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February 17, 2004.

ANTHONY WILLIAMS, Plaintiff, -against- DR. CARL KOENIGSMANN, Individually, DR. STAN DASHAWETZ, Individually, WILLIAM PHILLIPS, Superintendent, Individually, Defendants

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Anthony Williams, proceeding pro se, brings suit under section 1983 of Title 42 of the United States Code alleging that defendants were, and continue to be, deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the United States Constitution. Defendants move to dismiss the Complaint on the ground that plaintiff has failed to demonstrate an Eighth Amendment claim. Alternatively, defendants assert that they are entitled to qualified immunity and are thereby immune from suit. Additional grounds asserted by defendants Dr. Carl Koenigsmann and Superintendent William Phillips include: (1) lack of personal involvement; and (2) Eleventh Amendment immunity. For reasons that follow, defendants' motion is granted in part and denied in part. Page 2

 I. FACTS*fn1

  Plaintiff was brought into the custody of the New York State Department of Correctional Services on January 31, 1999, and, at all relevant times, has been incarcerated at Green Haven Correctional Facility ("Green Haven"). See Complaint ¶¶ 4, 11. In August 1995, plaintiff was shot twice in the head which resulted in a year-long coma. See id. ¶¶ 9-10. Plaintiff claims that bullet fragments remain lodged in the base of his brain and that since this injury he suffers from "severe headaches that range larger than migraines." Id. ¶ 12. On December 13, 2002, plaintiff complained of headaches to Green Haven's medical staff who scheduled an appointment with a neurologist. See id. ¶ 14.

  On May 19, 2002, while walking in the yard at Green Haven, plaintiff was struck in the base of his skull by another inmate and was rendered unconscious. See id. ¶¶ 16-17. Folio wing this incident, plaintiff alerted Green Haven's medical staff that the pain in his head had increased tremendously. See Page 3 id. ¶ 18. Despite being treated with Motrin and other pain medications, plaintiff "continued to suffer tremendously." Id. ¶ 19. After the assault, plaintiff complained of severe pain to his medical provider, nurse practitioner Stanley Dashawetz.*fn2 See id. ¶ 20. Nurse Dashawetz prescribed two pills of Ultram, three times a day, and ordered a CAT scan*fn3 for plaintiff. See id. ¶ 21.

  In January 2003, after complaining of migraine headaches for over a year, plaintiff was sent to St. Agnes Hospital where he was treated by Dr. Lawrence Epstein. See id. ¶ 22-23. After receiving injections to the base of his skull, plaintiffs pain subsided. See id. ¶ 24. Dr. Epstein informed plaintiff that he would require these injections on a monthly basis. See id. ¶ 25. Plaintiff went to St. Agnes Hospital a total of three times and received two treatments at that facility. See id. ¶ 26.

  Due to disciplinary problems, plaintiff was placed in Green Haven's Special Housing Unit ("SHU") in February, 2003. See id. ¶ 27. Upon being placed in SHU, plaintiff only received Ultram twice a day. See id. ¶ 28. Nurse Dashawetz informed plaintiff that the reduction in his medication schedule was the Page 4 result of a shortage of available officers to escort nursing staff to the SHU and that "there was nothing he could do." Id. ¶ 29-30. Nurse Dashawetz also informed plaintiff that his scheduled visits to St. Agnes Hospital had been cancelled because of an alleged lack of funds. See id. ¶ 32. Without these outside treatments, coupled with the reduction in his pain medication, plaintiffs pain increased. See id. ¶¶ 33.

  Plaintiff filed several grievances with the Inmate Grievance Resolution Committee ("IGRC") concerning his situation. On February 26, 2003, plaintiff complained that his Ultram medication was reduced to twice a day after he was assigned to the SHU. See 2/26/03 Letter from Williams to IGRC, Pl. Resp., Ex. A. Although plaintiff did not include Superintendent Phillips' decision, which presumably was unfavorable, he did submit a document indicating that the Central Office Review Committee ("CORC") upheld the Superintendent's decision and unanimously denied plaintiffs request for increased medication. See 5/22/03 Response from CORC, Pl. Resp., Ex. A. CORC noted that plaintiff "has been seen by the Pain Management Clinic at St. Agnes Hospital on several occasions, and will be scheduled to be seen there in the near future." Id.

  On May 8, 2003, plaintiff filed another grievance complaining that in addition to the reduction in his medication, his outside trips to the St. Agnes pain Page 5 clinic were cancelled. See 5/8/03 Letter from Williams to IGRC, Pl Resp., Ex. B. In response to this grievance, the IGRC stated: "According to the FHSD (Dr. Koengsman) (sic) the pain clinic has become temporarily inavailable (sic) recently to N.Y.S. DOCS in this region. The Department is working diligently to re-instate[] the service. Grievant advised to discuss alternate treatment with assigned PCP until services can be re-instated." Response of IGRC, Pl Resp., Ex. B. Superintendent Phillips affirmed the IGRC's response and added: "If grievant feels that his pain medication is not effective, he should attend block sick call and request to see his provider for assessment and evaluation." 8/15/03 Response from Superintendent Phillips, Pl. Resp., Ex. B.

  In addition, plaintiff wrote a letter to Dr. Koenigsmann seeking his "professional medical assessment" concerning his cancelled treatments at St. Agnes. See 5/28/03 Letter from Williams to Dr. Koenigsmann, Pl. Resp., Ex. C ("So now that my trips have been discontinued and I'm in more pain as the days progress without my treatments what am I suppose [sic] to do? Just continue to deal with this pain and suffering?"). Plaintiff followed up with a June 25, 2003 letter to Dr. Koenigsmann asking him to explain why he had not been to the pain clinic since March. See Pl. Resp., Ex. D. Plaintiff did not receive any responses from Dr. Koenigsmann. See Pl. Resp. at 6. Plaintiff still resides in the SHU and Page 6 continues to experience severe pain and suffering due to "inadequate medical care." Complaint ¶ 37.


  A. Motion to Dismiss

  "Given the Federal Rules' simplified standard for pleading, `[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (emphasis added) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). Pursuant to the simplified pleading standard of Rule 8(a), a complaint need only include "`a short and plain statement of the claim showing that the pleader is entitled to relief.'" Id., 534 U.S. at 512 (quoting Rule 8(a)(2)). In fact, a plaintiff is not even required to plead the elements of a claim. See In re Initial Public Offering Sec. Litig., 241 F. Supp.2d 281, 323 (S.D.N.Y. 2003) ("Rule 8(a) does not require plaintiffs to plead the legal theory, facts or elements underlying their claim.").

  At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Phelps v. Kapnolas, Page 7 308 F.3d 180, 184-85 (2d Cir. 2002) (per curiam) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Therefore, the task of the court in ruling on a Rule 12(b)(6) motion is "`merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Pierce v. ...

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