United States District Court, E.D. New York
February 10, 2004.
VICTOR PEREZ, Plaintiff -against- KATHLEEN HAWK, Director of the Federal Bureau of Prisons, SUSAN GERLINSKI, LSCI Allenwood Safety Manager, D. DESANTIS, Allenwood Health Services Administrator, DR. TOA CHAW, Allenwood Clinical Director, PA KOHLER, Allenwood Physician's Assistant, UNKNOWN ALLENWOOD LIEUTENANT, UNKNOWN PERSONNEL AT ALLENHOUSE POWERHOUSE, DENNIS W. HASTY, MDC Brooklyn Warden, DR. BERECKY, MDC Doctor, PA SMITH, MBC Physician's Assistant UNKNOWN PERSONNEL AT MDC BROOKLYN POWERHOUSE, THE METRO GROUP, INC., JOHN DOE, UNKNOWN BOP PERSONNEL, Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge Page 2
MEMORANDUM OF DECISION AND ORDER
Victor Perez ("Perez" or the "plaintiff"), proceeding pro se,
seeks monetary, declaratory, and injunctive relief for alleged
violations of his Fifth and Eighth Amendment rights that allegedly
occurred during the plaintiff's incarceration at the Low Security
Correctional Institution Allenwood ("LSCI Allenwood") and at the
Metropolitan Detention Center in Brooklyn, New York ("MDC Brooklyn").
Presently before the Court is a motion to dismiss by Kathleen Hawk
("Hawk"), Susan Gerlinski ("Gerlinski"), D. DeSantis ("DeSantis"), Dr.
Toa Chaw ("Dr. Chaw"), Physician's Assistant ("Kohler"), Unknown
Allenwood Lieutenant, Unknown Personnel at Allenhouse Powerhouse, Denis
W. Hasty ("Hasty"), Dr. Berecky, Physician's Assistant Smith ("PA
Smith"), Unknown Personnel at MDC Brooklyn Powerhouse (collectively, the
"Federal Defendants") for failure to state a claim pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Fed.R. Civ. P.)
or, in the alternative, for summary judgment.
The facts are taken from the complaint and taken as true for the
purposes of this motion. The plaintiff is a federal prisoner currently
incarcerated at FCI Fort Dix, New Jersey. On September 19, 2000, while
incarcerated at LSCI Allenwood the plaintiff was examined by Dr. Chaw at
LSCI Allenwood's Health Services Facility (the "Health Services
Facility"). The plaintiff complained of "itching, swelling and red rashes
on his body that expanded upon touching, and that these symptoms were
spreading all over the [p]laintiff's body. Compl. ¶ 5. Dr. Chaw
diagnosed the plaintiff as having an allergic reaction to something that
the plaintiff had earlier consumed or touched and prescribed
antihistamines for the Plaintiff.
Two days later, the plaintiff was examined by Physician's Assistant
Fascina ("PA Fascina") and Dr. Chaw at the Health Services Facility
because the plaintiff's feet "had swollen to the size of [a] football"
and the plaintiff was once again suffering from itching and swelling on
his entire body. PA Fascina gave the plaintiff a "shot of Benadryl,"
ordered an HIV test and asked the plaintiff to return to the Health
Services Facility several days later. Compl. ¶ 6. At the plaintiff's
return visit, the plaintiff was again examined by PA Fascina who
concluded that the plaintiff's rashes were attributable to something that
the plaintiff consumed or touched. PA Fascina told the plaintiff that
because the Bureau of Prisons (the
"BOP") would not pay for an allergist or dermatologist, the
plaintiff would have to determine the specific source of the irritation
himself. PA Fascina again prescribed antihistamines for the plaintiff.
On October 5, 2000, the plaintiff returned to the Health Services
Facility because of his ongoing chronic itching, swelling and rashes.
Although the plaintiff explained to PA Fascina that the previously
prescribed antihistamines "simply were not working," Compl. ¶ 8, the
same medications were prescribed to the plaintiff. On October 12, 2000,
the plaintiff reported to the Health Services Facility complaining of
swollen lips and unhealed rashes on his body "from head to foot." Compl.
¶ 9. The plaintiff suggested to Dr. Chaw and PA Fascina that LSCI
Allenwood's water supply was the source of his condition. Dr. Chaw
prescribed a different type of antihistamine for the Plaintiff.
Between October 12, 2000 and November 30, 2000, the plaintiff began to
experienced rapid heartbeats, a swollen tongue, shocks in the middle of
the night, swelling in all of his joints and, on occasion, numbness in
his entire body. The plaintiff's groin area became "grotesquely swollen"
and he saw a mucuous-like substance after using the bathroom. Compl.
