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FOX v. FISCHER

June 14, 2005.

ANTHONY FOX, Plaintiff,
v.
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.

  I.

  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 medical concerns.

  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.

  II.

  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 ...


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