Summary
holding that an "alleged deprivation of care caus[ing] a localized infection that lasted for three days is not a condition approaching urgency, degeneration or great pain," and in any event, such allegations state, "at most, a claim for one instance of medical malpractice"
Summary of this case from Waller v. DuboisOpinion
01 Civ. 3255 (SAS).
April 23, 2002
Charles Woods ft 82-A-5434, Unit for the Physically Disabled Green Haven Correctional Facility, Stormville, NY., Plaintiff (Pro Se).
Melinda Chester-Spitzer, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, NY., For Defendants Goord, Wright, Greiner, Seiwin, Koenigsmann, Zwillinger, Bendheim, Silver and Whitney.
Tracy M. Larocque, Esq., Pennock Breedlove LLP, Clifton Park, NY., For Defendants Weinstein, Galeno and CPS.
OPINION AND ORDER
Charles Woods, proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 against the New York Department of Corrections ("DOCS") and its officials, and various supervisors, health care providers and employees of Green Haven Correctional Facility ("Green Haven"), for failing to provide him with medical care in violation of the Eighth Amendment. Woods also brings claims under Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132, and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, for discrimination on the basis of disability. He seeks monetary damages and injunctive relief.
Defendants Glenn Goord, Lester Wright, Charles Greiner, Norman Selwin, Carl Koenigsmann, Lawrence Zwillinger, Charles John Bendheim, Lester Silver, and Barbara Whitney (collectively, the "Goord defendants") now move to dismiss the Complaint and Amended Complaint pursuant to Rule 12(b)(6). Defendants Steven Weinstein, John Galeno and Correction Physician Services ("CPS") (the "Galeno defendants") move to dismiss all claims pursuant to Rule 12(c). For the reasons below, the motions are granted in part and denied in part. The claims against the remaining defendants are dismissed.
There are five additional defendants. "M. Jones" is named in the caption of the Amended Complaint, but apparently has not been served. Additional defendants are mentioned in the body of the Amended Complaint: "Selim Ace," "Mary Kate Moddox Williams," "Randy Duprey," and DOCS. See 6/18/01 Amended Complaint ("Am. Compl.") ¶¶ (F); (O)-(P); (T). Although these individuals and this entity are not listed in the caption, I will treat them as if they were named defendants. In addition, I will construe the plaintiff's opposition papers to contain factual allegations to the extent that they are consistent with the allegations in the Amended Complaint. See Burgess v. Goord, No. 98 Civ. 2077, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999) ("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 makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum.") (citing cases); see also Gregory v. Daly, 243 P.3d 687, 691 (2d Cir. 2001) (stating that courts should include in their analysis of motions to dismiss "not only the assertions made within the four corners of the Complaint itself, but also those contained in the documents attached to the pleadings or in documents incorporated by reference.")
I. BACKGROUND
The following allegations are drawn from the Amended Complaint and Woods's opposition papers.
A. The Parties
Charles Woods is a 63-year-old prisoner currently incarcerated at Green Haven Correctional Facility ("Green Haven") in Stormville, New York. See Am. Compl. ¶ (D) at 2; 1/11/02 Plaintiff's Opposition to Defendants' Motion ("Pl. Opp.2d") at 10. Defendant Glenn Goord is the Commissioner of DOCS. See Am. Compl. ¶ (G) at 2. Defendants Lester Wright, M.D., and Lawrence Zwillinger, are DOCS's Chief Medical Officer and Regional Health Administrator, respectively. See id. ¶¶ (I), (L) at 3. Defendant Charles Greiner is the Superintendent of Green Haven.See id. ¶ (H) at 2. Defendants Norman Selwin and Carl J. Koenigsmann are Green Haven's Medical Director and Health Services Director, respectively. See id. ¶¶ (J), (K) at 3. Dr. Lester S. Silver is the Medical Director for Green Haven's Unit for the Physically Disabled ("UPD"), where plaintiff resides. See id. ¶ (N) at 3.
Plaintiff submitted a first opposition brief on December 6, 2001.See 12/6/01 Objection to Motion and Conference Hearing.
Plaintiff has also sued the following health care professionals. Doctors Charles J. Bendheim, Steven Weinstein and John Galeno each treated plaintiff directly. Dr. Bendheim was the primary care physician for plaintiff and other physically disabled inmates at the time of most of the alleged events. See id. ¶ (M) at 3. Defendant Selim Ace is a physical therapist employed by DOCS, and defendant Mary Kate Moddox Williams is his assistant. See id. ¶¶ (O)-(P) at 4.
B. Summary of Woods's Medical History at Green Haven
Woods was first incarcerated at Green Haven in December 1995. See id. ¶ 1. In early 1996, Woods asked to see a doctor after he began experiencing pain in his hands, knees, elbows, hips and back. See id. ¶ 3. He was seen by Dr. Bendheim, who referred him to Dr. Helen Feng, a rheumatologist at Albany Medical Center ("AMC"). See id. Dr. Feng examined Woods on May 31, 1996, the first of many such visits. See id. Feng and other specialists have since determined that Woods suffers from Rheumatoid Arthritis, Degenerative Joint Disease and leukemia. See id. ¶¶ 2, 20. From 1996 to the present, plaintiff has thus required extensive care, including chemotherapy.
Woods alleges that from 1996 to 1999, Dr. Bendheim delayed or did not schedule many specialist-ordered appointments. He alleges that, following surgery on Woods's elbow in 1999, Dr. Weinstein denied him physical therapy in 2000 and 2001. Plaintiff also alleges that from 1996 to the present he has requested, but has been denied, surgery to replace his knees, hips, and elbows with prostheses. In addition, since 1996, Woods has consistently requested a lightweight wheelchair due to the extreme pain he experiences in trying to operate his current, heavy wheelchair. These allegations are fully discussed in Part IV, infra.
