United States District Court, S.D. New York
December 6, 2005.
EDWARD BROWN, Plaintiff,
LESTER WRIGHT, CARL J. KOENIGSMANN, HARRY MAMIS, STEVEN WEINSTEIN, Defendants.
The opinion of the court was delivered by: ROBERT SWEET, District Judge
The defendants Dr. Lester Wright, Chief of Medical Services for
the New York State Department of Correctional Services ("Dr.
Wright"), Dr. Carl Koenigsmann, Chief of Medical Services at
Green Haven Correctional Facility ("GHCF") ("Dr. Koenigsmann");
Dr. Harry Mamis, a physician employed at GHCF and primary medical
provider ("Dr. Mamis"), and Dr. Steven Weinstein, a physiatrist
employed part-time at GHCF ("Dr. Weinstein") (collectively, the
"Defendants") have moved for summary judgment under Rule 56,
Fed.R.Civ.P., to dismiss the complaint of plaintiff pro se
Edward Brown ("Brown"), an inmate at GHCF. For the reasons set
forth below, the motion is granted.
Brown filed his complaint on January 21, 2004 alleging
violations of Section 1983 and deliberate indifference in medical
care involving his absence of a leg. The leg was lost as a result
of an accident in 1988, when Brown was 14 years old. Brown has
asserted that a wheelchair was withheld from him improperly for a
period of about eleven months in 2003, that surgery on his hip to
cure a bone spur was delayed unreasonably, that he has been
denied wrongfully from placement in Green Haven Unit for the
Physically Disabled ("UPD") and that he has been denied effective
pain medication. These allegations are made under the Eighth Amendment
and Americans With Disabilities Act ("ADA").
Discovery was had and the notice to pro se litigant and of
the motion for summary judgment was given, and the instant motion
was heard and marked fully submitted on August 16, 2005.
Brown lost his leg due to a subway accident in 1988 at the age
of 14 (Tr. 43-44). He was able to walk well with a prosthesis.
Over the years, he has had increased difficulty ambulating with a
prosthesis due to the shortness of his leg stump and the
consequent relatively heavy weight of the artificial limb (Tr.
37-38). He has not expressed a wish to have the surgery which
would be involved in preparing the hip for a possibly nimbler
prosthesis (Tr. 31, 85).
Brown has compensated by walking effectively with crutches (Tr.
13, 28). He does not like using the wheelchair he was provided in
December 2003 full time but prefers walking with crutches for
modest distances, including for meals and recreational purposes
(Tr. 11, 18-20). Brown weighs 160 pounds, though 6 feet tall (Tr.
33), in part as a result of not being wheelchair-bound full time. Brown has acknowledged that GHCF staff have on very many
occasions examined and treated him (Tr. 29, 70, 73-74, 76, 78,
86, 92); have prescribed pain mediation to him (Tr. 13, 47, 70,
75-76, 86) (he is presently taking Tylenol 3) (Tr. 6-7); have had
his condition evaluated by specialists, including a physiatrist
and orthopedic surgeon (Tr. 73-74, 76, 78); have provided x-rays
and physical therapy (Tr. 11, 17, 29, 74); have provided him with
a wheelchair (through Dr. Weinstein by way of referral from Dr.
Mamis) in December 2003 with which Brown is comfortable (Tr. 10,
17, 19, 92); and have arranged for and had performed surgery on
his hip bone spur (Tr. 78-80). Brown also acknowledged that he
has "civil" communication with his medical provider, Dr. Mamis
(Tr. 28-29), and that Dr. Mamis has referred him to specialists
(Tr. 73, 92).
Brown was asked at his deposition to state his complaints
against each of the four Defendants. As to Dr. Wright, Brown
mentioned speaking with Dr. Wright two or three times while
housed at Clinton Correctional Facility in 2002 and writing to
Dr. Wright approximately seven letters on his treatment. When
asked to produce this correspondence, Brown stated that he had
sent his copy of the same to an attorney. Brown alleged that Dr.
