United States District Court, Southern District of New York
December 6, 2002
JAMES JOHNSON, PLAINTIFF,
LESTER WRIGHT, M.D., M.P.H., ASSOC. COMMISSIONER; GLENN S. GOORD, COMMISSIONER, DOCS; CARL J. KOENINIGSMANN, M.D., FACILITY HEALTH DIRECTOR; ALBERT PAOLANO, M.D.; WILLIAM SMITH, M.D., GREAT MEADOW CORR. FAC.; GEORGE B. DUNCAN, SUPT. GREAT MEADOW CORR. FACILITY AND JOHN E. CUNNINGHAM, JR., M.D., DEFENDANTS.
The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
OPINION AND ORDER
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
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.
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
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
On May 26, 1998, Johnson was given a urinalysis test. Id. ¶ 7. The
next day, Johnson received his results from that
test, which indicated he
had tested positive for "cannabinoid," commonly known as marijuana. Id.
Disciplinary actions were taken against him as a result of the positive
test result. 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.
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
On July 26, 2000, Johnson received a letter from Dr. Cunningham, in
to Johnson's letter to Dr. Wright. Id. ¶ 18. This letter
informed Johnson that he was infected with Hepatitis B as well as Hepatitis
C, that Dr. Cunningham had discussed Johnson's medical condition with Dr.
Paolano and that Dr. Paolano had determined that Rebetron Therapy was "a
relative contraindication to the treatment of Hepatitis `C' [sic]."
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. ¶
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 unusual punishments applicable to the
states. Id. at 101. Accordingly, the Court will treat plaintiff's Amended
Complaint as raising solely a claim under the Eighth Amendment.
A. Legal Standard for Motion to Dismiss
In deciding a motion to dismiss for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), the Court must accept all of Johnson's factual
allegations as true. See Hughes v. Rowe, 449 U.S. 5, 10 (1980); Weinstein
v. Albright, 261 F.3d 127, 131 (2d Cir. 2001) (on motion to dismiss,
court is required to "take as true all of the allegations contained in
plaintiff's complaint and draw all inferences in favor of the plaintiff.")
(citation omitted). "At the Rule 12(b)(6) stage, `[t]he issue is not
whether a plaintiff
is likely to prevail ultimately, but whether the
claimant is entitled to offer evidence to support the claims. Indeed it
may appear on the face of the pleading that a recovery is very remote and
unlikely but that is not the test.'" Chance v. Armstrong, 143 F.3d 698,
701 (2d Cir. 1998) (quoting Branham v. Meachum, 77 F.3d 626, 628 (2d
Cir. 1996)). Where the plaintiff appears pro se, the complaint "[is] held
`to less stringent standards than formal pleadings drafted by lawyers.
. . .'" Hughes, 449 U.S. at 9 (quoting Haines, 404 U.S. at 520). "Since
most pro se plaintiffs lack familiarity with the formalities of pleading
requirements, [a court] must construe pro se complaints liberally,
applying a more flexible standard to evaluate their sufficiency." Lerman,
232 F.3d at 139-40 (2d Cir. 2000) (emphasis in original) (citations
omitted); accord McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a
pro se party's pleadings should be construed liberally and interpreted
"`to raise the strongest arguments that they suggest.'") (quoting Burgos
v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). A pro se complaint should
not be dismissed by a court pursuant to 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." Hughes, 449 U.S. at 10
(citation omitted). Courts must also be "mindful of the care exercised in
this Circuit to avoid hastily dismissing complaints of civil rights
violations." Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001) (citations
B. Plaintiff's Claim of Deliberate Indifference
To succeed in an action brought pursuant to section 1983, a plaintiff
must show that there has been a denial of a constitutional or federal
statutory right and that the deprivation of such right occurred under color
of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48
(1988). Section 1983 does not grant any substantive rights but rather
"provides a procedure for redress for the deprivation of rights established
elsewhere," such as in the Constitution or federal statutes. See Sykes v.
