asserted that Plaintiff was faking his injury. Id., ¶ 36. Defendants
Figueroa and Williams then sent Plaintiff for an X-ray, which revealed no
abnormalities. Id., ¶ 37.
Subsequently, Plaintiff wrote additional letters to Defendant Nurse
Administrator K.A. Greiner, the Inmate Grievance Resolution Committee,
the Assistant Commissioner for Medical Services and the Commissioner of
the New York State Department of Health, and also filed an appeal to the
grievance committee. Id., ¶¶ 38-39. Plaintiff also asked Defendants
Figueroa and Williams to place him on a less stringent work assignment.
They refused to do so. Id., ¶ 41.
Defendant KA. Greiner responded to Plaintiff's inquiry by stating that
she would await the outcome of the grievance process. Id., ¶¶ 43-44.
In October 1997, Plaintiff wrote a second letter to Defendant
Superintendent Greiner, complaining that he still had not received
adequate medical care and that he had not received a response to the
appeal filed in July 1997 from the adverse grievance committee decision.
Id., ¶ 45. In November 1997, Defendant Superintendent Greiner
informed Plaintiff that the appeal had been denied, stating that the
medical department had acted appropriately and that Plaintiff had been
abusing the system. Id., ¶¶ 47, 50-51.
In May 1998, Plaintiff, then incarcerated at Green Meadow Correctional
Facility, again sought medical treatment for his ankle injury. Id.,
¶ 48. Plaintiff was examined by a Dr. Paulano, who noted progressive
atrophy and build-up of scar tissue. Id., ¶¶ 50-51. Dr. Paulano
referred Plaintiff to a podiatrist, who determined that Plaintiff
suffered from progressive atrophy stemming from a ruptured left Achilles
tendon suffered in the preceding year. Id., ¶¶ 52-53. The podiatrist
prescribed physical therapy. Id., ¶ 53. The physical therapist also
noted accumulation of scar tissue. Id., ¶ 54.
While incarcerated at the Green Meadow Correctional Facility, Plaintiff
requested his medical records in order to prepare for this lawsuit. Id.,
¶ 56. When Plaintiff examined his medical records on September 10,
1999, he discovered that some of the records were missing. Id., ¶¶
57-58. Defendant Nurse Von Hagen, who was supervising Plaintiff's review
of his medical records, informed Plaintiff that she would contact the
prisons where Plaintiff previously had been incarcerated and that she
would get back to Plaintiff concerning the missing medical records. Id.,
¶¶ 57, 59-60. Defendant Von Hagen did not follow up and did not
respond to Plaintiff's subsequent inquiries concerning the whereabouts of
the missing records. Id., ¶ 61. In September 1999, Plaintiff wrote
to Defendant Nurse Administrator Mr. Obrowiski concerning the missing
medical records; Mr. Obrowiski also did not respond to Plaintiff's
inquiry. Id., ¶ 62. Subsequently, Plaintiff filed a grievance
requesting that the medical records be located and wrote Mr. Obrowiski a
second time. Id., ¶¶ 63-64. Neither the grievance committee or Mr.
Obrowiski responded. Id., ¶¶ 64-65. Subsequently, Plaintiff
discovered that his grievance complaint had not been received, so
Plaintiff submitted another complaint seeking assistance in locating the
missing medical records. Id., ¶¶ 66-67. Plaintiff was instructed to
contact the correctional facilities directly to request the missing
records. Id., ¶ 68. Plaintiff appealed this decision to Defendant
McGinnis, who denied the appeal. Id., ¶ 69.
A complaint should 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(1957). The factual allegations set forth in the complaint are
accepted as true and all reasonable inferences are drawn in favor of the
plaintiff. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). 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, 236(1974)). In
addition, allegations of a pro se complainant are held to "less stringent
standards than formal pleadings drafted by lawyers." Haines v. Kerner,
404 U.S. 519, 520(1972).
The Eighth Amendment prohibits the infliction of "cruel and unusual
punishment" on persons convicted of crimes. U.S. Const. amend. VIII. In
order to establish an Eighth Amendment claim based upon failure to
provide adequate medical care, a prisoner must prove "deliberate
indifference to [his] serious medical needs." Estelle v. Gamble,
429 U.S. 97, 106 (1976). Establishing deliberate indifference includes
both a subjective and an objective element. Farmer v. Brennan,
511 U.S. 825, 834(1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert.
denied, 513 U.S. 1154(1995).
