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noting that Plaintiff made "no allegations that his conditions were life-threatening and fast-degenerating, or that they worsened because of the delay, or that the delay was punitive"
Summary of this case from Sampel v. Livingston Cnty.Opinion
15-CV-4106 (LTS) (JLC)
03-30-2017
ANGEL FELICIANO, Plaintiff, v. C.O. ANDERSON, et al., Defendants.
MEMORANDUM ORDER JAMES L. COTT, United States Magistrate Judge.
In this section 1983 action, pro se plaintiff Angel Feliciano seeks to amend his complaint to add a claim of deliberate indifference to serious medical needs. Defendants oppose Feliciano's application arguing, among other things, that the amendment would be futile because his proposed amended pleading fails to state a plausible medical deliberate-indifference claim and therefore would be susceptible to a motion to dismiss. For the reasons discussed below, the Court concludes that Feliciano has failed to state a plausible medical deliberate-indifference claim and, accordingly, denies his request to amend his complaint to plead such a claim.
As an initial matter, I note that I have "the authority to decide plaintiff's [application] to amend pursuant to 28 U.S.C. § 636(b)(1)(A)." See Corrado v. N.Y. State Unified Court Sys., No. 12-CV-1748 (DLI) (MDG), 2014 WL 4626234, at *1 (E.D.N.Y. Sept. 15, 2014) (collecting cases). A denial of a motion to amend by a magistrate judge is "treated as a nondispositive matter" by a district judge, "regardless of whether the denial foreclose[s] potential claims." MPJ Tech A/S v. Int'l Bus. Machines Corp., No. 15-CV-4891 (LGS) (DCF), 2017 WL 481444, at *3 (S.D.N.Y. Feb. 6, 2017) (citing Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007)).
I. BACKGROUND
A. Procedural History
Feliciano filed his original complaint on May 19, 2015, seeking damages for injuries that he suffered on January 7, 2015, when a cell door at the Manhattan Detention Complex ("MDC") closed on his head. Complaint, dated Apr. 17, 2015, Dkt. No. 2 ("Initial Complaint" or "Compl."), at 4, 9-10, 13. The Initial Complaint also chronicles defendants' treatment of him for the next six days, that is, through January 13, 2015. Id. at 4-8.
All citations to page numbers of Feliciano's pleadings refer to the pagination generated by this District's Electronic Case Files ("ECF") system. All citations to paragraph (¶) numbers refer to the numeration internal to the document.
In an undated letter, which the Court received on March 7, 2016, Feliciano advised the Court that he intended to file an amended complaint, and he proceeded to submit a proposed amended pleading on May 3, 2016. See Pl.'s letter, undated, Dkt. No. 36; Amended Complaint, undated, Dkt. No. 45 ("First Amended Complaint" or "Am. Compl."). Defendants opposed Feliciano's application to file the First Amended Complaint through papers dated June 14, 2016. See Memorandum of Law in Opposition to Plaintiff's Request to File an Amended Complaint, dated June 14, 2016, Dkt. No. 51 ("Defs.' Mem."). In response to defendants' opposition, Feliciano requested permission to submit a further amended complaint. Pl.'s letter, dated June 28, 2016, Dkt. No. 52. The Court granted the request (Dkt. No. 53), and Feliciano proceeded to submit a newly amended complaint dated August 12, 2016. See Amended Complaint, dated Aug. 12, 2016, Dkt. No. 57 ("Second Amended Complaint" or "2d Am. Compl.").
The Court accepted the proposed Second Amended Complaint for consideration, even though it was dated August 12, 2016, more than two weeks after the deadline that the Court had set for its submission. Dkt. No. 58.
Despite Feliciano's submission of a further amended pleading, defendants chose to rest on their original opposition papers, even though they were written in response to the First Amended Complaint, on the ground that the Second Amended Complaint had "not remed[ied] the core issues originally" raised in defendants' opposition papers. Defs.' letter, dated Sept. 23, 2016, Dkt. No. 60. After the Court granted Feliciano two extensions (Dkt. Nos. 62, 64), his reply became due on December 15, 2016. The order granting the second extension (Dkt. No. 64) advised Feliciano that the Court would consider the matter to be fully submitted and ready for decision if he failed to submit his reply papers by this date. As of this writing, more than three months later, Feliciano has not responded to defendants' opposition papers and, consequently, the Court considers this matter to be ready for decision.
B. Alleged Facts
The facts set out below, which are drawn from the Initial Complaint and the proposed Second Amended Complaint, are deemed to be true for purposes of this decision. See, e.g., Polanco v. NCO Portfolio Mgmt., Inc., 23 F. Supp. 3d 363, 366 n.1 (S.D.N.Y. 2014). With respect to the factual allegations occurring between January 7 and January 13, 2015, the Second Amended Complaint largely mirrors the Initial Complaint, except that the Second Amended Complaint sometimes includes additional detail. The main distinction between the two pleadings is that, unlike the Initial Complaint, the Second Amended Complaint describes Feliciano's medical treatment (or lack thereof) for approximately six months after his head injury on January 7, 2015. The Second Amended Complaint also names an additional 15 defendants, many of whom are medical professionals, including three doctors, seven physician assistants, a nurse, and an optometrist. See 2d Am. Compl. at 1-5.
The only medical professional named as a defendant in the Initial Complaint was "Dr. Pateo," whom Feliciano refers to as Dr. Mateo in the Second Amended Complaint. Compl. at 8; 2d Am. Compl. ¶ 13.
1. Original Allegations
On January 7, 2015, at approximately 2:45 p.m., while Feliciano was incarcerated at the MDC, his cell door in "Unit 8 South" opened unexpectedly. Compl. at 2, 4. Feliciano "peeked out" and "asked what[] [was] going on." Id. at 4. Other inmates told him that it was "lock in time." Id. "Then without warning the door closed on [his] head for about 10 seconds before two inmates pulled it open." Id. Feliciano "immediately reported the incident to [defendant] C.O. Anderson and asked her why she didn't announce that the doors were closing." Id. She told him that he "'should have known they were closing'" as it was "'lock in time.'" She added that his "'head shouldn't have been in the door[]way'" to begin with. Id.
In the Second Amended Complaint, Feliciano further asserts that defendant "C.O. Jane Doe (the female officer who was operating the cell doors.) did not open the cell doors all the way before closing them as per normal procedure." 2d Am. Compl. ¶ 1. Feliciano adds that, after his head injury, C.O. Anderson did not "attempt to get [him] medical attention, or file an Incident Report as per normal procedure" and that she "even threatened to give [him] an infraction if she had to file an Incident Report." Id.
Feliciano visited the facility's medical clinic at 4:30 p.m. later that day. Compl. at 4. After complaining about having a "headache, [a] knot above [his] left temple, [and] sensitivity to light and noise," he was prescribed ibuprofen. Id.
In the Second Amended Complaint, Feliciano also states that he had asked defendant C.O. Villalon for medical attention at 4:00 p.m. that day and that C.O. Villalon proceeded to contact the clinic on his behalf. 2d Am. Compl. ¶ 2. Feliciano also specifies that, when he arrived at the clinic, he was seen by physician assistant Charles Appiah, who is named as a defendant in the Second Amended Complaint but not in the Initial Complaint. Id. ¶ 3. The amended pleading further adds that, while waiting for a nurse to administer a dosage of ibuprofen to him, Feliciano lay down "with [his] eyes closed, covering both ears, and soon after passed out." Id.
