Accepting the truth of plaintiff's allegations for purposes of
this motion, as I must, I cannot conclude that plaintiff can
prove no set of facts sufficient to meet the deliberate
indifference standard. Plaintiff asserts that he suffered serious
injury because of the five month deprivation of a proper
wheelchair, e.g., that he suffered "severe and unnecessary
pain," "severe back pain," and a cut head. (Am. Compl. ¶¶ 45-47).
Moreover, he alleges that defendants failed to provide him with
an appropriate wheelchair or to modify his own wheelchair despite
his notification to Bendheim that he was in pain and his many
grievances regarding the confiscation of his wheelchair.
The temporary nature of both the deprivation and the alleged
pain call into doubt plaintiff's ability to prove that the denial
was "sufficiently serious" in objective terms. At this early
stage, however, without the benefit of information on the
severity of plaintiff's pain and the medical appropriateness of
the wheelchair DOCS offered to plaintiff, I cannot say that
plaintiff fails to allege that he suffered sufficiently serious
injury from the temporary lack of a fixed frame or other
appropriate wheelchair. Nor can I reject, at this point,
plaintiff's claim that defendants acted with a culpable state of
mind in depriving him of a wheelchair customized to his needs.
Accordingly, I hold that plaintiff's claim, as alleged, is
sufficient to withstand a motion to dismiss. See Burgess, 1999
WL 33458, at *4 (denying motion to dismiss deliberate
indifference claim alleging denial of access to cane and
elevator); Gadson, 1997 WL 714878, at *5 (denying motion to
dismiss deliberate indifference claim alleging denial of access
to medically appropriate wheelchair).
c. Personal Involvement
Defendants contend that even if plaintiff states a claim for
deliberate indifference under § 1983, he has failed to allege the
personal involvement of Goord, Bennett, Artuz, and Selwin. As
plaintiff has not alleged a § 1983 claim against either Goord or
Bennett, I address only the personal involvement of Artuz and
To recover damages under § 1983, a plaintiff must demonstrate a
defendant's personal involvement in the alleged constitutional
violations. See Gadson, 1997 WL 714878, at *9 (citing Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). For purposes of §
1983, personal involvement means "direct participation, or
failure to remedy the alleged wrong after learning of it, or
creation of a policy or custom under which unconstitutional
practices occurred, or gross negligence in managing
subordinates." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.
1996); see also Amaker v. Goord, No. 98 Civ. 3634, 2000 WL
718438, at *3 (S.D.N.Y. June 5, 2000) (quoting same).
Plaintiff does not merely allege that Artuz and Selwin occupied
supervisory positions or failed to respond to plaintiff's
grievances. Rather, plaintiff alleges that Artuz and Selwin
directly "refused to allow plaintiff's wheelchair to be repaired
and ordered [its] confiscation." (Am. Compl. ¶ 40). Although just
barely meeting the minimum of what is required, plaintiff has
alleged facts as to the personal involvement of both Artuz and
Selwin sufficient to withstand a motion to dismiss.
d. Qualified Immunity
Defendants further contend that even if plaintiff states a
viable claim under § 1983, they are entitled to qualified
immunity. "[A] prison official . . . may claim qualified immunity
from suit . . . for [his] 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
202 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Even where
a prisoner's rights are clearly 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)).
Defendants contend, in a conclusory fashion, that their actions
were objectively reasonable. (See Def. Mem. at 19-20).
Plaintiff, however, has adequately pled a claim for deliberate
indifference. Because defendants could not have been deliberately
indifferent and objectively reasonable at the same time, I hold
that defendants are not entitled to qualified immunity based on
the existing record. See Hathaway, 37 F.3d at 69; Burgess,
1999 WL 33458, at *6; cf. Harrison v. Barkley, 219 F.3d 132,
136 (2d Cir. 2000) (finding existing record did not support
dismissal of claims against prison officials based on qualified
immunity). Defendants' motion, insofar as it seeks dismissal of
the § 1983 claims based on qualified immunity, is denied.
3. Pendent State Law Claims
In response to defendants' motion to dismiss, plaintiff has
agreed to withdraw the pendent negligence and New York Human
Rights Law claims. (See Tr. at 18). Accordingly, the state law
claims are dismissed.
Defendants move to transfer this case to the Northern District
of New York only in the event that all claims but those
pertaining to Elmira are dismissed. (See Def. Mem. at 21).
Because claims relating to Green Haven survive the motion to
dismiss, I do not reach defendant's alternative motion.
For the foregoing reasons, defendants' motion to dismiss is
granted in part and denied in part. Defendants' motion is denied
with respect to the ADA and Rehabilitation Act claims asserted
against DOCS and the § 1983 claims asserted against defendants
Artuz, Selwin, Bendheim, and Weber in their individual
capacities. The remainder of the motion is granted and all other
claims are dismissed. As no claims remain against defendants
Goord, Bennett, and the Chairperson of the Temporary Release
Committee at Green Haven, they are dismissed from this action.
The parties shall appear for a pretrial conference on September
15, 2000 at 11:00 a.m., United States Courthouse, Courtroom 11A,
500 Pearl Street, New York, New York 10007.