United States District Court, S.D. New York
June 14, 2005.
ANTHONY FOX, Plaintiff,
BRIAN FISCHER (Superintendent Sing Sing Corr. Facility), DR. PERILLI (Facility Health Dir.), DR. BAKSHU (Facility M.D.), P.A. MUTHA, N.A.E. HANSSEN, and THOMAS EAGAN (C.O.R.C. Dir. D.O.C.S.) Defendants.
The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
OPINION & ORDER
Plaintiff Anthony Fox sues six individuals employed by the New
York Department of Corrections (DOCS) under 42 U.S.C. § 1983
(2000). He alleges that defendants displayed deliberate
indifference to his medical needs and conspired to deprive him of
adequate medical treatment, thereby violating his Eighth
Amendment rights. Defendants move to dismiss the complaint for
failure to state a claim, and on the basis of qualified immunity.
Because no relief is possible under any set of facts consistent
with plaintiff's complaint, Hishon v. King & Spalding,
467 U.S. 69, 73 (1984), the motion to dismiss is granted.
The facts as set forth in plaintiff's complaint are as follows.
Fox was diagnosed with a chronic sinus problem in July 2002,
while incarcerated at Rikers Island. (Compl. ¶ 1) He was
transferred to Sing Sing Correctional Facility in June 2003, and
took sick call at Sing Sing several times between June and
November 2003. (Id.) Fox saw an ear, nose, and throat (E.N.T.)
specialist in November 2003. At that appointment, plaintiff
received "no medical speciality treatment"; the specialist
directed him to keep taking the medications that he had
previously been prescribed for his sinus condition Allegra and
Flonase. (Id. ¶ 2)
Shortly after his appointment with the E.N.T. specialist, Sing
Sing medical personnel started giving Fox Claritin for his sinus condition instead of Allegra. See id.
¶ 2; id. ex. B. According to Fox, Sing Sing medical staff
informed him that this substitution was a cost-saving measure.
(Id. ¶ 2) Plaintiff alleges that between November 2003 and July
2004, when he filed his complaint, he suffered "a significant
decline in his hearing in his right ear and also was plagued by
two painful ear infections. . . ." (Id. ¶ 3) He received x-rays
on January 11 in Sing Sing's hospital ward (id. ¶ 7), and
according to Fox, the ear infections were "unsuccessfully treated
with antibiotics." (Id.)
Plaintiff filed an Inmate Grievance Complaint at Sing Sing on
February 11, 2004, complaining that he had improperly been denied
Allegra, which was the only medication that helped his sinus and
hearing problem. (Id. ex. A) Plaintiff maintained that the
State's decision to substitute Claritin for Allegra for reasons
of cost was "not a legally acceptable reason" to deny him access
to "essential medication." (Id.) Plaintiff complained also that
he had been deprived of access to an E.N.T. specialist "beyond
[a] reasonably timely period." (Id.) On March 4, 2004 the
Inmate Grievance Resolution Committee (IGRC) found that Claritin
was an acceptable substitute for Allegra, noting that Claritin is
"on formulary and has the same action as Allegra and is the
accepted substitution." (Id. ex. B) The IGRC noted also that
Fox had been given two courses of antibiotics for his ailments,
and that according to Nurse Administrator E. Hanssen, there was
no need for Fox to see a specialist. (Id.) On April 21, 2004, the Central Office Review Committee (CORC) of the
Inmate Grievance Program accepted the IGRC decision on Fox's
complaint, and asserted that there was "no medical necessity for
a specialist appointment at this time." (Id. ex. C) The CORC
advised Fox to use the sick call procedure for any further
Fox was transferred to Coxsackie Correctional Facility in March
2004 (Pl. Response at 2),*fn1 and was given a hearing test
on May 14, 2004 (Compl. ¶ 3). In August 2004 he was taken to
Albany Medical Center and treated for his "still prevalent ear
infection." (Pl. Response at 2) At that appointment, according to
plaintiff, he was given prescription ear drops, his inner ear was
drained of fluid, and a tube was inserted into his ear for future
drainage. As of December 2004, the drainage tube was still in
plaintiff's ear. (Id.)