Wright did not respond substantively to his communications at
Clinton, except to have staff advise Brown that the records
showed he was receiving proper care (Tr. 62-66). He further
claims that he has written Dr. Wright two to three times while at
GHCF about the lack of proper pain medication. Finally, Brown linked Dr. Wright to his
non-placement in UPD (Tr. 93). He acknowledged not having
submitted a grievance against Dr. Wright (Tr. 92-96).
As to Dr. Koenigsmann, Brown testified that he has suffered
from the failure of the facility to provide proper pain
medication. He claims to have written Dr. Koenigsmann "several
letters" but has not produced the letters (Tr. 96). He did not
recall filing a grievance against Dr. Koenigsmann (Tr. 96-98).
Brown testified that his complaint against Dr. Mamis focuses on
the question of whether proper pain medication was afforded him
(Tr. 98-100). He acknowledged that Dr. Mamis would refer his
continuing complaints to Dr. Weinstein (Tr. 101). As to Dr.
Weinstein, Brown's complaint derives from his temporary denial of
a wheelchair and the question of whether proper pain medication
was made available to him (Tr. 100-01).
Dr. Mamis has submitted an affirmation in support of the motion
for summary judgment, stating: that Brown was not provided with a
wheelchair at first because walking was believed to be better for
his overall health; that Dr. Mamis had not wanted to provide him
with a narcotic-based pain medication; that he has not been
placed in the UPD because Brown can function day-to-day in
general population facilities; and that prescription of Elavil to Brown on a trial basis by Dr. Weinstein was appropriate
(Affirmation of Dr. Mamis, ¶¶ 3, 4, 6, 7).
During 2003, Brown filed four grievances at GHCF pertaining to
his interactions with medical personnel.
1. February 11: Brown cited having written to Dr. Koenigsmann
about pain in the lower back and right hip, hearing "nothing" in
response for two weeks.
Brown stated that in a January 16 visit with Dr. Mamis, who had
been designated Brown's medical provider, he requested a
wheelchair for "temporary" use due to his leg "lock[ing] up" on
him when he would "walk too much," as well as a change in
medication. He claimed that Dr. Mamis "was not trying to hear"
what he was saying, denied saying to Dr. Mamis that it was not
needed, and asserted that Dr. Mamis stated Brown "would have a
better chance of banging [his] head on the floor" if Brown
expected to have his medication changed. Brown also mentioned
falling ("tripped over my [double celled roommate's] cord") on
January 24, bruising his back and hip and requested a "new
medical provider" as well as a change in medication.
The grievance committee ("IRGC") stated in response that Brown
was entitled to "proper medical care" and a "second opinion,"
action being "beyond the [purview] of this committee." The superintendent denied the grievance as "not medically indicated,"
citing Brown's evaluation by medical staff "on many occasions
since his arrival [on] [1/9/03," his having been referred to a
specialist on ambulatory needs, the prescription of Brown of pain
medication, and his having on January 28 been given a single cell
on "the flats," i.e., the first floor.
The Central Office Review Committee ("CORC"), on a "second
appeal," upheld the superintendent's decision, citing Brown's
visits to specialists, the surgical procedure performed in
August, and the physician's denial of having made improper
comments. See Record of Grievance, Aff. Counsel, Ex. B.
2. March 5: Brown cited having challenged Dr. Mamis on the
prescription of Elavil, stating that other medical personnel and
the "medication dictionary" regarded that medication to be for
"stress disorder and sleep discomfort." In his appeal, he
acknowledged having been taken off Elavil. He requested a "new
The grievance committee found Brown's request to be "beyond our
purview." The superintendent denied the grievance citing two
visits by Brown with a physiatrist and the medications
prescribed. CORC upheld the superintendent's decision, citing the
prescription of alternate medication and his visit with an
orthopedist. See Record of Grievance, Aff. Counsel, Ex. C. 3. March 6: Brown cited diagnosis by the physiatrist of a
"bone in my lower back on top of my hip," and requested a new
medical provider, a wheelchair, and $1 million "in damages [for]
pain, suffering and emotional trauma." In his appeal to CORC on
April 29, Brown acknowledged that he was "not in much pain" but
wanted the "bone removed."
