United States District Court, S.D. New York
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
OPINION & ORDER
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
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.
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
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
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.
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) requiring
defendants to pay plaintiffs attorneys' fees and costs; and (h) providing
any further relief that this Court deems fair and equitable. Defendants
filed the instant motion to dismiss on October 3, 2003, and submitted the
motion fully-briefed on November 3, 2003.
A. Standard of Review
In adjudicating a 12(b) motion to dismiss, all well-pled factual
allegations are taken as true, and all reasonable inferences are
construed in favor of the plaintiff Leeds v. Meltz, 85 F.3d 51, 52 (2d
Cir. 1996). Dismissal of the complaint is appropriate only when it
appears that the plaintiff cannot prove a set of facts "in support of his
claim which would entitle him to relief." Gant v. Wallingford Bd. of
Educ., 69 F.3d 669, 673 (2d Cir. 1995). The Court's role is "merely to
assess the legal feasibility of the complaint, not to assay the weight of
the evidence which might be offered in support thereof." Sims v. Artuz,
230 F.3d 14, 20 (2d Cir. 2000), quoting Ryder Energy Distrib. Corp. v.
Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984).
However, "complaints based on civil rights statutes must include specific
allegations of facts showing a violation of rights `instead of a litany
of general conclusions that shock but have no meaning.'" Morales v.
Santor, 94 Civ. 217, 1995 U.S. Dist. LEXIS 19021, at *4 (N.D.N.Y. Dec.
4, 1995), quoting Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
B. Personal Involvement
"An individual defendant is not liable under § 1983 absent personal
involvement" Rivera v. Goord, 253 F. Supp.2d 735, 747 (S.D.N.Y. 2003),
citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). And, personal
liability may not be imposed on a state official pursuant to a theory of
respondeat superior. See Black v. Coughlin II, 76 F.3d 72, 74 (2d Cir.
1996). Therefore, the plaintiff must assert that "the defendant had some
direct [or personal] involvement in or responsibility for the
misconduct." Woods v. Goord, et al, 01 Civ. 3255, 2002 U.S. Dist. LEXIS
7157, at *22 (S.D.N.Y. April 23, 2002), quoting Thompson v. New York 99
Civ. 9875, 2001 WL 936432, at *6 (S.D.N.Y. Mar. 15, 2001). In this
Circuit, for purposes of asserting a § 1983 violation, the personal
involvement of a supervisory official may be established when:
(1) the [official] participated directly in the
alleged constitutional violation, (2) the [official],
after being informed of the violation through a report
or appeal, failed to remedy the wrong, (3) the
[official] created a policy or custom under which
unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, (4) the
[official] was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5)
the [official] exhibited deliberate indifference to
the rights of [others] by failing to act on
information indicating that unconstitutional acts were
Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246
, 254 (2d Cir.
2001), citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
1. Non-Medical Supervisory Defendants
The amended complaint asserts claims against four non-medical
supervisory defendants, Goord, Keane, Raymond Cunningham, and Miller.
Plaintiff has failed to assert sufficient facts to establish the
personal involvement of defendant Goord. The only direct claims asserted
against Goord are that (1) on or about July 5, 2001, McKenna sent him a
copy of a letter that he had previously sent to Dr. Wright, which stated
his desire to be seen again by Dr. Maliakkal (Am. Compl. ¶ 90), that
(2) McKenna wrote a letter directly to Goord on August 7, 2001,
reiterating this request (id. ¶ 100), and finally that (3) on or
about October 5, 2001, Dr. Wright (not Goord) responded to McKenna's
August 7 letter (id. ¶ 101). This involvement is clearly inadequate
as the mere "[r]eceipt of letters or grievances[ ] is insufficient to
impute personal involvement." Woods v. Goord, et al, 2002 U.S. Dist.
LEXIS 7157, at *24 (citations omitted); Atkins et al v. County of
Orange, et al. 251 F. Supp.2d 1225, 1234 (S.D.N.Y. 2003) ("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."), citing Johnson v.
Wright, 234 F. Supp.2d 352, 363 (S.D.N.Y. 2002). Further, "referring
medical complaint letters to lower-ranked prison supervisors[ ] [also]
does not constitute personal involvement." Woods, 2002 U.S. Dist. LEXIS
7157, at *25. Therefore, plaintiff's position that Goord is personally
liable for "his failure to ensure" that Dr. Wright properly resolved
McKenna's grievance (Am. Compl. ¶ 126), is merely an end-run around
the legal standard and fails to establish Goord's personal involvement.
Because plaintiff makes no further allegations as to Goord's
involvement, plaintiff's claims against Goord are dismissed.
Plaintiff has sufficiently established the requisite personal
involvement of defendant Miller. Plaintiff asserts that Miller
"personal[ly] deni[ed] [ ] McKenna's HCV treatment" (Am. Compl. ¶
129), through his denial of plaintiff's February 14, 2001 grievance, in
which he stated that "the delays McKenna experienced in receiving medical
treatment were not critical in the view of the medical community." Id.