Feliciano also visited the clinic two days later, on January 9, when he "was seen by [defendant] Bessie Flores-Clemente" and complained about the same symptoms. Compl. at 5. Feliciano further alleges that defendant C.O. Codea never informed the "8 South Officer on duty to write [an] injury report," even though Flores-Clemente had instructed him to do so. Compl. at 5.
Although the Initial Complaint states that Flores-Clemente is a doctor, the Second Amended Complaint indicates that she is a physician assistant. See, e.g., 2d Am. Compl. ¶ 4.
The Second Amended Complaint appears to name this "Unit 8 South" correction officer as a Jane Doe defendant, specifying that she was "operating the cell doors" on January 7, when his cell door closed on his head. 2d Am. Compl. at 2, 3, 6 ¶ 1.
Feliciano appears to complain that, on January 10, defendant C.O. DelaRosa refused to file an injury report for him because she was not "'present for the injury.'" Compl. at 5. According to the Initial Complaint, defendants C.O. LaBrew, C.O. McCoy, and C.O. Codea did not provide Feliciano with a grievance form on January 11 or 12, despite his requests for such a form on those dates. Id. at 5-6.
On January 12 at 6:20 p.m., Feliciano asked C.O. Lumlee to contact the clinic for him because his head was hurting. Id. at 6. When Feliciano pointed to his head, C.O. Lumlee told him to "put [his] hands down because she felt threatened." Id. She then told him to "'take some [T]ylenol.'" Id. Feliciano said that he had already taken ibuprofen but that his head was still "in pain." Id. C.O. Lumlee questioned what the clinic would do for him and asked why he did not go to sick call, which was called every day. Id. at 6-7. Feliciano replied that he must be "'asleep when they call it'" because he "'work[s] overnight.'" Id. at 7. When Feliciano asked her to file an injury report for him, she refused and said that the officer present for the incident should have done that. Id.
The next morning, on January 13 at 11:00 a.m., Feliciano "went to sick call and saw" defendant Flores-Clemente, who prescribed him Sumatriptan. Id. At 12:25 p.m., Feliciano requested a grievance form from Captain Romero. Id. Captain Romero made a note of Feliciano's request and returned with three grievance forms approximately two and a half hours later. Id.
Although the Initial Complaint names Captain Romero as a defendant, the Second Amended Complaint does not. Feliciano annexes a grievance form dated January 15, 2015, as an Exhibit A to the Initial Complaint. Compl. at 15. Feliciano's grievance complains that a "cell door was shut on [his] head for about ten seconds" and that, "instead of writing an injury report," defendant C.O. Anderson "threatened to give [him] an infraction." Id. In the pro se form complaint that he used to file the Initial Complaint, Feliciano states that this grievance was "never answered." Id. at 10.
At 6:00 p.m. that day, Feliciano complains that defendant C.O. Gason did not permit him to enter his cell to access his medication, stating that "'we're not opening any cells right now.'" Compl. at 8. Almost an hour later, Feliciano asked defendant C.O. Williams to contact the clinic for him because of a "sharp pain" in his left eye. Id. C.O. Williams did so but defendant Dr. Mateo refused to see him at that time and, instead, instructed Feliciano to "rinse [his] eye with cold water" and to "sign up for sick call" the next morning. Id.
2. New Allegations
According to the Second Amended Complaint, on January 14, Feliciano was escorted to the clinic, where he saw defendant Dr. Brenda Harris. 2d Am. Compl. ¶ 14. After complaining about "a sharp pain behind [his] left eye and a headache (migraine) that felt like a 'band around [his] head,'" Dr. Harris referred Feliciano to neurology. Id.
As explained below, Feliciano's first neurology appointment was on June 8 and his second appointment was on July 8. 2d Am. Compl. ¶¶ 23, 27.
The next day, on January 15, Feliciano "was escorted to sick call and seen by" defendant Flores-Clemente, a physician assistant. Id. ¶ 15. Feliciano complained about "'problems reading' (vision impairment)," and Flores-Clemente referred him to optometry. Id.
The next week, on January 23, Feliciano again "was escorted to sick call and seen by" Flores-Clemente. Id. ¶ 16. He complained that he was continuing to experience "headaches (migraines)," and Flores-Clemente prescribed him Tylenol. Id.
On February 10, Feliciano went to sick call again and was seen by defendant Dr. Landis Barnes. Id. ¶ 17. Though Feliciano complained of "dizziness and feeling light headed," Dr. Barnes did not schedule him "for any follow up care." Id.
Feliciano was transferred to another facility for an optometry appointment on February 20. Id. ¶ 18. After performing an eye examination, defendant Barry Hyman, an optometrist, diagnosed Feliciano "as having astigmatism and prescribed [him] corrective lenses." Id.
On March 10, Feliciano "was escorted to sick call and seen by" Flores-Clemente once again. Id. ¶ 19. He complained about experiencing "a headache (migraine), pain in [his] left eye, sensitivity to light and noise, and back pain." Id. Flores-Clemente prescribed him ibuprofen and Robaxin. Id.
On April 24, Feliciano again "was escorted to sick call" and seen by defendant Jeanty Francois, a physician assistant. Id. ¶ 20. After Feliciano complained about experiencing "headaches (migraines) and lower back pain," Francois prescribed him ibuprofen and Robaxin. Id.
At some point after his April 15 appointment with Francois, Feliciano was transferred from the MDC to the George Motchan Detention Complex. Id. ¶¶ 20-21. At this new facility, on May 15, Feliciano "went to sick call and was seen by" defendant Francisco Peguero, a physician assistant. Id. ¶ 21. After complaining about "re[]curring headaches (migraines) 'off and on', pain in [his] left eye, and vision problems," Peguero prescribed him Naprosyn. Id.
On June 4, Feliciano again went to sick call and was seen by defendant Jorge Villalobos, a physician assistant. Id. ¶ 22. After Feliciano complained about "migraine headaches and back pain," Villalobos prescribed him ibuprofen. Id.
The next week, on June 8, Feliciano was transferred to another facility for a neurology appointment with defendant Dr. Olga Segal. Id. ¶ 23. There, Feliciano "complained about headaches, migraines, pain and pressure behind [and] in [his] left eye, and sensitivity to light and noise." Id. Dr. Segal "administered neurology tests and referred [him] to optometry." Id.
On June 19, defendant Vanessa Jones, a physician assistant, saw Feliciano after he went to sick call. Id. ¶ 24. Feliciano complained about "lower back pain and headache pain in the front of [his] head (migraine)," and Jones prescribed him ibuprofen. Id.
One week later, on June 26, Feliciano again went to sick call, where defendant Vonetta Morris-Georges, a nurse, saw him. Id. ¶ 25. Feliciano "requested multi-vitamins" and "complained that the milk being served was upsetting [his] stomach." Id. Georges referred Feliciano to a "'practitioner'" for these problems. Id.
