Summary
noting that personal involvement is present where a supervisor reviewed a prisoner's grievance with respect to a constitutional violation and decides against taking any corrective action
Summary of this case from Fatir v. PhelpsOpinion
No. 02 Civ. 10299 (RWS).
December 30, 2004
DIALLO RAFIK ASAR MADISON, Plaintiff Pro Se Clinton Correctional Facility, Dannemora, NY.
HONORABLE ELIOT SPITZER, Attorney General of the State of New York, Attorneys for Defendants, NICOLA NADINE GREY, Assistant Attorney General Of Counsel.
OPINION
Defendants Lester Wright ("Wright"), Chief Medical Officer of New York State Department of Correctional Services ("DOCS"); Fishkill Correctional Facility ("FCF") superintendent William Mazzuca ("Mazzuca"); FCF deputy superintendent D. Schramm ("Schramm"); Eastern Correctional Facility ("ECF") superintendent David Miller ("Miller"); ECF doctor Mikhail Guzman ("Guzman"); Upstate Correctional Facility ("UCF") nurse Riley ("Riley"); Southport Correctional Facility ("SCF") superintendent Michael McGinnis ("McGinnis"); SCF Doctor Alves ("Alves"); and SCF Nurse Dyal ("Dyal") (collectively, "the Defendants") have moved to dismiss the complaint filed by pro se plaintiff Diallo Madison ("Madison") on the grounds that Madison has failed to exhaust administrative remedies and has failed to state claims upon which relief can be granted. Defendants also argue that they are entitled to qualified immunity and that venue in the Southern District of New York is improper.
Parties
Madison is a prison inmate in New York State Department of Correctional Services ("DOCS") custody and was incarcerated at FCF, ECF, UCF, and SCF during the period of time in which the events in his complaint are alleged to have occurred. Madison is currently incarcerated in Clinton Correctional Facility ("CCF") in Dannemora, New York.
Wright was the Associate Commissioner and Chief Medical Officer for DOCS at all relevant times.
Mazzuca was the FCF superintendent at all relevant times.
Schramm was the FCF deputy superintendent of administration at all relevant times.
Miller was the ECF superintendent at all relevant times.
Guzman was an ECF physician at all relevant times.
Thomas Rick, who was the UCF superintendent at all relevant times, is not a party to this action because he was never served with the summons and complaint or the amended complaint.
Riley was a UCF nurse at all relevant times.
McGinnis was SCF superintendent at all relevant times.
Alves was an SCF physician at all relevant times.
Dyal was an SCF nurse at all relevant times.Prior Proceedings
On January 3, 2002, Madison commenced this action, alleging violations of his constitutional rights while incarcerated at Coxsackie, Auburn, and Fishkill Correctional Facilities. The Honorable Michael B. Mukasey, Chief Judge of the Southern District of New York, directed Madison to file an amended complaint detailing his allegations regarding his claims at FCF.See Madison v. Mazzuca, et. al., 02 Civ. 10299 (S.D.N.Y. Dec. 27, 2002). The only common defendant between the initial complaint and the amended complaint is Mazzuca.
On March 3, 2003, Madison filed the amended complaint. On September 12, 2003, the Defendants moved for dismissal of the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). On April 13, 2004, Defendants' Rule 12(b) (6) motion was denied without prejudice on the grounds that the question of exhaustion needed to be determined before the merits of the complaint were addressed. Madison v. Wright, No. 02 Civ. 10299 (RWS), 2004 WL 816429 at *2 (S.D.N.Y. Apr. 13, 2004). Since that opinion was entered, the Second Circuit has held that the presence of unexhausted claims in an inmate's § 1983 complaint does not compel dismissal of the action in its entirety. See Ortiz v. McBride, 380 F.3d 649, 662 (2d Cir. 2004), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Nov. 16, 2004) (No. 04-668).
Pursuant to the Court's April 13, 2004 memorandum opinion, on June 28, 2004, Defendants filed a combined motion for summary judgment and dismissal for failure to state a claim on which relief can be granted. Plaintiff's opposition was filed on July 21, 2004. The motion was marked fully submitted without oral argument on August 4, 2004.
In the April 13, 2004 memorandum opinion, the Court stated that "defendants' motion to dismiss is denied without prejudice to renewal by April 26, 2004 as a combined motion for summary judgment, solely on the issue of exhaustion, and to dismiss pursuant to Rule 12(b)(6)." Extensions of time were subsequently granted to the parties.
Facts
The following facts are drawn from the amended complaint and the affidavits and affirmations filed by the parties. These facts do not constitute findings by the Court.
Madison alleges that on October 16, 2001, while incarcerated at FCF, "he slipped and fell while exiting the in-cell shower." (Am. Compl. ¶ 3.) He alleges that he "fell because the floor towels used for the in-cell shower were continuously denied." (Id. at ¶ 4.) Madison further alleges that as a result of the slip and fall, he injured his right elbow, which became swollen and painful. (Id. at ¶ 5.)
