United States District Court, S.D. New York
February 10, 2004.
JESSE PERKINS, Plaintiff -v- C.O. OBEY, KHEE TINT MAW, M.D., and NEW YORK STATE DEP'T OF CORRECTIONS, Defendants
The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge
On November 1, 2001, Magistrate Judge James C. Francis issued a
Report and Recommendation ("Report") recommending that Defendants' motion
to dismiss Plaintiff's claim for deliberate indifference to a serious
medical condition be granted in part and denied in part. Defendants
timely objected to the Report to the extent it concluded that Plaintiff
was not required to exhaust his administrative remedies. Plaintiff, by
letter dated November 9, 2001 ("Pl.'s Objection"), objected to the
recommendation that the Complaint be dismissed as against Dr. Maw and
proffered further factual assertions regarding the underlying events.
In reviewing a report and recommendation, the Court "may accept,
reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West
2002). To accept the report and recommendation of a magistrate judge to
which no timely objection has been made, a district court "`need only
satisfy itself that there is no clear error on the record.'" Johnson
v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation
omitted). See also Brvant v. New York State Dep't of Corr.
Serv., 146 F. Supp.2d 422, 424-25
(S.D.N.Y. 2001) (court may accept those portions of report to which
no written objection has been made, so long as they are "not facially
erroneous"). The Court is required to make a de novo
determination as to the aspects of the Report to which objections are
made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997). However, when a party makes only conclusory or general objections,
or simply reiterates his original arguments, the Court reviews the Report
and Recommendation only for clear error. See United States ex rel.
Casa Redimix Concrete Corp. v. Luvin Construction Corp., 00 CV 7552,
2002 US Dist LEXIS 24700, at *4-5 (S.D.N.Y. Dec. 26, 2002) (objections
that are mere attempts to rehash issues that have already been decided
should be reviewed for clear error); Camardo v. General Motors
Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y.
1992) (court need not consider objections which are frivolous, conclusory
or general and constitute a rehashing of the same arguments and positions
taken in original pleadings).
Defendants moved to dismiss Plaintiff's deliberate indifference claim
on two grounds: (1) failure to exhaust administrative remedies as
required by the Prison Litigation Reform Act of 1995, 42 U.S.C.A §
1997e(a) (West 1994 & Supp. 2003) (the "PLRA"), and (2), with respect
to Plaintiff's claim against Dr. Maw, failure to state a claim upon which
relief can be granted under the Eighth Amendment. With respect to the
first ground, Magistrate Judge Francis applied then-governing Second
Circuit precedent and found that Plaintiff was not required to exhaust
administrative remedies with respect to his deliberate indifference claim
because his allegations suggest individualized abuse rather than prison
conditions as a whole, a rationale that was subsequently rejected by the
Supreme Court. In Porter v. Nussle, the Supreme Court held that
the PLRA's exhaustion requirement "applies to all inmate suits about
prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or
some other wrong." 534 U.S. 516, 532 (2002). The Court therefore
does not adopt that portion of the Report. Judge Francis further found,
however, that even if exhaustion of the deliberate indifference claim
were required, dismissal would be inappropriate because questions of fact
exist as to whether Plaintiff fully exhausted his administrative
remedies. Defendants concede the existence of this factual dispute.
See Letter from Maria Hartofilis dated November 14, 2001.
Accordingly Defendants' motion to dismiss the deliberate indifference
claim as non-exhausted is denied.*fn1
Judge Francis also found that Plaintiff's deliberate indifference claim
fails to state a cause of action under the Eighth Amendment. Judge
Francis recommended granting the branch of Defendants' motion that sought
dismissal of Plaintiff's Eighth Amendment claim as against Dr. Maw.
Although Judge Francis found Plaintiff's allegations concerning the
nature of his injuries at least arguably sufficient to support an Eighth
Amendment claim, he recommended that the motion be granted because the
allegations of the Amended Complaint were insufficient to support a
finding of the requisite culpable state of mind on Dr. Maw's part.