On April 19, 2001, after years spent exhausting prison grievance procedures, see infra note 16, plaintiff filed his original Complaint.See 4/19/01 Complaint ("Compl."). On June 21, 2001, plaintiff filed an Amended Complaint. Plaintiff seeks $250,000 in compensatory damages from each defendant for a total of $5,000,000. See Id. ¶¶ 34, (A)-(C).
Plaintiff does not address the fact that $250,000 multiplied by the number of defendants (17) does not equal $5,000,000.
II. LEGAL STANDARD
A motion to dismiss should be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000) (quotation marks and citation omitted). "At the Rule 12(b)(6) stage, [t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test."Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (citation, quotation omitted), The task of the court in ruling on a Rule 12(b)(6) motion is ""merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Id. (quoting Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)). When deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "take as true all of the allegations contained in plaintiff's complaint and draw all inferences in favor of plaintiff." Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001).
Plaintiff opposes summary judgment in his 40-page brief, to which nearly one hundred pages of exhibits are attached. See Pl. Opp.2d. But because defendants moved to dismiss for failure to state a claim, they need not comply with Local Rules 3(g) or 56.1, or any other rule pertaining to summary judgment, as plaintiff argues.
The same standard applies to Rule 12(c) motions to dismiss. Fed.R.Civ.P. 12(c); see Simpri v. New York City Agency for Children's Servs., No. 99 Civ. 6712, 2001 WL 1661910, at *2 (S.D.N.Y. Dec. 28, 2001) (citing Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998)).
Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980), and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Courts must remain particularly "mindful of the care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations."Gregory, 243 F.3d at 691. "Complaints based on civil rights statutes must include specific allegations of facts showing a violation of rights instead of a litany of general conclusions that shock but have no meaning." Burgess, 1999 WL 33458, at *2 (citing, inter alia, Barr v. Adams, 810 F.2d 358, 363 (2d Cir. 1987)). "However, assertions must truly be bare for dismissal to be appropriate." Id. (citing Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 672 (2d Cir. 1995)).
III. ELEVENTH AMENDMENT IMMUNITY
Plaintiff brings both federal and state claims against all defendants, including state agencies DOCS and CPS, in their official as well as individual capacities. See Am. Compl. ¶¶ (D)-(V) ("The Parties"), 32-33.
A. Federal Claims
The Eleventh Amendment bars suit in federal court by a citizen of a state against a state or its agencies, unless the state has waived immunity to suit, see Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100-01 (1984), or Congress has abrogated the state's immunity, see Quern v. Jordan, 440 U.S. 332, 343-44 (1979). See also Farricelli v. Holbrook, 215 F.3d 241, 244-45 (2d Cir. 2000); Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993). Because New York has not waived its immunity, see Oyague v. State, No. 98 Civ. 6721, 2000 WL 1231406, at *5 (S.D.N.Y. Aug. 31, 2000), and 42 U.S.C. § 1983 was not intended to abrogate states' immunity, see Quern, 440 U.S. at 343-44, the Eleventh Amendment bars plaintiff's claims against both DOCS and CPS because they are state agencies.
Woods's claims against DOCS and CE'S in their individual capacities are dismissed for failure to state a claim.
A state official is also entitled to invoke Eleventh Amendment immunity to the extent that she is sued in her official capacity, because such suit is deemed to be one against the state itself. See Kentucky v. Graham, 473 U.S. 159, 169 (1985); Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998). In addition, suits for monetary damages from the state treasury are barred. See Edelman v. Jordan, 415 U.S. 651, 677 (1974). Thus, plaintiff's claims for money damages against the defendants in their official capacities are dismissed for failure to state a claim on which relief may be granted. See Spencer, 139 F.3d at 111; Severino v. Negron, 996 F.2d 1439, 1441 (2d Cir. 1993)
B. State Law Claims
Plaintiff alleges negligence and violations of New York State Corrections Law against all defendants. See Am. Compl. ¶¶ 32-33. Absent a waiver by the state, however, the Eleventh Amendment also bars state law claims against state officials in their official capacity. See Pennhurst, 465 U.S. at 99-101. New York has made no such waiver. To the contrary, New York explicitly bars state law claims brought by state prisoners against state law correction personnel in federal court, see N.Y. Corr. Law § 24, and the federal courts are bound by this provision,see Terardi v. Sisco, 119 F.3d 183, 186 (2d Cir. 1997). Plaintiff's state claims are dismissed in their entirety.
IV. EIGHTH AMENDMENT CLAIMS (PURSUANT TO 42 U.S.C. § 1983)
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that defendants, while acting under color of state law, denied plaintiff a constitutional or federal statutory right. See West v. Atkins, 487 U.S. 42, 48 (1988); Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir. 1991). The Eighth Amendment's prohibition against cruel and unusual punishment of prison inmates has been construed to include the denial of adequate medical care. See Farmer v. Brennan, 511 U.S. 825, 832 (1994);Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that such behavior amounts to an "unnecessary and wanton infliction of pain" proscribed by the Eighth Amendment); Edmonds v. Greiner, No. 99 Civ. 1681, 2002 WL 368446, at *7 (S.D.N.Y. Mar. 7, 2002) ("A person who is incarcerated is entitled to receive adequate medical care."). Prison officials violate this right when they are deliberately indifferent to an inmate's serious medical needs. See Estelle, 429 U.S. at 104; Word v. Croce, 169 F. Supp.2d 219, 226 (S.D.N.Y. 2001)
The Second Circuit has interpreted Estelle to consist of objective and subjective elements: First, a court must determine whether, objectively speaking, plaintiff's condition is such that the alleged deprivation of medical assistance is "'sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66-67 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). This "standard contemplates a 'condition of urgency, one that may produce death, degeneration, or extreme pain.'" Id. (quotingNance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)). A serious medical need arises where "'the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). See, e.g., Rivera v. Goord, 119 F. Supp.2d 327, 332, 337 (S.D.N.Y. 2000) (pain and facial swelling, migraines and burning in eyes gave rise to serious medical need); Arce v. Banks, 913 F. Supp. 307, 309 (S.D.N.Y. 1996) (failure to treat small cyst on forehead not sufficiently serious).
