Opinion
23-CV-3397 (LAP)
08-01-2024
MALI WILKERSON, Plaintiff, v. JOHN HAMMER, et al., Defendants.
OPINION AND ORDER
LORETTA A. PRESKA, Senior United States District Judge
Before the Court is the motion to dismiss Plaintiff Mali Wilkerson's Amended Complaint, (see dkt. no. 47 [“Am. Compl.”]), filed by Defendants Lester Silver and Robert Burke (the “Defendant Providers”). (See dkt. no. 53 [the “Motion to Dismiss”] .) Plaintiff has filed a brief in opposition to the Defendant Providers' motion, (see dkt. no. 63 [“Pl. Opp.”). For the reasons set forth below, the Court denies Defendant Providers' Motion to Dismiss in its entirety.
Defendant Providers have filed a Memorandum of Law in Support of Their Rule 12(b) (6) Motion to Dismiss, (see dkt. no. 54 [“Def. Br.”]), as well as a Reply Memorandum of Law in Further Support of Their Motion to Dismiss, (see dkt. no. 67 [“Def. Reply”]).
I. Background
A. Factual Background
1. The Parties
Plaintiff Mali Wilkerson was an inmate housed in New York State's Department of Corrections and Community Supervision (“DOCCS”). (See Am. Compl. ¶ 5.) Plaintiff suffers from numerous medical conditions, including sickle cell anemia, avascular necrosis in his hips, neuropathy, and chronic pain, including in his shoulder. (See id. ¶¶ 5, 311, 318.) Plaintiff is currently bound to a wheelchair. (See id. ¶ 5.) Although the Amended Complaint is not precise about the timeline of Plaintiff's incarceration, it appears that he was first taken into DOCCS custody in February 2013 before his release in late December 2016, and then re-incarcerated in a DOCCS facility in early 2019. (See id. ¶¶ 319-29.) Plaintiff also has a documented history of substance abuse issues and convictions related to illegal substances. (See id. ¶ 315.)
Doctors Lester Silver and Robert Burke are physicians who worked at DOCCS during all times relevant to the instant motion. (See id. ¶¶ 19-20.) Only the Motion to Dismiss filed by these two Defendants-the Defendant Providers-is currently pending before the Court. However, as relevant for the review of Defendant Providers' motion, the Court also briefly notes that Dr. John Hammer is a physician and a Regional Medical Director (“RMD”) in the DOCCS system. (See id. ¶ 16.) Within DOCCS, an RMD is responsible for overseeing medical practices at a group of DOCCS facilities within a given geographic region. (See id. ¶ 30.) Plaintiff named RMD Hammer as a Defendant in his Amended Complaint. (See Am. Compl.)
Dr. Robert Bentivegna was named as a Defendant in Plaintiff's initial complaint and moved to dismiss the initial complaint alongside Dr. Silver and Dr. Burke. (See dkt. no. 41.) However, Dr. Bentivegna was terminated as a Defendant on November 6, 2023, and not named in Plaintiff's Amended Complaint. Plaintiff also named Dr. Carol Moores as a Defendant in his Amended Complaint but voluntarily dismissed her from the suit on January 16, 2024, which dismissal the Court so-ordered on January 23, 2024. (See dkt. nos. 73, 79.)
2. The MWAP Policy
On June 2, 2017, DOCCS Chief Medical Officer (“CMO”) Dr. Carl Koenigsmann promulgated the Medications With Abuse Potential (“MWAP”) Policy. (See id. ¶¶ 11, 145-46.) Pursuant to the MWAP Policy, any medical provider at a DOCCS facility-including physicians treating inmates-seeking to prescribe for an inmate any “controlled substance[]” or “medication[] that ha[s] significant abuse potential” would have to submit an MWAP Request Form (an “MWAP Request”) to the DOCCS RMD in charge of overseeing the provider's particular facility. (See id. ¶¶ 155-58.) The medical provider at the particular DOCCS facility would have to include in the MWAP Request the patient's health information, the justification for using the particular medication, a list of alternatives the provider had attempted to treat the medical issue, and any recent evidence of the patient's drug diversion or abuse. (See id. ¶¶ 159-60.) After receiving the medical provider's MWAP Request to prescribe a particular medication, the RMD in charge of the provider's facility would either approve or deny the proposed prescription. (See id. ¶ 163.) If the MWAP Request was for a prescription for a medication the patient was already taking, an RMD's denial of the request would require the patient's medical provider to discontinue the patient's prescription for the medication. (See id. ¶ 167.)
3. Plaintiff's Medical Treatment History
Plaintiff experienced several health issues-including issues related to pain-for which he received myriad treatments during his custody in DOCCS. When Plaintiff suffered from hip pain in August 2013, he saw Dr. Mitchell Rubinovich for an evaluation of the avascular necrosis in his hips. (See id. ¶ 323.) Dr. Rubinovich recommended Plaintiff consult an outside orthopedic surgeon about potentially undergoing decompression surgery. (See id.) During that time, Plaintiff was taking 15 mg of morphine, an opioid analgesic used for acute and chronic pain, to treat his pain issues. (See id. ¶¶ 86, 324.) His prescription for morphine was subsequently discontinued, reinstated, and then lowered over the next three years before he was released from DOCCS custody in December 2016. (See id. ¶¶ 325-28.)
In his Amended Complaint, Plaintiff refers to this medication interchangeably as MS Contin, the brand name, as well as “MSSR” and “Morphine.” (See, e.g., Am. Compl. ¶ 86.) Any references in this opinion to “MS Contin,” “MSSR” or “morphine” shall be understood to mean the same medication.