Plaintiff objected to this aspect of the Report, proffering additional
factual assertions concerning Dr. Maw's knowledge of Plaintiff's efforts
to see him over the four-month period immediately following the alleged
assault in which Plaintiff claims his injuries were sustained. (Objection
at 1.) The Court has reviewed de novo the aspects of the Report
relating to Plaintiff's claim against Dr. Maw.
The Court's task in evaluating a motion to dismiss under Rule 12(b)(6)
is to take as true the facts alleged in the complaint and draw all
reasonable inferences in favor of the plaintiff.
Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d
Cir. 1998). The action must not be dismissed unless "`it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief'" Cohen v. Koenig,
25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson,
355 U.S. 41, 45-46 (1957)). Furthermore, Rule 8 of the Federal Rules of Civil
Procedure requires only "a short and plain statement of the claim showing
that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(1). "Such a
statement must simply `give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests.'"
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (citing
Conley v. Gibson, 355 U.S. at 47).
Plaintiff alleges in his Amended Complaint that he was unable to see
Dr. Maw until four months after he was allegedly assaulted by Defendant
Obey. Judge Francis concluded that the Amended Complaint's factual
allegations were insufficient, because Plaintiff did not allege that Dr.
Maw was aware of Plaintiff's health condition, to support a reasonable
inference that Dr. Maw had the requisite culpable state of mind. In his
Amended Complaint, Plaintiff alleges that he was examined and
photographed by a nurse on his initial emergency room visit and that the
nurse made an appointment for him to see Dr. Maw. Plaintiff further
alleges that, over the next four months, Dr. Maw "was not around" on
Plaintiff's scheduled appointment dates, that, when he was able to see
Dr. Maw, the doctor was always late, and that the doctor did not examine
him sufficiently or treat all of his complaints.*fn2 The Court, having
reviewed de novo the sufficiency of these allegations, concurs
with Judge Francis' determinations that they are insufficient to allege
that Dr. Maw had the requisite state of mind and that, to the extent
Plaintiff asserts that Dr. Maw's alleged
lateness in keeping appointments (as opposed to failure to see the
Plaintiff on scheduled appointment dates at all) violated the Eighth
Amendment, the Amended Complaint fails to state a claim.
However, Plaintiff proffered additional material factual assertions in
his Objection to the Report. Specifically, Plaintiff asserted in the
Objection that Dr. Maw was aware of the missed appointments, that Dr. Maw
ignored those appointments and "just let [Plaintiff] suffer for months
without any kind of treatment." (Objection at 1.) Plaintiff's
newly-proffered allegation that Dr. Maw was aware of and ignored his need
for treatment, taken together with the Amended Complaint's allegations
concerning the nature of his injuries and his emergency room examination,
could support the requisite inference of a culpable state of mind.
Bearing in mind the Court's obligation to construe liberally pro
se pleadings and the instruction in Rule 15(a) of the Federal Rules
of Civil Procedure that leave to amend pleadings should be freely given
when justice so requires, the Court will adopt Judge Francis'
recommendation that the Complaint be dismissed as against Dr. Maw, but
will afford Plaintiff the opportunity to file and serve a further
amendment to his Complaint that incorporates his additional allegations
regarding Dr. Maw.
For the foregoing reasons, Defendants' motion is denied to the extent
it seeks dismissal of Plaintiff's deliberate indifference claim on
exhaustion grounds and is granted, without prejudice to the filing
and service of a Second Amended Complaint, to the extent it seeks
dismissal of Plaintiff's claim against Dr. Maw.
Plaintiff has until April 12, 2004, to file with the Court
and serve on defense counsel his Second Amended Complaint. The Second
Amended Complaint should include the allegations in the Amended Complaint
and the factual allegations concerning Dr. Maw that were
presented in Plaintiff's Objection. The Court is enclosing with
Plaintiff's copy of this decision a form on which he can write his Second
Amended Complaint, as well as copies of the Amended Complaint and the
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438, 444 (1962).