Second, a court must consider whether the official "'kn[ew] that an inmate face[d] a substantial risk of serious harm, and disregarded that risk by failing to take proper measures to abate it.'" Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000) (quoting Farmer, 511 U.S. at 837). The failure to render proper care must result from a "sufficiently culpable state of mind." Hathaway, 37 F.3d at 66 (citing Wilson v. Seiter, 501 U.S. at 298). "[T]he subjective element of deliberate indifference entails something more than mere negligence but something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result." Hathaway v. Coughlin II, 99 F.3d 550, 553 (2d Cir. 1996) (citing Farmer, 511 U.S. at 835). While mere medical malpractice is not tantamount to deliberate indifference, certain instances of medical malpractice may rise to that level. See id. (citingFarmer, 511 U.S. at 847).
Here, it is largely undisputed that plaintiff's medical needs were serious. See Galeno Def. Mem. at 5. The key questions in this case turn on whether plaintiff has pleaded facts which show that each defendant was deliberately indifferent to those needs. As stated earlier, Woods's allegations must be assumed true for purposes of this discussion.
A. Dr. Bendheim
Beginning in early 1996, Dr. Bendheim established a pattern of sending plaintiff to specialists, and then ignoring their orders for monthly follow-up visits and blood work. Courts have held that a prison official's delay in scheduling appointments and failure to follow orders of a doctor constitutes denial of adequate medical care. See, e.g., Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) ("Prison officials are more than merely negligent if they deliberately defy the express instructions of a prisoner's doctors."); Brown v. Coughlin, 758 F. Supp. 876, 882-83 (S.D.N.Y. 1991). Moreover, a pattern "might be taken to show that the described incidents were not accidents, inadvertent failures, or random occurrences of medical malpractice." Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 182 (N.D.N.Y. 1996) (quotation omitted).
At plaintiff's first appointment with Dr. Feng at AMC on May 31, 1996, he was ordered to return one month later. Yet Dr. Bendheim waited until January 31, 1997, seven months later, to send plaintiff for a follow-up visit. See Am. Compl. ¶¶ 3-4. He then failed to have plaintiff's blood work done in advance of the visit, as ordered. See id. ¶¶ 4. Subsequently, rather than schedule plaintiff for an appointment one month from January 31, Dr. Bendheim did not do so until June 10, 1997, six months later. See id. ¶ 6. Again, Bendheim failed to take the necessary steps to have plaintiff's blood work done. See id.
This claim is not time-barred because the last such act occurred less than three years before plaintiff filed his Complaint. "When a plaintiff challenges a policy that gives rise over time to a series of allegedly unlawful acts, it will often be the case that plaintiff might bring his claim after the first such act, and yet the law may render timely a claim brought prior to the expiration of the statute of limitations on the last such act." Connolly v. McCall, 254 F.3d 36, 40 (2d Cir. 2001). See also id. (New York statute of limitations of three years for personal injury actions applies to Eighth Amendment claims brought pursuant to section 1983 in New York).
After this appointment, plaintiff saw Dr. Feng in July 1997 and September 1997. See id. Yet the pattern of delayed visits continued. In January of 1998, Bendheim failed to schedule a follow-up visit with a hematologist as ordered by a "Dr. Scroggion" in late 1997. Id. ¶ 17. In August 1999, Dr. Bendheim ignored orders issued by St. Agnes Hospital — where plaintiff had undergone elbow surgery in the Fall of 1999 — to schedule appointments with a hematologist and a rheumatologist. See Pl. Opp.2d at 39. As a result of Dr. Bendheim's actions, plaintiff's weight dropped dramatically and his white blood cell count became unstable. See Am. Compl. ¶ 4.
Plaintiff does not mention any defendant in connection with this last omission, but liberally construing his pleadings which elsewhere tie Bendheim to a failure to schedule such appointments, I conclude that plaintiff intended to name Bendheim here.
Bendheim thus repeatedly flouted the orders of trained specialists over several years. Further, he never rescheduled plaintiff's knee surgery that was put off in June 1996 due to a shortage of beds. See id. ¶ 17. Although the proof may show otherwise, these allegations state a claim of deliberate indifference to plaintiff's serious medical needs. Defendants' motion is denied with respect to plaintiff's Eighth Amendment claims against Dr. Bendheim.
Bendheim does not contend that his opinion differed from that of Dr. Feng or any other specialist with respect to plaintiff's allegations regarding the need for follow up visits. See Amaker v. Goord, No. 98 Civ. 3634, 2002 WL 523371, at *6 (S.D.N.Y. Mar. 29, 2002) (citing Troy v. Kuhlmann, No. 96 Civ. 7190, 1999 WL 825622 (S.D.N.Y. Oct. 15, 1999) ("[A] prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim."), and Muhammad v. Francis, No. 94 Civ. 2244, 1996 WL 657922, at *6 (S.D.N.Y. Nov. 13, 1996) ("It is well established that mere differences in opinion regarding medical treatment do not give rise to an Eighth Amendment violation.")).