On June 30, Feliciano "went to sick call and was seen" by defendant Scott Parks, a physician assistant, for "complaints about the milk upsetting [his] stomach, [his] request for multi-vitamins and pain medication for [his] re[]curring headaches." Id. ¶ 26. Parks prescribed Feliciano multivitamins and gave him a "dietary referral for soy milk." Id. ¶ 26. He also "educated [Feliciano] on neck stretching exercises to help reduce the frequency of headaches"; "showed [him] some eye exercises" to help him "retain [his] focus when it was lost"; and "explained that [he] need[ed] to wear [his] glasses consistently because [his] eyes would weaken from the straining." Id.
It is unclear whether Parks is the "'practitioner'" to whom defendant Jones had referred Feliciano. Id. ¶¶ 25-26.
On July 8, Feliciano had a second neurology appointment with defendant Dr. Segal, during which Feliciano explained that he still "suffer[ed] from re[]curring headaches though wearing [his] corrective lenses seemed to have reduced the frequency" and that he still experienced "pain in [his] left eye." Id. ¶ 27. Dr. Segal said that Feliciano was "most likely" suffering from "'post traumatic headaches,'" but she "did not know what was causing" the eye pain. Id. Dr. Segal stated that Feliciano had "no neurological dysfunctions" and referred him "back to optometry." Id.
Five days later, on July 13, Feliciano was transported to another facility for a second optometry appointment with defendant Hyman. Id. ¶ 28. Feliciano explained that he had lost his glasses, which had helped decreased his "headache frequency." Id. Feliciano also said that he "felt constant pressure behind [his] left eye." Id. Hyman prescribed Feliciano another pair of glasses and indicated that "the pressure behind [his] eye was sinus related." Id. Consequently, he referred Feliciano for a sinus evaluation. Id. When Feliciano asked if there was any possibility that the pressure was caused by the January 7 incident, Hyman said that "it was too late to find out because [he] never got an x-ray that would've shown any possible fracture that could have damaged the nasal passage." Id.
Finally, on July 15, Feliciano went to sick call and was seen by non-party Dr. Frantz Medard. Id. ¶ 29. After Feliciano complained about "pressure behind [his] left eye," Dr. Medard "said that it could be sinus related and referred [Feliciano] to be x-rayed." Id.
On July 17, 2015, Feliciano was transferred to the Ulster Correctional Facility, which is located in the Northern District of New York. 2d Am. Compl. ¶ 29.
II. DISCUSSION
Feliciano contends that defendants were deliberately indifferent to his medical needs. Id. ¶¶ 33-51. Although Feliciano did not originally plead this claim, he seeks to amend his complaint to add it at this time. Defendants argue that Feliciano's application should be denied on the ground that the proposed amendment would be futile. Defs.' Mem. at 2. Specifically, defendants contend that, if Feliciano were permitted to plead this claim, it would be subject to dismissal on three grounds. First, defendants argue that Feliciano has failed to exhaust his administrative remedies. Id. at 5. Second, defendants assert that Feliciano fails to state a plausible claim of deliberate indifference to medical needs. Id. at 6. Third, defendants argue that the Second Amended Complaint fails to allege defendants' personal involvement in a constitutional violation, which is a prerequisite for damages under section 1983. Id. at 12.
Feliciano pleads this claim as two separate "counts": "Deliberate Indifference to Medical Needs" and "Failure To Provide Medical Care." 2d Am. Compl. ¶¶ 33-51. The Court, however, treats them as one.
As explained below, the Court rejects the first argument because defendants have the burden of demonstrating a plaintiff's failure to exhaust administrative remedies and, here, defendants have failed to meet their burden. Regarding the defendants' second argument, the Court agrees that Feliciano has failed to state a plausible claim of deliberate indifference to serious medical needs and therefore concludes that permitting him to amend his complaint to add such a claim would be futile. Because the Court concludes that Feliciano has failed to state a plausible claim of deliberate indifference, the Court does not reach the question of whether defendants had sufficient personal involvement in the alleged constitutional violation. See, e.g., Stevens v. City of N.Y., No. 10-CV-5455 (PGG), 2011 WL 3251501, at *6 n.6 (S.D.N.Y. July 22, 2011) ("Because this Court finds that no constitutional violation has been alleged, it does not reach [the personal-involvement] issue.").
A. Standard to Amend Complaint
"'A district court has broad discretion in determining whether to grant leave to amend . . . .'" United States ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016) (citation omitted). Under Rule 15 of the Federal Rules of Civil Procedure, courts should "freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). At the same time, leave to amend "should generally be denied in instances of futility." Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008). Granting leave to amend is considered futile if the newly amended pleading would be subject to dismissal for the failure to exhaust administrative remedies. See, e.g., Baez v. Kahanowicz, 469 F. Supp. 2d 171, 180 (S.D.N.Y. 2007) ("Because . . . any subsequently amended . . . complaint is subject to dismissal for failure to exhaust administrative remedies, it would be futile to grant plaintiff leave to amend . . . ."), aff'd, 278 F. App'x 27 (2d Cir. 2008).
Granting leave to amend is also considered futile when "the proposed new pleading fails to state a claim on which relief can be granted." Krys v. Pigott, 749 F.3d 117, 134 (2d Cir. 2014). In this situation, the "standard for denying leave to amend based on futility is . . . the same as the standard for granting a motion to dismiss" under Rule 12(b)(6) of the Federal Rules of Civil Procedure. NECA-IBEW Pension Trust Fund v. Lewis, 607 F. App'x 79, 80 (2d Cir. 2015), cert. denied, 136 S. Ct. 821 (2016). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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." Id. "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 555).
'"Complaints prepared by pro se litigants are held 'to less stringent standards than formal pleadings drafted by lawyers.'" Liner v. Fischer, No. 11-CV-6711 (PAC) (JLC), 2013 WL 3168660, at *6 (S.D.N.Y. June 24, 2013) (quoting Peay v. Ajello, 470 F.3d 65, 67 (2d Cir. 2006)), adopted by, 2013 WL 4405539 (S.D.N.Y. Aug. 7, 2013). Moreover, a pro se plaintiff's pleading "must be construed liberally to raise the strongest arguments it suggests." Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (internal quotation marks and alterations omitted). Nonetheless, "the fact that [a party] is proceeding pro se 'does not exempt him from compliance with relevant rules of procedural and substantive law." Mallgren v. Microsoft Corp., 975 F. Supp. 2d 451, 455 (S.D.N.Y. 2013) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)) (internal alterations omitted). "A pro se complaint, like any other, 'must state a plausible claim for relief.'" Id. (quoting Walker, 717 F.3d at 124).
B. Failure to Exhaust
Defendants argue that Feliciano's failure to exhaust administrative remedies bars his medical deliberate-indifference claim. Defs.' Mem. at 5-6. The Prison Litigation Reform Act ("PLRA") "requires that a prisoner exhaust all available administrative remedies before bringing an action regarding his confinement." Martin v. City of N.Y., No. 11-CV-600 (PKC) (RLE), 2012 WL 1392648, at *4 (S.D.N.Y. Apr. 20, 2012); 42 U.S.C. § 1997e(a) ("No action shall be brought with respect to prison conditions under section 1983 of this title, 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."). However, "failure to exhaust is an affirmative defense under the PLRA" and, thus, "inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). Rather, "defendants bear the initial burden of establishing, by pointing to 'legally sufficient source[s]' such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute." Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (quoting Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003)) (citation omitted).
