United States District Court, Southern District of New York
March 28, 2002
BILLY JOYNER, PLAINTIFF,
CHARLES GREINER, DR. MAW AND DR. J. PERILLI, DEFENDANTS.
The opinion of the court was delivered by: McMAHON, District Judge.
DECISION AND ORDER GRANTING MOTION TO DISMISS COMPLAINT
Defendants Charles Greiner, Dr. Maw and Dr. Perilli, by their
attorney, Eliot Spitzer, Attorney General of the State of
New York, move to dismiss the complaint pursuant to Federal Rules of
Civil Procedure, Rule 12(b)(1) and 12(b)(6). Their motion is granted.
Plaintiff, who was at all relevant times an inmate in the custody of
the New York State Department of Correctional Services ("DOCS")*fn1
brings this action against defendants, seeking monetary relief in the
amount of five hundred thousand dollars, for the alleged deliberate
indifference to a serious medical condition during the period September
27, 1999 through the spring of 2000, while he was incarcerated at Sing
Sing Correctional Facility ("Sing Sing").
Defendants move to dismiss this complaint on the grounds that: (1)
plaintiff has failed to state a claim against Doctor Maw of deliberate
indifference to serious medical needs upon which relief can be granted;
(2) plaintiff has failed to allege the personal involvement of defendants
Superintendent Greiner and Doctor Perilli in the alleged constitutional
violation; and (3) defendants are entitled to qualified immunity. All
grounds asserted have merit.
Statement of the Case
Plaintiff alleges that on or about September 27, 1999, while
incarcerated at Sing Sing, he was experiencing severe pain in his lower
back which radiated into his buttock and lower leg. Plaintiff was issued
Motrin for his pain. See, Complaint, Section IV. According to plaintiff,
he continued to experience this pain and continued taking his pain
medication. Id. During this period of time, plaintiff saw the physician's
assistant on numerous occasions and had x-rays taken. Id. He also saw
Dr. Maw on one occasion and received physical therapy. Id.
Despite the continuous medical care he received, plaintiff claims that
defendants denied him adequate medical treatment and were deliberately
indifferent to his pain and suffering and serious medical needs. In
support of his claim, plaintiff states that when Doctor Maw examined
him, he advised him that there was nothing wrong with his back and that
the pain he was experiencing was being caused by muscle spasms. Id.
Doctor Maw submitted plaintiffs name for physical therapy which plaintiff
received. Id. Plaintiff also alleges that he wrote to Doctor Perilli, the
head physician at Sing Sing, who replied that there was nothing he could
do unless plaintiff could show that he had a disc problem. Id. According
to plaintiff, he filed a grievance regarding his medical needs which was
denied and subsequently affirmed on appeal by Superintendent Charles
PLAINTIFF FAILS TO STATE A DELIBERATE INDIFFERENCE TO
SERIOUS MEDICAL NEED CLAIM AGAINST DR. MAW
A. Standard of Review
In determining a motion to dismiss for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6), the court must accept the
factual allegations in the complaint as true. Hughes v. Rowe, 449 U.S. 5,
10, 101 S.Ct. 173, 176,
66 L.Ed.2d 163 (1980), see also, Watson v. McGinnis, 964 F. Supp. 127,
129 (S.D.N.Y. 1997). Pro se complaints, like the one involved here, "are
held `to less stringent standards than formal pleadings drafted by
lawyers . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66
L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92
S.Ct. 594, 595, 30 L.Ed.2d 652 (1972)). Thus, a pro se complaint "should
not be dismissed for failure to state a claim 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." 449 U.S. at 10, 101 S.Ct. at
176. See also, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995).
However, dismissal under Rule 12(b)(6) is proper "if the complaint
lacks an allegation regarding an element necessary to obtain relief . . ."
3 Moore's Federal Practice, § 12.34[a], pg. 12-72 (1997).
Thus, the duty to liberally construe a plaintiffs complaint is not the
equivalent of a duty to re-write it for him. Id. at § 12.34[b],
As detailed below, plaintiff has failed to allege facts tending to
establish that the defendants were deliberately indifferent to his
medical needs. Therefore, plaintiff fails to state a claim for an Eighth
Amendment violation, and his complaint must be dismissed.