On October 23, 2001, Madison filed grievance number FCF 22342-01, in which he requested: (1) to be issued towels for the floor on shower day, (2) to be provided with an elbow pad for his injured right elbow, and (3) to be compensated for the injuries that he allegedly suffered "due to the negligence and deliberate indifference of laundry civilian Pat DeCarlo." (Egan Decl. Ex. B.) On October 30, 2001, the Inmate Grievance Resolution Committee ("IGRC") recommended: (1) that plaintiff be provided with extra towels or a mop on shower day, (2) that plaintiff use sick call procedures to address medical concerns, (3) that plaintiff's request for compensation be denied as beyond the IGRC's purview. (Id.) Madison appealed the IGRC recommendations to FCF Superintendent Mazzuca, who concurred with the IGRC recommendations. (Id.) On November 16, 2001 Madison was transferred from Fishkill to Eastern Correctional Facility ("ECF"). (Am. Compl. ¶ 9.) Madison alleges that he was transferred because "defendants Mazzuca and Schramm did not want to address [his] medical concerns." (Id.) Madison appealed Mazzuca's decision to the DOCS Central Office Grievance Review Committee ("CORC"), which denied the appeal on July 3, 2002. (Egan Decl. Ex. B.)
Madison began experiencing severe pain in his elbow upon his arrival at ECF. On December 12, 2001, Guzman examined Madison and prescribed medication for his pain and swelling. Madison alleges that a cyst on his right elbow was visible and that in March, 2002, x-rays of his elbow "read negative." (Am. Compl. ¶ 12.) On April 10, 2002, Madison alleges, Guzman scheduled him to be "seen by an outside hospital orthopedic specialist for possible removal of the cyst." (Id. at ¶ 13.) Madison also alleges that the "ganglion cyst" had grown since October, 2001. (Id.) Madison was transferred from ECF to UCF on April 11, 2002. He alleges that this transfer was "based upon the fact the defendants Guzman and Miller did not want to undergo the medical expenses" associated with treating his right elbow. (Id. at ¶ 14.)
As a new inmate at UCF, Madison was examined by nurse Riley on April 11, 2002. (Id. at ¶ 15.) He alleges that he was rescheduled for an orthopedic consultation on April 23, 2002. (Id. at ¶ 15.) On May 27, 2003, Madison filed grievance number UST 12363-02, which requested a consultation with an orthopedic specialist. On June 20, 2002, the IGRC recommended that this request be accommodated. (07/14/04 Madison Aff. Ex. 3.)
On June 14, 2002, Madison was transferred to SCF. He alleges that this transfer was motivated by Riley's desire to avoid incurring medical expenses associated with treatment of his injured elbow. (Id. at ¶ 18.)
Madison arrived at SCF on June 17, 2002. Shortly after his arrival, he was allegedly examined by SCF medical personnel and rescheduled for an appointment with an outside orthopedic specialist. Around the same time, Madison allegedly complained to Dyal about the severe pain in his elbow and Dyal allegedly told him that Alves would not return from vacation until August, 2002.
On June 17, 2002, Madison filed grievance number SPT 24033-02 based on this meeting with Dyal. In this grievance, Madison requested: (1) that he be permitted to see an orthopedic specialist about his elbow and (2) that Dr. Alves be reprimanded for tampering with his records. (Egan Decl. Ex. B.) On June 20, 2002, the IGRC stated that Alves had submitted Madison for an orthopedic consultation on June 18, 2002. (Id.) On July 1, 2002, McGinnis affirmed the IGRC, stating that "Grievant is currently awaiting scheduling." (Id.) On July 3, 2002, Madison appealed McGinnis' affirmance of the IGRC recommendation to CORC. (Id.) On July 31, 2002, CORC upheld the McGinnis' affirmance, noting that plaintiff was scheduled for an orthopedic appointment in the future. (Id.)
The amended complaint alleges that Madison filed this grievance on June 17, 2002. However, the events underlying the grievance allegedly took place on June 20, 2002.
On August 14, 2002, Alves allegedly determined that based on Madison's injury, consultation with an orthopedic specialist was "no longer medically necessary." (Am. Compl. ¶ 50.)
On August 19, 2002, Madison allegedly met with Alves, who was allegedly "outright angry, hostile, belligerent, as well as verbally abusive" because he had filed the June 17 grievance.
(Am. Compl. at ¶ 30.) Madison alleges that Alves told him that it was a "waste of taxpayer money" to send him to an orthopedic specialist and that he could wear an elbow sleeve for his injury. (Id. at ¶ 31.) Madison also alleges that Alves asserted that he would not be permitted to see an outside specialist during the term of his incarceration at SCF. Alves allegedly told Madison to "get the fuck out of his office." (Id.)
On August 20, 2002, Madison filed grievance number SPT 24542-02, which sought the following relief: (1) copies of the April 10, 2002 consent form and all of his requests for a consultation with an orthopedic specialist relating, (2) the opportunity to see an orthopedic specialist on September 2, 2002, and (3) assurance that Alves would not file specious reports or tamper with his records. (07/14/04 Madison Aff. Ex. 3.) On August 29, 2002, the IGRC recommended denial of the requested actions on the grounds that a doctor had determined on August 19, 2002 that there was no need for a consultation with an orthopedic surgeon and that copies of requested documents were provided to Madison on August 23, 2002. (Id.) The IGRC was subsequently affirmed by defendant McGinnis. On October 16, 2002, CORC denied Madison's appeal concerning grievance number SPT 24542-02 on the grounds (1) that "the Facility Health Services Director (FHSD) [had] indicated that [an orthopedic] consultation [was] not medically necessary" and (2) that "CORC [had] not been presented with sufficient evidence to substantiate any malfeasance by the employees referenced in this instant complaint." (07/14/04 Madison Aff. Ex. 3.)
