Summary
stating that an inmate failed to exhaust administrative remedies under PLRA where he did not go beyond initial grievance stage
Summary of this case from ROA v. FOWLEROpinion
00 Civ. 803 (MBM)
October 31, 2002
Reginald Petty, 91-A-1465, Dannemora, NY, (Plaintiff pro se).
Eliot L. Spitzer, ESQ., Attorney General of the State of New York, Edward Rodriguez, ESQ., Assistant Attorney General, New York, NY, (Attorneys for Defendants).
OPINION AND ORDER
Plaintiff Reginald Petty, an inmate at the Clinton Correctional Facility, tiled this § 1983 action pro se against defendants Glenn S. Goard, Commissioner of the New York State Department of Correctional Services; Jane Doe #1, Facility Nurse at Green Haven Correctional Facility; John Doe #1, Facility Nurse at Green Haven Correctional Facility; Harry Mamis, Facility Doctor at Green Haven Correctional Facility; Amora, Corrections Officer at Green Haven Correctional Facility ("C.O. Amora"); Wilk, Corrections Sergeant at Green Haven Correctional Facility ("Sgt. Wilk"); John Doe #2, Facility specialist at Green Haven correctional Facility; and John Doe #3, Medical Director at Green Haven Correctional Facility. Petty claims that defendants, by disclosing his HIV status, violated his constitutional right to privacy. Petty claims also that these disclosures violated his Eighth Amendment right to be free from cruel and unusual punishment and that the disclosures violated New York state law.
Unlike the privacy claim, which is fully pleaded by Petty, the Eighth Amendment and state law claims are difficult to discern from the Complaint. (See Compl. § V(iii) (averring, in conclusory fashion, that Petty seeks damages from each defendant for "cruel and unusual" punishment); Compl. § V(viii) (requesting "statutory damages" f or violations of the plaintiff's rights under the "confidentiality Statute")). However, because pro se litigants should be given every opportunity to demonstrate the validity of their claims, Petty's Eighth Amendment and state law claims will be addressed.
Defendants move to dismiss the complaint on the grounds that plaintiff failed to exhaust all Department of correctional Services ("DOCS") administrative remedies, that defendants are entitled to qualified immunity, that the action is barred by the physical-injury requirement of 42 U.S.C. § 1997(e), and that the court lacks jurisdiction over this case under the Eleventh Amendment of the United States Constitution. Additionally, defendants move to dismiss all claims against Commissioner Goord and John Doe #3 on the ground that these defendants lacked sufficient personal involvement in the disclosures to be sued in this § 1983 action. Finally, defendants move to dismiss Petty's Eighth Amendment claim for failure to state a claim and Petty's state law claim under New York Corrections Law § 24. For the reasons set forth below, defendants' motion is granted, and the complaint is dismissed.
I.
In considering a motion to dismiss, a district court generally "'must limit itself to facts stated in the complaint'" or attached documents.Newman Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). However, because plaintiff appears pro se and "a pro se litigant should be afforded every reasonable opportunity to demonstrate that he has a valid claim," Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984), the following relevant facts, taken to be true for purposes of the present motion, are drawn from both the complaint and plaintiff's affidavit in opposition to defendants' motion to dismiss ("Pl.'s Opp'n").
Although a court may not look beyond the pleadings when reviewing a motion to dismiss, Fed.R.Civ.P. 10(c) authorizes the court to consider any exhibits mentioned in and attached to the pleadings. See Fed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."). Here, Petty has attached his ambulatory health record on February 16, 1995, a laboratory report dated March 27, 1996 stating that Petty is HIV-positive, his September 19, 1996 grievance, and a form signed by Petty acknowledging the Bureau of Prisons' authority to open and read Petty's correspondence and to endorse checks and other negotiable instruments on his behalf. These exhibits will be treated as part of Petty's pleadings for the purposes of this motion.
