Smolen v. Fischer

Full title: SAMUEL J. SMOLEN, JR., Plaintiff, v. BRIAN FISCHER, Commissioner N.Y.S…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Aug 23, 2012

12 Civ. 1856 (PAC) (AJP) (S.D.N.Y. Aug. 23, 2012)

Opinion

12 Civ. 1856 (PAC) (AJP)

08-23-2012

SAMUEL J. SMOLEN, JR., Plaintiff, v. BRIAN FISCHER, Commissioner N.Y.S. Department of Correctional Services; ADA PEREZ, Superintendent Downstate Correctional Facility; and R. NGUYEN, R.N., Defendants.

ANDREW J. PECK, United States Magistrate Judge

REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge :

To the Honorable Paul A. Crotty, United States District Judge:

Pro se plaintiff Samuel J. Smolen Jr. brings this § 1983 action alleging violations of his federal constitutional rights by defendants Commissioner Brian Fischer, Superintendent Ada Perez and Nurse R. Nguyen arising out of alleged conditions of his confinement and failure to take corrective action to improve those conditions at the Downstate Correctional Facility. (Dkt. No. 2: Compl. ¶ II.) Presently before the Court are defendants' motions to dismiss. (Dkt. No. 14: Fischer & Perez Notice of Motion; Dkt. No. 27: Nguyen Notice of Motion.) For the reasons stated below, Fischer and Perez's motion to dismiss should be DENIED and Nguyen's motion to dismiss should be GRANTED.

FACTS

In March 2009, Smolen was an inmate at Downstate. (Dkt. No. 2: Compl. at 3.) Smolen alleges that the storm windows in Downstate's cells are "made of poly-carbon and highly flammable." (Compl. at 2B, 2C.) On March 10, 2009, a storm window in an adjoining cell caught fire causing "thick toxic smoke" to fill up the "entire area." (Compl. at 3.) Smolen was unable to open his cell window because there was no knob or crank on the window. (Compl. at 2B, 3.) Smolen claims that because he could not open his cell window when "toxic smoke" filled his cell, he suffered breathing difficulties, chest pains and post traumatic stress disorder and was taken to the prison hospital. (Compl. at 3.) Smolen further alleges that he is now on drug therapy to improve his ability to fully breathe. (Dkt. No. 25: Smolen Opp. Aff. at IV.)

Smolen alleges that Fischer and Perez knew of "the hazard of those windows . . . from previous fires." (Compl. at 2B, 2C.) Smolen asserts that any time a serious fire breaks out at Downstate, "a full report of any fires and their causes must be submitted to the Commissioner," i.e., Fischer. (Smolen Opp. Aff. at II.)¹ Smolen claims that Supt. Perez "was required to file all reports of past fires - [including] potentially and dangerous existing conditions at Downstate." (Smolen Opp. Aff. at V.)

1 Although certain factual allegations in Smolen's opposition affidavit are not contained in the complaint, this Court will deem the complaint amended to include those allegations since Smolen is a pro se plaintiff. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007) (Reversing dismissal of prisoner's § 1983 deliberate indifference suit where complaint's factual allegations satisfied Fed. R. Civ. P. 8 and "[p]etitioner, in addition, bolstered his claim by making more specific allegations in . . . later filings."); Anderson v. Davis Polk & Wardwell LLP, 10 Civ. 9338, --- F. Supp. 2d ----, 2012 WL 734120 at *3 (S.D.N.Y. Mar. 6, 2012) (on a motion to dismiss, treating pro se "plaintiff's opposition papers to the extent that they raised new factual allegations as further amending his amended complaint"); Sommersett v. City of N.Y., 09 Civ. 5916, 2011 WL 2565301 at *3 (S.D.N.Y. June 28, 2011) (On a motion to dismiss "'where a pro se plaintiff has submitted other papers to the Court, such as legal memoranda, the Court may consider statements in such papers to supplement or clarify the plaintiff's pleaded allegations.'"); Green v. City of N.Y. Dep't of Corr., 06 Civ. 4978, 2008 WL 2485402 at *4 (S.D.N.Y. June 19, 2008) ("In so construing the Amended Complaint, the Court has considered the facts alleged within the body of the complaint as well as the additional facts proffered in the affidavit Plaintiff submitted with his opposition papers.").

Additionally, Smolen alleges that there was no one to help him out of his keeplock cell when the fire broke out because the corrections officer on duty was escorting other inmates to the mess hall. (Compl. at 2C, 3.) "[H]elp finally arrived" fifteen to twenty minutes after the fire had broken out. (Compl. at 3.) Smolen alleges that Commissioner Fischer is "responsible for staffing levels at [the facility] and was fully aware - that Downstate C.F. was operating understaffed . . . ." (Smolen Opp. Aff. at II.)

Smolen alleges that Nurse Nguyen failed to adequately treat him while he suffered from "severe toxic smoke inhalation." (Compl. at 2D.) Smolen claims that Nurse Nguyen did not send Smolen to "an outside hospital for a full medical evaluation and treatment - by a medical doctor and inhalation specialist as was done for the staff members." (Compl. at 2D.) Smolen further claims that Nguyen "failed to order any tests at the time of the incident and failed to recommend any follow up tests and medical treatment." (Compl. at 2D.)