At the time Plaintiff returned to DOCCS custody in early 2019, he was being treated with 40 mg of morphine, as well as Flexeril, a muscle relaxer used to control muscle spasms, and Cymbalta. (See id. ¶¶ 81, 329.) On July 1, 2019, DOCCS staff caught Plaintiff “cheeking” a dose of morphine by attempting to hide the pill under his tongue. (See id. ¶¶ 330-32.) Plaintiff denied to the staff he had “cheeked” the pill. (See id. ¶ 330.)
Around that time, Plaintiff was transferred to DOCCS's Green Haven Correctional Facility (“Green Haven”). (See id. ¶ 331.) After his transfer, DOCCS medical providers allegedly discontinued Plaintiff's prescriptions for morphine and for Percocet, a combination of oxycodone and acetaminophen used to treat moderate to severe pain. (See id. ¶¶ 88, 331.)
On July 2, 2019, a physician assistant named Kathryn Infantino submitted to RMD Hammer an MWAP Request to treat Plaintiff with prescriptions for Flexeril, Percocet, and morphine. (See Id. ¶ 332.) Infantino noted in her MWAP Request that Plaintiff had been caught “cheeking” morphine the day prior. (See id.) RMD Hammer responded by recommending that Infantino discontinue Flexeril, taper Percocet due to the allegation that Plaintiff had “cheeked” morphine, taper morphine over the course of the following two months, and refer Plaintiff to a hematoligist about his pain. (See id. ¶¶ 332-34.) On July 10, 2019, Plaintiff reported that he was suffering too much pain to leave his bed. (See id. ¶ 335.)
Some time shortly after RMD Hammer denied Infantino's MWAP Request, Plaintiff consulted with Dr. Ahmed Asif, a hematologist and oncologist. (See id. ¶ 336.) To treat Plaintiff's “break through pain,” Dr. Asif recommended increasing Plaintiff's morphine dose to 30 mg per day and recommended prescribing Plaintiff 10 mg per day of oxycodone. (See id.) On August 5, 2019, Dr. Silver emailed RMD Hammer to note Dr. Asif's recommendation and asked whether it “might save time and unnecessary effort to ask [RMD Hammer] if [he] would consider approving any of” the medications Dr. Asif had recommended “before [he] invest[ed] the time in filling out 2 or 3 MWAP forms[.]” (See id. ¶ 337.) In response to Dr. Silver's email, RMD Hammer noted that Plaintiff had been caught “cheeking” morphine the month prior and stated that “[o]n th[at] basis alone,” the MWAP Policy “states that this disqualifies [Plaintiff] from further narcotics unless a justifiable basis” is given. (See id. ¶ 338.) According to Plaintiff, Dr. Silver did not prescribe the medications Dr. Asif recommended. (See id.) Later that month, Plaintiff continued to complain about pain severe enough to prevent him from sleeping or getting out of bed, and a physiatrist named Dr. Steven Weinstein determined Plaintiff had avascular necrosis of both hips. (See id. ¶¶ 339-40.)
In February 2020, Plaintiff was hospitalized and suffered a sickle cell crisis. (See id. ¶ 342.) When he was discharged from the hospital on March 9, 2020, Plaintiff was prescribed 10 mg of Percocet to treat his pain. (See id. ¶ 343.) The next month, he was treated at Montefiore Hospital for another sickle cell crisis, after which he was given a prescription to take 30 mg of morphine twice per day. (See id.) When Plaintiff returned to Green Haven, Dr. Silver chose not to continue the pain medication prescriptions the hospital had given Plaintiff. (See id. ¶ 344.)
On December 4, 2020, Plaintiff once again saw Dr. Asif, who recommended Plaintiff take 30 mg of morphine twice per day and 100 mg of Gabapentin, an anticonvulsant often prescribed to relieve nerve pain, three times per day. (See id. ¶¶ 87, 348.) In response, Dr. Silver submitted an MWAP Request only for Gabepentin, but not for morphine. (See id.) On December 10, 2020, Plaintiff told Dr. Silver he was not reacting well to the Gabapentin and, wheelchair-bound by this point, suffering pain when he wheeled himself around Green Haven. (See id. ¶ 350.) On December 28, 2020, Dr. Silver discontinued Plaintiff's Gabapentin prescription and placed him on a prescription for morphine. (See id.)
In February 2021, DOCCS rescinded the MWAP Policy. (See Id. ¶ 353.)
In the spring and summer of 2021, Plaintiff suffered further pain issues. When his shoulder pain left him unable to propel himself up from his wheelchair, an orthopedic surgeon recommended Plaintiff undergo a total right shoulder replacement. (See Id. ¶ 355.) Later than year, Plaintiff twice fell in the shower due to his pain. (See id. ¶ 356.) During this time, Plaintiff continued taking morphine. (See id.)
On May 19, 2022, DOCCS transferred Plaintiff to Marcy Correctional Facility (“Marcy”). (See id. ¶ 357.) The nurse who performed Plaintiff's intake made note of each of the medications Plaintiff was taking except the low dose opioids Plaintiff was prescribed and requested that the “provider . . . review/sign” the orders for the medications. (See id.) On May 20, 2022, Dr. Burke signed off on the forms filled out by the nurse and evaluated Plaintiff. (See id. ¶¶ 357, 360.) Dr. Burke told Plaintiff that if Plaintiff “was a patient in [Dr. Burke's] private practice,” Plaintiff “would get the pain meds because of [his] condition” “automatically” because it was “textbook stuff.” (See Id. (internal quotations omitted).) In the same visit, Dr. Burke showed Plaintiff scars on his own body from a hip surgery he had undergone and advised Plaintiff to get surgery once he was released from DOCCS custody. (See id.)
After Defendants' counsel inquired about Plaintiff's medications, Dr. Burke allegedly created a note in Plaintiff's file on May 27, 2022, that indicated he had spoken with Plaintiff about morphine and that Plaintiff had said he would be willing to try to “stay off” morphine. (See id. ¶ 363.) Plaintiff alleges that Dr. Burke then wrote a prescription, back-dated to May 23, 2022, for morphine. (See id. ¶ 364.)
