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noting that the New York Department of Corrections and Community Supervision ("DOCCS") is immune from federal lawsuits
Summary of this case from Kravitz v. AnnucciOpinion
04 Civ. 3904 (PKC).
July 29, 2005
MEMORANDUM AND ORDER
Plaintiff Clifton Lyerly, proceeding pro se, commenced this action under section 1983 alleging deliberate indifference to medical needs by prison officials. On May 24, 2004, Chief Judge Mukasey entered an order reviewing the allegations of the complaint, noting that plaintiff had failed to adequately allege exhaustion of administrative remedies and pointing out the required elements of a medical indifference claim. He noted that direct or personal involvement on the part of the defendant prison official must be alleged. Chief Judge Mukasey granted plaintiff a sixty day period within which to amend his complaint.
On July 21, 2004, plaintiff Lyerly filed an Amended Complaint. While the pleading is vague and imprecise, it annexes medical records and correspondence. Generously read, it alleges that (1) plaintiff was known to have asthma and sarcoidosis; (2) he was repeatedly exposed to second-hand smoke (also known as environmental tobacco smoke ("ETS")); and (3) defendants, acting under color of state law, were deliberately indifferent to his medical needs in failing to transfer him to a Unit for the Physically Disabled ("UPD") where he alleges he would be free from second hand smoke. He seeks compensatory and punitive damages. He also seeks unspecified "[i]njuctive relief". Named as defendants are William Phillips, Superintendent of Greenhaven Correctional Facility, Dr. Carl J. Koenigsmann, Facility Health Services Director, D.O.C.S. Movement and Control, "Captain Keyser", and unnamed "Security Captain", female nurse and another female.
Defendants move to dismiss under Rule 12(b)(1) and (6), Fed.R.Civ.P., on various grounds addressed herein. Courts review pro se pleadings carefully and liberally and interpret such pleadings "to raise the strongest arguments that they suggest."See e.g., Green v. United States, 260 F.3d 70, 83 (2d Cir. 2001) (citations omitted). Defendants' motion is granted in part and denied in part.
Legal Standard
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in favor of plaintiff. "Dismissal is not appropriate 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se. . . . At the 12(b)(6) motion stage, '[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Id. at 701 (citations omitted). Plaintiff's Amended Complaint is to be judged by a notice pleading standard.Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).
Although the Court is limited to facts as stated in the complaint, it may consider exhibits to the complaint or documents incorporated by reference into the complaint without converting the motion into one for summary judgment. See International Audiotext Network, Inc. v. ATT Co., 62 F.3d 69, 72 (2d Cir. 1995).
Failure to Exhaust
The Prisoner Litigation Reform Act of 1995 (" PLRA") provides that "[n]o action shall be brought with respect to prison conditions under [section 1983] . . . by a prisoner confined in any . . . correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The Supreme Court has made clear that "the PLRA's exhaustion requirement applies to all inmate suits about prison life."Porter v. Nussle, 534 U.S. 516, 532 (2002).
As the Supreme Court has recognized, "Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. at 524-25 (quoted in Luckerson v. Goord, 2002 WL 1628550, at *2 (S.D.N.Y. July 22, 2002)). As a result, the subject matter of a prisoner's grievance must have provided prison officials with sufficient notice of the claims asserted in a prisoner's federal court complaint to have permitted them to try to address those claims internally.
The New York State Department of Correctional Services ("DOCS") has a well-established, three-step, administrative procedure for inmate grievances called the inmate grievance program ("IGP"). N.Y. Correction Law § 139 (2003). The first step in the IGP is to file a grievance with the Inmate Grievance Resolution Committee (the "IGRC"). 7 N.Y. Codes R. Reg. ("N.Y.C.R.R.") § 701.7(a)(1). After receiving a response from the IGRC, an inmate has four days in which to appeal to the superintendent of his facility. § 701.7(b)(1). If the IGRC does not respond to an inmate's initial grievance, the inmate may still appeal to the superintendent. § 701.8. Within four days of receiving a response from the superintendent, the inmate may appeal to the Central Office Review Committee ("CORC") in Albany. § 701.7(c)(1).