On or about August 27, 1992, while confined in the Auburn Correctional Facility, Petty took an HIV antibody test, the result of which was negative. (Pl.'s Opp'n ¶ 5) On July 18, 1994, while confined at the Sing Sing Correctional Facility, Petty became sick and took several blood tests, none of which led to a diagnosis. (Id. ¶ 6) However, upon being transferred to the Green Haven Correctional Facility on February 8, 1996, Petty was informed by a physician's assistant that the blood tests taken at Sing Sing appeared abnormal. (Id. ¶ 7) Based on additional blood tests, Petty was diagnosed as HIV positive. (Id. ¶¶ 7-8) Petty then agreed to take medications that the physicians's assistant recommended. (Id. ¶ 9)
On September 11, 1996, Petty was transferred to the Special Housing Unit at Green Haven ("SHU") pending the outcome of a disciplinary action against him. (Id. ¶ 10) That day, in front of security staff, facility nurse Jane Doe #1 interviewed Petty regarding his HIV status and medications. (Compl. ¶ 1) On September 12, Petty, suffering from severe stomach, back, and head pains as well as a mild nose bleed, passed out on the floor of his cell. Upon regaining consciousness, Petty heard one of the guards asking why Petty was so sick. In response, Jane Doe #1 told the guard that Petty was HIV-positive. (Id. at ¶ 2) The same day, Petty was taken to the facility clinic for examination, where facility nurse John Doe #1 noticed Petty's HIV-positive status. After the examination, while Petty was being handcuffed to a stretcher to be taken to an outside hospital, John Doe #1 informed the transportation officers and emergency medical technicians that Petty was HIV-positive and would not give them any problems. (Id. ¶ 3)
On September 13, 1996, facility doctor Harry Mamis came to Petty's cell after Petty requested medical attention. Petty told the doctor that he had not been able to eat and had lost weight. After reviewing the medications in Petty's cell, Mamis asked Petty if he was HIV-positive. When Petty requested that Mamis lower his voice so that other inmates would not hear about Petty's medical condition, Mamis told Petty that he would be seen by a specialist. (Id. ¶ 4)
On September 18, 1996, corrections officers Amora and Wilk escorted Petty to the facility clinic, where he was examined by facility specialist John Doe #2. During the examination, John Doe #2 questioned Petty about his HIV status in the presence of C.O. Amora and Sgt. Wilk. (Id. ¶ 5) Following the examination, C.O. Amora and Sgt. Wilk escorted Petty back to his cell. While in the elevator, the two officers questioned Petty about his HIV status and, after leaving the elevator at the Special Housing Unit, joined with other officers in degrading jokes about Petty's condition. (Id.)
The next day, Petty filed an administrative grievance concerning the disclosure of his HIV status by prison staff. (Id. ¶ 6) The text of the grievance states:
On the dates of 9-11-96; 9-12-96; and 9-18-96, Medical Staff had disclosed confidential information from within my Medical Records to security and other non medical staff at this facility, and to a EMT unit without my consent. Thus, violating my Confidentiality and Privacy Rights under State and Federal Law. I've been questioned by security staff about said information which they should not have access to, nor should they have been informed of such information due to Patient Physician Confidentiality and Privacy Act under N.Y. Public Health Law. While being within the SHU this information is being disclosed to nonmedical staff which should not be. I am being harassed + called all kinds of names and I'm starting to bug out.
(Pl.'s Opp'n, Ex. C)
On September 20, Petty sent a separate complaint to the facility's medical director, John Doe #3, and to Glenn Goord, Commissioner of the New York State Department of Correctional Services. In this complaint, Petty explained that he had become depressed and suicidal as a result of the breaches of confidentiality and harassment by corrections officers and medical staff. (Compl. ¶ 7)
On September 29, 1996, a corrections officer came to Petty's cell and informed him that he would be transferred to the Federal Bureau of Prisons' Metropolitan Correctional Center in New York City ("MCC"). Petty was then confined in MCC until October 11, 1996, when he was brought back to Green Haven and placed in the general population. (Pl.'s Opp'n ¶¶ 17-18) On or about October 13, 1996, three corrections officers rushed into Petty's cell, knocked him to the ground, and handcuffed him. While the corrections officers subdued Petty, a fourth officer, who was standing outside Petty's cell along with a sergeant, informed the other officers that Petty had AIDS and therefore precautions should be taken to avoid cutting him with the handcuffs. (Id. ¶ 19) Petty was then escorted back to SHU to be confined until the still-pending disciplinary action against him was resolved. (Id.)