Magistrate Judge Francis' Report follows.
TO THE HONORABLE LAURA T. SWAIN, U.S.D.J.:
Jesse James Perkins, a prison inmate, brings this action pro
se pursuant to 42 U.S.C. § 1983, alleging that the defendants
violated his civil rights by using excessive force and by denying him
adequate medical care. The defendants move to dismiss the inadequate
medical care claim pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure on the ground that it fails to state a cause of action.
For the reasons that follow, I recommend that the motion to dismiss be
granted in part and denied in part.
The plaintiff was incarcerated at Sing Sing Correctional Facility when
the following events occurred. Mr. Perkins states that on September 13,
1999, after a food tray was brought to his cell, he asked to see
Corrections Officer Robert Obey ("C.O. Obey"). (Amended Complaint ("Am.
Compl.") at 4-5). While waiting, the plaintiff knocked the food
tray onto the floor, prompting C.O. Obey to come to his cell to
investigate. After exchanging words, C.O. Obey allegedly reached through
the bars, grabbed Mr. Perkins by the shirt, and slammed his head against
the bars. (Am. Compl. at 5).
Mr. Perkins then made a request to go to the emergency room. (Am.
Compl. at 5). While he was waiting, he allegedly had a dizzy spell and
passed out, but no one attended to him. (Plaintiff's Letter Submitted in
Opposition to Defendants' Reply Memorandum (dated June 26, 2001)). Also,
as he waited to be taken to the hospital, a Sergeant "John Doe" said to
him, "If you keep this up I'll fuck you up in front of the warden." (Am.
Compl. at 5A). At that point, a Lieutenant Doyle arrived and instructed
an Officer Bennett to take Mr. Perkins back upstairs to his cell,
stating, "He ain't going to no E.R." (Am. Compl. at 5A).
Mr. Perkins states that from September 13, 1999 through September 17,
1999 he was denied medical care. Finally, on the fifth day after the
incident had occurred, he lied and said his rectum was bleeding so that
the officers would take him to the emergency room. (Am. Compl. at 5A). On
September 18, 1999, while at the hospital, the plaintiff filled out an
injury report and was checked by a nurse. The nurse also took photos of
his injuries and made an appointment for him to see Doctor Khee Tint Maw.
(Am. Compl. at 5A).
Mr. Perkins then states that although he gave his call out slip to the
officers, he missed the appointment because they failed to come and get
him. He further alleges that he received another call out slip and went
to the hospital but waited two hours for the doctor, who never saw him.
This went on for months, according to the plaintiff. He made appointments
with Dr. Maw on November 3, November 16, November 30, December 3, and
December 22, but the doctor was never available. (Am. Compl. at 5A).
Finally, on January 19, 2000, Dr. Maw examined the plaintiff. Mr. Perkins
requested that x-rays be taken of his eyes and head, but these were
never performed. (Am. Compl. at 5A). Instead, Dr. Maw touched his head
and stated that nothing was wrong with him. The only treatment Mr.
Perkins alleges that he received were "eye glasses and eye drops." (Am.
Compl. at 6). Mr. Perkins further maintains that every time he went to
see the doctor, Dr. Maw was "somewhere drinking coffee or talking to
other doctors," thus delaying his treatment. (Am. Compl. at 5A).
Mr. Perkins claims that as a result of the assault and subsequent lack
of medical attention, he sustained "abras forehead," severe headaches,
dizziness, blurred vision, and sore eyes. (Am. Compl. at 6).
A. Standard for Motion to Dismiss
In considering a motion to dismiss, the court must accept as true all
factual allegations in the complaint and must draw all inferences in
favor of the plaintiff. Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993);
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Harris v.