In his May 24 Order, Chief Judge Mukasey required plaintiff to amend his complaint to set forth the steps he had taken to exhaust his administrative remedies. Plaintiff's Amended Complaint does allege facts demonstrating exhaustion. Defendants concede that he filed grievance GH-53335-04 on or about February 24 and that he fully exhausted his remedies through the three levels, including CORC. (See D. Mem. at 8) Defendants assert that the grievance was insufficiently specific because it does not track the specifics of the Amended Complaint. I disagree. The Grievance complains of second had smoke entering his cell and the condition of the television area where a majority of the inmates smoke. It complains "the time I was forced to double bunk with a smoker." True, the grievance lacks specific detail about the nature of his medical condition but does advise that he has been complaining to his medical provider and that he has "breathing" problems. It is vague on the nature of the relief sought and does not identify any particular individual by name as the culprit. At the motion to dismiss stage, I cannot say that this Greivance, which he pursued through the three levels, was inadequate to exhaust his remedies
Eleventh Amendment Defenses
Defendants assert that from the text of the Amended Complaint, it is not possible to tell whether defendants are being sued in their official or personal capacities. They assert that if and to the extent they are being sued for money damages in their official capacities, then the claim in actuality is against the state and must be dismissed under principles of sovereign immunity. It is also asserted that defendant "D.O.C.S. Movement and Control" may only be sued as an arm of the state and is immune from suit.
The Supreme Court in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996), observed that the Eleventh Amendment confirms two presuppositions of constitutional proportion: "first, that each State is a sovereign entity in our federal system; and second, that '[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent,'. . . ." (first alteration in original; citations omitted). See Federal Maritime Comm'n v. South Carolina State Ports Authority, 535 U.S. 743, 766 (2002) ("Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from suit."). A state may waive its immunity provided it does so in an unequivocal fashion. See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 n. 1 (1985); CSX Transportation, Inc. v. New York State Office of Real Property Services, 306 F.3d 87, 95 (2d Cir. 2002). Also, Congress may abrogate a state's sovereign immunity "pursuant to a valid exercise of power." Seminole, 517 U.S. at 55. Section 1983 does not abrogate a state's Eleventh Amendment immunity.See Quern v. Jordan, 440 U.S. 332 (1979); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam). DOCS is an agency and arm of the State. "D.O.C.S. Movement and Control" is a part of DOCS and is entitled to the immunity that the State enjoys. Accordingly, "D.O.C.S. Movement and Control" is dismissed by reason of the State's immunity.
The Eleventh Amendment provides as follows: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." While the text of the amendment does not purport to provide a defense to a suit by a citizen of the same state as the defendant state, it has been read more broadly to be reflective of the sovereign immunity of each state. 517 U.S. at 54. "[D]espite the limited terms of the Eleventh Amendment, a federal court [can not] entertain a suit brought by a citizen against his own State." Pennhurst State School Hospital v. Halderman, 465 U.S. 89, 98 (1984) (citation omitted). "In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III. . . ." Id.
Eleventh Amendment immunity also extends to damage actions against State employees acting in their official capacities because the State is the real party in interest. See Halderman, 465 U.S. at 98-99; Farid v. Smith, 850 F.2d 917, 921 (1996). "When the state itself, rather than the state employee whose name appears in the caption, is the real party in interest, the suit is said to be brought against the employee in his 'official capacity.' The eleventh amendment bars recovery against an employee who is sued in his official capacity, but does not protect him from personal liability if he is sued in his 'individual' or 'personal' capacity." Farid, 850 F.2d at 921. Employees of DOCS and its facilities, when sued in their official capacities, have been held to be subject to the State's Eleventh Amendment immunity. See Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (Commissioner of DOCS and officials of Attica);see also Verley v. Goord, 2004 WL 526740 (S.D.N.Y. Jan 23, 2004), report and recommendation adopted by order of June 2, 2004; Gowins v. Greiner, 2002 WL 1770772, at *3-*4 (S.D.N.Y. July 31, 2002) (citing Posr v. Court Officer Shield No. 207, 180 F.3d 409, 414 (2d Cir. 1999)). Thus, to the extent that the plaintiff asserts a 1983 section damage claims against defendants in their official capacities, they are dismissed from this action. To the extent that plaintiff seeks prospective injunctive relief, sovereign immunity and the Eleventh Amendment does not bar the claim. See Davis v. New York, 316 F.3d 93, 102 (2d Cir. 2003). "'[A]ctions involving claims for prospective declaratory or injunctive relief are permissible provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action.'" Loren v. Levy, 2003 WL 1702004, at *11 (S.D.N.Y. March 31, 2003) (quoting Davidson v. Scully, 148 F. Supp. 2d 249, 254 (S.D.N.Y. 2001) (other citations omitted); accord Glass v. Coughlin, 1991 WL 102619, at *2 (S.D.N.Y. May 29, 1991) ("[P]ersonal involvement of an official sued in his official capacity is not necessary where the plaintiff is seeking only injunctive or declaratory relief under 42 U.S.C. § 1983."). An injunction may be issued only if the State official has the authority to perform the required act.Loren, 2003 WL 1702004, at *11. An unreasonable risk of serious damage to future health can support declaratory or injunctive relief. See Helling, 509 U.S. at 39. Prospective judicial relief relating to prison conditions must meet the requirements of 18 U.S.C. § 3626, part of the Prison Litigation Reform Act of 1995. This statutory provision requires that any such relief be "narrowly drawn" and apply "the least intrusive means necessary." 18 U.S.C. § 3626(a)(1-2).