Citing the pro se form complaint that Feliciano used to file the First Amended Complaint, defendants note that Feliciano admits that the MDC had a grievance procedure. Defs.' Mem. at 6 (citing Am. Compl. at 12). Defendants further observe that the form indicates that Feliciano filed a grievance regarding his "whole claim," but that it was never answered. Id. The problem, according to defendants, is that Feliciano did "not indicate what steps, if any, he took to appeal the non-answer." Id. Consequently, defendants argue that "plaintiff has failed to allege that he" exhausted his administrative remedies with respect to his medical deliberate-indifference claims. Id.
As an initial matter, by relying on their original opposition papers (which were written in response to the First Amended Complaint, not the Second Amended Complaint), defendants have not addressed the operative allegations regarding Feliciano's exhaustion efforts. In his proposed Second Amended Complaint, Feliciano admits to the existence of a grievance procedure, but indicates that he "Do[es] Not Know" whether that procedure covered any or all of his claims. 2d Am. Compl. at 19. He states, however, that he filed a grievance regarding "Claim #1" (as opposed to the "whole claim"), but that his grievance was never answered. Id.
"Claim #1" appears to refer to the alleged constitutional violations resulting from the January 7 incident, not the ensuing medical treatment. 2d Am. Compl. ¶¶ 30-32 (labeling allegations "Count One"); see also Compl. at 15 (grievance form dated Jan. 5, 2015).
Although defendants may be correct that Feliciano never grieved his medical deliberate-indifference claims, defendants have failed to meet their burden of establishing that a "grievance process . . . applie[d] to" those claims. See Hubbs, 788 F.3d at 59. Given Feliciano's professed ignorance about the scope of the grievance procedure, it is not clear from the face of the complaint that Feliciano left available administrative remedies unexhausted. After all, to the extent that Feliciano's medical deliberate-indifference claims were outside the scope of the existing grievance procedure, or to the extent that Feliciano was not informed of its scope, no administrative remedies were "available" for Feliciano to exhaust. See, e.g., Abdallah v. Ragner, No. 12-CV-8840 (JPO), 2013 WL 7118083, at *3-4 (S.D.N.Y. Nov. 22, 2013) (denying motion to dismiss for failure to exhaust where "complaint suggests that prison officials did not notify [plaintiff] about the scope of the grievance process or the procedure for filing and appealing a grievance" because an "administrative remedy is not 'available' for purposes of the PLRA if prisoners are not informed that the remedy exists"); Walker v. Vargas, No. 11-CV-9034 (ER), 2013 WL 4792765, at *5 (S.D.N.Y. Aug. 26, 2013) ("An administrative remedy is not 'available' for purposes of the PLRA if prisoners are not fully informed about the existence and operation of the remedy.") (citation omitted); Leacock v. N.Y.C Health Hosp. Corp., No. 03-CV-5440 (RMB) (GWG), 2005 WL 1027152, at *1-2 (S.D.N.Y. May 4, 2005) ("administrative remedies were not 'available'" to plaintiff because DOC grievance procedure did not apply to "claims asserted against medical personnel at City jails").
Although it is entirely possible that a grievance procedure applied to Feliciano's medical claims and that Feliciano failed to avail himself of this procedure, defendants have not directed the Court to such a procedure or established its applicability. Cf. Hilbert v. Fischer, No. 12-CV-3843 (ER), 2013 WL 4774731, at *4-7 (S.D.N.Y. Sept. 5, 2013) (converting motion to dismiss into motion for summary judgment and partially dismissing complaint where defendants submitted declaration of correctional official establishing plaintiff's failure to exhaust available grievance process); Murray v. Prison Health Servs., 513 F. Supp. 2d 9, 13 (S.D.N.Y. 2007) (granting motion to dismiss where defendants "submitted two declarations from grievance records custodians"). Given that the Second Amended Complaint is at least consistent with the possibility that the available grievance procedure was inapplicable to Feliciano's medical deliberate-indifference claims or that he was not fully informed of the grievance procedure's scope, the Court concludes that defendants have not met their burden to establish this affirmative defense on the present record. See Walker, 2013 WL 4792765, at *5 ("In light of the possibility that the Plaintiff was not fully informed about the grievance program, the Plaintiff's allegations do not foreclose the possibility that the Court should excuse the Plaintiff's failure to exhaust.").
Courts have repeatedly concluded that the DOC's Inmate Grievance and Request Program ("IGRP") applies to medical deliberate-indifference claims and have taken judicial notice of this grievance process. See, e.g., Johnson v. Stevens, No. 12-CV-5186 (RRM) (MDG), 2014 WL 4722711, at *3 n.8 (E.D.N.Y. Sept. 22, 2014). By the IGRP's own terms, claims alleging that DOC personnel "have interfered with the inmate's timely access to medical care" are subject to the IGRP, but claims alleging "that a medical professional employed to provide services to inmates has failed to provide adequate medical care" are "not subject to the IGRP process." See Inmate Grievance and Request Program, effective Sept. 10, 2012, www1.nyc.gov/assets/doc/downloads/directives/Directive_3376_Inmate_Grievance_Request_Program.pdf (last visited Mar. 30, 2017). Here, defendants have not even directed the Court to the IGRP, much less demonstrated that it applies to the claims against the named defendants in this action. Given defendants' silence on the subject, and given the Court's conclusion that Feliciano's application to amend should be denied on a separate ground, the Court will not undertake to decide the extent to which the IGRP applies to Feliciano's claims.
C. Deliberate Indifference to Medical Needs
1. General Framework
In section 1983 actions, parties may seek redress for "the deprivation of any rights, privileges, or immunities secured by the Constitution." 42 U.S.C. § 1983. "A convicted prisoner's claim of deliberate indifference to his medical needs by those overseeing his care is analyzed under the Eighth Amendment because the right the plaintiff seeks to vindicate arises from the Eighth Amendment's prohibition of cruel and unusual punishment." Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (footnote and quotation marks omitted), overruled on other grounds, Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). "In the case of a person being held prior to trial, however, the cruel and unusual punishment proscription of the Eighth Amendment . . . does not apply, because as a pre-trial detainee the plaintiff is not being punished." Id. (internal citations, alterations, and quotation marks omitted). Instead, a pretrial detainee's claim of deliberate indifference is "properly brought under the Due Process Clause of the Fourteenth Amendment." Id. Here, although neither side has expressly stated as much, Feliciano appears to have been a pretrial detainee at all times relevant here. See 2d Am. Compl. ¶ 29 (noting that Feliciano was transferred from a city to a state correctional facility on July 17, 2015); Defs.' Mem. at 8, 9 n.1, 11 (citing law applicable to pretrial detainees).
Regardless of whether a deliberate-indifference claim is brought by a convicted prisoner under the Eighth Amendment or by a pretrial detainee under the Fourteenth Amendment, the plaintiff must satisfy a two-prong test. First, the plaintiff must establish that he suffered a sufficiently serious constitutional deprivation. Second, the plaintiff must demonstrate that the defendant acted with deliberate indifference. See, e.g., Darnell, 849 F.3d at 29 (pretrial detainee); Taylor v. Goorde, 548 F. App'x 696, 698 (2d Cir. 2013) (convicted prisoner).