Bendheim's argument, that plaintiff does not state a claim because he received plenty of care, is unavailing. See Hathaway, 37 F.3d at 68 (defendant doctor's frequent examinations of plaintiff did not preclude finding of deliberate indifference because "course of treatment was largely ineffective, and [he] declined to do anything more to improve [plaintiff's] situation."); Ruffin v. Deperio, 97 F. Supp.2d 346, 353 (W.D.N.Y. 2000) (stating that deliberate indifference could be pleaded despite frequent treatment by prisoner's doctors where treatment was "cursory" or evidenced "apathy").
B. Dr. Weinstein
Following plaintiff's elbow surgery in Fall 1999, Dr. Weinstein refused to carry out plaintiff's surgeon's orders — on seven different occasions in late 2000 and early 2001 — by denying plaintiff's requests for physical therapy. See Pl. Opp.2d at 38. Instead, Dr. Weinstein prescribed "home treatment" or "self-exercise," despite the fact that plaintiff could not use his arms to do anything including such basic functions as washing or dressing himself. Pl. Opp.2d at 38. I must draw the reasonable inference that, at times, no one was available to assist plaintiff in doing those things.
While plaintiff may not be able to prove his case against Dr. Weinstein, that is not the test here. By alleging that Dr. Weinstein intentionally refused to provide the treatment ordered by a specialist, such that plaintiff was virtually incapacitated, plaintiff has successfully pleaded that Dr. Weinstein was deliberately indifferent to his serious medical needs.
C. Dr. Silver
On September 16, 2000, Dr. Silver examined plaintiff's elbow, which was dripping fluid and causing him "excruciating pain." Pl. Opp.2d at 22-3. Plaintiff requested surgery and a bone scan; Silver's response was "soap it." Id. at 22. While a medical doctor's determination is presumed correct, in certain instances a physician may be deliberately indifferent if he consciously chooses "an easier and less efficacious" treatment plan. Chance, 143 F.3d at 703. See also Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974); Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989). Because plaintiff may be able to prove that such was the case here, this claim cannot be dismissed against Dr. Silver. In addition, on February 8, 2001, plaintiff was taken to St. Agnes Hospital for surgery on his elbow, but was turned away because "the facility failed to properly arrange this trip." Pl. Opp.2d at 23. When he arrived back at Green Haven, he asked Dr. Silver to reschedule the surgery but Dr. Silver refused. See id. Once again, allegations that a prison doctor failed to follow the orders of specialists or schedule surgery where the plaintiff's condition is admittedly grave, states a claim of deliberate indifference. Defendants' motion with respect to Dr. Silver is denied.
D. Dr. Galeno
On August 17, 1999, Dr. Galeno performed surgery on plaintiff's elbow, then "failed to order antibiotics" despite "s[eeing] plaintiff's . . . infection." Am. Compl. ¶ 12. Instead, Dr. Galeno prescribed "Noprxen" for plaintiff's pain. Pl. Opp.2d at 39. As a result, plaintiff's elbow was infected for three days. See Am. Compl. ¶ 12.
While plaintiff alleges that Galeno was aware of some risk to plaintiff, his case against Galeno fails on both prongs. First, the alleged deprivation of care caused a localized infection that lasted for three days, which is not a condition approaching urgency, degeneration or great pain. See Hathaway, 37 F.3d at 66. Second, there was "no delay" in prescribing some treatment, and "the fact that plaintiff felt something more should have been done . . . [is] not a sufficient basis for a deliberate indifference claim." Brown v. McElroy, 160 F. Supp.2d 699, 704 (S.D.N.Y. 2001). The allegations against Dr. Galeno state, at most, a claim for one instance of medical malpractice, and therefore must be dismissed. See Estelle, 439 U.S. at 104; Pritchett v. Artuz, No. 99 Civ. 3957, 2000 WL 4157, at *3 (S.D.N.Y. Jan. 3, 2000).
E. Supervisory Defendants: Goord, Greiner, Wright, Selwin, Koenigsmann, and Zwillinger
Plaintiff claims that Goord, Greiner and Wright "failed to remedy a constitutional deprivation and are personally involved." Pl. Opp.2d at 12. He asserts that all of the supervisors named in this lawsuit, Goord, Greiner, Wright, Selwin, Koenigsmann and Zwillinger, had "authority and ability" to address his problems but did not. Id. at 34.
It is well established that personal liability cannot be imposed on a state official under a theory of respondeat superior. See Black v. Coughlin II, 76 F.3d 72, 74 (2d Cir. 1996); Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). "The plaintiff must plead . . . that the defendant had some direct [or personal] involvement in or responsibility for the misconduct." Thompson v. State of New York, No. 99 Civ. 9875, 2001 WL 636432, at *6 (S.D.N.Y. Mar. 15, 2001) (citing Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997)). A supervisory official may be personally involved in a section 1983 violation where the official: (1) directly participated in the infraction or ordered that the action be taken; (2) failed to remedy a wrong after learning of the violation; (3) created or allowed the policy or custom under which the incident occurred; (4) was grossly negligent in managing subordinates who caused the incident; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. See Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). To succeed on a claim under section 1983 a plaintiff must allege personal involvement by each defendant in the alleged constitutional deprivation. See Keyes v. Strack, No. 95 Civ. 2367, 1997 WL 187368, at *3 (S.D.N.Y. Apr. 16, 1997)
The alleged constitutional deprivations, upon which supervisory liability may be predicated, are: (1) Bendheim's pattern, from 1996 to 1999, of delaying the scheduling of appointments with specialists and not carrying out their orders. and his failure to reschedule knee surgery; (2) Weinstein's failure to follow a specialist's orders regarding physical therapy; and (3) Silver's opting for the easiest course of treatment for plaintiff's elbow, and failure to reschedule elbow surgery in February 2001. Plaintiff argues that the grievances he filed and the letters he wrote to these supervisors, see Am. Compl. ¶¶ 4, 5, 8, 13, establish their personal involvement in these alleged constitutional deprivations, see Pl. Opp.2d at 12-15, 19-22.