During his confinement in SHU, Petty was harassed by corrections officers about his HIV status, and he tried to commit suicide several times. (Id. ¶ 20) On or about October 22, 1996, Petty was placed in the Central New York Psychiatric Center. (Id. ¶¶ 20-21) Upon Petty's return to Green Haven on or about December 31, 1996, the harassment by corrections officers resumed, and Petty was once again hospitalized on January 10, 1997. (Id. ¶ 22) Finally, on or about January 28, 1997, Petty was transferred to the Wende Correctional Facility. (Id. ¶ 23)
II.
Defendants contend that Petty's constitutional claims should be dismissed for failure to exhaust available administrative remedies. I agree. 42 U.S.C. § 1997e(a) provides that:
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 have been exhausted.42 U.S.C. § 1997e(a) (2000). Section 1997e(a) "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). Thus, Petty's claims can proceed only if he has exhausted administrative remedies before suing defendants in federal court. Because Petty failed to follow up his initial grievance with an appeal, he did not exhaust available remedies.
N.Y. Comp. Codes R. Regs., tit. 7, § 701.7 outlines the Inmate Grievance Program under which New York prison inmates may file grievances. First, the inmate must file a complaint with the Inmate Grievance Resolution Committee ("IGRC") within 14 days of an alleged incident. N.Y. Comp. Codes R. Regs., tit. 7, § 701.7(a). The IGRC must then act on the complaint within seven working days by resolving the problem informally or by holding a hearing. Id. After receiving an adverse response from the IGRC, the inmate may appeal to the Superintendent of the facility within four days. Id. § 701.7(b). If he receives an adverse response from the Superintendent as well, the inmate may appeal to the Central Office Review Committee ("CORC"). Id. § 701.7(c). Crucially, if the IGRC does not respond to an initial grievance within the mandated time period, the statute provides that the inmate is entitled to appeal to the Superintendent. See 7 N.Y.C.R.R. § 701.8 ("[M]atters not decided within the time limits may be appealed to the next step.").
As a threshold matter, allegations in the complaint that were not mentioned in Petty's September 19 grievance are barred by section 1997e(a). See Williams v. Muller, No. 98 Civ. 5204, 2000 U.S. Dist. LEXIS 5286, at *8 (S.D.N.Y. Apr. 25, 2000) (refusing to allow a prisoner to bring a § 1983 action based upon those allegations in the complaint that were not raised in the administrative process). Because the grievance was filed on September 19, Petty cannot bring this § 1983 suit based upon any actions by medical personnel or corrections officers after that date. Moreover, because the grievance does not refer to the allegation that Doctor Mamis disclosed Petty's HIV status on September 13, that allegation also is not justiciable here.
On the other hand, the allegations regarding the acts of prison staff on September 11, September 12, and September 18 were mentioned in the initial grievance. Contrary to defendants' assertion, the grievance mentions C.O. Amora's and Sgt. Wilk's alleged harassment of Petty on September 18. (Pl.'s Opp'n, Ex. C ("[W]hile being in the SHU this information is being disclosed to nonmedical staff which should not be [and] I am being harassed and called all kinds of names.")). Although the description of the officers' alleged behavior could be more detailed, it is consistent with the allegations in the complaint.
Nevertheless, Petty has not met the exhaustion requirement of section 1997e(a), because he did not go beyond the initial grievance filed on September 19. Petty asserts that he did not file an appeal because he never received a response to his initial complaint. However, N.Y. Comp. Codes R. Regs., tit. 7, § 701.8 specifically allows an inmate to file an appeal when the grievance committee does not respond to a complaint in a timely manner. Petty therefore had the opportunity to appeal to the Superintendant of Green Haven but failed to do so. See McNair v. Jones, No. 01 Civ. 3253, 2002 U.S. Dist. LEXIS 17409, at *30 n. 5 (S.D.N.Y. Sept. 18, 2002) (finding that the plaintiff had not exhausted administrative remedies under N.Y. Comp. Codes R. Regs., tit. 7, § 701 where he received no response to his grievance but had not appealed); But see John v. N.Y.C. Dep't of Corrs., 183 F. Supp.2d 619, 625 (S.D.N.Y. 2002) (finding that the plaintiff exhausted administrative remedies under N.Y. Comp. Codes R. Regs., tit. 7, § 701 where he filed a grievance and received no response because "there was no [adverse] decision to appeal"); Cf. Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) (per curiam) (applying Texas law) ("A prisoner's administrative remedies are deemed exhausted when a valid grievance has been filed and the state's time for responding thereto has expired.").