Smolen's complaint asserts that defendants Commissioner Fischer and Supt. Perez: (1) knew or should have known of the "hazardous storm windows" but were deliberately indifferent in that they took no corrective action to replace the windows; (2) did not insure that the windows had knobs so they could be opened in case of an emergency such as fire; and (3) failed to insure that the housing unit is never left unattended by staff. (Compl. ¶ II.) Smolen's complaint asserts that Nurse Nguyen failed to order any tests at the time of the incident and failed to recommend any follow up medical tests and medical treatment. (Compl. at 2D). Smolen seeks compensatory and punitive damages. (Compl. ¶ V.)

Defendants have moved to dismiss Smolen's complaint. (Dkt. No. 14: Fischer & Perez Notice of Motion; Dkt. No. 27: Nguyen Notice of Motion.) Fischer and Perez argue that Smolen's complaint fails to state a claim for relief under 42 U.S.C. § 1983 because: (1) Smolen's storm window claim does not involve a constitutional violation (Dkt. No. 15: Fischer & Perez Br. at 3-6), (2) defendants were not personally involved in any constitutional violation (id. at 6-7), and (3) defendants are entitled to qualified immunity (id. at 7-8). Nguyen argues that Smolen's complaint fails to state a claim for relief under 42 U.S.C. § 1983 because Nguyen was not deliberately indifferent to Smolen's medical needs (Dkt. No. 28: Nguyen Br. at 3-4) and Nguyen is entitled to qualified immunity (id. at 5).

ANALYSIS

I. THE STANDARDS GOVERNING A MOTION TO DISMISS

In two decisions in 2007 and 2009, the Supreme Court significantly clarified the standard for a motion to dismiss, as follows:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in Twombly, the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement."

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." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'"

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not "show[n]"-"that the pleader is entitled to relief."

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Ashcroft v. Iqbal, 556 U.S. 662, 677-79, 129 S. Ct. 1937, 1949-50 (2009) (citations omitted & emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-57, 570, 127 S. Ct. 1955, 1965-66, 1974 (2007) (retiring the Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957), pleading standard that required denying a Rule 12(b)(6) motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.")).²

2 Accord, e.g., Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010), cert. denied, 131 S. Ct. 901 (2011); Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009); Jones v. N.Y. Dep't of Corr. (DOC) Jail, 11 Civ. 4477, 2011 WL 5865143 at *1-2 (S.D.N.Y. Nov. 22, 2011) (Peck, M.J.), report & rec. adopted, 2012 WL 1232963 (S.D.N.Y. Apr. 12, 2012) (Crotty, D.J.); Lindner v. IBM Corp., 06 Civ. 4751, 2008 WL 2461934 at *3 (S.D.N.Y. June 18, 2008); Joseph v. Terrence Cardinal Cooke Health Care Ctr., 07 Civ. 9325, 2008 WL 892508 at *1 (S.D.N.Y. Apr. 2, 2008); Elektra Entm't Grp., Inc. v. Barker, 551 F. Supp. 2d 234, 237 (S.D.N.Y. 2008); Edison Fund v. Cogent Inv. Strategies Fund, Ltd., 551 F. Supp. 2d 210, 216-17 (S.D.N.Y. 2008); Diana Allen Life Ins. Trust v. BP P.L.C., 06 Civ. 14209, 2008 WL 878190 at *3 (S.D.N.Y. Mar. 31, 2008) (Crotty, D.J.).

Even after Twombly and Iqbal, the Court's role in deciding a motion to dismiss "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Bison Capital Corp. v. ATP Oil & Gas Corp., 10 Civ. 0714, 2010 WL 2697121 at *5 (S.D.N.Y. June 24, 2010) (Peck, M.J.) (quotations omitted), report & rec. adopted, 2010 WL 3733927 (S.D.N.Y. Sept. 16, 2010).³

3 Accord, e.g., Tasini v. AOL, Inc., 11 Civ. 2472, --- F. Supp. 2d ----, 2012 WL 1066893 at *1 (S.D.N.Y. Mar. 30, 2012) ("The Court's function on a motion to dismiss is 'not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.'"); Saunders v. Coughlin, 92 Civ. 4289, 1994 WL 88108 at *2 (S.D.N.Y. Mar. 15, 1994) (quoting Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)).

Even after Twombly and Iqbal, the Court must construe a pro se complaint liberally and must use less stringent standards when reviewing a pro se complaint than if the complaint had been drafted by counsel. See, e.g., Ercole v. LaHood, No. 11-1780, 2012 WL 2345934 at *1 (2d Cir. June 21, 2012); Harris v. Mills, 572 F.3d at 72; LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991).⁴ However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief . . . ." 2 Moore's Federal Practice § 12.34[4][a] at 12-99 (2012). Thus, the "'duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b] at 12-79.⁵ II. DEFENDANTS FISCHER AND PEREZ'S MOTION TO DISMISS SHOULD BE DENIED

4 See also, e.g., Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 at *6 (S.D.N.Y. June 22, 2012) (Peck, M.J.); Scherman v. N.Y.S. Banking Dep't, 09 Civ. 2476, 2010 WL 997378 at *4 (S.D.N.Y. Mar. 19, 2010) (Peck, M.J.), aff'd, 443 F. App'x 600 (2d Cir. 2011); Watson v. McGinnis, 964 F. Supp. 127, 131 (S.D.N.Y. 1997) (Kaplan, D.J. & Peck, M.J.); Saunders v. Coughlin, 1994 WL 88108 at *2 (citing Hughes v. Rowe, 449 U.S. 5, 101 S. Ct. 173 (1980)).

5 Accord, e.g., Inesti v. Hicks, 2012 WL 2362626 at *6; Scherman v. N.Y.S. Banking Dep't, 2010 WL 997378 at *4; Joyner v. Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002) (action dismissed because pro se plaintiff "failed to allege facts tending to establish" that defendants violated his constitutional rights).