B. Procedural History
The instant case is related to a class action lawsuit brought by several DOCCS inmates on behalf of a class of individuals in DOCCS custody whose medications were denied or discontinued after the institution of the MWAP Policy. (See Allen v. Koenigsmann, 19-CV-8173 [“Allen I”], dkt. no. 371 at 7.) On March 31, 2023, this Court issued an opinion granting the Allen I plaintiffs' motion to certify a class to pursue injunctive relief but denying the plaintiffs' motion to certify a class to pursue damages for liability. See Allen I, No. 19-cv-8173 (LAP), 2023 WL 2731733, at *6 (S.D.N.Y. Mar. 31, 2023). The Court held that plaintiffs in Allen I had failed to show that the proposed “liability class” had standing to sue under Article III of the United States Constitution. See id. at *2.
Following this Court's denial of certification of a “liability class,” Plaintiff filed the instant individual suit for damages on April 23, 2023. (See dkt. no. 1) Both Defendant Providers and RMD Hammer moved to dismiss Plaintiff's initial complaint before he amended it. (See dkt. nos. 33, 41.) On November 3, 2023, Plaintiff filed an Amended Complaint, (see Am. Compl.), which RMD Hammer moved to dismiss on November 15, 2023, (see dkt. no. 51), and which Defendant Providers moved to dismiss on November 17, 2023, (see dkt. no. 53.)
In his Amended Complaint, Plaintiff asserts a claim under 42 U.S.C. § 1983 for deliberate indifference to his medical needs due to DOCCS's implementation of the MWAP Policy and the discontinuation and denial of Plaintiff's medications that ensued. (See Am. Compl. ¶¶ 365-70.)
Plaintiff included in his Amended Complaint a second claim under 42 U.S.C. § 1983 against Dr. Moores for her alleged deliberate indifference to his medical needs. (See Am. Compl. ¶¶ 371-73.) However, because Plaintiff has voluntarily dismissed Dr. Moores as a Defendant in the instant action, that claim against her is dismissed as moot.
On November 16, 2023, the Court held a conference in the above-captioned case and in twenty-five other cases related to Allen I (the “Tranche I Cases”). (See dkt. nos. 50, 58-59.) At that time, there were motions to dismiss pending in sixteen of the Tranche I Cases. At the conference, the Court denied as premature the motions to dismiss filed by defendants in the Tranche I Cases that were based solely on the plaintiffs' purported failure to comply with the applicable statute of limitations, including RMD Hammer's motion to dismiss. (See dkt. no. 58 at 1-2.) The Court left pending the motions to dismiss filed in Tranche I Cases that included arguments that the plaintiffs had failed to state plausible claims for relief under 42 U.S.C. § 1983. (See id. at 2.) The instant Motion to Dismiss was one such motion. (See id.)
To avoid any confusion, the Court denied as premature at the November 16, 2023, conference any argument any Defendant makes in the instant case regarding Plaintiff's failure to comply with the statute of limitations. Accordingly, because the portion of their Motion to Dismiss about the statute of limitations has already been denied, the Court considers and adjudicates in this Opinion and Order only the arguments Defendant Providers have made pursuant to Federal Rule of Civil Procedure 12(b)(6) based on Plaintiff's purported failure to state a claim. For the same reasons, the Court has also already dismissed the motions to dismiss filed by RMD Hammer, (dkt. nos. 33, 51).
II. Legal Standard
To survive a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” In re Actos EndPayor Antitrust Litig., 848 F.3d 89, 97 (2d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) . “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. That “standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Palin v. N.Y. Times Co., 940 F.3d 804, 810 (2d Cir. 2019) (internal quotations omitted). Evaluating “whether a complaint states a plausible claim for relief” is “a context- specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court “accept[s] all factual allegations in the complaint as true, and draw[s] all reasonable inferences in the plaintiff's favor.” Palin, 940 F.3d at 809. The Court is not required, however, “to credit conclusory allegations or legal conclusions couched as factual allegations.” Dane v. United Healthcare Ins. Co., 974 F.3d 183, 188 (2d Cir. 2020) (ellipsis omitted). “Accordingly, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (cleaned up).
Although the Court must accept all factual allegations as true when determining the sufficiency of a claim under Rule 12(b)(6), it may, in addition to a plaintiff's complaint, review documents attached to the complaint or incorporated into it by reference and documents “integral” to the plaintiff's allegations, even if not explicitly incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); see also Williams v. Time Warner Inc., 440 Fed.Appx. 7, 9 (2d Cir. 2011) (summary order) (a district court may consider documents integral to the complaint or incorporated by reference into the complaint on a motion to dismiss under Rule 12(b)(6)). A complaint “‘is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.'” Chambers, 282 F.3d at 152 (quoting Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per curiam)). The Court may also consider “matters of which judicial notice may be taken under” Federal Rule of Evidence 201. Kramer v. Time Warner Inc, 937 F.2d 767, 773 (2d Cir. 1991).
However, a motion to dismiss must “be treated as one for summary judgment and disposed of as provided in [Federal Rule of Civil Procedure] 56” if the Court considers materials “outside the complaint” the parties have presented that are neither attached to the complaint, incorporated by reference, or integral to the complaint. Chambers, 282 F.3d at 152 (citing Fed.R.Civ.P. 12(b)).
III. Applicable Law
A. Eighth Amendment
The Eighth Amendment to the United States Constitution prohibits government officials from inflicting “cruel and unusual punishments” on those in their care. U.S. Const. amend. VIII. Pursuant to the right to be free from cruel and unusual punishments, the Eighth Amendment prohibits prisons officials from acting with “deliberate indifference to serious medical needs of prisoners[.]" Estelle v. Gamble, 429 U.S. 97, 104 (1976).
