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January 21, 2004.

EDWARD McKENNA Plaintiff -against- LESTER N. WRIGHT, et al. Defendants

The opinion of the court was delivered by: HAROLD BAER, JR., District Judge


Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P.") to dismiss plaintiff Edward McKenna's ("plaintiff or "McKenna") § 1983 claims for violations of the Eight and Fourteenth Amendments, on the basis that some defendants lack the requisite personal involvement and all are protected by qualified immunity. For the foregoing reasons, defendants' motion is granted-in-part and denied-in-part.


 A. Factual Background

 1. McKenna's Medical History

  McKenna, now fifty-seven, began serving his current sentence at the New York Department of Correctional Services' ("DOCS") Green Haven Correctional Facility ("Green Haven") on February 27, 1990. Amended Complaint ("Am. Compl.") ¶ 52. When McKenna entered Green Haven, he informed the relevant DOCS personnel that he "had a history of intravenous drug use, had been diagnosed with a sexually transmitted disease ("STD"), had served in the Vietnam War and had spent prior time in prison. Such information was also recorded in McKenna's medical records." Id. ¶¶ 53-54. The DOCS Hepatitis C Primary Case Practice Guidelines ("DOCS Guidelines") states that such factors place inmates at a heightened risk for the Hepatitis C Virus ("HCV").*fn1 Id. ¶ 53. However, McKenna was not tested for HCV when he entered Green Haven. Id. ¶ 55. In 1994, some four years later, even after McKenna's Page 2 routine blood test results "reflected known and medically accepted indicia of HCV — his blood platelets were low and his liver enzymes were high," DOCS personnel failed to test McKenna for HCV. Id. ¶¶ 56. Three years later, in 1997, when blood tests revealed that his platelets were even lower and his liver enzymes were even more elevated, McKenna still was not tested for HCV. Id. ¶ 57. In June 1998, McKenna was transferred to a different DOCS facility, Woodbourne Correctional Facility ("WFC"). Despite the fact that it was DOCS' policy to test all patients for HCV when they entered a new facilities, McKenna was not tested. Id. ¶ 60.

  Finally, the plaintiff was finally tested for HCV on or around June 6, 1999. Id. ¶ 61. Following that exam, on or about July 19, 1999, Dr. Mervat Makram, a physician at the Health Care Unit at WCF, informed McKenna that he had HCV. Id. ¶ 62. Before embarking on a treatment regimen, the plaintiff told Dr. Makram that he wished to study its side effects. Dr. Makram did not mention the benefits of early treatment or refer McKenna to a specialist. Id. ¶¶ 62-64. Dr. Makram never followed-up to find out McKenna's decision. Id. ¶ 62. On or about September 16, 1999, after suffering from abdominal pain since 1996, McKenna was finally seen by Dr. Frank Lancellotti, at the Health Care Unit at WCF. Id. ¶¶ 65. During this visit, McKenna informed Dr. Lancellotti that he wanted treatment for his HCV. Id. ¶ 70. Dr. Lancellotti denied McKenna the treatment because pursuant to a DOCS policy, "inmates are ineligible for HCV treatment if they are not necessarily going to be incarcerated for at least twelve (12) months from the day treatment begins." Id. ¶ 71. However, DOCS Guideline also state that "[i]nmates who will not predictably complete a course of treatment should receive a baseline evaluation and be referred to medical follow-up and treatment upon release." Id. While McKenna was not scheduled for release for another four years, he was due before the parole board in just under one year. Id. ¶ 74-75. McKenna was denied parole on or about August 29, 2000. Id. ¶ 80.