¶ 10. The plaintiff claims that he was "brushed off" by the staff
members to whom he complained. PA Kohler indicated to the plaintiff that
the problems could be related to the HIV virus and ordered the plaintiff
to be tested again. Id. During this time, the plaintiff received
prescriptions for antihistamines.
On December 5, 2000, the plaintiff contacted his attorney and expressed
his strong fear of losing his life during his incarceration because of
his severe and worsening medical condition. The plaintiff's attorney
indicated that he would write a letter to Warden Susan Gerlinski
("Gerlinski"), the warden of LSCI Allenwood, to expedite a transfer. This
transfer was previously proved by the BOP's Northeast Regional Director.
On December 7, 2000, after he placed another call to his attorney, the
plaintiff claims he was threatened by an unnamed Lieutenant that if the
"plaintiff continued to `expose' the situation to anyone `outside or
inside' the Allenwood facility" he would be placed in solitary
confinement. Compl. ¶ 19. This Lieutenant also demanded that the
plaintiff formally accept a finding that bathing soap was the sole cause
of the plaintiff's illness. The plaintiff responded by showing the
Lieutenant his rashes who immediately sent the plaintiff to Dr. Chaw.
On December 7, 2000, the plaintiff complained to Dr. Chaw that his
symptoms were increasingly more severe and included swelling, different
types of irritating rashes, tightness of the chest, erratic heartbeats
and night shocks. Dr. Chaw declined to order that the plaintiff be
examined by an allergist or dermatologist. Rather, Dr. Chaw prescribed
antihistamines and calamine lotion. Dr. Chaw also dismissed the
plaintiff's notion that the water supply was the source of the
On December 18, 2000, DeSantis, the Health Service Administrator at
LSCI Allenwood, told the plaintiff that his transfer would be barred if
the plaintiff does not accept
the conclusion that the plaintiff's medical problems were caused by the
bathing soap. DeSantis also dismissed Dr. Chaw's written recommendation
that would allow the plaintiff to purchase extra bottles of water from
the commissary which forced the plaintiff to consume only the water at
LSCI Allenwood. DeSantis also stated that he would monitor the plaintiff
closely to make certain that the plaintiff purchased a different brand of
On or about December 21, 2000, Gerlinski told the plaintiff that no
transfer could be effectuated because the plaintiff's records contained
open medical problems. Gerlinski also informed the plaintiff that MDC
Brooklyn treats its water supply with chemicals pursuant to an order of
the Bureau of Prisons. Gerlinski also indicated to the plaintiff that she
directed DeSantis to tell the plaintiff that unless the plaintiff
accepted conclusion that the plaintiff's medical problems were caused by
the bathing soap, his transfer would be barred. At this meeting,
Gerlinski reiterated the position that the plaintiff had to formally
accept the conclusion that his medical problems were bring caused by the
brand of soap he was using. The plaintiff alleges that Gerlinski
acknowledged that she oversaw all of the acts complained of and
acknowledged the use of chemicals in the Allenwood water supply.
On December 25, 2000, the plaintiff submitted a form to LSCI Allenwood
Safety Manager Mudge requesting that an investigation be made of the
chemicals used in the treatment of the LSCI Allenwood water supply. Mudge
told the plaintiff to address his complaints to the Health Services
Thereafter, the plaintiff was transferred to MDC Brooklyn. On or
about December 26, 2000, the plaintiff visited MDC Brooklyn's Health
Services Facility to register his medical condition. The MDC Brooklyn
medical staff did nothing other than prescribe antihistamine medications
to the plaintiff.
On February 20, 2001, the plaintiff complained to the MDC Brooklyn
Health Services staff that in addition to his previous symptoms, the
plaintiff noticed that there was "highly-visible yellow gel-like
discharges mingled with blood in his waste." Compl. ¶ 14. The MDC
Brooklyn Health Services staff only made a "perfunctory examination" and
prescribed antihistamines. Compl. ¶ 14.
Toward the end of February and the beginning of March, 2001, the
plaintiff was examined by PA Smith at MDC Brooklyn Health Services
Facility. At this examination, the plaintiff complained of stomach pains,
yellow mucous in his stool, and irritating itching red-dots appearing on
the plaintiff's pores after he perspired. PA Smith promised the plaintiff
that he would speak to one of the doctors on staff to obtain a resolution
of the matter.