A. Legal Standards Governing § 1983 Eighth Amendment Deliberate Indifference To Prison Conditions Claims

To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S. Ct. 2749 (1994).

The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials and conduct that offends "evolving standards of decency." Hudson v. McMillian, 503 U.S. 1, 5, 8, 112 S. Ct. 995, 998, 1000 (1992).⁶

6 Accord, e.g., Hope v. Pelzer, 536 U.S. 730, 737-38, 122 S. Ct. 2508, 2514 (2002); Wilson v. Seiter, 501 U.S. 294, 297, 308, 111 S. Ct. 2321, 2323, 2329 (1991); Estelle v. Gamble, 429 U.S. 97, 102, 104-05, 97 S. Ct. 285, 290, 291 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925 (1976).

To establish an Eighth Amendment violation based on a claim that a prison official placed an inmate's health in danger because of prison conditions (such as exposure to toxic substances), the inmate must show that the prison official acted with "deliberate indifference" to "a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year." E.g., Helling v. McKinney, 509 U.S. 25, 33, 113 S. Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. at 104-05, 97 S. Ct. at 291.⁷ "It is undisputed that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling v. McKinney, 509 U.S. at 32, 113 S. Ct. at 2480.

7 See also, e.g., Manneci v. Pollard, 132 S. Ct. 617, 625 (2012); Fransua v. Vadlamudi, No. 05-1715, 2008 WL 4810066 at *1 (2d Cir. Nov. 3, 2008); Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006); Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003); Selby v. Coombe, 17 F. App'x. 36, 37 (2d Cir. 2001) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)).

As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).⁸ The objective test as it applies to exposure to toxic substances has been expressed as follows:

8 Accord, e.g., Cole v. Fischer, 416 F. App'x 111, 113 (2d Cir. 2011); Goris v. Breslin, 402 F. App'x 582, 584 (2d Cir. 2010); Fransua v. Vadlamudi, 2008 WL 4810066 at *1; Salahuddin v. Goord, 467 F.3d at 279-81; Smith v. Carpenter, 316 F.3d at 183; Selby v. Coombe, 17 F. App'x. at 37; Chance v. Armstrong, 143 F.3d at 702.

Under the objective element of the test, the measure of a "sufficiently serious" deprivation is "contextual and responsive to contemporary standards of decency." . . . "[F]or a claim . . . based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm." A prisoner need not show actual injury, as "the Eighth Amendment protects against sufficiently imminent dangers as well as current unnecessary and wanton infliction of pain and suffering." . . . [T]he Eighth Amendment inquiry in plaintiff's case focuses on the danger posed by the material itself - that is, whether the nature and levels of plaintiff's exposure to toxic or noxious substances was such as to pose
"an unreasonable risk" of serious damage to the health of any inmate exposed to it. This requires a fact-finder to assess

the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to [the toxin] . . . [and] whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.

Jackson v. Goord, 664 F. Supp. 2d 307, 316 (S.D.N.Y. 2009) (citations omitted).

The subjective test as applied to toxic exposure is as follows:

Under the subjective test, a prison official must act with "'deliberate indifference' to inmate health or safety." This means that "a prison official must know of and disregard an excessive risk to inmate health or safety; the official must . . . be aware of facts from which the inference could be drawn that substantial risk of serious harm exists, . . . draw the inference and fail to take reasonable measures to abate it." This element "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." Plaintiff need not show actual knowledge of the risk of harm, but rather can

present [ ] evidence showing that a substantial risk . . . was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it.

Jackson v. Goord, 664 F. Supp. 2d at 316-17 (citations omitted).

B. Application Of Standards To Smolen's Claims Against Fischer And Perez

1. The Eighth Amendment's Objective Requirement

Smolen claims that he was exposed to "toxic smoke" for at least fifteen minutes when a fire broke out around his cell, and that he tried to open his cell window but was unable because there was no knob or crank attached. (See pages 2-3 above). Due to toxic smoke from the fire, Smolen asserts that he sustained severe chest pain, breathing difficulty and post traumatic stress disorder. (See page 2 above.)

"[T]he Supreme Court has found that exposure to toxic and unsafe substances can constitute an unreasonable risk of serious danger to an inmate's health." Jackson v. Goord, 664 F. Supp. 2d 307, 322-23 (S.D.N.Y. 2009) (citing Helling v. McKinney, 509 U.S. 25, 33-34, 113 S. Ct. 2475, 2480-81); see also, e.g., Davis v. New York, 316 F.3d 93, 100-01 (2d Cir. 2002) (The plaintiff "further alleged that the smoke caused him to suffer dizziness, difficulty breathing, blackouts, and respiratory problems. These assertions are not mere conclusory allegations, but may be sufficient to create an issue of fact as to the level of smoke to which Davis was exposed and, thus, whether his Eighth Amendment rights were violated."); Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999) ("We hold that after Helling, it was clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate's exposure to levels of ETS [environmental tobacco smoke] that posed an unreasonable risk of future harm to the inmate's health."); LaBounty v. Coughlin, 137 F.3d 68, 72 (2d Cir. 1998) (upholding denial of defendants' summary judgment motion where prisoner "claim[ed] that he was exposed to friable asbestos while incarcerated . . . and defendants knowingly failed to protect him from such exposure" in violation of the Eighth Amendment.); Wright v. N.Y.S. Dep't of Corr. Servs., 06 Civ. 3400, 2008 WL 5055660 at *10 (S.D.N.Y. Oct. 10, 2008) ("Exposure to unsafe levels of toxic substances . . . may suffice as sufficiently dangerous conditions to satisfy the objective element of an Eighth Amendment claim."), report & rec. adopted, 2008 WL 5084193 (S.D.N.Y. Nov. 24, 2008), aff'd, 372 F. App'x 175 (2d Cir. 2010); Denis v. N.Y.S. Dep't of Corr. Servs., 05 Civ. 4495, 2006 WL 217926 at *18 (S.D.N.Y. Jan. 30, 2006) (Peck, M.J.) ("Here, as in Davis, [plaintiff] alleges that inmates smoked 'everyday' in the housing unit and bathrooms, and that the ETS [environmental tobacco smoke] exacerbated his chronic sinusitis and caused him constant pain. [Plaintiff], like Davis, satisfies the objective prong sufficient to preclude summary judgment for defendants." (citation omitted)), report & rec. adopted, 2006 WL 406313 (S.D.N.Y. Feb. 22, 2006).