James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied,
512 U.S. 1240 (1994).
In order to establish a violation of the Eighth Amendment arising out of
inadequate medical treatment, a prisoner is required to prove "deliberate
indifference to [his] serious medical needs." Estelle, 429 U.S. at 104.
The deliberate indifference standard consists of both an objective prong
and a subjective prong. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d
Cir. 1994) ("Hathaway I"), cert. denied, 513 U.S. 1154 (1995).
1. Serious Medical Need
Under the objective prong, a prisoner must demonstrate that the alleged
medical need is "sufficiently serious." Id. (citations omitted). A serious
medical need arises where "`the failure to treat a prisoner's condition
could result in further significant injury or the unnecessary and wanton
infliction of pain.'" Chance, 143 F.3d at 702 (quoting Gutierrez v.
Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)) (internal quotation marks and
citations omitted); see also Morales v. Mackalm, 278 F.3d 126, 132 (2d
Cir. 2002) (serious medical need is "`a condition of urgency, one that may
produce death, degeneration or extreme pain.'") (quoting Hathaway I, 37 F.3d
at 8 66). Defendants assert that because Johnson was being treated in some
fashion for his Hepatitis
C, the difference between his treatment by
Interferon as opposed to Rebetron Therapy does not qualify his condition as
"serious" for deliberate indifference purposes and that Johnson also has
not pleaded with the requisite specificity that his condition "degenerated"
during his treatment with Interferon alone. Memorandum of Law in Support of
Defendant's [sic] Motion to Dismiss, dated April 15, 2002 ("Def. Mem."), at
The Court rejects this argument. As the Supreme Court has recently
reiterated, the Federal Rules of Civil Procedure require that a complaint
"must simply `give the defendant fair notice of what the plaintiff's claim
is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A.,
534 U.S. 506
, 512 (2002) (quoting Conley, 355 U.S. at 47); see Fed.R.Civ.P.
8(a). Here, Johnson alleges (1) that his treatment with Interferon was not
adequate to treat his condition, thus amounting to "no treatment at all,"
Pl. Sur-Reply at 2, and (2) that the failure to treat him with Rebetron
Therapy caused him to maintain his state of "relapse." Pl. Opp. at 2.
Although federal courts are reluctant to "second guess medical
judgments and constitutionalize [medical malpractice claims]" where the
prisoner has actually received medical treatment, deliberate indifference
will be found where "the medical attention rendered [was] so woefully
inadequate as to amount to no treatment at all." Westlake v. Lucas,
537 F.2d 857, 860 n. 5 (6th Cir. 1976) (citation omitted). The fact that
a plaintiff received regular medical care does not preclude a finding of
deliberate indifference where the "course of treatment was largely
ineffective and [the defendant] declined to do anything more to attempt
to improve [the plaintiff's] situation." Hathaway I, 37 F.3d at 68; see
also Tolbert v. Eyman, 434 F.2d 625, 626 (9th Cir. 1970) (per curiam)
("Prison officials and medical officers have wide discretion in treating
prisoners," but may be liable where the treatment provided was "so cursory
as to amount to no treatment at all.").
Johnson's allegation that he relapsed during the Interferon treatment due
to the lack of Rebetron Therapy is also sufficient to show deliberate
indifference to his serious medical needs. Johnson alleges that hepatitis,
if not treated properly, would lead him to "suffer severe internal organ
damage, e.g. chronic liver disease, cirrhosis, liver cancer and inevitably
death." Pl. Op. at 16. Case law also recognizes that Hepatitis C qualifies
as a serious condition for purposes of an Eighth Amendment analysis. See
McKenna v. Wright, 2002 WL 338375, at *8 (S.D.N.Y. Mar. 4, 2002) (citing
cases); Carbonnell v. Goord, 2000 WL 760751, at *9 (S.D.N.Y. June 13,
2000). Johnson's allegations are sufficient to demonstrate that he had a
"serious medical need" that was not being addressed by Interferon alone.
2. Defendants' Culpable State of Mind
Under the subjective component of the deliberate indifference
standard, the prisoner must show that the defendant officials acted with
a "sufficiently culpable state of mind" in depriving the prisoner of
adequate medical treatment. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d
Cir. 1995) ("Hathaway II"). "Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner."
