Opinion
No. 01 Civ. 0847 (LTS)(AJP).
October 25, 2004.
DALY, BAMUNDO, ZWAL SCHERMERHORN, L.L.P., John A. Howard, Esq., New York, New York, Attorneys for Plaintiff.
ELIOT SPITZER, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Donald Nowve, Esq., Assistant Attorney General, New York, New York, Attorney for Defendant.
OPINION AND ORDER
Plaintiff Gemeil Scott ("Plaintiff"), who was at relevant times an inmate at Green Haven Correctional Facility ("Green Haven"), brings this action against several employees of Green Haven in their individual and official capacities. Plaintiff seeks damages, injunctive relief and an award of attorneys' fees, contending that Defendants acted with gross negligence and deliberate indifference to Plaintiff's medical needs, denied Plaintiff access to a prison cell properly equipped to accommodate Plaintiff's disability and, as a result of the alleged failures to provide appropriate medical care and housing, denied Plaintiff the opportunity to participate in a number of prison programs. Plaintiff asserts that Defendants violated the Civil Rights Act of 1964, 42 U.S.C.A. §§ 1983, 1985, 1986. et. seq., the Americans with Disabilities Act of 1990, 42 U.S.C.A. § 12101, et. seq. (the "ADA"), the Rehabilitation Act of 1973, 29 U.S.C.A. § 701, et. seq. (the "Rehabilitation Act"), federal regulations implementing the ADA, the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, and New York Corrections Law §§ 70(2), 71(1), 136, 137, 148, 401, et. seq. Scott also asserts that defendants have violated a modified final consent judgment entered in Milburn v. Coughlin, No. 79 Civ. 5077 (S.D.N.Y.), and purports to seek relief under the provisions of that judgment.
On August 11, 2003, by order of partial dismissal, all claims against Defendants Glenn Goord, Christopher Artuz and Charles Greiner were dismissed. Plaintiff later withdrew all of his claims against Defendant George Schwartzman.
The remaining Defendants — Facility Health Services Director Carl Koenigsmann, Dr. John Bendheim, Dr. Lester Silver, and Nurse Sandra Fila — now move pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, seeking summary judgment on all of the claims asserted against them in Plaintiff's Second Amended Complaint (the "Complaint"). The Court has subject matter jurisdiction of Plaintiff's federal claims in this matter pursuant to 28 U.S.C. § 1331. The Court has thoroughly considered all submissions in connection with the instant motion. For the reasons discussed below, Defendants' motion for summary judgment is granted in part and denied in part.
I. BACKGROUND
The following facts are undisputed unless otherwise indicated. Plaintiff is a paraplegic, wheelchair-bound inmate who was in his early twenties at the time of the events at issue here and has been in the custody of the New York State Department of Corrections since 1994. (Sec. Am. Compl. at ¶ 5). His paraplegia is the result of a gunshot wound unrelated to the matters at issue in this litigation. Plaintiff was transferred to Green Haven in May 1997.
Plaintiff suffered from chronic osteomyelitis (a bone infection) in his left femur and related decubitus ulcers of the left hip, among other medical problems, before and during his incarceration at Green Haven. (Defs.' Statement Pursuant to Local Rule 56.1 ("D56.1") ¶¶ 25-27, 87.) Plaintiff underwent plastic surgery for his hip ulcers shortly before his transfer to Green Haven.
All references to the parties' Rule 56.1 statements and other factual submissions in connection with this motion refer as well to the evidence cited in the referenced paragraphs.
From March 1999, Defendant Carl J. Koenigsmann, M.D., served as the Facility Health Services Director ("FHSD") at Green Haven. His role was primarily supervisory. Koenigsmann oversaw the care rendered by Green Haven primary care providers and reviewed requests for outside speciality care, which he could deny or approve. (D56.1 ¶¶ 5, 7.)
Defendant John Bendheim, M.D., was at relevant times a primary care physician at Green Haven whose chief responsibilities were to diagnose and treat patients' ailments and to coordinate speciality care for his patients. (Id. ¶¶ 11-12.) Bendheim was Plaintiff's primary care physician from May 1997 to June 1999. (Id. ¶¶ 13-14.)
Defendant Lester Silver, M.D., succeeded Bendheim as Plaintiff's primary care physician in or about June 1999, and continued in that capacity until early 2003. (Id. ¶ 17.)
Defendant Sandra Fila. R.N., was at relevant times a Registered Nurse II at Green Haven and worked in that capacity in Green Haven's Unit for the Physically Disabled ("UPD") until early 2000. (Id. ¶¶ 20-21.)
Plaintiff's Medical Treatment and Housing at Green Haven Prior to February 1999
From his May 1997 arrival at Green Haven until January 8, 1999, Plaintiff was housed in Green Haven's Unit for the Physically Disabled ("UPD"), in a cell that was fitted with equipment that improved its accessibility (e.g., grip bars, accessible sink and toilet, and a wheelchair-accessible bed) and that had a door opening wide enough to accommodate Plaintiff's regular wheelchair. Plaintiff asserts that he was able to "ambulate upright," with the aid of braces, from his arrival at Green Haven until February 1999. (Decl. of Gemeil Scott, dated December 17, 2003 ("Scott Decl."). ¶ 4.)
Plaintiff claims that he was given no treatment for his osteomyelitis after the transfer to Green Haven, that his osteomyelitis worsened in 1998 and that he complained to Bendheim at that time of severe pain and burning in his hip. Bendheim initiated a referral to a plastic surgeon on July 3, 1998, for consultation regarding treatment of the hip. Plaintiff continued to complain of pain and demanded that Bendheim refer him to an orthopedic surgeon, rather than a plastic surgeon, for consultation. (Pl.'s Consolidated Statement of Material Facts ("PCSF") ¶¶ 33-35.) Plaintiff refused to cooperate in the effort to obtain a consultation with a plastic surgeon. Plaintiff refused to leave Green Haven for consultations with the plastic surgeon on October 8, November 12 and December 10, 1998. The "Inmate Refusal Forms" relating to these incidents reflect that Plaintiff indicated that he was too unwell to leave the facility on the November and December dates. (Declaration of John Bendheim, M.D., dated November 3, 2003 ("Bendheim Decl."), ¶ 31 and Ex. G.) The relationship between Bendheim and Plaintiff deteriorated as the disagreement mounted. (PCSF ¶ 36; Bendheim Decl. ¶ 31.)
