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United States District Court, S.D. New York

May 9, 2005.

DR. CARL KOENIGSMANN, Individually, DR. STAN DASHAWETZ,[fn1] Individually, WILLIAM PHILLIPS, Superintendent, Individually, Defendants.

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

*fn1 Sued incorrectly herein as "Dr. Stan Dashawetz." Nurse practitioner Stanley Dashawetz was dismissed from this lawsuit in an Opinion and Order dated February 17, 2004, granting in part and denying in part defendants' motion to dismiss.


  Anthony Williams, proceeding pro se, brings suit under section 1983 of Title 42 of the United States Code ("section 1983") alleging that defendants were deliberately indifferent to his serious medical needs in violation of the Eighth and Fourteenth Amendments to the United States Constitution. In particular, plaintiff claims that Dr. Koenigsmann and Superintendent Phillips were deliberately indifferent to his serious medical needs because his pain medication was reduced while he was in the Special Housing Unit ("SHU") and his treatment at an outside pain management clinic was temporarily interrupted. Defendants now move for summary judgment dismissing the Complaint on a number of grounds including: (1) failure to exhaust administrative remedies; (2) failure to demonstrate any personal involvement of defendants in the alleged constitutional violations; and (3) inability to prove that defendants acted with deliberate indifference to his serious medical needs. For the following reasons, defendants' motion is granted and this case is dismissed.

  I. FACTS*fn2

  A. Plaintiff's Injuries

  Plaintiff has been in the custody of the Department of Correctional Services ("DOCS") since January 31, 1999, and, at all times relevant, was incarcerated at the Green Haven Correctional Facility. See Defendants' Statement of Material Facts Pursuant to Local Civil Rule 56.1 ("Def. 56.1") ¶¶ 1-2. In August 1995, plaintiff was shot twice in the head which resulted in a year-long coma. See id. ¶ 3. Plaintiff claims that bullet fragments remain lodged inside his brain, causing him to suffer severe headaches and other pain. See id. ¶ 4. On May 19, 2002, plaintiff was assaulted by another inmate at Green Haven who struck him in the base of his head and rendered him unconscious. See id. ¶¶ 5-6. Plaintiff claims that this injury exacerbated the pain he was already suffering. See id. ¶ 7.

  B. Medical Treatment

  Beginning in June 2002, plaintiff was put on a trial of several different pain medications by Green Haven medical personnel to determine the medications that were the most efficacious for him. See id. ¶ 8. These medications included Midrin, Imitrex, Naprosyn, Percogesic, Neurontin, Tegretol, Zanaflex, Verapamil and Depakote. See id. ¶ 9. During this period, plaintiff was offered the opportunity to be treated with a Duragesic patch, but he refused.*fn3 See id. ¶ 10. After sampling the above medications, Ultram was chosen for plaintiff's pain management. See id. ¶ 11. Plaintiff was initially started at a 50 milligram dose of Ultram twice a day which gradually rose to a 100 milligram dose three times a day. See id. ¶ 12. Plaintiff had been receiving 100 milligrams of Ultram three times a day for approximately three weeks before being sent to the SHU. See id. ¶ 13.

  Green Haven's medical personnel also allowed plaintiff to receive treatment at the St. Agnes Hospital pain management clinic operated by Dr. Lawrence J. Epstein. See id. ¶ 14. At the clinic, plaintiff received occipital nerve block injections to the base of his skull which provided him with some relief for a period of time after each injection. See id. ¶ 15. Plaintiff received two injection treatments, one in January and the other in February 2003. See id. ¶ 16. In March 2003, plaintiff was told his visits to the clinic had been cancelled due to lack of funds. See id. ¶ 27. Actually, the clinic refused to treat DOCS inmates because a dispute arose concerning the manner in which DOCS reimbursed the clinic for inmate treatment. See id. ¶ 29. Neither Dr. Koenigsman nor Superintendent Phillips were involved in handling this dispute. See id. ¶ 30. DOCS made its best efforts to retain the services of a new pain management clinic and by October 2003, plaintiff began receiving nerve block injections at a new clinic. See id. ¶¶ 31-32. Neither defendant had any control over the retention of this new pain management clinic. See id. ¶ 33. Plaintiff claims that the interruption of his nerve block injection treatment caused him to suffer additional pain. See id. ¶ 35. C. Special Housing Unit

  In February 2003, plaintiff was placed in the SHU at Green Haven due to a positive drug test result. See id. ¶ 17. Upon being placed in the SHU, plaintiff's Ultram medication was reduced from three 100 milligram doses a day to two 100 milligram doses a day. See id. ¶ 18. The reduction was based on security protocol in the SHU that only allowed medical personnel to dispense medication to inmates twice a day due to the need for a security escort. See id. ¶ 19. Providing plaintiff with two 150 milligram doses a day would not have been optimal as it exceeds the maximum single dose suggested by Ultram's manufacturer and, as a result, could cause unwanted side effects. See id. ¶ 21.*fn4 When plaintiff was released from the SHU in July 2003, he again received 100 milligrams of Ultram three times a day. See id. ¶ 25.