2. Effect of Darnell v. Pineiro
Until recently, the analysis of these prongs was identical regardless of whether the plaintiff was a convicted prisoner claiming deliberate indifference under the Eighth Amendment or a pretrial detainee claiming deliberate indifference under the Fourteenth Amendment. See, e.g., Simpson v. Town of Warwick Police Dep't, 159 F. Supp. 3d 419, 443 (S.D.N.Y. 2016) ("'Claims for deliberate indifference to a serious medical condition or other serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment.'") (quoting Caiozzo, 581 F.3d at 72); Darnell, 849 F.3d at 33. Indeed, defendants' opposition papers, which were submitted before the Second Circuit's decision in Darnell v. Pineiro, assert that the standards are the same irrespective of whether the inmate's claim is rooted in the Eighth or Fourteenth Amendment. See Defs.' Mem. at 8, 9 n.1.
After Darnell, however, the second prong of the test may be defined objectively or subjectively, depending on the inmate's status. In Darnell, a case in which pretrial detainees claimed deliberate indifference based on conditions of their confinement, the Second Circuit concluded that the Supreme Court's recent decision in Kingsley v. Hendrickson undercut the rationale for treating pretrial detainees like convicted prisoners for purposes of the second prong of the deliberate-indifference test. Darnell, 849 F.3d at 33-34 (citing Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015)). In Kingsley, the Supreme Court determined that, unlike a prisoner bringing an excessive-force claim under the Eighth Amendment, a pretrial detainee asserting such a claim under the Fourteenth Amendment was not required to establish the defendant's subjective mental state. Kingsley, 135 S. Ct. at 2472-73. Instead, "a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable," meaning that "the defendant's state of mind is not a matter that a plaintiff is required to prove." Id.
The rationale for requiring a prisoner to prove the defendant's subjective state of mind to satisfy the second prong of the deliberate-indifference test is grounded in the text of the Eighth Amendment's Cruel and Unusual Punishments Clause. "According to the Supreme Court, 'punishment' connotes a subjective intent on the part of the official, which also requires awareness of the punishing act or omission." Darnell, 849 F.3d at 32-33 (citing Farmer v. Brennan, 511 U.S. 825, 836-37 (1994)). "Unlike a violation of the Cruel and Unusual Punishments Clause, an official can violate the Due Process Clause of the Fourteenth Amendment without meting out any punishment, which means that the Due Process Clause can be violated when an official does not have subjective awareness that the official's acts (or omissions) have subjected the pretrial detainee to a substantial risk of harm." Id. at 35.
Although Kingsley involved a claim of excessive force by a pretrial detainee, the Second Circuit concluded that the "same objective analysis should apply to an officer's appreciation of the risks associated with an unlawful condition of confinement in a claim for deliberate indifference under the Fourteenth Amendment." Id. Accordingly, to establish such a claim, the Second Circuit determined that "the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety." Id.
After Darnell, the so-called subjective prong of the deliberate-indifference test under the Fourteenth Amendment has become a misnomer, as it is now "defined objectively." Id. Consequently, as the Second Circuit itself observed, the prong "might better be described as the 'mens rea prong' or 'mental element prong.'" Id. at 32.
Although Darnell involved a challenge to conditions of confinement, the holding of the decision is broad enough to extend to medical deliberate-indifference claims. Indeed, the Second Circuit stated that "deliberate indifference means the same thing for each type of claim under the Fourteenth Amendment." Id. at 33 n.9 (citing Caiozzo, 581 F.3d at 72). Further, the appellate court noted that its decision overruled its previous decision in Caiozzo "to the extent that it determined that the standard for deliberate indifference is the same under the Fourteenth Amendment as it is under the Eighth Amendment." Id. at 35. And Caiozzo involved a claim of deliberate indifference to medical needs. Id. at 33 n.9 (citing Caiozzo, 581 F.3d at 68). Consequently, even though Darnell did not involve claims of deliberate indifference to serious medical needs, the Court concludes that Darnell's holding with respect to the so-called subjective prong of the deliberate-indifference test applies here. For this reason, when deciding whether Feliciano has met this prong (which the Court will refer to as the mens rea or mental-element prong as suggested by the Second Circuit), the Court will employ an objective analysis.
A similar pattern underlies a Ninth Circuit opinion on which the Second Circuit relied, namely, Castro v. Cnty. of L.A., 833 F.3d 1060 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831 (2017). See Darnell, 849 F.3d at 35 n.14. Castro involved a pretrial detainee's claim of deliberate indifference based on a failure-to-protect theory. Castro, 833 F.3d at 1064. Relying on Kingsley, the Ninth Circuit concluded that an objective standard governed deliberate-indifference claims. Id. at 1068-72. In doing so, the Ninth Circuit overruled Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1240 (9th Cir. 2010), a case involving medical deliberate-indifference claims that had stood for the proposition that pretrial detainees were required to establish defendants' subjective intent. See id. at 1070. Some but not all Ninth Circuit district courts have applied Castro to medical deliberate-indifference claims, even though Castro did not adjudicate such a claim. See, e.g., Borges v. City of Eureka, No. 15-CV-846 (YGR), 2017 WL 363212, at *9 (N.D. Cal. Jan. 25, 2017) (applying Castro to medical deliberate-indifference claim); Guerra v. Sweeny, No. 13-CV-1077 (AWI), 2016 WL 5404407, at *3 (E.D. Cal. Sept. 27, 2016) (applying Castro to medical claim but citing other cases that did not). In any event, the Second Circuit's reliance on a Ninth Circuit failure-to-protect case (Castro) and a Supreme Court excessive-force case (Kingsley) is some further indication that Darnell's holding extends beyond conditions-of-confinement claims.
a. Objective or "Deprivation" Prong: Sufficiently Serious Deprivation
As the Court reads Darnell, the objective prong of a deliberate-indifference claim is the same regardless of whether the inmate is a convicted prisoner or a pretrial detainee. See Darnell, 849 F.3d at 30 (reciting standard to establish an objective deprivation under "both the Eighth and Fourteenth Amendments"). This requirement—which in this case asks whether the deprivation of medical care was sufficiently serious—can be divided into subparts: "'The first inquiry is whether the prisoner was actually deprived of adequate medical care,' keeping in mind that only 'reasonable care' is required." Barnes v. Ross, 926 F. Supp. 2d 499, 505 (S.D.N.Y. 2013) (quoting Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006)). "'[P]rison officials who act reasonably [in response to an inmate-health risk] cannot be found liable . . . .'" Salahuddin, 467 F.3d at 279-80 (quoting Farmer, 511 U.S. at 845). The second inquiry "asks whether the inadequacy in medical care is sufficiently serious." Id. at 280. "[I]n cases of delayed or inadequate care, 'it's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant . . . .'" Sledge v. Fein, No. 11-CV-7450 (PKC), 2013 WL 1288183, at *5 (S.D.N.Y. Mar. 28, 2013) (quoting Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)); see also Bellotto v. Cnty. of Orange, 248 F. App'x 232, 236 (2d Cir. 2007) ("When a prisoner alleges denial of adequate medical care, we evaluate the seriousness of the prisoner's underlying medical condition. When a prisoner alleges 'a temporary delay or interruption in the provision of otherwise adequate medical treatment,' we focus on the seriousness of the particular risk of harm that resulted from 'the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone.'") (quoting Smith, 316 F.3d at 185) (internal citation omitted).