See Poe v. Leonard, 282 F.3d 123, 126 (2d Cir. 2002) (holding that in order for a supervisor to be held liable under section 1983, a subordinate must have violated the law). Plaintiff argues that the supervisory defendants were personally involved in two additional claims. First, plaintiff argues that he was unconstitutionally denied a lightweight wheelchair. See Pl. Opp.2d at 18-19, 25, 32-33. Plaintiff does not allege, however, that any individual defendant or defendants are responsible for this deprivation. Therefore, this claim must be dismissed. In July 1999, plaintiff's elbow required immediate attention, but surgery was delayed for three months. See Am. Compl. ¶ 21. Here, too, plaintiff fails to implicate any defendant and thus the claim must be dismissed.
The test for personal involvement of supervisdry officials implies some alleged violation of a federal right. See Poe, 282 F.3d at 126. Where, as here, plaintiff does not successfully allege any violation, supervisory liability is not adequately pleaded, either. Personal involvement in an alleged violation cannot exist where there is no alleged violation.
1. Commissioner Goord and Superintendent Greiner
Plaintiff alleges that Goord and Greiner "ignored all [of his] grievances and appeals, [and] also failed toact on direct information indicating that [the Milburn decree is not being enforced]." Pl. Opp.2d at 13 (emphasis added). Even construed liberally, however, "direct information" does not refer to anything other than the letters plaintiff wrote to Goord and Greiner, because no other specific facts are alleged with respect to these defendants. See id. at 13-14, 19-20, 22. Receipt of letters or grievances, however, is insufficient to impute personal involvement. See Thompson, 2001 WL 636432, at *7; Rivera, 119 F. Supp.2d at 344; Pritchett, 2000 WL 4157, at *6; Thomas v. Coombe, No. 95 Civ. 10342, 1998 WL 391143, at *6 (S.D.N.Y. July 13, 1998). "Were it otherwise, virtually every prison inmate who sues for constitutional torts by [prison officials] could name the [supervisor] as a defendant since the plaintiff must pursue his prison remedies, and invariably the plaintiff's grievance will have been passed upon by the [supervisor]."Thompson, 2001 WL 636432, at *7 Greiner "passed upon" several of plaintiff's letters by referring them to Lester Wright. See, e.g., 12/10/99 Letter from Wright to Goord, Ex. 6 to Am. Compl. (stating that Commissioner Goord had forwarded plaintiff's September 13, 1999 letter to him). Referring medical complaint letters to lower-ranked prison supervisors, however, does not constitute personal involvement. See Ramos v. Artuz, No. 00 Civ. 149, 2001 WL 840131, at *8 (S.D.N.Y. July 25, 2001) Because there are no further allegations regarding Goord or Greiner, plaintiff's case is dismissed as against them.
In 1980, Judge Robert Ward of this Court certified a class of present and future Green Haven inmates challenging the constitutionality of Green Haven's provision of health care services. See Shariff v. Artuz, No. 99 Civ. 321, 2000 WL 1219381, at *4 n. 5 (S.D.N.Y. Aug. 28, 2000) (referring to "Milburn v. Coughlin, No. 79 Civ. 5077 (S.D.N.Y.)"). The parties entered into a series of agreements culminating in the 1991 modified consent decree, requiring Green Haven to create and maintain an ADA and Rehabilitation Act-compliant unit for the physically disabled — the UPD — and establishing certain guidelines for adequate medical care. See id.; see also McKenna v. Wright, No. 01 Civ. 6571, 2002 WL 338375, at *7 n. 9 (S.D.N Y Mar. 4, 2002) (recognizing Milburn consent decree); Green v. Bauvi, 792 F. Supp. 928, 936 n. 12 (S.D.N.Y. 1992) (same). To the extent that plaintiff is alleging a violation of the Milburn decree, his action is not properly before this Court and thus cannot be considered. See McKenna, 2002 WL 338375, at *7 n. 9 (holding that plaintiff must ref ile with Judge Ward who retains supervision over enforcement of the Milburn decree); Kaminsky v. Rosenblum, 737 F. Supp. 1309, 1317 n. 6 (S.D.N.Y. 1990) ("[Issue of whether Milburn decree was violated] is not, and cannot be, before this Court. Violations of the Milburn decree can be remedied only by bringing the alleged violations to the attention of the able District Judge [Ward] who retains supervision over that decree."). Thus, plaintiff's claims to enforce the Milburn decree are denied.
In Burgess, I stated that "courts have found personal involvement of a supervisory official where a plaintiff has sent letters or orally informed the official of an ongoing constitutional violation." 1999 WL 33458, at *5 (quoting Heron v. Dalsheim, No. 95 Civ. 2625, 1999 WL 2871, at *5 (S.D.N.Y. Jan. 4, 1999)). I note, however, that this statement of law is now against the weight of authority. In any event, plaintiff in Burgess alleged that a supervisor said to him "something to the effect that he saw no reason why plaintiff could not take the stairs one day out of the week." Id. at *1, *5. This allegation evinced a level of personal involvement outside of the official's receipt of plaintiff's complaints.See id. at *5.