On March 12, 2001, while the plaintiff was working at his assigned
duties at MDC Brooklyn's food service facility, he suddenly experienced
excruciating stomach pain and later noticed that there were substantial
amounts of blood in his stool. Later that day, PA Smith told the
plaintiff that he had contracted either a severe strain of the herpes
virus or gonorrhea. PA Smith prescribed a combination of antibiotics for
Three months later, the plaintiff once again visited MDC Brooklyn's
Health Services Facility, where he was once again examined by PA Smith.
The plaintiff advised PA Smith that other inmates in the plaintiff's
housing unit had been complaining about similar symptoms and that he
believed that the problems were related to the water supply at MDC
Brooklyn. PA Smith informed the plaintiff that he spoke with other
members of the facility's health services staff about the plaintiff's
concerns regarding the water supply and that Dr. Berecky, a doctor at MDC
Brooklyn, dismissed the plaintiff as being "psychotic." Compl. ¶ 17.
On June 29, 2001, the plaintiff met with Dr. Berecky. The plaintiff
explained that he uncovered "conclusive evidence" that the MDC Brooklyn
Powerhouse was treating the water supply and causing illness among the
prison population. Compl. ¶ 18. The plaintiff asked to be examined by
an allergist or dermatologist but instead Dr. Berecky ordered the
plaintiff to see the staff psychologist.
On March 27, 2002, Perez visited MDC Brooklyn's Health Services Unit.
The attached medical record for this visit indicates that Perez "states
he feels fine . . .[and that his] rash is under control." Medical
Record dated March 27, 2002.
At some point, the plaintiff approached Mr. Butler ("Butler"), the MDC
Brooklyn Safety Manager inquiring why potentially unsafe chemicals were
being added to the Institution's water supply. The plaintiff claims that
Mr. Butler has never accepted responsibility for determining the level
and safety of the chemicals being used in the water
supply. The plaintiff claims that the chemicals are distributed by
the defendant The Metro Group, Inc. and these chemicals contain compounds
that can have serious adverse effects on the inmate population. The staff
at MDC Brooklyn deny that chemicals are being added to the MDC Brooklyn
On September 12, 2002, the plaintiff filed this complaint alleging that
the Federal Defendants: (1) failed to provide the plaintiff with
appropriate medical care and provide measures to secure the plaintiff's
health; (2) threatened, coerced and intimidated the plaintiff because of
his complaints; (3) as a result of the Federal Defendants' "policies,
practices, procedures, acts and omissions, the plaintiff has suffered,
does suffer and will continue to suffer immediate and irreparable injury,
including physical, psychological and emotional injury." Compl. p. 12.;
and (4) the conditions at LSCI Allenwood and MDC Brooklyn are
incompatible with contemporary standards of decency and have caused
unnecessary and wanton infliction of pain and suffering. In addition, the
plaintiff claims that the Federal Defendants at MDC Brooklyn gave
misleading diagnoses of the plaintiff's serious health problems, acted
negligently, and failed to inform the inmate population of actions taken
at the MDC Brooklyn Powerhouse which a llegedly endangered the inmates'
health and safety. The plaintiff claims that the water supply in both
LSCI Allenwood and MDC Brooklyn contains harmful chemicals that are
distributed by defendant The Metro Group, Inc. and these chemicals
contain compounds that can have serious adverse effects on the inmate
Presently before the Court is the Federal Defendants' motion to dismiss
or, in the alternative, for summary judgment. In particular the Federal
Defendants argue that: (1) there is no personal jurisdiction over several
of the federal defendants because they were not properly served; (2)
Perez's allegations concerning his incarceration at LSCI Allenwood should
be dismissed or, in the alternative, transferred to the Middle District
of Pennsylvania; (3) the complaint must be dismissed to the extent that
the plaintiff sues the Federal Defendants in their official capacities;
(4) the plaintiff has failed to state a claim under 42 U.S.C. § 1983
("Section 1983"); and (5) the plaintiff's allegations concerning
inadequate medical care do not rise to the level of a constitutional
A. The Standard
1. Rule 12(b)(6)
In reviewing a motion to dismiss for failure to state a claim under
Rule 12(b)(6), the Court should dismiss the complaint only if it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his complaint which would entitle him to relief. King v.
Simpson, 189 F.3d 284, 287 (2d Cir. 1999); Bernheim v.
Litt, 79 F.3d 318, 321 (2d Cir. 1996). The court must accept as true
all of the factual allegations set out in the complaint, draw inferences
from those allegations in the light most favorable to the plaintiff, and
the complaint liberally. See Tarshis v. Riese Org.,
211 F.3d 30, 35 (2d Cir. 2000) (citing Desiderio v. National Ass'n of
Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999)).