Plaintiff complains that he was denied access to "requested and
prescribed E.N.T. treatment for two painful ear infections and a
continuing sinus problem, that is still being ineffectively
treated." (Pl. Response at 3) He alleges that all six defendants
"through oral and written communications in regards to
plaintiff's medical grievance conspired to deny and delay medical
treatment . . ." (Compl. ¶ 3), and thereby violated his Eighth Amendment rights.
Specifically, plaintiff alleges that defendant Fischer, the
Sing Sing Superintendent, conspired with defendant Nurse
Administrator E. Hanssen to ignore plaintiff's medical history
and deny his grievance (id. ¶ 6); that defendant Hanssen
determined improperly that Fox was not in need of further
treatment without having examined Fox or his medical records
(id. ¶ 9); that defendant Perilli, Sing Sing Health Services
Director, joined in the conspiracy to deny Fox treatment (id. ¶
7); that defendant Bakshu, a doctor at Sing Sing, and Mutha, a
physician's assistant at Sing Sing, intentionally denied
plaintiff's requests for E.N.T. specialist referrals and
treatment; and that defendant Eagen, New York State Inmate
Grievance Program Director, conspired with the above defendants
to deny Fox treatment without conducting a personal review of
Fox's medical records.
Defendants move to dismiss Fox's allegations for failure to
state a claim; they argue also that they should receive the
benefit of qualified immunity.
As explained below, even the most liberal reading of
plaintiff's complaint does not give rise to either an Eighth
Amendment or a claim that defendants conspired to violate
plaintiff's civil or constitutional rights. Moreover, the in
forma pauperis statute, which allows indigent individuals to file
federal lawsuits without paying the accompanying filing fees, provides that the court shall dismiss any action or appeal that
"(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief."
28 U.S.C. § 1915(e)(2)(B). As explained below, this lawsuit, filed under §
1915, warrants dismissal on at least two of the above grounds.
B. Eighth Amendment Claims
Section 1983 authorizes a suit in law, equity, or "other proper
proceeding for redress" against any person who, under color of
state law, "subjects, or causes to be subjected, any citizen of
the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws. . . ." 42 U.S.C. § 1983. Fox alleges that, by causing him
to suffer continuous ear pain for approximately 14 months,
defendants imposed cruel and unusual punishment upon him, in
violation of the Eighth Amendment guarantee against cruel and
unusual punishment. (Fox Response Br. at 3)
Although "society does not expect that prisoners will have
unqualified access to health care, an inmate can nevertheless
prevail on an Eighth Amendment claim arising out of medical care
by showing that a prison official acted with deliberate
indifference to the inmate's serious medical needs." Hernandez
v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (internal citation
and quotation marks omitted). An inmate has serious medical needs
if he suffers from "a condition of urgency, [or] one that may produce death, degeneration, or extreme pain,"
Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (internal
quotation marks omitted), and an official acts with deliberate
indifference if he or she "knows of and disregards an excessive
risk to inmate health or safety. . . .'" Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
A prisoner has a right to medical treatment, but not to the
treatment of his choice. As our Circuit has held:
The prisoner's right is to medical care not the
type or scope of medical care which he personally
desires. A difference of opinion between a physician
and a patient does not give rise to a constitutional
right or sustain a claim under § 1983.
United States ex rel. Hyde v. McGinnis, 429 F.2d 864
(2d Cir. 1970) (internal quotation marks omitted); see also
Dean v. Coughlin, 804 F.2d 207
, 215 (2d Cir. 1986) ("The
essential test is one of medical necessity and not one simply of
desirability.") (internal quotation marks omitted); Todaro v.
Ward, 565 F.2d 48
, 53 & n. 5 (2d Cir. 1977) (affirming
dismissal of prisoner's deliberate indifference claim based in
part on denial of access to specialist treatment); Simmons v.
Artuz, No. 98 Civ. 777, 1999 U.S. Dist. LEXIS 6533, at *9
(S.D.N.Y. May 4, 1999) ("It is well established that mere
differences in opinion regarding medical treatment do not give
rise to an Eighth Amendment violation.").
The usual vehicle for challenging a medical judgment is a
malpractice action, and as the Supreme Court has held, "[m]edical
malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble,
429 U.S. 97, 106 (1976); see also Hathaway, 99 F.3d at 553
("[M]ere allegations of negligent malpractice do not state a
claim of deliberate indifference. . . .); Aviles v. Scully,
No. 87 Civ. 160, 1988 U.S. Dist. LEXIS 15515, at *13 (S.D.N.Y.
