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January 4, 1996

MARIO CUOMO, Governor, State of New York; THOMAS A. COUGHLIN, Commissioner, New York State Department of Corrections; JOSEPH COSTELLO, Superintendent, Mid-State Correctional Facility; JOHN E. DADOW, M.D.; DOCTOR HWONG; VICTOR HERBERT, Individually and in his official capacity as Superintendent, Collins Correctional Facility; and CHARLES KURTZ, M.D., Individually and in his official capacity as a physician and Facility Health Services Director at Collins Correctional Facility, Defendants.

The opinion of the court was delivered by: HURD

 The plaintiff brings this civil rights complaint pursuant to Title 42 U.S.C. ยง 1983. Plaintiff alleges that defendants interfered with his prescribed medical treatment in violation of his Eighth Amendment right to be free from cruel and unusual punishment, and his right to due process under the Fifth, Eighth and Fourteenth Amendments. Plaintiff seeks declaratory, compensatory, and punitive damages against the named defendants, individually and collectively, as well as costs and attorney fees. There are three motions currently before the court. First, defendants have moved to dismiss the claims against defendants Gov. Mario Cuomo ("Cuomo") and Commissioner Thomas A. Coughlin ("Coughlin"). Additionally, they have moved for summary judgment in favor of the remaining defendants. Finally, plaintiff has filed a cross-motion for partial summary judgment on the issue of liability only, against defendants Superintendents Joseph Costello ("Costello") and Victor Herbert ("Herbert"); and Drs. John E. Dadow ("Dr. Dadow"), Gilbert A. Hwong ("Hwong"), and Charles Kurtz ("Kurtz").


 Although there is a cross-motion, for the purposes of the defendants' motion for summary judgment, the court will view the evidence submitted with a view most favorable to the plaintiff.

 On November 2, 1989, some two and one-half months prior to being incarcerated, plaintiff, Charles Pugliese ("Pugliese"), sustained serious injuries to his back, left shoulder, and upper left arm when his motorcycle was struck by a car in Venice, Florida. Pugliese was diagnosed by neurologist, Dr. Singh of White Plains, New York, as having sustained an injury to the left brachial plexus. He ordered an MRI, and upon receipt of the results, plaintiff was to begin a regimen of physical therapy. However, plaintiff was arrested on January 16, 1990, and was incarcerated at the Westchester County Jail prior to the MRI examination. His status was reviewed by Dr. Charles McGowan at the Westchester County Medical Center Rehabilitative Unit shortly after his initial incarceration, and physical therapy was prescribed three times weekly beginning on April 7, 1990 and continuing through November 19, 1990. Electrostimulation with a TENS unit starting in May 1990 was also prescribed.

 At the time of his transfer from Westchester County Jail on November 26, 1990, Pugliese was capable of lifting twelve pounds with his left arm. He was transferred to the Downstate Correctional Facility, and on December 10, 1990, was again transferred, this time to Mid-State Correctional Facility. He immediately sought medical attention, allegedly pointing out Dr. McGowan's letter dated September 14, 1990, which was included in Pugliese's medical file, and which recommended continuation of TENS unit electrostimulation and physical therapy. However, neither treatment was available at Mid-State. Several references were made in Pugliese's medical records which indicated the need for physical therapy and TENS unit therapy to minimize the risk of muscle atrophy. No ultimate action was taken.

 Plaintiff's medical records show continual treatment by defendants Drs. Dadow and Hwong throughout his stay at Mid-State for the period of one year. By letter dated January 31, 1991, Pugliese complained to Commissioner Coughlin about the perceived denial of medical treatment. The response was to forward the letter to the Office of Health Services for appropriate action. Pugliese complained directly and in person to the Superintendent of Mid-State, Costello without result. A grievance was filed and further letters sent, all to no avail.

 Finally, in October 1991, subsequent to filing this action in federal court, Pugliese began receiving therapy and TENS treatment.

 Two months later, in December 1991, Pugliese was transferred to Oneida Correctional Facility where a TENS unit, but no physical therapy, was provided. In March 1992, he was again transferred, this time to Gouverneur Correctional Facility, where he received the full complement of physical therapy and TENS unit treatment three times weekly.

 His next transfer was to Collins Correctional Facility, in September of 1992. Pugliese made an immediate request for the continued treatment. Dr. Kurtz, a physician at Collins, sought consultation from a specialist, who returned a recommendation on January 25, 1993, that Pugliese "may benefit from electric stimulation." Yet no treatment was forthcoming. Pugliese made continued requests and complaints. Dr. Kurtz responded to one request, that he would never waste the state's money on such treatment. Instead, Pugliese was prescribed visits to an occupational therapist once monthly. Pugliese also personally complained about his lack of medical treatment to the Superintendent of Collins, Herbert, with no action.

 Pugliese claims that as a result of this lack of treatment, he has lost virtually all of the strength in his left arm, and could not lift one-pound weights upon his release from Collins on April 13, 1993.


 Summary Judgment

 Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most ...

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