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JOHNSON v. WRIGHT
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
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).
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 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
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 ...