United States District Court, S.D. New York
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
OPINION AND ORDER
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.
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
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
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.
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
continues to experience severe pain and suffering due to "inadequate
medical care." Complaint ¶ 37.
II. LEGAL STANDARDS
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,
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. Marano, No. 01
Civ. 3410, 2002 WL 1858772, at *3 (S.D.N.Y. Aug. 13, 2002) (quoting
Saunders v. Coughlin, No. 92 Civ. 4289, 1994 WL 98108, at *2 (S.D.N.Y.
Mar. 15, 1994)).
When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court
must accept all factual allegations in the complaint as true and draw all
reasonable inferences in plaintiffs favor. See Chambers v. Time Warner,
Inc., 282 F.3d 147, 152 (2d Cir. 2002). Because "most pro se plaintiffs
lack familiarity with the formalities of pleading requirements, [courts]
must construe pro se complaints liberally, applying a more flexible
standard to evaluate their sufficiency." Lerman v. Board of Elections in
the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v.
Rowe, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21
(1972)). Thus, dismissal is "`appropriate only if it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief'" Friedl v. City of New York,
210 F.3d 79, 83 (2d Cir. 2000) (quoting Harris v. City of New York,
186 F.3d 243, 250 (2d Cir. 1999)
(internal quotation marks and citation omitted)). Finally, it is
particularly important to read a pro se complaint liberally where, as
here, it alleges civil rights violations. See Thompson v. Carter,
284 F.3d 411, 416 (2d Cir. 2002); Morales v. Mackalm, 278 F.3d 126, 130
(2d Cir. 2002) (per curiam).
B. Deliberate Indifference to Serious Medical Needs
The Eighth Amendment prohibits the infliction of cruel and unusual
punishment on prisoners. In Estelle v. Gamble, 429 U.S. 97, 104 (1976),
the Supreme Court held that "deliberate indifference to serious medical
needs of prisoners constitutes the `unnecessary and wanton infliction of
pain' . . . proscribed by the Eighth Amendment." (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)). See also Farmer v. Brennan,
511 U.S. 825, 834 (1994) ("To violate the Cruel and Unusual Punishments
Clause, a prison official must have a sufficiently culpable state of
mind. . . . In prison-conditions cases that state of mind is one of
`deliberate indifference' to inmate health or safety. . . .") (internal
quotation marks and citations omitted).
To sustain a claim of deliberate indifference to medical needs, a
plaintiff must satisfy a two-part test. The objective component requires
the alleged deprivation to be sufficiently serious. See Hudson v.
McMillian, 503 U.S. 1, 9 (1992) ("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.").
Accordingly, "only those deprivations denying `the minimal civilized
measure of life's necessities,' are sufficiently grave to form the basis
of an Eighth Amendment violation. Wilson v. Setter, 501 U.S. 294, 298
(1991) (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)). This
standard contemplates a "condition of urgency, one that may produce
death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607
(2d Cir. 1990) (Pratt, J., dissenting)). A serious medical need arises
where "the failure to treat a prisoner's condition could result in
further significant injury or the unnecessary and wanton infliction of
pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal
quotation marks and citation omitted).
To satisfy the subjective prong of the test, prison officials must have
acted with a sufficiently culpable state of mind, i.e., deliberate
indifference. See Farmer, 511 U.S. at 834. Plaintiff must therefore show
that prison officials intentionally denied, delayed access to, or
intentionally interfered with prescribed treatment. See Estelle, 429
U.S. at 104-05. See also Farmer, 511 U.S. at 837 ("[A] prison official
cannot be found liable under the Eighth Amendment for denying an inmate
humane conditions of confinement unless the 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."). "[T]he subjective element of deliberate indifference
`entails something more than mere negligence . . . [but] something less
than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.'" Hathaway v. Coughlin II, 99 F.3d 550,
553 (2d Cir. 1996) (quoting Farmer, 511 U.S. at 835). Accordingly,
subjective recklessness can satisfy the deliberate indifference standard
where "the official has actual knowledge that the prisoner faced a
substantial risk of serious harm and disregards that risk by failing to
take reasonable measures to abate it." Farmer, 511 U.S. at 847. However,
"[m]edical malpractice does not become a constitutional violation merely
because the victim is a prisoner." Estelle, 429 U.S. at 106.
A. Lack of Personal Involvement
Defendants Koenigsmann and Phillips argue that they should be
dismissed from this lawsuit because plaintiff has not alleged their
personal involvement in the claimed constitutional violations. See
Memorandum of Law in Support of Defendants' Motion to Dismiss ("Def.
Mem.") at 6. "It is well settled
in this Circuit that `personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of damages
under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting
Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). The
Second Circuit has identified the following five ways in which the
personal involvement of a defendant may be shown:
(1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after
being informed of the violation through a report or
appeal, failed to remedy the wrong, (3) the defendant
created a policy or custom under which
unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5)
the defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Here, plaintiff is in effect complaining of two practices or policies
of the Green Haven SHU: (1) limiting distribution of medication to two
times per day; and (2) banning medical visits to facilities outside the
prison. Superintendent Phillips was made aware of both practices/policies
through plaintiffs inmate grievances. Assuming that Phillips himself did
not institute these practices/policies, he could nonetheless be found
liable for failing to remedy the wrong after being informed of a
violation and/or by failing to act on information
indicating that unconstitutional acts were occurring. Koenigsmann was
made aware of the cancelled outside treatments in the letters plaintiff
sent to him in May and June of 2003. Koenigsmann could similarly be found
liable for failing to act after being informed that constitutional
violations were being committed. The personal involvement of Koenigsmann
and Phillips, or lack thereof, is a matter to be explored in discovery.