City of New York, 186 F.3d 243, 247 (2d Cir. 1999); Hernandez
v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, the
complaint may not be dismissed "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957). These principles are even more strictly applied where the
plaintiff alleges civil rights violations, Hernandez, 18 F.3d
at 136; Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991), and
where he is proceeding pro se. Haines v. Kerner, 404 U.S. 519,
520 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.
B. Exhaustion of Administrative Remedies
The defendants argue for dismissal of the plaintiff's claim of
inadequate medical care based on his failure to exhaust administrative
remedies. The Prison Litigation Reform Act of 1995 (the "PLRA"), Pub.L.
No. 104-134, 110 Stat. 1321 (1996), amended 42 U.S.C. § 1997e, to
read: "[n]o action shall be brought with respect to prison conditions
under . . .[42 U.S.C. § 1983] or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted."
42 U.S.C. § 1997e(a). The first issue is whether the plaintiff in this
case is required to exhaust administrative remedies. Since the term
"prison conditions" is not defined in the statute, federal courts,
including the Second Circuit, have come to a variety of conclusions
regarding its scope. See Lawrence v. Goord, 238 F.3d 182,
185-86 (2d Cir. 2001) (per curiam) (retaliatory actions against inmate
not "prison conditions" within meaning of PLRA); Nussle v.
Willette, 224 F.3d 95, 100 (2d Cir. 2000), cert. granted sub
nom. Porter v. Nussle. _ U.S. _, 121 S.Ct. 2213 (2001) (prisoners'
excessive force claims not subject to the PLRA's administrative
exhaustion requirements); Chelette v. Harris, 229 F.3d 684, 688
(8th Cir. 2000), cert. denied. _ U.S. _, 121 S.Ct. 1106
(2001)(inmate required to exhaust claims of inadequate medical care);
Freeman v. Francis, 196 F.3d 641, 643-44 (6th Cir. 1999)
(claims of excessive force included as "prison conditions" and must be
In a recent case, Neal v. Goord, ___ F.3d ___, No. 99-0253,
2001 WL 1178293 (2d Cir. Oct. 4, 2001), the Second Circuit addressed, for
the first time, the issue of whether a plaintiff's allegation of
inadequate medical care was subject to the PLRA's exhaustion requirement.
Finding that the plaintiff was required to exhaust, the court cited to
dicta from two of its previous decisions:
We have observed that "[t]he plain language
of `prison conditions' suggests those aspects of
prison life affecting the entire prison
population, such as the food, medical
care, recreational facilities and the like."
Lawrence v. Goord, 238 F.3d 182, 185 (2d
Cir. 2001) (per curiam) (emphasis added);
accord Nussle, 224 F.3d at 101 (quoting
Carter v. Kiernan, No. 98 Civ. 2664,
1999 WL 14014, at *3 (S.D.N.Y. Jan.
14, 1999), which stated that "[t]he ordinary,
contemporary, common meaning of the phrase `prison
conditions' refers to such things as medical
treatment"). . . .
Neal, ___ F.3d at ___, 2001 WL 1178293, at *3. In concluding
that Mr. Neal's deprivation of medical care claim was subject to the
PLRA's exhaustion requirements, the court noted that the decision hinged
on whether the action was "properly classified as a single, momentary
matter . . .[or one that] affect[s] everyone in the prison community."
Id. at __, 2001 WL 1178293, at *1. The Second Circuit has
repeatedly excused exhaustion where the claim challenges behavior which
is aimed at one specific inmate rather than the prison population as a
whole. See Lawrence, 238 F.3d at 185 (particularized instances
of retaliation directed at one inmate not "prison condition");
Nussle, 224 F.3d at 100 (PLRA does not encompass particular
instances of excessive force or assault). In Neal. the Second Circuit
found that although "a lack of adequate medical care certainly is a
deprivation an individual prisoner suffers as a condition of his own
confinement;. . . inadequate, untimely or incompetent medical care may
simply be indicative of the level of care generally received by the
entire prison population." Neal, ___ F.3d at ___, 2001 WL
1178293, at *4.
