United States District Court, S.D. New York
April 12, 2004.
CORNELL CURRY, Plaintiff, -v.- BRIAN FISCHER, DR. J. PERILLI, DR. CURTIS JOHNSON, DR. SUSAN STUKES, and NURSE COUGHLIN, Defendants
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
Cornell Curry, currently an inmate at the Franklin Correctional
Facility, has brought this suit pro se under 42 U.S.C. § 1983 against
various employees of the Sing Sing Correctional Facility ("Sing Sing")
alleging that they were deliberately indifferent to his dental needs in
violation of his rights under the Eighth Amendment. Defendants the
Superintendent of Sing Sing and members of Sing Sing's dental staff
have moved to dismiss Curry's complaint pursuant to Fed.R.Civ.P. 12(b)(6).
For the following reasons, the motion should be granted and Curry should
be permitted to file an amended complaint.
A. Procedural History
The complaint in this action was filed on June 13, 2002. Complaint,
filed June 13, 2002 (Docket #2) ("Compl."). The case was subsequently
held in abeyance to allow Curry to exhaust his administrative remedies
and was reopened by Order of the court on March 6, 2003. See Order, filed
March 6, 2003 (Docket #5). On June 10, 2003, defendant Brian Fischer
filed a motion to dismiss in lieu of an answer. See Notice of Motion, filed June
10, 2003 (Docket #14). In response, Curry submitted several documents
including a "Notice of Affidavit in Opposition to Defendants Motion to
dismiss the Complaint," dated July 7, 2003, filed August 22, 2003 (Docket
#24) ("Affidavit"), which attached exhibits. Because this affidavit
contained factual allegations that were not contained in the original
complaint, the Court construed Curry's July 7, 2003 submissions as a
motion to amend the complaint and deemed the factual allegations of the
affidavit to supplement the allegations in the original complaint. See
Order, filed August 22, 2003 (Docket #22). Thereafter, defendants filed
the instant motion to dismiss. See Notice of Motion, filed September 22,
2003 (Docket #28).
For purposes of this motion, the facts alleged in the complaint and
Curry's July 7, 2003 affidavit are assumed to be true.
On November 30, 2000, while incarcerated at Sing Sing, Curry requested
medical attention for an abscess forming in his mouth. He was assigned to
Dr. Susan Stukes, who took x-rays and prescribed Motrin. Curry requested
antibiotics but Dr. Stukes would not prescribe them. Compl. ¶ 1.
On December 13, 2000, Curry was taken to the Sing Sing emergency room
where Nurse Coughlin informed him that the abscess had burst, causing an
infection in his mouth, swelling to his face, and a high temperature. She
prescribed an antibiotic and Tylenol and issued Curry a pass valid for 72
hours so he could return to the emergency room. Compl. ¶ 2; Affidavit
¶ 3. On December 14, 2000, when Curry went to see Dr. Stukes, Dr.
Stukes handed him a prescription for Motrin in the waiting room. She told
Curry that she was busy, that she had reviewed Nurse Coughlin's report from the night before, and that
she would not examine him. Compl. ¶ 3; Affidavit ¶ 4.
On December 18 and 19, 2000, Curry was issued emergency passes to see
Dr. Stukes in the dental department but Dr. Stukes apparently cancelled
these passes and refused to see Curry. Compl. ¶ 4; Affidavit ¶ 5.
On December 20, Curry was seen by the sick-call nurse, Nurse Hanson.
Because the swelling was spreading, she sent Curry to the dental
department but Dr. Stukes again refused to see him. Compl. ¶ 5. On
either the 20th or 22nd, additional x-rays were taken, Curry was
prescribed Amoxicillin, and he was scheduled to return a few days later.
Compl. ¶ 6; Affidavit ¶ 6.
On December 29th, Curry complained to the sick-call nurse that his
condition had worsened. Specifically, he complained of pain and
difficulty sleeping and eating. Nurse Hanson told him that he needed to
be seen by Dr. Stukes but Dr. Stukes refused to see him. Compl. ¶ 7. On
January 5, 2001, Curry was seen by Nurse Hanson, who measured his
temperature at 102 degrees and again issued an emergency pass to see Dr.