Estelle, 429 U.S. at 106. "[T]he subjective element of deliberate
indifference `entails something more than mere negligence . . . [but]
something less than acts or omissions for the very purpose of causing
harm or with knowledge that harm will result.'" Hathaway II, 99 F.3d at
553 (quoting Farmer v. Brennan,
511 U.S. 825, 835 (1994)). In order to be
found "sufficiently culpable," the official must "know of and
disregard an excessive risk to inmate health or safety; the official
must both be aware of facts from which the 10 inference could be drawn
that a substantial risk of serious harm exists, and he must also draw
that inference." Farmer, 511 U.S. at 837.
While the medical care received by the prisoner must be adequate, a
prisoner is not entitled to receive treatment by every medical alternative.
See generally Estelle, 429 U.S. at 106-07. A difference of opinion between
a prisoner and his doctors regarding medical treatment does not rise to the
level of a constitutional violation. See Chance, 143 F.3d at 703; see also
Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 312
(S.D.N.Y. 2001) ("[D]isagreements over medications, diagnostic techniques
. . . forms of treatment, or the need for specialists or the timing of
their intervention, are not adequate grounds for a Section 1983 claim.
These issues implicate medical judgments and, at worst, negligence
amounting to medical malpractice, but not the Eighth Amendment.") (citation
omitted). Generally, "[w]here the dispute concerns not the absence of
help, but the choice of a certain course of treatment . . . [a court] will
not second guess the doctors." Sires v. Berman, 834 F.2d 9, 13 (1st Cir.
1987) (citations omitted).
Nonetheless, "[p]rison officials are more than merely negligent if they
deliberately defy the express instructions of a prisoner's doctors." Gill
v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (citation omitted). Prison
officials may not "substitute their judgments for a medical professional's
prescription." Zentmyer v. Kendall County, 220 F.3d 805, 812 (7th Cir.
2000). "If a defendant consciously chose to disregard a nurse or doctor's
directions in the face of medical risks, then he may well have exhibited
the necessary deliberate indifference." Id. Indeed, in some instances even
prison doctors may be held liable for a failure to provide medical care
recommended by other doctors. See Woods, 2002 WL 731691, at *4-*5
(although plaintiff obtained regular medical care, claim for deliberate
indifference stated where plaintiff alleged that 11 prison doctors had
delayed in complying with and/or had ignored the directives of specialists
over several years).
Defendants have characterized Johnson's allegations of deliberate
indifference as demonstrating nothing more than a disagreement between
Johnson and prison officials over the appropriate treatment method for
his Hepatitis C infection. See generally Def. Mem. at 5-8. The defendants
assert that Johnson "received proper, if not the most advanced, medical
treatment" for his condition because he received Interferon for his
Hepatitis C infection. Def. Mem. at 5. Defendants also argue that Johnson
"was seeking to receive a then brand new therapy approved by the FDA" and
that "while [Johnson] may want the newest treatment as soon as it is
approved by the FDA, the Constitution does not require that the defendants
provide such exceptional care." Def. Mem. at 6. In further support of
their argument that Johnson received adequate medical care, defendants
state that Johnson, by his own admission, "was diagnosed with [Hepatitis
C], was seen by medical staff, was regularly sent to an outside clinic to
treat his illness, and was given the only drug available [prior to the
approval of Ribivarin] to treat his illness." Def. Mem. at 6. Since
Johnson was administered Interferon for his condition, the defendants
reason that the directives of
Johnson's doctors that he should begin
receiving Rebetron Therapy constituted "a mere disagreement over the
proper treatment" which is not actionable as a constitutional violation;
they argue that the disagreement alleged is one "between physicians."
Reply Memorandum in Support of Defendants' Motion to Dismiss, dated June
21, 2002 ("Reply Mem."), at 3.
