Opinion
11 Civ. 7450 (PKC)(HBP)
08-02-2012
RONNIE SLEDGE, Plaintiff, v. FREDERICK BERNSTEIN AND J. FEIN, Defendants.
MEMORANDUM AND ORDER
:
Plaintiff Ronnie Sledge, proceeding pro se, brings this action against Frederick Bernstein, M.D., and J. Fein, M.D., under 42 U.S.C. § 1983, alleging that defendants violated his Eighth Amendment rights by acting with deliberate indifference to plaintiff's allegedly serious medical needs. Defendant Bernstein moves to dismiss the claim in its entirety for failure to state a claim upon which relief may be granted. For reasons to be explained, defendant's motion is granted. BACKGROUND
Plaintiff is an inmate at Green Haven Correctional Facility ("GHCF"). (Compl. § II, ¶ 1.) He arrived at GHCF on October 7, 2010. (Compl. § VI, ¶ 1.) Defendant J. Fein, M.D. saw plaintiff on October 13, 2010 regarding plaintiff's complaints of extreme pain in his back and knees. (Id. at ¶ 4.) At that doctor visit, plaintiff alleges that, because of his pain, he asked to be placed in a bottom bunk on the bottom-most floor of any housing unit, knowing that he would be placed in a double bunk cell under GHCF's policy. (Id.; Compl. Ex. H.) Dr. Fein made such a recommendation. (Compl. Ex. A.)
On October 18, 2010, plaintiff sent defendant Frederick Bernstein, M.D., the GHCF Medical Director, a letter requesting that he be medically excused from being placed in a double bunk because he needed space to perform his "Therapeutic Exercises," which was "impossible with two inmates sharing such inadequate space." (Id.) He requested a single cell.
In his October 23, 2010 reply to plaintiff's letter, Dr. Bernstein agreed with Dr. Fein's recommendation that plaintiff's housing be restricted to the bottom bunk on the bottom-most floor of a housing unit, due to plaintiff's knee and back pain. (Compl. Ex. B.) Dr. Bernstein, however, did not grant plaintiff's request for a single cell. (Id.)
Plaintiff alleges that on November 13, 2010 he had an asthma attack. (Compl. § IV, ¶ 10.) During the course of this asthma attack, plaintiff alleges that, as he reached for his medication, he banged his head on the railing of the top bunk. (Id.) Plaintiff alleges that, whenever he had a severe asthma attack and needed to reach for his medication, he hit his head on the top bunk in a similar fashion. Plaintiff alleges that such incidents occurred more frequently since arriving at GHCF due to "excessive dust . . . insect droppings . . . rust in the cells and bars, cockroaches and rodents . . . no open windows . . . [and] cigarette and cigar smoke (which is tolerated at GHCF even though is it against [New York Department of Corrections and Community Supervision] policy)." (Id. at ¶ 12.) He alleges that he would suffer from an asthma attack three to four times a week, hitting his head on the railing of the top bunk each time as he reached for medication. (Id. at ¶ 29.)
Because of this recurring banging of his head, plaintiff alleges that he suffers from "pounding headaches, light-headedness and swelling in the area that was struck." (Id. at ¶ 11.) Plaintiff also alleges that, on one occasion, he injured his left thumb from landing on it awkwardly after falling out of his bed during an asthma attack. (Id. at ¶ 15.)
Plaintiff alleges that Dr. Fein prescribed new asthma medication for plaintiff's asthma attacks but did not prescribe anything for the "pounding headaches, light-headedness, or inability to sleep," all of which were caused by the banging of his head. (Id. at ¶13.) On a subsequent visit to Dr. Fein, for the same complaints, plaintiff received a prescription for aspirin. (Id. at ¶ 15.) Plaintiff alleges that the new asthma medication and the aspirin did not stop the attacks or the pain. (Compl. Ex. D.) On December 22, 2010 and on January 5, 2011, plaintiff sent Dr. Bernstein letters requesting a single cell so that he would no longer hit his head on the top bunk while he reached for his asthma medication during an asthma attack. (Id.; Compl. Ex. E.)