The grievance committee recommended that the matter be reviewed
by the superintendent as being beyond the committee's purview.
The superintendent determined that Brown's medical needs were
being met through visits to the physiatrist and the current
provider's "actively monitor[ing]" his condition. No "medical
necessity" for a wheelchair was found. Further, "financial
rewards" were determined not to be available through the
grievance process. The superintendent's decision was upheld by
CORC, which cited Brown's upcoming visit with an orthopedist.
(See Record of Grievance, Aff. Counsel, Ex. D.)
4. March 10: Brown cited falling on ice while in the prison
yard on March 10 and being seen by a non-defendant physician,
with "nothing" being done due to the absence of a fracture though
his "stump was shaking for over two hours." Brown requested
examination "by another doctor because there is a conflict of
interest between Dr. Mamis and me [and] he is not going to get me
proper medical treatment." In his later appeal to CORC, Brown claimed that his prescribed pain medication, Ultram, "is not
The grievance committee cited Brown's being seen by a
physiatrist. The superintendent denied the grievance on the basis
of evaluations by GHCF medical staff, Brown's regular attendance
at a physiatry clinic and evaluations by a consulting specialist.
CORC upheld the superintendent's decision, citing Brown's receipt
of "medication for his injury" and the unavailability of monetary
damages through the grievance process. (See Record of
Grievance, Aff. Counsel, Ex. E.)
Summary Judgment Is Appropriate
Under Rule 56, Fed.R.Civ.P., summary judgment is appropriate
if the pleadings and affidavits "show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." See, e.g.,
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348 (1986); Falls Riverway Realty,
Inc. v. City of Niagara Falls, 754 F.2d 49, 57 (2d Cir. 1985).
Summary judgment is not a "disfavored procedural shortcut" but is
an integral part of the Federal Rules' goal of securing the
"just, speedy and inexpensive determination of every action."
See Celotex Corp. v. Catrett, 477 U.S. 317, 327,
106 S.Ct. 2548 (1986); Anderson v. City of New York, 657 F. Supp. 1571,
1576 (S.D.N.Y. 1987); Knight v. U.S. Fire Insurance Co., 804 F.2d 9 (2d Cir. 1986), cert. denied,
480 U.S. 932, 107 S.Ct. 1570 (1987).
"[T]he mere existence of factual issues where those issues
are not material to the claims before the court will not
suffice to defeat a motion for summary judgment." Quarles v.
General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985). When the
moving party has carried its initial burden of demonstrating the
absence of a genuine issue of material fact, the opposing party
then must show that there is such an issue. In doing so, the
opposing party must rely on more than mere speculation or
conjecture. Knight, 804 F.2d at 11; see Fletcher v. Atex,
Inc., 68 F.3d 1451, 1456 (2d Cir. 1995); Trans Sport v. Starter
Sportswear, 964 F.2d 186, 188 (2d Cir. 1992). Here, Brown has
failed to raise a material issue of fact.
Brown Has Not Been Deprived Of A Constitutional Right
To prevail in this Section 1983 action, a plaintiff must
demonstrate that he has been denied a constitutional or federal
statutory right and that such deprivation occurred under color of
state law. See 42 U.S.c. § 1983; West v. Atkins, 487 U.S. 42,
48 (1988); Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 WL
714878, *4 (S.D.N.Y. Nov. 17, 1997). Here, Brown has alleged that
his rights under the Eighth Amendment have been violated because
Defendants failed to provide him with his medication of choice,
delay in surgery and provision of a wheelchair, and have denied him entry
The Eighth Amendment prohibits the infliction of "cruel and
unusual punishments." U.S. Const. Amend. VIII. To establish an
Eighth Amendment claim, Brown must prove "deliberate indifference
to [his] serious medical needs." Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir. 1994), cert. denied 513 U.S. 115 (1995)
(quoting Estele v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285
The deliberate indifference standard includes both an
objective and subjective component. Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). In
objective terms, the alleged deprivation must be
sufficiently serious. Hathaway, 37 F.3d at 66. A
serious medical condition exists where "the failure
to treat a prisoner's condition could result in
further significant injury or the unnecessary and
wanton infliction of pain." Chance,
143 F.3d at 701-02 (quoting Gutierrez v. Peters, 111 F.3d 1364,
1373-74 (7th Cir. 1997)). "Factors that have been
considered include `the existence of an injury that a
reasonable doctor or patient would find important and
worthy of comment or treatment; the presence of a
medical condition that significantly affects an
individual's daily activities; or the existence of
chronic and substantial pain.'" Id. (quoting
McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.