A prison official can be held liable for deliberate indifference in violation of the Eighth Amendment “only when two requirements are met.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (internal quotations and citations omitted), abrogated in part on other grounds by Kravitz v. Purcell, 87 F.4th 11 (2d Cir. 2023). The first requirement the plaintiff must meet “is objective: the alleged deprivation of adequate medical care must be ‘sufficiently serious.'” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). The second requirement “is subjective: the charged official must act with a sufficiently culpable state of mind.” Id. at 280. Put differently, a plaintiff “must show, for each defendant, that the defendant acted with deliberate indifference to [his] medical needs.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (citing Estelle, 429 U.S. at 104).
Satisfying the objective prong entails two inquires. First, the Court must assess “whether the prisoner was actually deprived of adequate medical care.” Salahuddin, 467 F.3d at 279. The second part of the objective inquiry asks whether the deprivation or inadequacy of the plaintiff's medical care is “sufficiently serious.” See id. at 280.
Determining if the deprivation of medical care is sufficiently serious is “necessarily contextual and fact-specific” which requires “tailor[ing] [it] to the specific circumstances of each case.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (cleaned up) (internal quotations and citations omitted). This includes examining the plaintiff's claim differently depending on whether he alleges the prison officials completely “fail[ed] to provide any treatment for [his] medical condition” or alleges only that the medical treatment he received was inadequate. See Salahuddin, 467 F.3d at 280.
If the former, the Court must “examine whether the inmate's medical condition is sufficiently serious.” Id. at 280 (emphasis added). Certain factors courts consider when evaluating the seriousness of a medical condition include whether “a reasonable doctor or patient would find [the condition] important and worthy of comment or treatment,” whether the condition “significantly affects an individual's daily activities,” or “the existence of chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotations and citations omitted). If, however, the plaintiff alleges only “inadequacy [] in the medical treatment [he was] given, the seriousness inquiry is narrower.” Salahuddin, 467 F.3d at 280. Instead of determining the seriousness of the plaintiff's underlying condition, the Court must focus its inquiry “on the challenged delay or interruption in treatment[.]” Id. (citing Smith, 316 F.3d at 185). Such inquiry requires the Court to examine “the particular risk of harm” the plaintiff faced as a result of the deprivation, “rather than the severity of the [plaintiff's] underlying medical condition[.]” Smith, 316 F.3d at 186.
To satisfy the subjective prong, i.e., to allege adequately that a prison official was deliberately indifferent to his or her medical needs, a plaintiff must “show that a particular defendant ‘knows of and disregards an excessive risk to inmate health or safety.'” Brock, 315 F.3d at 164 (quoting Farmer, 511 U.S. at 837). This standard is akin to a mental state of subjective recklessness, as used in criminal law. See Salahuddin, 467 F.3d at 280. The plaintiff may demonstrate the defendant's knowledge either by alleging the official had actual knowledge of the risks to the plaintiff's health or by proving “that the risk was obvious or otherwise must have been known to [the] defendant[.]” Brock, 315 F.3d at 164.
B. Personal Involvement
To state a claim under 42 U.S.C. § 1983, a “plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676.
With respect to his claim of deliberate indifference under the Eighth Amendment, that means that Plaintiff must plead that each Defendant Provider “violated the Eighth Amendment by [his] own conduct,” meaning he must plausibly allege that the Defendant Providers themselves “‘acted with deliberate indifference'-meaning that [they] personally knew of and disregarded an excessive risk to [Plaintiff's] health or safety.” Tangreti v. Bachmann, 983 F.3d 609, 619 (2d Cir. 2020) (quoting Vega v. Semple, 963 F.3d 259, 273 (2d Cir. 2020)).
C. Exhaustion of Administrative Remedies
Pursuant to the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e et seq., prisoners must “exhaust prison grievance procedures before filing suit” under federal law. Jones v. Bock, 549 U.S. 199, 202 (2007) (citing 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(a)). Specifically, the PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). In New York, the available grievance procedure is found in the Inmate Grievance Procedure Program, see 7 N.Y.C.R.R. § 701.1 et seq. Accordingly, exhaustion pursuant to New York's grievance procedures “is mandatory under the PLRA and . . . unexhausted claims cannot be brought in court.” Bock, 549 U.S. at 211.
However, because “failure to exhaust is an affirmative defense under the PLRA,” “inmates are not required to specially plead or demonstrate exhaustion in their complaints.” Id. at 216. Because there is no pleading requirement, “[d]ismissal under Rule 12(b)(6) for non-exhaustion is appropriate only if a plaintiff's failure to exhaust is evident on the face of the complaint.” Pratt v. City of New York, 929 F.Supp.2d 314, 318 (S.D.N.Y. 2013) (emphasis added) (citing Bock, 549 U.S. at 215) . Accordingly, “[t]he scope of proper [] grievance procedure” and “whether the plaintiff followed that procedure properly . . . should be determined on a motion for summary judgment under Rule 56, not a motion to dismiss under Rule 12(b)(6).” Id.
IV. Discussion
A. Exhaustion of Administrative Remedies
As a preliminary matter, the Court finds that dismissal based on Plaintiff's purported failure to exhaust his administrative remedies is inappropriate. Because this supposed failure to grieve his complaints within DOCCS and according to the New York Inmate Grievance Procedure Program before filing suit is not apparent on the face of Plaintiff's Amended Complaint, there is no basis to dismiss under Rule 12(b)(6) for such failure. See Pratt, 929 F.Supp.2d at 318.
