The opinion of the court was delivered by: Robert W. Sweet, Senior District Judge
The defendants Lester Wright, M.D. ("Dr. Wright"), Ernest Lofton, M.D. ("Dr. Lofton"), Philip Williams, P.A. ("Williams"), David O'Connell, M.D. ("Dr. O'Connell"), Harry Mamis, M.D. ("Dr. Mamis"), and Carl Koenigsmann, M.D. ("Dr. Koenigsmann") (collectively, the "Defendants"), have moved pursuant to 42 U.S.C. § 1997e(a) and (c), 28 U.S.C. § 1915(e)(2)(B)(i) and Rules 12(b)(1) and (6), Fed.R.Civ.P., to dismiss the complaint of plaintiff Roger Sulton ("Sulton"), presently incarcerated in Green Haven Correctional Facility. For the reasons set forth below, the motion is denied.
Sulton filed his complaint pro se on February 2, 2000 (00 Civ. 0727), asserting claims under 28 U.S.C. § 1983 for violation of his constitutional rights under the Eighth Amendment for acting with deliberate indifference to his medical needs and seeking monetary damages.
The Defendants moved to dismiss the action for Sulton's failure to exhaust his administrative remedies. By an opinion of December 11, 2001, the complaint was dismissed without prejudice to renewal in the event Sulton exhausted his administrative remedies. Sulton v. Greiner, 2000 U.S. Dist. LEXIS 77887 (S.D.N.Y. Dec. 11, 2000) (the "December 11 Opinion").
On September 9, 2001, Sulton filed another action (01 Civ. 8294), again alleging Eighth Amendment violations arising out of his medical care. He retained counsel and on September 27, 2002, filed an amended complaint adding as defendants Drs. Wright, Lofton, O'Connell, Mamis and Koenigsmann (the "Complaint").
The Defendants moved to dismiss the amended Complaint for Sulton's failure to exhaust his administrative remedies and to state a claim of deliberate indifference and also on the grounds of the Defendants' qualified immunity. The motion was marked fully submitted on March 12, 2003.
The facts as described below are derived from the Complaint and the submissions of the parties and do not constitute findings by the Court.
Sulton is an inmate in the custody of the New York State Department of Correctional Services (the "Department"). Dr. Wright is an Assistant Commissioner of the Department and its Chief Medical Officer, Dr. Lofton is the Facility Health Services Director at Sing Sing, Williams is a physician's assistant at Sing Sing, Dr. O'Connell is a physician at Wende Correctional Facility, Dr. Mamis is a primary care physician at Green Haven Correctional Facility, and Dr. Koenigsmann is the Facility Health Services Director at Green Haven Correctional Facility.
On October 8, 1998, while incarcerated at Sing Sing, Sulton fell and injured his left knee and the next day was seen by Dr. O'Connell and physician's assistant Williams who ordered x-rays, pain-killers and a cane. When Sulton's condition did not improve, an MRI (magnetic resonance imaging) was ordered on October 20, 1998, and was taken on November 30, 1998, showing that Sulton had accumulated fluid on the knee as well as tears of the anterior and posterior cruciate ligaments of the knee.
On December 23, 1998, a request was made to refer Sulton to an orthopedic specialist, and he was seen by one on April 23, 1999, who ordered a hinged brace and surgery to repair the ligaments. The referral for the brace was denied by the utilization review committee of the Department's health services vendor, CPS, on June 22, 1999, but resubmitted only ten days later on July 2, 1999. It was then approved and Sulton was measured for the brace on July 19, 1999.
On July 27, 1999, Williams and Dr. Lofton requested approval for the knee surgery. CPS denied this, disagreeing with the orthopedist's recommendation for the surgery and instead advising physical therapy along with the brace, which Sulton received on August 23, 1999.
Physical therapy was approved on September 15, 1999, but Sulton was transferred in September 1999 to Wende Correctional Facility before it started.
Sulton began physical therapy after his transfer to Wende. Dr. O'Connell requested a consultation with an orthopedist, specifically asking if a procedure was necessary. Sulton was examined by an orthopedist on January 14, 2000, when his condition was characterized as urgent in light of a recent fall which had resulted in a tear of the right Achilles tendon and restricted Sulton to a wheelchair. According to Sulton, the right ankle injury would not have occurred if he had received the surgery on his left knee.
Sulton had the Achilles tendon surgery in late January 2000. He resumed physical therapy following the surgery. Knee surgery was put on hold while Sulton's Achilles tendon condition was resolved.
The knee condition remained unstable and in May 2000, Dr. O'Connell reported that he injured the right Achilles tendon again. In August 2000, Dr. O'Connell referred Sulton back to an orthopedic specialist, asking if a procedure was necessary for either the left knee or the right Achilles tendon. In November 2000, the orthopedist recommended knee surgery, noting that its instability caused it to buckle and collapse. In December 2000, the knee surgery was cancelled because the surgeon ordinarily used at Wende was not available, and Sulton was transferred to Green Haven Correctional Facility.
Sulton arrived at Green Haven in December 2000, where Dr. Mamis and Dr. Koenigsmann referred Sulton to an orthopedist, Dr. Holder, a non-defendant and non-employee of the Department, with a note that he had been recommended for surgery at Wende. On January 2, 2001, surgery was again recommended because of the continued instability and muscle atrophy of the knee, but a note was made that the surgery would require a tissue graft (that is from a cadaver) which might take three to four months to order. The tissue graft did not become available and in August 2001 Dr. Holder reported that it might not become available for up to twelve months and ordered more physical therapy in the interim. Dr. Holder also twice recommended soft boots for the Achilles tendon scars, but these were denied by Dr. Mamis.
Sulton had the knee surgery on September 12, 2002.
Dr. Wright adopted the CPS utilization review mechanism for approving specialist consultation, but has since abandoned the use of outside vendors for review and is responsible for overseeing the system which coordinates medical care for transferring inmates. The Complaint does not allege that Dr. Wright had any personal involvement or knowledge of Sulton's medical treatment.
On August 21, 2000, Sulton filed inmate grievance complaint no. WDE014977-00, while at Wende Correctional Facility, alleging that the medical staff at that facility continued to send him to physical therapy which was not proper treatment for torn ligaments. He asked to receive proper care. On September 13, 2000, Wende's superintendent granted the grievance to the extent that Sulton had been referred to an outside specialist. Sulton appealed to the Central Office Review Committee ("CORC). On October 25, 2000, CORC sustained the superintendent's decision, noting that Sulton had received an MRI in June 2000 and saw the orthopedist in September and October of that year.
On January 12, 2001, Sulton filed grievance number GH45947-01 at Green Haven, complaining about being transferred to Green Haven while his knee surgery had been pending at Wende, although he had requested to be closer to New York City. Sulton's grievance was affirmed by the superintendent to the extent that Sulton had requested the transfer and had been evaluated and received treatment for his condition since arriving at Green Haven. Sulton appealed to CORC which sustained the superintendent on March 28, 2001. CORC requested notification as to when the operation was performed, but on April 4, 2001, Green Haven reported that the ...