Mr. Neal claimed he was denied stronger medicine and that he wanted
physical therapy sooner than it was prescribed. He also claimed that the
doctor who examined him did so through the bars of his cell and then
failed to order a promised x-ray. Id. at __, 2001 WL 1178293,
at *1. Assessing these claims, the Second Circuit found the allegations
to be "ordinary garden variety complaints about `prison conditions.'"
Id at __, 2001 WL 1178293, at *3.
In the present case, Mr. Perkins claims that he was denied access to
the emergency room for four days, that Dr. Maw failed to keep his
appointments, that he refused to order requested x-rays, and finally that
the doctor was always late for his appointments.
Although these complaints could "be indicative of the level of care
generally received by the entire prison population," Id. at __,
2001 WL 1178293, at *4, they are distinguishable from Mr. Neal's in that
they arose from injuries sustained when Mr. Perkins' head was slammed
against his cell bars by a prison officer. A "deprivation of medical
care" claim which "arises out of the same nucleus of operative facts as
[plaintiff's] excessive force claims . . . is personal." Cuoco v.
U.S. Bureau of Prisons, No. 98 Civ. 9009, 2001 WL 167694, at *3 n.2
(S.D.N.Y. Feb. 16, 2001).
In Neal, the Second Circuit found that the plaintiff's claims
were not individualized because he did not "suggest he was singled out
for the denial of medical services" nor did he "describe in what manner
other inmates received medical care, so as to suggest that he was
targeted for different treatment." Id at __, 2001 WL 1178293,
at *4. Here, although Mr. Perkins fails to describe how other inmates
were treated, the facts he presents clearly suggest that he was singled
out. The subsequent actions by various prison officers, including: (1)
Sergeant "Doe's" statement, "If you keep this up I'll fuck you up in
front of the warden"; (2) Lieutenant Doyle's refusal to let Mr. Perkins
go to the hospital, stating, "he ain't going to no E.R."; and (3) the
refusal of the prison staff to send the plaintiff to the hospital for
four days (Am. Compl. at 5A), all suggest that the officers' reluctance
to address Mr. Perkins' medical needs was connected to the alleged
assault on him by C.O. Obey. See Lawrence, 238 F.3d at 186
("Eighth Amendment principles . . . support distinguishing between claims
of individualized abuse and conditions of confinement."). Thus, since Mr.
Perkins' allegations suggest individualized abuse rather than complaints
about prison conditions as a whole, he was not required to exhaust
administrative remedies before bringing this action.
Moreover, there is a factual dispute about whether Mr. Perkins has
successfully exhausted his administrative remedies, so dismissal on that
basis would be inappropriate in any event. As the
plaintiff correctly indicated in his amended complaint, Sing Sing,
like all New York correctional facilities, maintains an inmate grievance
program. (Am. Compl. at 3). According to New York law, an inmate's
grievance goes through a three-step review process. First, the grievance
is investigated and reviewed by the Inmate Grievance Resolution
Committee. Second, the committee's decision is subject to review by the
correction facility's superintendent. Finally, the superintendent's
decision can be appealed to the Central Office Review Committee for a
final administrative determination. 7 N.Y.C.R.R. § 701.7; see
also Cruz v. Jordan, 80 F. Supp.2d 109, 117-18 (S.D.N.Y. 1999).
"Only upon such a final determination is an inmate deemed to have
exhausted his administrative remedies." Parkinson v. Goord,
116 F. Supp.2d 390, 394 (W.D.N.Y. 2000) (citation omitted).
It is unclear from Mr. Perkins' amended complaint exactly what steps he
took in grieving this claim. However, contrary to defendants' assertion
that Mr. Perkins failed to take any action,*fn3 the record indicates
that Mr. Perkins answered, "yes" to the question: "Did you present the
facts relating to your complaint in the state prisoner grievance
procedure?" (Am. Compl. at 3). In response to a question about what steps
he took, Mr. Perkins stated that he "filed a complaint" against
"Defendant Obey and Defendant Maw." (Am. Compl. at 3).
