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Berman v. Durkin

United States District Court, N.D. New York

March 3, 2015

BARRY BERMAN, Plaintiff,
CHARLES DURKIN, Sergeant; DONALD MITCHELL; J. DEVEREAUX; JOHN DOES #1-3, Correctional Officers; JOHN DOES #4-5, Sergeants; LONGERMAN, Inspector General; THOMAS LAVALLEY, Superintendent, Clinton Correctional Facility; C. LOZIER, Deputy Superintendent of Administration, Mid-State Correctional Facility; DR. V MANNAVA; DR. S. RAMINENI, Mid-State Correctional Facility; DR. KOENINGSMANN, Chief Medical Officer, NYSDOCCS, Defendants.

BARRY BERMAN, Pro se Plaintiff Rochester, NY.

JOSHUA E. MCMAHON, ESQ., Assistant Attorney General, HON. ERIC SCHNEIDERMAN, Attorney General of the State of New York, Albany, NY, Attorney for Defendants.


RANDOLPH F. TREECE, Magistrate Judge.

On February 1, 2013, [1] pro se Plaintiff Barry Berman, while incarcerated at Mid-State Correctional Facility, filed a civil rights action pursuant to 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq.; and § 504 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), 29 U.S.C. § 794 et seq., stemming from his confinement at both Clinton and Mid-State Correctional Facilities. Dkt. No. 15, Am. Compl.[2] In particular, Plaintiff claims that he was assaulted by Clinton correctional officers and sergeants in violation of the Eighth Amendment, retaliated against for protected speech in violation of the First Amendment, and excluded from prison programs and services due to his disability in violation of Title II of the ADA and the Rehabilitation Act. See generally id.; Dkt. No. 19, Mot. for Recons. [hereinafter "Supp. Aff."].[3]

On June 10, 2013, Defendants filed a partial Motion for Judgment on the Pleadings, pursuant to 12(c) of the Federal Rules of Civil Procedure. Dkt. No. 86. On July 1, 2014, Plaintiff filed his Response in opposition thereto. Dkt. No. 94. Defendants filed their Reply on August 11, 2014. Dkt. No. 101. In the interim, Plaintiff filed a Motion to Amend on June 23, 2014. Dkt. No. 92. On August 11, 2014, Defendants submitted a Response in opposition. Dkt. No. 100. Plaintiff submitted his Reply on September 10, 2014. Dkt. No. 104.


Defendants urge this Court to dismiss Plaintiff's Eighth Amendment medical indifference claim as well as his ADA and Rehabilitation Act claims, and argue that Defendants Longerman, LaValley, Lozier, and Dr. Koeningsmann should be dismissed from this action due to a lack of personal involvement.[4] See Dkt. No. 86-1, Defs.' Mem. of Law. The Court will first discuss whether the operative pleading can survive the dispositive motion, and then will address Plaintiff's request to amend.

A. Standard of Review

"The standard for granting a [FED. R. CIV. P.] 12(c) motion for judgment on the pleadings is identical to that of a [FED. R. CIV. P.] 12(b)(6) motion for failure to state a claim." Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ( overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).

The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963); see also Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citation omitted).

A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at 697 (citing Twombly ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard "is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. In this respect, to survive dismissal, a plaintiff "must provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555). Thus, in spite of the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts [which he or she] has not alleged, or that the defendants have violated the... laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has "nudged [his] claims... across the line from conceivable to plausible, " entails a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. at 679-80.

B. Eighth Amendment

In accordance with the above standard, the following facts set forth in the Amended Complaint are taken as true. In July of 2010, Plaintiff was transferred to Mid-State from Clinton. Am. Compl. at ¶ 70. During his time at Mid-State, Plaintiff suffered from abdominal pains, high cholesterol, breathing problems, "opacified maxillary sinuses, " separated shoulder, "olecranon bone spur on his right elbow" and left elbow, a wart on his finger, "fungus affecting his hands, feet, and crotch area." Id. at ¶¶ 72, 78, & 81. Plaintiff also suffered from "excruciating headaches." Id. at ¶ 75. Drs. Ramineni, Health Director at Mid-State, and Mannava, a doctor at Mid-state, provided Plaintiff with primary care during the relevant time period. Id. at ¶¶ 12-13.