Subjectively, the defendant "must act with a
sufficiently culpable state of mind." Hathaway,
37 F.3d at 66. An official acts with the requisite
degree of deliberate indifference when that 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
draw that inference." Farmer v. Brennan,
511 U.S. 825, 837, 128 L.Ed.2d 811, 114 S.Ct. 1970 (1994). Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL
33458, *8-*10 (S.D.N.Y. Jan. 26, 1999).
Further, "it's the particular risk of harm faced by a prisoner
due to challenged deprivation of care, rather than the prisoner's
underlying medical condition considered in the abstract, that is
relevant for Eighth Amendment purposes." Smith v. Carpenter,
316 F.3d 178
, 186 (2d Cir. 2003).
Brown, by his own admission, has received extensive medical
care, examinations by GHCF staff and specialists, physical
therapy, surgery, pain medication, and provision of a wheelchair.
According to Brown, he requested a wheelchair and different
medication, but these requests were denied or satisfaction was
delayed. However, mere disagreement over the proper course of
treatment does not create a constitutional claim. Rather, so long
as the treatment given is adequate, the fact that a prisoner
might prefer a different treatment does not give rise to an
Eighth Amendment violation. See Chance v. Armstrong,
143 F.3d 698, 703 (2d Cir. 1998); Dean v. Coughlin, 804 F.2d 207, 215
(2d Cir. 1986).
The same is true with respect to Brown's claim that he should
be given different medication. Inmates do not have the right to
treatment of choice. See Chance, 143 F.3d at 703; Dean, 804 F.2d at 215. This principle is particularly strong given the
obvious desire not to have Brown provided with a narcotic.
Provision of Elavil was appropriate on a trial basis. (See
Mamis Aff., ¶ 6 and cite at www. medicinenet.com under Elavil
("Elavil has also been found to be helpful for treating
fibromyalgia [chronic condition causing pain, stiffness, and
tenderness of the muscles, tendons, and joints] and symptoms
related to chronic pain")). Accordingly, Brown's claims that his
rights were violated because he was not given his treatment of
choice on demand are dismissed.
The deliberate indifference standard includes both an objective
and subjective component. Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998). The alleged deprivation must be sufficiently
serious. Hathaway, 37 F.3d at 66. Assuming that Brown's medical
condition is sufficiently serious, which Defendants do not
concede given that the measure is the risk of harm rather than
the underlying condition, Brown must still allege that the
Defendants have acted "with a sufficiently culpable state of
mind." Hathaway, 37 F.3d at 66.
Brown's papers and testimony establish that the Defendants have
not known of and disregarded "an excessive risk to inmate health
or safety." Farmer v. Brennan, 511 U.S. 825, 837,
114 S.Ct. 1970 (1994). It has been demonstrated that the Defendants are (1)
aware of his condition; (2) have provided treatment on numerous
occasions; (3) have referred him to specialists; and (4) have since December 2003, addressed his concerns by providing
him with a wheelchair for part-time use. Accordingly, because the
Defendants, by Brown's admission, are providing him with
substantial treatment, including examinations and treatment by
specialists, his claims that the Defendants were deliberately
indifferent to his medical needs are dismissed.
The Second Circuit has held that when an inmate alleges
temporary interruption of otherwise continuous treatment of even
the most serious medical condition, the determination of whether
the harm suffered was objectively serious must focus on the harm
caused by the interruption, not by the underlying condition.
When the basis for a prisoner's Eighth Amendment
claim is a temporary delay or interruption in the
provision of otherwise adequate medical treatment, it
is appropriate to focus on the challenged delay or
interruption in treatment rather than the prisoner's
underlying medical condition alone in analyzing
whether the alleged deprivation is, in "objective
terms, sufficiently serious to support an
Eighth Amendment claim." Chance, 143 F.3d at 702.
