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Alsaifullah v. Furco

United States District Court, Second Circuit

August 2, 2013

NURSE ADMINISTRATOR FURCO, in her official and individual capacity, MEDICAL DIRECTOR GENOVESE, in her official and individual capacity, and SUPERINTENDENT HEATH, in his official and individual capacity. Defendants.


EDGARDO RAMOS, District Judge.

Pro Se Plaintiff Talib Alsaifullah ("Plaintiff' or "Alsaifullah"), while incarcerated at Sing Sing Correctional Facility, commenced this civil rights action pursuant to 42 U.S.C. § 1983 ("Section 1983") against Defendants Nurse Administrator B. Furco, Medical Director Maryann Genovese, and Superintendent Phillip Heath. Plaintiff alleges violations of his rights to substantive due process and to equal protection of the laws pursuant to the Fourteenth Amendment, and to be free of cruel and unusual punishment pursuant to the Eighth Amendment. He further alleges claims under the Health Insurance Portability and Accountability Act ("HIPAA"), the Americans with Disabilities Act of 1990 ("ADA"), and state law claims for violation of New York State Public Officer Law and New York State Public Health Law. Complaint ("Compl."), Doc. 2. Defendants move to dismiss Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 29. For the reasons discussed below, Defendant's motion to dismiss is GRANTED.

I. Background

a. Factual Background[1]

i. Grievance Hearings

Plaintiff is a prisoner at Sing Sing Correctional Facility ("Sing Sing") and has Hepatitis C. Compl. at 3-5. On July 21, 2011, Plaintiff attended an Inmate Grievance Review Committee ("IGRC") hearing ("IGRC hearing" or "grievance hearing") concerning his requests for medical accommodations, which included obtaining a medical shower, a bus pass and ground-floor housing. Id., Ex. C. Attendees at the meeting included Defendant Nurse Administrator B. Furco ("Nurse Furco"), Corrections Counselor T. Chaffin, Sergeant B. Thorpe, and inmates Carlos Leiva, Gregory Chrysler and D. Alweiss. Id., Exs. B-C. Nurse Furco was present at the hearing as "a consultant pertaining to medical procedures and protocol, " and did not have a vote towards the outcome of the hearing. Id., Ex. I; see id., Ex. A-4. Plaintiff alleges that while he was discussing "how he cannot tolerate specific medications" because of his liver problems, Nurse Furco "blurted out": "That medication don't affect your Hep C." Id., Ex. C. Plaintiff responded that he did not appreciate her disclosing his medical information and Nurse Furco replied, "Duh, you mentioned it the first time." Id.

After the July 21 grievance hearing, Plaintiff notified Defendants Medical Director Genovese ("Director Genovese") and Superintendent Heath ("Superintendent Heath") of the incident by filing a grievance. Compl. at 4; id., Ex. B. On September 27, Superintendent Heath issued an "Inmate Grievance Program: Superintendent Response" ("Superintendent Response"), which concluded that Nurse Furco had divulged Plaintiff's Hepatitis C condition "inadvertently." Id., Ex. C. The Superintendent Response also noted that (1) on September 23, the Director of Facility Health Services met with Nurse Furco to discuss HIPAA and medical protocol and (2) inmate Gregory Chrysler, present at the grievance hearing, stated that Nurse Furco had disclosed Plaintiff's condition "inadvertently." Id.

Plaintiff alleges that Superintendent Heath failed to "accept or deny" his grievance and that this failure was a violation of the prison grievance policy procedures. Compl. at 3. Plaintiff also cites to a written statement by Gregory Chrysler where he explains that he had "no opinion as to whether [Nurse Furco's] statement was inadvertent, " and that his statement as it appears in the Superintendent Response "must have been misconstrued." Id., Ex. E. Plaintiff subsequently appealed Superintendent's Heath's decision to the Inmate Grievance Program: Central Office Review Committee ("CORC"), id., Ex. F., and on January 18, 2012, CORC upheld Superintendent Heath's decision. Id., Ex. G.

On July 28, 2011, Plaintiff attended a second IGRC hearing intended to address his allegation that Nurse Furco improperly disclosed his medical information at the July 21 hearing. Id., Exs. H-K. Plaintiff claims that Nurse Furco attended the July 28 hearing and that her attendance presented a "conflict of interest." Id. He further alleges that Nurse Furco "insisted that she stay [in the room]... even though the plaintiff expressed... [that] he felt uncomfortable... due to [Nurse Furco's] disregard for [his] health and safety." Compl. at 4.

ii. Plaintiff's Fall and Injury

On July 6, 2011, Plaintiff fell after tripping over a broken concrete step and alleges that he injured himself because the prison facility had failed to install hand rails on the top portion of the walkway in the school tunnel. Pl.'s Opp. Mem. Doc. 25 at 8; Compl., Exs. L-N, P. Plaintiff filed an Inmate Grievance Complaint on July 14 and asked that "[h]and rails are provided or I am accommodated to not be required to walk down or up [the] walkway." Compl., Ex. L. On August 2, the IGRC denied Plaintiff's grievance and noted: "The tunnel is scheduled to be renovated, the status of handrails throughout the entire tunnel is unknown. The grievant is advised to address a bus pass with his medical provider." Id., Ex. M. Plaintiff appealed the IGRC ruling to the Superintendent the following day. Id. On August 12, Superintendent Heath issued a Superintendent Response which stated that the tunnel was scheduled for renovation in the future and "[i]f [Plaintiff] feels he cannot navigate the stated tunnel due to medical issues, he should review the reasons why with facility medical staff" Id., Ex. N. On February 15, 2012, CORC denied Plaintiff's appeal of Superintendent Heath's decision and noted that the school tunnel renovation plans did not include installing handrails on the top portion of the walkway. Id., Ex. 0 ("CORC notes that the plans designed by OGS are code compliant and that handrails will not be installed on the top portion of the walkway."). CORC also indicated that "[w]ith respect to the grievant's appeal, CORC advises him to address his medical concerns at sick call and any reasonable accommodation requests in accordance with Directive #2614." Id.