The statute states that "such administrative remedies as are available" must be exhausted. 42 U.S.C. § 1997e(a) (2000). By its plain language, the provision bars Petty's action, because an appeal to the Superintendant was available to Petty. Among other reasons, Congress enacted § 1997e(a) to give prison officials an opportunity to take corrective actions that might obviate the need for litigation and to assure that adjudication by federal courts would be facilitated by an administrative record that clarifies the contours of a controversy. See Porter, 534 U.S. at 524-25; Booth v. Churner, 532 U.S. 731, 737 (2001). Allowing an inmate to opt out of New York's grievance scheme without filing even one appeal and before receiving any response from prison authorities would undermine these goals. New York's legislature, recognizing that some grievances will not be answered within seven days, gave prisoners the right to bring their grievances to the attention of the Superintendent even in the absence of an adverse response from the IGRC. See N.Y. Comp. Codes R. Regs., tit. 7, § 701.8. It is unreasonable to read these regulations as providing that a federal action is the next and only recourse when the prison fails to respond to an initial grievance. Because Petty failed to exhaust available remedies, his § 1983 action cannot go forward.
III.
Petty's privacy claim must be dismissed also on an alternative ground — namely, that defendants are entitled to qualified immunity for their actions. The doctrine of qualified immunity "shields government officials from liability for damages on account of their performance of discretionary official functions 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Rodriguez v. Phillips, 66 F.3d 470, 475 (2d Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether a particular right is "clearly established" at the time of an alleged constitutional violation, the court considers three related factors: "whether the right was defined with reasonable specificity; whether the decisional law of the Supreme Court and the applicable circuit court supports its existence; and whether, under preexisting law, a defendant official would have reasonably understood that his acts were unlawful." Rodriguez, 66 F.3d at 476.
In Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999), our Court of Appeals held that, as of December 31, 1991, an inmate's right to maintain the confidentiality of his HIV-positive status was not clearly established. In Powell, two corrections officers were escorting the plaintiff to the prison s medical facility when, in the presence of staff and inmates, one officer gratuitously announced to the other that the plaintiff was HIV-positive and had undergone a sex-change operation. Id. at 109. Building on its decision in Doe v. City of New York, 15 F.3d 264 (2d Cir. 1994), which held that HIV-positive individuals possess a constitutional right to privacy regarding their condition, the Second Circuit in Powell concluded that prison officials can impinge on an inmate's right to maintain the confidentiality of an undisclosed medical condition only to the extent the disclosures are "reasonably related to legitimate penological interests." Powell, 175 F.3d at 112.
Despite extending the constitutional right to privacy recognized inDoe to prison inmates, the Second Circuit in Powell granted qualified immunity to the officer who had revealed that plaintiff's HIV status.Id. at 113-14. In granting immunity, the Court emphasized that, as of December 31, 1991, other circuit courts had not even agreed on the principle that would later be recognized in Doe — namely thatoutside the prison context, an individual has a right to maintain the confidentiality of his medical history. Id. at 114. The Court noted also that no pre-1992 appellate case extended the right of confidentiality to the prison environment. Id.