On August 22, 2002 Dyal allegedly refused Madison an Ibuprofen prescription refill and told him that "You blew it, the Defendant Alves don't want to give you anything." (Am. Compl. at ¶ 33.) On August 23, 2002, Madison filed grievance number SPT 24621-02, requesting (1) medication for pain in his right elbow, (2) copies of requested medical records, and (3) assurance that Alves would not act with bias against his medical needs. (07/14/04 Madison Aff. at Ex. 3.) On August 27, 2002, the IGRC denied the grievance because another nurse had filled the prescription a few days later. (Id.) Madison alleges that he appealed this decision to McGinnis, who concurred with the IGRC recommendation. (Am. Compl. at ¶ 37.) Madison further alleges that he appealed McGinnis' concurrence to CORC in September of 2002, and CORC denied the appeal in October of 2002. (Id. at ¶ 38.) Defendants argue that there is no evidence that Madison appealed the IGRC recommendation.
On September 3, 2002, Madison filed grievance number SPT 24693-02, which (1) requested a consultation with an orthopedic specialist and (2) complained that Dr. Alves had improperly changed the diagnosis concerning his elbow. (Egan Decl. Ex. B.) On September 12, 2002, the IGRC recommended denial of these requests. On September 26, 2002, McGinnis affirmed the IGRC recommendations. (Id.) Madison appealed this decision to CORC on October 2, 2002, and McGinnis' decision was upheld on November 7, 2002. (Id.)
On October 15, 2002, Madison filed grievance number SPT 25027-02, requesting replacement of his elbow sleeve and to determine the cost of removal of the cyst from his elbow so that such cost could be paid by his family. (Id.) On October 23, 2002, the IGRC recommended replacement of his elbow sleeve and denial of his request for an orthopedic consultation. (Id.) On November 8, 2002, McGinnis concurred with the IGRC recommendation. (Id.) On December 18, 2002, CORC upheld this affirmance. (Id.)
Madison alleges that he was in pain during psychological counseling sessions on September 12 and October 11, 2002, and he could not complete these sessions due to discomfort caused by having his hands cuffed behind his back.
On September 30, 2002, Kate Rainbolt ("Rainbolt"), an attorney from Prisoner's Legal Services of New York, allegedly wrote to Alves inquiring whether Madison would receive a consultation with an orthopedic specialist and inquiring into the medical basis for any determination that such consultation was unnecessary. Rainbolt allegedly did not receive a reply from Alves and wrote a follow-up letter six weeks later on November 15, 2002 requesting a reply. Rainbolt allegedly did not receive a response to this follow-up letter. On December 16, 2002, Rainbolt allegedly wrote a letter to Wright concerning Madison's medical situation. Rainbolt allegedly never received a response from Wright concerning her inquiry.
On January 13, 2003, Madison was transferred to Great Meadow Correctional Facility ("GCF"), a move allegedly motivated by the fact that "defendant McGinnis, and Alves did not want to spend any money" on Madison's medical treatment. (Am. Compl. ¶ 60.) Madison alleges that shortly after his arrival to GCF, he was examined and scheduled for "surgical removal of the overgrown cyst." (Id. ¶ 62.) Madison alleges that the cyst was subsequently removed.
As stated above, Madison's amended complaint was filed on March 7, 2003.
On March 7, 2003, Madison filed grievance number GM 34282-03, requesting to be seen by an orthopedic specialist for his elbow. (Egan Decl. at Ex. B.) On March 24, 2003, the IGRC recommended that a facility physician determine whether referral to an orthopedic specialist was warranted. (Id.) On April 7, 2003, GCF Superintendent George B. Duncan denied Madison's request on the grounds that a GCF doctor had determined that a referral was not necessary. (Id.) On April 9, 2003, Madison appealed this decision to CORC, and on May 14, 2003, CORC upheld the determination of the GCF superintendent. (Id.)
Madison was subsequently transferred to Clinton Correctional Facility ("CCF"). On October 24, 2003, Madison filed grievance number CL 49291-03, requesting (1) consultation with an orthopedic specialist, (2) pain medication for his elbow, and (3) compensation for his suffering. (Id.) Madison stated that the grievance was filed "because of the deliberate indifference" of Mazzuca, Schramm, Miller, Rick, Riley, Alves, Dyal, McGinnis, and Miller. (Id.) On October 28, 2003, the IGRC recommended that Madison be permitted to see his doctor about his elbow. (Id.) On October 31, 2003, CCF superintendent Dale A. Aotus concurred with the IGRC recommendation. (Id.) Madison appealed the superintendent's ruling on the grounds that he wanted "to be compensated for the deliberate indifference of each person mentioned in the complaint Dr. Lester N. Wright Dr. M. Guzman to be added for their deliberate indifference." (Id.) On December 11, 2003, CORC upheld the superintendent, stating that "monetary damages are not an available remedy through the inmate grievance mechanism." (Id.)