Liability under Section 1983: Deliberate Indifference
The Supreme Court has held that deliberate indifference to serious medical needs of a prisoner falls under the Eighth Amendment prohibitions upon "cruel and unusual punishments" and the unnecessary and wanton infliction of pain. See Wilson v. Seiter, 501 U.S. 294, 298 (1991); Estelle v. Gamble, 429 U.S. 97 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976), reh'g denied, 429 U.S. 1066 (1977)). Inadvertent or negligent failure to provide adequate medical care does not rise to the level of deliberate indifference. Estelle, 429 U.S. at 105-06. Allegations of medical malpractice or negligent treatment are insufficient to state a claim under § 1983." Estelle, 429 U.S. at 106 ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."); Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir.), cert. denied, 502 U.S. 849 (1991). Here, plaintiff alleges that he was known to be suffering from a serious lung disease and claims that defendants have been deliberately indifferent to his medical needs, among other ways, by "subjecting him to a double bunked cell with an inmate that smoked on more than one occasion."
There is both an objective and subjective element to a claim of deliberate indifference upon which the plaintiff bears the burden of proof. "Objectively the alleged deprivation must be 'sufficiently serious,' in the sense that 'a condition of urgency, one that may produce death, degeneration, or extreme pain' exists. Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citations omitted).
The objective prong of the test requires that the plaintiff be subjected to conditions that are "repugnant to the conscience of mankind," Estelle, 429 U.S. at 106, or that result "in unquestioned and serious deprivations of basic human needs" or "deprive inmates of the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
With respect to the objective prong, plaintiff must allege exposure to unreasonably high levels of ETS and that the risk to his health posed by such exposure "is not one that today's society chooses to tolerate." Helling v. McKinney, 509 U.S. 25, 35-36 (1993) (suggesting that a policy restricting smoking to specifically designated areas could be administered in a way "that will minimize the risk to [inmate plaintiffs] and make it impossible for [them] to prove that [they] will be exposed to unreasonable risk with respect to [their] future health"); see also Warren v. Keane, 196 F.3d 330, 333 (1999) ("The objective factor not only embraces the scientific and statistical inquiry into the harm caused by ETS, but also 'whether society considers the risk . . . to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.'") (quoting Helling, 509 U.S. at 36).
The second prong of the test, the subjective prong, requires that the prison official act with a culpable state of mind. It is met where the evidence shows that the prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994); see also Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). There must be evidence demonstrating more than mere medical malpractice or disagreement about treatment options. See Estelle, 429 U.S. at 106; Bryant, 923 F.2d at 983; Brown v. Selwin, 250 F. Supp. 2d 299, 307 (S.D.N.Y. 1999) (noting that "mere disagreement with prison officials about what constitutes appropriate medical care does not state a cognizable claim under the Eighth Amendment. Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates, and inmates do not have the right to the treatment of their choice.") (citations and internal quotations omitted), aff'd, 2002 WL 355902 (2d Cir. 2002). In the ETS context, plaintiff must prove deliberate indifference, taking into account prison officials' "current attitudes and conduct and any policies that have been enacted." Warren, 196 F.3d at 333 (quotations and citations omitted). The adoption of a smoking policy, if enforced, "will bear heavily on the inquiry into deliberate indifference." Helling, 509 U.S. at 36-37.