The plaintiff attached to the complaint, among other things, copies of
his medical records from LCSI Allenwood, MDC Brooklyn as well as
laboratory blood test results. The Court may consider this material.
Leonard F. v. Israel Disc. Bank of N.Y., 199 F.3d 99, 107 (2d
Cir. 1999) (In a motion to dismiss under Rule 12(b)(6), a court must
confine its consideration "to facts stated on the face of the complaint,
in documents appended to the complaint or incorporated in the complaint
by reference, and to matters of which judicial notice may be taken.");
Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). The
issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.
In addition, the Court must liberally interpret the complaint of a
pro se plaintiff. Haines v. Kerner, 404 U.S. 519,
520-21, 92 S.Ct. 594 (1972); Williams v. Smith, 781 F.2d 319,
322 (2d Cir. 1986). Nevertheless, pro se status "does not exempt
a party from compliance with relevant rules of procedural and substantive
law." Traguth v. Zuck, 710 F.2d 90, 92 (2d Cir. 1983) (citations
In support of their motion, the Federal Defendants submit a
"declaration" by Assistant United States Attorney Gail A. Matthews and
documents which are not found in
the pleadings. In addition, the plaintiff's memorandum in
opposition to the Federal Defendants' motion to dismiss contains facts
that are not stated in the complaint. The Court may not consider this
material in a Rule 12(b)(6) motion, see Tarshis, 211 F.3d at 39,
and declines to convert their motion to one for summary judgment in order
to consider the material. See Fonte v. Bd. of Managers of Cont'l
Towers Condo., 848 F.2d 24, 25 (2d Cir. 1988) (stating that a court
has the choice of converting a Rule 12(b)(6) motion to one for summary
judgment in order to consider material outside the pleadings but must
afford all parties an opportunity to submit supporting material).
B. Service of the Summons and Complaint
The Federal Defendants move to dismiss the complaint for lack of
personal jurisdiction due to the plaintiff's failure to serve the summons
and complaint on the Federal Defendants personally. Hasty and Smith claim
that because they left the employment of the Bureau of Prisons (the
"BOP") prior to the filing of this action, the plaintiff's mailing of
service to MDC Brooklyn failed to constitute proper personal service on
them. The Federal Defendants located in Pennsylvania argue that, because
they are not located in New York State, the plaintiff is not authorized
to effectuate service of process via mail. Fed. Defs. Mem. of Law In Sup.
of Mot. to Dismiss p. 11.
In a Bivens type action such as the instant case, where
government employees are sued in their personal capacity, service of the
complaint must be effectuated by "personal
service pursuant to Rule 4(e) or a waiver of that service pursuant
to Rule 4(d)." See Armstrong v. Sears, 33 F.3d 182, 187 (2d Cir.
1994). However, in determining whether to dismiss a case for lack of
sufficient service, the court must liberally construe Rule 4 to further
the purpose of finding personal jurisdiction in cases in which the party
has received actual notice and will not be prejudiced by a continuance of
an action. See Romandette v. Weetabix Co., Inc., 807 F.2d 309,
311 (2d Cir. 1986).
Because the plaintiff is an incarcerated pro se litigant
proceeding in forma pauperis dismissal on this ground is not
required. Tajeddini v. Gluch, et al., 942 F. Supp. 772, 779 (D.
Conn. 1996); see also Romandette, 807 F.2d at 311; Daniel v.
Henderson, 155 F.R.D. 30, 31 (N.D.N.Y. 1994) ("[B]ecause an
incarcerated, pro se, in forma pauperis plaintiff may
rely on the U.S. Marshal for service of process, the court is not
required to dismiss the claim against [the defendant] for failure to
serve."). None of these defendants have complained that they did not
receive actual notice of the lawsuit or are prejudiced by the lack of
personal service. See Tajeddini, 942 F. Supp. at 778.
Furthermore, the Office of the United States Attorney has appeared on
behalf of all of the Federal Defendants and has defended the action up to
The defendants maintain that the plaintiff's allegations concerning his
incarceration at LCSI Allenwood should be dismissed or, in the
alternative, severed and transferred to the
Middle District of Pennsylvania. The Federal Defendants' motion to
sever comes within the scope of Fed.R.Civ.P. 21 which permits the
Court to drop parties from an action if joinder of the parties was not
appropriate. See United States v. Yonkers Bd. of Educ.,
518 F. Supp. 191, 194 (S.D.N.Y. 1981). The standards for joinder of defendants
are provided by Fed.R.Civ.P. 20(a) as follows:
All persons . . . may be joined in one action
as defendants if there is asserted against them
jointly, severally, or in the alternative, any
right to relief in respect of or arising out of
the same transaction, occurrence, or series of
transactions or occurrences and if any question
of law or fact common to all defendants will
arise in the action. A plaintiff or defendants
need not be interested in obtaining or defending
against all the relief demanded. Judgment may be
given for one or more of the plaintiffs
according to their respective rights to relief,
and against one or more defendants according to
their respective liabilities.