Stukes. Compl. ¶ 9; Affidavit ¶ 9. Curry's complaint states that Dr.
Stukes did see Curry on January 5 but dismissed him without prescribing
an antibiotic. Compl. ¶ 9. His affidavit, however, alleges that she
refused to see him at all on that date. Affidavit ¶ 9. Curry also sought
treatment on January 6, 8, and 9 but ran into difficulty obtaining the
medications Nurse Hanson prescribed and was denied the treatment he
requested. Compl. ¶¶ 10-11; Affidavit ¶¶ 10-11.
On January 11 or 12, 2001, x-rays were taken. However, the radiologist
had difficulty taking the x-rays because of the swelling. When Dr. Stukes
was called in, she prescribed Amoxicillin to treat the swelling. However,
Dr. Stukes refused to provide any medication to address the migraine headaches Curry was experiencing. Compl. ¶
12; Affidavit ¶ 12. Also, she told Curry that if the x-rays could not
be taken on the subsequent appointment, "he will have to treat himself,
because she was not going to the trouble." Compl. ¶ 12.
By sometime between January 16 and 18, the swelling had spread to
Curry's neck and glands. He saw Dr. Curtis Johnson and explained the
problems he was having with Dr. Stukes. Dr. Johnson told Curry that he
was assigned to Dr. Stukes and that she would handle his medication.
Compl. ¶¶ 13-14; Affidavit ¶ 13. Dr. Stukes refused to prescribe
any medications. Affidavit ¶ 13.
The sick-call nurse wrote Curry another pass for dental care on January
19, 2001. Again, Dr. Stukes refused to examine him even though the
swelling had spread down his neck. Dr. Stukes ordered him to leave and
stated that she was busy and would not examine him every time a nurse
sent him to see her. Compl. ¶ 15; Affidavit ¶ 14.
Curry was seen on January 23, 2001 by Dr. Kyee Maw, who prescribed
Augmentin and Motrin. Compl. ¶ 16. He again saw Dr. Maw on February 7,
2001 after this medication had run out. Id. ¶¶ 17-18. Dr. Maw called Dr.
Stukes into the room and explained that because the antibiotic should
have reduced the swelling completely but it had not, Curry needed to be
seen by an oral specialist. Id. ¶ 18. On February 13, 2001, Curry was
seen by an oral specialist who believed that Curry's migraines and loss
of feeling in his jaw may have been attributable to a tumor and scheduled
Curry for a CT Scan. Id. ¶ 19.
In March 2001, Curry continued to complain about the constant pain and
migraines he was experiencing. On March 1, Dr. Stukes refused to see him.
Compl. ¶ 20; Affidavit ¶ 17. On March 9, 10, and 12, Curry sought but did not receive treatment.
Compl. ¶¶ 22-23; Affidavit ¶¶ 18-20.
On March 7, 2001, Curry was taken to St. Agnes Hospital for the CT
Scan. The procedure could not be done, however, because the required
blood samples were not on file. Compl. ¶ 21. On March 27, the scan was
performed and no malignancy was found. Id. ¶ 25. On April 3, 2001, the
oral specialist ordered an MRI to make sure that a tumor was not
Also at that appointment, the oral specialist informed Curry that the
swelling on the left side of his face was permanent and that the nerves
in his jaw area were permanently damaged from the swelling persisting so
long. The doctor told Curry that there was no medication or treatment
that would help at this point. Id. ¶ 26.
On May 7, 2001, Curry was seen by Philip Williams, a physician's
assistant, who concurred with the oral specialist and the radiologist
that an MRI was necessary to make sure a tumor was not developing.
Compl. ¶ 27; Affidavit ¶ 22. Nonetheless, two days later, Williams
informed Curry that Dr. J. Perilli, the Facility Health Services
Director, refused the MRI and recommended "B" complex vitamins instead.
Affidavit ¶ 22. On August 14, 2001, the oral specialist informed Curry
that he had argued with Dr. Perilli and finally convinced him to order an
MRI. Id. ¶ 23. Curry underwent this MRI sometime thereafter and learned
in November 2001 that the results were again negative. Compl. ¶ 29.