The defendants' reading of the complaint — in particular, that it
alleges a disagreement "between physicians" — is inconsistent with
the thrust of plaintiff's claim in this matter. Defendants are correct
that if Johnson's claim was one concerning a mere disagreement between
physicians, such allegations would likely not state a claim of deliberate
indifference. See, e.g., Sonds, 151 F. Supp.2d at 312. Johnson's
complaint, however, makes clear that there was no disagreement between
his treating physicians over his proper treatment. Johnson instead
alleges that all of his treating physicians, both inside the prison (Dr.
Scales and Dr. Smith) and outside (Dr. Antonelle), agreed that the
necessary treatment for his condition was the Rebetron Therapy
treatment. Am. Compl. ¶¶ 9, 10, 11, 12, 20. The only disagreement was
between all of the physicians on one hand and the prison administration
on the other — one of whose members was a doctor who never
examined, let alone treated, the defendant. Removing any doubt as to
whether Johnson's claim reflects a difference of opinion over medical
judgments, Johnson further alleges that the basis for the prison
administration's decision was completely unrelated to any medical
judgment. He alleges instead that the decision was based solely on a
prison policy barring treatment where there has been a positive test for
illegal drugs, id. ¶ 12, and that the policy served as a
"punish[ment]" for illegal drug use. Pl. Opp. at 7. In other words, this
case does not involve a disagreement among physicians exercising their
medical judgments as to the appropriate course of treatment of a
In support of their argument for dismissal, the defendants cite to cases
involving prisoners who insisted upon a treatment that had not been
prescribed by any doctor or who disagreed with their doctors' proposed
treatments. See, e.g., Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 811
(10th Cir. 1999); McKenna, 2002 WL 33875, at *8; Carbonell, 2000 WL
760751, at *9. Here, however, Johnson alleges that he was prescribed the
appropriate treatment for a "relapsed" Hepatitis C patient by all of his
treating physicians — namely, Rebetron Therapy — but was denied
this prescribed treatment by prison officials for 15 months. He also
alleges that he was denied this treatment not for any medical reason but
because he had tested positive for "cannabinoid" drugs. See Am. Compl.
¶¶ 8-20, 26; Pl. Opp. at 6-7. Although defendants assert there was a
medical reason for the denial of Rebetron Therapy, that reason may not be
considered on this motion to dismiss. The issue before this Court "is not
whether a plaintiff is likely to prevail ultimately, but whether the
claimant is entitled to offer evidence to support the claims." Chance, 143
F.3d at 701 (internal quotation marks and citations omitted). The amended
complaint thus states a claim under the Eighth Amendment.
III. PERSONAL INVOLVEMENT AND SECTION 1983
It is well established that personal liability under section 1983 cannot
be imposed upon a state official based on a theory of respondeat superior.
See, e.g., Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). "It 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' and that a complaint must allege such personal involvement."
Johnson v. Coombe, 156 F. Supp.2d 273, 278 (S.D.N.Y. 2001) (quoting Wright
v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (in turn quoting Moffit v. Town
of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991))). The Second Circuit has
held that a defendant state official has the requisite personal involvement
for section 1983 liability where:
(1) the defendant participated directly in the alleged
constitutional violation, (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 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 865, 873 (2d Cir. 1995) (citation omitted).
The Second Circuit has also held that an allegation seeking to impose
liability on a defendant based on supervisory status, without more, will
not subject the official to section 1983 liability. See Ayers v. Coughlin,
780 F.2d 205, 210 (2d Cir. 1985) (per curiam) (a mere "linkage in the
prison chain of command" is not sufficient to demonstrate personal
involvement for purposes of section 1983). Thus, it appears that the second
example listed in Colon — permitting supervisory liability where a
"defendant, after being informed of the violation through a report or
appeal, failed to remedy the wrong," — should not be too broadly
construed. First, to allow a mere letter to an official to impose
supervisory liability would permit an inmate to place liability on
individuals who had no authority over the situation complained of merely by
sending letters. Second, the origin of this second example, United States
ex rel. Larkins v. Oswald 510 F.2d 583, 589 (2d Cir. 1975), involved a
supervisory official who was mandated by regulation to receive reports of
certain prison conditions.