  Instead of investigating whether McKenna's pain was due to his HCV, Dr. Lancellotti treated McKenna with Ranitidine, an ulcer medication.*fn2 Id. ¶ 66. As prescribed, McKenna continued to take Ranitidine for two years and six months, during which time his pain did not diminish. Id. ¶ 68. On or about April 23, 2001, when he was finally tested for ulcers, it turned out he did not have any. Id. ¶ 69. On or about December 11, 2000, McKenna again met with Dr. Page 3 Lancellotti, requested HCV treatment, and was denied — this time based on a DOCS policy which required that HCV treatment recipients first complete an Alcohol and Substance Abuse Treatment Program ("ASAT"). However, DOCS had earlier deemed McKenna ineligible for participation in an ASAT due to his medical condition. Id. ¶¶ 81-82. Dr. Lancellotti referred McKenna to the Albany Medical Center ("AMC"). Id. ¶ 83. On or about January 10, 2001, after McKenna received a CAT Scan at AMC, he was diagnosed as having a condition "compatible with cirrhosis."*fn3 Id. ¶ 84. McKenna learned of this diagnosis on or about February 2, 2001 from Dr. Lancellotti, who informed McKenna that he had likely suffered from cirrhosis since June 1999, and told him that he would refer him to a liver specialist at AMC. Id. ¶ 85.

  On or about March 19, 2001, McKenna was seen by Dr. Benedict, a gastroenterologist at Coxsackie Regional Medical Unit ("CRMU"), who told McKenna to return for a follow-up visit in three to four weeks so that he could evaluate McKenna's esophageal varices, a complication of cirrhosis. Id. ¶¶ 86-87. McKenna saw Dr. Maliakkal at AMC on or about April 23, 2001, when he received an Endoscopy procedure for the varices, and was told to return in four to six weeks to discuss drug treatment for his HCV. Id. ¶ 88. Seven weeks later, after not receiving this follow-up visit, McKenna wrote to Dr. Wright, the Associate Commissioner and Chief Medical Officer at DOCS, and on or about July 5, 2001, forwarded a copy of this letter to DOCS Commissioners Glenn S. Goord and Anthony Annucci. Id. ¶ 90. McKenna did not receive a response until August 3, 2001, when Dr. Wright wrote to explain the failure to follow Dr. Maliakkal's orders, and stated that "it is unlikely that you will be a candidate for Hepatitis C treatment because of special treatment concerns related to your cirrhosis." Id. ¶ 99. In the interim period, during which McKenna had not received a response, on or about July 25, 2001, John Beck and Madeline deLone, attorneys from the Legal Aid Society Prisoners' Rights Project ("LASPRP") sent a letter to Dr. Makram, requesting that McKenna receive his prescribed follow-up visit. On this same day, Dr. Makram met with McKenna and informed him that "his cirrhosis of the liver was decompensated*fn4 and that his earlier request for treatment was denied on Page 4 June 1, 2001 based on the status of his liver" despite the fact that no liver biopsy had been performed. Dr. Makram explained that because Dr. Wright had denied McKenna treatment for HCV, there was no need for him to return to AMC. When McKenna expressed concern that he could experience internal bleeding, Dr. Makram explained that "if he hemorrhaged, he would be taken to the emergency room." Id. ¶ 92. On or about August 7, 2001, McKenna wrote to Goord to reiterate his need for a follow-up visit with Dr. Maliakkal because of his risk of hemorrhaging. Dr. Wright responded on or about October 5, 2001, and explained that because McKenna's HCV was at an advanced stage, he was not a candidate for HCV drug treatment. Id. ¶¶ 100-101. On or about June 19, 2002, Beck wrote to Wright, urging him to reconsider the decision to deny McKenna drug treatment, and requested that McKenna see a gastroenterologist and that Beck receive copies of McKenna's medical documentation. Id. ¶ 102. On or about October 1, 2002, Beck wrote to Dr. Wright and Dr. Makram, reiterating these requests. Id. ¶ 103.