Scheduling of a consultation pursuant to the request was delayed for several weeks by an outside review agency, which claimed that it had not received sufficient documentation with Bendheim's original request. (Bendheim Decl. ¶¶ 29-30.)
Plaintiff asserts that Bendheim later cursed at him and threatened him physically in a dispute over whether a plastic surgery consultation, rather than an orthopedic one, was the correct course of action. Plaintiff filed a grievance in March 1999 over this alleged incident and his hip treatment in general. The grievance also asserted that the alleged failure to treat Plaintiff's hip problem properly had prevented Plaintiff from participating in the prison's work-release, drafting and art school programs. (Scott Decl. ¶ 19.) The Facility Health Services Director's later response to the grievance acknowledged "friction" and resulting "emotional strain" on both Plaintiff and Bendheim. (Id. Ex. 2.)
On January 8, 1999, pursuant to the request of Sergeant Schwartzmann ("Schwartzmann"), Plaintiff was transferred from Cell C4-13 of the UPD to a new cell (C1-22) in the UPD. Although Defendants assert generally that all cells in the UPD are accessible, Plaintiff claims that the doorways of cells on the "1 Company" corridor of the UPD (the location of the new cell) are unable to accommodate his regular wheelchair, whereas the doorways of the "4 Company" corridor (on which he had been housed since his arrival at Green Haven) were wide enough to accommodate all wheelchairs. (PCFS ¶ 7.) Plaintiff was unable to enter the new cell while seated in his regular wheelchair, and the cell lacked the accessibility equipment, including railings, that had been present in Plaintiff's original cell. Plaintiff was provided with a second wheelchair for ambulation within the cell. He had to swing from one wheelchair to the other, while holding onto the target chair or the cell bars, to enter the cell. (PCFS ¶¶ 54-57.) Plaintiff does not contest that his transfer to C1-22 was for security reasons, but claims that appropriately accessible alternate housing was available in Green Haven's infirmary at the time. (Mem. of Law in Opp. to Def's Mot. for Summ. J. at 35; PCSF ¶ 58 n. 19.)
As noted above, Plaintiff has withdrawn his claim as against Schwartzmann.
Declaration of Lester Silver, dated November 3, 2003 ("Silver Decl."), at ¶ 8.
Plaintiff asserts that he complained to Bendheim and Fila that the new cell assignment was inappropriate and asked to be transferred to an accessible cell, and further asserts that Green Haven medical personnel, including Bendheim and Fila, had the authority at the time to transfer him to an accessible cell. (PCSF ¶ 59.) He alleges that Fila refused to help him because he had filed an earlier grievance against her and that Bendheim refused to help him because of the deterioration in their doctor-patient relationship over the treatment of Plaintiff's osteomyelitis. (PCSF ¶ 60.)
On February 9, 1999, Plaintiff filed a written grievance regarding his transfer to cell C1-22 and, by February 23, 1999. Plaintiff was transferred to cell C1-6, which had rails around the sink and toilet. (D56.1 ¶ 116). As noted above, Plaintiff asserts that none of the cells on the "1 Company" side of the UPD, including cell C1-6, had door openings wide enough to permit his wheelchair to enter. (PCSF ¶ 71, n. 21; Scott Decl. ¶ 40.)
On February 2, 1999, allegedly while he was transferring from his bed to his wheelchair in the new cell, Plaintiff fell and injured his knee. Plaintiff alleges that the absence of "appropriate wheelchair safety equipment" caused this fall. (PCSF ¶ 61.) Plaintiff alleges that Bendheim refused to see Plaintiff in the infirmary immediately after the fall. (Id.; Scott Decl. ¶ 33.) Later that day, Plaintiff was treated in Green Haven's emergency room by Dr. Silver and was given ice and nonsteroidal anti-inflammatory pain medication. (D56.1 ¶¶ 29-30.) Silver noted a contusion and recommended orthopedic followup. (PCSF ¶ 62; D56.1 ¶ 29.) Plaintiff subsequently complained of pain and swelling in his knee and received additional treatment. Bendheim ordered an orthopedic specialist consultation for the knee on February 7, 1999. (D56.1 ¶ 31.) Plaintiff was seen by a consultant on February 10, 1999, who performed an aspiration and recommended an MRI. (PCSF ¶¶ 62, 65; D56.1 ¶¶ 30-31.)
Plaintiff claims that Bendheim inappropriately refused to act on Plaintiff's verbal report to him of the MRI recommendation, leading Plaintiff to file a grievance regarding the MRI on February 12, 1999. (PCSF ¶ 66.) On February 21, 1999, Bendheim noted persistent effusion in the knee and ordered an orthopedic consult for followup concerning Plaintiff's knee and hip problems. (PCSF ¶ 67; D56.1 ¶ 32; Bendheim Decl. ¶ 33.) Bendheim asserts that the orthopedic consultant never recommended an MRI, and that he obtained an MRI "even in the absence of such a recommendation." (Bendheim Decl. ¶ 17.) The MRI, which was performed on March 8, 1999, revealed Plaintiff's knee had a medial meniscus tear. The orthopedist, who saw Plaintiff on or about April 21, 1999, recommended that warm compresses be applied to Plaintiff's knee and did not address Plaintiff's hip problem. (PCSF ¶ 68: D56.1 ¶¶ 33, 34, 36.) On April 22, 1999, Bendheim ordered a further orthopedic consultation to address the hip problem. (Bendheim Decl. ¶ 34.) A May 17, 1999, report of that consultation recommends an x-ray and MRI but not surgery. (Bendheim Dec. ¶ 35 and Ex. H.) An x-ray was performed at Green Haven; in a July 19, 1999, note in connection with another consultation request, Defendant Silver appears to have written that "CPS" had denied permission for the MRI. (Silver Decl. Exh. C.)