¶¶ 119-120. While some Courts in this district have recently held that
"where a supervisory official receives and acts on a prisoner's grievance
. . . personal involvement will be found under the second Colon prong"
(Williams v. Fisher, et al., 02 Civ. 4558, 2003 U.S. Dist. LEXIS 16442,
at *31 (S.D.N.Y. Sept. 17, 2003); see also Atkins, 251 F. Supp.2d at
1234)), others have found personal involvement in such circumstances only
when the supervisor's response is detailed and specific (see Woods, 2002
U.S. Dist. LEXIS 7157, at *3031 (no personal involvement is established
when defendant merely responded to plaintiff's letter but personal
involvement attaches when defendant "responded in such a way as to
suggest notice of the `duration and extent of plaintiff's condition.'"),
citing Rashid v. Hussain, 95 Civ. 676, 1997 WL 642549, at *3 (N.D.N.Y.
Oct. 15, 1997)).
Even under the more restrictive interpretation of Colon, Miller's
personal involvement is
apparent. While Miller's actual response*fn5 does not exude familiarity
with the details of McKenna's situation,*fn6 since plaintiff's
grievance, from which Miller based his determination, provides the full
contextual background of McKenna's medical travails, the fact that Miller
chose not to discuss the facts of McKenna's history in his response is
irrelevant. Further, the seriousness of McKenna's illness, the grave
consequences associated with delay of treatment, and the tortuous path
that McKenna has traversed in his attempt to secure treatment all
of which were before Miller in McKenna's grievance suffice to
establish Miller's personal involvement through his denial of McKenna's
Plaintiff has asserted sufficient claims against Keane to establish, at
least at this stage, Keane's personal involvement in the alleged
constitutional violations suffered by McKenna. Plaintiff asserts that
Keane failed "to address or rectify the denial of McKenna's HCV
treatment" (Am. Compl. ¶ 127) when he handled plaintiff's appeal from
the IGRC's February 22, 2001 decision on his grievance. Notably, although
too late to assist McKenna, the IGRC credited McKenna's assertions by
"suggest[ing] 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 the IGRC's failure
specifically to address "the denial and delay of medical treatment that
McKenna had experienced" (id. ¶ 122) and indeed was continuing to
experience. After his review of the IGRC's decision, Keane affirmed and
noted to McKenna that "the punitive and compensatory damages that [he]
had requested in his appeal were beyond the scope of the grievance
program." Id. ¶ 123. The fact that Keane viewed his role as limited to
that of determining whether McKenna could be recompensed monetarily for
his allegedly unconstitutional treatment through the grievance mechanism
does not serve to make him unfamiliar with McKenna's underlying
contentions, about which he had or should have read.
While some Courts in this district have interpreted the second Colon
factor ("the [official], after being informed of the violation through a
report or appeal, failed to remedy the wrong") to require more than the
mere affirmance of a grievance denial (see Joyner v. Greiner,
195 F. Supp.2d 500, 506 (S.D.N.Y. 2002) ("The fact that Superintendent
Greiner affirmed the denial of plaintiff s grievance which is all
that is alleged against him is insufficient to establish personal
involvement . . ."), citing Scott v. Scully, 93 Civ. 8777, 1997 U.S.
Dist. LEXIS 12966, at *11 (S.D.N.Y. 1997); Villante v. N.Y. State Dep't
of Corr. Servs., et al., 96 Civ. 1484, 2001 U.S. Dist. LEXIS 25208, at
*17 (N.D.N.Y. Oct. 25, 2001), Report and Recommendation adopted at 2002
U.S. Dist. LEXIS 26279 (N.D.N.Y. Mar. 28, 2002)),*fn7 the Second Circuit
and other courts in this district have found sufficient personal
involvement in such situations (see Williams v. Smith, et al., 781 F.2d 319,
324 (2d Cir. 1986); Wright v. Smith, et al., 21 F.3d 496, 502 (S.D.N.Y.
1994). Further, Keane did not merely affirm, but rather affirmed with a
comment that evidenced a familiarity with McKenna's situation.
Therefore, as the amended complaint pleads that Keane was "informed of
the wrong" through McKenna's appeal and "failed to remedy the wrong", it
is sufficient as to Keane's involvement at least for now.
d. Raymond Cunningham
Plaintiff's assertions against defendant Raymond J. Cunningham, the
Superintendent of WCF, while not at this early stage replete with factual
support, provide the potential to establish Raymond Cunningham's personal
involvement. Plaintiff asserts that Raymond Cunningham "knew of and
disregarded McKenna's serious medical needs, evincing deliberate
indifference to those needs" by "upholding the denial of McKenna's HCV
treatment." Am. Compl. ¶ 128. While not exactly a model of clarity,
this language could be interpreted as sufficient to establish Raymond
Cunningham's personal involvement in McKenna's case, as required for
liability.*fn8 If after discovery, defendant continues to believe that
Raymond Cunningham was not sufficiently involved, he has ample
opportunity to demonstrate and support that belief in a dispositive
C. Qualified Immunity
"The doctrine of qualified immunity protects state actors sued in their
individual capacity from suits for monetary damages where `their conduct
does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.'" Baskerville v. Blot,
224 F. Supp.2d 723, 737 (S.D.N.Y. 2002), quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). "Even where [ ] a plaintiff's federal rights
are well-established, qualified immunity is still available to an
official if it was `objectively reasonable for the public official to
believe that his acts did not violate those rights.'" Woods, 2002 U.S.