Over a year later, in October 2002, a doctor at Fishkill Correctional
Facility examined Curry and informed him that three nerves in his face
were permanently damaged. This doctor said he recommended no further
tests. Affidavit ¶ 24. Curry alleges that he continues to suffer from
severe pain. He also alleges permanent loss of feeling and taste in the
left side of his mouth and jaw and permanent swelling in the left side of his face. 3Compl. ¶
IV-A. Curry seeks $1 million in compensatory damages and $1 million in
punitive damages. 0Compl. ¶ V.
II. STANDARD OF REVIEW
In resolving a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a court
must accept the factual allegations set forth in the complaint as true
and draw all reasonable inferences in favor of the plaintiff. Scheuer v.
Rhodes. 416 U.S. 232, 236 (1974); Anderson v. Recore, 317 F.3d 194, 197
(2d Cir. 2003). A complaint should not be dismissed for failure to state
a claim "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). In making this evaluation,
complaints drafted by pro se plaintiffs are held "`to less stringent
standards than formal pleadings drafted by lawyers,'" Boddie v.
Schnieder, 105 F.3d 857, 860 (2d Cir. 1997) (quoting Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam)), and they should be interpreted
"`to raise the strongest arguments that they suggest,'" Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994)).
The defendants have moved to dismiss the complaint on the following
grounds: (1) Curry has failed to allege a serious medical or dental need
that was deliberately neglected by defendants, (2) Curry has failed to
exhaust his administrative remedies, and (3) the defendants are entitled
to qualified immunity. See Memorandum of Law in Support of Motion to
Dismiss the Complaint, filed September 22, 2003 (Docket #29), at 2-3.
Defendant Fischer also argues for dismissal because Curry fails to allege
his personal involvement in the alleged constitutional violations. Id. at
14-17. Because Curry's own papers concede that he did not exhaust his administrative remedies with respect to the matters raised in his
complaint, it should be dismissed on that basis alone.
The Prison Litigation Reform Act ("PLRA") provides in relevant
No action shall be brought with respect to prison
conditions under section 1983 of this title, 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
42 U.S.C. § 1997e(a). Accordingly, a prisoner "must pursue his challenge
to the conditions in question through the highest level of administrative
review prior to filing his suit." Flanagan v. Maly, 2002 WL 122921, at *2
(S.D.N.Y. Jan. 29, 2002) (citations omitted): see also Porter v. Nussle,
534 U.S. 516
, 524 (2002) ("All `available' remedies must now be
exhausted; those remedies need not meet federal standards, nor must they
be `plain, speedy, and effective.'" (citations omitted)). The Supreme
Court has 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." Porter, 534 U.S. at 532. The exhaustion
requirement applies even when a plaintiff seeks relief not available in
prison administrative proceedings, such as monetary damages. See Booth v.
Churner, 532 U.S. 731
In New York, formal exhaustion for state prisoners requires complying
with the three-step grievance and appeal procedure outlined in the Inmate
Grievance Program, N.Y. Comp. Codes R. & Regs. tit. 7 ("7 N.Y.C.R.R."),
§ 701.7. See Hemphill v. New York, 198 F. Supp.2d 546, 548 (S.D.N.Y.
2002). In brief, an inmate must first file a complaint with the Inmate Grievance Resolution Committee ("IGRC"). 7 N.Y.C.R.R. § 701.7(a). Next,
after receiving a response from the IGRC, the inmate must appeal to the
superintendent of the facility. Id. § 701.7(b). Finally, after receiving
a response from the superintendent, the prisoner must seek review of the
superintendent's decision with the Central Office Review Committee
("CORC"). Id § 701.7(c). See generally Petit v. Bender. 2003 WL
22743485, at *4 (S.D.N.Y. Nov. 19, 2003). "A prisoner has not exhausted
his administrative remedies until he goes through all three levels of the
grievance procedure." Hemphill, 198 F. Supp.2d at 548; accord Sulton v.