B. Deliberate Indifference to Serious Medical Need
In order to establish an Eighth Amendment claim arising out of
inadequate medical treatment, a prisoner must prove "deliberate
indifference to [his] serious medical needs." Estelle v. Gamble,
429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). This deliberate
indifference standard embodies both an objective and a subjective prong.
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). First, under the
objective standard, a plaintiff must allege a deprivation "sufficiently
serious" to constitute a constitutional violation. Id. at 66. This
contemplates a condition of urgency, one that may produce death,
degeneration, or extreme pain. Id. Second, under the subjective
component, the defendant prison official must have acted with a
sufficiently culpable state of mind; that is, he must:
know of and disregard 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.
Hathaway, 37 F.3d at 66. There must be some evidence that the health care
providers knowingly and intentionally rendered improper treatment. See,
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811
(1994) (stating that a prison official does not act in a deliberately
indifferent manner towards an inmate unless he "knows of and disregards
an excessive risk to inmate health or safety").
In this case, plaintiff alleges that he was experiencing severe back
pain, over a period of time, that was not adequately treated. Since on a
motion to dismiss pursuant to 12(b)(6) of the Federal Rules of Civil
Procedure, plaintiffs level of pain must be viewed in a light most
favorable to him,*fn2 defendants did not not argue that
plaintiff had failed to plead an objectively serious injury. Cole v.
Artuz, 2000 WL 760749, 2000 U.S. Dist. LEXIS 8117 (S.D.N.Y. June 12,
2000) (holding that a chronic back injury may not be as dramatic as some
other conditions found to satisfy the deliberate indifference standard
[citation omitted] but it is not therefore insufficient as a matter of
Nonetheless, the complaint must be dismissed because plaintiff has not
sufficiently pleaded facts satisfying the subjective component in order
to make out a claim for "deliberate indifference to serious medical
needs." The complaint contains no allegation that defendant, Doctor Maw,
acted "with the requisite culpable mental state." Hathaway, 37 F.3d at
66. There are also no allegations that establish that Doctor Maw
knowingly and intentionally rendered improper treatment or that he knew
of and disregarded a substantial risk of serious harm to the plaintiff.
See, Farmer, 511 U.S. at 837-838, 114 S.Ct. 1970. In addition, plaintiff
has not set forth allegations that Doctor Maw intentionally denied him
needed medical care over a period of time or completely withheld medical
care in order to make out a constitutional violation which can support a
1983 claim. See, Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988);
See also, McBride v. Gomez, 1994 WL 37816, 1994 U.S. Dist. LEXIS 1231
(S.D.N.Y. Feb. 8, 1994) (motion to dismiss granted where plaintiff did
not allege that the defendants acted intentionally to withhold from him
the medication he sought). Accordingly, the one reference to Doctor Maw
in the complaint is not sufficient to meet the standard for pleading
"deliberate indifference." See, Complaint, Section IV.
The complaint on its face does not support a claim of deliberate
indifference to Plaintiff's medical condition. Plaintiff continuously
received pain medication for his back pain, was seen by a physician's
assistant and had x-rays performed to determine the cause of his back
pain. See, Complaint at pp. 4-7. According to plaintiffs allegations, he
was seen by Doctor Maw on only one occasion. See, Complaint, Section IV.
Plaintiff claims that, during his examination, Doctor Maw told him that
there was nothing wrong with his back and that he was having muscle
spasms due to the fact that he had once lifted weights. Id. According to
plaintiff, Doctor Maw informed him that he would submit his name for
physical therapy, which plaintiff received. Id. Despite his admission that
he received medical care and treatment, plaintiff argues that Doctor Maw
was deliberately indifferent to his medical needs, apparently because
Doctor Maw did not prescribe an MRI. See, Complaint, Section IV, Par.