  D. Plaintiff's Grievances

  Plaintiff complained about the reduction in his medication to Nurse Dashewetz and on March 6, 2003, filed a grievance (number GH-50932-03). This grievance was decided on April 15, 2003 by Acting First Deputy Superintendent Delores Thornton who determined that the reduction in plaintiff's medication was based on medical necessity. See id. ¶ 22. Plaintiff did not write to Superintendent Phillips or Dr. Koenigsmann about this issue when the grievance was being addressed. See id. ¶ 23. Plaintiff appealed the decision denying his request for increased medication to the DOCS' Central Office Review Committee ("CORC") which upheld the decision on May 22, 2003. See id. ¶¶ 23-24.

  On May 12, 2003 plaintiff filed another grievance (number GH-51316-03) regarding the interruption in his clinic treatment. See id. ¶ 36. The grievance was denied by Superintendent Phillips on August 15, 2003. See id. ¶ 37. Plaintiff never appealed the August 15, 2003 decision to the CORC. See id. ¶ 39.


  Summary judgment is appropriate if the evidence of record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is genuine `if the evidence is such that a jury could return a verdict for the nonmoving party.'" Overton v. New York State Div. of Military and Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). "A fact is material for these purposes if it `might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson, 477 U.S. at 248). The movant has the burden of demonstrating that no genuine issue of material fact exists. See Powell v. National Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. In determining whether a genuine issue of material fact exists, courts must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004). In raising an issue of fact, the non-moving party "`must do more than simply show that there is some metaphysical doubt as to the material facts,'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and must "come forward with `specific facts showing that there is a genuine issue for trial.'" Powell, 364 F.3d at 84 (quoting Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).

  Accordingly, a court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. Summary judgment is therefore inappropriate "if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002) (citing Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000)). However, "[i]f the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotation marks, citations and alterations omitted). "The `mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem., Inc. 315 F.3d 171 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).


  A. Plaintiff Failed to Exhaust Administrative Remedies with Respect to His Interruption of Clinic Treatment Claim

  The Prisoner Litigation Reform Act's ("PLRA") "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 v. Nussle, 534 U.S. 514, 524 (2002).*fn5 DOCS has set in place a grievance program with specific procedures that must be followed in order for a prisoner to exhaust his administrative remedies. See Sulton v. Greiner, No. 00 Civ. 727, 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000) ("[W]here an inmate fails to satisfy the PLRA's exhaustion requirement, the complaint must be dismissed."). In New York State, inmates may file internal grievances on practically any issue affecting their confinement. See N.Y. Correct. Law § 139 (authorizing inmates to file grievances). DOCS regulations permit inmates to file grievances in an attempt to resolve complaints internally. DOCS has established the following procedures that an inmate must follow in order to fully exhaust a claim:

DOCS' grievance procedures require that an inmate "submit a complaint to the Grievance Clerk within 14 calendar days of an alleged occurrence on Inmate Grievance Complaint Form #2131" or on plain paper. 7 N.Y.C.R.R. § 701.7(a)(1). After the complaint is filed, there is an informal resolution process whereby representatives have seven days to resolve the issue. 7 N.Y.C.R.R. § 701.7(a)(3). If there is not an informal resolution, there is a hearing, the result of which is appealable to the superintendent and then to the central office review committee ("CORC"). 7 N.Y.C.R.R. §§ 701.7(a)(4), (b) & (c)).
Vasquez v. Artuz, No. 99 Civ. 8427, 1999 WL 440631, at *5 (S.D.N.Y. June 28, 1999). Thus, for plaintiff to exhaust his administrative remedies, he must appeal all the way to the CORC. See Sulton, 2000 WL 1809284, at *3 ("These procedures include a requirement that an inmate appeal a Superintendent's decision to the CORC by filing an appeal with the Grievance Clerk.").