Plaintiff alleges that Superintendent Heath "contributed to the plaintiff significantly injuring his right shoulder, right thumb and right index finger due to falling in the tunnel' area of a walkway that failed to have safety precautions in place, ... [and only had] handrails in certain parts of the tunnel...." Compl. at 5. He further alleges that Superintendent Heath "knew this problem [of lack of handrails] existed but failed to remedy the situation, " id. at 8, and claims that Superintendent Heath is "responsible for [the facility's] upkeep and safety." Pl.'s Opp. Mem. Doc. 25-1 at 1. In his opposition papers, Plaintiff further alleges that Superintendent Heath "[d]id not make available another mode of travel within the facility to avoid the prospect of an injury occurring on the state property he was responsible for, " and that Plaintiff sought the handrails to accommodate his "daily travels." Pl.'s Opp. Mem. Doc. 25-2 at 5. However, Plaintiff also claims that, at some unspecified point in time, "he was finally accommodated with a bus pass." Id. at 6. He states that "[t]his was done by the diligent efforts of plaintiff, via grievance and [the] medical department." Id.

b. Procedural History

Plaintiff requested leave to proceed in forma pauperis on April 12, 2012 and filed a Complaint with the Court that same day. Doc. 1. Plaintiff brings suit under Section 1983 for violations of his rights to substantive due process and to equal protection of the laws pursuant to the Fourteenth Amendment, and to be free of cruel and unusual punishment pursuant to the Eighth Amendment. He further alleges claims under HIPAA and the ADA, and state law claims for violation of New York State Public Officer Law and New York State Public Health Law. Compl. at 2-8.

Plaintiff claims that each Defendant "acted under the color of state [law], while acting [in] the scope of their official capacities and obligations and within their individual capacities...." Id. at 4. With respect to Nurse Furco, Plaintiff alleges that her disclosure of his Hepatitis C condition at the first grievance hearing and attendance at the second grievance hearing violated the Eighth Amendment, and that her disclosure also violated Plaintiff's right to substantive due process and equal protection under the laws pursuant to the Fourteenth Amendment, as discrimination against an individual with a disability. Id. at 4-6. Plaintiff further alleges that Nurse Furco violated HIPPA and state law. See generally id. at 6.

As against Director Genovese, Plaintiff recites the same allegations and further notes that as a supervisor of Nurse Furco, Director Genovese was "aware" of her subordinate's acts and failed to properly train or supervise Nurse Furco. Id. According to Plaintiff, "[p]rior to any decision of [Superintendent Heath] or CORC, [D]efendant Genovese was made aware that her subordinate had violated HIP[A]A laws, but only acted after the fact and not in a meaningful way as to admit that acts of divulging confidential information is punishable civilly or criminally, as well as being subjected to departmental discipline." Id.

Finally, as to Superintendent Heath, Plaintiff asserts the same allegations as against the other two defendants and claims that he failed to train and supervise Nurse Furco and Director Genovese, and that he failed to accept Plaintiff's grievance filing. Id. at 7-8. Plaintiff further alleges that Superintendent Heath violated Plaintiff's rights under the Eighth Amendment by failing to maintain a safe environment and provide proper accommodations to prisoners with disabilities by ensuring that handrails were placed throughout the walkway "that had already been deem[ed] to be in need of repairs." Id. at 8. Finally, Plaintiff asserts that Superintendent Heath failed to correct a policy or custom of not accommodating disabled inmates. Id.

On December 20, 2012, Defendants filed a motion to dismiss the Complaint, Doc. 29, Plaintiff responded in opposition on October 23, 2012, Doc. 25, [2] and on December 7, 2012, filed a document which the Court will treat as a surreply.[3] Doc. 34.

II. Discussion

a. Standard of Review

On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the court must accept as true all of the factual allegations from the complaint, and draw all reasonable inferences in the plaintiff's favor. Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106, 108 (2d Cir. 2010). However, this requirement does not apply to legal conclusions, bare assertions, or conclusory statements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The complaint must adhere to Fed.R.Civ.P. 8(a), which has been interpreted to require that it contain enough factual matter for the claim to be plausible on its face. Id. (citing Twombly, 550 U.S. at 570). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). Rule 8(a) "does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] Complaint must be dismissed." Twombly, 550 U.S. at 570.

In the case of a pro se plaintiff, a court is obligated to construe the complaint liberally, Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), and to interpret the claims as raising the strongest arguments that they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). The obligation to be lenient while reading a pro se plaintiff's pleadings "applies with particular force when the plaintiff's civil rights are at issue." Jackson v. N.E. S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). "However, even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level." Id. (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). The Second Circuit recently held in Walker v. Schuh, 717 F.3d 119 (2d Cir. 2013) that "[a] district court deciding a motion to dismiss may consider factual allegations made by apro se party in his papers opposing the motion." 717 F.3d at 122 n.1 (emphasis added) (citing Gill, 824 F.2d at 195 (considering a pro se plaintiffs affidavit in opposition to a motion to dismiss in addition to those in the complaint)).

b. Section 1983 claims

To state a claim under 42 U.S.C. § 1983, a defendant must have been acting under the "color of state law" when he deprived the plaintiff of a constitutional or federal statutory right. West v. Atkins, 487 U.S. 42, 48 (1986). Section 1983 does not create any rights, but merely provides "a procedure for redress for the deprivation of rights [already] established." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted). The Second Circuit has held that 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 ...

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