According to Bendheim's declaration, "requests for treatment by outside medical specialists were reviewed by a private outside managed care company called Correctional Physician Services ("CPS")" during at least a portion of the period at issue in this litigation. (Bendheim Decl. ¶ 29.)
Plaintiff alleges that he received no further treatment for his knee through June 1999, despite his regular complaints of daily pain. Bendheim asserts that physical therapy was prescribed at some unspecified time by Green Haven "staff" but does not indicate whether the prescribed treatment was carried out; Plaintiff asserts that the physical therapy was not prescribed until after he had filed a grievance concerning implementation of a recommendation of physical therapy. (See Bendheim Decl. ¶ 21; D56.1 ¶ 38; Scott Decl. ¶ 37; Pl.'s Resp. to Defs.' Rule 56.1 Stmt. ("PR56.1") ¶ 38.) Bendheim similarly asserts that Plaintiff was "frequently evaluated medically" and that he prescribed medication because of persistent swelling and symptoms, but provides no specifics as to relevant dates, diagnoses, or treatment. (See Bendheim Decl. ¶ 22.) Plaintiff claims that, because the knee would not bend, he suffered severe pain in the leg each time he had to swing from one wheelchair to another to enter his cell or from the wheelchair onto the bed or toilet once inside the cell. (PCSF ¶ 71 and n. 21.)
On July 19, 1999, Silver (who had taken over as Plaintiff's primary care physician) noted that Plaintiff had a persistent problem with his knee and requested an examination of Plaintiff's knee and hip by a specialist. (Silver Decl. ¶ 15; PCSF ¶ 72.) In a July 25, 1999, grievance (attached as an exhibit to Scott's Declaration), Scott asserted that Silver was improperly delaying treatment of his knee and hip and that he had informed Silver of a loss of range of motion in his knee, his inability to use his leg braces, and of tissue loss in his hip. (Scott Decl. Ex. 7.) Scott also alleges that Silver delayed treatment further following an appeal from the grievance. (Scott Decl. ¶ 42 n. 2.) An August 9, 1999, further consultation request for a "2d opinion," apparently prepared by Silver prior to the specialist's examination of Plaintiff, appears to have been initialed by defendant Koenigsmann and includes a request, in handwriting different from the body of Silver's request, for "options with respect to pain relief in paraplegic pt." (PCSF Ex. 31.)
On August 18, 1999, the orthopedic specialist recommended an arthroscopic menisectomy surgical procedure for the knee and prescribed pain medication for Plaintiff. (PCSF ¶ 73; Silver Decl. ¶ 16.). The orthopedist did not, however, address Plaintiff's hip in the consultation report. (PCSF ¶¶ 41-43, 75-76; Silver Decl. Ex. C; PR56.1 ¶¶ 75-76.) Silver put in an August 23, 1999, request that the recommended knee surgery be scheduled; the request form indicates a September 3 "provider request" and is annotated "Awaiting 2nd opinion — cancelled," with the date and initials "CK 9/22." (PCSF Ex. 32.) Plaintiff asserts that, on September 9, 1999, Koenigsmann cancelled the request for surgery and submitted instead a request for a further second opinion and, according to Plaintiff, assigned a "low-urgency `October clinic'" appointment for followup (see PSCF ¶ 75). On October 5, 1999, a Dr. Schwartz responded to this "second opinion" request, finding that Plaintiff was "a candidate for meniscal repair" but recommending that drainage from Plaintiff's hip bone infection (osteomyelitis) be addressed prior to any knee surgery. (PCSF 76 and Ex. 3; D56.1 ¶¶ 46-47.) Plaintiff contends that the state of his hip at that time was attributable to the alleged failure of Defendants Bendheim, Silver and Koenigsmann properly to treat the osteomyelitis and ulcer conditions. (PR56.1 ¶ 45.) Defendants contend that the surgery was delayed "at least in part" by Plaintiff's desire for a second opinion. (D56.1 ¶ 44; Silver Decl. ¶ 17.) Plaintiff denies ever seeking a second opinion regarding the knee surgery. (Scott Decl. ¶ 44; PCSF ¶ 74 n. 22.)
Exhibit 3 to the PCSF is a September 17, 1999, request, under the names of "Silver/Koenigsmann" and marked "October Clinic," for a second opinion on the knee surgery recommendation. (PCSF Exh. 3.)
Plaintiff asserts that, "[a]t one point, the combination of the infection in my hip bone and related decubitus ulcers became so severe that my skin in the affected area deteriorated to the point that my leg bone was plainly exposed in the area of the hip socket." (Scott Decl. ¶ 23.) An infectious disease specialist referral was prepared on October 6, 1999, and Plaintiff was examined by Dr. Rush, an infectious disease specialist, on December 1, 1999. Rush noted a deep buttock wound and recommended an MRI and x-ray to evaluate the existence and extent of dead bone in Plaintiff's hip area. Rush also recommended surgical debridement of the bone and treatment of the hip infection with antibiotics pending the surgery. (PCSF ¶ 45 and Exh. 17; D56.1 ¶ 80.) On or about December 9, 1999, before the MRI was performed, Silver attempted to schedule the debridement; the procedure was cancelled. (PCSF Exh. 21.) The parties dispute whether, and to what extent. Plaintiff's request for an autologous blood donation in connection with the surgery played a role in the cancellation. (See PCSF ¶ 47.) The debridement procedure and a plastic surgery "flap rotation" to cover Plaintiff's ulcers were performed on May 31, 2000. (PCSF ¶ 48; D56.1 ¶ 82.) A post-surgical examination in June 2000 concluded that there was no longer any evidence of infection in Plaintiff's hip. (PCSF ¶ 78.)