The fact that plaintiff wanted an MRI done does not mean that the
doctor who refused to order one was deliberately indifferent to his
medical needs. Plaintiff alleges nothing more than a mere disagreement
over the kind of treatment that he was given which does not constitute a
constitutional violation. See, Estelle v. Gamble, 429 U.S. at 107, 97
S.Ct. 285. It is well established that a difference of opinion between a
prisoner and prison officials regarding medical treatment does not, as a
matter of law, constitute deliberate indifference. Sonds v. St. Barnabas
Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 309 (citing, Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)). Nor does the fact
that an inmate might prefer an alternative treatment, or feels that he
did not get the level of medical attention he preferred. Dean v.
Coughlin, 804 F.2d 207, 215 (2d Cir. 1986); See also, Estelle v.
Armstrong, 429 U.S. at 106-107, 97 S.Ct. 285 (prisoner not entitled to
treatment by every medical alternative as long as treatment is
reasonable). As long as the medical care is adequate, there is no Eighth
Amendment violation. Wandell v. Koenigsmann, 2000 WL 1036030, 2000 U.S.
Dist. LEXIS 10466, *8 (S.D.N.Y. July 27, 2000). Although a prisoner has a
right to medical care, "there is no right to the medical treatment of
one's choice." McCloud v. Delaney, 677 F. Supp. 230, 232 (S.D.N.Y.
1988). Whether an MRI should have been done "is a classic example of a
matter for medical judgment" as to the appropriate course of treatment
and is not actionable under the Eighth Amendment. id.*fn3
In sum, plaintiff has failed to state a claim against Doctor Maw for an
Eighth Amendment violation for deliberate indifference to a serious
medical need. Accordingly, this claim must be dismissed.
DEFENDANTS CHARLES GREINER AND DR. J. PERILLI WERE NOT PERSONALLY
INVOLVED IN THE ALLEGED CONSTITUTIONAL VIOLATION
Plaintiffs claim against defendants Superintendent Greiner and Doctor
Perilli for deliberate indifference to a serious medical need must also
be dismissed, because plaintiff does not allege the requisite personal
involvement on their part.
It is well settled in this Circuit that, in order to state a cognizable
claim under 42 U.S.C. § 1983, a complaint must contain specific
allegations of "personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages
under 42 U.S.C. § 1983 ." Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995) (quoting, Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994));
see also, Santiago v. Meinsen, 89 F. Supp.2d 435, 442 (S.D.N.Y. February
25, 2000). In this case, plaintiffs allegations regarding defendants
Superintendent Charles Greiner and Doctor Perilli are nothing more than
broad, simple and conclusory statements and do not allege any personal
involvement by these defendants. Therefore, the complaint must be
dismissed as against the defendants.
In cases where the allegation is denial of medical treatment, a claim
is legally sufficient only when it is established that the prison
official who is named as a defendant was "deliberately indifferent either
to a prisoner's existing serious medical needs or to conditions imposing
a substanial risk of serious future harm." Sonds v. St. Barnabas Hosp.
Corr. Health Servs., 151 F. Supp.2d 303, 309 (citing, Estelle v. Gamble,
429 U.S. at 104, 97 S.Ct. 285).
This Circuit has identified five ways in which a defendant may be
personally involved in a § 1983 violation:
(1) the defendant participated directly in the
infraction, (2) the defendant, after being informed of
the violation through a report or appeal, failed to
remedy the wrong, (3) the defendant created a policy
or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy
or custom, (4) the defendant was grossly negligent in
supervising subordinates who committed
wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of inmates by
failing to act on information indicating that
unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d at 873. In the absence of such involvement, a
defendant may not be held liable.
In this case, plaintiff does not allege any facts to support a finding
of personal involvement by either Superintendent Greiner or Doctor
Perilli in plaintiffs alleged Eighth Amendment violation. There is no
indication in the complaint that these defendants were deliberately
indifferent to plaintiffs "serious medical needs". Nowhere is it alleged
that these individuals knowingly and intentionally rendered improper
treatment, in that they knew of and disregarded an excessive risk to
plaintiffs health. See, Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct.
1970. Plaintiff apparently seeks to attach personal liability to these
defendants, especially Superintendent Greiner, based upon their
supervisory positions at Sing Sing, where Greiner is the superintendent
and Perilli the chief medical officer. This, of course, is insufficient
as a matter of law. See, Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.
1985) (Court held that mere "linkage in the prison chain of command" will
not suffice to establish personal involvement).