In respect of the objective element, "[a] serious medical condition
exists where `the failure to treat a prisoner's condition could result in
further significant injury or the unnecessary and wanton infliction of
pain.'" Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting
Chance v. Armstrong, 143 F.3d at 702); see also Hathaway v. Coughlin, 37
F.3d at 66 (the objective element contemplates a "condition of urgency"
that may result in "degeneration" or "extreme pain.") (citations
The subjective element is satisfied if a plaintiff demonstrates that a
defendant acted "with a sufficiently culpable state of mind." Highaway,
37 F.3d at 66 (citing Wilson v. Seiter, 501 U.S. 294, 298(1991)). The
defendant's culpability must be something "more than negligence, but less
than conduct undertaken for the very purpose of causing harm." Id. A
plaintiff must allege that an official "`knows of and disregards an
excessive risk to inmate health or safety; the official must both be
aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.'" Id.
(quoting Farmer v. Brennan, 511 U.S. at 837).
"[A] complaint that a physician has been negligent in diagnosing or
treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment." Estelle, 429 U.S. at 106.
Generally, allegations amounting to at most medical malpractice are
insufficient to frame an Eighth Amendment claim. See Abdush-Shahid v.
Coughlin, 933 F. Supp. 168, 181-182 (N.D.N.Y. 1996). "In certain
instances, [however,] a physician may be deliberately indifferent if he
or she consciously chooses `an easier and less efficacious' treatment
plan. Chance v. Armstrong, 143 F.3d at 703. Thus, "mere medical
malpractice is not tantamount to deliberate indifference, but it may rise
to the level of deliberate indifference when it involves culpable
recklessness, i.e., an act or a failure to act . . .
that evinces a conscious disregard of a substantial risk of serious
harm." Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000), quoting
Chance v. Armstrong, 143 F.3d at 703 (internal quotation marks omitted).
Sufficiently Serious Medical Condition
Plaintiff alleged that he first injured his Achilles tendon during a
basketball game. Initially, Plaintiff was treated in the prison emergency
room, given a medical pass, a cane and an appointment to see Dr. Halko,
who decided that Plaintiff had a bruised tendon. Complaint, ¶¶ 15,
17-18. Plaintiff contends that he suffered continuous pain at this time
and that he told staff physician Dr. Maw about his continuing pain. Id.,
¶ 20. Dr. Maw did not refer Plaintiff to a specialist. Id., ¶
20. Subsequently, Plaintiff filed a grievance and complained to Defendant
Superintendent Greiner about his condition. Id., ¶¶ 20-21. Plaintiff
alleges that he reinjured his ankle about two months after the initial
injury and then, a week later, his Achilles tendon collapsed. Id.,
¶¶ 29, 34. Further, Plaintiff alleges that he filed additional
grievance complaints concerning his injury and that he still suffered
from "a great amount of pain and swelling in the affected area, as well
as discomfort when walking" during July of 1997. Id., ¶ 42.
Plaintiff alleges that "[p]ain, swelling and discomfort" were still
present in May 1998, when Plaintiff was transferred to Great Meadow
Correctional Facility. Id., ¶¶ 48-49. Finally, Plaintiff alleges that
the podiatrist at Great Meadow Correctional Facility "diagnosed plaintiff
as having progressive atrophy, stemming from a ruptured left Achilles
tendon suffered a year past." Id., ¶ 53. A physical therapist "noted
a substantial accumulation of scar tissue in light of the long delay in
treatment." Id., ¶ 54.
Although it is possible that Plaintiff's claim may not withstand a
motion for summary judgment, the issue on this motion to dismiss is
whether Plaintiff is entitled to prove facts in support of his claim
which would entitle him to relief. Taking the above allegations as true,
the Court concludes that Plaintiff could prove facts sufficient to meet
the objective element of the Estelle test. Plaintiff has alleged that he
suffered from continuous pain and a degenerative condition and that
Defendants were aware of Plaintiff's complaints. Plaintiff is entitled to
an opportunity to seek to prove that Defendants' failure to treat
Plaintiff could have resulted in further injury or the unnecessary and
wanton infliction of pain. Harrison v. Barkley, 219 F.3d at 136. At this
stage of the litigation the Court cannot determine as a matter law that
Plaintiff will be unable to establish that he suffered from serious
Dr. Halko. Dr. Maw and Nurse Figueroa
Establishing deliberate indifference requires that a plaintiff show
more than malpractice. Abdush-Shahid v. Coughlin, 933 F. Supp. at
181-182. Defendants argue that, because staff physicians treated
Plaintiff immediately after each ankle injury, there is no basis for a
finding of deliberate indifference. Defendants' Memorandum of Law at 9.