While I acknowledge that it is a close question, I conclude that the complaint satisfies the first prong — the objective standard. Plaintiff Lyerly alleges that, upon his arrival at the facility on December 11, 2000, he informed a female nurse that he suffered from asthma and stressed to her the importance of not being placed in a double bunked cell. He alleges that despite having informed the nurse he was double bunked "on numerous different times" (Amended Complaint, p. 3). He also alleges that his medical records would have disclosed that he was not well-suited for double bunking. The pleading is vague as to whether he was double bunked with smokers on numerous occasions but does assert that he was subjected to "a double bunked cell, with an inmate that smoked on more than one occasion." (Amended Complaint, p. 6.) Annexed to his complaint and referred to in the body of the pleading is the affidavit of Jack Rotger. Rotger was a smoker who was placed in a double bunked cell with plaintiff. He says that plaintiff Lyerly informed him of his medical condition and that "we both informed the housing officer that I am a smoker and that is unhealthy for Mr. Lyerly to be doubled celled with me due to the seriousness of his medical condition." Mr. Rotger goes on to state that "Movement and control [the unit within DOCS named in the Amended Complaint] was immediately notified and Mr. Lyerly was moved around the corner." (Rotger ¶ 6) Certainly the Rotger incident standing alone would not be sufficient to support a claim.
I am well aware that this is a motion to dismiss in which all allegations of the Amended Complaint are accepted as true. I do not read the Rogert affidavit as if it were submitted on a summary judgment motion; rather, in generously construing the Amended Complaint, I read the affidavit as having been incorporated into the complaint.
I am ultimately persuaded that plaintiff has sufficiently alleged conduct meeting the objective prong because I have read his complaint in light of the medical records and correspondence he has annexed. He appears to have been receiving regular medical attention at the Albany Medical College. The medical records suggest that he had a substantially reduced lung function, perhaps as low as 20% of that predicted for his age and size. It also appears that between February 20, 2001 and April 12, 2001, he had an asthma attack of sufficient seriousness that he was hospitalized for one week. In November 2001 he was diagnosed as having "[s]evere airflow obstruction". As of November 2001, he appears to have been on four medications.
In August 2002, he wrote to Dr. Koenigsmann seeking a transfer to the Unit for the Physically Disabled. In his undated correspondence with prison officials, he recounts problems in the area around the television "where a majority of the inmate's smoke." He also complains of "inmates in the cell's [sic] next to me, who smoke (second hand smoke), which enters my cell. . . ." He complains that the second hand smoke is present "morning's [sic], noon and nights". The cumulative effect of the foregoing is sufficient to meet the first prong.
With respect to the subjective prong — the culpable state of mind of the official — it is a matter that can be best assessed at the conclusion of discovery on a summary judgment motion.
Liability of Supervisors under Section 1983
For an actionable claim to survive against state officials in their personal capacity, plaintiffs must demonstrate "personal involvement of defendants in alleged constitutional deprivations. . . ." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted); see also Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.) ("The rule in this circuit is that when monetary damages are sought under § 1983, the general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required."), cert. denied, 414 U.S. 1033 (1973). "Personal involvement of a supervisory official may be established 'by evidence that: (1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring'." Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 254 (2d Cir. 2001) (alterations in original) (quoting Colon, 58 F.3d at 873). Liability may be premised upon grossly negligent supervision of others, personally ignoring evidence of constitutional wrongdoings or creating a policy or custom under which unconstitutional practices occurred, or allowing the continuance of such a policy or custom. See Johnson v. Newburgh Enlarged School Dist., 239 F.3d at 254.
