, Dr. Maw informed Martinez that he had a cyst on his left testicle and recommended a urology consult. (Complaint ¶ 15.) Two months later, on November 28, 2007, Martinez saw Dr. Marc Janis, an outside urologist, who confirmed the presence of the cyst and recommended surgical removal. (Complaint ¶ 16.) Dr. Perilli, then the SSC Health Services Director, approved Dr. Janis's recommendation on December 6, 2007. (Complaint ¶ 16.) A month and half later, on January 18, 2008, a surgeon removed Martinez's cyst at Mount Vernon Hospital. (Complaint ¶ 17.) Despite the surgery, Martinez's testicular pain persisted, and he complained again to Drs. Perilli and Maw. (Complaint ¶ 18.) For a second time, Martinez was sent for evaluation to the RMU. Thereafter, Dr. Maw informed Martinez that his pain was attributable to another cyst. (Complaint ¶ 18.)
Martinez alleges that he still suffers from "complications with recurrence of [a] testicle cyst," which has "increased to the size of a large egg." (Complaint ¶ 21.) Martinez also alleges that had the cyst been removed earlier, he would not have undergone three years of excruciating pain and continuing complications. (Complaint ¶ 21.)
DISCUSSION
I. Legal Standard
To 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 All. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To determine plausibility, courts follow a "two pronged approach." Iqbal, 129 S. Ct. at 1950. "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." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (internal quotation marks and alteration omitted). Second, a court determines "whether the 'well-pleaded factual allegations,' assumed to be true, 'plausibly give rise to an entitlement to relief.'" Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1950). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S. Ct. at 1949 (citation omitted).
However, a pro se litigant's submissions are held to "less stringent standards than [those] drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Courts must "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions 'to raise the strongest arguments they suggest.'" Berlin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). This guidance applies with particular force when a plaintiff's civil rights are at issue. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Nevertheless, the Court need not accept as true "conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).
II. Violations of the Eighth Amendment
In order to state a claim of inadequate medical treatment in violation of the Eighth Amendment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). This standard requires alleging (1) that deprivation of medical treatment was "sufficiently serious," and (2) that the defendants acted with "deliberate indifference." See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
A. Deprivation of Medical Treatment
Prison officials can deprive inmates of medical treatment by unnecessarily delaying or interrupting medical care. See Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003). When a prisoner alleges "a temporary delay or interruption in the provision of otherwise adequate medical treatment," the court looks to the seriousness of the particular risk of harm that resulted from "the challenged delay rather than the prisoner's underlying medical condition alone." Smith, 316 F.3d at 185. The actual medical consequences due to the alleged depravation of medical care are "highly relevant." Smith, 316 F.3d at 187. "There is no settled, precise metric to guide a court in its estimation of the seriousness of a prisoner's medical condition," but a court may consider "(1) whether a reasonable doctor or patient would find it important and worthy of comment; (2) whether the condition significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain." Brook v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Moreover, a "mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998).
Defendants dispute that Martinez's cyst is "sufficiently serious" because "there is no evidence that plaintiff's medical condition was life-threatening [or] fast-degenerating." (Defendants' Reply Memorandum of Law at 4.) Defendants argue that Martinez alleges a mere disagreement over the treatment of his medical condition, which does not create a claim under the Eighth Amendment. However, the seriousness of Martinez's medical condition can be inferred from the RMU's discovery of the cyst, Dr. Janis's recommendation of surgical removal, and Dr. Perilli's prompt approval of that recommendation. In addition, Martinez has alleged that his condition caused and continues to cause him "excruciating pain." While Martinez has not set forth precisely how his condition affects his daily activities, a significant impact may be inferred from his alleged "unnecessary and extreme testicle pain and suffering." (Complaint ¶ 21.) Accordingly, the Complaint satisfies the first prong of an Eighth Amendment claim.
B. Deliberate Indifference
Aside from alleging a "sufficiently serious" deprivation of medical care, Martinez must allege that Drs. Perilli and Maw acted with "deliberate indifference to [his] serious medical needs." Estelle, 429 U.S. at 101. "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law. This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). Martinez need not allege that the Drs. Perilli and Maw acted "for the very purpose of causing harm or with knowledge that harm will result," but only that they were "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [that they] . . . [drew that] inference." Farmer, 511 U.S. at 837. However, "decisions of physicians regarding the care and safety of patients are entitled to a presumption of correctness." Kulak v. City of New York, 88 F.3d 63, 77 (2d Cir. 1996). Therefore, allegations of medical malpractice are insufficient to support a deliberate indifference claim unless "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." Chance, 143 F.3d at 703.
Here, Defendants argue that Martinez's allegations merely "reflect his disagreement over the course of his medical treatment," which implicates, "at worst, negligence amounting to medical malpractice," and not an Eighth Amendment claim. (Defendants' Memorandum of Law in Support of their Motion to Dismiss at 9.) However, Martinez does not argue that he should have been given another course of treatment, but that Drs. Perilli and Maw delayed his treatment and caused him unnecessary suffering. Specifically, Martinez alleges that he complained to Drs. Perilli and Maw of his "excruciating pain" as early as June 2007. Three months elapsed before Martinez was examined by the RMU. After discovery of the cyst and referral to a urologist, Martinez was not seen by a specialist until November 28, 2007. Then, Martinez waited another two months for the surgery. Thus, the Complaint makes sufficient allegations of deliberate indifference to a serious medical need. There may be valid reasons why treatment was ultimately delayed, but such a fact sensitive inquiry cannot be resolved on a motion to dismiss.
III. Supervisor Liability
Defendants further allege that, even if both prongs of Martinez's Eighth Amendment claim are satisfied, Dr. Perilli could not be liable as a supervisor because he was not personally involved in Martinez's medical care. "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." Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006). "[T]he doctrine of respondeat superior standing alone does not suffice to impose liability for damages under section 1983 on a defendant acting in a supervisory capacity." Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003). Instead, a plaintiff must allege either 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 by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
In Iqbal, the Supreme Court clarified that a supervisor can be held liable only "through the official's own individual actions." 129 S.Ct. at 1937. However, "personal involvement of defendants in alleged constitutional deprivations can be shown by nonfeasance as well as misfeasance. . . ." Thus, the five Colon categories still apply after Iqbal. Qasem v. Toro, 737 F.Supp.2d 147, 151 (S.D.N.Y. 2010); see also D'Olimpio v. Crisafi, 718 F. Supp. 2d 340, 345-48 (S.D.N.Y. 2010); Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009).
Martinez concedes that Dr. Perilli did not "personally examine plaintiff," but he alleges that Dr. Perilli was responsible for "decisions regarding plaintiff's medical treatment." (Complaint ¶ 25.) Indeed, Dr. Perilli allegedly approved Martinez's surgery on December 6, 2007. Moreover, Dr. Perilli allegedly delayed Martinez's medical treatment while being aware of his excruciating pain. Such "nonfeasance" can support supervisory liability under § 1983. See Qasem v. Toro, 737 F. Supp. 2d 147, 151 (S.D.N.Y. 2010).
CONCLUSION
For the foregoing reasons, Dr. John Perilli and Dr. Kyee Tint Maw's motion to dismiss the Second Amended Complaint is denied. Dated: January 5, 2012
New York, New York
SO ORDERED:
/s/_________
WILLIAM H. PAULEY III
U.S.D.J.
Copies mailed to:
Angel Martinez
3892 Woodthrush Dr.
Kissimmee, FL 34744
Plaintiff Pro Se Donald Nowve, Assistant Attorney General
Office of New York State Attorney General
120 Broadway, 24th Floor
New York, New York 10271
Counsel for Defendants