In response to plaintiff's letters, Dr. Bernstein, on January 6, 2011, stated
[h]aving asthma does not qualify you for a single cell. We have many inmates taller than you on the bottom bunk and none of them have complained of hitting their head repeatedly on the top bunk. If you remember that you are on the bottom bunk you should be able to take appropriate measures to avoid hitting the top bunk. Your request for a single cell is denied. (Compl. Ex. G.)
Plaintiff responded to Dr. Bernstein, on January 13, 2011, by stating that "being taken out of a double-bunk situation . . . is not the issue anymore." (Compl. Ex. H.) According to plaintiff, the issue had become plaintiff's allegedly serious medical conditions, caused by the repeated hitting of his head, which, he states, were ignored by the medical staff at GHCF. (Id.) He also stated that his asthma attacks induced such a great panic in him that taking "appropriate measures to avoid hitting the top bunk" was impossible. (Id.) In response, on February 9, 2011, Dr. Bernstein wrote to plaintiff saying that plaintiff's file indicated that he suffered from "mild persistent asthma" and that he should request emergency sick call if he suffers from severe shortness of breath again. (Compl. Ex. L.) On February 28, 2011, plaintiff sent Dr. Bernstein another letter raising the same issues as plaintiff's January 13, 2011 letter. (Compl. Ex. N.) Dr. Bernstein responded by referring plaintiff to his February 9, 2011 letter and encouraged him to address his "ongoing medical concerns" with his primary care provider. (Compl. Ex. O.)
On February 28, 2011, Dr. Fein, plaintiff's primary care provider, addressed plaintiff's complaints about his head, hand, knees and back by scheduling him for x-rays of his head and left hand and by prescribing physical therapy for his back and knees. (Compl. § VI, ¶ 26.) Plaintiff had x-rays taken on March 31, 2011. (Id. at ¶ 30.) He started physical therapy that same day. (Id.) Plaintiff states that Dr. Fein told him that he had arthritis in his left hand and no abnormalities on his skull. (Id. at ¶ 33) Plaintiff alleges that after finding out that there was nothing wrong with his head, he asked Dr. Fein why he was still experiencing pounding headaches. (Id.) According to plaintiff, Dr. Fein answered by saying that "'he would just have to deal with it (the pain).'" (Id.)
Plaintiff alleges that, on May 9, 2011, he was moved to a single cell due to his participation in an anti-drug program. (Id. at 38). Although plaintiff was no longer hitting his head on the top bunk, he alleges that he continued to suffer from pounding headaches, light-headedness, swelling, and sleeping difficulties. (Id.) Plaintiff alleges that on June 1, 2011, Dr. Fein, in response to plaintiff's usual medical complaints, again said that he "'was going to have to deal with the pain'" and prescribed no pain medication. (Id. at ¶ 41). On August 2, 2011, plaintiff alleges that after being told again of his ongoing medical ailments, Dr. Fein said "'[n]othing can be done and you have to make due." (Id. at ¶ 47.)
In sum, over the course of less than one year, October 7, 2010 to August 11, 2011 plaintiff went to see the medical staff of GHCF twenty-one times, eleven of which were visits with Dr. Fein, not including the initial medical screening. (Compl. § IV.) Dr. Bernstein, the medical director of GHCF, corresponded directly to plaintiff and personally reviewed plaintiff's medical records four times within that same time period. (Compl. Ex. B, G, L, O.) Almost every contact plaintiff had with the GHCF medical staff was regarding his alleged injuries sustained from his alleged uncontrollable head banging that occurred whenever he reached for his asthma medication during an asthma attack. (Compl. § IV.)
