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September 26, 2000


The opinion of the court was delivered by: Chin, District Judge.


Plaintiff Feliberto Rivera, Jr. brings this prisoner civil rights action pursuant to 42 U.S.C. § 1983, 1985, and 1986, alleging that various officials and employees of the New York State Department of Correctional Services ("DOCS"), as well as the St. Francis Medical Center, violated his rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. Rivera's claims arise from a dental procedure performed on him in prison in 1997; he claims that after the procedure, various defendants exhibited deliberate indifference to his worsening physical condition and medical needs, while other defendants retaliated against him because he complained about the medical care he was receiving. Rivera seeks compensatory and punitive damages. Defendants move to dismiss the amended complaint pursuant to Fed. R.Civ.P. 12(b)(6) on the grounds that (1) defendants are immune from suit; (2) certain of the defendants were not personally involved in the alleged violations; (3) plaintiff fails to state a claim upon which relief can be granted; and (4) defendants are entitled to qualified immunity. For the reasons that follow, the motion is granted in part and denied in part.


Plaintiff's claims against the forty-two defendants arise out of incidents occurring during two different time periods, from April 1996 to December 1997 and from April to July 1999, while he was incarcerated at Green Haven Correctional Facility ("Green Haven"). The facts as set forth below summarize Rivera's seventy-three page pro se amended complaint.

A. 1996-1997

Rivera's dental problems date back to April 30, 1996, when he first reported to sick call complaining of pain in his mouth. Dr. Stolfi and Dr. Licerio diagnosed an impacted wisdom tooth and told Rivera that the tooth would have to be extracted. Rivera was soon transferred to another correctional facility and remained there for the next seven months. When he was transferred back to Green Haven, he was examined again in January 1997, this time by Dr. Kerschenbaum, who concurred in the earlier diagnosis and recommended extraction of the impacted tooth.

The parties disagree as to what surgical procedure plaintiff agreed to undergo. Rivera contends that at an appointment with Dr. Fratalone, an oral surgeon, on February 19, 1997, he consented to the removal of his wisdom tooth, and underwent surgery believing that his tooth was being extracted. Two weeks later, Rivera discovered that Dr. Fratalone did not remove his tooth, but only removed a piece of tissue from his mouth; plaintiff claims that he never consented to this "plastic surgery." Defendants agree that Dr. Fratalone removed a piece of tissue from Rivera's gums, but contend that this was precisely the procedure to which plaintiff had consented. For purposes of this motion, I accept plaintiff's version of the facts.

Plaintiff visited sick-call four times during the three days after the surgery, complaining of facial swelling and increasing pain. He was given prescription pain medication and antibiotics, and told to use hot compresses on his face. When the swelling and pain did not abate, Rivera was sent to the emergency room at St. Francis Medical Center ("St.Francis"). On February 24, 1997, plaintiff underwent an unspecified operation at St. Francis. He remained at the medical center for six days, receiving treatment and various tests, before he was discharged and returned to Green Haven on March 1, 1997.

Rivera's pain and facial swelling continued over the course of the next ten months, and during this period he also suffered from migraine headaches, infections, severe burning in his eyes, impaired vision, and partial loss of hearing; he states that he was eventually diagnosed with a temporomandibular disorder ("TMD"), a condition that affects the temporomandibular (or jaw) joint. Rivera claims that his medical problems were caused by Dr. Fratalone during the initial dental surgery on February 19. Plaintiff further alleges that his physical maladies were exacerbated by the failure of various defendants on the Green Haven medical staff (the "Medical Defendants"*fn1) to provide him with proper medical care after the two operations; Rivera contends that the Medical Defendants and other Green Haven medical employees ignored his repeated pleas for medical care and refused to provide him with the treatment he required.