2. Associate Commissioner Wright and Health Services Director Koenigsmann
Wright and Koenigsmann, on the other hand, did not merely receive plaintiff's letters, but also responded to them. See Pl. Opp.2d at 22. On December 10, 1999, Wright wrote to plaintiff, explaining that plaintiff's letter to Goord had been forwarded to him. See 12/10/99 Letter from Wright to Woods ("12/10/99 Wright Ltr."), Ex. 6 to Am. Compl. Wright allegedly gave the following explanation in response to plaintiff's complaint that he was not seeing the rheumatologist often enough:
You have been examined by a rheumatologist on May 6 and July 22 of this year; received a prosthetic elbow brace on July 28, 1999, been evaluated by the orthopedic surgeon on August 18, September 10, September 27 and November 8 of this year, and had surgery on your right elbow on November 12, 1999. On August 24, 1999 your white blood cell count was 116, 000 and this test was repeated at St. Agnes Hospital the same day with a result of 95.5. On September 3 it was 80.8; on September 24 it was 76.4 and on November 4, is was 74.7. You were scheduled to see the hematologist in follow-up at Westchester Medical Center on October 4, but you refused. You had a decompressive laminectomy of your neck on April 27[,] 1999. Your left shoulder triplearthrodesis was postponed to accommodate your neck surgery; as have your bunion surgery and left foot triplearthrodes is . . .
12/10/99 Wright Ltr. Plaintiff alleges that Wright responded on two other occasions with similarly informative, thorough letters. See 10/18/00 Letter from Wright to Goord, Ex. 22 to Am. Compl.; 1/24/01 Letter from Wright to Goord, Ex. 6 to Am. Compl. In response to his complaint regarding the alleged denial of physical therapy, plaintiff alleges that Koenigsmann wrote on May 4, 2000:
I have investigated the allegations made in your letter and discussed your case at length with the Physical Therapy department as well as reviewed the documentation involved in the event. On 5/1/00 you began therapy for your right elbow. The recommendation for Physical Therapy was made both by Physiatry and the Orthopedic Surgeon as well as the types of therapy I.e. [sic] active range of motion and strengthening exercises. When you arrived in Physical Therapy you were instructed to begin active range of motion exercises, you declined to participate in this program and insisted on Passive range of motion. This was not indicated or recommended for your treatment. With that you stated that you would do that in your cell on your own and refused therapy. To be clear, the Physical Therapy personnel were fully prepared to have you participate in the program but the type of therapy must be per the recommendations of the Physicians and Physical Therapists. To refuse care because they will not comply with the program that you want but do not need is potentially hindering maximum recovery from the surgery. I urge you to agree to return to Physical Therapy and follow the program that was arranged for you.
5/4/00 Letter from Koenigsmann to Woods, Ex. 20 to Am. Compl. Plaintiff argues that Wright and Koenigsmann thus had actual knowledge of these wrongs committed by their subordinates but did not attempt to remedy them except to respond to his complaints.
One court has held that where a supervisor's "involvement went beyond merely the receipt of complaint letters," to "responding, explaining the treatment and defending the institution," personal involvement was established. Ramos, 2001 WL 840131, at *8 (Pitman, J.). See also Rashid v. Hussain, No. 95 Civ. 676, 1997 WL 642549, at *2.*3 (N.D.N.Y. Oct. 15, 1997) (Pooler, J.) (detailed responses to prisoner's letter establish personal involvement). This is by no means the majority rule, however.See, e.g., Joyner v. Greiner, No. 01 Civ. 7399, 2002 WL 550092, at *5 (S.D.N.Y. Mar. 28, 2002) (McMahon, J.) (holding that prison doctor's response to plaintiff's letter did not plead personal involvement);Ramsey v. Coughlin, 1 F. Supp.2d 198, 204 (W.D.N.Y. 1998) (holding that plaintiff's claim that supervisor responded to his letters is not sufficient to establish personal involvement).
Wright and Koenigsmann's provision of information and advice based on diagnoses from their staff does not appear to constitute "fail[ure] to remedy a wrong." Colon, 58 F.3d at 873. Supervisors are entitled to rely on and adopt the recommendations of prison doctors without incurring a charge of personal involvement. See Thompson, 2001 WL 636432, at *7;Keyes, 1997 WL 187368, at *3 Moreover, it may be said here: "Far from establishing deliberate indifference, [the medical supervisor's] response demonstrates appropriate attention to plaintiff's circumstances."Joyner, 2002 WL 550092, at *5 On the other hand, plaintiff alleges that Wright and Koenigsmann responded to his complaints in a detailed, specific manner, a factor not present in Joyner. See also Rashid, 1997 WL 642549, at *3 (stating that where defendant merely responded to plaintiff's letter, no personal involvement would be established, but opposite is true where defendant responded in such a way as to suggest notice of the "duration and extent of [plaintiff]'s condition"). Because the depth of their responses indicates full awareness of plaintiff's situation, Wright and Koenigsmann may actually have failed to remedy a wrong by, for instance, not intervening to schedule a rheumatology appointment or ensuring that physical therapy treatment was provided. The motions to dismiss are denied with respect to Wright and Koenigsmann.
3. Acting Health Service Director Selwin
Woods alleges that Norman Selwin "constantly. denied [plaintiff] medical treatment for his neck, shoulder, wrist, elbows, knees, rheumatoid arthritis monthly appointments, MRI and x-ray consults." Pl. Opp.2d at 20. Beyond this conclusory allegation which provides no dates or time frame, there is no other allegation of Selwin's personal involvement, as defined in Colon v. Coughlin, with respect to any of the established allegations of deprivation. The Complaint and Amended Complaint are thus dismissed with respect to Selwin for failure to state a claim.