During this same time period, plaintiff filed grievances against Dr. Bernstein and Dr. Fein, on January 10, 2011 (Compl. Ex. S) and on May 2, 2011 (Compl. at 45.), asking to be removed from double bunk status and to receive meaningful medical treatment. (Compl. § VI, ¶¶ 17, 36; Compl. Ex. F, P.) Both grievances were denied. (Compl. Ex. S; Compl. at 45.) Plaintiff alleges that these grievances satisfy the exhaustion of administrative remedies requirement of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). (Compl. § IV; Compl. § VI, ¶ 40.) He also alleges that both Dr. Bernstein and Dr. Fein retaliated against him after the filing of these grievances by keeping him in a double bunk and by giving him less medical care. (Compl. § IV, Count Three at 9; Compl. § IV, Count Six at 10.)
On October 17, 2011, plaintiff brought this action under 42 U.S.C. § 1983, alleging that his Eighth Amendment rights were violated by Dr. Bernstein and Dr. Fein's alleged deliberate indifference to plaintiff's health and safety. Plaintiff is seeking $500,000 in compensatory damages and $1,000,000 in punitive damages against each defendant for a total of $3,000,000, together with any attorney's fees and costs. Defendant Dr. Bernstein has moved to dismiss this action for failure to state a claim upon which relief may be granted. Plaintiff has submitted a response to the motion to dismiss and Dr. Bernstein has replied. LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., "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, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp v. Twombly, 550 U.S. 544, 570 (2007)). "'Labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555-56). A plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. However, "'detailed factual allegations'" are not necessary. Id. (quoting Twombly, 550 U.S. at 555-56).
In considering a Rule 12(b)(6) motion to dismiss, all non-conclusory factual allegations are accepted as true, see id. at 678-79, and all reasonable inferences are drawn in favor of the plaintiff. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (per curiam). Moreover, plaintiff's pro se pleadings are "'to be liberally construed...[and], however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Also, courts may consider documents appended to the complaint in ruling on a Rule 12(b)(6) motion. Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000).
Defendant's pre-answer motion to dismiss for failure to state a claim under Rule 12(b)(6) also seeks to raise a waivable, affirmative defense—qualified immunity. In this Circuit, a defendant may do so, but the defense is held to a higher standard than if it were asserted in a motion for summary judgment. See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (stating that, at the motion to dismiss stage, a qualified immunity defense can only be sustained if plaintiff can state no facts that would prevent the application of qualified immunity); see also Islam v. Fischer, No. 07-CV-3225, 2008 WL 110244 (S.D.N.Y. Jan. 8, 2008) (considered the qualified immunity defense raised by defendants on a pre-answer motion under Rule 12(b)(6)). DISCUSSION
Plaintiff makes two claims against Dr. Bernstein: (1) Dr. Bernstein violated plaintiff's Eighth Amendment right to be free from cruel and unusual punishment because Dr. Bernstein was deliberately indifferent to plaintiff's health and safety; and (2) Dr. Bernstein retaliated against plaintiff, after plaintiff had filed a grievance against Dr. Bernstein, by giving plaintiff less medical care and by keeping plaintiff in a double bunk situation. Defendant Bernstein raises an issue of qualified immunity in addition to his Rule 12(b)(6) motion and asks the Court not to consider plaintiff's new allegations raised in his reply memorandum. Both issues will be considered.
A. Plaintiff's New Allegations Contained in His Reply Memorandum are Considered.
Plaintiff's reply memorandum contains new allegations, not pleaded in the complaint, about his interactions with the GHCF medical staff subsequent to the filing of the Complaint. (Plaintiff's Affirmation in Opposition to Defendant's Motion to Dismiss ("Pl. Aff."), ¶ 5-19.) Although these new allegations need not be considered by the Court, see Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998), they will be considered as if included as part of his complaint.