It would be premature to conclude that these defendants were not
personally involved in the alleged constitutional violations based solely
on a review of the pleadings. Therefore, defendants Koenigsmann and
Phillips cannot be dismissed from this lawsuit for lack of personal
involvement at this stage of the proceedings.
B. Eleventh Amendment Immunity
Defendants Koenigsmann and Phillips argue that they are being sued in
their official capacities given plaintiffs alleged failure to show
personal involvement on their part. See Def. Mem. at 18-19. If sued in
their official capacities, plaintiffs suit is no different than a suit
against the State itself. See Ying Jing Gan v. City of New York,
996 F.2d 522, 529 (2d Cir. 1993) (citing Kentucky v. Graham, 473 U.S. 159,
166-67 (1985). Moreover, Eleventh Amendment immunity extends to damage
actions against state officials sued in their official capacities if the
State is the real party in interest. See Kentucky, 473
U.S. at 169.
The problem with defendants' argument is twofold. First, plaintiff
explicitly states that "[e]ach defendant is sued in his individual
capacity." Complaint ¶ 8. Second, given the discussion above,
Koenigsmann and Phillips may very well have been personally involved in
the alleged constitutional violations. For the time being, then, it must
be assumed that Koenigsmann and Phillips were not named as defendants
based upon their supervisory status but rather because of their own
actions, or inactions, as the case may be. Accordingly, defendants'
reliance on the Eleventh Amendment as a ground for dismissal is
C. Qualified Immunity
Public officials are "immune from liability for money damages in
suits brought against them in their individual capacities if `their
conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.'" Anthony v. City
of New York, 339 F.3d 129, 139 (2d Cir. 2003) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). Defendants do not, nor could
they, argue that the Eighth Amendment does not clearly proscribe
deliberate indifference to an inmate's serious medical needs. Rather,
defendants rely on their lack of personal involvement argument as to
Koenigsmann and Phillips. With regard to Nurse Dashawetz, defendants
argue that plaintiff has failed to allege that he was deliberately
indifferent to serious medical needs, which I will address shortly.
Suffice it to say that this is not a case where qualified immunity is
an appropriate defense. The right to be free from cruel and unusual
punishment is a clearly established constitutional right and this Court
cannot find, as a matter of law, that it was objectively reasonable for
defendants to believe that withholding pain medication and treatment did
not violate that right. Defendants either were deliberately indifferent
to plaintiffs serious medical needs or they were not. Qualified immunity
simply does not come into the picture.
D. Deliberate Indifference on the Part of Nurse Dashawetz
Defendants argue that Nurse Dashawetz, plaintiffs primary medical
care provider at Green Haven, was not deliberately indifferent to
plaintiffs serious medical needs given the numerous efforts he made in
an attempt to alleviate plaintiff Spain. See Def. Mem. at 13-16.
I agree. Soon after plaintiff began complaining of headaches in December
of 2001, Dashawetz arranged for him to be seen by a neurologist.
Following the assault on plaintiff in May of 2002, Dashawetz prescribed
Motrin and other pain medication. Dashawetz was also the person who
initially prescribed Ultram and ordered a CAT scan for plaintiff.
When plaintiffs pain continued unabated, Dashawetz arranged for him to
be seen at the Pain Clinic at St. Agnes Hospital. Although Dashawetz's
plan of treatment did not ultimately succeed in alleviating plaintiffs
suffering, this does not equate to deliberate indifference on his part.
See Ramos v. Artuz, No. 00 Civ. 149, 2003 WL 342347, *9 (S.D.N.Y. Feb.
14, 2003) (finding that "a course of treatment [that] is unsuccessful
does not even establish medical malpractice. . . . A fortiori, it cannot
support a finding of deliberate indifference since deliberate
indifference requires a level of culpability beyond malpractice").
Nor did Nurse Dashawetz play any role in reducing plaintiffs dosage of
Ultram from three times per day to two once plaintiff entered the SHU.
This was an administrative decision concerning the availability of
escorting officers beyond Dashawetz's control. Similarly, plaintiff fails
to allege that Dashawetz had anything to do with the cancellation of his
trips to the St. Agnes Pain Clinic. This decision, allegedly the result
of a lack of funds, also came from supervisory personnel higher up in the
chain of command than Dashewetz. By plaintiffs own admission, Dashawetz
tried to accommodate his medical needs by prescribing various pain
medications, arranging for a CAT scan, and scheduling visits with an
outside pain clinic. Given these steps, it can hardly be said that
Dashawetz had a callous disregard for plaintiffs suffering or was
otherwise trying to punish him.
Accordingly, plaintiffs claim of deliberate indifference against
Dashawetz is untenable and he is therefore dismissed from this lawsuit.
For the foregoing reasons, nurse practitioner Stanley Dashawetz is
dismissed as a defendant in this lawsuit. The motions to dismiss made by
Koenigsmann and Phillips are denied, subject to reconsideration at the
summary judgment stage. An initial Rule 16 conference is scheduled for
March 1, 2004, at 3:30 p.m. Because plaintiff remains incarcerated, he
will not be able to attend the conference. However, he may send a family
member or representative to the conference to represent him. In any
event, he will be provided with a transcript of the proceedings. The
Clerk of the Court is directed to close this motion which is docketed as
document number 7.