In a November 1999, response to a September 22, 1999, request by Silver to the orthopedic consultant for a further recommendation as to whether an MRI should be performed in connection with evaluation and treatment of Plaintiff's osteomyelitis, the consultant recommended the MRI and a sinogram. (PCSF Ex. 18.) The parties agree that Silver ordered the MRI, as recommended, on November 22, 1999. (D56.1 ¶ 77; PR56.1 ¶ 77.)
Defendants, citing printouts purporting to list multiple contacts by Plaintiff with various medical providers, assert that Plaintiff "received regular periodic followup specialty care" during the period from November 1999 to May 2000, including three contacts with "the orthopedist" and contact with the infectious disease consultant. (DR56.1 ¶ 83; Silver Decl. ¶ 32.) Plaintiff does not specifically deny that the contacts took place but, rather, observes that there may be an authenticity issue with the printouts and notes that Defendants do not proffer explanations as to the subject matter of the various appointments. (PR56.1 ¶ 83.)
Neither side proffers that any immediate action was taken to address Plaintiff's knee condition following the successful hip surgery. On October 12, 2000, Defendant Silver requested an additional opinion regarding treatment of the knee. On November 9, 2000, Dr. Stephen Schwartz again recommended surgery for the knee. (PCSF ¶ 78, D56.1 ¶ 51.) On November 12, 2000, Silver requested that the surgery be booked. (Declaration of Carl J. Koenigsmann, dated October 28, 2003 ("Koenigsmann Decl.), Ex. A.) Koenigsmann denied permission for the recommended surgery on November 14, 2000; Koenigsman asserts that did so because he wanted a second opinion from a rehabilitation specialist as to the risks and benefits of such surgery "on the non-weight bearing affected knee of a paraplegic patient." (Koenigsmann Decl. ¶ 16.) Plaintiff alleges that, by late 2000, he was suffering intense pain in the knee joint and could "feel the leg bones grinding and hear them popping every time he attempted to bend his left leg." (PCSF ¶ 79.) On December 22, 2000, after the rehabilitation specialist had "addressed [his] concerns about the medical necessity of the proposed surgery," Koenigsmann requested the surgery for Plaintiff. The specialist's response refers to potential for the joint "locking" as well as to pain. Koenigsmann requested that the surgery be scheduled for eight weeks later. (Koenigsmann Decl. ¶ 17 and Exh. A.) Plaintiff underwent arthroscopic surgery on the knee on April 12, 2001. (PCSF ¶ 80; D56.1 ¶ 52.) The surgery ameliorated Plaintiff's knee problem. (PCSF ¶ 82). Plaintiff asserts that, beginning in 1999 after Koenigsmann assumed the FHSD post, he had many conversations with Koenigsmann concerning his medical treatment issues, including those relating to the ulcers and osteomyletis. (Scott Decl. ¶ 13; see Tr. of Koenigsmann Dep., Ex. 4 to PCSF, at 13-14, 64-66, 111.)
Defendants again generally allege that Plaintiff underwent numerous consultations and preoperative tests during the period from May 30, 2000 to March 27, 2002 (when Plaintiff had a hip replacement surgery that is not the subject of the instant complaint). (Silver Decl. ¶ 33; D56.1 ¶ 88.) Plaintiff again responds that Defendants' documentation is insufficient to establish that the consultations and procedures occurred and what their purpose was. (PR56.1 ¶ 88.)
While the overall chronology of events is largely undisputed, there is intense disagreement between the parties as to the medical propriety of, and reasons for, the extended timetable leading to orthopedic surgical treatment of Plaintiff's hip and knee problems. Plaintiff alleges that Defendants refused to provide him with "necessary medical treatment and testing, including but not limited to surgery, antibiotics, physical therapy and tests for his swollen knee and damaged hip." (Sec. Am. Compl. ¶ 21). Plaintiff contends that Defendants "continually and persistently ignored [his] complaints," and "engaged in a pattern of [(sic)] practice with [(sic)] deliberate indifference to the Plaintiff's serious medical needs." (Id. ¶¶ 21, 24.) Plaintiff argues, in essence, that defendants Bendheim, Silver and Koenigsmann were deliberately indifferent to Plaintiff's pain, mobility problems and alleged deterioration resulting from lack of, or inappropriate, treatment of the conditions. Plaintiff also asserts that the multiple requests for second opinions regarding surgical treatment of his knee were extraordinary and contrary to normal DOCS procedures. (See, e.g., PCSF ¶ 75 and n. 23.)
Plaintiff makes no specific assertions regarding any treatment decisions by defendant Fila, nor that she had authority to make any of the treatment decisions challenged here. Rather, Plaintiff argues that she had authority to move him from the inaccessible cell and is properly a defendant on the ADA claim, and that she brought a false disciplinary charge against him in retaliation for a grievance Plaintiff had lodged against her.See infra sections II B. and C.
Defendants claim that the delays in surgical treatments were the proper result of a number of appropriate factors, including non-surgical treatments, exploration of less aggressive surgical treatment, delays arising from Plaintiff's objections to some treatments and/or requests for second opinions or other procedures in connection with surgical treatments, and delays inherent in the process of obtaining referrals and attention from outside consultants. The largely conclusory expert affidavits submitted by both sides do little to reconcile the underlying factual controversies or elucidate their legal or medical significance.
Plaintiff seeks monetary damages, injunctive relief mandating that Defendants provide "appropriate medical care and treatment," and an award of reasonable attorneys' fees pursuant to 42 U.S.C. § 1988. The injunctive aspect of Plaintiff's request for relief appears to have been mooted by his transfer out of Green Haven following the briefing of this motion. (See letters from defense counsel, dated April 23, 2004 and August 18, 2004, concerning transfers to Shawangunk Correctional Facility and Five Points Correctional Facility, respectively.)