In his affirmation, his claimed medical ailments have remained the same: "headaches, dizziness, pain and swelling [in] left hand thumb area, lower back and knee pain." (Pl. Aff., ¶ 14.) Also, plaintiff's submission asserts that he was still seeking an exemption from the double cell requirement because he expected to return to a double bunk cell upon completion of the drug program. (Plaintiff's October 24, 2011 Letter to Dr. Bernstein; Plaintiff's December 12, 2011 Letter to Dr. Fein.)
In his November 3, 2011 response to plaintiff's request for an exemption, Dr. Bernstein said "[i]f you are returned to a double cell and you believe that, your medical condition has changed and you should be in a single cell (for medical reasons), you are encouraged to discuss this with your primary care doctor." (Dr. Bernstein's November 3, 2011 Letter.) Dr. Bernstein also met with plaintiff, in person, "on or around November 8, 2011" to discuss "on going medical problems and not receiving treatment for these medical concerns." (Pl. Aff. ¶ 8.) Dr. Bernstein advised plaintiff to "take up his problems with sick call." (Id.)
Dr. Fein continued to prescribe "generic aspirins" for plaintiff's pain. (Pl. Aff. ¶ 13.) However, on April 11, 2012, Dr. Fein prescribed plaintiff "sumatriptan-imitrex," (Pl. Aff. ¶ 19), which is a drug used for treating migraines, (U.S. National Library of Medicine, "Sumatripan," available at http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601116.html).
B. Plaintiff Fails to State and Eight Amendment Claim against Defendant Bernstien
A valid Eighth Amendment claim requires the satisfaction of two elements: (1) the deprivation alleged must be, objectively, sufficiently serious; and (2) the prison official must have a sufficiently culpable state of mind, which, in this case, is one of deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). A sufficiently serious deprivation requires that the prison official's act or omission result in the denial of "the minimal civilized measure of life's necessities." Id. (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). A deliberately indifferent state of mind is more culpable than a negligent mind but less so than purposeful or knowing state of mind. Id. at 836. It requires that the prison official subjectively know of and disregard an excessive risk to inmate health or safety. Id. at 837. This test for deliberate indifference is akin to "subjective recklessness" in the criminal law. Id. at 839.
In this case, plaintiff does not plead facts sufficient to plausibly satisfy either element. Regarding the first element, plaintiff alleges that Dr. Bernstein has not given him sufficient medical attention for his pounding headaches, light-headedness, swelling and sleeping difficulties. Plaintiff's primary doctor performed x-rays, prescribed physical therapy, and gave plaintiff aspirin and sumatriptan to help with the pain. Defendant Dr. Bernstein reviewed all of plaintiff's medical records and approved of the primary care doctor's actions. Moreover, the alleged source of the plaintiff's headaches, the top bunk railing, was eliminated when plaintiff was moved to a single cell for participating in the anti-drug program.
Having performed x-rays and prescribed medicine and physical therapy, it is not clear what more Dr. Fein or Dr. Bernstein could do for the plaintiff. Moreover, courts in this district have held that terrible and extreme headaches and swelling do not satisfy the objective component of an Eighth Amendment claim. See Bradley v. Rell, 703 F. Supp. 2d 109, 122 (S.D.N.Y. 2010) (holding that "extreme headaches" do not constitute a sufficiently serious medical condition); Qader v. New York, 396 F. Supp. 2d 466, 470 (S.D.N.Y. 2005) (finding that "terrible headaches" do not satisfy the objective component); Bonner v. NYPD, No. 99-CV-3207, 2000 WL 1171150, at *4 (S.D.N.Y. Aug. 17, 2000) (holding that a swollen hand does not satisfy the objective component). Therefore, plaintiff does not plead any facts that give rise to the inference that his deprivation was sufficiently serious.
