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dismissing a Monell claim where the plaintiff "allege[d] no facts suggesting any individual defendant was acting as a policymaker"
Summary of this case from Galgano v. Cnty. of PutnamOpinion
13cv6842
08-15-2014
JONATHAN T. POWELL Plaintiff, v. CORRECTIONAL MEDICAL CARE, INC.; DR. MARIA KARIMI; DR. MUHAMMED SHARFUDDIN; LORRAINE LEVITAS, and TOM ROOME Defendants.
Copy mailed to: Jonathan T. Powell 31 South Miller St. Apt. 31A Newburgh, NY 12550 Plaintiff pro se Copy sent via ECF to: Shelly L. Baldwin, Esq. Wilson Elser Moskowitz Edelman & Dicker LLP 150 East 42nd Street New York, NY 10017 Counsel for Defendants
MEMORANDUM & ORDER
:
Jonathan T. Powell, a pro se inmate, filed this federal civil rights action seeking damages for deliberate indifference to serious medical needs. Defendants Correctional Medical Care, Inc. ("CMC"), Dr. Maria Karimi, Dr. Muhammed Sharfuddin, Lorraine Levitas, and Tom Roome move to dismiss the Amended Complaint. For the following reasons, Defendants' motion is granted and the Amended Complaint is dismissed.
BACKGROUND
On August 10, 2013, Powell drove an automobile into a tree, breaking his right hand. A hospital physician prescribed prescription pain relievers. Two days later, Powell was admitted to Orange County Correctional Facility (OCCF), where head nurse Levitas gave him over-the-counter pain relievers. The Amended Complaint does not explain why Powell was incarcerated. Powell continued to experience pain.
The following facts are taken from the Amended Complaint and are accepted as true for the purposes of this motion.
OCCF contracted with CMC to provide prisoners medical treatment.
On September 11, 2013, Dr. Dimitrious Christoforou, an outside orthopedic surgeon, inserted three metal plates and several screws into Powell's right hand. Dr. Christoforou prescribed prescription pain medication, but Levitas dispensed only over-the-counter pain relievers. Powell continued to experience pain, and sought to file a grievance, but OCCF staff refused to give him a form. On September 16, 2013, Powell filed this action, seeking monetary relief for several weeks of pain.
In opposing this motion, Powell alleges that on September 26, 2013, after this case was filed, Dr. Christoforou prescribed physical therapy for him and spoke with a doctor at CMC about the need for this treatment. (Aff. Opp'n. 7, ECF No. 27.) But Powell did not receive any physical therapy until November 15, 2013. (Aff. Opp'n. 9.) In mid-November, Powell told Dr. Karimi, a physician at CMC, that he had been experiencing numbness in part of his right hand. (Aff. Opp'n. 9.) Dr. Karimi advised Powell to wait one month. (Aff. Opp'n. 9.) Powell continued to experience pain and localized numbness. On January 27, 2014, Powell filed an Amended Complaint alleging additional damages for the pain he suffered after he filed this lawsuit. (Amended Compl. at 2-3, 7, ECF No. 17) In February 2014, he was taken to an outside specialist, (Aff. Opp'n. 9,), where Powell learned the delayed onset of physical therapy had caused moderate to severe carpal tunnel in his right hand. (Aff. Opp'n. 9.) He can no longer make a complete fist. (Aff. Opp'n. 9.)
Powell also names Roome and Sharfuddin as defendants in this case, but alleges no facts as to their involvement or responsibilities.
DISCUSSION
I. Motion to Dismiss
On a motion to dismiss, a court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998). Nonetheless, "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citation omitted) (requiring plaintiff to plead "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [her claim]"). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted).
A court's "consideration [on a motion to dismiss] is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Allen v. WestPoint-Pepperell Inc., 945 F.2d 40, 44 (2d Cir. 1991). "A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion," to determine if the pro se party can sufficiently set forth a claim for relief. Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013); see also Nielsen v. Rabin, 746 F.3d 58, 61 (2d Cir. 2014).
Because Powell is a pro se litigant, this Court construes the Amended Complaint liberally and interprets it to raise the strongest arguments it suggests. See Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002); see also Haines v. Kerner, 404 U.S. 519, 520 (1972) (a pro se litigant's submissions are held to "less stringent standards than [those] drafted by lawyers"). Nevertheless, the Court need not accept as true "conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).
II. Failure to Exhaust Administrative Remedies
No inmate may bring a claim regarding prison conditions unless the inmate has exhausted all available administrative remedies. 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 85 (2006). Non-exhaustion is an affirmative defense. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). "[A] defendant presenting an [affirmative] defense on a Rule 12(b)(6) motion instead of a motion for summary judgment must accept the more stringent standard applicable to this procedural route." McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004). Such a motion "may be granted only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." McKenna, 386 F.3d at 436 (internal quotation marks and citation omitted).