Now that both parts of the two-part deliberate-indifference test are defined objectively, it is not particularly helpful to label the first part the "objective prong" or "objective requirement." Yet because most relevant precedent still uses this terminology, the Court does so here. Following Darnell, this part of the test might be more appropriately called the "deprivation prong" or the "deprivation requirement."
Feliciano has failed to plead facts in his proposed Second Amended Complaint sufficient to meet the objective or "deprivation" prong of the deliberate-indifference test. Even if the Court were to assume that Feliciano went without adequate medical care at times (which is not apparent from his allegations), he has not established that any deprivation of care was serious enough to rise to the level of a constitutional violation. On January 7, 2015, Feliciano was at the clinic within two hours of his head injury, and only a half hour after he first requested medical attention. 2d Am. Compl. ¶¶ 1-3. That day, Feliciano received a prescription for ibuprofen. Id. ¶ 3. Over the next two weeks, Feliciano visited the clinic five times—specifically, on January 9, 13, 14, 15, and 23. Id. ¶¶ 4, 9, 14-16. He received a prescription for sumatriptan on January 13, a referral to neurology on January 14, a referral to optometry on January 15, and a prescription for Tylenol on January 23. Id. ¶¶ 9, 14-16. Over the next several months, medical professionals saw him repeatedly, including twice in February; once each month in March, April, and May; five times in June; and three times in July. Id. ¶¶ 17-29. In total, Feliciano received prescriptions for five types of pain medication (ibuprofen, sumatriptan, Tylenol, Robaxin, and Naprosyn). Id. ¶¶ 2, 9, 14-16, 18-22, 24. He also had two appointments with a neurologist, and two appointments with an optometrist. Id. ¶¶ 18, 23, 27-28. According to Feliciano, corrective lenses prescribed to him reduced the frequency of his headaches. Id. ¶ 27. And when he lost those glasses, defendant Hyman ordered him a new pair. Id. ¶¶ 27-28. When Feliciano complained that "milk being served [to him] was upsetting [his] stomach," he received a "dietary referral for soy milk" four days later. Id. ¶¶ 25-26. The amount of care that Feliciano received, and its continual, if not entirely seamless, nature, while not necessarily dispositive, militates against the notion that he suffered an objectively serious deprivation. See, e.g., Morrison v. Mamis, No. 08-CV-4302 (PAC) (AJP), 2008 WL 5451639, at *8 (S.D.N.Y. Dec. 18, 2008) (recommending dismissal of deliberate-indifference claim where plaintiff received medical care on numerous occasions over several months) (collecting cases), adopted by, 2009 WL 2168845 (S.D.N.Y. July 20, 2009); Joyner v. Greiner, 195 F. Supp. 2d 500, 502 (S.D.N.Y. 2002) (granting motion to dismiss where plaintiff received "continuous medical care").
Feliciano complains that he did not immediately receive medical attention when he told C.O. Lumlee on January 12 that his "head was hurting" and when he informed C.O. Williams on January 13 that he was experiencing "sharp pain" in his left eye. 2d Am. Compl. ¶¶ 8, 13. Feliciano also takes issue with C.O. Gason's refusal to let him retrieve pain medication from his cell on January 13, telling him that "'we're not opening any cells right now.'" Id. ¶ 12. Yet Feliciano visited the clinic within 24 hours of each incident. Id. ¶¶ 9, 14. "Although a delay in providing necessary medical care may in some cases constitute deliberate indifference, [the Second Circuit] has reserved such a classification for cases in which, for example, officials deliberately delayed care as a form of punishment; ignored a 'life-threatening and fast-degenerating' condition for three days; or delayed major surgery for over two years." Demata v. N.Y. State Corr. Dep't of Health Servs., 198 F.3d 233 (2d Cir. 1999) (unpublished) (citations omitted).
Feliciano's conditions may be considered "'sufficiently serious'" to warrant constitutional protection. See, e.g., De Jesus v. Albright, No. 08-CV-5804 (DLC), 2011 WL 814838, at *9 (S.D.N.Y. Mar. 9, 2011) ("chronic migraine headaches are often found to be 'sufficiently serious' to warrant constitutional protection"). But the circumstances in which his treatment for these conditions was allegedly delayed fall short of the high bar set by the Second Circuit for delay-based deliberate-indifference claims. Demata, 198 F.3d at 233. There are, for example, no allegations that his conditions were life-threatening and fast-degenerating, or that they worsened because of the delay, or that the delay was punitive. See id. Consequently, the Court concludes that any alleged delay was not serious enough to violate Feliciano's constitutional rights. See, e.g., Ferguson v. Cai, No. 11-CV-6181 (PAE), 2012 WL 2865474, at *4 (S.D.N.Y. July 12, 2012) ("The Second Circuit has held that a short interruption of care, even if the underlying medical condition is serious, does not constitute a serious medical need where 'the alleged lapses in treatment are minor.'") (quoting Smith, 316 F.3d at 186).
See also Vansertima v. Dep't of Corr., No. 10-CV-3214 (RJD) (RER), 2012 WL 4503412, at *6 (E.D.N.Y. Sept. 28, 2012) (24-hour delay in treatment was "minor and inconsequential" and "no more than the inconvenience all patients face in receiving medical care, particularly when, [as in this case], their medical condition is not grave") (alteration in original) (internal quotation marks omitted); Rahman v. AMKC Warden, No. 10-CV-4402 (BMC), 2010 WL 4025614, at *2 (E.D.N.Y. Oct. 13, 2010) ("Plaintiff's claim that his headaches, back problems, and mental health issues were not addressed for a period of three days fails to meet this standard."); Alster v. Goord, 745 F. Supp. 2d 317, 335 (S.D.N.Y. 2010) (no deliberate indifference where prison "waited two days after [plaintiff] complained of abdominal pain to take him to the hospital and failed to transport him to" at least one other appointment); Brown v. Wright, No. 04-CV-462 RWS, 2005 WL 3305015, at *6 (S.D.N.Y. Dec. 6, 2005) ("Several courts have held that the temporary deprivation of treatment for pain as [plaintiff] alleges does not rise to the level of constitutional significance.") (collecting cases); Thomas v. Nassau Cnty. Corr. Ctr., 288 F. Supp. 2d 333, 339 (E.D.N.Y. 2003) ("[E]ven assuming that the plaintiff's treatment and/or his seeing a hand specialist was delayed, the plaintiff has not alleged that his hand injury became worse, or that his general condition deteriorated as a result of this delay."); cf. De Jesus, 2011 WL 814838, at *10 (objective requirement met where "there is no record of any treatment being given for . . . headaches" until 11 months after plaintiff's initial complaint); Moriarty v. Neubould, No. 3:02-CV-1662 (RNC), 2004 WL 288807, at *2 (D. Conn. Feb. 10, 2004) (objective requirement met where plaintiff went two weeks without medical attention during which time he suffered multiple "intense migraines" and made "repeated requests" to see doctor).
