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finding leave to amend to be futile and dismissing claims with prejudice when the court had directed plaintiff "to include requisite facts to support his claims" and plaintiff failed to present such facts
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No. 02 Civ. 10281 (LTS)(MHD).
August 26, 2004
MEMORANDUM ORDER
Edward Massey ("Plaintiff"), a former inmate at the Sing Sing Correctional Facility ("Sing Sing"), brings this action pro se against Sing Sing Superintendent Brian Fischer ("Fischer") and Dr. Jay Perilli ("Perilli") (collectively, "Defendants") pursuant to 42 U.S.C. section 1983. The Court has jurisdiction of this action pursuant to 28 U.S.C. section 1331. Before the Court is Defendants' motion to dismiss Plaintiff's Amended Complaint, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the following reasons, Defendants' motion is granted in part and the Amended Complaint is dismissed with prejudice.
BACKGROUND
Plaintiff's principal factual allegations, which are all taken as true for purposes of the instant Rule 12 motion, are as follows. On January 9, 1998, Plaintiff was transferred from the New York State Department of Correctional Services ("DOCS") Downstate Correctional Facility to Sing Sing. (Am. Compl. ¶ 6.) When he had previously been incarcerated at Sing Sing, in 1989, Plaintiff was diagnosed as clinically depressed and was prescribed "Xanax." (Id.) (spelling corrected). On his return to Sing Sing in 1998, Plaintiff was refused a prescription for Xanax by the medical staff. As a result of this refusal and "a long period of neglect to Plaintiff's medical and mental health condition by prison officials," between January 9, 1998, and February 9, 2000, Plaintiff "suffered." (Id. ¶¶ 8-10.) On February 9, 2000, Dr. Juliette Angle prescribed "Pamelor," another anti-depressant medication, for Plaintiff's use. On February 27, 2000, Officer J. Creeden, a Sing Sing correctional officer, "intentionally denied" Plaintiff his medication and filed two misbehavior reports against Plaintiff. Subsequently, Plaintiff initiated a civil action based on prison officials' alleged deliberate indifference to Plaintiff's medical needs, the events of February 27, 2000, and related issues. That action was commenced on May 12, 2000, and the case was ultimately dismissed on the merits. See Massey v. Greinal, No. 00 Civ. 3168 (LMM), 2001 WL 1518287 (S.D.N.Y. Nov. 28, 2001). On May 29, 2001, Defendant Perilli discontinued Plaintiff's medication. Later, at an unspecified date, after an "unknown doctor" had renewed Plaintiff's prescription, Perilli again discontinued Plaintiff's medication. (Am. Compl. ¶¶ 18-19.) Although, in his Amended Complaint, Plaintiff does not specify the precise nature of the injuries allegedly caused by Defendants' conduct, in Plaintiff's Notice of Motion, filed December 1, 2003 ("Pl.'s Mem."), Plaintiff asserts that "Plaintiff caught the shingles and other medical problems because of deliberate indifference to his serious medical needs." (Pl.'s Mem at 6.)
On May 30, 2001, Plaintiff's then-attorney, Amy I. Berman ("Berman"), wrote a letter to Perilli, stating that Plaintiff had told Berman that a nurse "named Cochran" had denied Plaintiff his Pamelor medication due to Plaintiff's "high functioning liver." (Am. Compl. at 24.) Berman asked Perilli to look into the issue. On September 17, 2001, Sing Sing's Inmate Grievance Resolution Committee received a letter from Plaintiff mentioning delays in Plaintiff's medical treatment and alluding to letters Plaintiff had previously written to both Defendants about the matter. (Am. Compl. at 20.) Plaintiff also filed a grievance with the DOCS Inmate Grievance Program, claiming that he had been harassed by various prison officials for complaining about his medical treatment; none of the prison officials Plaintiff mentioned in the grievance is named as a defendant in this case. That grievance was denied by Defendant Fischer on October 26, 2001. (Am. Compl. at 21; Fischer denial annexed to Am. Compl.) On October 31, 2001, Berman again wrote to Fischer, asserting that Plaintiff "was not receiving timely [medical] attention," and asking Fischer to "resolve any problems impeding Mr. Massey's proper medical treatment." (Am. Compl. at 25.)
Construed liberally, Plaintiff's Amended Complaint alleges that Perilli's discontinuance of his medication on two occasions constituted deliberate indifference to his medical needs, in violation of the Eighth Amendment to the U.S. Constitution. (Am. Compl. ¶¶ 18-19.) Plaintiff also alleges that Fischer's failure to rectify Perilli's action, after being notified of the discontinuance of Plaintiff's medication, constituted deliberate indifference to his medical needs. (Am. Compl. ¶¶ 16-17.) Plaintiff contends that Fischer's inaction establishes his personal involvement in the alleged deliberate indifference to Plaintiff's medical needs. (Pl.'s Mem. at 7.) In addition, Plaintiff alleges that he became the target of retaliation by other prison officials — specifically, the filing of "false misbehavior reports" — after Plaintiff filed grievance complaints and a lawsuit against prison personnel. (Am. Compl. ¶¶ 20-21.) Plaintiff does not allege that Perilli or Fischer took retaliatory action against him. Rather, Plaintiff contends that Superintendent Fischer knew about the alleged harassment (Pl.'s Mem. at 8), and that Fischer's failure to prevent the alleged retaliation was a violation of Plaintiff's First Amendment rights.