Smith, 316 F.3d at 185. Thus, in Smith, the Circuit sustained
a jury verdict finding no substantial injury where plaintiff
alleged that he was deprived prescribed HIV-medication for two
separate periods of seven and five days, respectively. In Graham
v. Wright, No. 01 Civ. 9613 (NRB), 2004 WL 1794503 (S.D.N.Y.
Aug. 10, 2004), where plaintiff alleged that prison medical staff
failed to diagnose Hepatitis C for several years, the court
granted summary judgment because plaintiff could not show that his condition
would have benefitted from earlier treatment. "[B]ecause the
plaintiff suffered from a delay in treatment, rather than a
complete lack of treatment, the objective element must be
satisfied by harm that resulted from the delay." Id. at *15 n.
Several courts have held that the temporary deprivation of
treatment for pain as Brown alleges does not rise to the level of
constitutional significance. See Rodriguez v. Mercado, No. 00
Civ. 8588 (JSRFM), 2002 WL 1997885, *6-*7, *24 (S.D.N.Y. Aug. 28,
2002) (no serious injury where plaintiff claimed that excessive
force caused bruising and headaches, was given Tylenol several
hours later and saw doctor next day); Henderson v. Doe, No. 98
Civ. 5011 (WHP), 1999 WL 378333, *2, *6-*7 (S.D.N.Y. Jun. 10,
1999) (improper wrapping of splint for broken finger and failure
to refer to specialist not constitutionally serious injury);
Veloz v. New York, 35 F. Supp. 2d 305 (S.D.N.Y. 1999) (foot
pain not constitutionally serious); Rush v. Artuz, No. 00 Civ.
3436 (LMM), 2004 WL 1770064, *33-*34 (S.D.N.Y. Aug. 6, 2004)
(where corrections officer put emergency sick call request in
garbage, no constitutional violation where plaintiff seen the
next day by medical staff on sick call).
In this case, the consequences of any delay in attention by Dr.
Mamis did not involve a significant aggravation in Brown's
condition. Indeed, Brown has acknowledged that an array of pain medication has been provided to him, that pre-operative pain
caused by the bone spur was not acute (see Ex. D., appeal to
grievance by Brown signed on April 25, 2003, saying "I'm not in
much pain.") and that he has done very well for a long time
without a wheelchair and that the less obtrusive means of
physical therapy was attempted prior to surgery. Hence, under the
authorities cited above, no deliberate indifference has been
Brown's submission in opposition to the Defendants' motion
fails to provide a basis to deny the relief sought, reflecting no
more than a disagreement about his care, not deliberate
indifference to it. To the extent that the opposition seeks to
amend the complaint by adding new and mostly unexhausted
categories of claims, it is inappropriate.
Brown has claimed in opposition that he filed a pre-litigation
grievance pertaining to denial of an inhaler not cited in the
Defendants' initial memorandum of law, such grievance having been
filed on March 24, 2003. (See Statement of Facts, ¶ 8.) He
reiterated his difficulties with crutches, citing to a report
dated October 19, 2004, on a post-litigation grievance, which
concluded that Brown was not using his crutches correctly (see
Statement of Facts, ¶ 13). Additionally, he complained about his
needing a wheelchair before his hip surgery, while Dr. Mamis
approved one for him only after the surgery (see Statement of
Facts, ¶ 17). Brown has referred to a grievance submitted on February 2, 2005
concerning the prescription of Ultram and "anti-swallowing"
medication as pain relievers by Drs. Mamis and Weinstein (see
Statement of Facts, ¶ 18 and p. 7).