Discussion
In addressing the present motion, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held to "less stringent standards than formal pleadings drafted by lawyers . . ." Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting Haines v. Keener, 404 U.S. 519, 520 (1972)); see also Ferrand v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law. Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
§ 1983 Pleading Requirements
"To state a claim for relief in an action brought under § 1983, [plaintiff] must establish that [he was] deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." Am. Mfrs. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). An individual defendant is not liable under § 1983 absent personal involvement. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); Morris v. Eversley, 205 F. Supp. 2d 234, 241 (S.D.N.Y. 2002). According to the Second Circuit, a DOCS employee defendant is deemed to be personally involved in a § 1983 violation if:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, 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 865, 873 (2d Cir. 1995) (citingWright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Defendants' 12(b)(6) Motion
Pursuant to 42 U.S.C. § 1997e(c) (2), the first step in the present analysis is to determine whether the amended complaint states a claim as to each of the defendants. The amended complaint, which is deemed to assert claims pursuant to 42 U.S.C. § 1983, alleges that the defendants acted with deliberate indifference to plaintiff's medical needs, thereby violating the Eight Amendment and the Fifth and Fourteenth Amendments.
This statutory provision states that "in the event that a claim . . . fails to state a claim upon which relief can be granted, . . . the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies." 42 § 1997e (c) (2).
For the purpose of evaluating a Rule 12(b)(6) motion, the Court must accept as true all properly plead allegations. See, e.g., Chance v. Armstrong, 143 F.3d 698, 701 (2d. Cir. 1998). 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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). (stating that this standard "is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se"). In the context of a 12(b)(6) motion, "[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." Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996) (quoting Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (internal quotation marks omitted)).
Pursuant to Rule 12(b)(6), "a § 1983 complaint must set forth specific factual allegations indicating a deprivation of constitutional rights." Rivera v. Goord, 119 F. Supp. 327, 335 (S.D.N.Y. 2000); see also Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987) ("[B]road, simple, and conclusory statements are insufficient to state a claim under § 1983.").
The Supreme Court has held that "deliberate indifference to serious medical needs of a prisoner constitutes the `unnecessary and wanton infliction of pain' . . . proscribed by the Eighth Amendment." Estelle v. Gamble 429 U.S. 97, 104 (1976) (quotingGregg v. Georgia 428 U.S. 153, 172 (1976)). To state a § 1983 claim based on deliberate indifference, plaintiff must allege two elements. First, plaintiff must allege a "sufficiently serious" deprivation of medical treatment — i.e., a deprivation reasonably likely to result in death, degeneration, or extreme pain. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (internal quotation omitted). Second, plaintiff must allege facts tending to show that the defendant acted "with a sufficiently culpable state of mind" — i.e., that the defendant knew of and disregarded the excessive risk to the inmate's health arising from the deprivation of medical treatment. Id. (citing Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
a. Mazzuca and Schramm
Madison has asserted deliberate indifference claims against FCF superintendent Mazzuca and FCF deputy superintendent Schramm on the theory that these defendants transferred him from FCF to ECF to prevent him from seeing an FCF physician. However, Madison has not alleged any facts demonstrating that these defendants were personally involved in the decision to transfer him from FCF. Moreover, even if personal involvement had been alleged, Madison's pleadings are nonetheless defective to the extent that they fail to allege that either of these defendants acted with a sufficiently culpable state of mind. That is, Madison has failed to allege facts indicating that either Mazzuca or Schramm knew of and disregarded an excessive risk to his health that would arise if he was transferred before an FCF doctor had the opportunity to examine his injured elbow.
Therefore, the Eighth Amendment claims against Mazzuca and Schramm are dismissed.
b. Guzman
The amended complaint alleges that ECF doctor Guzman, one day after scheduling Madison for a consultation with an orthopedic specialist, caused him to be transferred from ECF to UCF for the purpose of denying him medical treatment. However, Madison has not alleged any facts demonstrating that Guzman was personally involved in the decision to transfer him from ECF to FCF. Furthermore, the amended complaint contains no allegations that Guzman knew of and disregarded an excessive medical risk that would result from the decision to transfer Madison prior to the scheduled consultation. Therefore, the Eighth Amendment claim against Guzman is dismissed.
c. Miller
The amended complaint alleges that ECF superintendent Miller acted in concert with Guzman to effect Madison's transfer from ECF to UCF. However, this conclusory allegation, which is unsupported by proper factual assertions, is insufficient to defeat a Rule 12(b)(6) motion. See, e.g., De Jesus v. Sears, Roebuck Co., Inc., 87 F.3d 65, 70 (2d Cir. 1996) (stating that "`[a] complaint which consists of conclusory allegations unsupported by factual assertions fails even the liberal standard of Rule 12(b) (6).'") (quoting Palda v. General Dynamics Corp., 47 F.3d 872, 875 (7th Cir. 1995)).