A primary complaint of Feliciano, which he repeats no fewer than 18 times, is that defendants did not schedule him for "diagnostic tests such as a CAT-scan or x-ray." 2d Am. Compl. ¶¶ 3-4, 9, 14-28. But the "law is clear that a medical decision about whether to order a test . . . is 'at most medical malpractice,' which can be properly redressed under state tort law." Youmans v. City of N.Y., 14 F. Supp. 3d 357, 363 (S.D.N.Y. 2014) (quoting Estelle v. Gamble, 429 U.S. 97, 99 (1976)); see also Flemming v. Velardi, No. 02-CV-4113 (AKH), 2003 WL 21756108, at *3 (S.D.N.Y. July 30, 2003) (dismissing deliberate-indifference claim where plaintiff argued that "he was denied adequate treatment because he was not given a full-body x-ray, an MRI, a CT scan, or a referral to a neurologist").
Further, "mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to" a constitutional violation. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998); see also, e.g., Gumbs v. Dynan, No. 11-CV-857 (RRM), 2012 WL 3705009, at *14 (E.D.N.Y. Aug. 26, 2012) ("'Whether to order an MRI or similar diagnostic treatments is a classic example of a matter for medical judgment,[] and where the treatment provided is responsive to the prisoner's condition, . . . the fact that a prisoner might prefer different treatment does not give rise to' a Constitutional violation.") (quoting Victor v. Milicevic, 361 F. App'x 212, 215 (2d Cir. 2010)); Cecilio v. Kang, No. 02-CV-10010 (LAK) (GWG), 2004 WL 2035336, at *10 (S.D.N.Y. Sept. 14, 2004) ("While the medical care received by a prisoner must be adequate, a prisoner is not entitled to receive treatment by every medical alternative."), adopted by, 2004 WL 2158007 (S.D.N.Y. Sept. 27, 2004). Although Feliciano may have preferred an x-ray or CAT scan over the treatment that he received, his disagreement with the medical professionals caring for him is insufficient to demonstrate that he suffered a serious deprivation of medical care. For these reasons, the Court concludes that Feliciano has failed to plead facts sufficient to meet the objective or "deprivation" prong of the deliberate-indifference test.
b. Mens Rea or Mental-Element Prong: Sufficiently Culpable State of Mind
Because Feliciano has failed to plead facts sufficient to meet the first prong, Feliciano's application to amend his complaint may be denied on that basis alone. As explained below, however, the facts alleged in his proposed Second Amended Complaint also fail to satisfy the second prong, which provides an independent basis to deny his application.
To the Court's knowledge, no other decisions in this Circuit have yet applied Darnell to a claim of deliberate indifference to serious medical needs. Before Darnell, to satisfy the subjective prong of the deliberate-indifference test, a pretrial detainee, like a convicted prisoner, was required to demonstrate that "the charged official . . . act[ed] with a sufficiently culpable state of mind." Salahuddin, 467 F.3d at 280. The official's mental state did not have to "reach the level of knowing and purposeful infliction of harm; it suffice[d] if the plaintiff prove[d] that the official acted with deliberate indifference to inmate health." Id. This mental state, which was akin to "subjective recklessness, as the term is used in criminal law," "require[d] that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm [would] result." Id.; see also Nielsen v. Rabin, 746 F.3d 58, 63 n.3 (2d Cir. 2014) (explaining that the subjective standard articulated in Salahuddin applied to pretrial detainees suing under the Fourteenth Amendment, even though Salahuddin concerned a prisoner suing under the Eighth Amendment).
In Cuffee v. City of New York, No. 15-CV-8916 (PGG) (DF), 2017 WL 1134768 (S.D.N.Y. Mar. 27, 2017), the court addressed Darnell but did not apply it to the plaintiff's medical deliberate-indifference claim because the court dismissed the claim solely for failure to meet the objective element.
After Darnell, the requisite mens rea more closely resembles recklessness as the term is used in the civil context, which does not require the defendant to be subjectively aware of the harm resulting from his acts or omissions. See Darnell, 849 F.3d at 32 ("[R]ecklessness could be defined according to an objective standard akin to that used in the civil context, which would not require proof of an official's actual awareness of the harms associated with the challenged conditions, or according to a more exacting subjective standard akin to that used in the criminal context, which would require proof of such subjective awareness.") (citing Farmer, 511 U.S. at 836-37). Applying Darnell to claims of deliberate indifference to serious medical needs, the Court concludes that a defendant possesses the requisite mens rea when he acts or fails to act under circumstances in which he knew, or should have known, that a substantial risk of serious harm to the pretrial detainee would result. See Darnell, 849 F.3d at 35 ("[T]o establish a claim for deliberate indifference to conditions of confinement under the Due Process Clause of the Fourteenth Amendment, the pretrial detainee must prove that the defendant-official acted intentionally to impose the alleged condition, or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety."). As was the case before Darnell, the defendants' "actions [must be] more than merely negligent." Salahuddin, 467 F.3d at 280; Darnell, 849 F.3d at 36 ("A detainee must prove that an official acted intentionally or recklessly, and not merely negligently."). "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. Thus, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim." Id.
Here, Feliciano does not allege facts sufficient to demonstrate that any of the medical professionals he has named as defendants acted with deliberate indifference to his health. Though he questions their judgment, Feliciano's "dissatisfaction with [his] treatment . . . is insufficient to support the subjective" or mens rea "prong of deliberate indifference." Jones v. Mack, No. 08-CV-6089 (BSJ) (KNF), 2012 WL 386269, at *5 (S.D.N.Y. Feb. 3, 2012), aff'd sub nom. Jones v. Vives, 523 F. App'x 48 (2d Cir. 2013); see also, e.g., Joyner, 195 F. Supp. 2d at 504 ("It is well established that a difference of opinion between a prisoner and prison officials regarding medical treatment does not, as a matter of law, constitute deliberate indifference."). The extensive treatment received by Feliciano undermines the notion that the medical staff disregarded serious risks to his health. See, e.g., Washington v. City of N.Y., No. 10-CV-389 (LTS) (JLC), 2011 WL 566801, at *2 (S.D.N.Y. Feb. 15, 2011) ("Plaintiff was treated several times by doctors . . . and . . . was given a narcotic medication when he complained that his pain persisted. The treatment Plaintiff received reflects that the Defendants identified and responded to Plaintiff's injury and his complaints of pain."); Kee v. Hasty, No. 01-CV-2123 (KMW) (DF), 2004 WL 807071, at *22 (S.D.N.Y. Apr. 14, 2004) (plaintiff's "acknowledgment . . . that the medical staff provided him with pain medication (Motrin) renders his claim of deliberate indifference insufficient under the subjective prong of the standard").
With respect to the medical personnel sued here, Feliciano perhaps comes the closest to satisfying the mens rea requirement when he alleges that Dr. Mateo refused to see him when he complained of sharp pain in his left eye during the evening of January 13. 2d Am. Compl. ¶ 13. Instead of seeing Feliciano immediately, Dr. Mateo instructed him to rinse out his eye with cold water and to sign up for sick call in the morning. Id. Although Feliciano did not receive immediate medical care, this fact is insufficient to establish that Dr. Mateo knew, or should have known, that the brief delay put Feliciano's health in jeopardy. See Hayes v. N.Y.S. D.O.C. Officers, No. 97-CV-7383 (MBM), 1998 WL 901730, at *8 (S.D.N.Y. Dec. 28, 1998) ("[P]laintiff alleges that he notified [nurse-defendant] . . . that his eye was in pain and tearing and that his vision was becoming worse. . . . [T]his evidence is insufficient to establish that [nurse-defendant] should have drawn an inference that a substantial risk of serious harm existed.").
