Sharma v. D'Silva et al
Filing
46
OPINION & ORDER re: 41 MOTION to Dismiss filed by Gage, A. Jacobson, R. Willim, Anthony Annucci, Britta Viereckl-Prast, Phillip Heath, Michael Capra, Maryann Genovese, William S. Dawson, Brian Fischer. For the foregoing reas ons, Defendants' motion to dismiss is GRANTED with respect to Plaintiff's claims against Defendant Dawson, Defendant Viereckl-Prast, Defendant Annucci, Defendant Fischer, Defendant Capra, Defendant Heath, Defendant Genovese, and Defendant G age and DENIED with respect to Plaintiff's claims against Defendant Willim and Defendant Jacobson. Defendants Willim and Jacobson are directed to file an answer within 30 days hereof. The parties are directed to appear for an initial pre-trial conference on March 24, 2016 at 10:45 am. Defendants are directed to appear in person. Defendants' counsel shall make arrangements with the appropriate correctional facility for Plaintiff to appear via telephone conference. Parties are further directed to submit a completed case management plan. The Court respectfully directs the Clerk to terminate the motion at ECF No. 41. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 1/25/2016) Copies Mailed By Chambers. (mml)
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Plaintiff fractured his jaw in two different places while playing basketball at Sing Sing. (Compl.
¶ 1.) Plaintiff was sent to Westchester County Hospital for surgery, where doctors wired his
mouth shut and placed a plate in his chin. (Id. ¶¶ 2–3.) After the wires were removed, Plaintiff’s
bite felt awkward, and he made numerous complaints to his assigned dentist, Defendant Doctor
Reinhard Willim (“Defendant Willim”). (Id. ¶¶ 5–6.) Defendant Willim grinded a lower tooth
in 2003 and two more front teeth in 2011. (Id. ¶ 7.) After the grinding, Plaintiff still experienced
pain in his jaw and his bite felt tilted on the left side. (Id. ¶ 8.)
Beginning in 2011, Plaintiff experienced severe headaches due to the awkwardness of his
bite. (Id. ¶ 10.) Plaintiff complained to Defendant Willim, and Defendant Willim grinded two
teeth on the right side of Plaintiff’s mouth to even out Plaintiff’s bite. (Id. ¶¶ 11–12.) On or
about December 12, 2011, Plaintiff complained to Defendant Willim that the grinding of
Plaintiff’s teeth on the right side of his mouth made his tongue feel out of place. (Id. ¶ 13.)
Defendant Willim suggested that two teeth be extracted to correct the bite, and the extraction was
performed on or about December 14, 2011 at Westchester Medical Center. (Id. ¶ 14.)
On February 2, 2012, Plaintiff was informed by Defendant Willim that he was no longer
Plaintiff’s assigned dentist and that Plaintiff’s dental care had been transferred to Defendant
Doctor Allan Jacobson (“Defendant Jacobson”). (Id. ¶ 17.) Plaintiff explained Defendant
Willim’s prior treatment of his jaw issues to Defendant Jacobson. (Id. ¶ 18.) Defendant
Jacobson recommended that Plaintiff needed braces but explained that the State of New York
would not provide them due to the expense. (Id. ¶ 19.) Though Plaintiff consented to Defendant
Jacobson grinding only two of his teeth, Defendant Jacobson instead ground 12 of Plaintiff’s
teeth. (Id. ¶¶ 20–21.) Defendant Jacobson shaved off a substantial part or virtually all of those
12 teeth, (id. ¶ 22) which created the following new problems for Plaintiff: his bite became more
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misaligned; his front upper teeth bang into his lower front teeth; he has more difficulty eating
and speaking; a back tooth cracked due to greater pressure placed on it from the upper teeth; his
tongue feels out of place; he developed chronic inflammation of his tonsils and enlargement of
the adenoids; his jaw muscles are tense; and he suffers from severe insomnia. (Id. ¶ 25.)