Defendants claim that "[t]here is no allegation that the material and construction of the storm windows caused the fires or created a condition that posed a future risk to health and safety." (Dkt. No. 15: Fischer & Perez Br. at 5.) Smolen is not claiming that the storm windows caused the fire; he is claiming that the fire caused storm windows to burn and release toxic smoke and that he could not open the windows because no knobs were attached to his window. (See page 2 above.) If Smolen is able to prove these factual allegations, a reasonable jury could find that defendants' failure to replace Downstate's storm windows with safer windows, despite their knowledge of the hazard from these windows (see pages 2-3 above), constituted an unreasonable risk of harm to Smolen's health in violation of the Eighth Amendment, i.e., satisfied the objective prong.

2. The Eighth Amendment's Subjective Requirement

Smolen claims that: (1) defendants Fischer and Perez knew that the storm windows were made of poly-carbon and highly flammable (see page 3 above); (2) defendants knew of "the hazard of those [storm] windows . . . from previous fires" (see page 2 above); and (3) defendants knew that "most cell window knobs were missing making it impossible to open [the windows] in case of a fire" (Dkt. No. 2: Compl. at 2B). Smolen contends that any time a serious fire breaks out at Downstate, "a full report of any fires and their causes must be submitted to the Commissioner," i.e., Fischer, and that Supt. Perez "was required to file all reports of past fires - [including] potentially and dangerous existing conditions at Downstate." (See pages 2-3 above.)

Under the subjective test, defendants must be "'aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, . . . draw the inference and fail to take reasonable measures to abate it.'" Jackson v. Goord, 664 F. Supp. 2d 307, 316 (S.D.N.Y. 2009) (quoting Trammell v. Keane, 338 F.3d 155, 164 (2d Cir. 2003)). Claiming that defendants knew of the excessively risky conditions from previous fires, Smolen shows that "'a substantial risk . . . was longstanding . . . suggest[ing] that the [defendants] . . . had been exposed to information concerning the risk and thus must have known about it.'" Jackson v. Goord, 664 F. Supp. 2d at 317 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 114 S. Ct. 1970, 1981 (1994)).⁹ Smolen sufficiently pleads that defendants disregarded the excessively risky conditions because the storm windows were not replaced with safer windows between the time previous fires had broken out and the day of the fire at issue in this case.

9 See also, e.g., Bell v. Luna, No. 10CV8, --- F. Supp. 2d ----, 2012 WL 696218 at *8 (D. Conn. Mar. 1, 2012) (plaintiff met subjective prong regarding an unhygienic mattress after repeated complaints); Koehl v. Bernstein, 10 Civ. 3808, 2011 WL 2436817 at *15 (S.D.N.Y. June 17, 2011) (Plaintiff's "allegations are sufficient to allow the conclusion that [defendant] was aware of the risk [plaintiff] faced and that he deliberately disregarded this risk. . . . [Plaintiff] has stated a claim that his 60 day assignment by [defendant] to double bunk in a cell with 'chain smokers' constituted cruel and unusual punishment."), report & rec. adopted, 2011 WL 4390007 (S.D.N.Y. Sept. 21, 2011); D'Attore v. New York City, 10 Civ. 3102, 2011 WL 3629166 at *8 (S.D.N.Y. June 2, 2011) ("Plaintiff sufficiently pleads facts suggesting that defendants were aware that the inadequate conditions in the prison posed a substantial risk of serious harm to him, and disregarded that risk."), report & rec. adopted as modified on other grounds, 2011 WL 3629018 (S.D.N.Y. Aug. 17, 2011); Lyerly v. Phillips, 04 Civ. 3904, 2005 WL 1802972 at *5-6 (S.D.N.Y. July 29, 2005) (defendants' motion to dismiss denied where inmate asserts he was double-bunked with an inmate who smoked and he notified nurse that he had asthma).

Smolen's factual allegations, if proven at trial, would allow a reasonable fact-finder to conclude that defendants Fischer and Perez were "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, . . . and fail[ed] to take reasonable measures to abate it." See Jackson v. Goord, 664 F. Supp. 2d at 316 (quotation omitted).

Thus, Smolen has sufficiently pled facts supporting the objective and subjective prongs of the deliberate indifference standard.