  Armed with the knowledge that his condition was decompensated, on or about December 17, 2001, McKenna wrote to Dr. Wright to request that he be seen by a liver specialist to determine whether a liver transplant would be possible. Id. ¶ 94. When McKenna received no response, Beck wrote to Dr. Wright, reiterating McKenna's request, and on April 26, 2002, Dr. Wright responded, stating that McKenna's cirrhosis was actually compensated. "He also wrote that McKenna was both too sick to be treated for HCV and too well to be considered for a liver transplant." Id. ¶¶ 95-96. In October 2002, Dr. John E. Cunningham, the Acting Regional Director at DOCS, denied HCV treatment to McKenna because he was not enrolled in an ASAT. Id. ¶ 104. McKenna explained to Dr. Cunningham that he had been drug-free for thirty-six years and alcohol-free from twenty-four years, and had already completed programs similar to the ASAT affiliated with the facility. Id. ¶¶ 105-106. Despite the fact that McKenna had already been diagnosed as "medically unassignable", meaning that he was too ill to participate, he began the ASAT program on or about December 16, 2002, solely to become eligible for HCV treatment. Id. ¶ 107. During this time, McKenna suffered from "chronic fatigue, weakness, extreme breathing difficulty, dizziness, blurred vision, disorientation, and abdominal pain that was aggravated by prolonged sitting." Id. ¶ 108. On or about January 7, 2003, Beck wrote to Page 5 Dr. Makram, requesting that McKenna receive HCV treatment since he was now enrolled in an ASAT. Id. ¶ 110. McKenna was approved for HCV drug therapy on or about January 17, 2003. Id. ¶ .111 McKenna wrote to Dr. Cunningham on or about January 29, 2003, because he still had not begun treatment. McKenna had a video conference through Telemeet with Dr. Rodgers of AMC on or about February 3, 2003, during which Dr. Rodgers recommended that McKenna begin a forty-eight week course of Peg-Interferon plus Ribavirin. Id. ¶ 113. McKenna received his first round of treatment on or about February 7, 2003, but his treatment was discontinued soon thereafter because he experienced side-effects. Id. ¶ 114. McKenna has not received an in-person evaluation by a specialist since April 2001. Id. ¶ 115.

 2. Administrative Remedies

  McKenna has exhausted the administrative remedies available to him. On or about February 12, 2001, he filed a complaint with the New York State Commission of Corrections Medical Review Board ("CMRB"), alleging that the DOCS' Guidelines provisions requiring that inmates complete an AS AT program and be in such a position that they will definitely remain incarcerated for at least twelve months in order to be eligible for HCV treatment, were unconstitutional. Id. ¶ 118. McKenna filed a grievance complaint, WB-11519-01, on or about February 14, 2001, with regard to the delay and denial of his HCV treatment. Id. ¶ 119. Deputy Superintendent for Administration at WCF, T.J. Miller, denied McKenna's grievance on or about February 16, 2001 because "the delays McKenna experienced in receiving medical treatment were not critical in the view of the medical community." Id. ¶ 120. The Inmate Grievance Resolution Committee ("IGRC") issued a response to McKenna's grievance, after a hearing, suggesting that "the HCV policy should be looked into and possibly revised so that patients diagnosed with HCV could receive immediate treatment." Id. ¶ 121. McKenna appealed this determination to John P. Keane, the Superintendent of WCF, and specifically addressed the failure by the IGRC to address his personal denial and delay of treatment. Id. ¶ 122. Keane responded on or about March 7, 2001, stating that "the punitive and compensatory damages that McKenna had requested in his appeal were beyond the scope of the grievance program. Id. ¶ 123. McKenna appealed Keane's decision to the Central Office Review Committee ("CORC") on or about March 8, 2001. McKenna sought review of the denial and delay of his treatment and of the DOCS' Guidelines. The CORC denied his appeal on or about April 11, 2001. Id. ¶ 124. Page 6

 B. Procedural History

  McKenna filed his complaint pro se on July 19, 2001. On November 16, 2001, he moved pursuant to Fed.R.Civ.P. 65 for a permanent injunction, enjoining his delay of medical treatment by a specialist. On March 5, 2002, Judge Knapp denied plaintiff's motion. On July 29, 2003, the matter was reassigned to this Court. Plaintiff filed an amended complaint, with the assistance of pro bono counsel, on August 21, 2003, seeking an Order (a) requiring defendants to provide McKenna with medical treatment for his HCV, including treatment by a specialist in HCV and cirrhosis, (b) declaring that defendants violated his Eight Amendment rights, (c) declaring that defendants violated his Fourteenth Amendment right to substantive due process, (d) enjoining defendants from conditioning medical care on non-medical criteria, (e) requiring defendants to pay compensatory damages of no less than $3,000,000, (f) requiring defendants to pay punitive damages of no less than $3,000,000, (g) ...

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