At some point before Plaintiff began experiencing severe headaches, he woke up "confused, had vision problems and suffered slowness of gait." See id. at ¶ 75. Plaintiff complained of twitching and numbness on his left side, for which Dr. Ramineni conducted an EMG exam. Id. at ¶ 75. Thereafter, Plaintiff continued to complain to Dr. Ramineni about the "severe pains in his head... for over four months" but Dr. Ramineni did "nothing to address the severe pains in his head" because Dr. Ramineni concluded that Plaintiff's complaints were "imaginary." Id. at ¶¶ 75-76.

Plaintiff was subsequently reassigned to Dr. Mannava for medical care and Defendant Lozier[5] sat in on Plaintiff's first meeting with Dr. Mannava. Id. at ¶ 77. "Plaintiff signed a HIPPA release form for DSA Lozier." Id . During that meeting, Dr. Mannava stated that Plaintiff "was afflicted with a fungus, " but when Plaintiff informed him that the New York State Department of Corrections and Community Supervision ("DOCCS") had a provision that required the facility doctors to provide treatment for fungus Dr. Mannava "changed his diagnosis to one that didn't require treatment." Id. at ¶ 78. Dr. Mannava stated that he would prescribe "fungus pills, which he did not do." Id. Plaintiff was sent to a dermatologist who confirmed that he had a fungus infection and recommended "the needed pills." Id. at ¶ 98. However, the dermatologist's prescription was not approved. Id. Plaintiff claims he has not received any treatment for his fungus infection which "has removed his toe nails, [he] pick[s] pieces of toe nails out bit by bit, while bleeding and painful, and has affected his entire right hand... consum[ed] a fingernail... and it has reached the point where it has spread to consume his entire right hand[.]" Id. The fungus has peeled the "skin off his hand." Id.

In response to Plaintiff's complaint of "severe and excruciating headaches, " Dr. Mannava stated that he first wanted to wait on the EMG test results. Id. at ¶ 79. Despite Plaintiff's daily complaints concerning head pains "and throbbing in his left ear, " Drs. Mannava and Ramineni concluded that "plaintiff's headaches are not real" and, ultimately did not provide Plaintiff with any treatment for his headaches. Id. at ¶¶ 80 & 82. As a result, "he is subjected to waves of pain and twinges to pain all day and night in his head and is left holding his head in his hands for most of each day[.]" Id. at ¶ 104.

To state an Eighth Amendment claim for denial of adequate medical care, a prisoner must demonstrate that prison officials acted with "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "[T]he plaintiff must allege conduct that is repugnant to the conscience of mankind' or incompatible with the evolving standards of decency that mark the progress of a maturing society.'" Ross v. Kelly, 784 F.Supp. 35, 44 (W.D.N.Y. 1992), aff'd, 970 F.2d 896 (2d Cir. 1992) (quoting Estelle v. Gamble, 429 U.S. at 102, 105-06). To state a claim for denial of medical care, a prisoner must demonstrate (1) a serious medical condition and (2) deliberate indifference. Farmer v. Brennan, 511 U.S. 825, 834-35 (1994); Hathaway v. Coughlin ("Hathaway I"), 37 F.3d 63, 66 (2d Cir. 1994). The first prong is an objective standard and considers whether the medical condition is sufficiently serious. The Second Circuit has stated that a medical need is serious if it presents "a condition of urgency that may result in degeneration or extreme pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation marks and citation omitted). Among the relevant factors to co nsider are "[t]he 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 individuals' daily activities; or the existence of chronic and substantial pain." Chance v. Armstrong, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)). The second prong is a subjective standard requiring a plaintiff to demonstrate that the defendant acted with the requisite culpable mental state similar to that of criminal recklessness. Wilson v. Seiter, 501 U.S. 294, 301-03 (1991); Hathaway I, 37 F.3d at 66. A plaintiff must demonstrate that the defendant acted with reckless disregard to a known substantial risk of harm. Farmer v. Brennan, 511 U.S. at 836. This requires "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." Id. at 835; see also Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996) (citing Farmer ). Further, a showing of medical malpractice is insufficient to support an Eighth Amendment claim unless "the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces a conscious disregard of a substantial risk of serious harm.'" Chance v. Armstrong, 143 F.3d at 702 (quoting Hathaway v. Coughlin ("Hathaway II"), 99 F.3d 550, 553 (2d Cir.1996)); see also Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citations omitted).