1. Personal Involvement of Superintendent Greiner
The fact that Superintendent Greiner affirmed the denial of plaintiffs
grievance — which is all that is alleged against him — is
insufficient to establish personal involvement or "to shed any light on
the critical issue of supervisory liability, and more particularly,
knowledge on the part of the defendant." Scott v. Scully, 1997 WL
539951, 1997 U.S. Dist. LEXIS at *11 (granted motion to dismiss claim
against superintendent due to lack of personal involvement where
plaintiff merely alleged that superintendent forwarded complaint letter
and affirmed dismissal of plaintiffs grievance). Plaintiff has not
alleged any facts against Superintendent Greiner to show that he
unconstitutionally interfered with or denied plaintiff any form of
medical treatment. See, Estelle v. Gamble, 429 U.S. at 104-105, 97 S.Ct.
285. Plaintiffs complaint merely states that Superintendent Greiner
affirmed the denial of his grievance. See, Complaint, Section IV, Par.
22. It is well established that "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." Gill v.
Mooney, 824 F.2d 192, 196 (2d Cir. 1987).
Additionally, it is not alleged that Greiner is a doctor, or that he
personally provided (or was capable of providing) plaintiff with medical
care. Rather, it is alleged that he affirmed denial of a grievance
against the two doctors for failing to provide care. But a prison
administrator is permitted to rely upon and be guided by the opinions of
medical personnel concerning the proper course of treatment administered
to prisoners, and cannot be held to have been "personally involved" if he
does so. See, Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 183 (N.D.N.Y.
1996). Therefore, plaintiffs claim against defendant Greiner must be
dismissed due to lack of personal involvement.
2 Personal Involvement of Doctor Perilli
Plaintiffs claim that he sent Doctor Perilli one letter, to which the
doctor responded, is also not sufficient to establish the requisite
personal involvement in unconstitutional conduct. The general rule is that
"an allegation that an official ignored
a prisoner's letter of protest and request for an investigation of
allegations made therein is insufficient to hold that official liable for
the alleged violation." Scott v. Scully, 1997 WL 539951, 1997 U.S. Dist.
LEXIS at *11 (citing, Higgins v. Coombe, 1997 WL 328623, 1997 U.S. Dist.
LEXIS 8418 (S.D.N.Y. June 16, 1997)). Plaintiff claims that he wrote to
Doctor Perilli a letter regarding his medical treatment. See, Complaint,
Section IV, Par. 21. According to plaintiff, Doctor Perilli responded
that there was nothing he could do unless plaintiff could show he had a
disc problem. Id. Inaction following receipt of letters from a prisoner
regarding alleged violations does not automatically render an official
personally liable under Section 1983. See, Ramos v. Artuz, 2001 WL
840131, 2001 U.S. Dist. LEXIS 10327, *20 (S.D.N.Y. July 19, 2001).
"District courts have generally been reluctant to find personal
involvement sufficient to support liability where a prison official's
involvement is limited to the receipt of a prisoner's letters or
complaint." Id. at *21.
Plaintiff argues in his responsive papers that Dr. Perilli's conduct
was constitutionally deficient because the doctor told plaintiff, "there
was nothing he could do," and that the doctor placed on plaintiff "the
responsibility to substantiate any proof or documentation that plaintiff
had indeed experience[d] similar back difficulties sometime in the past."
(Memorandum of Law in Opposition at 4.) However, the offending letter
that is pleaded as the indicium of Dr. Perilli's misconduct reveals that
the facts are otherwise.*fn4 The letter indicates that Dr. Perilli
reviewed plaintiffs chart and most recent x-ray — which showed no
reason for his pain — and then told plaintiff that he should send
Dr. Perilli "the information you requested" concerning prior consults and
x-rays so that it could be copied and made a part of plaintiffs permanent
medical record. Far from establishing deliberate indifference, Dr.
Perilli's letter demonstrates appropriate attention to plaintiffs
circumstances. The Constitution does not impose on prison physicians any
obligation to reconstruct plaintiffs medical history by contacting other
institutions and assembling his records of past treatment.