As a result, a number of courts have held that "it is well-established
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 violations."
Greenwaldt v. Coughlin, 1995 WL 232736, at *4 (S.D.N.Y. Apr. 19, 1995)
(citations omitted); accord Rivera v. Goord, 119 F. Supp.2d 327, 344
(S.D.N.Y. 2000) (allegations that inmate wrote to prison officials and
was ignored insufficient to hold those officials liable under section
1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. Oct. 23, 1998)
("Receiving letters or complaints . . . does not render [prison
officials] personally liable under § 1983."); Watson v. McGinnis,
964 F. Supp. 127, 130 (S.D.N.Y. 1997) ("The law is clear that allegations
that an official ignored a prisoner's letter 15 are insufficient to
establish liability.") (citations omitted). As one court noted, "if mere
receipt of a letter or similar complaint were enough, without more, to
constitute personal involvement, it would result in liability merely for
being a supervisor, which is contrary to the black-letter law that §
1983 does not impose respondeat superior liability." Walker v. Pataro,
2002 WL 664040, at *12 (S.D.N.Y. Apr. 23, 2002) (emphasis in original).
Personal involvement will be found, however, where a supervisory official
receives and acts on a prisoner's grievance or otherwise reviews and
responds to a prisoner's complaint. See, e.g., Ramos v. Artuz, 2001 WL
840131, at *8-*10 (S.D.N.Y. July 25, 2001)
(personal liability where
prison official "sent plaintiff numerous letters containing some
explanation or justification concerning the issues raised by
plaintiff"); cf. Johnson v. Bendheim, 2001 WL 799569, at *6 (S.D.N.Y. July
13, 2001) (motion to dismiss denied as to prison official who received
prisoners' grievances and denied them); James v. Artuz, 1994 WL 174005, at
*7 (S.D.N.Y. May 4, 1994) (denying summary judgment where a prison
official conducted a de novo review of a prison disciplinary hearing);
Van Pelt v. Finn, 1993 WL 465297, at *6 (S.D.N.Y. Nov. 12, 1993) (prison
official demonstrated personal involvement when he reviewed plaintiff's
With these principles in mind, each defendant is discussed in turn.
Goord. Goord is the Commissioner of the Department of Correctional
Services. Johnson has alleged that he wrote a letter to Goord on June 16,
2000 concerning the denial of Rebetron Therapy to Johnson. Other defendants
responded to that letter. Am. Compl. ¶¶ 16, 21. As noted, a letter of
this kind cannot create personal liability.
Johnson also states vaguely that Goord "was acutely aware of plaintiff's
medical situation due to correspondence/communications received from
plaintiff, and other levels of his administration." Am. Compl. ¶
30. Mere awareness of a constitutional violation, however, is insufficient
to impose liability.
Johnson does allege, however, that Goord was "grossly negligent in
supervising [his] subordinates." Am. Compl. ¶ 30. It is also apparent
that Johnson is alleging that this failure to supervise resulted in
Johnson's failure to get the Rebetron Therapy. Allegations of this kind are
sufficient to establish liability. See Colon, 58 F.3d at 873; accord Poe
v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002). While defendants contend that
this allegation is conclusory, it is sufficient to give Goord notice of the
particular claim being made and thus must be accepted by the Court for
purposes of a motion to dismiss. See Swierkiewicz, 534 U.S. at 512.
Accordingly, Goord may not be dismissed as a defendant.
Duncan. Johnson alleges that Duncan is the Superintendent of the
facility in which he was housed; "was acutely aware of plaintiff's
medical situation due to correspondence/communications received from
plaintiff," Am. Compl. ¶ 29; and "intentionally ignored plaintiff's
correspondence/communications." Pl. Opp. at 9. There is no allegation
that Duncan replied to this correspondence or took any other action in
regard to the correspondence. Again, an allegation that a prison official
received correspondence and did not act on it does not state a claim for
personal involvement under section 1983.