Thus, the Federal Defendants' motion to sever will be granted "if the
claims against the first group of defendants and the second group of
defendants do not (1) relate to or arise out of the same transaction or
occurrence or series of transactions or occurrences or (2) if a question
of law or fact common to all defendants will not arise." Nowak v.
Coombe, No. 91 Civ. 7335, 1992 WL 212374, at * 1 (S.D.N.Y. Aug. 25,
1992) (quoting Fed.R.Civ.P. 20(a)). Given the related nature of the
plaintiff's complaints against the Federal Defendants located in New York
and Pennsylvania, the Court sees no reason to waste
judicial resources by trying two similar cases separately before
two courts. See Mandala v. Coughlin, 920 F. Supp. 342, 356
(E.D.N.Y. 1996). Accordingly, the Federal Defendants' motion to sever the
claims relating to the Federal Defendants in Pennsylvania and transfer
venue with respect to these claims is denied.
D. Section 1983
The plaintiff brings the instant action pursuant to Section 1983.
However, Section 1983 provides relief against defendants who act under
color of state, not federal, law. Wheeldin v. Wheeler,
373 U.S. 647, 650, 83 S.Ct. 1441 (1963). Thus, to the extent that the
plaintiff asserts claims under Section 1983, these claims are dismissed.
However, because the plaintiff is proceeding pro se, this
Court will construe his Section 1983 civil rights claim as the analogous
claim applicable to federal actors under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999
(1971); Liffiton v. Keuker, 850 F.2d 73, 78 (2d Cir. 1988)
(finding that Section 1983 action against federal defendants in the
individual capacities may be entertained as a Bivens action
which is not barred by sovereign immunity); Daloia v. Rose,
849 F.2d 74, 75 (2d Cir. 1988) (construing pro se Section 1983
action as Bivens action against federal defendants). The Court
notes that generally, case law under Section 1983 applies to
Bivens cases. Chin v. Bowen, 833 F.2d 21, 24 (2d Cir.
1987) (quoting Ellis v. Blum, 643 F.2d 68, 84 (2d Cir. 1987).
E. Constitutional Claims
To state a claim under Bivens, a plaintiff must allege a
deprivation of constitutional rights by defendants acting under color of
federal law. Soichet v. Toracinta, No. 93 Civ. 8858, 1995 WL
489434, at *3 (S.D.N.Y. Aug. 16. 1995) (citation omitted); see also
Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970 (1994) ("The
treatment a prisoner receives in prison and the conditions under which he
is confined are subject to scrutiny under the Eighth Amendment.").
1. As to the Individual Defendants
a. official capacity
It is well-settled that any lawsuit against an agent or employee of the
United States in his/her official capacity is an action against the
sovereign itself. Kentucky v. Graham, 473 U.S. 159, 165 (1985).
However, the United States is immune from constitutional tort claims
against the United States, its agencies, or federal employees sued in
their official capacities. See Castro v. United States,
34 F.3d 106, 110 (2d Cir. 1994). Bivens only authorizes suits for
monetary damages against federal officials sued in their individual
capacity. F.D.I.C. v. Meyer, 510 U.S. 471, 485, 114 S.Ct. 996
(1994); Khan v. United States, 271 F. Supp.2d 409, 413 (E.D.N.Y.
2003). Accordingly, the plaintiff's claims against the defendants insofar
as they are sued in their official capacity for monetary relief are
b. as to Hawk and Hasty
As stated above, to maintain a Bivens action, a plaintiff must
allege a violation by a federal official of a clearly established
constitutional right for which the federal official does not have
immunity. Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789
(1991). Because personal involvement by a federal official is a
prerequisite to liability under Bivens, federal officials who
are not personally involved in an alleged constitutional deprivation may
not be held vicariously liable under Bivens for the acts of
subordinates. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.
1987) (A defendant's personal involvement with the constitutional
deprivation is a prerequisite to recovery in a Bivens claim);
see also Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981). Personal
involvement may be demonstrated by evidence that (1) the defendant
participated directly in the alleged infraction; (2) the defendant, with
actual or constructive knowledge of the violation, failed to remedy the
wrong; (3) the defendant created or permitted the policy or custom under
which the unconstitutional practices occurred; (4) the defendant was
grossly negligently in managing subordinates who caused the violations;
or (5) the defendant failed to act on information indicating that the
constitutional deprivations were taking place. Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also
Tajeddini, 942 F. Supp. at 779.