4. Regional Health Administrator Zwillinger
Plaintiff does allege sufficient facts to state a claim against Zwillinger. In 1998, Zwillinger was "constantly contacted by Dr. Robert Cohen M.D. (Medical Auditor assigned by Judge Ward U.S.D.J.) and Margaret K. Loftus from Prisoner's Rights Project regarding plaintiff's constitutional deprivation of adequate medical care and the violation of the burn v. Coughlin stipulation." Pl. Opp.2d at 15. Both Cohen and Loftus specifically requested that Zwillinger remedy the lack of regularly scheduled rheumatology appointments. See 9/25/98 Letter from Loftus to Zwillinger, Ex. 11 to Am. Compl. ("Mr. Woods . . . has not been to see his Rheumatoid Arthritis specialist in over four months."); 8/21/98 Letter from Cohen to Zwillinger, Ex. 10 to Am. Compl. ("Could you please review the care of Mr. Woods with [respect to] . .: 1. Lack of access to specialty care, specifically rheumatology consultation. Mr. Woods needs to be seen regularly by a rheumatologist and is being denied access to necessary consultation.").
Several allegations against Zwillinger are dismissed for failure to state a claim. Plaintiff alleges that in January 1996 and as late as March 19, 1996, Zwillinger, Koenigsmann, and Selwin "[led] [the medical team] to believe plaintiff had a reconstruct[ive] should[er] operation at St. Agnes, wher.e in fact plaintiff never had reconstructive surgery, plaintiff had arthroscopic surgery." Am. Compl. ¶ 16. Plaintiff claims that the effort to mislead the medical team as to the type of surgery he had in 1996 at St. Agnes continues to this day, as does his suffering because of it. See id. These allegations are wholly inexplicable and as such, fail to state a claim for which relief can be granted.
Thus, Zwillinger had knowledge, beyond receipt of letters or grievances from plaintiff, of an alleged unconstitutional deprivation. See Poe v. Pearl, No. 94 Civ. 2058, 1997 WL 76576, at *6 (D. Conn. Jan. 29, 1997) ("A supervisor acts with deliberate indifference if he has actual or constructive knowledge of unconstitutional practices and fails to act on the basis of information available to him."). Outside health and legal professionals appealed directly to Zwillinger on behalf of Woods, and he did nothing. See Ramos, 2001 WL 840131, at *9-*10 (holding that prison official's receipt of direct and detailed pleas from the Legal Aid Society regarding plaintiff's deprivation of treatment, and failure to respond appropriately, constituted deliberate indifference). Zwillinger thus exhibited deliberate indifference to Woods's serious medical needs by failing to act on Cohen's or Loftus's pleas. See Colon, 58 F.3d at 873. Defendants' motion is denied as to Zwillinger.
F. Defendants Ace, Williams and Duprey
Plaintiff does not allege any facts, in either complaint or in his opposition papers, with respect to Selim Ace, Mary Kate Moddox Williams or Randy Duprey. "The courts have consistently held that, where the complaint names a defendant in the caption but no allegations indicating exactly how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to th[ose] defendant[s] should be granted." Marable v. Kurtz, No. 99 Civ. 1387, 2000 WL 1279763, at *4 (S.D.N.Y. Sept. 11, 2000) (citation omitted). The Complaint and Amended Complaint are dismissed as to Ace, Williams and Duprey.
V. QUALIFIED IMMUNITY
Defendants argue that, in the event that the Court rules that plaintiff has stated a claim against any defendant, such defendant's actions were objectively reasonable and therefore entitled to qualified immunity.
The defense of qualified immunity "shields public officials from liability for their discretionary acts that do 'not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Hathaway, 37 F.3d at 67 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The court in Hathaway, referring to the unconstitutional deprivation of a prisoner's right under the Eighth Amendment to adequate medical care, stated that "[e]ven where, as here, a plaintiff's federal rights are well-established, qualified immunity is still available to an official if it was 'objectively reasonable for the public official to believe that his acts did not violate those rights.'" Id. (quoting Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991))
"Although qualified immunity is typically addressed at the summary judgment stage of the case, the defense may be raised and considered on a motion to dismiss. The motion will be granted if the complaint fails to allege the violation of a clearly established constitutional right."Hardy v. Jefferson Community Coll., 260 F.3d 671, 677 (6th Cir. 2001) (citation omitted). An immunity defense usually depends on the facts of the case, however, making dismissal at the pleading stage inappropriate.See Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001); King v. Simpson, 189 F.3d 284, 289 (2d Cir. 1999) (reversing district court's dismissal on ground of absolute immunity because factual showing was necessary where plaintiff alleged constitutional violation). Thus, a complaint is generally not dismissed under Rule 12(b)(6) on qualified immunity grounds. See Alvarado, 267 F.3d at 651 (citing Jacobs v. City of Chicago, 215 F.3d 758, 765 n. 3 (7th Cir. 2000)). Here, plaintiff has successfully alleged a constitutional violation against Bendheim, Weinstein, and Silver, and personal involvement in at least one of those violations by Zwillinger. A determination as to whether these defendants' actions were "objectively reasonable" is necessarily fact-based. Thus, defendants' qualified immunity defense must be rejected at this stage.
VI. CLAIM AGAINST BARBARA WHITNEY
Woods claims that defendant Barbara Whitney copied plaintiff's medical records and released them to the Attorney General's office "without getting an Authorized medical release form, which is a violation of . . . plaintiff's confidentiality." Pl. Opp.2d at 27-28. Woods does not specify when this was done.