C. Smolen Has Sufficiently Pled Fischer And Perez's Personal Involvement

"It is well settled in this Circuit that 'personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994); accord, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S. Ct. 1937, 1948 (2009) ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010); Warheit v. City of N.Y., 271 F. App'x 123, 126 (2d Cir. 2008); Dyno v. Vill. of Johnson City, 240 F. App'x 432, 434 (2d Cir. 2007), cert. denied, 552 U.S. 1310, 128 S. Ct. 1874 (2008).¹⁰

10 See, e.g., Farrell v. Burke, 449 F.3d 470, 484 (2d Cir. 2006); Gill v. Tuttle, 93 F. App'x 301, 302 (2d Cir. 2004); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003), cert. denied, 543 U.S. 1093, 125 S. Ct. 971 (2005); Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Robles v. Khahaifa, No. 09CV718, 2012 WL 2401574 at *8 (W.D.N.Y. June 25, 2012); Allan v. Woods, No. 05-CV-1280, 2008 WL 724240 at *5 (N.D.N.Y. Mar. 17, 2008) ("Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat superior is an inappropriate theory of liability."); Tafari v. Annets, 06 Civ. 11360, 2008 WL 2413995 at *10 (S.D.N.Y. June 12, 2008) (Peck, M.J.), report & rec. adopted, 2008 WL 4449372 (S.D.N.Y. Oct. 2, 2008), aff'd, 363 F. App'x 80 (2d Cir.), cert. denied, 130 S. Ct. 3475 (2010); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. & Peck, M.J.) ("In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.").

In 1995, the Second Circuit held that:

[t]he personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d at 873.¹¹ However, in 2009, the Supreme Court held that:

In a § 1983 suit . . . —where masters do not answer for the torts of their servants—the term "supervisory liability" is a misnomer. Absent vicarious liability, each Government official, his or her title not withstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome qualified immunity, purpose rather than knowledge is required to impose . . . liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.

Ashcroft v. Iqbal, 556 U.S. at 677, 129 S. Ct. at 1949. Although the Second Circuit has not weighed in on what remains of Colon after Iqbal, several decisions in this district have concluded that by specifically rejecting the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution," id., Iqbal effectively nullified several of the classifications of supervisory liability enunciated by the Second Circuit in Colon. See, e.g., Bellamy v. Mount Vernon Hosp., 07 Civ. 1801, 2009 WL 1835939 at *6 (S.D.N.Y. June 26, 2009) ("Only the first and part of the third Colon categories pass Iqbal's muster—a supervisor is only held liable if that supervisor participates directly in the alleged constitutional violation or if that supervisor creates a policy or custom under which unconstitutional practices occurred. The other Colon categories impose the exact types of supervisory liability that Iqbal eliminated—situations where the supervisor knew of and acquiesced to a constitutional violation committed by a subordinate."), aff'd, 387 F. App'x 55 (2d Cir. 2010).¹² While Colon permitted supervisory liability in situations where the supervisor knew of and acquiesced in a constitutional violation committed by a subordinate, these post-Iqbal district court decisions reason that Iqbal's "active conduct" standard imposes liability only where that supervisor directly participated in the alleged violation or had a hand in creating a policy or custom under which the unconstitutional practices occurred.

11 Accord, e.g., Ziemba v. Clark, 167 F. App'x 831, 833 (2d Cir. 2006); Samuels v. Selsky, 166 F. App'x 552, 556 (2d Cir. 2006); Patterson v. Cnty. of Oneida, 375 F.3d 206, 229 (2d Cir. 2004); Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d at 127; Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir. 2003); Hernandez v. Keane, 341 F.3d at 145; Wright v. Smith, 21 F.3d at 501; see also, e.g., Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).

12 See, e.g., James v. Orange Cnty. Corr. Facility, 09 Civ. 7226, 2011 WL 5834855 at *4 (S.D.N.Y. Nov. 18, 2011) ("There has been considerable division among the district courts of the Second Circuit as to whether Iqbal abrogates several factors of the Colon test and if so to what extent." (citing cases)); Joseph v. Fischer, 08 Civ. 2824, 2009 WL 3321011 at *14 (S.D.N.Y. Oct. 8, 2009) ("[U]nder Iqbal, . . . [a] defendant is not liable under section 1983 if the defendant's failure to act deprived the plaintiff of his or her constitutional right."); Newton v. City of N.Y., 640 F. Supp. 2d 426, 448 (S.D.N.Y. 2009) ("[P]assive failure to train claims pursuant to section 1983 have not survived the Supreme Court's recent decision in Ashcroft v. Iqbal.").

These decisions may overstate Iqbal's impact on supervisory liability. Iqbal involved allegations of intentional discrimination. Ashcroft v. Iqbal, 556 U.S. at 666, 129 S. Ct. at 1942. Where the alleged constitutional violation involved "invidious discrimination in contravention of the First and Fifth Amendments," Iqbal held that "plaintiff must plead and prove that the defendant acted with discriminatory purpose," whether the defendant is a subordinate or a supervisor. Id. at 676-77, 129 S. Ct. at 1948-49. It was with intent-based constitutional claims in mind, specifically racial discrimination, that the Supreme Court rejected the argument that "a supervisor's mere knowledge of his subordinate's discriminatory purpose amounts to the supervisor's violating the Constitution." Id. at 677, 129 S. Ct. at 1949. Where the constitutional claim does not require a showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth, Eighth or Fourteenth Amendments, the personal involvement analysis set forth in Colon may still apply.¹³

13 See, e.g., Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 at *11 (S.D.N.Y. June 22, 2012) (Peck, M.J.); Hodge v. Sidorowicz, 10 Civ. 0428, 2011 WL 6778524 at *16 (S.D.N.Y. Dec. 20, 2011), report & rec. adopted, 2012 WL 701150 (S.D.N.Y. Mar. 6, 2012) (Crotty, D.J.); Sash v. United States, 674 F. Supp. 2d 531, 544 (S.D.N.Y. 2009) (Peck, M.J.); see also, e.g., Chao v. Ballista, 630 F. Supp. 2d 170, 178 n.2 (D. Mass. July 1, 2009) (noting that the "state of mind required to make out a supervisory claim under the Eighth Amendment—i.e., deliberate indifference—requires less than the discriminatory purpose or intent that Iqbal was required to allege in his suit . . . ."); Michael Avery et al., Police Misconduct: Law & Litigation § 4:5 (2009) (discussing the impact of Iqbal on supervisor liability in § 1983 and Bivens actions); cf. Caiozzo v. Koreman, 581 F.3d 63, 66 (2d Cir. 2009) (the standard is the same for Eighth Amendment and Fourteenth Amendment deliberate indifference claims).