  The record demonstrates that plaintiff did not, in fact, appeal Superintendent Phillips' August 15, 2003 decision concerning grievance GH-51316-03 to the CORC. Although plaintiff claims he wrote letters to prison officials prior to this determination,*fn6 such letters cannot be considered an appeal, particularly when a decision regarding his grievance had not yet been rendered. In any event, writing letters to prison officials does not excuse an inmate from appealing an unfavorable decision.*fn7 Plaintiff's earlier grievance (GH-50932-03), filed March 6, 2003, dealt exclusively with the reduction of the amount of Ultram plaintiff was receiving while in the SHU. It did not address the interruption of plaintiff's treatment at an outside pain management clinic or his receipt of occipital nerve block injections. The entirely separate issue of plaintiff's treatment at the pain management clinic was not grieved until May 12, 2003, when plaintiff filed grievance number GH-51316-03. The decision regarding that grievance was not appealed, yet it was an appealable grievance. Accordingly, plaintiff has failed to exhaust his administrative remedies with respect to his pain management clinic claim which must therefore be dismissed.*fn8 See Vasquez, 1999 WL 440631, at *7 ("Since Vasquez admits that he has not exhausted his administrative remedies, his claim is dismissed without prejudice."). B. Plaintiff Cannot Show Personal Involvement on the Part of Defendants

  Liability under section 1983 requires that the defendant be personally involved in a constitutional deprivation; liability cannot be based on a respondeat superior theory. See Monell v. Department of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978); Hemmings v. Gorczyk, 134 F.3d 104, 109 n. 4 (2d Cir. 1998) ("We reemphasize that respondeat superior cannot form the basis for a § 1983 claim"). ("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)). Broad, conclusory allegations that a high-ranking defendant was informed of an incident are also insufficient to impose liability. See Word v. Croce, 230 F. Supp. 2d 504, 514 (S.D.N.Y. 2002). Plaintiff must demonstrate that each defendant he seeks to hold liable acted with deliberate indifference to his serious medical needs. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) ("[T]he liability of each defendant depends on a showing that he or she acted with deliberate indifference."). In Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), the Second Circuit 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.
Id. at 873. Absent a showing of such involvement, a defendant cannot be held liable.

  1. Superintendent Phillips

  Other than stating that Superintendent Phillips was "constructively and actually aware of conditions regarding his medical staff and the procedures set forth in medication runs to SHU and all outside trips" Complaint ¶ 38, Ex. A to the Declaration of Jeb Harben, defendants' attorney ("Harben Decl."), plaintiff has failed to produce any evidence linking Superintendent Phillips to the alleged constitutional violation. Plaintiff has not put forth any specific facts showing that Superintendent Phillips participated in any alleged medical indifference or that he created or continued a policy that allowed such a violation to occur. With respect to plaintiff's grievance regarding his reduced daily dosage of Ultram while in the SHU (number GH-50932-03), Superintendent Phillips did not handle that grievance and there is no evidence in the record indicating that Superintendent Phillips was aware of plaintiff's grievance, much less personally involved in the conduct at issue. See Declaration of William Phillips, Ex. H to the Harben Decl., ¶ 4 ("I was neither involved with, nor did I deny, this particular grievance."). This grievance was decided on April 15, 2003 by Acting First Deputy Superintendent Delores Thornton who, at that time, handled inmate grievances at Green Haven. See id. To the extent that Superintendent Williams may have ultimately become aware of the grievance through the instant litigation, or when he decided plaintiff's later grievance regarding his treatment at the pain management clinic, that awareness took place after plaintiff had been released from the SHU and the reduced Ultram dosage was a moot issue.

  Even if Superintendent Phillips had been aware of grievance number GH-50932-03 while plaintiff was still in SHU, it is well settled that prison supervisors cannot be held personally liable when the sole allegation is that they received letters or grievances. See Woods v. Goord, No. 01 Civ. 3255, 2002 WL 731691, at *7 (S.D.N.Y. Apr. 23, 2002) ("Receipt of letters or grievances . . . is insufficient to impute personal involvement"). As this Court previously explained, "[w]ere it otherwise, virtually every prison inmate who sues for constitutional torts by [prison officials] could name the [supervisor] as a defendant since the plaintiff must pursue his prison remedies, and invariably the plaintiff's grievance will have been passed upon by the [supervisor]." Id. (internal quotation marks and citation omitted) (brackets in original).

  In the absence of any factual allegations against him, Superintendent Phillips cannot be held personally liable simply because he is in a position of authority in the prison system. See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) ("[P]laintiff's claim for monetary damages . . . requires a showing of more than linkage in the prison chain of command; the doctrine of respondeat superior does not apply."). In sum, plaintiff cannot provide any evidence that Superintendent Phillips had any direct or personal involvement in the claimed constitutional violation. Accordingly, plaintiff's dose reduction claim against Superintendent Phillips is dismissed for lack of personal involvement. See Farid v. Goord, 200 F. Supp. 2d 220 (W.D.N.Y. 2002) (dismissing action against DOCS Commissioner and prison superintendent for lack of personal involvement where plaintiff merely sent petition to them and each referred the petition down the chain of command for investigation). 2. Dr. Carl Koenigsmann