Brown has claimed: that the Defendants have made an incomplete
investigation of his failure to recover fully from the 1988
accident (see Statement of Facts, ¶¶ 18-21); that shoulder
patches provided to him by Dr. Weinstein early in 2005 were not
effective in remedying shoulder joint pain (see Statement of
Facts, ¶ 22); that Dr. Mamis failed to treat him for pain after
he was injured in a road accident in early February 2006 (see
Statement of Facts, ¶¶ 23-24); that Drs. Mamis and Weinstein
refused to arrange for Dr. Weinstein to see him from February
2004 to January 2005 in retaliation for the present lawsuit
(see Statement of Facts, p. 7); that the Defendants failed to
treat headaches which commenced in November 2004 (see Statement
of Facts, p. 8); that the Defendants not placing him in the UPD
continues to be harmful as exemplified by his spilling coffee on
himself during March 2005 in his improperly equipped cell (see
Statement of Facts, p. 8); and that non-defendant Corrections
Officer P. Todriff denied him assistance in using the law library
and in typing legal papers (see Statement of Facts, pp. 10-11).
As reflected in a supplemental affirmation of counsel, Brown
failed to grieve, through to the level of the CORC, the incidents surrounding his new assertions, with the exception of
the alleged roadside injuries in February 2005 (see Grievance
dated Mar. 1, 2005; see Supplemental Affirmation of Counsel,
Ex. A). See Hemphill v. New York, 380 F.3d 680, 682 (2d Cir.
2004) (describes New York's three level exhaustion process for
Brown's assertions again reflect mere disagreements with his
care rather than deliberate indifference and comprise an improper
attempt to amend the complaint with largely unexhausted claims.
The question of an inhaler is not part of the complaint, which
focuses on Brown's hip and shoulder pain. Nor was any such
grievance appealed to the CORC. See Supplemental Affirmation of
The question of effective use of crutches does not refute the
propriety of crutches, as determined by the medical staff, for
Brown. Nor did Brown exhaust his administrative remedies through
citation to the October 2004 report. See Supplemental
Affirmation of Counsel.
Brown's assertions reflect disagreement with his care as
reflected in the prior denial of his March 6, 2003 grievance. In
addition, Brown has demonstrated no damages resulting from his allegation that a wheelchair was provided only after his hip
surgery and not prior to it as he claims he had requested.
The disagreement with his prescribed medication was not
exhausted as to the additional medication dispute. See
Supplemental Affirmation of Counsel.
The question of shoulder patches presents a new claim, the
raising of which comprises an impermissible attempt to amend the
complaint without a motion as required by Rule 15(a),
Fed.R.Civ.P. In any event, any amendment reflecting this new claim
would be futile in that the claim presents at most a mere
disagreement about care, and Brown has not exhausted
administrative remedies on this issue. See Supplemental
Affirmation of Counsel showing failure to exhaust; Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227 (1962) (leave to amend
may be denied where proposed amendment would be futile).
A claim alleging failure by Dr. Mamis to treat Brown after a
February 2005 accident, which is the "retaliation" and
"headaches" claim, is a new matter, and Brown's effort to
interject it comprises an improper attempt to amend the
complaint. In any event, such an amendment would be futile given
Brown's not having exhausted administrative remedies on these
claims other than with respect to the February 2005 accident.
See Supplemental Affirmation of Counsel. The assertion concerning the spilling of coffee does not refute
the Defendants' demonstration that Brown fails to meet the
criteria for placement in UPD. Further, Brown has failed to
exhaust his administrative remedies if he believes that new
factors can be presented to support his admission to UPD. See
Supplemental Affirmation of Counsel.
Brown's claim against Corrections Officer Todriff concerning
use of the law library and typing of legal documents comprises an
improper attempt to amend the complaint and add a new party.
For the foregoing reasons, the Defendants' motion for summary
judgment is appropriate.
The Defendants Have 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). See
also Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). "Even
where the plaintiff's federal rights and the scope of the
official's permissible conduct are clearly established, the
qualified immunity defense protects a government actor if it was
`objectively reasonable' for him to believe that his actions were lawful at
the time of the challenged act." Lennon, 66 F.3d at 420. The
Supreme Court has explained that the qualified immunity standard
"gives ample room for mistaken judgments by protecting `all but
the plainly incompetent or those who knowingly violate the law' . . .
this accommodation for reasonable error exists because
`officials should not err always on the side of caution' because
they fear being sued." Hunter v. Bryant, 502 U.S. 224, 229,
112 S.Ct. 534 (1991).
Moreover, the Supreme Court has stated that "there is a strong
public interest in protecting public officials from the costs
associated with the defense of damages actions. That interest is
best served by a defense that permits insubstantial lawsuits to
be quickly terminated." Crawford-El v. Britton, 523 U.S. 574,
590, 118 S.Ct. 1584 (1998). Thus, the defense of qualified
immunity should be resolved "at the earliest possible stage in
litigation." Hunter, 502 U.S. at 227 (citations omitted).