Smolen alleges that defendants Fischer and Perez knew about the unsafe prison windows. Specifically, Smolen contends that anytime a serious fire breaks out at Downstate, "a full report of any fires and their causes must be submitted to the Commissioner," i.e., Fischer. (See page 2 above.) Smolen also claims that Supt. Perez "was required to file all reports of past fires - [including] potentially and dangerous existing conditions." (See pages 2-3 above.) Since Smolen's claim does not require a showing of discriminatory intent, but instead relies on the deliberate indifference standards of the Eighth Amendment, the Colon factors apply in determining defendants' personal involvement. Inesti v. Hicks, 2012 WL 2362626 at *11 ("Where the constitutional claim does not require a showing of discriminatory intent, but instead relies on the unreasonable conduct or deliberate indifference standards of the Fourth, Eighth or Fourteenth Amendments, the personal involvement analysis set forth in Colon may still apply.").

Based on Smolen's allegations that Fischer and Perez had knowledge of "the hazard of [the storm] windows" and lack of "cell window knobs" from previous fires (see page 3 above), they could be found to be personally involved in the alleged violations under Colon's second factor (failure to remedy the wrong after being informed of the violation through a report or appeal) and fifth factor (exhibition of deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring). See, e.g., D'Attore v. New York City, 10 Civ. 3102, 2011 WL 3629166 at *10 (S.D.N.Y. June 2, 2011) ("Plaintiff's allegations that he wrote letters to defendants . . . evidence a possible failure by them to remedy a wrong after being informed through a report or appeal [i.e., Colon's second factor], and thus plaintiff sufficiently pleads that defendants disregarded a risk of excessive harm of which they were aware." (citation & quotations omitted)); Jackson v. Goord, 664 F. Supp. 2d 307, 324 (S.D.N.Y. 2009) ("Based on plaintiff's assertions that [defendant Superintendent] received complaints from [plaintiff] and from a number of other inmates and that [defendant] was aware of the harmful environmental conditions, [defendant] could be found to have been personally involved in the alleged violations under two of the Colon circumstances: (1) failure to remedy a wrong after being informed of the violation through a report or appeal, or (2) exhibition of deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." (citations omitted)).

Accordingly, assuming the truth of Smolen's factual allegations of personal involvement of Fischer and Perez, as the Court must in considering a motion to dismiss, Fischer and Perez's motion to dismiss Smolen's claims for lack of personal involvement should be DENIED.¹⁴ The Court notes, however, that Smolen's allegations regarding defendants' personal involvement are weak and Smolen might be subject to Rule 11 sanctions if he has no basis for his factual allegations. However, Smolen's complaint (supplemented by his opposition affidavit, see page 2 n.1 above), accepted as true, contains sufficient factual matter to survive a motion to dismiss and to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949 ("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.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."). It certainly is plausible that the prison Superintendent and the Commissioner would be notified about serious fires, and that one or both would be responsible for deciding whether to replace the windows. See, e.g., Denis v. N.Y.S. Dep't of Corr. Servs., 05 Civ. 4495, 2006 WL 217926 at *21 (S.D.N.Y. Jan. 30, 2006) (Peck, M.J.) (where Commissioner was alleged to be "responsible for the creation or continuance of" DOCS' "Smoke Free Policy," that "is sufficient personal involvement." And "if the problem is not with DOCS' Smoke Free Policy but rather the failure to adequately enforce it at the facility level, then the Superintendents would be liable.").

14 Fischer and Perez also have moved to dismiss on qualified immunity grounds. (Dkt. No. 15: Fischer & Perez Br. at 7-8.) They merely claim that since there is no Constitutional violation, they are entitled as a matter of law to qualified immunity. (Id.) The simple answer to this ground is that the Court has found that Smolen has sufficiently pled an Eighth Amendment violation.

III. SMOLEN'S EIGHTH AMENDMENT DELIBERATE INDIFFERENCE TO MEDICAL NEEDS CLAIM AGAINST NURSE NGUYEN SHOULD BE DISMISSED FOR FAILURE TO PLEAD FACTS SATISFYING THE SUBJECTIVE ELEMENT

A. Legal Standards Governing § 1983 Eighth Amendment Deliberate Indifference To Inmate's Medical Needs

As discussed above, to establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs. E.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 291 (1976).¹⁵

15 See also, e.g., Fransua v. Vadlamudi, No. 05-1715, 2008 WL 4810066 at *1 (2d Cir. Nov. 3, 2008); Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006); Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003); Selby v. Coombe, 17 F. App'x 36, 37 (2d Cir. 2001) (citing Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)); Robles v. Khahaifa, No. 09CV718, 2012 WL 2401574 at *6 (W.D.N.Y. June 25, 2012).