Failure to exhaust may be excused "where: (1) administrative remedies were not in fact 'available to the prisoner,' (2) 'defendants' own actions inhibit[ed]' exhaustion, or (3) 'special circumstances . . . justify' non-exhaustion." Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011) (alterations in original) (citing Hemphill, 380 F.3d at 686). "The test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would 'a similarly situated individual of ordinary firmness' have deemed them available." Hemphill, 380 F.3d at 688. When "an inmate makes a 'reasonable attempt' to exhaust his administrative remedies, especially where it is alleged that corrections officers failed to file the inmate's grievances or otherwise impeded or prevented his efforts," administrative remedies were unavailable. O'Connor v. Featherston, 01 CIV. 3251 (HB), 2002 WL 818085, at *2 (S.D.N.Y. Apr. 29, 2002) (collecting cases).
Courts in this Circuit have applied Hemphill's exceptions to the PLRA's exhaustion requirement even after the Supreme Court required "proper exhaustion" in Woodward. See, e.g., Smith v. City of New York, 12 Civ. 3303 CM, 2013 WL 5434144, at *9 (S.D.N.Y. Sept. 26, 2013); Kasiem v. Switz, 756 F. Supp. 2d 570, 576 n.5 (S.D.N.Y. 2010); cf. Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011) (permitting argument on Hemphill exceptions without discussing Woodford's effect).
Powell claims "[t]his facility refused to give me [a grievance form]," and that he informed at least one sergeant of his pain. (Amended Compl. ¶ IV(F).) Construing Powell's pro se pleading liberally, his statement suggests Defendants' own actions may have inhibited Powell's ability to exhaust his claims. Therefore, Defendants' motion to dismiss the Complaint for failure to exhaust is denied.
III. Allegations against Roome and Sharfuddin
Powell names Roome and Sharfuddin as defendants. But the Complaint never refers to any decision or action by either individual. "[W]here the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted." Hallett v. Davis, 11 CIV. 4646 WHP, 2012 WL 4378020, at *5 (S.D.N.Y. Sept. 25, 2012) (quoting Ritani, LLC v. Aghjayan, 880 F. Supp. 2d 425, 440 (S.D.N.Y. 2012)). Accordingly, Powell's claims against Roome and Sharfuddin are dismissed.
IV. Allegations against Levitas
To state a claim of inadequate medical treatment in violation of the Eighth Amendment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994). First, a plaintiff must have objectively suffered a sufficiently serious deprivation of adequate medical treatment. Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). Factors used to analyze whether deprivation of medical treatment is sufficiently serious include whether a reasonable doctor or patient would find a medical condition important and worthy of comment, whether it would significantly affect an individual's daily activities, and whether it causes chronic and substantial pain. See Salahuddin, 467 F.3d at 280 (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Second, the defendant must act with deliberate indifference, "a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citations omitted). "This mental state requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (quoting Salahuddin, 467 F.3d at 280).
The same standard for deliberate indifference applies whether Powell is a pre-trial detainee or a convicted prisoner, and whether he is in federal or in state custody. See Caiozzo v. Koreman, 581 F.3d 63, 69-72 (2d Cir. 2009) (same standard whether brought under the Eighth or Fourteenth Amendments). The parties do not specify his status.
"The decision to prescribe one form of pain medication in place of another does not constitute deliberate indifference to a prisoner's serious medical needs." Rush v. Fischer, 923 F. Supp. 2d 545, 555 (S.D.N.Y. 2013). That decision is a matter of medical judgment, which is "not adequate grounds for a Section 1983 claim." Alster v. Goord, 745 F. Supp. 2d 317, 335 (S.D.N.Y. 2010) (citation omitted); see also Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011). This "is particularly true when one of the physicians is more familiar with the jail or prison environment, and therefore more sensitive to the need to restrict narcotics use." Douglas v. Stanwick, 93 F. Supp. 2d 320, 325 (W.D.N.Y. 2000) (collecting cases).
Of course, "[p]rison officials are more than merely negligent if they deliberately defy the express instructions of a prisoner's doctors." Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (alleging conspiracy between two corrections officers and one nurse). But when disagreements arise among "medical personnel with responsibility for implementing various treatment policies," a plaintiff must allege the person was on notice that they were not following the medically appropriate course of treatment. See, e.g., Johnson v. Wright, 412 F.3d 398, 404-405 (2d Cir. 2005) (denying summary judgment for defendants where plaintiff's treating physicians, including two prison physicians, put defendant physicians on notice a different treatment was medically indicated); Harris, 08 Civ. 1128 RJH, 2011 WL 2637429, at *3 (S.D.N.Y. July 6, 2011) (bare allegation that physician assistant gave defendant Tylenol instead of the prescribed Vicodin does not suggest assistant acted with culpability); Madison v. Mazzuca, 02 Civ. 10299 RWS, 2004 WL 3037730, at *8-9 (S.D.N.Y. Dec. 30, 2004) (allegation that nurse withheld Ibuprofen in retaliation for grievances filed by plaintiff pled a culpable mental state).