Madison has failed to allege facts showing that defendant Miller was personally involved in the decision to transfer him. He has similarly failed to allege that Miller knew of and disregarded an excessive medical risk that would result from the decision to transfer him prior to the scheduled consultation. Therefore, the Eighth Amendment claim against Miller is dismissed.
d. Rick
As stated in Defendants' motion papers, Rick is not a party to this action because he was never served with the summons and complaint or the amended complaint.
e. Riley
With respect to UCF nurse Riley, the sole allegation contained in the amended complaint is that she examined Madison upon his transfer to UCF. Based on this allegation, Madison asserts the conclusory allegation that Riley caused him to be transferred to SCF in order to avoid incurring the costs associated with his medical care. There are no factual allegations that Riley was personally involved in the decision to transfer Madison. Nor is there any allegation that Riley took any action with the requisite culpable mental state. Therefore, Madison's Eight Amendment claim against Riley is dismissed.
f. Alves and Dyal
Madison alleges that SCF doctor Alves (1) cancelled his appointment for a consultation with an orthopedic specialist, (2) instructed SCF medical staff not to issue pain medication to him, (3) refused to issue a "front-cuff order," thereby requiring his injured arm to be twisted behind him whenever he was placed into handcuffs, and (4) refused to replace the worn-out brace that he wore on his injured elbow. Madison alleges that Alves' actions were motivated in large measure by Alves' anger that Madison had filed grievances concerning the medical care he received from Alves. Likewise, it is alleged that SCF nurse Dyal refused to refill Madison's prescription on several occasions (Am. Compl. ¶ 34), allegedly also in retaliation for grievances that Madison had filed concerning Alves' conduct.
The Defendants seek dismissal of Madison's Eighth Amendment claims against Alves on the grounds that the course of treatment selected by Alves was adequate, and Madison's preference for an alternative treatment does not create a constitutional claim.See, e.g., Chance, 143 F.3d at 703; Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Defendants are correct that where a prison doctor selects among treatment options with reasonably equivalent efficacy rates, an inmate cannot make out a deliberate indifference claim merely by second guessing the doctor's choice. However, a physician may be deliberately indifferent if he or she consciously chooses "an easier and less efficacious" treatment option. Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974) (holding that where a portion of plaintiff's ear had been detached, merely closing the wound rather than attempting to reattach the detached portion could constitute deliberate indifference); Chance, 143 F.3d at 703. Here, Madison has alleged that the treatment options selected by Alves were considerably less efficacious than the alternative — i.e., permitting him to see an orthopedic specialist to determine if surgery was warranted. Furthermore, Madison has alleged that Alves opted for a course of treatment that he knew to be significantly less efficacious based on two improper factors: (1) personal animus toward Madison and (2) his opinion that a consultation with an orthopedic specialist would constitute a waste of public funds.
Pursuant to the Williams holding, these allegations state a deliberate indifference claim against defendant Alves. 508 F.2d at 844. Madison has also stated deliberate indifference claims with respect to Alves' other actions — i.e., refusing Madison's pain medicine, refusing to issue a "front-cuff order," and refusing to order a replacement elbow brace. All of these actions are alleged to have caused Madison severe pain, and all of these actions were allegedly taken in retaliation for Madison's decision to file grievances against Alves. Therefore, Madison has stated an Eighth Amendment claim against Alves with respect to the above-described conduct.
Madison alleges that defendant Dyal withheld pain medication from him on several occasions. He alleges that Dyal was aware of his injury and the "severe pain" associated with it, but nonetheless allegedly refused to provide him with additional Ibuprofen because Madison had angered Alves. Courts of this district have held that denial of pain medication, under proper circumstances, can form the basis for a deliberate indifference claim. See, e.g., Rivera v. Goord, 119 F. Supp. 2d 327, 337 (S.D.N.Y. 2000) (holding that plaintiff had stated a deliberate indifference claim where he alleged that he "suffered `severe,' `unbearable,' and `great' pain because the defendant refused to provide him with pain medication"). Based on Madison's allegations concerning Dyal — i.e., (1) that she denied him pain medication, (2) that he suffered "extreme pain" as a result, and (3) that Dyal had a culpable mental state — Madison has stated an Eighth Amendment claim against Dyal.
g. Alves and Dyal Are Not Entitled to Qualified Immunity as a Matter of Law
Defendants argue that Alves and Dyal are entitled to qualified immunity. Public officials are "immune from liability for money damages in suits brought against them in their individual capacities if `their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Anthony v. City of New York, 339 F.3d 129, 137 (2d Cir. 2003) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Defendants argue that it was objectively reasonable for Alves and Dyal to believe that they were not violating Madison's Eighth Amendment right when they denied him medical treatment for his elbow. However, because it has been found that Madison's allegations state a claim for deliberate indifference against these defendants, it cannot be determined as a matter of law that it was objectively reasonable for Alves and Dyal to believe that their conduct did not violate Madison's right to be free from cruel and unusual punishment. In other words, "[a]ssuming that [Alves and Dyal] [were] deliberately indifferent to [plaintiff's] serious medical needs, [they] [are] not entitled to qualified immunity because it would not be objectively reasonable for them to believe [their] conduct did not violate [Madison's] rights."Hathaway, 37 F.3d at 69.
h. McGinnis and Wright
Madison has asserted intentional indifference claims against SCF superintendent McGinnis and DOCS chief medical officer Wright, both of whom were allegedly involved in denying his appeals of grievances concerning the conduct of Dyal and Alves. To state a § 1983 damages claim against a state official, the complaint must allege that the official was personally involved in the conduct at issue. See, e.g., Koehl v. Dalsheim, 85 F. 3d 86, 89 (2d Cir. 1996) (citing Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989)). With respect to prison personnel who act in a supervisory capacity, the Second Circuit has stated that under certain circumstances, the personal involvement requirement can be satisfied where the plaintiff alleges that "the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong. . . ." Colon, 58 F.3d at 873.