As stated above, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).¹⁶ "Objectively, the alleged deprivation must be 'sufficiently serious'. . . ." Id. at 553; Smith v. Carpenter, 316 F.3d at 183-84 ("The objective 'medical need' element measures the severity of the alleged deprivation . . . .").¹⁷ "'The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves . . . .'" Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). "[O]nly those deprivations denying 'the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324 (1991) (citation omitted); see also, e.g., Dean v. Coughlin, 804 F.2d at 215 ("'[T]he essential test is one of medical necessity and not one simply of desirability.'"). Thus, the constitutional protection is limited to "'a condition of urgency' that may result in 'degeneration' or 'extreme pain.'" Chance v. Armstrong, 143 F.3d at 702;¹⁸ accord, e.g., Fransua v. Vadlamudi, 2008 WL 4810066 at *1; Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) ("A serious medical condition exists where 'the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'"); Robles v. Khahaifa, 2012 WL 2401574 at *6.

16 Accord, e.g., Cole v. Fischer, 416 F. App'x 111, 113 (2d Cir. 2011); Goris v. Breslin, 402 F. App'x 582, 584 (2d Cir. 2010); Fransua v. Vadlamudi, 2008 WL 4810066 at *1; Salahuddin v. Goord, 467 F.3d at 279-81; Smith v. Carpenter, 316 F.3d at 183-84; Selby v. Coombe, 17 F. App'x. at 37; Chance v. Armstrong, 143 F.3d at 702.

17 See also, e.g., Fransua v. Vadlamudi, 2008 WL 4810066 at *1; Salahuddin v. Goord, 467 F.3d at 279-81; Selby v. Coombe, 17 F. App'x at 37; Chance v. Armstrong, 143 F.3d at 702; Robles v. Khahaifa, 2012 WL 2401574 at *6.

18 The Second Circuit in Chance v. Armstrong identified several factors that are relevant in determining whether a serious medical condition exists, including "'[t]he 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.'" 143 F.3d at 702.

The Second Circuit has stated that determining whether a deprivation of medical care is objectively serious entails two inquiries:

Determining whether a deprivation is an objectively serious deprivation entails two inquiries. The first inquiry is whether the prisoner was actually deprived of adequate medical care. As the Supreme Court has noted, the prison official's duty is only to provide reasonable care. Thus, "prison officials who act reasonably [in response to
an inmate health risk] cannot be found liable . . ." and, conversely, failing "to take reasonable measures" in response to a medical condition can lead to liability.

Second, the objective test asks whether the inadequacy in medical care is sufficiently serious. This inquiry requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner. For example, if the unreasonable medical care is a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's medical condition is sufficiently serious. Factors relevant to the seriousness of a medical condition include whether "a reasonable doctor or patient would find [it] important and worthy of comment," whether the condition "significantly affects an individual's daily activities," and whether it causes "chronic and substantial pain." In cases where the inadequacy is in the medical treatment given, the seriousness inquiry is narrower. For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry "focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone." Thus, although we sometimes speak of a "serious medical condition" as the basis for [such a] claim, such a condition is only one factor in determining whether a deprivation of adequate medical care is sufficiently grave to establish constitutional liability.

Salahuddin v. Goord, 467 F.3d at 279-80 (citations omitted, emphasis added).

Where the plaintiff alleges delay or interruption in treatment rather than failure to receive treatment, "the serious medical need inquiry can properly take into account the severity of the temporary deprivation alleged by the prisoner." Smith v. Carpenter, 316 F.3d at 186. "[I]t'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 [these] purposes." Id. (citing Chance v. Armstrong, 143 F.3d at 702-03). "The absence of adverse medical effects or demonstrable physical injury is one . . . factor that may be used to gauge the severity of the medical need at issue. Indeed, in most cases the actual medical consequences that flow from the alleged denial of care will be highly relevant to the question of whether the denial of treatment subjected the prisoner to a significant risk of serious harm." Smith v. Carpenter, 316 F.3d at 187 (citations omitted).

"Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553.¹⁹ "The required state of mind, equivalent to criminal recklessness, is that the 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." Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quotations omitted, quoting Hathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994))).²⁰

19 Accord, e.g., Fransua v. Vadlamudi, 2008 WL 4810066 at *1; Salahuddin v. Goord, 467 F.3d at 280-81; Smith v. Carpenter, 316 F.3d at 184 ("[T]he subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind."); Selby v. Coombe, 17 F. App'x at 37; Chance v. Armstrong, 143 F.3d at 702.

20 See also, e.g., Mayo v. Cnty. of Albany, 357 F. App'x 339, 341 (2d Cir. 2009) ("A plaintiff bringing a deliberate indifference claim must therefore demonstrate that the defendant deliberately disregarded knowledge of the harm he knew he could cause as a result of his actions."); Ross v. Westchester Cnty. Jail, 10 Civ. 3937, 2012 WL 86467 at *5 (S.D.N.Y. Jan. 11, 2012) ("Deliberate indifference is a mental state akin to 'recklessness,' and is measured using a 'subjective test' that discerns whether the defendant was 'actually aware of an excessive risk to an inmate's health or safety,' and therefore 'act[ed] with a sufficiently culpable state of mind.'" (citation omitted)); Mercado v. City of N.Y., 08 Civ. 2855, 2011 WL 6057839 at *4 (S.D.N.Y. Dec. 5, 2011).