That Plaintiff includes in his Amended Complaint allegations displaying his “familiarity with the grievance procedures in New York” or his knowledge that “several of his peers . . . filed grievances through the formal procedure,” (see Def. Br. at 15), does not make it “evident on the face of the complaint” that Plaintiff failed to exhaust his remedies available to him through the formal procedure provided him under New York state law. Pratt, 929 F.Supp.2d at 318. What grievance procedures other inmates may have followed or what general knowledge Plaintiff had about the grievance process is not the question before the Court on Defendant Providers' motion. What is relevant is “whether [] [P]laintiff followed that procedure,” which he is not even required to demonstrate in his Amended Complaint. See id. It may well be that Plaintiff did not perform the steps necessary under New York's grievance process to exhaust his administrative remedies as required under the PLRA. However, because at this stage he is not required to plead such compliance, which is question of fact properly “determined on a motion for summary judgment under Rule 56, not a motion to dismiss under Rule 12(b)(6)[,]” the Court cannot dismiss Plaintiff's Amended Complaint for its lack of sufficient allegations showing Plaintiff exhausted his administrative remedies. See id.
B. Deliberate Indifference to Serious Medical Needs
The Court finds that Plaintiff has alleged both a sufficiently serious deprivation of medical care that exposed him to a risk of harm and that each of the Defendant Providers knew of and disregarded that risk. Accordingly, he has plausibly pleaded a claim for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. See Tangreti, 983 F.3d at 619; Salahuddin, 467 F.3d at 279-80.
1. Objective Prong
Plaintiff has adequately alleged that the denial and discontinuation of effective pain medications under the MWAP Policy subjected him to a particular risk of harm to satisfy the objective prong of the deliberate indifference inquiry.
There is no doubt that Plaintiff has alleged that he has suffered from serious medical conditions, including sickle cell anemia, vascular necrosis in his hips, persistent shoulder pain, and neuropathy. (See Am. Compl. ¶¶ 311, 318.) Plaintiff's conditions have manifested themselves through frequent occurrences of acute, chronic pain. (See id. ¶¶ 320, 335-36, 339-41.) Plaintiff has also been hospitalized multiple times for his pain, including in February 2020 when he suffered a sickle cell “crisis.” (See id. ¶¶ 330, 342.) In addition to his hospitalizations, medical providers-including those within DOCCS-have treated Plaintiff's chronic pain with Oxycontin, morphine, Flexeril, Cymbalta, and Percocet. (See id. ¶¶ 318, 323-24. 328-30.)
Plaintiff also alleges that, several times during his custody in DOCCS, Defendant Providers and others discontinued and denied several of the medications that had treated his chronic pain issues. For instance, in response to an MWAP Request submitted by a physician assistant at Green Haven, RMD Hammer ordered the tapering and ultimate discontinuation of Percocet and MS Contin. (See id. ¶¶ 333-34.) Plaintiff alleges that, in August 2019, when Dr. Silver first began treating him, Dr. Silver requested approval from RMD Hammer for a 10 mg prescription of oxycodone and a 30 mg prescription of morphine, each of which Dr. Asif, the specialist, had recommended in the month prior. (See id. ¶¶ 336-37.) After RMD Hammer replied that the MWAP Policy stated that the allegation of Plaintiff's “cheeking” of a medication a month before completely disqualified Plaintiff from receiving the prescription, Dr. Silver declined to write a prescription for either medication. (See Id. ¶ 338.) Dr. Silver then also discontinued the Percocet prescription Plaintiff had been given when he was released from the hospital in or around March 2020 and, in December 2020, declined to submit an MWAP Request for morphine, even though Dr. Asif had again made a recent recommendation for such a prescription. (See id. ¶¶ 342-44, 348.) Of course, Dr. Silver did ultimately submit a prescription for morphine less than four weeks later. (See id. ¶ 350.) With respect to Dr. Burke, Plaintiff alleges that, after DOCCS transferred him to Marcy, Dr. Burke told Plaintiff that he “would not receive pain management” at the facility because that is ”how DOCCS does things,” even though, Dr. Burke said, he would prescribe Plaintiff the necessary pain medications if Plaintiff was a patient of his in private practice because doing so for someone in Plaintiff's condition was “textbook stuff.” (See id. ¶ 360.)
Plaintiff alleges that he suffered an exacerbation of his pain nearly each time a doctor discontinued or denied one of his pain medications. For instance, Plaintiff alleges that he felt so much pain after RMD Hammer ordered a physician assistant to discontinue MS Contin and Percocet that he could not leave his bed and struggled to walk correctly. (See id. ¶ 335.) Plaintiff similarly felt his pain left him unable to sleep well or rise from bed after Dr. Silver declined to prescribe MS Contin or oxycodone in August 2019. (See id. ¶¶ 337-40.) And, in December 2020 and January 2021, Plaintiff suffered additional pain-to the point of being physically unable to get in and out of a shower-shortly after Dr. Silver first declined to prescribe MS Contin and then discontinued Gabapentin. (See id. ¶¶ 348-51.)
The above allegations suffice to satisfy the pleading standard for the objective prong. At several different points between 2019 and 2021, doctors discontinued prescriptions for medications that treated Plaintiff's pain. That supports a claim that Plaintiff was actually deprived of adequate medical care. See Salahuddin, 467 F.3d at 279-80. And, in totality, Plaintiff's allegations support a plausible inference that discontinuing the pain medications Plaintiff had been taking to treat his various chronic pain conditions placed Plaintiff at a “particular risk of harm” that his conditions would deteriorate. Smith, 316 F.3d at 186. According to the Amended Complaint, this particular risk Plaintiff faced from this deprivation of care materialized later when he experienced exacerbations of his pain, to the point that he struggled to sleep, walk, and shower. Therefore, because Plaintiff alleges that Defendant Providers and others discontinued pain medications, thereby exposing him to a particular risk that his chronic pain would worsen, he has plausibly pleaded that he suffered a deprivation of care that was sufficiently serious. See id.; see also Salahuddin, 467 F.3d at 279-80.