Accordingly, the motion to dismiss on grounds of failure to exhaust
should be denied.
C. Eighth Amendment Claim
The defendants next argue that Mr. Perkins' claim against Dr. Maw
should be dismissed because the plaintiff fails to state a cause of
action under the Eighth Amendment. (Def. Memo, at
A prison inmate is entirely dependent on corrections officials to care
for his health needs. Accordingly, the state has an obligation to provide
every prisoner with adequate medical care. See Estelle v.
Gamble, 429 U.S. 97, 103 (1976); Cruz v. Ward,
558 F.2d 658, 661 (2d Cir. 1977); Waldo v. Goord, No. 97 Civ. 1385, 1998
WL 713809, at *3 (N.D.N.Y. Oct. 1, 1998). When prison officials are
deliberately indifferent to an inmate's serious medical needs, they
inflict cruel and unusual punishment in violation of the Eighth
Amendment. See Estelle, 429 U.S. at 104. "Such indifference may
occur on an individual level, such as when a doctor intentionally
mistreats an inmate,. . . or on an institutional level, when the
prison's system of medical care is so seriously inadequate as to cause
unwarranted suffering." Cruz, 558 F.2d at 662 (citations
omitted). Thus, whether an inmate claims inhumane conditions of
confinement, failure to attend to his medical needs, or a combination of
both, the claims must be measured against the "deliberate indifference"
standard in Estelle. Wilson v. Seiter, 501 U.S. 294, 297
(1991); Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000).
To establish an Eighth Amendment violation, an inmate must satisfy both
an objective and a subjective test. Hudson v. McMillian,
503 U.S. 1, 8 (1992); Hemmings v. Gorczvk, 134 F.3d 104, 108 (2d
Cir. 1998). "Objectively, the alleged deprivation must be sufficiently
serious, in the sense that a condition of urgency, one that may produce
death, degeneration, or extreme pain exists. Subjectively, the charged
official must act with a sufficiently culpable state of mind."
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal
quotation marks and citations omitted).
It is a close question whether any of Mr. Perkins' injuries may be
considered a serious medical condition for purposes of constitutional
analysis. Mr. Perkins asserts that he suffered from "sevair head aches
[sic], dizziness, blurred vision[, and] sore eyes." (Am. Compl. at 6).
While these conditions are hardly life-threatening, they may be
significant enough to trigger a treatment obligation on the part of
prison officials. See Koehl v. Dalsheim, 85 F.3d 86, 87-88 (2d
Cir. 1996) (Eighth Amendment claim stated by inmate who was denied
glasses used to correct severe double vision and lack of depth
perception). But see Davidson v. Scully, 155 F. Supp.2d 77, 89
(S.D.N.Y. 2001) (blurry vision, headaches, and tearing not conditions
that produce degeneration or extreme pain and not sufficiently serious
condition under Eighth Amendment).
This issue need not be decided, however, because it is clear that Dr.
Maw did not act with the necessary animus.
An official acts with the requisite deliberate
indifference when that official "knows of and
disregards an excessive risk to inmate health or
safety; the official must both be aware of facts
from which the inference could be drawn that a
substantial risk of serious harm exists, and he
must also draw the inference."
Chance v. Armstrong, 143 F.3d 698
, 702 (2d Cir. 1998)
(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Mr.
Perkins makes three separate allegations against Dr. Maw: (1) the
plaintiff was unable to see the doctor until January 19, four months
after the incident; (2) the doctor failed to perform requested x-rays on
Mr. Perkins' eyes and head; and (3) the plaintiff's medical treatment was
delayed because the doctor was "drinking coffee or talking to other
doct[o]rs." (Am. Compl. at 5A). Assuming that all of these assertions are
true, they still fall short of alleging that Dr. Maw acted with a
sufficiently culpable state of mind.