Here, the plaintiff has failed to allege any facts against Hawk, the
Director of the Federal BOP. With respect to Hasty, the MDC Brooklyn
warden, the only mention of this
defendant is that the plaintiff requested that his attorney assist
him in writing a letter to Hasty to urge him to investigate the
plaintiff's claims. Thus the plaintiff alleges that neither Hawk or Hasty
directly participated in any of the alleged incidents or that they are
liable as a supervisory official. Thus, the plaintiff's claims against
these defendants in their individual capacities as supervisors are
c. as to Gerlinski
With regard to Gerlinski, the plaintiff alleges that (1) Gerlinski told
the plaintiff that he cannot be transferred because he had open medical
problems on his record; (2) Gerlinski informed the plaintiff that MDC
Brooklyn treats its water supply with chemicals pursuant to an order of
the BOP; (3) Gerlinski directed DeSantis to inform the plaintiff that the
plaintiff's transfer would be barred unless the plaintiff accepted that
his medical problems were caused by the bathing soap; and (4) that she
had summoned plaintiff to her office to inform him that she could not
transfer him unless he formally accepted "the conclusion that his medical
problems were being caused by the brand of soap that he was using and she
insisted that the plaintiff purchase different brands of soap from the
commissary." Compl. ¶ 22.
As set forth more fully below, none of the allegations against
Gerlinski rise to the level of a constitutional violation. See also
Montanye v. Haymes, 427 U.S. 236, 246, 96 S.Ct. 2543, 2547 (1976)
(It is well-settled that prison officials are given broad discretion to
transfer prisoners); Davis v. Kelly, 981 F. Supp. 178, 181
(W.D.N.Y. 1997) (plaintiff has
no constitutional right to a prison transfer); see also
Jermosen v. Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995)
(plaintiff has no constitutional to be free from verbal harassment and
threats). Accordingly, the plaintiff's claims against this defendant are
dismissed. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264
(1979); see also Khan v. United States, 271 F. Supp.2d 409, 413
2. Inadequate Medical Care
The plaintiff asserts that he received inadequate medical care. It is
well-established that a prison official's denial of access to medical
care or interference with prescribed treatment may constitute the
"unnecessary and wanton infliction of pain" proscribed by the Eighth
Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285
To establish a constitutional claim of inadequate medical care, the
plaintiff must prove "deliberate indifference to [his] serious medical
needs." Estelle, 429 U.S. at 105. The standard of deliberate
indifference includes both objective and subjective components. First,
the deprivation of care must objectively be "sufficiently serious."
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citations
omitted). Second, the facts must give rise to a reasonable inference that
the persons charged with providing medical care knew of those serious
medical needs and intentionally disregarded them. Harrison v.
Barkley, 219 F.3d 132, 137 (2d Cir. 2000); Chance v.
Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). However, negligence,
even if it amounts to medical malpractice, does not constitute a
constitutional violation. Estelle, 429 U.S. at 107. In
Estelle, the United States Supreme Court summarized cases in
which prison officials were deliberately indifferent to the serious
medical needs of prisoners. Estelle, 429 U.S. at 104 n. 10
(citing Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (doctor
threw out a prisoner's ear and stitched together the stump); Thomas
v. Pate, 493 F.2d 151, 158 (7th Cir. 1994) (injection of penicillin
with knowledge that prisoner was allergic and refusal of doctor to treat
allergic reaction); Martinez v. Mancusi, 443 F.2d 921 (2d Cir.
1970) (prison physician refuses to administer the prescribed pain killer
and renders leg surgery unsuccessful by requiring prisoner to stand
despite contrary instructions of surgeon)).
a. A Serious Medical Condition
A medical condition is objectively considered "serious" if it is a
"condition of urgency" that may result in "degeneration" or "extreme
pain." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)
(citing Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt,
J., dissenting). This includes not only conditions affecting the
plaintiff's current health problems, but also those that are "very likely
to cause serious illness and needless suffering" in the ensuing weeks,
months or year. Helling v. McKinney, 509 U.S. 25, 33,
125 L.Ed.2d 22, 113 S.Ct. 2475 (1993); see also Liscop v. Warren,
901 F.2d 274, 277 (2d Cir. 1990) (condition must be life-threatening or
The Court will assume for purpose of this motion that the plaintiffs
ailments constitutes a serious medical condition as they appear to
be sufficiently serious and painful. See Zentmeyer v. Kendall
County, 220 F.3d 805, 810 (7th Cir. 1997) (a condition is
objectively serious if "failure to treat [it] could result in further
significant injury or unnecessary and wanton infliction of pain");
see also Chance, 143 F.3d at 702-703 (Relevant factors to
consider when determining if a serious medical condition exists include
"[t]he existence of an injury that a reasonable doctor or patient would
find important and worthy of comment or treatment; the presence of a
medical condition that significantly affects an individual's daily
activities; or the existence of chronic and substantial pain.").