Nonetheless, Johnson does allege that Duncan was "grossly negligent in
supervising [his] subordinates." Id. Duncan was allegedly responsible for
the supervision of the individuals who declined to prescribe the Rebetron
Therapy. Thus, the allegation does state a claim under Colon and Duncan
must remain as a defendant.
Dr. Paolano. Johnson alleges that Dr. Paolano had discussions regarding
Johnson's condition with Dr. Cunningham, Am. Compl. ¶ 18, and related
"some misinformation" to defendant Cunningham concerning Johnson's
infection with Hepatitis B. Id. ¶ 24. There are no allegations that
Dr. Paolano acted on any of the correspondence he received. Accordingly,
Johnson has failed to plead any personal involvement on the part of Dr.
Dr. Cunningham. Dr. Cunningham is alleged to be the regional medical
director of several prison facilities. Am. Compl. § III(C); Pl. Opp.
at 12. Johnson claims that Dr. Cunningham (allegedly on behalf of Dr.
Wright) wrote a letter received by Johnson on July 26, 2000, informing
Johnson that he was infected with Hepatitis B as well as Hepatitis C and
that Rebetron Therapy was contraindicated for individuals infected with
Hepatitis B. Am. Compl. ¶ 18. The denial contained in Dr.
Cunningham's letter was premised on the medical judgments of Dr.
Cunningham (allegedly in consultation with Dr. Paolano), that Johnson was
also infected with Hepatitis B and thus treatment with Rebetron Therapy
was not advisable. Id. The July 26, 2000, denial stands in contrast with
the original denial of Rebetron Therapy to Johnson, which was premised on
the fact that Johnson had tested positive for "cannabinoid" drugs, id.
¶ 12, and which was allegedly punitive in nature. See Pl. Opp. at 7.
Although Johnson learned on July 27, 2000 that in fact he was not
infected with Hepatitis B, Am. Compl. ¶ 19, and was informed the
next day (through correspondence from Dr. Wright) that he had been
approved for Rebetron Therapy, id. ¶ 21, this allegation demonstrates
that Dr. Cunningham had merely made an error in his diagnosis and
treatment recommendations. Such an error would constitute at best only
negligence and thus is not actionable as a constitutional violation. See
Estelle, 429 U.S. at 106 ("Medical malpractice does not become a
constitutional violation merely because the victim is a prisoner.")
Moreover, as Johnson was approved for Rebetron Therapy the day after
receiving Dr. Cunningham's letter, Am. Compl. ¶¶ 18, 21, the letter
plainly played no role in the denial or delay of Johnson's treatment with
Ribivarin. Thus, Dr. Cunningham must be dismissed as a defendant.
Dr. Smith. Johnson alleges that Dr. Smith was his primary health care
provider at Great Meadow. Pl. Opp. at 9; see Am. Compl. § III(C).
Johnson claims that Dr. Smith requested that Johnson be treated with
Rebetron Therapy, Am. Compl. ¶ 20, an allegation that certainly cannot
qualify as personal involvement in the denial of Johnson's Rebetron
Therapy. The only allegation Johnson has made concerning Dr. Smith's
personal involvement in Johnson's alleged mis-treatment is that Dr. Smith
has not seen him since the Rebetron Therapy began in August 2000. Id.
¶ 25. Johnson does not allege, however, that he has presented any
medical complaints that have been ignored or that Dr. Smith's failure to
visit him has caused him any serious harm or interfered with his
treatment. He also does not allege that Dr. Smith was involved at any time
with the denial of Rebetron Therapy to Johnson. Accordingly, Johnson has
failed to plead the requisite personal involvement of Dr. Smith for
purposes of section 1983 liability.
In sum, the Amended Complaint must be dismissed as to Dr. Cunningham,
Dr. Paolano and Dr. Smith. Defendants have not attempted to argue that Dr.
Koenigsmann and Dr. Wright were not personally involved in the alleged
violation. Accordingly, they remain as defendants in this matter along with
Goord and Duncan.