PROCEDURAL HISTORY
Plaintiff's initial complaint in this case, which was received by the Court's Pro Se Office on February 22, 2002, alleged that Plaintiff was forced to work without pay, that Plaintiff was provided with inadequate medical treatment, that Plaintiff was subjected to retaliatory acts by correctional officers, and that Plaintiff was the target of correctional officers' false misbehavior reports. In an Order dated December 27, 2002, Chief Judge Mukasey dismissed the claim regarding wages, and granted Plaintiff permission to amplify and replead certain of the other claims. Judge Mukasey's Order explained in detail the Prison Litigation Reform Act's (" PLRA") exhaustion of administration remedies requirement. See 42 U.S.C. § 1997e(a). Judge Mukasey's Order also explained that personal involvement in alleged violations is a prerequisite for liability under § 1983, and described the type of evidence that may establish the personal involvement of a supervisory official. Plaintiff was granted leave to amend his complaint in order to allege specific facts or to attach any documents showing the personal involvement of Defendant Fischer, and to provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint, including relevant dates, names and descriptions of events. (Mukasey Order at 7.) Plaintiff's Amended Complaint was filed on February 5, 2003.
Defendants, on October 20, 2003, moved to dismiss the Amended Complaint or, in the alternative, moved for summary judgment. Defendants' papers were accompanied by copies of Inmate Misbehavior Reports, a copy of the Judgment dismissing Plaintiff's prior lawsuit,Massey v. Greinal, No. 00 Civ. 3168 (LMM), 2001 WL 1518287 (S.D.N.Y. Nov. 28, 2001), and a Declaration in Support of Defendants' Motion to Dismiss the Complaint by Thomas G. Eagen, Director of the Inmate Grievance Program for DOCS and custodian of the records maintained by the Central Office Review Committee ("CORC"). Defendants argue, inter alia, that the Amended Complaint should be dismissed because Plaintiff failed to exhaust his administrative remedies, because Plaintiff fails to allege sufficient personal involvement by Defendant Fischer, and because Plaintiff fails to state a claim of deliberate indifference to Plaintiff's medical needs as against Defendant Perilli.
Plaintiff responded with a request for counsel, and papers containing conclusory assertions that Plaintiff sought to exhaust his administrative remedies (including by mailing unspecified documents to an administrative review body at Sing Sing), and that Plaintiff made written complaints regarding his medical care and other matters. Plaintiff also asserts that a non-defendant threatened him in connection with Plaintiff's attempt to file a grievance. Plaintiff's opposition papers are accompanied by copies of grievances that Plaintiff filed against non-defendants, copies of various medical documents unrelated to the claims in this action, copies of miscellaneous documents relating to Plaintiff's incarceration, and copies of correspondence between Plaintiff's counsel and prison officials. Plaintiff requests discovery in advance of the adjudication of Defendants' motion, but does not specify relevant facts that such discovery would provide.
DISCUSSION
When considering a Rule 12(b)(6) motion, the Court applies "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Under 12(b)(6), the Court is obliged to take as true the facts as alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998). If, on a motion pursuant to Rule 12(b)(6), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment, and all parties shall be given reasonable opportunity to present all material made pertinent to such a summary judgment motion. See Fed.R.Civ.P. 12(b). The Court has treated Defendants' motion as one under Rule 12(b)(6), and, thus, has not considered Defendants' extrinsic evidence. The Court has, however, considered and construed liberally all of Plaintiff's pro se papers. "In general, a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum." Verley v. Goord, No. 02 Civ. 1182 (PKC) (DF), 2004 WL 526740, at *5 (S.D.N.Y. Jan. 23, 2004) (internal quotation marks and citations omitted). See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ( pro se pleadings are to be construed liberally). Accordingly, the Court has considered Plaintiff's Amended Complaint, Plaintiff's Opposition Memorandum/Notice of Motion, filed December 1, 2003, and Plaintiff's accompanying papers in deciding Defendants' motion. Exhaustion of Administrative RemediesDefendants assert that Plaintiff's claims should be dismissed because Plaintiff failed to exhaust his available administrative remedies at Sing Sing as regards his allegations in the Amended Complaint. Whether or not Plaintiff did exhaust his administrative remedies cannot be determined without reference to Defendants' extrinsic evidence. Plaintiff's opposition papers are sometimes vague, but they could be construed liberally to raise a factual issue as to whether Sing Sing's institutional staff prevented Plaintiff from exhausting his administrative remedies and/or whether Plaintiff pursued formal grievances regarding the conduct underlying the Amended Complaint. However, because the Court has determined that Plaintiff fails to state a claim upon which relief can be granted, it is unnecessary to address the merits of Defendants' failure to exhaust defense.