II. DISCUSSION
A. Summary Judgment Standard
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court's role is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "A factual issue is genuine if it can reasonably be resolved in favor of either party," and "[a] fact is material if it can affect the outcome of the action based on the governing law." David v. N.Y.P.D. 42nd Precinct Warrant Squad, No. 02 Civ. 2581 (DC), 2004 WL 1878777, at *3 (S.D.N.Y. Aug. 23, 2004) (citing Anderson, 477 U.S. at 248, 250). Initially, the burden is on the moving party to "demonstrate the absence of any genuine issues of material fact." Harrison v. Potter, 323 F. Supp. 2d 593, 599 (S.D.N.Y. 2004) (citingCelotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party satisfies its burden, the burden then "shifts to the non-moving party to offer specific evidence showing that a genuine issue for trial exists." Am. Home Assurance Co. v. Zim Jamaica, 296 F. Supp. 2d 494, 498-99 (S.D.N.Y. 2003). In resolving a motion for summary judgment, "the Court must view the evidence in a light that is favorable to the non-moving party and draw all reasonable inferences in favor of that party.Harrison, 323 F. Supp. 2d at 599 (citing Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)).
B. Americans with Disabilities Act and Rehabilitation Act Claims 1. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e, provides in pertinent part 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 are exhausted.
42 U.S.C.A. § 1997(e)(a) (West 2003) (emphasis supplied.) There is no dispute that Plaintiff has exhausted his internal prison grievance remedies with respect to all of his claims. It is also undisputed, however, that he has not pursued federal administrative proceedings in connection with his claims asserted under the ADA and the Rehabilitation Act. Defendants move to dismiss the complaint in its entirety for non-exhaustion, arguing that section 1997e(a) precludes the maintenance of any action where administrative remedies had not been exhausted with respect to any claim raised in the action prior to commencement of the action. Plaintiff argues that he should not be required to exhaust the federal administrative remedies and that, in any event, any failure to exhaust remedies with respect to this set of claims should not compel dismissal of this action in its entirety.
In Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court 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." Id. at 532. Exhaustion is required even when a prisoner seeks relief that is not available in the administrative proceedings; the Nussle Court recognized that
Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case. . . . [F]or cases ultimately brought to court, adjudication could be facilitated by an administrative record that clarifies the contours of the controversy.Id. at 524-25. The United States Department of Justice has established administrative procedures for the assertion and investigation of complaints regarding alleged violations of the ADA and the Rehabilitation Act in correctional facilities. The agency designated to investigate the complaints (the Department of Justice, in the case of complaints regarding correctional institutions) is obligated to seek informal resolution, issue a Letter of Findings (which is to include findings of fact, conclusions of law and a description of an appropriate remedy for each violation found) if no informal resolution is reached and, with respect to the ADA procedure, if a Letter of Findings identifying a violation is issued, seek to negotiate a voluntary compliance agreement with the respondent public entity. See 28 C.F.R. §§ 35.170-35.173, 35.190(b)(6), 39.170. This is precisely the sort of pre-litigation process contemplated by the Nussle Court, and section 1997e clearly applies the exhaustion of remedies mandate to the ADA and Rehabilitation Act as "other Federal law." Accordingly, the section 1997e(a) exhaustion requirement applies to Plaintiff's ADA and Rehabilitation Act claims. See Rosario v. N.Y.S. Dept. of Corr. Services, No. 03 Civ. 859(CLB), 2003 U.S. Dist. Lexis 18032 (S.D.N.Y. Sept. 24, 2003); Burgess v. Garvin, No. 01 Civ. 10994(GEL), 2003 U.S. Dist. LEXIS 14419 (S.D.N.Y. Aug. 18, 2003).
In that Plaintiff has not satisfied the PLRA's exhaustion requirement with respect to two of his claims, the question is whether this action can be maintained at all, or whether it must be dismissed in its entirety. The Second Circuit addressed this issue squarely in Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004), holding that the presence of an unexhausted claim in a prisoner's lawsuit does not require a district court to dismiss the action in its entirety, and that the district court may, upon dismissal of the unexhausted claim, proceed to address the exhausted claims without awaiting any attempt by the plaintiff to exhaust remedies on the dismissed claim. Id. at 663. In light of this holding, and of the judicial economy considerations discussed in the Ortiz decision, the Court will not dismiss Plaintiff's action in its entirety by reason of the failure to exhaust administrative remedies with respect to the ADA and Rehabilitation Act Claims.
2. Dismissal of ADA and Rehabilitation Act Damages Claims on Merits, Injunctive Claims as Moot
Plaintiff has named as defendants only individuals, asserting ADA and Rehabilitation Act claims against them for damages and injunctive relief. However, "neither Title II of the ADA nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials." Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001). "`Individual defendants may not be held personally liable for alleged violations of the ADA or Rehabilitation Act.' Nor can individuals be named in their official or representative capacities as defendants in ADA or Rehabilitation Act suits."Menes v. CUNY University, 92 F. Supp. 2d 294, 306 (S.D.N.Y. 2000) (internal citations omitted). Plaintiff's ADA and Rehabilitation Act claims against Defendants therefore must fail insofar as they seek to recover damages for alleged violations of those statutes. See Ford v. Conway, No. 03-CV-0927S, 2004 WL 1071171, at *3 (W.D.N.Y. Mar. 16, 2004) (indicating the proper party to be sued was the Department of Correctional Services, not prison employees in their official and individual capacities).