Wright, 265 F. Supp.2d 292, 296 (S.D.N.Y. 2003) (inmates must "exhaust
all administrative remedies, at all levels of appeal, in order for their
claims to survive a motion to dismiss" (internal quotation marks and
citations omitted)); Rivera v. Goord, 253 F. Supp.2d 735, 746 (S.D.N.Y.
Although several courts have held that 7 N.Y.C.R.R. § 701.7 provides
the exclusive method of exhaustion, see, e.g., Rodriguez v. Hahn,
209 F. Supp.2d 344, 347-48 (S.D.N.Y. 2002), the Second Circuit has stated
in dictum that successful "[resolution of the matter through informal
channels satisfies the exhaustion requirement, as, under the
administrative scheme applicable to New York prisoners, grieving through
informal channels is an available remedy," Marvin v. Goord, 255 F.3d 40,
43 n.3 (2d Cir. 2001) (citing 7 N.Y.C.R.R. § 701.1 ("[T]he inmate
grievance program (IGP) is intended to supplement, not replace, existing
formal or informal channels of problem resolution.")). The resolution of
the problem through informal means, within the time period in which a
grievance or appeal must be filed, obviates the need for the inmate to
utilize formal procedures. See Dixon v. Goord, 224 F. Supp.2d 739, 749
(S.D.N.Y. 2002) ("The exhaustion requirement is satisfied by resolution
of the matter, i.e., an inmate is not required to continue to complain after his grievances have been
addressed."); Perez v. Blot, 195 F. Supp.2d 539, 546 (S.D.N.Y. 2002)
("[Plaintiff's] alleged complaints to correctional officials about the
assault purportedly secured the same favorable resolution available to
him pursuant to the [formal] procedure. . . . [I]t would make little
sense to demand that Plaintiff jump through the further, elaborate hoops
of the IGP procedure."). The contours of this aspect of the exhaustion
requirement are not well-settled and the Second Circuit has recently
appointed counsel in a number of cases to clarify "whether inmates who did
not fully comply with the dictates of New York law nonetheless exhausted
their claims in other ways," Ortiz v. McBride, 323 F.3d 191, 194 (2d
In this case, Curry alleges filing two grievances: the first in January
2001 and the second in October 2002. Compl. ¶ 8; Affidavit ¶ 25.
Each is discussed in turn.
B. January 2001 Grievance
Curry filed his first grievance based on Dr. Stukes's refusal to
prescribe additional antibiotics on December 14, 2000 and based on the
fact that his antibiotics had run out as of December 27, causing his
mouth to become infected. Compl. ¶ 8; Grievance No. 32771-01, dated
January 2, 2001 (annexed as Ex. G to Affidavit). After the IGRC denied
his requested relief, Curry appealed to the Superintendent, Brian
Fischer, who also denied Curry's request stating that Curry's medical
needs were being met, as Curry was seen on January 11 and 21, 2001.
Decision of Superintendent Fischer, dated January 31, 2001 (annexed as
Ex. G to Affidavit); Compl. ¶ 8; Affidavit ¶ 16. However, it is
undisputed that Curry did not timely appeal the Superintendent's
determination to the CORC. Instead, he purported to submit an appeal
almost two years later, after this suit was filed. See Letter to Director
of CORC, dated October 10, 2002 ("CORC Letter") (annexed as Ex. L to Affidavit).
Unless Curry satisfied the exhaustion requirement through some informal
channel, his failure to appeal to the CORC in a timely fashion renders
his grievance regarding deliberate indifference unexhausted.
In his letter to the Director of CORC, Curry appears to argue that he
did not appeal to the CORC because at the time he received the
Superintendent's decision, his complaints had been resolved to his
satisfaction. See CORC Letter at 1-2 (explaining that the day after Curry
received Fischer's decision, he was informed that he would be seen by an
outside oral specialist, who then told him he would be seen on a regular
basis). However, the facts as set forth in Curry's own complaint and
affidavit in this case state otherwise. In these documents, Curry
contends that he in fact was not seen by anyone in the dental department
on January 21, 2001, a Sunday. Compl. ¶ 8; Affidavit ¶ 16. He also
alleges that after filing the grievance, he continued to be refused
antibiotics on multiple occasions in January, early February, and March.
