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December 6, 2002


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Defendants Glenn S. Goord; Albert Paolano, M.D.; William Smith, M.D.; George B. Duncan; Lester Wright; Carl J. Koenigsmann, M.D.; and John E. Cunningham, Jr., M.D. move this Court to dismiss plaintiff James Johnson's pro se amended complaint. The parties have consented to the disposition of this matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the defendants' motion is granted in part and denied in part.


A. Background

Johnson filed the original complaint in this matter on March 13, 2001, pursuant to 42 U.S.C. § 1983 alleging that the defendants deprived him of his civil rights under the Eighth and Fourteenth Amendments to the Constitution due to their failure to provide him with medical treatment. After the defendants moved to dismiss that complaint, Johnson sought and obtained permission to file an Amended Complaint ("Am. Compl."). Defendants have now moved to dismiss the Amended Complaint.

For purposes of this motion only, the Court accepts the facts alleged in the complaint to be true. In light of Johnson's pro se status, the Court will also deem the factual allegations contained in Johnson's briefs to supplement his amended complaint. See, e.g., Woods v. Goord, 2002 WL 731691, at *1 n. 2 (S.D.N.Y. Apr. 23, 2002) (considering pro se prisoner's factual allegations in briefs as supplementing the complaint); Burgess v. Goord, 1999 WL 33458, at *1 n. 1 (S.D.N.Y. Jan. 26, 1999) ("In general, `a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum.'") (quoting Gadson v. Goord, 1997 WL 714878, at *1 n. 2 (S.D.N.Y. Nov. 17, 1997)) (citations omitted). Examining such materials is consistent with the principle that a court may not dismiss a pro se complaint unless it is "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 521 (1972) (per curiam) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); accord Lerman v. Bd. of Elections, 232 F.3d 135, 140 (2d Cir. 2000), cert. denied, 533 U.S. 915 (2001).

B. Johnson's Allegations

From February 28, 1997 until November 9, 1999, Johnson was incarcerated at Green Haven Correctional Facility ("Green Haven"). Am. Compl. ¶ 1. On April 24, 1997, Johnson 2 went to Green Haven's medical clinic complaining of "several illness[es]." Id. ¶ 2. He was seen by medical personnel at Green Haven and was transported later that day from Green Haven to St. Agnes Hospital ("St. Agnes") in White Plains, New York. Id. At the time of his admission to St. Agnes, he had a glucose reading of "well over 500." Id.

Johnson was diagnosed with "Grade III, Stage III, with bridging fibrosis, approaching Cirrhosis positive for Chronic Hepatitis `C' virus." Id. ¶ 3. Johnson was discharged from St. Agnes on May 10, 1997, and transferred back to Green Haven. Id. ¶ 4. He was instructed to report to the "G.I. Clinic" in three months from the date of his discharge. Id. Johnson continued to be seen at Green Haven by Dr. Antonelle, a doctor from the G.I. Clinic, every three months. Id. ¶ 5. In February 1998, Johnson began treatment for Hepatitis C with the drug Interferon. Id. ¶ 6. He received intravenous injections of Interferon three times a week. Id.

On June 3, 1998, the Food and Drug Administration ("FDA") approved a combination of two drugs for treatment of Hepatitis C. Id. ¶ 8. This new treatment was called "Rebetron Therapy Combination" ("Rebetron Therapy") and consisted of Interferon used in conjunction with Ribivarin. Id. Rebetron Therapy is the only medical treatment that has been prescribed by the FDA for Hepatitis C patients who have relapsed during their treatment with Interferon alone. Plaintiff's Response to Defendant's [sic] Reply, dated July 2, 2002 ("Pl. Sur-Reply"), at 1.