Here, the name of defendant Phillips, the superintendent of the facility, appears on one or more letters annexed to the complaint as part of plaintiff's demonstration of exhaustion. (Letter of August 14, 2002, October 22, 2003, December 23, 2003) Receipt of letters or grievances or complaints from inmates is insufficient to impute personal involvement. See Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002) (collecting cases holding that ignoring prisoners' letters of protest and requests for investigation is insufficient to premise section 1983 liability); Thompson v. New York, 2001 WL 636432, at *7 (S.D.N.Y. Mar. 15, 2001); Rivera v. Goord, 119 F. Supp. 2d 327, 344 (S.D.N.Y. 2000). There is not a sufficient allegation of personal involvement or grossly negligent supervision on the part of Philliips to support a claim against him in his personal capacity. Plaintiff does not allege personal involvement by Captain Keyser. Captain Keyser, according to plaintiff's memorandum, was in charge of inmate movement and control. There is no allegation that Captain Keyser could have overruled Dr. Koenigsmann's decision not to reassign plaintiff to the Unit for the Physically Disabled. The claims against defendants Phillips and Keyser are dismissed. There are insufficient facts alleged as to Jane Doe or #1 Female Nurse to meet minimal notice pleading requirements. Plaintiff's memorandum suggests that Jane Doe and #1 Female Nurse are one and the same person, Joan Tarid. Even so, the allegation that she took plaintiff's intake information upon his arrival at Green Haven, including his request for single bunking because of his medical condition, is insufficient to allege deliberate indifference on her part. There is no allegation that the individual had sufficient authority to grant plaintiff the relief he sought.
As to Dr. Koenigsmann, it appears that defendant Phillips transmitted to him plaintiff's request for transfer to the Unit for the Physically Disabled. Dr. Koenigsmann acknowledges having conducted a "a review of your medical records" before determining that plaintiff was not eligible for transfer to the unit. (Memorandum of August 28, 2002). Generously construed, there is sufficient personal involvement by Dr. Koenigsmann to withstand a motion to dismiss. From the context of his memorandum, he appears to have had the power to effectuate the transfer but concluded that plaintiff's condition did not warrant transfer. Whether his conclusions were well-grounded and his actions in good faith may be assessed after discovery.
Statute of Limitations
As an alternate ground for dismissal of plaintiff's complaint, defendants argue that this action is time-barred. The statute of limitations for a section 1983 claim is determined from the forum state's statute of limitations for personal injury actions.Owens v. Okure, 488 U.S. 235, 249-50 (1989). In New York, the statute of limitations for personal injury actions is three years. CPLR § 214(5). Because plaintiff's claims arose in New York, this three-year limit applies to his claim. See Owens, 488 U.S. at 250-51; Jaghory v. New York State Dep't of Education, 131 F.3d 326, 331 (2d Cir. 1997). A cause of action under section 1983 accrues "when the plaintiff knows or has reason to know of the injury which is the basis of his action."Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002) (citations omitted), cert. denied, 538 U.S. 922 (2003); see also Jaghory, 131 F.3d at 331.
In this case, plaintiff's claim was delivered to the Court's Pro Se Clerk's Office for filing on February 20, 2004 and the timeliness of his claims is measured from that point. Defendants argue that events that predate February 20, 2001 are time barred.
Because "[t]he Supreme Court has instructed that in section 1983 actions, we borrow not only a state's limitations period but also its 'tolling rules,' unless applying the state's tolling rules 'would defeat the goals of the federal statute at issue,'" there remains the issue of whether the statute of limitations was tolled during the pendency of plaintiff's grievances by operation of New York CPLR § 204(a). Pearl, 296 F.3d at 80 (citations omitted); see also McCoy v. Goord, 255 F. Supp. 2d 233, 253 (S.D.N.Y. 2003).
There is also an issue of whether continuous treatment in a medical indifference claim tolls the statute of limitations. These are conclusions that I need not reach at the motion to dismiss stage.
Qualified Immunity
A qualified immunity defense may be asserted on a Rule 12 (b)(6) motion, if the facts supporting the defense appear on the face of the complaint. See McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004). Here, however, I cannot assess the availability of the defense solely from the materials annexed to the complaint. In this case, the defense can be best assessed after discovery.
Conclusion
The motion to dismiss as to defendants Phillips, Keyser, "D.O.C.S. Movement and Control," "Jane Doe," and "Female Nurse #1" is GRANTED. Under notice pleading standards, Swierkiewicz, 534 U.S. at 512, the motion to dismiss as to defendant Koenigsmann is DENIED without prejudice to defendant's arguments at the summary judgment stage on grounds, including both prongs of the medical indifference standard, statute of limitations, and qualified immunity.
SO ORDERED.