Under the PLRA, if a complaint, on its face, fails to state a claim upon which relief can be granted, the Court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies. See 42 U.S.C. § 1997e(c)(2). The Court has carefully considered the Amended Complaint and Plaintiff's various submissions in opposition to Defendants' motion. Notwithstanding Judge Mukasey's clear directions, Plaintiff's amended pleading and supplemental submissions fail to include factual allegations sufficient to state claims upon which relief can be granted.
Deliberate Indifference Claim
For a prisoner to establish the constitutional violation of deliberate indifference to his medical needs, the deprivation of medical care must be "sufficiently serious," and the prison official being charged must act with a sufficiently culpable state of mind. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (internal citations omitted). See Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting) (the standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain") (citations omitted). The seriousness of the deprivation of medical care is the objective element of a deliberate indifference claim.
The culpability of the state of mind of the person being accused of deliberate indifference is the subjective element of a deliberate indifference claim. "Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm." Hathaway v. Coughlin, 37 F.3d at 66. "[A] prison official does not act in a deliberately indifferent manner unless that official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. (internal quotation marks and citation omitted.)
The Amended Complaint fails to state a deliberate indifference claim against Defendant Perilli because Plaintiff does not allege facts indicating that Perilli's alleged denial of anti-depressant medication resulted in a sufficiently serious condition (i.e., one that might produce death, degeneration, or extreme pain) (the objective element of the claim), and, furthermore, because Plaintiff does not allege facts indicating that Defendant Perilli acted with a sufficiently culpable state of mind (the subjective element of the claim). Plaintiff says nothing going to Perilli's state of mind at all.
Plaintiff's claims against Defendant Perilli are therefore dismissed for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6) and 42 U.S.C. § 1997e(c)(2). Claims Against Defendant Fischer
"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.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). Liability is limited only to those who actually cause a deprivation of rights, and the doctrine of respondeat superior may not be used to impose liability under section 1983. Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). "[A] defendant in a § 1983 action may not be held liable for damages for constitutional violations merely because he held a high position of authority." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). The Second Circuit has outlined five types of evidence that may show the personal involvement of a supervisory defendant:
(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 inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted).
Plaintiff does not allege that Defendant Fischer participated directly in any alleged constitutional violations, or that Fischer created a policy or custom under which unconstitutional practices were committed or allowed to continue. Plaintiff's claims against Fischer rest upon allegations that Defendant Perilli was deliberately indifferent to Plaintiff's medical needs and that, after Plaintiff filed grievances and initiated a lawsuit against other prison officials, those prison officials filed retaliatory "false inmate misbehavior reports." Plaintiff asserts that Superintendent Fischer's personal involvement in these alleged events consisted of Fischer's inaction "after being notified [of violations] by Plaintiff and [Plaintiff's then-attorney] Ms. Amy I. Berman . . ." (Pl.'s Mem at 6.) "Generally, the allegation that a supervisory official ignored a prisoner's letter protesting unconstitutional conduct is not itself sufficient to allege the personal involvement of the official so as to create liability under § 1983." Pritchett v. Artuz, No. 99 Civ. 3957 (SAS), 2000 WL 4157 (S.D.N.Y. Jan. 3, 2000). See also Ramos v. Artuz, No. 00 Civ. 0149 (LTS) (HBP), 2001 WL 840131, at *7 (S.D.N.Y. Jan. 25, 2000) (granting Rule 12(b)(6) motion where superintendent's personal involvement was limited solely to the receipt of letters). "The general rule is that an allegation that an official ignored a prisoner's letter of protest and request for an investigation of allegations made therein is insufficient to hold that official liable for the alleged violation." Joyner v. Greiner, 195 F. Supp. 2d 500, 506-507 (S.D.N.Y. 2002) (internal quotation marks and citation omitted). See also, Higgins v. Artuz, No. 94 CIV. 4810 (SS), 1997 WL 466505, at *7 (S.D.N.Y. Aug. 14, 1997). Because Plaintiff does not suggest any further personal involvement by Fischer in constitutional violations, this general rule applies to preclude Plaintiff's section 1983 claim against Fischer. Plaintiff's claims against Fischer are therefore dismissed for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6) and 42 U.S.C. § 1997e(c)(2).
CONCLUSION
For the foregoing reasons, Defendants motion is granted to the extent that the Amended Complaint is dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) and 42 U.S.C. § 1997e(c)(2), and is denied in all other respects. Leave to amend further would be futile, in light of Judge Mukasey's earlier clear directions to Plaintiff to include requisite facts to support his claims and Plaintiff's failure to come forward with such facts in response to Defendants' motion. The Amended Complaint is therefore dismissed with prejudice. Plaintiff's request for appointment of counsel is denied in light of the resolution of the dispositive motion. Finally, Plaintiff's letter of September 23, 2003, requesting injunctive or declaratory relief with respect to his ongoing medical issues at Sing Sing, has been rendered moot, as Plaintiff is no longer incarcerated at Sing Sing. The Clerk of Court is directed to enter judgment in Defendants' favor and close the case.
SO ORDERED.