In light of the Second Circuit's decision in Powell, the qualified immunity analysis in this case turns on whether an inmate's right to maintain the confidentiality of his HIV status became clearly established between December 31, 1991, the date on which the disclosure at issue inPowell took place, and September 1996, when defendants disclosed Petty's HIV status. In Doe, which was decided on January 28, 1994, the Second Circuit held that "[i]ndividuals who are infected with the HIV virus clearly possess a constitutional right to privacy regarding their condition." Doe, 15 F.3d at 267. However, as Powell itself emphasized, the plaintiff in Doe was not a prison inmate. See Powell, 175 F.3d at 113-14 (noting that Doe did not extend the right to privacy to prison inmates). District courts in this Circuit, following Powell, have concluded that Doe did not clearly establish an inmate's right to privacy about his condition. See Gill v. Defrank, No. 98 Civ. 7851, 2000 U.S. Dist. LEXIS 9122, at *6 (S.D.N.Y. June 30, 2000) (granting qualified immunity to prison staff who disclosed an inmate's HIV status in May 1997); Leon v. Johnson, 96 F. Supp.2d 244, 253 (W.D.N.Y. 2000) (granting qualified immunity to prison staff who disclosed an inmate's HIV status in 1996 and 1997).
Petty rightly points out that before September 1996, several district courts in this Circuit had held that inmates are constitutionally protected from the unwarranted disclosure of their HIV status. E.g.,Nolley v. County of Erie, 776 F. Supp. 715, 731 (W.D.N.Y. 1991);Rodriguez v. Coughlin, No. 87 Civ. 1577, 1989 U.S. Dist. LEXIS 15898, at *10 (W.D.N.Y. Jun. 2, 1989); Doe v. Coughlin, 697 F. Supp. 1234, 1237-38 (N.D.N.Y. 1988). However, these cases pre-date the disclosure at issue inPowell, which, according to the Powell Court, did not violate a clearly established right. Further, even without Powell, the district court decisions cited by Petty cannot themselves "clearly establish" a disputed constitutional right. See Quinones v. Howard, 948 F. Supp. 251, 254 (W.D.N.Y. 1996) ("District court decisions, by themselves, do not 'clearly establish' the disputed constitutional issue." (quoting Hawkins v. Steingut, 829 F.2d 317, 321 (2d Cir. 1987)). Finally, before Powell was decided, not all district courts had agreed on the existence and scope of an inmate's right to preserve the confidentiality of his HIV status. Compare Nolley, 776 F. Supp. at 731 (concluding that inmates are constitutionally protected from the unwarranted disclosure of their HIV status), and Rodriguez, 1989 U.S. Dist. LEXIS at *10 (same), with Baez v. Rapping, 680 F. Supp. 112, 115 (S.D.N.Y. 1988) (finding no constitutional violation where a prison doctor warned the staff at a prison to avoid contact with the bodily fluids of the plaintiff), and Cordero v. Coughlin, 607 F. Supp. 9, 10-11 (S.D.N.Y. 1984) (finding no constitutional violation where HIV-positive inmates were segregated from the general prison population). If district courts are unable to agree on the existence and scope of a right, that right cannot be "clearly established." Richardson v. Selsky, 5 F.3d 616, 623 (2d Cir. 1993).
Because the disclosures regarding Petty's HIV status were made beforePowell was decided, defendants are entitled to qualified immunity for every breach of privacy claim in the complaint arising from an allegation of unlawful disclosure. This conclusion requires little analysis with regard to the allegations that prison officials told one another about Petty's status in the context of their official duties. To the extent that an inmate's privacy right was recognized at all before September 1996, the right protected prison inmates from unnecessary disclosures to their peers, not disclosures to prison staff during the ordinary course of prison business. See Rodriguez, 1989 U.S. Dist. LEXIS, at *10-11 ("Such right precluded New York's corrections officers from disclosing to other inmates that he suffers from AIDS." (emphasis added)).