It may develop in the course of this case that Defendants will establish
that they acted appropriately and that Plaintiff will not be. able to
show that Defendants Halko, Maw and Figueroa acted in a manner that
evinced "a conscious disregard of a substantial risk of serious harm"
towards Plaintiff. Cuoco v. Moritsugu, 222 F.3d at 107. At this stage of
the litigation, there is no evidence before the Court concerning whether
Defendants Halko, Maw and Figueroa acted
appropriately or inappropriately. In light of Plaintiff's allegations
concerning his continued complaints of pain and swelling, the subsequent
reinjury of his ankle, his allegations that his injury was ultimately
diagnosed as a ruptured Achilles tendon and that he had experienced a
build up of scar tissue because of an untreated condition (Complaint,
¶¶ 53-54), the Court cannot determine that Plaintiff can prove no set
of facts establishing Defendants Halko, Maw and Figueroa's deliberate
indifference. See Hemmings v. Gorcysk, 134 F.3d 104, 108-09 (2d Cir.
1998) ("While we agree that the fact that [plaintiff] received some
medical attention, including two x-rays, substantially weakens his claim
of deliberate indifference, we are not prepared to say that his claim is
so completely devoid of merit as to justify dismissal at this early
stage."); Gill v. Gilder, 95 Civ. 7933, 1996 WL 103837 at *5 (S.D.N.Y.
Mar. 8, 1996) (denying motion to dismiss claim of deliberate indifference
where defendants presented no evidence concerning the appropriateness of
the treatment given to plaintiff). Accordingly, the motion to dismiss
this case against Defendants Halko, Maw and Figueroa is denied.
Plaintiff's allegations concerning Defendant Williams do not
sufficiently set forth a claim for deliberate indifference. The
allegations in the Complaint merely allege that Defendant Figueroa saw
Plaintiff with Defendant Williams after his July 8, 1997 ankle injury
(Id., ¶¶ 34-35) and that Defendats Figueroa and Williams sent
Plaintiff for an x-ray. Id., ¶ 37. Plaintiff makes generalized
assertions in the Complaint that he should have been sent for an MRI
instead of an x-ray (Id., Section IV-A), but the Complaint is devoid of
allegations concerning any specific conduct of Defendant Williams that
could establish that she acted with deliberate indifference.
Accordingly, the Complaint does not state a cause of action under the
Estelle deliberate indifference test against Defendant Williams.
Superintendent Greiner, Mr. Colon and K.A. Greiner
Plaintiff alleges that he filed a grievance and wrote a letter to Mr.
Colon requesting adequate medical care for his ankle injury. Id., ¶¶
21-26. He further alleges that Defendants Superintendent Greiner and Mr.
Colon promised Plaintiff that he would be reexamined by staff
physicians, but that the examinations never took place. Id., ¶
24-28. Plaintiff alleges that he also wrote Defendant K.A. Greiner, Nurse
Administrator, requesting adequate medical care. Id., ¶ 38. He
further alleges that Defendant K.A. Greiner indicated that she would
await the outcome of Plaintiff's grievance filed July 16, 1997. Id.,
¶ 44. Plaintiff alleges that he later was informed by Defendant
Superintendent Greiner that his grievance and the appeal to the grievance
committee were denied and that medical department had acted
appropriately. Id., ¶ 47.
The allegations in the Complaint concerning Defendants Superintendent
Greiner, Mr. Colon and K.A. Greiner, if taken as true, do not preclude
the possibility that Plaintiff could show facts establishing deliberate
indifference on the part of these defendants. Whether Defendant
Superintendent Greiner, Mr. Colon and K.A. Greiner's alleged actions
towards Plaintiff in denying his requests for additional medical
attention rose to the level of a failure to act that evinced a conscious
disregard of a substantial risk of serious harm cannot be determined as a
matter of law at this stage of the litigation. Accordingly, the motion to
dismiss the case
against Defendants Superintendent Greiner, Mr. Colon and K.A. Greiner is
Defendants Obrowiski, Von Hagen and McGinnis
Plaintiff's allegations against Defendants Obrowiski, Von Hagen and
McGinnis, however, fail to rise to the level of a constitutional
violation and, accordingly, are dismissed. In order to recover damages
from a state official under section 1983, the official must have personal
involvement in the alleged constitutional violation. See William v.