It is settled law that release of an inmate's medical records in defense of litigation does not violate any right of the inmate when he has filed suit against prison officials. See e.g., Gill v. Gilder, No. 95 Civ. 7933, 1997 WL 419983, at *2 (S.D.N.Y. July 28, 1997) (citingCrawford v. Manion, No. 96 Civ. 1236, 1997 WL 148066, at *1 (S.D.N.Y. Mar. 31, 1997) (Mukasey, J.)). Plaintiff thus waived all rights to privacy in his medical records when he put his medical condition in issue in a lawsuit. In the absence of any allegation that Barbara Whitney's action occurred before suit was instituted or was for some purpose other than the defense of litigation, this claim is dismissed.
VII. DISCRIMINATION CLAIMS AND ADMINISTRATIVE EXHAUSTION
Plaintiff also claims that defendants have violated his rights under Title II of the ADA and section 504 of the Rehabilitation Act (I) by denying him a lightweight wheelchair; and (2) because in 1998, defendant Jones, a corrections officer, forced plaintiff to stand up so that he could be frisked, causing him to fall. See Pl. Opp.2d at 18-19, 25, 32-33; Am. Compl. ¶ 18. To state a claim under Title II of the ADA, a prisoner must show "(1) he or she is a "qualified individual with a disability'; (2) he or she is being excluded from participation in, or being denied the benefits of some service, program, or activity by reason of his or her disability; and (3) the entity that provides the service, program or activity is a public entity." Shariff, 2000 WL 1219381, at *4 (quoting Clarkson v. Coughlin, 898 F. Supp. 1019, 1037 (S.D.N.Y. 1995)).See also 42 U.S.C. § 12132. To state a claim under section 504 of the Rehabilitation Act, a prisoner must allege facts showing that "(1) he is a "qualified individual with a disability'; (2) he is "otherwise qualified' to participate in the offered activity or program or to enjoy the services or benefits being offered; (3) he is being excluded from participation or enjoyment solely by reason of his disability; and (4) the entity denying the inmate participation or enjoyment receives federal financial assistance." Shariff, 2000 WL 1219381, at *4 (quotingClarkson, 898 F. Supp. at 1036). See also 29 U.S.C. § 794(a).
Before reaching the merits of these claims, it is necessary to examine whether plaintiff has exhausted prison remedies for these complaints. The Prison Litigation Reform Act of 1980 requires that prisoners pursue available administrative remedies before bringing any federal claim in federal court. See 42 U.S.C. § 1997e. Recently, the Supreme Court clarified the parameters of this requirement. See Porter v. Nussle, ___ U.S. ___, 122 S.Ct. 983, 988 (2002). "All available remedies must now be exhausted; those remedies need not meet federal standards, nor must they be plain, speedy [or] effective." Id. Dismissal on the basis of failure to exhaust is now mandatory, whereas it was once within the discretion of the district court. See id. (citing Booth v. Churner, 532 U.S. 731, 739 (2001)).
Woods has exhausted administrative remedies for his Eighth Amendment claims. See Am. Compl. ¶ 13. Woods's voluminous attachment to his opposition papers shows, inter alia, that he has filed grievances regarding (1) Dr. Bendheim's delay in scheduling follow-up visits with Dr. Feng; (2) denial of physical therapy; and (3) lack of treatment of elbow and denial of knee surgery. Further, defendants do not argue that Woods has failed to exhaust available remedies for these claims.
Woods does not allege nor offer any evidence that he followed prison grievance procedures for his disability discrimination claims. Thus, they must be dismissed without prejudice.
VIII. INJUNCTIVE RELIEF
The Eleventh Amendment is not a bar to suits in equity against state officials. See Keyes, 1997 WL 187368, at *4 (citing Dube v. State Univ. of New York, 900 F.2d 587, 595 (2d Cir. 1990)). "A state official acting in his official capacity may be sued in a federal forum to enjoin conduct that violates the federal Constitution, notwithstanding the Eleventh Amendment bar." Dube, 900 F.2d at 595. Plaintiff seeks an order from the Court requiring "the defendants [to] provide for the plaintiff appropriate medical treatment in the future." Am. Compl. ¶ (D). Plaintiff does not further specify the nature of the injunctive relief he requests.
The Milburn decree "governs the provision of health care services at Green Haven." McKenna, 2002 WL 338375, at *7 n. 9. See also supra note 13. In light of Judge Ward's exclusive supervision of the Milburn decree, see Kaminsky, 737 F. Supp. at 1317 n. 6, it is not within this Court's jurisdiction to order the broad injunctive relief that Woods requests. Woods's request that appropriate medical care be provided to him in the future is tantamount to a suit to enforce the Milburn decree and, as such, must be refiled with Judge Ward. See McKenna, 2002 WL 338375, at *7 n. 9; Kaminsky, 737 F. Supp. at 1317 n. 6; supra note 13. This portion of the Complaint and Amended Complaint is dismissed.
IX. CONCLUSION
For the foregoing reasons, the Complaint and Amended Complaint are dismissed to the extent that they assert (1) monetary claims against defendants in their official capacities; and (2) state law claims against defendants in any capacity. Plaintiff's claims brought under the ADA and Rehabilitation Act are dismissed for failure to exhaust administrative remedies. Plaintiff's claim for injunctive relief is denied.
Defendants' motions to dismiss are granted with respect to defendants DOCS, CPS, Goord, Greiner, Selwin, Duprey, Jones, and Whitney, and additional defendants Ace, Moddox Williams and Duprey. The motions are denied in part, and granted in part, as to defendants Wright, Koenigsmann, Zwillinger, Bendheim, Weinstein, and Silver. The claims that have been dismissed against these individuals are listed at notes 12 and 15, supra. A conference is scheduled for May 10, 2002 at 4:30 p.m.