Although he had returned to Green Haven on January 19, 1997 and was
discharged from the infirmary on January 21, Dobbin was not moved to the
flats until February 11, 1998. (Spitzer Dec. Exs. M at 301, 509; N.)
Between September 9, 1997, when he had first requested to be moved to the
flats, and February 11, 1998, when he was first moved down from the
higher floors, Dobbin visited the ground-floor law library approximately
86 times. (Lonczak Aff. ¶ 14.) He first filed a grievance regarding
the delayed move on February 5, 1998, after his fall. (Spitzer Ex. A, p.
13 at ¶ 34.)
Dr. Galeno performed a lumbar laminectomy L5-S1, disc excision at (L)
and decompression laminectomy L40L5 at St. Agnes Hospital in White
Plains, New York, on April 14, 1998. Dobbin remained hospitalized for
several days, and returned to a cell on the flats in Green Haven upon his
After exhausting administrative procedures, Dobbin, acting pro se,
filed the instant § 1983 action on December 9, 1999, claiming that
the failure to move him to the flats was in deliberate indifference to
his serious medical needs, in violation of his rights under the Eighth
and Fourteenth Amendments of the United States Constitution.
On January 17, 2001, the defendants filed this motion for summary
judgment, arguing that the action should be dismissed for failure to
prove a serious medical need to be moved to the flats, because the facts
alleged fail to prove deliberate indifference, and because the defendants
were not personally involved, and entitled to qualified and/or Eleventh
Amendment immunity. After receiving an extension on the time in which to
respond, Dobbin filed a brief and supplementary materials in opposition
to the motion on March 12, 2001. Defendants, too, sought and received an
extension of the reply period, and filed further submissions in support
of their motion on March 28, 2001, whereupon the motion was deemed fully
I. Applicable Legal Standards
A. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that a
motion for summary judgment may be granted when "there is no genuine
issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law." The Second Circuit has repeatedly noted
that "as a general rule, all ambiguities and inferences to be drawn from
the underlying facts should be resolved in favor of the party opposing
the motion, and all doubts as to the existence of a genuine issue for
trial should be resolved against the moving party." Brady v. Town of
Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)
(Brennan, J., dissenting)); see Tomka v. Seiler Corp., 66 F.3d 1295, 1304
(2d Cir. 1995); Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N.Y.
1995). If, when viewing the evidence produced in the light most favorable
to the non-movant, there is no genuine issue of material fact, then the
entry of summary judgment is appropriate. See Burrell, 894 F. Supp. at
758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d
Materiality is defined by the governing substantive law. "Only disputes
over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be counted."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). "[T]he mere existence of factual issues — where
those issues are not material to the claims before the court — will
not suffice to defeat a motion for summary judgment." Quarles v. General
Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).
While all reasonable ambiguities and inferences should be resolved
against the moving party, those inferences must be supported by
affirmative facts and must be based on relevant, admissible evidence. See
Fed.R.Civ.P. 56. A party seeking to defeat a summary judgment motion
cannot "`rely on mere speculation or conjecture as to the true nature of
facts to overcome the motion.'" Lipton v. Nature Co., 71 F.3d 464, 469
(2d Cir. 1995) (citation omitted).
Although these standards apply where the plaintiff is pro se, the court
should read the submissions of a pro se litigant "liberally and
`interpret them to raise the strongest arguments they suggest.'"
McPherson v. Coombe, 174 F.3d 276, 279 (2d Cir. 1999) (quoting Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
B. Section 1983 Liability
Section 1983 imposes liability for acts taken under color of state law
which deprive a plaintiff of "rights, privileges, or immunities secured
by the Constitution and laws." 42 U.S.C. § 1983. The Supreme Court
has interpreted the "plain words" of this statute as imposing liability
"only for conduct which `subjects, or causes to be subjected' the
complainant to a deprivation of a right secured by the Constitution and
its laws." Rizzo v. Goode, 423 U.S. 362, 670 (1976) (citation omitted).
Thus, in order to prevail on a section 1983 claim, the plaintiff must
prove that the defendant: (1) acted, (2) under color of state law, (3) in
a manner which deprived the plaintiff's constitutional rights. See,
e.g., Candelaria v. Coughlin, 787 F. Supp. 368, 372 (S.D.N.Y. 1992),
aff'd, 979 F.2d 845 (2d Cir. 1992).
Thus, a defendant's personal involvement in the alleged constitutional
violation is a prerequisite to recover damages, see Rizzo, 423 U.S. at
371-77; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) ("[i]t is
well-settled in this circuit that `personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of
damages under § 1983'") (quoting Williams v. Smith, 781 F.2d 319, 323
(2d Cir. 1986) (internal citations omitted); Gill v. Mooney, 824 F.2d 192,
196 (2d Cir. 1987).
In addition, the plaintiff must allege that the defendants "were
directly and personally responsible for the purported unlawful conduct."
Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987); see also
Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) ("Absent some personal
involvement by [the Superintendent of a DOCS facility] in the allegedly
unlawful conduct of his subordinates, he cannot be held liable under
section 1983."). Supervisory officials cannot be held liable under §
1983 solely for the acts of their subordinates. Johnson v. Glick,
481 F.2d 1028, 1034 (2d Cir.) (respondeat superior does not show personal
involvement under § 1983), cert. denied, 414 U.S. 1033 (1973).
C. The Eighth Amendment
The Eighth Amendment prohibits the infliction of "cruel and unusual
punishments." U.S. Const. Amend VIII. In order to establish an Eighth
Amendment claim arising from inadequate medical care, a prisoner must
prove "deliberate indifference to his serious medical needs." Chance v.
Armstrong, 143 F.3d 698, 702
(2d Cir. 1998) (quoting Estelle v. Gamble, 429 U.S. 97,
Plaintiff must establish that prison officials intentionally denied or
delayed access to medical care or intentionally interfered with
prescribed treatment. See id. at 104-05. The deliberate indifference
standard incorporates an objective prong and a subjective prong. The
inmate must establish (1) that the deprivation is "sufficiently serious"
and (2) that the prison official has a sufficiently culpable state of
mind. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). A
sufficiently serious medical deprivation exists where there is "a
condition of urgency, one that may produce death, degeneration or extreme
pain." Id. at 66. A sufficiently culpable state of mind on the part of
prison officials exists where the officials are aware of the prisoner's
serious need and deliberately disregard it. Id. at 68.
Examples of conditions considered by the Second Circuit Court of
Appeals to be "sufficiently serious" under the Eighth Amendment vary a
great deal, but include the failure to provide prescribed medication in
the face of an inmate's extreme weight loss and deteriorating condition,
see Kaminsky v. Rosenblum, 929 F.2d 922, 924 (2d Cir. 1992), a delay in
removing broken pins from a prisoner's hip for more than two years
despite nearly fifty complaints of pain, see Hathaway, 37 F.3d at 65-6,
and chronic tooth pain lasting at least six months, rendering the
prisoner unable to chew, and resulting in as many as three teeth
degenerating to the point of requiring extraction, see Chance, 143 F.3d
To establish the subjective component, Dobbin would have to demonstrate
that defendants "kn[ew] of and disregard[ed] an excessive risk to [his]
health or safety." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Prison
officials are not liable "if they responded reasonably to a known risk,
even if the harm ultimately was not averted." Farmer, 511 U.S. at 826;
see also Estelle, 429 U.S. at 106-7 (prisoner not entitled to treatment
by every medical alternative as long as treatment is reasonable).
Thus, negligence or medical malpractice is insufficient to support a
claim of deliberate indifference. See Hendricks v. Coughlin, 942 F.2d at
113; see also Estelle, 429 U.S. at 105-06.
Moreover, mere differences of opinion regarding medical treatment do
not give rise to an Eighth Amendment violation. See Estelle, 429 U.S. at
107; see also Chance, 143 F.3d at 703.
Under the doctrine of qualified immunity, public officials engaging in
discretionary activities are shielded from liability for civil damages if
they establish that (1) their conduct did not violate clearly established
rights of which a reasonable person would have known; or (2) that it was
"objectively reasonable" to believe that their acts did not violate
clearly established rights. See Anderson v. Creighton, 483 U.S. 635,
637-41, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); McEvoy v.
Spencer, 124 F.3d 92, 97 (2d Cir. 1997); Mozzochi v. Borden, 959 F.2d 1174,
1177 (2d Cir. 1992). This defense protects government officials such as
prison authorities from "the burdens of defending expensive but ultimately
unsubstantial, lawsuits and also guards against the risk that `fear of
personal monetary liability and harassing litigation will unduly inhibit
officials in the discharge of their duties.'" Estate of Rosenblum v.
of New York, 975 F. Supp. 206, 215 (E.D.N.Y. 1997) (quoting Anderson, 483
U.S. at 638); see Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).
The Eleventh Amendment bars a § 1983 action for damages brought
against public officers in their official capacity, absent the state's
consent, because the state is the real party in interest. See Severino
v. Negron, 996 F.2d 1439, 1441 (2d Cir. 1993); Dube v. State University
of New York, 900 F.2d 587, 594 (2d Cir. 1990).
II. The Summary Judgment Motion is Granted
The crux of Dobbin's claim is that by failing to house him in a cell on
the flats, the defendants were deliberately indifferent to his serious
medical need. As a preliminary matter,
Dobbin must establish that it was medically necessary for him to avoid
climbing stairs in order to prevail. Absent this showing, there can be no
finding that the defendants responsible for his medical care and housing
placement were deliberately indifferent. Dobbin has effectively shown that
his chronic back injury caused him severe and near constant pain, and was
as an objective matter therefore "sufficiently serious" to support a
§ 1983 claim. See Cole v. Artuz, No. 97 Civ. 0977 (RWS), 2000 WL
760749 (S.D.N Y June 12, 2000) (holding that inmate's chronic back injury
satisfied objective prong of deliberate indifference claim). Hundreds of
pages of medical records reflect that Dobbin had been diagnosed with a
herniated disk even before arriving at Green Haven, and that he
frequently complained of severe back and leg pain after arriving.