For example, Rivera states that on March 3, 1997, days after he returned to Green Haven from St. Francis, he asked Dr. Selwin to change his intravenous ("IV") line because it was causing pain and bruising; the doctors at St. Francis had told plaintiff to change the IV line if he experienced such symptoms. According to Rivera, Selwin refused to change the IV line because Green Haven did not have any replacement IV lines, and Rivera ultimately pulled out the line himself. (Compl., ¶ 19). On another occasion, Dr. Silver refused to see Rivera for a scheduled appointment, stating "I refused to see you on your last appointment and I don't want to see you now. I cannot do anything for your chronic medical condition." (Compl., ¶ 58). Rivera also lists several other occasions on which he went to sick-call complaining of various symptoms and the Medical Defendants simply refused to see or treat him. (See, e.g., id., ¶¶ 21, 29, 44, 69, 73, 85).

On the other hand, plaintiff's complaint also details the extensive medical care he did receive from the Medical Defendants and the rest of Green Haven's medical staff. In 1997, Rivera was examined at least thirty times by 21 different doctors, including two oral surgeons, at least two dentists, a radiologist, an opthalmologist, an audiologist, and an ear, nose, and throat specialist. Plaintiff was sent to three outside facilities — St. Francis, Mid-Hudson Radiology, and St. Agnes Hospital — for medical treatment. Finally, Rivera states that on numerous visits to sick-call, the Medical Defendants and other staff members listened to his complaints and provided him with medical treatment, including prescribing medications for his pain, infections, and eye and ear problems and performing x-rays and an HIV test.

Plaintiff also alleges that he was harassed and intimidated by various Green Haven corrections officers (the "Correctional Defendants"*fn2) during the ten months following his second surgery, from March to December of 1997. He contends that certain of the Correctional Defendants harassed and intimidated him in retaliation for the numerous complaints he had filed (and continued to file) against Green Haven's medical staff. (See Compl., ¶¶ 45, 61, 63, 79, 86, 88).

Rivera also alleges that several of the Correctional Defendants physically assaulted him in retaliation for the complaints he filed. On September 11, 1997, plaintiff states that he was removed from the clinic by Kelly, Brady, Brenda Schneider, Belton, and other officers; as Rivera was walking, Kelly told him that he was "sick of [Rivera] writing complaints" and that if Rivera turned around, Kelly would "kick his ass." Kelly, Belton, and Brady then pinned Rivera against a wall, banging his face into the wall and twisting his arms behind him, while Colatosti and Schneider looked on without coming to plaintiff's aid. (Id., ¶ 71).

The amended complaint lists other alleged acts of harassment and intimidation by the Correctional Defendants (see, e.g., Compl., ¶¶ 61, 63, 65, 79, 86, 88). Rivera further contends that from March to December 1997, certain of the Correctional Defendants acted to deny him medical care, by refusing to take him to sick-call when he requested medical attention. (See id., ¶¶ 54, 82, 84)

Finally, during the same time period, plaintiff alleges that he told various supervisors at Green Haven and officials at the New York State Department of Corrections (the "Official/Supervisory Defendants"*fn3) about the conduct of the Medical and Correctional Defendants, asking for their assistance. Rivera states that his written complaints either went unanswered or were summarily dismissed. (See, e.g., Compl., ¶¶ 46, 50, 61-63, 66, 71, 79, 84, 87).

B. 1999

1. The Instant Proceedings

Plaintiff filed this action pro se on March 5, 1999. By letter dated May 20, 1999, Rivera agreed to withdraw his claims against nine defendants named in his original complaint. (See 5/28/99 Order). By motion dated June 17, 1999, plaintiff requested permission to file a "supplemental complaint" alleging constitutional violations similar in nature to those alleged in his original complaint that occurred after the filing of that initial pleading in March 1999 and to reinstate his claims against Brenda Schneider; the supplemental complaint was attached to the notice of motion, and contained allegations only about conduct that occurred after March 1999. (See Notice of Motion for Leave to File Supp. Compl.). By memo endorsement dated July 2, 1999, I granted Rivera's motion, but because it was attached to the notice of motion, the supplemental complaint was never docketed separately as part of the record.