Feliciano also fails to allege facts sufficient to suggest that any correction officers sued here possessed the requisite mens rea. "The same standards apply to a claim of deliberate indifference to serious medical needs on the part of nonmedical prison personnel." Hodge v. Coughlin, No. 92-CV-622 (LAP), 1994 WL 519902, at *11 (S.D.N.Y. Sept. 22, 1994), aff'd, 52 F.3d 310 (2d Cir. 1995). Non-medical personnel may, for example, be deliberately indifferent if they "'delay[] access to medical care when the inmate [is] in extreme pain and has made his medical problems known to the attendant prison personnel.'" Stiehl v. Bailey, No. 08-CV-10498 (CS), 2012 WL 2334626, at *12 (S.D.N.Y. June 19, 2012) (quoting Hodge, 1994 WL 519902, at *11).
The facts alleged in the Second Amended Complaint, assumed to be true, do not establish that C.O. Lumlee knew, or should have known, that Feliciano faced a serious health risk when he complained that his "head was hurting"—especially given that Feliciano had informed the officer that he had previously received medical treatment and was prescribed ibuprofen. 2d Am. Compl. ¶ 8. Likewise, although C.O. Gason denied Feliciano's request to enter his cell to retrieve his pain medication, there is no indication that he disregarded a serious threat to Feliciano's health. Id. ¶ 12. Indeed, Feliciano does not even allege advising C.O. Gason of his symptoms, let alone notifying him that his health was at serious risk. Id. Finally, when Feliciano asked C.O. Williams for medical attention for his eye pain, C.O. Williams responded by calling the clinic and following Dr. Mateo's instructions. Id. ¶ 13. Correction officers who defer to the judgment of medical professionals on such matters are only liable if the plaintiff pleads facts demonstrating that the "non-medical defendant should have challenged the medical professionals' decisions," which Feliciano has failed to do here. Smith v. Wilson, No. 9:12-CV-1152 (MAD), 2013 WL 5466857, at *9 (N.D.N.Y. Sept. 30, 2013) (citing Gonzalez v. Sarreck, No. 08-CV-3661, 2011 WL 5051341, at *14 (S.D.N.Y. Oct. 24, 2011)); see also Gomez v. Chill, No. 11-CV-6844 (CM) (JLC), 2015 WL 1853110, at *17 (S.D.N.Y. Apr. 17, 2015) (correctional superintendent permitted to rely on medical staff) (collecting cases), adopted by, 2015 WL 3862709 (S.D.N.Y. June 9, 2015); Allen v. Ford, 880 F. Supp. 2d 407, 411 (W.D.N.Y. 2012) (no deliberate indifference where correction officer "advised [plaintiff] to sign up for sick call in the morning instead of receiving immediate emergency care"). Consequently, the Court concludes that Feliciano has failed to allege facts to meet the mens rea element of a deliberate-indifference claim as well.
D. Operative Pleading and Remaining Defendants
Because Feliciano fails to allege facts sufficient to state a plausible claim of deliberate indifference to serious medical needs, his application to amend the complaint to plead this claim is denied. However, because the first 13 paragraphs of the Second Amended Complaint, which cover the period of January 7 to January 13, 2015, merely restate the Initial Complaint's core factual allegations with additional detail, the Court will permit Feliciano to amend his complaint to include the facts contained in these paragraphs. See 2d Am. Compl. ¶¶ 1-13. As defendants have not opposed this request, the Court also permits Feliciano to plead paragraphs 30 to 32 of the Second Amended Complaint, in which Feliciano alleges that the January 7 incident gives rise to a claim for "Breach Of Duty Of Care." Id. ¶¶ 30-32.
The paragraphs referred to here are in the "Statement of Claim" section of the Second Amended Complaint. --------
Finally, Feliciano asserts a claim for "Refusal To File An Incident Report" in paragraphs 52 to 62 of the Second Amended Complaint given several defendants' alleged refusal to file a report memorializing the January 7 incident. Id. ¶¶ 52-62. The factual allegations relevant to this claim are contained in paragraphs 1 to 13, which the Court has already noted Feliciano may plead. Defendants have not opposed (or even addressed) Feliciano's application to add this claim. Accordingly, the Court will permit Feliciano to plead it and add the newly named defendants implicated by it (Charles Appiah, Bessie Flores-Clemente, and C.O. Williams). Id. ¶¶ 54, 55, 61.
Plaintiff is also permitted to add as a defendant "C.O. Jane Doe," whom Feliciano identifies as the "Female C.O. who was operating the cell doors in Unit 8 South on January 7, 2015 at approximately 2:45pm." Compl. at 3. Pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), defendants are directed to identify this correction officer forthwith so that Feliciano may serve her and so that her name may be substituted in the caption. Feliciano's application to add the remaining newly named defendants is denied given that their involvement is limited to Feliciano's medical deliberate-indifference claim, which will not be included in the case. Further, Dr. Mateo (who was named in the Initial Complaint as "Dr. Pateo") is terminated from this action given that his involvement was limited to the same claim. Finally, because the proposed Second Amended Complaint does not name Captain Romero as a defendant, he is eliminated from this case.
In summary, the operative complaint will be the Initial Complaint, along with paragraphs 1-13, 30-32, and 52-62 of the Second Amended Complaint. This will be considered the Operative Complaint in this case going forward. Feliciano is hereby directed to file the Operative Complaint as a standalone document within 30 days of this Memorandum Order. Feliciano is permitted to add Charles Appiah, C.O. Jane Doe, Bessie Flores-Clemente, and C.O. Williams as defendants, but not the other newly named defendants. Lastly, Captain Romero and Dr. Mateo, who were named as defendants in the Initial Complaint, are terminated.
III. CONCLUSION
For the reasons set forth above, Feliciano's application to amend the complaint is denied except as set forth in section II(D) above. The defendants remaining in this case are: C.O. Anderson, Charles Appiah, C.O. Codea, C.O. Jane Doe, C.O. DelaRosa, Bessie Flores-Clemente, C.O. Gason, C.O. LaBrew, C.O. McCoy, C.O. Lumlee, C.O. Villalon, and C.O. Williams. The Clerk is directed to terminate the other named defendants and remove them from the caption.
The remaining defendants are directed to file their response to the Initial Complaint as amended within 60 days of the date of this Memorandum Order. The Court will hold a case management conference on June 14, 2017 at 10:30 a.m. in Courtroom 21D, United States Courthouse, 500 Pearl Street, New York, New York to discuss a revised discovery schedule.
SO ORDERED. Dated: March 30, 2017
New York, New York
/s/_________
JAMES L. COTT
United States Magistrate Judge
A copy of this Memorandum Order has been mailed to the following:
Angel Feliciano 145 Father Zeiser Pl. #4C Bronx, NY 10468