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United States District Court, S.D. New York

February 10, 2004.


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 Page 2 (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 Page 3 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. Page 4 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 Page 5 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 Page 6 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 Objection.

  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.



  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. Page 7 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 Page 8 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. 1999).

  B. Exhaustion of Administrative Remedies Page 9

  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 exhausted).

  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. Page 10 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. Page 11 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 Page 12 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 Page 13 11).

  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). Page 14 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 insufficient. Page 15 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 of mind.

  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 Page 16 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 Page 17 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.

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