That Plaintiff alleges he “has been denied . . . pain medication to treat symptoms, not [his] underlying condition” of sickle cell anemia is irrelevant, despite Defendant Providers' argument to the contrary. (See Def. Reply at 5 (emphasis in original).) The analysis the Court must apply when a plaintiff alleges an Eighth Amendment violation based on a delay or interruption in treatment does not require the Court to examine if the alleged deprivation was of care intended to address the plaintiff's underlying diagnosis or of care intended to address his or her symptoms. See Smith, 316 F.3d at 186; Salahuddin, 467 F.3d at 280. Instead, the Court must assess whether the plaintiff has alleged that the deprivation put him or her at a “particular risk of harm.” Smith, 316 F.3d at 186. As described in detail above, Plaintiff had sufficiently done so in his Amended Complaint because he has described suffering frequent episodes of chronic pain during his DOCCS custody, receiving prescriptions for pain medications that treated his pain, and having such effective pain medications discontinued or denied at various points, leading to further episodes of pain.
Defendant Providers separately note that the eight-day delay in receiving a prescription Plaintiff alleges he endured upon his arrival at Marcy in May 2022 often would not constitute an objectively serious deprivation of medical care. (See Def. Reply at 5-6.) To an extent, Defendant Providers are correct. “[A] delay in providing necessary medical care” usually constitutes a serious deprivation only “when officials deliberately delayed care as a form of punishment; ignored a life-threatening and fastdegenerating condition . . . or delayed major surgery for” a significant period of time. Sims v. City of New York, 788 Fed.Appx. 62, 64 (2d Cir. 2019) (internal quotations omitted). Indeed, in Bell v. Jendell, the court noted that deliberate indifference claims based on alleged delays in treatment usually require allegations of a “needlessly prolonged period of delay, or a delay which caused extreme pain or exacerbated a serious illness.” 980 F.Supp.2d 555, 560 (S.D.N.Y. 2013) (internal quotations and citations omitted). However, “defendants [who] failed to recommend or carry out a course of treatment that was plainly required” for the plaintiff have been found to have exhibited deliberate indifference to serious medical needs. Abney v. McGinnis, 2007 WL 844675, at *3 (S.D.N.Y. Mar. 16, 2007) (emphasis added) (collecting cases where delays constituted denial of plainly required medical care). Here, although Plaintiff fails to allege specifically what pain he suffered, if any, as a result of Dr. Burke's decision not to prescribe pain medication, he alleges that Dr. Burke said Plaintiff clearly would have received such prescriptions if he was not in DOCCS custody and was instead seeking treatment from a doctor in private practice because receiving such prescriptions was “textbook stuff.” (See Am. Compl. ¶ 360.) Dr. Burke's alleged admission that prescribing the pain medication Plaintiff had sought was “textbook stuff” indicates that he thought it plain that Plaintiff's pain should be addressed with such treatment. In other words, the Court can reasonably infer that Dr. Burke himself thought Plaintiff's condition was, objectively, sufficiently serious enough that he should receive the medications and surgery. Accordingly, although the interruption of his pain treatment at Marcy was fairly brief, Plaintiff has plausibly alleged that he suffered an objectively serious deprivation of medical care when he was denied a prescription for an effective pain medication for eight days. See Salahuddin, 467 F.3d at 279-80.
2. Subjective Prong
a. Dr. Silver
Plaintiff has satisfied the subjective prong with respect to Dr. Silver by pleading plausibly that the latter consciously disregarded the risks to Plaintiff's health that would materialize if Plaintiff was not treated with effective pain medication.
Plaintiff has alleged several instances during his custody at Green Haven in which Dr. Silver received information that prescribing Plaintiff a particular pain medication could alleviate Plaintiff's pain but either rejected such advice or chose an alternative course of treatment without explanation. These allegations are sufficient to create the plausible inference that Dr. Silver knew of the severity of Plaintiff's pain and of appropriate medical treatment but opted not to prescribe such treatment-including out of deference to the MWAP Policy.
In perhaps the most serious instance, Dr. Silver allegedly emailed RMD Hammer on August 5, 2019, to tell him that Dr. Asif had recommended prescribing Plaintiff 30 mg of morphine and 10 mg of oxycodone for his “breakthrough pain,” and separately told RMD Hammer that he did not want to “invest the time in filling out 2 or 3 MWAP forms” if RMD Hammer was unlikely to approve the recommended prescriptions. (See Am. Compl. ¶ 337.) After RMD Hammer responded that Plaintiff's prior infraction for “cheeking” morphine created a sole justification under the MWAP Policy to reject Dr. Asif's recommendation, Plaintiff alleges that Dr. Silver declined to follow Dr. Asif's recommendation and chose not to prescribe morphine or oxycodone for Plaintiff's pain. (See id. ¶ 338.) Thus, according to the Amended Complaint, Dr. Silver not only avoided performing what he perceived was a waste of his time in filling out MWAP Requests for the medications recommended by Dr. Asif, but chose not to prescribe medications based on RMD Hammer's view that the MWAP Policy prohibited such prescriptions based solely upon Plaintiff's “cheeking” of a medication. The Court can reasonably conclude from these allegations that Dr. Silver's decision not to pursue the recommended prescriptions was based on the MWAP Policy alone, which would suffice to state a claim that Dr. Silver consciously disregarded the risk that Plaintiff would suffer exacerbated harm without the recommended medications. See Allen v. Koenigsmann, 2022 WL 1597424, at 5-7 (S.D.N.Y. May 19, 2022) (subjective prong satisfied where plaintiffs alleged that doctors had dismissed “specialty doctors' recommendations . . . without explanation,” which “diverged from reasonable medical practices”). That Dr. Asif had noted the recommended medications were intended to treat Plaintiff's “break through pain” underscores the conclusion that Dr. Silver understood the risk that such pain might worsen if it went untreated. (See Am. Compl. ¶¶ 336-37.)