Compl. ¶¶ 9-15, 17, 20-23; Affidavit ¶¶ 9-15, 17-20. Ultimately, Curry was
seen by an oral specialist but his complaint states that this was not
suggested until February 7 and that he did not see the specialist until
February 13. Compl. ¶¶ 18-19.
In any event, inmates must appeal the decision of the Superintendent to
the CORC within four working days. 7 N.Y.C.R.R. § 701.7(c). It is clear
that during this four-day period Curry had no reason to believe that the
issue he raised in his grievance had been successfully resolved a fact
that might have eliminated his obligation to appeal to the CORC. See
Marvin, 255 F.3d at 43 n.3 (inmate's submissions indicated that he
succeeded in overturning a prohibition on his correspondence by
complaining to various correctional officers); Branch v. Brown, 2003 WL
21730709, at *6, *12 (S.D.N.Y. July 25, 2003) (grievance regarding
doctor's failure to see inmate considered resolved for exhaustion purposes when grievance
supervisor informed him that he was scheduled to see doctor as
The informal complaints Curry made to Dr. Johnson and Dr. Perilli also
do not satisfy the exhaustion requirement because neither resolved his
problem. In mid-January 2001, while his grievance was pending, Curry
mentioned the problems he was having with Dr. Stakes to Dr. Johnson.
Compl. ¶ 14; Affidavit ¶ 13. In March 2001, Curry wrote to Dr. Perilli
complaining that he was not receiving treatment for "a very serious
problem." Letter to Dr. Perilli, dated March 15, 2001 (annexed as Ex. I to
Affidavit); Compl. ¶ 24; Affidavit ¶ 21. However, Curry does not
contend that either resulted in a successful resolution of his problem.
Indeed, he alleges precisely the opposite that in January Dr. Johnson
told him Dr. Stukes was in charge of his medication and that in March
Dr. Perilli referred his letter to Dr. Johnson, who did not respond. See
Compl. ¶¶ 14, 24; Affidavit ¶¶ 13, 21. Since informal channels did not lead
to the resolution of his complaints, Curry cannot be deemed to have
informally exhausted his remedies. See Hernandez v. Coffey, 2003 WL
22241431, at *3 n.4 (S.D.N.Y. Sept. 29, 2003) (informal exhaustion cannot
be found where no resolution is reached despite many pleas and letters);
Branch, 2003 WL 21730709, at *12 ("[L]etters to the superintendent alone
do not satisfy the exhaustion requirement when dissatisfied with the
results of the process. . . ."); see also Harris v. Totten,
244 F. Supp.2d 229, 233 (S.D.N.Y. 2003) ("[L]etters to prison officials
do not satisfy the exhaustion requirement of the PLRA where the inmate
has failed to follow the established grievance procedures." (citing
Put simply, Curry failed to file an appeal with CORC within the
deadline of four working days after the Superintendent's decision as was
required for full exhaustion of his claim. See 7 N.Y.C.R.R. § 701.7(c). "Courts in this jurisdiction have regularly held
that failure to timely file an appeal during the administrative grievance
process, followed by a subsequent denial of access by CORC due to
untimeliness, will not constitute exhaustion." Petit, 2003 WL 22743485,
at *5 (citing cases). As the Petit court explained, allowing an inmate to
satisfy the exhaustion requirement by attempting to file a late appeal to
the CORC "is antithetical to the PLRA's goal of `reducing] the perceived
burdensome flow of prisoner litigation.'" Id. (citations omitted).
B. October 2002 Grievance
The second grievance, which Curry filed in October 2002, is fully
exhausted, as Curry appealed to both the Superintendent and the CORC, as
required under the PLRA and New York's Inmate Grievance Program. See
Affidavit ¶ 25; Decision of CORC, dated December 5, 2002 ("CORC
Decision") (annexed as Ex. L to Affidavit); Decision of the
Superintendent, dated November 5, 2002 ("Superintendent Decision")
(annexed as Ex. L to Affidavit). But it is not enough to satisfy the
PLRA's exhaustion requirement that some issue has been exhausted: there
must be a connection between the administrative grievance and the matters
raised in the federal court complaint. As one court put it, the PLRA
requires an inmate to have exhausted a grievance that challenged the
conditions "in question" in his suit. Flanagan, 2002 WL 122921, at *2.