Regarding the second element, plaintiff alleges that Dr. Bernstein was "well aware of the fact that plaintiff was not a good candidate for the double bunk in the first place," and that, despite this knowledge, Dr. Berstein would "constantly" deny plaintiff's request to be excused from double bunk status. (Pl. Reply at 12.) Plaintiff specifically alleges that defendant's recommendation that plaintiff take appropriate measures to avoid banging his head on the top bunk was a "serious departure from accepted standards of professional standards of medical care." (Id. at 13). This advice, however, was not the only medical attention given to plaintiff by defendant. Plaintiff saw the medical staff 21 times in less than a year and Dr. Bernstein, the medical director, personally reviewed plaintiff's medical file and corresponded with plaintiff four times in that period. Plaintiff met in person with Dr. Bernstein to discuss his concerns. He was given x-rays, aspirin, sumatriptan and physical therapy. Dr. Bernstein also reminded plaintiff that emergency sick call was available to plaintiff in the event of a severe asthma attack. (Compl. Ex. L.) Given the efforts of Dr. Bernstein and the GHCF medical staff, the nature of plaintiff's alleged ailments and their lack of "serious[ness]," the plaintiff has not plausibly alleged that Dr. Bernstein was aware of and knowingly disregarded an excessive risk to plaintiff's health and safety.
Therefore, plaintiff does not state an Eighth Amendment claim upon which relief may be granted. Thus, this claim is dismissed.
C. Plaintiff Fails to State a Retaliation Claim against Defendant Bernstein
There are three elements to a First Amendment retaliation claim: (1) the speech must be constitutionally protected; (2) the plaintiff must have suffered from an adverse action; and (3) the speech must have been a motivating factor in the adverse action. Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002). In assessing these elements, courts are to view the prisoner's claim with "skepticism and particular care" because they are "easily fabricated" and "pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
Plaintiff's filing of a grievance petition is constitutionally protected. U.S. Const. amend. I ("Congress shall make no law . . . abridging the freedom . . . to petition the Government for a redress of grievances."). Thus, plaintiff satisfies the first element.
Regarding the second element, "only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Dawes, 239 F.3d at 493. Here, there was no "retaliatory conduct." Dr. Bernstein did not change his conduct towards the plaintiff after the filing of the grievances. He simply continued to deny plaintiff's request for a single bunk cell. Moreover, plaintiff has pleaded no facts to suggest that a person of "ordinary firmness" would have been deterred from filing more grievances by Dr. Bernstein's conduct. In fact, plaintiff's conduct suggests the contrary, as he filed multiple grievances. Thus, this element is not satisfied.
Regarding the third element plaintiff pleads no facts that give rise to the reasonable inference that Dr. Bernstein's decision was motivated by plaintiff's grievance petition. Dr. Bernstein made the same decision and gave plaintiff's medical situation the same attention twice before plaintiff filed his grievance, making it implausible that the grievance petition motivated the denial of single cell status. Moreover, Dr. Bernstein's reason for denying plaintiff's request is that, under GHCF's policy, "[h]aving asthma does not qualify [plaintiff] for a single cell." (Compl. Ex. G.)
Thus, the plaintiff cannot show that defendant retaliated against him. Therefore, this claim is dismissed.
D. Qualified Immunity Analysis is Not Necessary
The doctrine of qualified immunity protects government officials "'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court, in Saucier v. Katz, prescribed a mandatory sequential analysis of qualified immunity defenses, where a court first determines whether a constitutional right was violated and then determines whether that right was "clearly established." 533 U.S. 194 (2001). However, in Pearson v. Callahan, the Supreme Court said that "while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory." 555 U.S. at 236. Courts have discretion in deciding where to start their qualified immunity analysis. Id.
Here, the initial inquiry is whether a constitutional right was violated. This Court has already found that no constitutional right was violated and, therefore, there is no further need to analyze qualified immunity. CONCLUSION
For the foregoing reasons, Dr. Bernstein's motion to dismiss is GRANTED.
Dr. Fein has been served, is represented by the Attorney General's Office and has answered the Complaint. The action against Dr. Fein remains pending.
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
August 2, 2012