Plaintiff argues that he should be able to proceed against the named individuals insofar as he seeks injunctive relief, pursuant to the principles enunciated by the Supreme Court in Ex Parte Young, 209 U.S. 123 (1908). The Second Circuit held inHenrietta D. v. Bloomberg, 331 F.3d 261, 287-88 (2d Cir. 2003), that such a claim could be maintained against a state officer named in her official capacity. Plaintiff's injunctive relief claims as against these defendants appear, however, to be moot, as Plaintiff has been transferred out of Green Haven and nothing in the record on this motion or in Plaintiff's counsel's communications with the Court concerning the subsequent transfers suggests that any of the remaining Defendants has any control over his current housing or medical care. See supra pp. 14-15.
Section 1997e(c)(2) of the PLRA permits the dismissal of a claim that "fails to state a claim upon which relief can be granted, . . . without first requiring the exhaustion of administrative remedies." 42 U.S.C.A. § 1997e(c)(2) (West 2003). In that Plaintiff's damages claims against the named Defendants cannot be maintained and no effective injunctive relief can be granted as against those Defendants, who are no longer in charge of Plaintiff's housing or medical care, Defendants' motion for summary judgment will be granted insofar as it is directed to Plaintiff's claims under the ADA and the Rehabilitation Act (Second Cause of Action, Sec. Am. Compl. ¶¶ 30-38). This grant of summary judgment in favor of the named Defendants does not preclude Plaintiff from seeking to pursue his ADA and Rehabilitation Act claims, administratively and in any appropriate fashion thereafter, against the appropriate State entity.
C. Plaintiff's Eighth Amendment Claim
"The Eighth Amendment's prohibition against cruel and unusual punishment of prison inmates has been construed to include the denial of adequate medical care." Woods v. Goord, No. 01 Civ. 3255(SAS), 2002 WL 731691, at * 3 (S.D.N.Y. Apr. 23, 2002). "To sustain a claim of improper medical treatment, plaintiff must allege facts demonstrating that prison officials were deliberately indifferent to his condition." Lumaj v. Williams, No. 03 Civ. 1849(PKC), 2004 WL 1207894, at *3 (S.D.N.Y. June 2, 2004). The "deliberately indifferent" standard is composed of an objective and subjective test. "The objective `medical need' element measures the severity of the alleged deprivation, while the subjective `deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). Plaintiff alleges that Defendants Bendheim, Silver and Koenigsmann violated his Eighth Amendment rights. 1. Objective Element
Plaintiff has apparently abandoned his Eighth Amendment claim as against Defendant Fila. See Pl.'s Mem. In Opp. at,e.g., 24 ("Defendants Koenigsmann, Bendheim and Silver were Deliberately Indifferent to Scott's Serious Medical Needs"). He has in any event failed to proffer evidence sufficient to support a verdict against Fila on his Eighth Amendment claim. Summary judgment will therefore be granted in Fila's favor on the Eighth Amendment claim (First Cause of Action, Sec. Am. Compl. ¶¶ 1-29).
A medical need is "sufficiently serious" to support an Eighth Amendment claim when it presents "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal citations and quotation marks omitted). "Because `[t]he objective component of an Eighth Amendment claim is' . . . fact-specific, the serious medical need inquiry must be tailored to the specific circumstances of each case." Smith, 316 F.3d at 185 (internal citations omitted). Relevant factors in determining the severity of Plaintiff's medical condition include "the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal citation and quotation marks omitted).
Plaintiff has proffered evidence that he suffered, and complained consistently of, persistent severe pain in his knee and hip over periods of two or more years, that he was unable to use braces for ambulation after he suffered the knee injury, that he suffered extreme tissue loss at the site of the bone infection, and that he had difficulty transferring in and out of his wheelchair due to inability to bend the injured knee. This evidence, coupled with Green Haven's documentation of his medical condition and the treatment recommendations of the outside consultants during the period in question is, when viewed in the light most favorable to Plaintiff, sufficient to raise a genuine issue of material fact as to whether Plaintiff's underlying medical conditions were "sufficiently serious" to support his Eighth Amendment claim.
The Second Circuit has held that, where a prisoner's Eighth Amendment complaint is of delay or interruption of otherwise adequate treatment, as opposed to refusal to provide treatment altogether, it is appropriate to
focus on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in `objective terms, sufficiently serious,' to support an Eighth Amendment claim. . . . [W]here the prisoner is receiving appropriate on-going treatment for his condition, but, instead brings a narrower denial of medical care claim based on a temporary delay or interruption in treatment, the serious medical need inquiry can properly take into account the severity of the temporary deprivation alleged by the prisoner.Smith, 316 F.3d at 185-86 (emphasis in original; internal citations omitted). However, "when medical treatment is denied for a prolonged period of time, or when a degenerative medical condition is neglected over sufficient time, the alleged deprivation of care can no longer be characterized as `delayed treatment' but may properly be viewed as a `refusal' to provide medical treatment." Id. at 186 n. 10 (internal citation omitted).
The record reveals genuine issues of material fact even when viewed through this narrower template. Plaintiff alleges that he suffered persistent severe hip pain, that he suffered tissue loss that exposed his bone before hip surgery was finally performed, and that the condition of his knee degenerated (to the point where he perceived grinding and popping when he attempted to move it) during the more than two-year period between the time he suffered the injury and the time knee surgery was performed. This evidence, combined with the Green Haven medical documentation, could support a finding that the complained-of delays engendered damage that was sufficiently severe to support Plaintiff's Eighth Amendment claim. "[A] serious medical need `exists where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" Smith, 316 F.3d at 187 (internal citation omitted).
2. The Subjective Element
In order to satisfy the subjective component of an Eighth Amendment deliberate indifference claim, Plaintiff must demonstrate that Defendants acted with a "sufficiently culpable state of mind." Chance, 143 F.3d at 702 (citations omitted).