Smith, 781, F.2d 319, 323 (2d Cir. 1986); Leonard v. United States,
633 F.2d 599, 621 n. 30 (2d Cir. 1980), cert. denied, 451 U.S. 908(1981).
The Complaint alleges that Defendant Von Hagen indicated to Plaintiff
that she would email the institutions where Plaintiff had been
incarcerated in order to assist him in recovering missing medical records
but that she failed to do so. Id., ¶¶ 57, 59-61. Plaintiff alleges
that he wrote Defendant Obrowiski concerning the missing medical
records, but did not receive an adequate response. Id., ¶¶ 62-69.
Plaintiff alleges merely that Mr. McGinnis affirmed the decision of the
grievance committee that he must contact correctional facilities on his
own to obtain his medical records.
Plaintiff's allegations with respect to Defendants Von Hagen, Obrowiski
and McGinnis, even seen in the most favorable light, do not frame a cause
of action under the Eighth Amendment. Defendants Von Hagen, Obrowiski and
McGinnis did not treat Plaintiff and they did not supervise his
treatment. The allegations in the Complaint do not set forth facts
indicating that their "failure to treat a prisoner's condition . . .
[resulted] in . . . the unnecessary and wanton infliction of pain."
Harrison v. Barkley, 219 F.3d at 136. The allegations in the Complaint
concerning Defendants Von Hagen, Obrowiski and McGinnis could not be
supported by facts that, if proved, would demonstrate that those
Defendants knew of and disregarded an excessive risk to Plaintiff's
health or safety. See, e.g., Hathaway, 37 F.3d at 66. Accordingly, the
Complaint does not state a cause of action under Estelle's deliberate
indifference test against Defendants Von Hagen, Obrowiski and McGinnis
and will be dismissed as against those Defendants.
Defendants argue for dismissal of the Complaint against Defendants
Superintendent Greiner and McGinnis on the ground they are entitled to
qualified immunity. The doctrine of qualified immunity protects
Government officials from suits against them for money damages where
"their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818(1982). A right is "clearly
established" if "[t]he contours of the right [are] sufficiently clear
that a reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635, 640(1987).
Where a right is clearly established, "the defendants may nonetheless
establish immunity by showing that reasonable persons in their position
would not have understood that their conduct was within the scope of the
established prohibition." In re State Police Litigation, 88 F.3d 111, 123
(2d Cir. 1996).
It was clearly established by the date of the events alleged in the
Complaint that inmates have a constitutional right to be protected from
deliberate indifference to medical needs. Thus, Defendant Superintendent
Greiner may not rely on the deference given to medical personnel in
making medical decisions to immunize his alleged inaction in this case.
Moreover, Plaintiff's allegations that Defendant Superintendent Greiner
was deliberately indifferent to his medical needs raise sufficient issues
of fact concerning Defendant Superintendent Greiner's actions towards
Plaintiff to preclude dismissal on qualified immunity grounds at this
stage of the litigation. Accordingly, the motion to dismiss the Complaint
as against Defendant Superintendent Greiner is denied.
As set forth above, the Complaint is devoid of allegations concerning
any specific acts by Mr. McGinnis that amount to a deliberate
indifference to Plaintiff's medical needs under Estelle. The Complaint
will therefore be dismissed as against him. The Court need not reach the
issue of Mr. McGinnis' qualified immunity.
For the foregoing reasons, Defendants' motion to dismiss the Complaint
against Defendants Superintendent Greiner, K.A. Greiner, Dr. Halko, Dr.
Maw, Ms. Figueroa, and Mr. Colon is denied, and the motion is granted as
to Defendants Williams, Von Hagen, Obrowiski and Mr. McGinnis.
A pre-trial conference shall be held in the above-captioned matter on
September 21, 2001 at 2:30 p.m. in Courtroom No. 444, 40 Foley Square,
New York, New York 10007. Defendants' counsel shall arrange for
Plaintiff's telephonic participation in the conference. Any application
for appointment of counsel shall be served and filed by August 31, 2001.