Here, Madison alleges that he brought the conduct of Alves and Dyal to the attention of defendants McGinnis and Wright (Alves' alleged supervisor) by initially filing and subsequently appealing grievance number SPT 24693-02. Furthermore, Madison alleges that attorney Rainbolt wrote letters to both defendants concerning the conduct of Alves. Madison alleges that McGinnis and Wright failed to address the conduct of Alves and Dyal.
Based on decisions from this district, Defendants argue that McGinnis cannot be deemed to have been personally involved in the conduct of Alves and Dyal merely because he affirmed the denial of Madison's grievances against them. See, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 506 (S.D.N.Y. 2002) (quotingScott v. Scully, No. 93 Civ. 8777 (HB), 1997 WL 539951 at *4 (S.D.N.Y. Aug. 28, 1997)). It should be noted that other courts of this district have held that personal involvement is present where a supervisory official reviews a prisoner's grievance with respect to a constitutional violation and decides against taking any corrective action. See, e.g., McKenna v. Wright, No. 01 Civ. 6571 (HB), 2004 WL 102752 at *5 (S.D.N.Y. Jan. 21, 2004);Williams v. Fisher, No. 02 Civ. 4558 (LMM), 2003 WL 22170610 at *31 (S.D.N.Y. Sep. 17, 2003) (citing Walker v. Pataro, No. 99 Civ. 4607 (GBD) (AJP), 2002 WL 664040 at *13 (S.D.N.Y. Apr. 23, 2002)).
This Court is not persuaded that the Second Circuit has adopted the rule that an inmate can state a § 1983 claim against a DOCS official merely by alleging that such official reviewed an inmate's grievance and failed to take any corrective action in response. Such a rule would lead to the untenable consequence that "virtually every inmate who sues for constitutional torts by prison guards could name the [s]uperintendent as a defendant since the plaintiff must pursue his prison remedies [pursuant to] 42 U.S.C. § 1997e(a) . . . and invariably the plaintiff's grievance will have been passed upon by the [s]uperintendent."Thompson v. New York, 99 Civ. 9825, (GBD) (MHD), 2001 U.S. Dist. LEXIS 9450, *23-24 (S.D.N.Y. Nov. 15, 2001). Based on the foregoing, it is determined that the amended complaint fails to state a § 1983 claim against McGinnis.
The allegations concerning Wright's conduct are similarly defective. First, Madison's allegations that Wright acted in concert with the other defendants for the purpose of having him improperly transferred among correctional facilities is wholly conclusory. Second, Madison's allegations — i.e., that Wright received letters written on Madison's behalf concerning the conduct of Alves and that Wright participated in CORC's adjudication of grievance number SPT 24693-02 — fail to state a § 1983 claim for the reasons discussed above. Therefore, the Eight Amendment claim against Wright is dismissed.
The Due Process Claim Is Dismissed As To All Defendants
Madison's first cause of action alleges that the actions by Defendants "constituted a gross deprivation of Plaintiff's Civil Rights, as well as deliberate indifference to the Plaintiff's medical needs . . . outlawed by the Fifth and Fourteenth Amendments of the U.S. Constitution." (Am. Comp. ¶ 66.) Given its most generous reading, this allegation asserts an additional basis for § 1983 liability, i.e., alleged violation of plaintiff's rights to substantive due process. However, this claim must be dismissed as duplicative of the Eight Amendment claims. "Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims." Velez v. Levy, 274 F. Supp. 2d 444, 454 (S.D.N.Y. 2003) (quotingAlbright v. Oliver, 510 U.S. 266, 272 (1994)). "If a constitutional claim is covered by a specific constitutional provision, such as the Fourth or Eighth Amendment, the claim must be analyzed under the standard appropriate to that specific provision, not under the rubric of substantive due process."U.S. v. Lanier, 520 U.S. 259, 272 n. 7 (1997) (citing Graham v. Connor, 490 U.S. 386, 394 (1989)).
Because Madison's deliberate indifference claim is covered by the Eighth Amendment, the substantive due process claims are duplicative under the rule articulated by the Albright andGraham courts. Therefore, the substantive due process claims are dismissed as to all Defendants. See McKenna v. Wright, No. 01 Civ. 6571, 2004 WL 102752, at *8 (S.D.N.Y. Jan. 21, 2004).
Exhaustion
Pursuant to Fed.R.Civ.P. 56, Defendants have moved for summary judgment on the grounds that Madison failed to exhaust administrative remedies prior to bringing this action.
1. Summary Judgment Standard
Under Rule 56(c), Fed.R.Civ.P., summary judgment is warranted when, in viewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 251 (1986).
A motion for summary judgment requires the party with the burden of proof at trial to "make a showing sufficient to establish the existence of an element essential to that party's case . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Where the "record taken as a whole could not lead a rational trier of fact to find for the moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)). Accordingly, summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to a material fact and that the moving party is entitled to judgment as a matter of law." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)).