The facts alleged in Curry's second grievance do not encompass the facts
contained in his complaint in this case. Curry's second grievance
concerns only the oral surgeon's final decision not to order any further
tests regarding Curry's ongoing condition. See Grievance No. 23499-02,
dated October 9, 2002 (annexed as Ex. L to Affidavit). Although the
grievance describes some of the early history of Curry's dental problems
stating, for example, that the problem began two years earlier at Sing
Sing when Dr. Stukes failed to prescribe an antibiotic for an abscess in Curry's mouth it does not seek redress for the defendants' past
deliberate indifference but rather only for the denial of any further
medical evaluation of his present condition. Id. at 1-2.*fn1 The only
relief it seeks is that prison officials "provide further tests . . . to
determine exactly what the problem is with my jaw and the pain from it."
Id. at 1. The grievance does not discuss the alleged deliberate
indifference of any of the defendants named in this suit other than Dr.
Stukes. See id. at 2. Thus, when the CORC upheld the determination of the
Superintendent that no further treatment was necessary, it made no ruling
regarding the actions of any of the defendants named in this case or the
various allegations raised in the complaint. See CORC Decision; see also
In Baskerville v. Blot, the court held that the exhaustion requirement
was satisfied despite the fact that "[t]he scope of the grievance that
plaintiff filed . . . was much narrower than the issues he [was] raising
in the instant complaint." 224 F. Supp.2d 723, 730 (S.D.N.Y. 2002).
However, the Baskerville court based its decision on the fact that the
broader assault claim raised in the federal suit had been investigated
and ruled upon by the CORC, even though the underlying facts of the
assault were not explicitly laid out in the grievance. Id. Such treatment
is not warranted here where the disposition of Curry's second grievance
did not address his multiple allegations of past deliberate indifference
as reflected in the complaint. The allegations in the complaint relate to
the actions of Superintendent Fischer, Dr. Stukes, Dr. Johnson, Dr.
Perilli, and Nurse Hanson. The October 2002 grievance, by contrast, did
not state that he had present grievances against these individuals. In sum, Curry has failed to
exhaust the issues raised in his complaint.
Nonetheless, because Curry is proceeding pro se, he is entitled to
leave to amend his complaint if "a liberal reading of the complaint gives
any indication that a valid claim might be stated,'" Gomez v. USAA Fed.
Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (quoting Branum v. Clark.
927 F.2d 698, 705 (2d Cir. 1991)). Because there is arguably some
connection between the original complaint and a potential claim addressed
to the matter actually exhausted that is, Curry's request for further
testing to diagnose his existing jaw condition Curry should be granted
leave to file an amended complaint that raises solely this claim. This
grant of course would be without prejudice to any arguments that
defendants may make that the amended complaint fails to state a claim, is
time-barred, or is otherwise improper. Such arguments, however, will be
addressed by the Court only if Curry chooses to avail himself of the
opportunity to submit such an amended complaint. Curry is forewarned that
he must name as defendants in such an amended complaint only those
individuals who actually committed the alleged constitutional violation.
And, of course, the complaint may address only the matter raised in the
October 2002 grievance.
For the foregoing reasons, Curry's complaint should be dismissed with
leave to file an amended complaint that sets forth a cause of action
relating solely to the matter raised in his October 2002 grievance. PROCEDURE FOR FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules
of Civil Procedure, the parties have ten (10) days from service of this
Report and Recommendation to file any objections. See also Fed.R.Civ.P.
6(a), (e). Such objections (and any responses to objections) shall be
filed with the Clerk of the Court, with copies sent to the Hon. Jed S.
Rakoff, 500 Pearl Street, New York, New York 10007, and to the
undersigned at 40 Centre Street, New York, New York 10007. Any request
for an extension of time to file objections must be directed to Judge
Rakoff. If a party fails to file timely objections, that party will not
be permitted to raise any objections to this Report and Recommendation on
appeal. See Thomas v. Am. 474 U.S. 140 (1985).