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RIVERA v. GOORD
September 26, 2000
FELIBERTO RIVERA, JR., PLAINTIFF,
GLENN S. GOORD, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, ET AL., DEFENDANTS.
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.
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
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).
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,
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).
To state a claim under 42 U.S.C. § 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 ...