2. PLRA Exhaustion Requirements
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (" PLRA"), states that:
No action shall be brought with respect to prison conditions under section 1983 . . . or any other federal law . . . by a prisoner . . . until such administrative remedies as are available are exhausted.
Complaints filed under § 1983 are to be dismissed if prisoners have failed to exhaust administrative remedies. Booth v. Churner, 532 U.S. 731, 742 (2001); Alexandroai v. California Dep't of Corrections, 985 F. Supp. 968, 970 (S.D. Cal. 1997) (plaintiff must "work within the prison system to have his case heard and then come to the Court after he has exhausted his administrative remedies as required by federal law"). The Supreme Court has held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
3. DOCS Grievance Procedures
New York's Inmate Grievance Program has three steps that generally must be exhausted before an action is brought in federal court. See N.Y. Correction Law § 139; N.Y. Comp. Codes R. Regs. tit. 7, § 701. First, an inmate must file a complaint with the Inmate Grievance Resolution Committee (IGRC) within 14 days of the alleged event. See N.Y. Comp. Codes R. Regs. tit. 7, § 701.7(a)(1). The IGRC must then investigate and may resolve the issue informally within seven days. See id. at § 701.7(a) (3). If there is no informal resolution, a hearing is held, and the inmate may appeal to the superintendent of the facility within four days of the IGRC's action. See id. at §§ 701.7(a) (4) (b). Finally, after receiving a response from the superintendent, the prisoner may appeal that decision to CORC within four days of its receipt. See Id. at § 701.7(c). CORC, in turn, must render a decision within 20 days. See id. 4. Recent Second Circuit Decisions
In a suite of five decisions issued in August 2004, the Court of Appeals for the Second Circuit clarified certain aspects of the nature and scope of the administrative exhaustion requirement set forth in the PLRA. As the Court of Appeals explains, although "our circuit has recognized that . . . the PLRA's exhaustion requirement is `mandatory,' certain caveats apply." Giano v. Goord, 380 F.3d 670, 677 (2d Cir. 2004) (quoting Porter, 534 U.S. at 524) (internal citation omitted).
In the first of the five decisions rendered, Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004), petition for cert. filed, — U.S.L.W. — (U.S. Nov. 16, 2004) (No. 04-668), the Court of Appeals held that the presence of unexhausted claims in an inmate's § 1983 complaint does not compel dismissal of the action in its entirety. See Ortiz, 380 F.3d at 662 (noting that, "in the ordinary case, once the district court dismisses the unexhausted claims, it will proceed directly to decide the exhausted claims without waiting for the plaintiff to attempt to exhaust available administrative remedies with respect to the dismissed claims"). In the second such decision, Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004), the Court of Appeals stated that "the PLRA does not require the exhaustion of all administrative remedies, but only those that are `available' to the inmate," Abney, 380 F.3d at 667, and concluded that, under certain circumstances, a defendant's behavior may render administrative remedies unavailable to a prisoner. Such circumstances include the repeated failure to implement multiple administrative rulings in a prisoner's favor.See id. at 669. As the Court of Appeals explained, "[w]here, as here, prison regulations do not provide a viable mechanism for appealing implementation failures, prisoners in [the plaintiff's] situation have fully exhausted their available remedies." Id. Accordingly, "[a] prisoner who has not received promised relief is not required to file a new grievance where doing so may result in a never-ending cycle of exhaustion." Id. In Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), the third decision of the August decisions, the Court of Appeals held that,
[T]here are certain "special circumstances" in which, though administrative remedies may have been available and though the government may not have been estopped from asserting the affirmative defense of non-exhaustion, the prisoner's failure to comply with administrative procedural requirements may nevertheless be justified.Giano, 380 F.3d at 676. Specifically, the Giano Court held that failure to exhaust administrative remedies is justified where the inmate reasonably believed that "DOCS regulations foreclosed such recourse." Id. at 678.
In Hemphill v. New York, 380 F. 3d 680 (2d Cir. 2004), the Court of Appeals held that: (1) the standard for assessing the availability of a grievance procedures is whether "`a similarly situated individual of ordinary firmness'" would have deemed the procedure available, Hemphill, 380 F.3d at 688 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)); (2) a defendant's actions inhibiting an inmate's exhaustion of remedies may estop assertion of the failure to exhaust as an affirmative defense,see id. at 686; and (3) a reasonable fear of retaliation is a "special circumstance" justifying the failure to exhaust available administrative remedies. Id. at 690.
Finally, in Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004), the Court of Appeals held that failure to exhaust is an affirmative defense that is deemed waived if the defendant fails to assert it, see Johnson, 380 F.3d at 695, and separately concluded that, "[i]n order to exhaust, . . . inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Id. at 697 (remanding the matter to the district court to determine in the first instance whether complaints concerning a correction officer's conduct referenced during the plaintiff's disciplinary appeals afforded prison officials time and opportunity to take responsive measures and whether the plaintiff was justified in raising the complaint in the context of the disciplinary proceeding).