  Similarly, plaintiff has not provided any evidence demonstrating the personal involvement of Dr. Koenigsmann, the Facility Health Services Director at Green Haven, with regard to his reduced daily dosage of Ultram while in the SHU. The evidence indicates that Physician's Assistant Donald Stevens investigated this grievance. See Green Haven Correctional Facility Case History & Record, Ex. E to the Harben Decl. That document does not refer to Dr. Koenigsmann. See id. Moreover, Dr. Koenigsmann has no recollection of being aware of the situation when it was occurring. See Declaration of Carl J. Koenigsmann ("Koengismann Decl."), Ex. G to the Harben Decl., ¶ 14 ("I have no recollection of being made aware of plaintiff's complaints about the dose reduction while [he] was in SHU and my review of the records does not indicate any notation that I was made aware of the situation or was asked to take any action."). Nor does the record contain any evidence to the contrary.

  Plaintiff conceded that Dr. Koenigsmann never treated him, examined him, or even spoke to him while he was incarcerated at Green Haven. See Deposition of Anthony Williams, Ex. C to the Harben Decl., at 77-78. Although plaintiff wrote several letters to Dr. Koenigsmann, none of these letters complained about the reduction of his daily dose of Ultram while in the SHU. Rather, they all concerned plaintiff's treatment at the pain management clinic. See 5/28/03 and 6/25/03 Letters from Williams to Dr. Koenigsmann, Ex. L to the Harben Decl. Moreover, Dr. Koenigsmann had no control over security staffing issues at Green Haven. See Koenigsmann Decl. ¶¶ 12-13. The absence of any evidence indicating Dr. Koenigsmann's awareness of the reduction in plaintiff's medication demonstrates a lack of personal involvement on the part of Dr. Koenigsmann. Plaintiff's dose reduction claim against Dr. Koenigsmann is therefore dismissed for lack of personal involvement.

  C. Plaintiff Cannot Show that Defendants Acted with Deliberate Indifference to His 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. Seiter, 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. "Deliberate indifference is `a state of mind that is the equivalent of criminal recklessness.'" Hernandez v. Keane, 341 F.3d at 144 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). Plaintiff must therefore show that prison officials intentionally denied, delayed access to, or intentionally interfered with prescribed treatment. See 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, 99 F.3d at 553 (quoting Farmer, 511 U.S. at 835) (ellipsis and brackets in original). Accordingly, subjective recklessness can satisfy the deliberate indifference standard where the official" knows that inmates face 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.

  Plaintiff cannot establish the subjective component of the deliberate indifference standard, namely, that defendants knew of and disregarded an excessive risk to his health or safety. See Farmer, 511 U.S. at 837. It is well settled that prison officials are not liable "if they responded reasonably to a known risk, even if the harm ultimately was not averted." Id. at 844. Indeed, "inmates are entitled to reasonable treatment, not the specific treatment they desire." Dobbin v. Artuz, 143 F. Supp. 2d 292, 302 (S.D.N.Y. 2001) (citing Farmer, 511 U.S. at 826; Estelle, 429 U.S. at 106-7). See also Chance, 143 F.3d at 703 (stating that mere disagreement over proper treatment does not state constitutional claim). "At a minimum, there must be at least some allegations of a conscious or callous indifference to a prisoner's rights." Zaire v. Dalsheim, 698 F. Supp. 57, 59 (S.D.N.Y. 1988), aff'd, 904 F.2d 33 (2d Cir. 1990) (internal quotation marks and citation omitted).

  Aside from plaintiff having no evidence of any personal involvement on the part of defendants with respect to any alleged constitutional deprivations, there is simply no evidence of any disregard for plaintiff's serious medical needs. Nor did plaintiff provide any evidence that defendants intentionally reduced plaintiff's daily dose of Ultram in order to punish him or in any way harm his medical condition. In sum, plaintiff cannot prove that either defendant acted with the subjective state of mind to support a claim of deliberate indifference to serious medical needs. Similarly, plaintiff cannot show that he was deprived of medical care under the Fourteenth Amendment. "To state a claim for deprivation of appropriate medical care under the Fourteenth Amendment, there must be a `substantial departure from accepted professional judgment, practice or standards.'" Johnson v. Riker's Island Hosp., No. 95 Civ. 10778, 1998 WL 91078, at *3 (S.D.N.Y. Mar. 3, 1998) (quoting Youngberg v. Romeo, 457 U.S. 307, 323 (1982)). In light of the extensive history of medical care provided to him, he cannot prove that there was a substantial departure from accepted professional judgment, practice or standards. Plaintiff's claims under the Eighth and Fourteenth Amendments are accordingly dismissed.


  For the foregoing reasons, defendants' motion for summary judgment is granted and this case is dismissed. The Clerk of the Court is directed to close this case. SO ORDERED.

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