if that official directly participated in the infraction; if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong; or if he or she created a policy or custom under which the unconstitutional practices occurred or allowed such a policy or custom to continue. Id. Finally, a supervisory official may be personally involved if he or she was grossly negligent in managing the subordinates who caused the unlawful condition or event. Id.
Plaintiffs' allegations of personal involvement of Coughlin, derive from Williams, purporting liability where a supervisory official, after learning of a violation through a report or appeal, failed to remedy the wrong. The correspondence by plaintiff, offered as proof of this personal involvement, includes written complaints to Coughlin. These letters allege denial of needed medical treatment.
Coughlin acted upon the complaint received by forwarding the letter to the Office of Health Services for action to be taken. There is no gross negligence involved, no policy created that fostered a violation of plaintiff's rights, and no circumvention of action. Therefore the claims against Coughlin shall be dismissed.
Eighth Amendment Claim
Plaintiff alleges that he was denied medical treatment in violation of the Eighth Amendment. In order to withstand summary judgment on his Eighth Amendment claim, plaintiff must "allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). It is only that conduct which is incompatible with "the evolving standards of decency that mark the progress of a maturing society," Id., at 102, or constitute the "unnecessary and wanton infliction of pain," Id., at 104, that rises to the level of deliberate indifference toward an inmate's serious medical needs. There is, then, a two component test that the plaintiff must satisfy in order to state a cognizable claim under the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 999, 117 L. Ed. 2d 156 (1992); see Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). The first component is subjective and the second component is objective. The court must first consider whether the defendants acted "with a sufficiently culpable state of mind," and then whether the alleged injury was "objectively harmful enough to establish a constitutional violation." Hudson, 112 S. Ct. at 999.
In Liscio v. Warren, 901 F.2d 274, 276-277 (2d Cir. 1990), the Second Circuit found that since plaintiff's condition was both life threatening and fast degenerating, the defendant doctor's "failure to examine plaintiff over a three day period could be found to violate" the Eighth Amendment. Thus, the Court considered both the seriousness of plaintiff's medical needs and the length of time such needs were ignored. Likewise, the refusal to schedule corrective surgery over a two year period, which left plaintiff in daily pain, but which condition was neither life threatening nor fast degenerating, was sufficient to survive a motion to dismiss. Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988); see also Archer v. Dutcher, 733 F.2d 14, 16-17 (2d Cir. 1984) (A prisoner must allege that she was intentionally denied needed medical care over a period of time by prison officials, while she was in extreme pain, or that medical care was completely withheld.) Additionally, deliberate defiance of express medical instructions may constitute more than mere negligence. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (citing Martinez v. Mancusi, 443 F.2d 921, 924 (2d Cir. 1970)). Furthermore, deliberate interference with medically prescribed treatment solely for the purpose of causing unnecessary pain, may be a basis for a constitutional claim under the Eight Amendment. Gill, 824 F.2d at 196 (citing Robison v. Via, 821 F.2d 913, 924 (2d Cir. 1987) (lack of permanent or severe injury does not justify the granting of summary judgment on the issue of excessive force)).
Here, plaintiff alleges that defendants from Mid-State and Collins interfered with his prescribed physical therapy treatments and electrostimulation with a TENS unit. Plaintiff's claims charge more than mere medical malpractice or differences in medical opinions. He has alleged a wanton disregard for his medical needs. In support of his allegations, plaintiff repeatedly makes reference to the letter of Dr. McGowan dated September 14, 1990, which recommended continuation of TENS unit electrostimulation and physical therapy, as evidence of his medical needs. Additionally, plaintiff notes the recommendations of Dr. Hwong
and the specialist
consulted by Dr. Kurtz, concerning the necessity and benefits of continued physical therapy and electrostimulation with a TENS unit, as evidence of his medical needs. He contends that defendants were aware, or should have been aware, of his predicament from his Department of Corrections ("DOC") medical file and the physical examinations conducted by DOC personnel, as well as letters, complaints, and grievances which he forwarded. Instead of providing necessary treatment at the appropriate time, plaintiff maintains that defendants either delayed, or failed to attain, his access and its availability.
Defendants allege, however, that plaintiff's medical conditions were routinely examined and evaluated. (Def.'s Mem. Supp. Mot. Summ. J. at 9.) According to defendants, "plaintiff received considerable medical attention at all of the State prisons. . . . His medical needs were addressed." (Id.) Defendants further state that plaintiff has not been continuously supplied with all of the requested medical treatment because it was either unavailable at a particular facility or because medical decisions were rendered which opined that the requested treatment "would not be beneficial." (Id. at 9-14.) In support of their position, defendants assert that plaintiff has not, and cannot, produce any evidence which "shows any objective or subjective deliberate indifference on the part of Supt. Costello, Dr, Dadow, Dr. Hwong, and Supt. Herbert. (Id. at 9.) As for Dr. Kurtz, defendants simply suggest that his alleged use of the word "never" was nothing more than his unpolished attempt to state that he had weighed all pertinent information and had reached the medical conclusion that plaintiff's treatment requests were inappropriate.
However, in light of the conflicting contentions, and accepting plaintiff's allegations as true as the court must for the purpose of defendants' motion for summary judgment, the court finds that questions of fact exist which prevent granting defendants motion at this time. Therefore, the remaining defendants' motion for summary judgment must be denied. Further, plaintiff's cross-motion for partial summary judgment fails to have merit.
It is hereby
1. The complaint is dismissed against defendants Cuomo and Coughlin in its entirety;
2. The remaining defendants' motion for summary judgment is DENIED ;
3. Plaintiff's motion for partial summary judgment on the issue of liability is DENIED ; and
4. The trial in the above matter is scheduled for February 5, 1996, in Utica, New York. A final pretrial conference will be conducted at 9:30 a.m. with jury selection to commence immediately thereafter. The parties are hereby directed to file the following with the clerk on or before January 26 1996: proposed voir dire questions, request to charge, exhibit list, and witness list containing a brief statement of what each witness will testify to at trial; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Memorandum, Decision and Order by regular mail, upon the parties to this action.
David N. Hurd
United States Magistrate Judge
Dated: January 4, 1996
Utica, New York.