However, the allegation that on September 18, 1996, Sgt. Wilk and C.O. Amora taunted Petty about his HIV status in the Special Housing Unit presents a closer question. (See Compl. ¶ 14; Pl.'s Opp'n ¶ 14) In the one case in this district decided before Powell in which a corrections officer was not granted qualified immunity for disclosing an inmate's HIV status, Colon v. Arrabito, No. 91 Civ. 7146, 1998 U.S. Dist. LEXIS 8484 (S.D.N.Y. Jun. 9, 1998), the plaintiff alleged that a corrections officer snatched her HIV medication from her hand and held it up for others in the prison to see. Rejecting the defendant's plea for qualified immunity, the court found that the inmate had a clearly established right to privacy under the Second Circuit's decision in Doe and that the officer could not have reasonably believed that taunting an inmate about his medical condition was lawful. See id. at *14 ("The law does not sanction behavior such as 'waving' the plaintiff's medication and pulling it out of her reach 'several times' after beckoning her to retrieve it, 'all the while laughing.' There is no security reason justifying such behavior.")
Although the Court's reasoning in Arrabito is compelling in the setting of a gratuitous disclosure of a prisoner's medical status, Arrabito cannot be reconciled with Powell, which, in contrast to Arrabito, found that Doe did not "clearly establish" a prisoner's right to maintain the confidentiality of his medical records. See Powell, 175 F.3d at 113 ("This Court's controlling precedent on the right to maintain the confidentiality of medical information issued in 1994. did not address the applicability of that right to prison inmates."). Powell itself, moreover, dealt with a gratuitous disclosure of an inmate's HIV status,Id. at 112, and yet the Court indicated that Doe would not preclude qualified immunity even if it had been decided before the gratuitous disclosure, id. at 113. Ultimately, no meaningful distinction can be drawn between the gratuitous disclosure in Powell, for which the Powell Court granted the defendants in that case qualified immunity, and the alleged behavior of Sgt. Wilk and C.O. Amora on September 18, 1996. Thus, defendants are entitled to qualified immunity for every breach of privacy claim arising from the alleged disclosure of Petty's HIV status, including the disclosure in SHU on September 18.
IV.
Petty's Eighth Amendment claim, like his privacy claim, would have to be dismissed even if Petty had exhausted all available remedies. In order to maintain an Eighth Amendment claim on the ground that a defendant's actions constituted deliberate indifference to a substantial risk of harm by other inmates, a prisoner must make two showings. First, the prisoner must show that, in objective terms, the constitutional violation was "sufficiently serious such that [it] denied [him] the minimal civilized measure of life's necessities." Dawes v. Walker, 239 F.3d 489, 493-94 (2d Cir. 2001) (internal quotation marks omitted). Second, "because 'only the unnecessary and wanton infliction of pain implicates the Eighth Amendment,' the prisoner must assert facts indicating that the responsible prison official had 'a sufficiently culpable state of mind' amounting to at least deliberate indifference." Id. (quoting Farmer v.Brennan, 511 U.S. 825, 834 (1994)).
Petty has failed to allege facts sufficient to support the objective component of this inquiry. In Dawes, the inmate plaintiff alleged that two corrections officers called him an "informant" and a "rat." The Second Circuit held that that allegation, even if assumed to be true, could not support an inference that the plaintiff faced a serious threat of harm. The Dawes Court stressed that in the absence of any factual allegations of physical violence or threats of physical violence, the plaintiff "failed to make the requisite showing required to support the objective element of his Eighth Amendment claim." See Dawes, 239 F.3d at 494. Correspondingly, here, Petty does not allege that he was attacked by other inmates or threatened in any way with physical violence as a result of defendants' disclosures of his HIV status. Although the gratuitous disclosure of an inmate's HIV status can constitute an Eighth Amendment violation where the disclosure "place[s] [an] inmate in harm's way," Powell, 175 F.3d at 115, Dawes bars the prosecution of an Eighth Amendment claim under the present circumstances.
Plaintiff's allegation that corrections officers knocked him to the ground on October 13, 1996 does not suffice, because plaintiff does not allege that these officers knew about or were motivated by plaintiff's HIV status. Indeed, plaintiff states that the officers were subsequently told not to handcuff Petty because he had AIDS. (Compl. ¶ 19)
V.
The claims against Medical Director John Doe #3 and Commissioner Goord are barred on yet another ground: These defendants were not personally involved in the alleged violations of Petty's constitutional rights. The personal involvement of a supervisory defendant may be shown by presenting evidence of one of the following: (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 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).