Aug. 17, 1988) ("[A] challenge to a decision based on medical
judgment does not implicate the [E]ighth [A]mendment's cruel and
unusual punishments clause but constitutes, at most, a medical
malpractice claim which may be cognizable in state court but not
in a federal § 1983 action.").
Fox has no cognizable Eighth Amendment claim. By Fox's own
admission, he received extensive medical treatment for his sinus
and ear problems: He saw two E.N.T. specialists; he used the sick
call procedure regularly; he was given two courses of
antibiotics; a set of x-rays was taken and he received a hearing
test; he took three prescription medications; he had his ear
drained by an E.N.T.; and he had a drainage tube placed in his
ear. Unfortunately, Fox's pain and hearing loss persisted despite
this treatment, but such is sometimes the nature of sinus
disorders. Defendants were far from deliberately indifferent to
Fox's medical needs; arguably, they provided him with more care
than the average non-incarcerated individual with sinus problems
would receive. If Fox did suffer hearing loss as a result of his
condition, as he alleges, he may have a medical malpractice
claim, which he may pursue in state court. But the treatment he
received at Sing Sing was more than adequate to satisfy Eighth Amendment standards.
B. Conspiracy Claims
Plaintiff claims that defendants Fischer, Hanssen, Perilli, and
Eagan conspired to deny him medical treatment, in violation of
his civil and constitutional rights.
As the Supreme Court has held, 28 U.S.C. § 1915 allows judges
"not only the authority to dismiss a claim based on an
indisputably meritless legal theory, but also the unusual power
to pierce the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989).
Fox's amorphous allegation that defendants conspired to deny his
grievances and his medication is exactly the sort of claim that
this veil-piercing power is designed to puncture. Indeed, our
Circuit has affirmed the dismissal under § 1915 of an
incarcerated plaintiff's lawsuit implicating multiple
correctional-employee defendants in "wide-ranging conspiracies,
clearly without foundation, to violate his constitutional
rights." Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir.
Moreover, even if not filed in forma pauperis, a "`complaint
containing only conclusory, vague, or general allegations of
conspiracy to deprive a person of constitutional rights cannot
withstand a motion to dismiss.'" Gyadu v. Hartford Ins. Co.,
197 F.3d 590, 591 (2d Cir. 1999) (quoting Sommer v. Dixon,
709 F.2d 173, 175 (2d Cir. 1983)). A plaintiff must "make an effort to provide some details of time and place and the
alleged effect of the conspiracy," Dwares v. City of New
York, 985 F.2d 94, 99-100 (2d Cir. 1993) (internal quotation
marks omitted), including "when, where, or how the conspiracy was
formed." Hason v. Office of Prof'l Med. Conduct, No. 02 Civ.
10007, 2004 U.S. Dist. LEXIS 24653, at *5 (S.D.N.Y. Dec. 6, 2004)
(citing Pollack v. Nash, 58 F. Supp. 2d 294, 302 (S.D.N.Y.
In this case, plaintiff's claim that defendants conspired to
deprive him of Allegra and access to an E.N.T. in order to cut
costs is without merit, and warrants dismissal under both § 1915
and the general standards for conspiracy claims described above.
Plaintiff's allegations are vague and conclusory: He does not
state when or how defendants formed the alleged conspiracy to
switch his medication, nor does he provide any details as to the
execution of the conspiracy.
Furthermore, because defendants did not do anything illegal,
any agreement between them in reference to plaintiff's treatment
would not be a conspiracy. As mentioned above, disputes between
prisoners and corrections officials over the scope and type of
medical care are not actionable under the Eighth Amendment.
Hyde, 429 F.2d at 867-68. Plaintiff's conspiracy claims are
C. Qualified Immunity
Finally, all defendants in this case receive the benefit of qualified immunity. Government officials performing
discretionary functions "generally are shielded from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982). As explained above, defendants provided
plaintiff with extensive medical care and certainly did not
violate his Eighth Amendment rights. They are not liable for
civil damages in this action.
* * *
For the foregoing reasons, defendants' motion is granted and
the complaint is dismissed.