IV. QUALIFIED IMMUNITY
Qualified immunity is a defense to section 1983 liability. See, e.g.,
Siegert v. Gilley, 500 U.S. 226, 231 (1991). It is well established that
"government officials performing discretionary functions generally are
shielded from liability for civil damages insofar as their conduct does not
19 violate clearly established statutory or constitutional rights of which
a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982) (citations omitted); accord Richardson v. Selsky, 5 F.3d 616,
621 (2d Cir. 1993) ("Public officials are entitled to qualified immunity"
from suit where "their conduct does not violate a clearly established
statutory or constitutional right.") (citation omitted). A public official
is immune from suit if it was not clear to the official at the time of the
acts complained of that "the interest asserted by the plaintiff was
protected by a federal statute or by the Constitution." Robison v. Via,
821 F.2d 913, 920 (2d Cir. 1987) (citation omitted).
In determining whether the defendants are entitled to uqualified
immunity, the court must initially decide whether "the facts alleged show
the officer's conduct violated a constitutional right." Saucier v. Katz,
533 U.S. 194, 201 (2001). If the official's conduct was violative of the
plaintiff's constitutional rights, as has been alleged here, the court
must then determine whether the right in question was clearly established
at the time the violation occurred. See id. at 202 (it must be "clear to
a reasonable officer that his conduct was unlawful in the situation he
confronted") (citation omitted). The Second Circuit has held that
defendants are entitled to qualified immunity when "(a) the defendant's
action did not violate clearly established law, or (b) it was objectively
reasonable for the defendant to believe that his action did not violate
such law." Poe, 282 F.3d at 132-33 (quoting Tierney v. Davidson,
133 F.3d 189, 196 (2d Cir. 1998)); accord Loria v. Gorman, 306 F.3d 1271,
1281-82 (2d Cir. 2002). "The availability of the defense depends on
whether `a reasonable [public official] could have believed' his action
`to be lawful, in light of clearly established law and the information
[he] possessed.'" Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996)
(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)) (internal quotation
marks and citation 20 omitted).
1. Violation of Clearly Established Law
The Supreme Court recently addressed the issue of what constitutes
"clearly established law" for purposes of the qualified immunity defense.
See Hope v. Pelzer, 122 S.Ct. 2508 (2002). In Hope, the Court rejected a
circuit court's ruling that to meet the "clearly established law" test, the
facts of previous cases must be "materially similar" to the claims brought
by the plaintiff in order to establish that the defendants had violated
"`clearly established statutory or constitutional rights of which a
reasonable person would have known.'" Id. at 2515 (quoting Harlow, 457
U.S. at 818). The Court, quoting its previous decision in United States v.
Lanier, 520 U.S. 259 (1997), noted that
[i]n some circumstances, as when an earlier case
expressly leaves open whether a general rule applies to
the particular type of conduct at issue, a very high
degree of prior factual particularity may be necessary.
But general statements of the law are not inherently
incapable of giving fair and clear warning, and in other
instances a general constitutional rule already
identified in the decisional law may apply with obvious
clarity to the specific conduct in question, even though
"the very action in question has [not] previously been
Hope, 122 S.Ct. at 2516 (quoting Lanier, 520 U.S. at 270-71) (citation
omitted). The Court held that
officials can still be on notice that their conduct
violates established law even in novel factual
circumstances. Indeed, in Lanier, we expressly
rejected a requirement that previous cases be
"fundamentally similar." Although earlier cases
involving "fundamentally similar" facts can provide
especially strong support for a conclusion that the
law is clearly established, they are not necessary to
such a finding. The same is true of cases with
"materially similar" facts. Accordingly, pursuant to
Lanier, the salient question [a court] ought to 
ask is whether the state of law [at the time of the
alleged violation] gave [defendants] fair warning that
their alleged treatment of [the plaintiff] was
Hope, 122 S.Ct. at 2516.