b. Conscious Disregard of the Medical Condition
The plaintiff fails to satisfy the second, subjective, prong of the
deliberate indifference standard. To satisfy the second prong, the
plaintiff must allege that the defendants "kn[ew] of and disregard[ed] an
excessive risk to inmate health or safety" and that they were "aware of
facts from which the inference could be drawn that a substantial risk of
serious harm exists, and . . . also draw the inference." Chance v.
Armstrong, 143 F.3d 698, 703 (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)).
In regard to this second element, whether or not a defendant provided
the plaintiff with the care he desired is immaterial. While "the
Constitution does require that prisoners be provided with a certain
minimum level of medical treatment, it does not guarantee to a prisoner
the treatment of his choice." Jackson v. Fair, 846 F.2d 811, 817
(1st Cir. 1988);
see also Chance v. Blackwell, No. 01 Civ. 1931, 2002 WL
32079466, at * 7 (D.S.C. Mar. 29, 2002) ("although the provision of
medical care by prison officials is not discretionary, the type and
amount of medical treatment is discretionary.").
The plaintiff's allegations that the doctors mis-diagnosed and
mistreated his medical conditions do not rise to the level of a
constitutional violation. See Estelle, 429 U.S. at 105-106 (a
complaint that a physician has been negligent in diagnosing or treating a
medical condition does not state a valid claim of medical mistreatment
under the Eighth Amendment); see also Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998) (A mere disagreement with the prescribed
course of treatment does not always rise to the level of a constitutional
Here, the plaintiff alleges no such "deliberate" conduct by any of the
defendants. See Chatin v. Artuz, 28 Fed. Appx. 9, 10 (2d Cir.
2001) (with respect to the subjective showing, prison officials are not
liable if they responded reasonably to a known risk, even if the harm
ultimately was not averted) (citations omitted); see also Wells v.
Franzen, 777 F.2d 1258, 1264 (7th Cir. 1985) (treatment of a
prisoner's medical condition "generally defeats a claim of deliberate
indifference."). The plaintiff does not allege that prison officials
"knew of and disregarded his serious medical needs, possessed culpable
minds regarding his treatment, or consciously chose an easier and less
efficacious treatment plan claims that might state a claim of
deliberate indifference based on inadequate medical care. Connors v.
No. 02 Civ. 9988, 2003 WL 21087886, at *3 (citing Chance,
143 F.3d at 703).
The plaintiff's complaint and the attached records indicate that the
plaintiff received frequent medical attention while incarcerated. In
fact, the complaint indicates that between September 19, 2000 and March
27, 2002, the plaintiff was treated by the medical staff at FSCI
Allenwood and MDC Brooklyn approximately 30 times. The plaintiff was also
given blood tests, stool cultures, liver tests, x-rays, as well as
prescriptions for antihistamines, Benedryl, and other medications. At
most, the alleged mis-treatment of the plaintiff's condition states a
cause of action for medical malpractice. However, medical malpractice is
clearly not a constitutional violation. Estelle, 429 U.S. at 106
(medical malpractice does not become a constitutional violation merely
because the victim is a prisoner); Thomas v. Wright, No. 99 Civ.
2071, 2002 WL 31309190, at * 9 (N.D.N.Y. 2002) (Although the defendant
prison officials and medical staff failed to diagnose or detect the
plaintiff's cancer, the defendants did not act with "deliberate
indifference" because they "ordered medical tests, prescribed courses of
treatments, . . . monitored his laboratory and radiological reports,"
and "seen numerous times.").
Accordingly, the plaintiff's constitutional claim for inadequate
medical care is dismissed.
3. Prison Conditions
The Eighth Amendment's prohibition against cruel and unusual punishment
includes an inmate's right to be free from conditions of confinement that
impose "an excessive risk to [the] inmate['s] health or safety. . . ."
Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994).
Throughout his complaint, the plaintiff claims that the water supply used
by the inmate population was the cause of his medical condition. This
claim is analyzed similar to a claim for inadequate medical care. See
Howard v. Headly, 72 F. Supp.2d 118, 123 (E.D.N.Y. 1999).