The above-described decisions bear upon several of the issues raised in the instant motion, including the process by which administrative exhaustion under the PLRA is analyzed. As set forth in Hemphill, these decisions require a determination as to (1) whether administrative remedies were "available" to the plaintiff; (2) whether Defendants forfeited the affirmative defense of non-exhaustion or are estopped from asserting Madison's alleged failure to exhaust as a defense; and (3) in the event that plaintiff failed to exhaust available administrative remedies and there is no bar to defendant's assertion of the non-exhaustion defense, whether "`special circumstances' have been plausibly alleged to justify `the prisoner's failure to comply with administrative procedural requirements.'" Hemphill, 380 F.3d at 686 (quoting Giano, 380 F.3d at 676); see also Veloz v. New York, 339 F. Supp.2d 505, 513 (S.D.N.Y. 2004) (summarizing the analytical steps elaborated in the Court of Appeals' recent jurisprudence).
5. Madison Has Exhausted Administrative Remedies With Respect to Alves and Dyal
Much of the conduct at issue in this case occurred during the approximately seven months that Madison was incarcerated at SCF. Specifically, Madison has alleged that defendants Alves and Dyal improperly denied him needed medical treatment in retaliation for grievances that he had filed concerning his need to see an orthopedic specialist. Madison fully exhausted his administrative remedies with respect to at least three grievances — SPT 24542-02, SPT 24693-02, and SPT 25027-02 — concerning the alleged improper conduct of defendants Alves and Dyal. These grievances described in significant detail the exact conduct giving rise to the present lawsuit. Based on these grievances, each of which was reviewed by CORC, there is no issue as to whether Madison exhausted his administrative remedies with respect to Alves and Dyal.
Defendants argue that because Madison failed to exhaust his administrative remedies prior to filing the complaint on January 3, 2002, this action must be dismissed in its entirety, and plaintiff must file a new lawsuit in order to pursue his claims against Alves and Dyal. Of course, neither Alves nor Dyal were named in the original complaint, and the conduct that they are alleged to have engaged in all purportedly occurred some eight months after the filing of that complaint. Moreover, courts of this district have held that where an inmate's complaint is dismissed pursuant to the PLRA for failure to exhaust administrative remedies, the court may grant the plaintiff leave to file an amended complaint once such remedies have been exhausted. See, e.g., Graham v. Perez, 121 F. Supp. 2d 317, 322 (S.D.N.Y. 2000).
Based on the foregoing, defendants' motion for dismissal of the claims against Alves and Dyal for failure to exhaust administrative remedies is hereby denied.
Venue
Defendants argue that this action should be dismissed on the alternative grounds that the Southern District of New York is an improper venue. Where, as here, jurisdiction is based on the existence of a federal question, venue is appropriate in "a judicial district where any defendant resides, if all defendants reside in the same state." 28 U.S.C. § 1391(b)(1). "For the purposes of venue, § 1983 defendants reside where they perform their official duties. Amaker v. Haponik, 198 F.R.D. 386, 391 (S.D.N.Y. 2000) (citing Akbar, Islam v. Cuomo, 94 Civ. 7757, 1995 WL 539638, at *1 (S.D.N.Y. Sept. 8, 1995)); Baker v. Coughlin, No. 93 Civ. 1084 (RWS), 1993 WL 356852 at *2-3 (S.D.N.Y. Sep. 9, 1993). Since defendants Schramm and Mazzuca are deemed to reside in this district based on the fact that FCF is located in Dutchess County, Madison properly filed this action in the Southern District.
In Baker, this Court stated:
It is settled law that under § 1391 the `residence' of public officers such as these defendants means his or her `official' and not `actual' residence." Canaday v. Koch, 598 F. Supp. 1139, 1143 (E.D.N.Y. 1984) (citing Birnbaum v. Blum, 546 F. Supp. 1363, 1366 (S.D.N.Y.)). While Madison's complaint states that the action is brought against the Defendants individually and in their official capacities, it is uncontested that all the Defendants are being sued for acts of commission and omission while functioning as agents of the State of New York.Baker, 1993 WL 356852 at *3-4.
Defendants have moved to transfer this action to either the Western or Northern Districts of New York. This Court has the discretion to transfer an action "for the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). "The convenience of the parties and witnesses is considered `the essential criteria under the venue statute.'" Baker v. Coughlin, 1993 WL 356852, at *4 (quoting First City Federal Savings Bank v. Register, 677 F. Supp. 236, 237 (S.D.N.Y. 1988)).
Alves and Dyal, the only defendants remaining in this action, are deemed to both reside in Chemung County, which is in the Western District of New York. Plaintiff Madison is currently incarcerated at Clinton Correctional Facility, which is in the Northern District. Therefore, venue over the remaining claims lies in both the Northern and Western Districts. To the extent that Madison brought this action outside his home district, he has already demonstrated that the laying of venue elsewhere in the state will not be unduly burdensome for him. Therefore, defendants' motion to transfer this action to the Western District of New York is hereby granted. Conclusion
The claims against defendants Wright, Mazzuca, Schramm, Miller, Guzman, Riley, and McGinnis are dismissed without prejudice for failure to state a claim upon which relief can be granted. Defendants' motion for dismissal for failure to state a claim is denied as to the claims against Alves and Dyal. Defendants' motion for summary judgment on the claims against Alves and Dyal for failure to exhaust administrative remedies prior to the initiation of this action is denied. Finally, Defendants' motion to transfer this action to the Western District of New York is hereby granted.
It is so ordered.