Sometime after this, Johnson "relapsed" while on Interferon alone. See Response in Opposition, dated June 4, 2002 ("Pl. Opp."), at 2. Accordingly, on February 4, 1999, Johnson's health care provider at Green Haven, Tom Scales, M.D., requested that Johnson be treated with Ribivarin "as soon as approval can be obtained." Am. Compl. ¶ 9. On May 19, 1999, Dr. Antonelle, to whom Johnson had been referred, also stated that Johnson should be on Ribivarin. Id. ¶ 10. Dr. Scales consulted with Dr. Koeningsmann on May 24, 1999, and requested that the GI clinic give Johnson Ribivarin. Id. ¶ 11. However, Johnson was "refused [Ribivarin] treatment because of a bad urine test for marijuana," a refusal that was mandated by a Department of Correctional Services ("DOCS") policy. Id. ¶ 12. On August 27, 1999, Johnson was seen by Dr. Antonelle, who wrote that he felt that the DOCS policy should not preclude the prescription of Ribivarin for Johnson and requested that Johnson be approved for Rebetron therapy. Id. In the interim, Dr. Antonelle increased the dosage of Interferon taken by Johnson. Id. Dr. Koenigsmann was the prison official who denied the requests of Johnson's doctors that he be treated with Rebetron Therapy. Id. ¶ 23.

On August 30, 1999, Johnson contacted defendant Lester Wright, M.D. about the DOCS policy regarding the denial of Rebetron Therapy to those who had tested positive for marijuana. Id. ¶ 13. Dr. Wright failed to answer Johnson's correspondence. Id.

On November 9, 1999, Johnson was transferred to Great Meadow Correctional Facility ("Great Meadow"). Id. ¶ 14. On June 15, 2000, Johnson filed a grievance against the defendants' policy (allegedly authored by Dr. Wright, see id. ¶¶ 13, 15) of denying Hepatitis C treatment to prisoners who had tested positive for drugs and requested that he be allowed to receive Rebetron Therapy. Id. ¶ 15. On June 16, 2000, Johnson wrote to Dr. Wright and 4 Commissioner Goord concerning the denial of his treatment with Rebetron Therapy. Id. ¶ 16. Dr. Wright instructed Dr. Cunningham to respond to Johnson's letter, which he did on July 25, 2000. Id.

Johnson was interviewed by an administrative nurse at Great Meadow on July 7, 2000, regarding his grievance. Id. ¶ 17. He was told that he had to complete successfully a substance abuse program to be considered for Rebetron Therapy. Id. Johnson informed her that he had already completed such a program while at Green Haven. Id. Subsequently, Johnson presented his certificate from that substance abuse program to the administrative nurse. Id. Johnson had received this certificate prior to the denial of Rebetron Therapy. Pl. Opp. at 16. The nurse also ordered a blood test, which took place on July 20, 2000. Am. Compl. ¶ 17

Dr. Cunningham also recommended that Johnson direct his medical concerns to the medical staff at Great Meadow. Id. The letter indicated that copies had been sent to Dr. Wright, Dr. Paolano and Duncan. Id. On July 27, 2000, the result from Johnson's July 20, 2000, blood test came back negative for Hepatitis B. Id. ¶ 19.

On August 7, 2000, the administrative nurse, in conjunction with Dr. Smith, asked Dr. Wright to permit Johnson to be given Rebetron Therapy. Id. ¶ 20. On July 28, 2000, Johnson received a letter from Dr. Wright in response to a letter sent by Johnson to Commissioner Goord on June 16, 2000. Id. ¶ 21. The letter informed Johnson that his request for Rebetron therapy had been approved. Id. On August 7, 2000, Johnson received his first treatment with Rebetron Therapy. Id. ¶ 22.


Johnson's amended complaint seeks both monetary damages and injunctive relief on the ground that the defendants' failure to provide him with Rebetron Therapy violated his rights under the Eighth and Fourteenth Amendments.*fn2 See Am. Compl. ¶¶ 34-56. The facts alleged in the Amended Complaint, however, only bear on violations under the Eighth Amendment, which prohibits by virtue of the Cruel and Unusual Punishments Clause the "deliberate indifference to [a prisoner's] serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). The only relevance of the Fourteenth Amendment is that its Due Process Clause makes the Eighth Amendment's bar on cruel and ...

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