Deliberate indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison [officials or] guards in intentionally denying or delaying access to medical care." Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S. Ct. 285, 291 (1976) (fn. omitted). However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v. Gamble, 429 U.S. at 105-06, 97 S. Ct. at 292; accord, e.g., Burton v. N.Y.S. Dep't of Corr. , 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. Mar. 21, 1994) (Sotomayor, D.J.). "Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . ." Estelle v. Gamble, 429 U.S. at 106, 97 S. Ct. at 292.²¹ As the Supreme Court has stated, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106, 97 S. Ct. at 292; accord, e.g., Smith v. Carpenter, 316 F.3d at 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation."); Hathaway v. Coughlin, 99 F.3d at 553; Burton v. N.Y.S. Dep't of Corr., 1994 WL 97164 at *2.

21 Accord, e.g., Salahuddin v. Goord, 467 F.3d at 280; Hathaway v. Coughlin, 99 F.3d at 553; Felipe v. N.Y.S. Dep't of Corr. Servs., No. 95-CV-1735, 1998 WL 178803 at *3 (N.D.N.Y. Apr. 10, 1998) (Pooler, D.J.).

B. Application Of The Legal Standard To Smolen's Claim Against Nurse Nguyen

Smolen claims that Nurse Nguyen did not adequately treat him by failing to (1) send Smolen to "an outside hospital for a full medical evaluation and treatment - by a medical doctor and inhalation specialist" and (2) "order any tests at the time of the incident and failed to recommend any follow up tests and medical treatment." (See page 3 above.)

Smolen, in his opposition to Nurse Nguyen's motion, concedes that Nurse Nguyen placed Smolen in the prison infirmary for observation. (Smolen Opp. Aff. to Nguyen Motion ¶ 14 & Ex.: Unusual Incident Report (Smolen "complained of tightness in his chest and possible smoke inhalation; he was kept in the facility infirmary for observation.").) Smolen notes that two of the Correction Officers who also were exposed to the smoke were taken to the hospital (Smolen Opp. Aff. to Nguyen Motion ¶ 4), but the third officer remained on duty (Unusual Incident Report). In any event, there is no evidence that Nguyen was the medical staff who sent the two officers to the hospital, but even if he was, that is not sufficient to establish that Nguyen was deliberately indifferent in the way he treated Smolen.

Accepting Smolen's allegations as true for purposes of this motion, nevertheless they do not indicate that Nguyen "act[ed] or fail[ed] to act while actually aware of a substantial risk that serious inmate harm will result." See Fransua v. Vadlamudi, No. 05-1715, 2008 WL 4810066 at *1 (2d Cir. Nov. 3, 2008); see also, e.g., Byng v. Wright, 09 Civ. 9924, 2012 WL 967430 at *11 (S.D.N.Y. Mar. 20, 2012) ("Even had [the defendant doctor] mistakenly represented [plaintiff's] medical data [to another defendant doctor], this error alone would not carry [plaintiff's] burden of coming forward with evidence of a culpable state of mind. Mere negligence is insufficient to satisfy the subjective prong of the deliberate indifference standard."); Pooler v. Nassau Univ. Med. Ctr., No. 10-CV-119, --- F. Supp. 2d ----, 2012 WL 975048 at *14 (E.D.N.Y. Mar. 23, 2012) (Defendant "found that plaintiff was neither depressed nor suicidal, and concluded that he was not in need of medication. [Defendant] offered plaintiff mental health services and counseling . . . . [Defendant's] actions under these circumstances . . . do not rise to the level of deliberate medical indifference as a matter of law."); Robles v. Khahaifa, No. 09CV718, 2012 WL 2401574 at *8 (W.D.N.Y. June 25, 2012) ("As for subjective element, plaintiff has not suggested that defendants wantonly wished to cause him to suffer or lay out that defendants had the sufficiently culpable state of mind to establish this element.").

Thus, accepting Smolen's version of events as true and drawing all reasonable inferences in his favor, no reasonable fact-finder could conclude that Nguyen acted with deliberate indifference to Smolen's medical needs. Nguyen's motion to dismiss should be GRANTED.²²

22 Because Smolen's claims do not satisfy the subjective prong for deliberate indifference, there is no need to discuss whether Smolen's claims fulfill the objective requirement. The Court also need not address Nguyen's qualified immunity defense. See, e.g., Goris v. Breslin, 402 F. App'x 582, 584 (2d Cir. 2010) (Court need not reach subjective prong where plaintiff failed to satisfy the objective prong); Robles v. Khahaifa, 2012 WL 2401574 at *9 ("Given that no constitutional violation was found, this Court need not address defendants' alternative contention that they deserve qualified immunity for their actions."); see also Silvera v. Dep't of Corr., No. 09-CV-1398, 2012 WL 877219 at *14 (D. Conn. Mar. 14, 2012) ("Where the Court finds that no constitutional violation has occurred, the Court need not address the issue of qualified immunity.").

CONCLUSION

For the reasons stated above, Fischer and Perez's motion to dismiss (Dkt. No. 14: Fischer & Perez Notice of Motion) should be DENIED and Nguyen's motion to dismiss (Dkt. No. 27: Nguyen Notice of Motion) should be GRANTED.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6.²³ Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty, 500 Pearl Street, Room 735, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Crotty (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993). cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York

23 If the pro se plaintiff requires copies of any of the cases reported only in Westlaw, plaintiff should request copies from defense counsel. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009); SDNY-EDNY Local Civil Rule 7.2.

August 23, 2012

Respectfully submitted,

/s/_________

Andrew J. Peck

United States Magistrate Judge Copies by ECF to: Samuel J. Smolen, Jr. (Mail)

Julia H. Lee, Esq.

Judge Paul A, Crotty