A court analyzing a qualified immunity claim must look to what "the
state of the law" was at the time of the violation in order to determine
whether the law in question was clearly established. See id. At the time
of the alleged violations in 1999-2000, the law regarding claims of
inadequate medical treatment under the Eighth Amendment put defendants on
notice that the Eighth Amendment is violated where a prisoner is
deliberately not given medically necessary and available treatment. See,
e.g., Farmer, 511 U.S. at 837; Estelle, 429 U.S. at 106; Hathaway I, 37
F.3d at 67-68. This principle clearly covered the claim in the instant
case: that it was improper for a prison official to refuse to provide an
available treatment — with no medical justification underlying the
decision — where that treatment had been recommended unanimously by
prison and outside treating doctors and was deemed necessary by them for
the prisoner to combat a serious illness such as Hepatitis C. Gill even
more specifically alerted the defendants to the applicability of Eighth
Amendment law in this case when it held that prison officials violate the
Eighth Amendment "if they deliberately defy the express instructions of a
prisoner's doctors." 824 F.2d at 196. All these cases, among others
setting forth the deliberate indifference standard, gave "fair and clear
warning," Hope, 122 S.Ct. at 2516 (quoting Lanier, 520 U.S. at 271), to
defendants that the actions alleged here were unconstitutional.
2. Objective Reasonableness of Officers' Actions
It is not sufficient for the qualified immunity analysis to determine
that the right violated was clearly established at the time of its
violation. An additional inquiry must be made: whether it was "objectively
reasonable for the defendant to believe that his action did not violate
such law." Poe, 282 F.3d at 133 (quoting Tierney, 133 F.3d at 196). "If the
officer's mistake as to what the law requires is reasonable, . . . the
officer is entitled to [immunity]." Saucier, 533 U.S. at 205; accord
Loria, 306 F.3d at 1281-82. One way to demonstrate that a mistake was
reasonable would be to show that "reasonable officers would disagree about
the legality of the defendant['s] conduct under the circumstances." Lennon
v. Miller, 66 F.3d 416, 421 (2d Cir. 1995); accord Cerrone v. Brown,
246 F.3d 194, 202 (2d Cir. 2001) (defendant entitled to qualified immunity
where "officers of reasonable competence could disagree on the legality of
the defendant's actions.") (internal quotation marks and citation
For purposes of making this determination, the Court is obliged to
consider whether the defendants have shown that plaintiff can prove "no set
of facts," Conley, 355 U.S. at 45, that would overcome the immunity bar.
Here, plaintiff has alleged that he was denied vital
medical treatment for
a serious illness solely as punishment because he tested positive for
marijuana and not for any medical reason. Accepting this allegation as
true, the Court concludes that officers of reasonable competence would
agree that this was not a valid basis for denying medical treatment.
The defendants have asserted that there was a valid medical justification
for the treatment decision — that "drug" use (apparently including
marijuana) is incompatible with treatment for Hepatitis C. See Def. Mem. at
14 (citing Gary L. Davis & James R. Rodrigue, Treatment of chronic
hepatitis C in active drug users, New England Journal of Medicine, Vol.
345, No. 3 (July 19, 2001)). Defendants' argument, however, relies on
medical evidence outside the complaint (and, indeed, outside the record),
and thus cannot be considered on a motion to dismiss. They do not even
offer a legal argument as to why the Court could consider this evidence.
In support of their argument for qualified immunity, defendants also
point out that "it is objectively reasonable for high level prison officials
that [sic] are not medical doctors to refrain from interfering in the
medical treatment of inmates." Reply Mem. at 6 (citing Cuoco v. Moritsugu,
222 F.3d 99, 110-11 (2d Cir. 2000)). The plaintiff of course is not arguing
that prison administrators improperly refrained from intervening in his
treatment. He is alleging just the opposite: that they interfered with his
medical treatment for reasons unrelated to any medical need. Obviously,
Cuoco provides no support for the defendants' position.
For these reasons, the defendants' motion to dismiss on grounds of
qualified immunity must be denied.
Conclusion For the foregoing reasons, the defendants' motion to dismiss
is granted as to defendants Cunningham, Paolano and Smith. The motion to
dismiss is denied as to defendants Goord, Duncan, Wright and Koenigsmann.