[T]he subjective element of deliberate indifference `entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.' Farmer v. Brennan, 511 U.S. 825, ___, 114 S. Ct. 1970, 1978, 128 L. Ed. 2d 811 (1994). The subjective element requires a state of mind that is the equivalent of criminal recklessness; namely, when the prison official `knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.' Id. at ___, 114 S. Ct. at 1979. . . . Hathaway v. Coughlin, 99 F.3d at 553. "`[M]ere medical malpractice' is not tantamount to deliberate indifference, [but] certain instances of medical malpractice may rise to the level of deliberate indifference; namely, when the malpractice involves culpable recklessness, i.e., an act or failure to act by the prison doctor that evinces `a conscious disregard of a substantial risk of serious harm,' Farmer, 511 U.S. at ___, 114 S. Ct. at 1980." Id.
Here, Defendants have proffered evidence that the medical care provided to Plaintiff was appropriate and that certain delays in performing the surgeries and other procedures were due to Plaintiff's own actions, delays inherent in the specialist referral approval process, and/or the determination that addressing the hip infection warranted priority over repair of the knee injury. Defendants' evidence also indicates that they did not view Plaintiff's knee problem as urgent because he is non-ambulatory. Defendants thus contend that there is no evidentiary basis for a finding of deliberate indifference.
Plaintiff has, as noted above, proffered evidence that he suffered, and informed Defendants of severe pain, and that his knee and hip conditions deteriorated over the time period in question. He alleges that Bendheim failed to take appropriate actions to address admittedly serious medical conditions because of hostility toward Plaintiff arising from the early disagreements as to whether plastic or orthopedic surgery was appropriate to address his hip condition. Plaintiff alleges that Silver deliberately delayed addressing the knee and hip conditions and that the delay was at least in part a reaction to a grievance filed by Plaintiff. Plaintiff points to the outside consultants' multiple recommendations of knee surgery in relation to the time it ultimately took to implement them, and Koenigsmann's requests for multiple second opinions.
Plaintiff further contends that he had been able to ambulate with the aid of braces prior to the injury and that inability to bend the knee affected his ability to move in and out of his wheelchair in connection with daily activities, and disputes many of Defendants' factual assertions, in alleging that Defendants' conduct met the subjective element of his Eighth Amendment cause of action. The evidence of record, taken as a whole, is sufficient to support reasonable inferences that Defendants Bendheim, Silver and Koenigsmann knew of and disregarded excessive risks to Plaintiff's health and safety, and that they were both aware of facts from which the inference could be drawn that a substantial risk of serious harm existed and drew that inference. Accordingly, these Defendants' motion for summary judgment on Plaintiff's Eighth Amendment claim (First Cause of Action, Sec. Am. Compl. ¶¶ 1-29) is denied.
D. State Law Claims
Citing a number of provisions of the New York State Corrections Law relating to the management of prisons and prison programs, as well as Stanback v. State, 557 N.Y.S. 2d 433 (2d Dept. 1990), Plaintiff asserts claims for damages for negligence and reckless inattention to Plaintiff's serious medical needs. (Third Cause of Action, Sec. Am. Compl. ¶¶ 39-42.) These claims must be dismissed because they are precluded by section 24 of the New York State Corrections Law, which provides in pertinent part that
1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department [of correctional services], in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state.
N.Y. Corr. Law. § 24 (McKinney 2003). Plaintiff's claims against Defendants clearly arise from acts within the scope of their employment. Section 24's prohibition on such suits against individual correctional services department employees precludes such litigation in federal court as well as in state court, "by conferring upon [the employees] an immunity from liability for activities that fall within the scope of the statute." Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir. 1996). Stanback v. State, cited in Plaintiff's Complaint, provides no authority for the maintenance of Plaintiff's claims in this Court, since that negligence case was commenced in the New York State Court of Claims, against the State of New York, as contemplated by Section 24(2).
Moreover, insofar as Plaintiff asserts claims against the Defendants in their official capacities, his damages claims are precluded by the Eleventh Amendment to the Constitution of the United States.
For the reasons discussed above in connection with Plaintiff's ADA and Rehabilitation Act claims, Plaintiff's claims are moot insofar as he seeks injunctive relief.
Accordingly, summary judgment will be granted in Defendants' favor dismissing Plaintiff's state law claims (Third Cause of Action).
E. Claims of Conspiracy to Violate Plaintiff's Civil Rights
Plaintiff alleges Defendants violated his civil and constitutional rights in violation of " 42 U.S.C. §§ 1983, 1985, 1986. et. seq.," by conspiring to violate his constitutional and statutory rights in connection with his medical and disability-accommodation needs (Fourth Cause of Action, Sec. Am. Compl. ¶¶ 43-46.) A conspiracy claim under 42 U.S.C. § 1983 "should actually be stated as a claim under Section 1985, which applies specifically to conspiracies." Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003).
"[I]n any case of conspiracy set forth in [Section 1985], if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property . . . the party so injured or deprived may have an action for the recovery of damages[.]" 42 U.S.C.A. § 1985(3) (West 2003). "To establish a claim under [Section 1985(3)] plaintiff must demonstrate (1) a conspiracy (2) for the purpose of depriving [him] of equal protection of the laws or of equal privileges and immunities, and (3) an act taken in furtherance of the conspiracy (4) that causes injury to the plaintiff." Lewis v. City of New York, No. 95 Civ. 5351, 1999 U.S. Dist. LEXIS 20008, at *67 (S.D.N.Y. Nov. 16, 1999), report and recommendation adopted 1999 U.S. Dist. LEXIS 19719 (S.D.N.Y. Dec. 27, 1999). Plaintiff must show that the conspiracy was "motivated by `some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999) (internal citations omitted).