Dist. LEXIS 7157, at *35, quoting Kaminsky v. Rosenblum, 929 F.2d 922,
925 (2d. Cir. 1991). Therefore, state officials are shielded by qualified
immunity if either "(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. " Johnson v.
Newburgh Enlarged Sch. Dist., 239 F.3d 246, 250 (2d Cir. 2001), quoting
Salim v. Proulx, 93 F.3d 86, 89 (2d Cir. 1996). While "the use of an
`objective reasonableness' standard permits qualified immunity claims to
be decided as a matter of law" (Cartier v. Lussier, 955 F.2d 841, 844 (2d
Cir. 1992)), the determination "usually depends on the facts of the case
. . . making dismissal at the pleading stage inappropriate" (Woods, 2002
U.S. Dist LEXIS 7157, at *35) (citations omitted)).
It has already been determined that plaintiff's claims against
supervisory defendant Goord must be dismissed for failure to assert his
personal involvement in the alleged constitutional violations. As to the
remaining seven defendants, supervisory officials Miller, Raymond
Cunningham, and Keane, and doctors Wright, Lancellotti, Makram, and John
Cunninghman, defendants argue that all are protected by qualified
immunity. While defendants do not contest that it is clearly established
that inadequate medical care may comprise an Eighth Amendment violation
when prison officials are deliberately indifferent to an inmate's serious
medical needs, nor could they (see Estelle v. Gamble, 429 U.S. 97, 106
(1976), reh'g denied, 429 U.S. 1066 (1977)), they assert that defendants
acted in an objectively reasonable manner in either directly or
indirectly denying medical treatment to the plaintiff. While defendants
may be correct, at this stage, the Court need only determine whether the
allegations in the amended complaint, read in the light most favorable to
plaintiff, demonstrate as a matter of law that defendants acted in an
objectively reasonable manner in denying treatment to plaintiff.
Defendants have failed to make this showing.
Defendants base their claim that it was objectively reasonable for
these defendants to deny treatment on the fact that the denial was
consonant with the HCV Guidelines (Def. Mem. at 16-18) and that
non-medical officials may refrain from interfering with the medical
treatment of inmates (Reply at 8). However, because plaintiff has
asserted that the HCV Guidelines themselves are facially unconstitutional
(Am. Compl. ¶ 48), and that defendants' applied certain provisions of
the HCV Guidelines in a purposeful effort to deny McKenna treatment
"based on a series of ever-changing pretextual reasons" (id. ¶¶ 5,
79, 81, 98), including but not limited to "pecuniary" motivations (id.
¶ 8), defendants' argument misses the mark. Rather than demonstrate
that the amended complaint is insufficient, defendants argue the ultimate
determination to be made in this case. It is clear both from the lack of
protestations to the contrary by defendants and this Court's independent
review of the amended complaint that the allegations against these
defendants, as pled, leave open the potential that they knew or
reasonably should have known that they were violating plaintiff's clearly
established Eighth Amendment rights.*fn9 As per the record currently
before the Court, defendants have not established qualified immunity as a
matter of law.
D. Fourteenth Amendment Claim
As no one contests that McKenna's constitutional claim is covered by
the Eighth Amendment, the substantive due process claim under the
Fourteenth Amendment, based upon the same set of facts, should be
dismissed. "Where a particular Amendment provides an explicit textual
source of constitutional protection against a particular sort of
government behavior that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these claims."
Velez v. Levy, 274 F. Supp.2d 444, 454 (S.D.N.Y. 2003), quoting Albright
v. Oliver, 510 U.S. 266, 272 (1994). "If a constitutional claim is
covered by a specific constitutional provision, such as the Fourth or
Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of
substantive due process." U.S. v. Lanier, 520 U.S.259, 272 n.7 (1997),
citing Graham v. Connor, 490 U.S. 386, 394 (1989).*fn10 Therefore,
plaintiffs Fourteenth Amendment substantive due process claim is dismissed
as against all defendants.*fn11
For the foregoing reasons, defendants' motion to dismiss is
granted-in-part and denied-in-part. All of plaintiffs' claims against
defendant Goord as well as plaintiff's substantive due process claim
under the Fourteenth Amendment against all defendants are dismissed. The
clerk of the Court is requested to close this motion and any outstanding
IT IS SO ORDERED.