"Having failed to allege, as [plaintiff] must, that these defendants
were directly and personally responsible for the purported unlawful
conduct, [plaintiffs] complaint is `fatally defective' on its face."
Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 886 (2d Cir. 1987) (quoting
Black v. United States, 534 F.2d 524, 527-528 (2d Cir. 1976)). Thus,
plaintiff cannot prove the requisite personal involvement of these
defendants and, therefore, the complaint must be dismissed against them
for failure to state a claim of deliberate indifference to a serious
DEFENDANTS ARE ENTITLED TO QUALIFIED IMMUNITY
Defendants are entitled to qualified immunity from civil suits arising
from performance of their discretionary functions so long as 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, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396
(1982). Whether an official
may invoke qualified immunity "generally turns on the `objective legal
reasonableness' of the action . . . assessed in light of the legal rules
that were `clearly established'" when the action was taken. Anderson v.
Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)
(citing Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2739). The pertinent
inquiry is how a reasonable official in the defendant's position would
respond. See Cartier v. Lussier, 955 F.2d 841, 843 (2d Cir. 1992);
Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991).
Qualified immunity asks whether the actions of the official were
objectively reasonable at the time they were taken. "Even where the
plaintiffs federal rights and the scope of the official's permissible
conduct are clearly established, the qualified immunity defense protects
a government actor if it was `objectively reasonable' for him to believe
that his actions were lawful at the time of the challenged act." Malsh
v. Austin, 901 F. Supp. 757, 764 (S.D.N.Y. 1995) (citing, Anderson, 483
U.S. at 641, 107 S.Ct. at 3040); Robison v. Via, 821 F.2d 913, 921 (2d
The objective reasonableness test is met — and
the defendant is entitled to qualified immunity
— if "officers of reasonable competence could
disagree' on the legality of defendant's action.
Further, the use of an `objective reasonableness'
standard permits qualified immunity claims to be
decided as a matter of law.
Malsh, 901 F. Supp. at 764.
Applying the analysis to the present case, defendants Superintendent
Charles Greiner, Doctor Maw and Doctor Perilli are entitled to qualified
immunity, since a review of the relevant allegations reveals that their
actions were objectively reasonable and lawful. Plaintiff was
continuously being treated for his back pain. He was receiving pain
medication, was being seen by a physician's assistant and had x-rays
performed to determine the cause of his pain. See, Complaint, Section IV.
When plaintiff complained of back pain to Dr. Maw, he examined
plaintiff, and determined that there was nothing wrong with his back and
that plaintiff was having muscle spasms due to the fact that he had once
lifted weights. See, Complaint, Section IV. Accordingly, Dr. Maw signed
plaintiff up for physical therapy. Id. Plaintiff alleges that, when he
wrote to Doctor Perilli regarding his condition, Doctor Perilli replied
that there was nothing he could do unless plaintiff could demonstrate
that he had a disc problem. Id. at par. 21. Aside from the fact that this
is demonstrably untrue (as revealed by the contents of the letter Perilli
actually wrote), there is nothing objectively unreasonable about a
physician's saying he could do nothing after reviewing x-rays that show no
injury. Finally, Plaintiff claims that Superintendent Charles Greiner
affirmed the denial of the grievance he filed regarding his medical
treatment. Id. at par. 22. But since plaintiffs complaint that the two
doctors were deliberately indifferent to his needs is patently
deficient, there was nothing unreasonable about Greiner's determination.
Based on the facts of this case, there can be no other conclusion other
than that it was objectively reasonable for Dr. Maw to believe that he
was not violating plaintiffs Eighth Amendment right when he diagnosed
plaintiffs condition and recommended that he receive physical therapy. In
addition, it was objectively reasonable for Doctor Perilli to believe
that he did not violate plaintiffs constitutional rights when he stated
that the information before him showed no back injury and asked for
further documentation when plaintiff received same. And it was
for Superintendent Greiner to rely on the investigation conducted by his
staff in affirming the denial of plaintiffs grievance. Accordingly,
defendants Dr. Maw, Doctor Perilli and Superintendent Greiner are
entitled to qualified immunity.
For all the foregoing reasons, the complaint is dismissed with
prejudice. The Clerk of the Court is directed to close the file.*fn5