The Court can draw a similar conclusion based on Dr. Silver's alleged inaction in or around March 2020, when he discontinued the 10 mg of Percocet and 30 mg of morphine that Plaintiff had previously been given to treat his pain following his hospitalization a month earlier. (See id. ¶¶ 342-44.) Plaintiff has thus alleged that, despite a hospital's express recommendation that Plaintiff take specific medications to address pain that he suffered during and as a result of an episode that had recently required hospitalization, Dr. Silver chose to stop prescribing Plaintiff those medications. Dr. Silver's alleged decision to discontinue these prescriptions after outside doctors had recommended such treatment indicates that he again consciously chose not to pursue effective treatment for Plaintiff even though he knew that failing to do so might subject Plaintiff to further and unnecessary harm-namely, the pain Plaintiff suffered during his hospitalization. See Allen, 2022 WL 1597424, at 5-7; see also Johnson v. Wright, 412 F.3d 398, 404-05 (2d Cir. 2005) (reversing summary judgment for prison officials where a jury could have concluded the officials' decision not to prescribe a medication displayed deliberate indifference, based on multiple treating physicians' recommendations to prescribe the medication).
In sum, Plaintiff's allegations suffice to allege plausibly that on several occasions while Plaintiff was at Green Haven, Dr. Silver “kn[ew] of and disregard[ed] an excessive risk” that Plaintiff would suffer exacerbated and unnecessary pain without effective medications. Brock, 315 F.3d at 164 (internal quotations and citations omitted). Plaintiff's Amended Complaint thus satisfies the subjective prong of the deliberate indifference inquiry. See id.
Defendant Providers argue both that Dr. Silver's divergence from the recommendations of Dr. Asif and others cannot support a deliberate indifference claim because those specialists did not unanimously recommend a single course of treatment to address Plaintiff's pain and that Dr. Silver's mere disagreement with the medical recommendations of other doctors cannot support a claim that he was deliberately indifferent to Plaintiff's medical needs. (See Def. Reply at 6-7; Def. Br. at 19-20.) The Court rejects both arguments.
That outside doctors lacked unanimity in their recommendations for how to treat Plaintiff's pain does not preclude a plausible inference than Dr. Silver consciously disregarded the risks to Plaintiff's health when he opted not to follow several of those recommendations. Although, as Defendant Providers note, the Court of Appeals held in Johnson v. Wright that defendants had ignored “all of plaintiff's treating physicians[']” “express[] recommend[ation]” that the plaintiff be prescribed one particular medication, see Johnson, 412 F.3d at 405, Plaintiff nonetheless plausibly alleges deliberate indifference because he indicates that in multiple instances Dr. Silver prescribed no medication whatsoever to address Plaintiff's pain even after an outside doctor had expressly recommended or prescribed one or more specific medications. (See Am. Compl. ¶¶ 336-37, 342-44.) This allegation of complete inaction-not pursuing any of the various treatment recommendations-is sufficient to state a plausible claim that Dr. Silver consciously disregarded a risk that Plaintiff would suffer continued pain without adequate pain medication.
Plaintiff's allegation that Dr. Silver finally discontinued Plaintiff's Gabapentin prescription and requested a prescription for morphine three weeks after Dr. Asif had recommended the drug does not rescue Defendant Providers' argument. (See id. ¶¶ 34850.) Dr. Silver's ultimate decision to prescribe morphine cannot overcome Plaintiff's allegations that, for over a year following Plaintiff's arrival at Green Haven, Dr. Silver “knew the extent of [Plaintiff's] pain, knew that the course of treatment was largely ineffective, and declined to do anything more to attempt to improve [Plaintiff's] situation.” Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994) (affirming denial of directed verdict for defendant prison doctor where evidence indicated the doctor treated the plaintiff but knew his course of treatment “clearly did not alleviate [the plaintiff's] suffering”).
And, particularly with respect to the alleged incident in August 2019, the Amended Complaint indicates that Dr. Silver diverged from the recommendation of Dr. Asif not simply because of difference of medical opinion, but because RMD Hammer had stated that the MWAP Policy prohibited him from prescribing the recommended medication regardless of its medical efficacy. (See id. ¶¶ 337-38.) Thus, because Plaintiff has adequately alleged Dr. Silver consciously pursued “easier and less efficacious treatment[s]” for Plaintiff out of adherence to the dictates of the MWAP Policy rather than out of disagreement with outside specialists about the efficacy of the recommended medications, he has plausibly pleaded Dr. Silver was deliberately indifferent to his medical needs. See Brock, 315 F.3d at 167 (“[A] jury could well conclude that steroid injections were not given, not because of a medical judgment-at most negligent-that such prevention was not worthwhile, but because the DOCS policy . . . forbade preventive measures in cases such as Brock's.”)
The same allegations that support Plaintiff's deliberate indifference claim are also enough to allege that Dr. Silver was sufficiently personally involved in the deprivation of Plaintiff's medical care to incur liability under § 1983. Dr. Silver's alleged decisions to discontinue or not to prescribe morphine, Percocet, and oxycodone constitute the type of personal disregard for a known risk of harm to Plaintiff's health sufficient to state a claim under § 1983. See Tangreti, 983 F.3d at 619. Plaintiff's allegations about Dr. Silver's submission of MWAP Requests and personal knowledge of specialists' various recommendations are adequate to plead plausibly that Dr. Silver personally knew of the dire state of Plaintiff's condition but repeatedly declined to prescribe effective medication. Accordingly, Plaintiff has sufficiently alleged Dr. Silver was personally deliberately indifferent to Plaintiff's serious medical needs. See id.