(Spitzer Dec. Ex. M.)
With respect to the subjective component, as the Second Circuit has
noted, "[w]hether a course of treatment was the product of sound medical
judgment, negligence, or deliberate indifference depends on the facts of
the case." Chance, 143 F.3d at 703. A claim for negligence or medical
malpractice does not state a claim for a constitutional violation. See
Estelle, 429 U.S. at 107.
Although Dobbin requested to be moved to the flats on several occasions
starting in September of 1997, he has failed to demonstrate any medical
need for such an action. The Supreme Court has held that inmates are
entitled to reasonable treatment, not the specific treatment they
desire. Farmer, 511 U.S. at 826; Estelle, 429 U.S. at 106-7; Chance, 143
F.3d at 73 (mere disagreement over proper treatment does not state
constitutional claim). The uncontroverted evidence establishes that
Dobbin regularly received sick calls and medication upon request,
including numerous consultations with outside specialists in connection
with his back condition, as well as his foot condition and vision.
(Spitzer Dec. Ex. M.) Defendant Rodas was particularly responsive to
Dobbin's complaints, repeatedly examining him, renewing prescriptions,
scheduling consultations with outside professionals, and submitting
duplicate move authorizations in an attempt to make Dobbin more
comfortable. (Id. at Exs. B, M; Rodas Aff.)
Defendant Rodas first recommended that Dobbin be moved in September of
1997 not due to any medical necessity, but simply because he felt would
be "more convenient" for Dobbin to live on the same floor as the mess
hall, clinic, and law library. (Spitzer Dec. Ex. M at 533, 539; Rodas
Aff. ¶¶ 32, 33.) He offered to authorize Dobbin to receive his meals
in his cell so that he would not have to walk unnecessarily, but Dobbin
refused, wanting to remain able to "get some fresh air"
on occasion and
make full use of the law library to research his criminal appeal.*fn2
Of all the medical professionals who examined Dobbin's back —
whether before or after his transfer to Green Haven — none ever
recommended that he limit his walking, refrain from climbing stairs, or
be moved to a cell on the ground floor. The affidavit of Dr. Galeno, who
is not named as a defendant in this case, is particularly significant in
At the time he treated Dobbin on two occasions in 1997 prior to the
accident, Dr. Galeno had been a practicing physician for almost twenty
years, specializing in orthopedic surgery with a sub-specialty in spine
surgery. For inmates who are "either unable, or . . . having great
difficulty, walking throughout the facility," Dr. Galeno recommends that
they be moved to the ground floor. (Galeno Aff. ¶ 2.) At both of his
examinations, Dobbin was fully ambulatory and did not complain about any
difficulty or additional pain associated with walking or climbing.
(Galeno Aff. ¶ 4-9.)
As a result, Dr. Galeno did not recommend that Dobbin
avoid stairs or be moved to the flats. From August
1997 through April 1998, in Dr. Galeno's medical
opinion: there was absolutely no medical
contra-indication limiting plaintiff's use of the
stairs. Although it might have been more convenient
for [Dobbin] to avoid walking up the stairs, such a
restriction was in no way medically required. Thus,
between September 1997 and April 1998, there was no
medical necessity for plaintiff to be housed in a cell
located on the ground floor of the facility.
(Galeno Aff. ¶ 13.) Dobbin has introduced no evidence placing this
diagnosis in dispute. His requests to be moved placed certain Green Haven
staff on notice of his desire to be housed on the flats, but in and of
themselves were insufficient to demonstrate a serious medical need for
such a move. Dobbin was receiving regular medication and physical
therapy, which, he repeatedly reported to medical staff, he felt
alleviated his pain. (Spitzer Dec. Ex. M.)
Moreover, the fact that Dobbin fell is insufficient to demonstrate that
there had been a serious medical need for him to avoid the stairs before
he fell. First, he had never fallen before January 18, 1998. As set forth
above, nothing in Dobbin's complaints to medical professionals or their
examinations of him suggested that stairs posed any difficulty or
additional threat to his chronic back condition. In addition, Dobbin
stepped on a "slippery" piece of "plastic" on the stairs before he fell.
(Spitzer Dec. Ex. B at 103-05.) This admission complicates the argument
that his back condition caused the fall (or that it would have caused the
fall even if the stairs had been swept clear), which is a necessary link
in the legal chain to liability.
As such, Dobbin has failed to create a genuine issue of material fact
as to a required element of his § 1983 action — serious medical
need to be moved to the flats or to avoid stairs — and the
defendants' motion for summary judgment will therefore be granted.
For the foregoing reasons, the defendants' motion for summary judgment
is hereby granted and the action dismissed.*fn3 Pursuant to the Prisoner
Litigation Reform Act of 1996 ("PLRA"), 28 U.S.C. § 1915(a)(3), I
certify that any appeal taken from this order would not be taken in good
faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
It is so ordered.