Plaintiff thereafter requested leave to file an amended complaint and the defendants consented. Consequently, I granted the request. The amended complaint essentially combined the original and supplemental complaints, and included factual allegations about the events occurring in both 1997 and 1999. (See Memo Endorsement on Attorney General's 6/26/99 Letter to the Court). The amended complaint, which was filed on July 22, 1999, added twelve new defendants to the case.

2. 1999 Events at Green Haven

Plaintiff contends that in 1999, certain of the Correctional Defendants harassed and threatened him in retaliation for filing the instant action against them.

For example, Rivera alleges that on several occasions, he was denied access to mental health appointments, religious activities, and the law library when various Correctional Defendants refused to give him "call-outs" to visit these facilities. (See Am. Compl., ¶ 91, 96). The complaint purports to list other incidents of harassment and threats. (Id., ¶¶ 93, 94, 98).

Rivera also complains of two false reports filed against him in 1999. He contends that on April 26, 1999, Daly and Meyer filed a false inmate misbehavior report charging him with lying about a work assignment, in retaliation for his lawsuit. (See id., ¶¶ 95, 97). At the subsequent Tier II hearing, plaintiff was initially found not guilty of the charges, but Gwen Schneider, the officer who presided at the hearing, later changed the disposition to guilty, resulting in Rivera being confined to his cell for three days; Rivera implies Gwen Schneider was biased against him because her husband, George Schneider, her niece, Brenda Schneider, and her niece's husband, Jerry Surber, were defendants in plaintiff's suit. (See id., ¶ 97).

Rivera also alleges that Mitchetti filed a false report against him on July 3, 1999, charging him with four inmate offenses; he claims that he was deprived of due process when Nagy, already named as a defendant in the instant case, presided at the subsequent hearing, over Rivera's objections. (See id., ¶ 100, 102). Rivera further claims that Nagy deliberately adjourned the hearing and delayed in reconvening the proceeding to keep plaintiff confined to his cell, as he had been since the filing of the report. (See ¶¶ 104-05). When the hearing was reconvened, Rivera was found guilty of two charges, and was sentenced to 30 days keep-lock and the loss of certain privileges. (See id., ¶ 106).

Rivera further alleges that certain of the Official/Supervisory Defendants permitted the Correctional Defendants' actions by failing to take action against them. He filed a complaint with Artuz and Goord, detailing the alleged campaign of harassment waged against him by Brenda Schneider, Surber, and Surber's "gang of officers," and accusing Artuz and Goord of continuing to "encourage, tolerate, . . . permit[] and ratify[]" the officers' behavior because they were related to certain Official/Supervisory Defendants, namely George Schneider and Bliden. (Am. Compl., ¶ 98). He later wrote to McCoy and Bliden, informing them of the alleged retaliatory behavior of certain Correctional Defendants, citing the false report filed by Mitchetti and the hearing conducted by a biased Nagy. (Id., ¶ 102). Plaintiff does not allege that any of these defendants received his complaints or learned about the alleged constitutional violations from any other source.

Finally, plaintiff alleges that Dr. Selwin continued to neglect his medical needs in 1999, refusing to see Rivera on five different occasions in May and June. (See Am. Compl., ¶ 99).


In reviewing a motion to dismiss, I must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). A complaint may not be dismissed under Rule 12(b)(6) unless it "`appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Therefore, the issue before the Court "`is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 235-36, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), cert. denied, 519 U.S. 808, 117 S.Ct. 50, 136 L.Ed.2d 14 (1996). Moreover, the allegations of a pro se complaint*fn4 are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

I. Section 1983 Claims

To state a claim under 42 U.S.C. ยง 1983, a plaintiff must show that: (1) the defendants acted under "color of state law"; and (2) their conduct or actions deprived plaintiff of a right, privilege, or immunity guaranteed by the Constitution or laws of the United States. Shabazz v. Vacco, No. 97 Civ. 3761(DC), 1998 WL 901737, at *2 ...

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