Mr. Perkins first claims that Dr. Maw failed to meet with him for four
months. While it is true that an intentional denial or delay in receiving
medical treatment may evidence deliberate indifference, see Harding
v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y. 1984),
aff'd, 762 F.2d 990 (2d Cir. 1985) (deliberate indifference
exists when there are intentional efforts to delay plaintiff's access to
medical care), Mr. Perkins' allegations of delay are legally
Although the plaintiff was not afforded an opportunity to be examined
by Dr. Maw for months after the incident, he was checked out by a nurse
the same week that the incident happened and filled out an injury report.
(Am. Compl. at 5A). The nurse made an appointment for him to see the
doctor, but the plaintiff missed it because the officers failed to take
him to the hospital, not because of any action on the part of Dr. Maw.
(Am. Compl. at 5 A). Since Dr. Maw did not initially examine Mr. Perkins
until January, he did not personally know of and disregard "an excessive
risk to [his] health or safety." Chance, 143 F.3d at 702;
see also Veloz v. State of New York, 35 F. Supp.2d 305, 312
(S.D.N.Y. 1999) (alleged delay does not support claim of deliberate
indifference without allegation that doctor was aware of serious risk to
health that he chose to ignore). Thus, Mr. Perkins has failed to proffer
facts from which it could be inferred that Dr. Maw had a culpable state
Similarly, the plaintiff has failed to show that Dr. Maw was
deliberately indifferent when he refused to order x-rays. According to
the plaintiff, "The only treatment I received was for my eyes. They gave
me eye glasses and eye drops." (Am. Compl. at 6). Differences of opinion
over the proper treatment do not create a constitutional claim. "So long
as the treatment given is adequate, the fact that a prisoner might prefer
a different treatment does not give rise to an Eighth Amendment
violation." Chance, 143 F.3d at 703 (citation omitted);
see also Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y. 1992),
aff'd, 970 F.2d 896 (2d Cir. 1992) ("mere disagreement with
prison officials about what constitutes appropriate medical care does not
state a cognizable claim under the Eight Amendment"). Mr. Perkins has not
asserted that the treatment by Dr. Maw has been inadequate, and he
therefore fails to state a claim for deliberate indifference.
Mr. Perkins' final allegation, that Dr. Maw was delayed in getting to
his appointments, also does not make out a claim for relief. "Because
society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if those
needs are `serious.'" Hudson, 503 U.S. at 25. Although Mr.
Perkins claims that every time he had an appointment with Dr. Maw, the
doctor was late because he was "somewhere drinking coffee and talking to
other doct[o]rs," (Am. Compl. at 5A), he presents no facts to suggest
that this was more than a minor inconvenience. He fails to indicate that
his physical condition during that time warranted prompter medical
treatment or that the delays exacerbated his injuries or otherwise
damaged him. Thus, Dr. Maw's alleged tardiness did not violate civilized
standards or concepts of humanity and decency. See Estelle, 429
U.S. at 102-03 (Eighth Amendment prohibits punishment which violates
civilized standards and concepts of humanity and decency).
The plaintiff has proffered no facts from which it could be inferred
that Dr. Maw knew of and disregarded a serious health risk. Accordingly,
the Eighth Amendment claim against his should be dismissed.
For the reasons set forth above, I recommend that the defendants'
motion to dismiss be granted in part and denied in part. The defendants'
motion to dismiss based on the plaintiff's failure to exhaust his
administrative remedies should be denied, while their motion to dismiss
Mr. Perkins' claim against Dr. Maw under the Eighth Amendment should be
granted for the reasons stated above. Pursuant to
28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of
Civil Procedure, the parties shall have ten (10) days to file written
objections to this Report and Recommendation. Such objections shall be
filed with the Clerk of the Court, with extra copies delivered to the
Chambers of the Honorable Laura T. Swain, Room 426, 40 Foley Square, New
York, New York 10007, and to the chambers of the undersigned, Room
1960, 500 Pearl Street, New York, New York 10007. Failure to file timely
objection will preclude appellate review.