Petty alleges that he sent a complaint to both Medical Director John Doe #3 and Commissioner Goord detailing the breaches of confidentiality by prison staff and the resulting harassment. (See Compl. ¶ 7) However, courts in this Circuit, applying the principles laid out inColon, have agreed that receiving a letter from an inmate does not constitute sufficient personal involvement to generate supervisory liability. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (dismissing prisoner suit against DOCS Commissioner Coughlin because his personal involvement in the events at issue consisted of receiving two letters from the plaintiff); Garvin v. Goord, 212 F. Supp.2d 123, 126 (S.D.N.Y. 2002) (finding that Goord could not be held liable just because an inmate mailed letters to his office); Woods v. Goord, No. 01 Civ. 3255, 2002 U.S. Dist. LEXIS 7157, at *24 (S.D.N.Y. Apr. 24, 2002) ("Receipt of letters or grievances . . . is insufficient to impute personal involvement."); Walker v. Pataro, No. 99 Civ. 4607, 2002 U.S. Dist. LEXIS 7067, at *42 (S.D.N.Y. Apr. 23, 2002) ("[W]here a supervisory official like the Commissioner of Corrections or a prison Superintendant receives letters or similar complaints from an inmate and does not personally respond, the supervisor is not personally involved and hence not liable."); Richardson v. Hillman, 201 F. Supp.2d 222, 231 (S.D.N.Y. 2002) (dismissing claim against prison inspector who did not respond to plaintiff's letters); Salahuddin v. Mead, No. 95 Civ. 8581, 2000 U.S. Dist. LEXIS 3932, at *12-13 (S.D.N.Y. Mar. 30, 2000) ("The receipt of letters alone . . . does not constitute sufficient personal involvement to generate supervisory liability")
VI.
Petty's constitutional claims also must be dismissed in part to the extent that Petty requests compensatory damages. Section 803(d)(e) of the Prisoner Litigation Reform Act ("PLRA"), codified at 42 U.S.C. § 1997e(e), provide that "[n]o Federal civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." 42 U.S.C. § 1997e(e) (2000). The cases that have addressed the issue have agreed that § 1997e(e) bars prisoner suits for compensatory damages resulting from the mental and emotional injury associated with the disclosure of an inmate's HIV status. See Davis v. Dist. of Columbia, 158 F.3d 1342, 1348 (D.C. Cir. 1998) (declining to grant compensatory damages in suit against prison officials who disclosed the plaintiff's HIV status); Leon, 96 F. Supp.2d at 250-51 (same) These cases are consistent with Thompson v.Carter, 284 F.3d 411 (2d Cir. 2002), in which the Second Circuit held that 42 U.S.C. § 1997e(e), contrary to the view of the Ninth Circuit, applies with full force to constitutional torts. Id. at 417.
For the Ninth Circuit's view, see Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir. 1998) ("The deprivation of First Amendment rights entitles a plaintiff to judicial relief wholly aside from any physical injury he can show, or any mental or emotional injury he may have incurred."). Other circuits have not followed Canell. See Searles v. Van Webber, 251 F.3d 869, 876 (10th Cir. 2001) ("The underlying violation . . . should not be divorced from the resulting injury, such as 'mental or emotional injury,' thus avoiding the clear mandate of § 1997e(e).");Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (using section 1997e(e) to bar an Eighth Amendment claim); Cassidy v. Ind. Dep't of Corr., 199 F.3d 374, 376 (7th Cir. 2000) (applying section 1997e(e) to constitutional torts).
In Thompson the Second Circuit concluded also that § 1997e(e) does not limit the availability of punitive damages for mental or emotional injury, thus avoiding a challenge to the constitutionality of the section. Id. at 418-19. Although other circuits have been sharply divided over the question of whether the statute permits punitive and nominal damages, compare Davis, 158 F.3d at 1348 (holding that § 1997e(e) draws no distinction between compensatory and punitive damages and therefore bars both) with Allah v. Al-Hafeez, 226 F.3d 247, 251 (3d Cir. 2000) (concluding that § 1997e(e) does not bar claims for punitive damages), this court is bound by the Second Circuit's decision inThompson. Because Petty has alleged no physical injury resulting from defendants' actions, Petty's plea for compensatory damages is barred under Thompson.