Powell alleges Levitas refused to dispense the drugs prescribed by his outside specialists, and instead provided over-the-counter pain relievers. Despite the over-the-counter medication, Powell experienced a "great deal[] of pain" in his hand from August 2013 to at least January 2014 when Powell filed his Amended Complaint. (Amended Compl. ¶ V.)
An inmate is only deprived of medical care if the prison provided unreasonable treatment. See Salahuddin, 467 F.3d at 279. Substitution of over-the-counter drugs for prescription pain relievers is not a deviation from reasonable medical practice, although additional facts pled in tandem with a substitution may state a claim. Rush, 923 F. Supp. 2d at 555 (S.D.N.Y. 2013) (substitution of ibuprofen for Percocet where plaintiff had no prescription). Powell alleges he was given over-the-counter pain relievers despite being in a "great deal[]" of pain and despite a prescription from outside specialists for stronger drugs. At this stage, Powell's additional allegations of chronic pain are enough to state a sufficiently serious deprivation of reasonable medical care.
Even if the substitution was a sufficiently serious deprivation, Powell alleges no facts suggesting Levitas was subjectively culpable. There is no suggestion that Levitas had an improper motive for dispensing over-the-counter drugs rather than the pain reliever prescribed by Powell's outside physician. The allegations fail to support an inference of a culpable mental state. Compare Harris, 2011 WL 2637429, at *3 (bare allegation that physician assistant gave defendant Tylenol instead of the prescribed Vicodin does not suggest assistant acted with culpability), with Madison, 2004 WL 3037730, at *8-9 (allegation that nurse withheld Ibuprofen in retaliation for grievances filed by plaintiff pled a culpable mental state).
While Powell attaches portions of his medical records as exhibits in his opposition papers, they do not offer additional facts that would support an inference of subjective recklessness. In fact, Powell's opposition papers indicate an outside doctor prescribed and Powell received prescription-strength Motrin tablets. (Opp'n Ex. A at 13 (August 10, 2013 Motrin 800 mg prescription); Opp'n Ex. B at 17, 19, 20, (sick call slips authorizing prescription-strength Motrin tablets for at least two weeks each).)
Powell also contends Levitas issued no medication to him on two afternoons. Where a prisoner alleges "a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment . . . in analyzing whether the alleged deprivation is, in 'objective terms, sufficiently serious.'" Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003) (emphases in original) (quoting Chance, 143 F.3d at 702). Because Powell was receiving pain relievers regularly, a delay of half a day in receiving medication on two occasions is not sufficiently serious to allege an Eighth Amendment claim. See Salahuddin, 467 F.3d at 280. Therefore, Powell states no claim against Levitas.
V. Failure to Provide Physical Therapy
After Powell filed his Amended Complaint, he learned that the delay in receiving physical therapy caused nerve damage. This Court construes Powell's new allegations as a motion to amend his pleadings. See Lang v. NYC Health & Hospitals Corp., 12 Civ. 5523 WHP, 2013 WL 4774751, at *4 (S.D.N.Y. Sept. 5, 2013) ("[C]ourts have construed allegations in pro se oppositions as motions to amend in view of the duty to construe pro se filings liberally.") (citation omitted) "The court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). In analyzing a motion to amend the pleadings, this Court may consider exhibits attached to the proposed amendment. Cf. Baldwin v. LIJ N. Shore Health Sys., 392 F. Supp. 2d 479, 481 (E.D.N.Y. 2005) (treating "factual allegations in the affidavit and its attachments as amendments to the complaint.")
Dr. Christoforou, an orthopedic surgeon, operated on Powell's hand on September 11, 2013. On September 26, 2013, he called Powell's physician at CMC to emphasize the importance of physical therapy. Powell's CMC physician agreed and submitted a pre-authorization request for physical therapy the same day. (Opp'n, Ex. G at 52.) On October 25, 2014, the surgeon again requested physical therapy for Powell. A second CMC physician agreed and submitted a pre-authorization request for physical therapy. (Opp'n, Ex. G at 55.) In November, Powell began reporting numbness in his thumb. CMC did not provide physical therapy until November 15, 2014.