None of the Defendants have violated "clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow, 457 U.S. at 818; Lennon,
66 F.3d at 420. Brown's allegations establish that he has received
extensive treatment, examinations by experts, and appropriate
medications. Moreover, the Defendants have submitted evidence
that their actions were objectively reasonable. While some courts have found a party to have a right to a
wheelchair in particular circumstances, such cases have not
involved a request for a part-time wheelchair for someone who has
been able to ambulate on their own for a long period of time.
See Weeks v. Chaboudy, 984 F.2d 185 (6th Cir. 1993)
(paraplegic's need to have access to a wheelchair); Cummings v.
Roberts, 628 F.2d 1065 (8th Cir. 1980) (inmate had to crawl
without wheelchair); Gadson v. Goord, No. 96 Civ. 9544 (RCC),
2000 WL 328879 (S.D.N.Y. Mar. 28, 2000) (issue was type of
wheelchair). Here, Brown continued at GHCF to ambulate as he had
done for many years without a wheelchair. He was outfitted in
December 2003 with a wheelchair for his part-time use and has
testified to being comfortable with it.
Finally, Brown has not established a right to placement in UPD.
That unit is designed for inmates requiring 24 hour nursing care.
Since Brown is not prevented from engaging in the activities of
daily living, including ambulating to mess hall and recreation
while residing in general population, he simply is not a proper
candidate for UPD and his non-placement there is not a
constitutional violation. See Veloz v. State of New York,
339 F. Supp. 2d 505, 527-28 (S.D.N.Y. 2004); see also Aviles v.
Scully, No. 87 Civ. 160, 1988 U.S. Dist. LEXIS 15515, *16-17
(S.D.N.Y. Aug. 17, 1988). Brown Has Not Exhausted His Claims
As amended by the Prison Litigation Reform Act of 1995
("PLRA"), 42 U.S.C. § 1997e(a) states that "[n]o action shall be
brought with respect to prison conditions under
[42 U.S.C. § 1983], 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 exhausted." "[T]he
PLRA's exhaustion requirement applies to all inmate suits about
prison life . . ." Porter v. Nussle, 534 U.S. 516, 532,
122 S.Ct. 983 (2002). The PLRA's exhaustion requirement is mandatory.
"Even when the prisoner seeks relief not available in grievance
proceedings, notably money damages, exhaustion is a prerequisite
to suit." Id. at 524. "[W]e will not read futility or other
exceptions into statutory exhaustion requirements where Congress
has provided otherwise." Booth v. Churner, 532 U.S. 731, 741 n.
6, 121 S.Ct. 1819 (2001).
Here, Brown did not grieve against Dr. Wright, Dr. Koenigsmann,
nor did he grieve his non-placement in UPD.
The Claims Against Dr. Wright Are Dismissed
A supervisory official may not be liable under 42 U.S.C. § 1983
on the basis of respondent superior, the fact of supervisory
capacity alone. Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994). Supervisors are not liable for the isolated failures of their
subordinates, but only for systematic lapses or instructions
authorizing misconduct. See Steidl v. Gramley, 151 F.3d 739,
741 (7th Cir. 1998). Here Brown has failed to show that Dr.
Wright was responsible for his day-to-day medical treatment or
that he in any way impeded Brown's access to effective treatment.
While Brown has alleged having communicated with Dr. Wright,
these communications largely took place before Brown was at GHCF
and Brown has not been able to produce the alleged letters to Dr.
For the reasons set forth above, Defendants' motion for summary
judgment is granted.
It is so ordered.
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