1. Serious Medical Need

Here, Plaintiff alleges that he has foot fungus, which spread to his entire right hand. Am. Compl. at ¶ 98. Generally, foot fungus is not a "serious" medical condition. T hompson v. Carlsen, 2010 WL 3584409, at *6 (N.D.N.Y. Aug. 16, 2010) (citing, inter alia, Scott v. Laux, 2008 WL 4371778, at *5 (N.D.N.Y. Sept. 18, 2008), for the proposition that fungal infections do not warrant Eighth Amendment protection). However, the Court is reluctant at this juncture to find that a fungus that appears to be spreading and causing the Plaintiff to bleed is not a serious medical condition. Fox v. Brown, 2007 WL 586724, at *8 (refusing to dismiss plaintiff's Eight h Amendment claim on a motion to dismiss "because it was impossible to say one way or another whether plaintiff's medical need was serious") (cited in Thompson v. Carlsen, 2010 WL 3584409, at *6).

Likewise, at this stage, Plaintiff's allegation that he suffered from "severe and excruciating headaches" constitutes a serious medical condition. Benjamin v. Kooi, 2010 WL 985844, at *7 (N.D.N.Y. Feb. 25, 2010) (citing, inter alia, Peterson v. Miller, 2007 WL 2071743, at *7 (N.D.N.Y. July 13, 2007)); Peterson v. Miller, 2007 WL 2071743, at *7) (noting that headaches depending on their severity, duration, and degree may constitute a serious medical need). Accordingly, the Court finds that Plaintiff has sufficiently alleged a serious medical condition.

2. Deliberate Indifference

Based upon the facts set forth in the Amended Complaint, the Court finds that Plaintiff has sufficiently demonstrated that Drs. Mannava and Ramineni acted with deliberate indifference towards his medical condition as they knew of his multitude of complaints regarding his headaches and fungal condition, and failed to provide him with any treatment or care.

C. Personal Involvement

With respect to Plaintiff's Eighth Amendment deliberate indifference claims against Defendants Lozier, Koeningsmann, LaValley, and Longerman, Defendants urge the Court to dismiss these Defendants for a lack of personal involvement. Defs.' Mem. of Law at p. 5. The Second Circuit has held 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) (citations omitted). Moreover, "the doctrine of respondeat superior cannot be applied to section 1983 actions to satisfy the prerequisite of personal involvement." Kinch v. Artuz, 1997 WL 576038, at *2 (S.D.N.Y. Sept. 15, 1997) (citing Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995) & Wright v. Smith, 21 F.3d at 501) (further citations omitted). Thus, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution." Ashcroft v. Iqbal, 556 U.S. at 676.

The Second Circuit has stated that a supervisory defendant may have been personally involved in a constitutional deprivation within the meaning of § 1983 if he: (1) directly participated in the alleged infraction; (2) after learning of the violation, failed to remedy the wrong; (3) created a policy or custom under which unconstitutional practices occurred or allowed such policy or custom to continue; (4) was grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d at 873 (citations omitted);[6] Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986) (citations omitted). Pointedly, "mere linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim." ...

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