Powell was deprived of post-operative medical treatment for approximately two months, despite repeated applications by three physicians to CMC. The three physicians' comments and requests suggest a reasonable doctor would find the denial of therapy important. Further, "it's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Carpenter, 316 F.3d at 186. Here, Powell alleges the delay in physical therapy permanently limited his use of his hand. Therefore, Powell alleges sufficiently serious harm to state an Eighth Amendment violation. See Salahuddin, 467 F.3d at 280; Carpenter, 316 F.3d at 186.
But Powell alleges no facts suggesting the personal involvement of any defendant. Deliberate indifference requires a showing of personal involvement. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). Powell identifies no individual who denied him treatment. Powell alleges Dr. Karimi advised him on November 7, 2013 to wait one month to see if numbness in his hand would go away. But she also taught him "wrist and finger exercises" at that session, (Amended Compl. ¶ II(D),) and Powell began physical therapy on November 15, 2014. As Powell alleges the delay in physical therapy caused the harm to his hand, Powell fails to state a claim against Karimi because only a week elapsed between his consultation with her and the commencement of physical therapy.
Powell's opposition papers point to no other individual who was personally involved in the delay in physical therapy. The records attached to Powell's opposition papers indicate two CMC physicians requested authorization to treat Powell with physical therapy. (Opp'n, Ex. G at 52, 55.) There is no indication who, if anyone, denied those requests. Therefore, Defendants' motion to dismiss is granted.
VI. Allegations against CMC
To hold an entity liable for federal civil rights violations by its employees, a plaintiff must identify a policy or custom that caused the plaintiff's injury. Bd. of Cnty. Comm'rs of Bryan Cnty., Okl. v. Brown, 520 U.S. 397, 403 (1997) (citing Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978)). "Although Monell dealt with municipal employers, its rationale has been extended to private businesses." Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 409 (2d Cir. 1990). "[A]n act performed pursuant to a 'custom' that has not been formally approved by an appropriate decisionmaker may fairly subject [an entity] to liability on the theory that the relevant practice is so widespread as to have the force of law." Bd. of Cnty. Comm'rs, 520 U.S. at 404. But "a single incident alleged in a complaint, especially if it involved only actors below the policy-making level, does not suffice to show a municipal policy.'" DeCarlo v. Fry, 141 F.3d 56, 61 (2d Cir. 1998) (citations omitted).
Powell contends CMC has a policy or practice of "not following outside specialists['] after-care orders." (Amended Compl. ¶ V.) He infers the existence of a policy because he received none of his prescribed pain medication, had few follow-up visits with doctors, and received delayed physical therapy. An entity "may not be held liable under § 1983 solely because it employs a tortfeasor." Bd. of Cnty. Comm'rs, 520 U.S. at 403. Powell alleges no facts suggesting any individual defendant was acting as a policymaker. This Court cannot infer CMC had a widespread practice of deviating from outside specialists' instructions just because a single nurse gave Powell over-the-counter pain medication instead of prescription pain medication. See DeCarlo, 141 F.3d at 61; see also Dellutri v. Vill. of Elmsford, 895 F. Supp. 2d 555, 566 (S.D.N.Y. 2012). Powell's receipt of over-the-counter pain relievers and three follow- up appointments with physicians who advocated for physical therapy suggest CMC was trying to comply with the outside specialists' treatment plans. And even if CMC had a policy of substituting over-the-counter drugs for prescription drags, implementing it would not violate the Eighth Amendment. (See, supra, Part IV.) The physical therapy Powell eventually received countermands any inference that CMC policy requires its physicians to ignore physical therapy treatment plans of outside specialists. Thus, Powell alleges no viable Monell claim against CMC, and their motion to dismiss CMC as a defendant is granted.
Follow-up visits with a physician occurred on at least September 26, October 25, and November 7, 2013. (Amended Compl. ¶ II(D); Opp'n 9.) --------
CONCLUSION
For the foregoing reasons, the motion to dismiss the Amended Complaint by Defendants Correctional Medical Care, Inc., Dr. Maria Karimi, Dr. Muhammed Sharfuddin, Lorraine Levitas, and Tom Roome is granted. Powell has leave to replead and may file a Second Amended Complaint, by October 1, 2014. The Clerk of Court is directed to terminate the motion pending at ECF No. 20. Dated: August 15, 2014
New York, New York
SO ORDERED:
/s/_________
WILLIAM H. PAULEY III
U.S.D.J.
Copy mailed to:
Jonathan T. Powell 31 South Miller St. Apt. 31A Newburgh, NY 12550 Plaintiff pro se Copy sent via ECF to: Shelly L. Baldwin, Esq. Wilson Elser Moskowitz Edelman & Dicker LLP 150 East 42nd Street New York, NY 10017 Counsel for Defendants