Petty offers an alternative basis for allowing the claim to proceed notwithstanding § 1997e(e). According to Petty, the provision does not apply to the case at bar because, unlike the plaintiffs in Davis andLeon, he suffered a "prior physical injury" when he contracted the HIV virus at Sing-Sing. (See Pl.'s Opp'n ¶ 25) However, Petty has drawn no connection between the "prior physical injury" and defendants' alleged unlawful actions. Without any allegation that a defendant in this action caused him physical harm, Petty may not recover compensatory damages.
VII.
Finally, Petty claims that disclosure of his HIV status violates state law. In Baker v. Coughlin, 77 F.3d 12 (2d Cir. 1996), the Second Circuit held that a state prisoner's pendent state law claims against prison officers for intentional tort, negligence, and medical malpractice are barred by Correction Law § 24, which provides that "[a]ny claim for damages arising out of any act done . . . in the discharge of the duties of any officer or employee of the [DOCS] shall be brought and maintained in the court of claims as a claim against the state." Id. at 14 (quoting N.Y. Correct. Law § 24). The court held that section 24, "by its plain terms, precludes the assertion of claims against corrections officers in any court, including the federal courts." Id. at 15. To the extent that Petty's state law claims are brought against defendants in their individual capacities, the claims are barred by section 24.VIII.
To the extent that Petty's claims are brought against defendants in their official capacities, the claims are barred by the Eleventh Amendment of the United States Constitution. See Huang v. Johnson, 251 F.3d 65, 70 (2d Cir. 2001). However, contrary to defendants' assertion, plaintiff's complaint as a whole is not barred by the Eleventh Amendment.
The Eleventh Amendment provides that "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." U.S. Const. amend. XI. An unconsenting state is immune from suits in federal court brought even by its own citizens. See Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Moreover, because such immunity extends to state agencies and officers who act on behalf of the state, see P.R. Aqueduct and Sewer Auth. v. Metcalf Eddy, Inc., 506 U.S. 139, 144-47 (1993), where the state is the real party in interest, the Eleventh Amendment bars suits against state officials. See Huang, 251 F.3d at 69-70 (citing Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984).
Here, Petty has sued the defendants both in their official and individual capacities. (Compl., § V(viii) (asking that "each defendant be held liable in their Individual and Official Capacity")). To the extent that Petty has sued defendants in their official capacities, the state is the real party in interest, and Petty's claims are barred.See Huang, 251 F.3d at 70. However, the Eleventh Amendment does not apply insofar as defendants are sued in their individual capacities. See id. (noting that the state does not become the real party in interest simply because it will bear the cost of a judgment against the individual defendants); Farid v. Smith, 850 F.2d 917, 921 (2d Cir. 1988) (finding that the defendant could be sued in his individual capacity for carrying out policies promulgated by the state of New York); Gomez v. Kaplan, No. 94 Civ. 3292, 2000 U.S. Dist. LEXIS 14239, at *42 (S.D.N.Y. Sept. 29, 2000) ("[T]he Eleventh Amendment does not provide any immunity to Defendants insofar as they are sued in their individual capacities."). The Eleventh Amendment, therefore, offers an alternative ground to dismiss the complaint, and the state law claim in particular, to the extent that Petty sues defendants in their official capacities.
* * *
For the reasons stated above, defendants' motion is granted, and the complaint is dismissed. Petty's constitutional claims against all defendants are dismissed under 42 U.S.C. § 1997e(a). Alternatively, Petty's privacy claim is dismissed under the doctrine of qualified immunity and Petty's Eighth Amendment claim is dismissed for failure to state a claim. Petty's pendent state law claim is dismissed under Correction Law § 24 to the extent that it is brought against defendants in their individual capacities and under the Eleventh Amendment to the extent that it is brought against defendants in their official capacities. Finally, Petty's claims against Commissioner Goord and John Doe #3 are dismissed also for lack of personal involvement, and his demand for compensatory damages is stricken under 42 U.S.C. § 1997e(e).
SO ORDERED.