Plaintiff's conspiracy claim must fail because Defendants, the alleged co-conspirators, were all employees of the state Department of Correctional Services, acting within the scope of their employment, when they allegedly violated Plaintiff's rights. The intra-corporate conspiracy doctrine, which holds that two or more employees of a corporate entity are generally legally incapable of conspiring with each other with respect to matters within the scope of their employment, applies to Section 1985 claims and bars Plaintiff's conspiracy cause of action. See Girard v. 94th Street and Fifth Ave. Corp., 530 F.2d 66, 70-71 (2d Cir. 1976); Crudele v. City of New York Police Dept., No. 97 Civ. 6687(RCC), 2004 WL 1161174, at *5 (S.D.N.Y. May 24, 2004); Lewis v. City of New York, No. 95 Civ. 5351 (PKL), 1999 U.S. Dist. LEXIS 20008, at *73 (S.D.N.Y. Nov. 16, 1999), report and recommendation adopted 1999 U.S. Dist. LEXIS 19719 (S.D.N.Y. Dec. 27, 1999).
The Court further finds that dismissal is appropriate because Plaintiff has failed to proffer any evidence from which a reasonable fact finder could conclude that a class-based animus motivated Defendants' alleged legal violations.
A claim under 42 U.S.C. § 1986 is valid only if there is a viable conspiracy claim under Section 1985. Gagliardi v. Village of Pawling, 18 F.3d 188, 194 (2d Cir. 1994). Because Plaintiff has failed to state a viable claim under Section 1985, his Section 1986 claim fails as well. Defendants' motion will therefore be granted as to Plaintiff's Fourth Cause of Action.
F. Qualified Immunity
"The doctrine of qualified immunity shields government officials from suits for damages arising from performance of their discretionary functions when, applying an objective standard, `their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Webster v. The City of New York, 333 F. Supp. 2d 184, 203 (S.D.N.Y. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The threshold question "is whether `a `constitutional right would have been violated were the allegations established.'" Id. (internal citations omitted). If that question can be answered in the affirmative, qualified immunity can be established by showing that either the government officials' "conduct [did] not violate `clearly established' statutory or constitutional rights the existence of which a reasonable person would have known," or that it was "objectively reasonable for [the officials] to believe their actions were lawful at the time.'" Id. (internal citations omitted.)
Defendants assert that they are entitled to dismissal of Plaintiff's Section 1983 claims on qualified immunity grounds. Plaintiff's right to be free from cruel and unusual punishment by way of the withholding or maladministration of medical care was clearly established at all relevant times by Estelle v. Gamble, 429 U.S. 97 (1976) and its progeny. The fact issues identified earlier in this opinion preclude any determination at this stage as to whether reasonable medical personnel in Defendants' position would have considered their conduct consistent with protection of Plaintiff's rights.
G. Conspiracy in Violation of the Milburn Modified Final Judgment
In his Fifth Cause of Action (Sec. Am. Compl. ¶¶ 47-48), Plaintiff alleges that Defendants violated the Modified Final Judgment by Consent, dated August 1, 1991, in Milburn v. Coughlin, No. 79 Civ. 5077(RCC) (S.D.N.Y.) (the "Modified Final Judgment"). Milburn was a class action brought on behalf of "all persons who are or will be inmates at Green Haven," and Plaintiff asserts that Defendants have violated the Modified Final Judgment by conspiring to act with gross negligence and deliberate indifference and depriving Plaintiff of his civil and constitutional rights. As on the other counts of the Complaint, Plaintiff seeks compensatory and punitive damages as well as injunctive relief.
The Court has carefully reviewed the Modified Final Judgment and concludes that Plaintiff's Fifth Cause of Action must be dismissed without prejudice. The Modified Final Judgment contains numerous provisions relating to medical care and conditions of confinement at Green Haven. It includes enforcement mechanisms that contemplate informal resolution efforts and consultative procedures prior to any contempt proceeding before the court, set standards of proof, and provide for judicial enforcement of the Modified Final Judgment by way of motion practice in theMilburn case. See Modified Final Judgment § XXIX. Accordingly, Plaintiff's claims relating to compliance with the Modified Final Judgment are not properly asserted in this action and will be dismissed without prejudice to renewal in theMilburn case in accordance with the provisions of the Modified Final Judgment.
H. Retaliation Claim Against Defendant Fila
As noted above, Plaintiff has abandoned his Eighth Amendment claim as against Defendant Fila. Plaintiff argues, however, that the Complaint should not be dismissed against her and that he should be permitted to pursue a claim that Fila retaliated against him for filing grievances naming her, by subjecting him to a baseless disciplinary charge. This retaliation claim is not asserted in the Second Amended Complaint or any other pleading in this action. At this summary judgment stage, following the close of discovery, Plaintiff's attempt to inject this claim into this case comes too late. Accordingly, the possibility that Plaintiff may have a retaliation claim to assert against Defendant Fila does not preclude dismissal of the claims Plaintiff has asserted against her in this action. Summary judgment will therefore be granted in Defendant Fila's favor as to each of the causes of action asserted in the Second Amended Complaint. I. Attorneys' Fees
Plaintiff has also requested the award of reasonable attorneys' fees pursuant to 42 U.S.C.A. § 1988. This statute provides that courts may use their discretion in awarding attorneys' fees to the prevailing party of a lawsuit enforcing any of several provisions, including 42 U.S.C.A. §§ 1983, 1985, and 1986. As Plaintiff has not yet prevailed on any of his claims based on these provisions, he is not entitled to an award of attorneys' fees.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is granted as to Plaintiff's Second, Third, Fourth and Fifth Causes of action as to all remaining Defendants, and is also granted as to Plaintiff's First Cause of Action insofar as claims are asserted against Defendant Fila. As previously noted, Plaintiff has withdrawn all of his claims against Defendant Schwartzmann.
The parties shall promptly schedule a settlement conference with Magistrate Judge Peck and, if no settlement is concluded, counsel shall appear before the undersigned for a Final Pre-Trial Conference on December 10, 2004, at 2:30 p.m. Submissions shall be made in advance of the conference in accordance with the requirements detailed in the Pre-Trial Scheduling Order entered in this case in January 2003.