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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


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. 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) Page 8 (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 Page 9 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 Page 10 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 Page 11 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 Page 12 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 Page 13 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 misplaced.

  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 Page 14 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. Page 15

  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. Page 16

  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.

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