Here, the plaintiff alleges that he has "uncovered conclusive
evidence," Compl. ¶ 18, through an "independent investigation,"
Compl. ¶ 11, that the water supply in both LSCI Allenwood and MDC
Brooklyn is being treated with harmful chemicals. The plaintiff fails to
allege a clearly stated causal link between the water supply and his
symptoms. In addition, the plaintiff's conclusory allegations with
respect to the water supply fails to "demonstrate that the conditions of
his confinement result in unquestioned and serious deprivations of basic
human needs" or deprived him "of the minimal civilized measure of life's
necessities." Anderson v. Coughlin, 757 F.2d 33, 34-35 (2d Cir.
1985) (citations omitted) or that the prison officials acted with
"deliberate indifference." Farmer, 511 U.S. at 834 (quotations
Accordingly, the plaintiff's claim for inadequate prison conditions is
The Plaintiff claims that (1) Gerlinski threatened the plaintiff that
his transfer would be barred unless the plaintiff accepted the statement
that his medical problems were caused by the bathing soap; (2) on
December 7, 2000, after the plaintiff contacted his attorney regarding
his medical condition, an unnamed Lieutenant at LSCI Allenwood
"threatened the [p]laintiff with solitary confinement if the [p]laintiff
continued to `expose' the situation to anyone `outside or inside' the
[LSCI] Allenwood facility." Compl. ¶ 20; and (3) this LSCI Allenwood
Lieutenant also demanded that the plaintiff formally accept a finding
that bathing soap was the sole cause of the plaintiff's illness.
In construing the complaint liberally, these claims can be construed as
retaliation against the plaintiff as a result of complaints he made
regarding the prison conditions. Although, prison officials may not
retaliate against prisoners for exercising their constitutional rights,
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), "claims of
retaliation in the prison setting must be viewed with skepticism,
however, given that virtually every prisoner can assert such a claim as
to every decision which he or she dislikes." Tajeddini v. Gluch,
942 F. Supp. 772, 776; see also Montanye, 427 U.S. at 246;
Davis v. Kelly, 981 F. Supp. 178, 181 (W.D.N.Y. 1997) (plaintiff
has no constitutional right to a prison transfer); Jermosen v.
Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995). The Court also notes
that the plaintiff was transferred to MDC Brooklyn approximately three
months after he was initially placed at LSCI Allenwood. Thus, this cause
of action is dismissed.
F. Leave to Amend
Rule 15(a) of the Federal Rules of Civil Procedure states that a party
shall be given leave to replead when justice so requires. A district
court should not dismiss without granting leave to amend at least once
when a liberal reading of the complaint gives any indication that a valid
claim might be stated." Branum v. Clark, 927 F.2d 698, 705 (2d
Cir. 1991); see also Cortec Indus., Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir. 1991) (it is the usual practice upon granting a
motion to dismiss to allow leave to replead).
Therefore the plaintiff is given the opportunity to serve an amended
complaint. The Court directs the plaintiff, in his amended complaint, to,
among other things, set forth specifically why the defendants were
allegedly "deliberately indifferent" to his medical needs. Moreover, the
plaintiff is to allege specifically the facts supporting his contention
that the water supply in LSCI Allenwood and MDC Brooklyn is (1) treated
with harmful compounds, that (2) are harmful to himself, and (3) the
overall inmate population. To this end, the Court notes with approval
Judge Leisure's thoughtful comments in Spier v. Erber, No. 89
Civ. 1657, 1990 WL 71502, at *10, n. 8 (S.D.N.Y. May 24, 1990):
It has become an all too common practice for
litigants granted leave to replead to make only
minor changes in the original complaint based on
an overly restrictive reading of the dismissing
court's order, prompting a second motion to
dismiss. An amended complaint which fails to
replead with sufficient particularity after a
finding of lack of specificity may well be
regarded by the Court as a frivolous filing in
of Fed.R.Civ.P. 11.
The plaintiff must file his amended complaint within thirty days from
the date of this order. Failure to file within this period of time will
render the dismissal of those claims to be with prejudice.
Based on the foregoing, it is hereby
ORDERED, that the Federal Defendants' motion to dismiss the
claims against them is GRANTED; and it is further
ORDERED, that the plaintiff is granted leave to file an
amended complaint within thirty days from the date of this order and that
the failure to file within this time period will render the dismissal of
all of the plaintiff's claims with prejudice; and it is further
ORDERED, that if the plaintiff fails to file an amended
complaint within thirty days from the date of this order, the Clerk of
the Court is hereby directed to amend the caption as follows:
VICTOR PEREZ, Plaintiff,
THE METRO GROUP, INC., JOHN DOE, Defendants.
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