Defendant Providers appear to argue that Dr. Silver was not personally involved in providing Plaintiff medical care because the expert report of Adam J. Carinci filed in Allen I (the “Carinci Report”) indicates that a different doctor was responsible for Plaintiff's care during the relevant period. (See Def. Reply at 34.) The Court rejects this argument.
Although the Court may take judicial notice of documents filed in another case on a Rule 12(b)(6) motion, it may only consider “what statements the documents contained” and may not rely on the documents to “establish the truth of the matters asserted therein.” Reif v. Art Inst. Of Chicago, 2023 WL 8167182, at *3 (S.D.N.Y. Nov. 24, 2023) (citing Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)). In other words, the Court may take judicial notice of Carinci Report only “to establish the fact of such litigation and related filings.” Kramer, 937 F.3d at 774 (emphasis added). Therefore, even if the Carinci Report contained information that contradicts Plaintiff's allegations, the Court could not consider such information for the truth asserted therein. It may only note the existence of such documentation. See Reif, 2023 WL 8167182, at *3.
In addition, even if Plaintiff incorporates at least a portion of the Carinci Report by reference into his Amended Complaint, thereby permitting the Court to consider it on a Rule 12(b)(6) motion, see Chambers, 282 F.3d at 152-53, the Court finds that the Carinci Report does not contradict Plaintiff's allegations that support his claim against Dr. Silver. Defendant Providers argue the Carinci Report undercuts such allegations because it contains notes directed to a different doctor that recommend a Percocet prescription for Plaintiff. (See Def. Reply at 3-4.) Even assuming, arguendo, that those notes were addressed to a different provider, they do not contradict-and Defendant Providers do not dispute-Plaintiff's allegations that Dr. Silver submitted multiple prescriptions for Plaintiff during this time and specifically contacted RMD Hammer about Dr. Asif's medical recommendations as well. (See Am. Compl. ¶¶ 336-38, 348-50.) Accordingly, because the Amended Complaint contains sufficient allegations- uncontradicted by the Carinci Report-that Dr. Silver personally took these specific actions that indicate a conscious disregard for the risks to Plaintiff's medical care, it states a plausible claim under § 1983. See Tangreti, 983 F.3d at 619.
b. Dr. Burke
Although the Amended Complaint contains few mentions of Plaintiff's interactions with Dr. Burke, those mentions suffice to create a plausible inference that Dr. Burke knew of the risks inherent in denying Plaintiff effective pain medications but disregarded them when he declined to prescribe such medications. Plaintiff has thereby adequately alleged that Dr. Burke was deliberately indifferent to his chronic pain. See Brock, 315 F.3d at 164.
According to the Amended Complaint, Dr. Burke first treated Plaintiff on May 20, 2022, Plaintiff's first full day at Marcy. (See id. ¶ 360.) Plaintiff's allegations that Dr. Burke (1) said that Plaintiff “would get [] pain meds because of [his] condition” if he was Dr. Burke's patient in private practice, (2) told Plaintiff that he should get surgery for his medical issues “as soon as he was released” from DOCCS custody, and (3) even showed Plaintiff his own scars from a hip surgery performed on him lead to no plausible conclusion other than that Dr. Burke was acutely aware that Plaintiff had severe pain issues that required extensive medical attention. (See id.) Plaintiff's allegation that Dr. Burke told him in the very same session that his “hands were tied” because of how DOCCS handled pain medications and that Plaintiff would not receive pain management at Marcy plausibly indicates that, despite his knowledge of the extent of Plaintiff's condition, Dr. Burke openly opted not to do anything to address it. (See id.) Of course, Plaintiff alleges that his pain did, in fact, go untreated by Dr. Burke and the staff at Marcy until later that week when counsel intervened to get Plaintiff a prescription for morphine. (See id. ¶¶ 362-64.) Accordingly, Plaintiff has adequately alleged that Dr. Burke consciously disregarded the excessive risk that Plaintiff would endure unnecessary and severe pain if he was not properly treated with effective pain medication. See Brock, 315 F.3d at 164.
Plaintiff's allegations regarding his interaction with Dr. Burke upon his arrival at Marcy in May 2022 and Dr. Burke's delay in prescribing Plaintiff effective pain medication also suffice to plead plausibly that Dr. Burke was personally deliberately indifferent to the deprivation of Plaintiff's medical care. The allegation that Dr. Burke acknowledged the extent of Plaintiff's pain but told him he could not give him effective pain medication reveals that Dr. Burke “personally knew of and disregarded [the] excessive risk” that could be imposed on Plaintiff if he did not receive medications to address his pain adequately. Tangreti, 983 F.3d at 619 (emphasis added) . His verbal acknowledgement that Plaintiff's pain would normally be treated with such pain medications and his suggestion that Plaintiff receive surgery after his incarceration indicate that he personally knew the extent and severity of Plaintiff's pain before declining to do anything about it until counsel intervened. Plaintiff's allegation that, following such intervention, Dr. Burke then post-dated a prescription for morphine leads further to the plausible inference that Dr. Burke had the personal capacity to provide pain medication to Plaintiff when he first met him on May 20, 2022, but declined to do so. (See Am. Compl. ¶¶ 362-64.) This allegation bolsters Plaintiff's claim that Dr. Burke was personally indifferent to Plaintiff's medical needs, as is required to state a claim pursuant to 42 U.S.C. § 1983. See Iqbal, 556 U.S. at 676.
V. Conclusion
For the reasons set forth above, the Court DENIES Defendant Providers' Motion to Dismiss. The Clerk of the Court shall close docket entry numbers 33, 51, and 53.
SO ORDERED.