On February 8, 2012, Defendant Willim took impressions of Plaintiff’s teeth to fit
Plaintiff for a mouth guard. (Id. ¶ 26.) Plaintiff contends that Defendant Willim agreed that
Defendant Jacobson ground too many of Plaintiff’s teeth. (Id. ¶ 27.) Defendant Willim advised
Plaintiff that he required reconstructive surgery and braces, which would cost between $20,000
and $25,000; however, DOCCS would provide neither surgery nor braces due to budgetary
concerns. (Id. ¶ 28.) Defendant Willim further advised Plaintiff that he needed to seek treatment
in an outside clinic. (Id. ¶ 29.) On March 1, 2012, Defendant Willim told Plaintiff that he could
not do “anything” further to assist him with his treatment. (Id. ¶ 30.)
On September 20 and September 25, 2012, Defendant Willim encouraged Plaintiff to stay
strong. (Id. ¶ 31.) On December 28, 2012, Defendant Willim informed Plaintiff that he would
speak with Defendant Jacobson and Plaintiff’s prison physician about Plaintiff’s symptoms and
discuss the possibility of sending Plaintiff to an outside facility for treatment. (Id. ¶ 32.) On
March 4, 2013, Plaintiff was seen by Defendant Doctor William Dawson, statewide assistant
director of dental services (“Defendant Dawson”) and Defendant Doctor Britta Viereckl-Prast,
regional dental director of DOCCS (“Defendant Viereckl-Prast”), who referred Plaintiff to an
oral surgeon. (Id. ¶ 33.) Plaintiff was seen by an oral surgeon, Dr. Moore, on April 9, 2013,
who ordered an MRI of Plaintiff’s mouth. (Id. ¶ 34.) Based upon the results of the MRI, Dr.
Moore referred Plaintiff to be seen by a prosthodontist. (Id. ¶ 36.) On August 8, 2013,
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Defendant Jacobson notified Plaintiff that his approval to be seen by a prosthodontist was still
pending. (Id. ¶ 38.)
On March 11, 2013, Dr. Alam of Sing Sing approved Plaintiff to be examined by an ear,
nose, and throat specialist in connection with his inflamed tonsils and adenoids hypertrophy. (Id.
¶¶ 44–45.) Plaintiff was examined by Dr. Hemmerdinger, an ear, nose, and throat specialist,
who advised Plaintiff he had tongue congestion and referred Plaintiff to an oral surgeon. (Id. ¶
46.) On October 16, 2013, Plaintiff was seen by Defendant D’Silva, who informed Plaintiff he
would not be seen by a prosthodontist and requested that Plaintiff ask his family members to
cease writing to her and other DOCCS officials in Albany. (Id. ¶ 40.) On January 31, 2014,
Defendant Jacobson told Plaintiff that he could only give him pain killers. (Id. ¶ 48.) On March
18, 2014, Plaintiff was seen by a gastro-intestinal specialist who confirmed that Plaintiff’s
adenoids were enlarged and referred Plaintiff to an ear, nose, and throat specialist as well as the
dental department. (Id. ¶ 50.) Despite this referral, Defendant Jacobson in the dental department
informed Plaintiff that he could not do anything for him. (Id. ¶ 51.) On May 19, 2014, Plaintiff
again was examined by Dr. Hemmerdinger, who advised Plaintiff his tonsils were inflamed and
that he should be seen by a prosthodontist and oral surgeon for reconstructive surgery. (Id. ¶ 52.)
Plaintiff lodged various complaints to prison officials regarding his pain, symptoms, and
treatment by Defendant Jacobson. On September 11, 2013, Plaintiff complained to Defendant
Michael Capra, Superintendent of Sing Sing (“Defendant Capra”), who informed Plaintiff that he
would speak with Defendant Dana Gage, medical doctor at Sing Sing (“Defendant Gage”). (Id. ¶
54.) Plaintiff complained verbally to Defendant Phillip Heath, former Superintendent of Sing
Sing (“Defendant Heath”) on February 23, 2012; Dr. Alam on more than 20 occasions; Dr.
Ezikel on October 26, 2012; and Defendant Willim on 15 occasions about medical and dental
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problems stemming from Defendant Jacobson. (Id. ¶ 55.) Plaintiff complained in writing to
Defendant Heath; Defendant Brian Fischer, former commissioner of DOCCS (“Defendant
Fischer”); Defendant Anthony Annucci, Commissioner of DOCCS (“Defendant Annucci”);
Defendant D’Silva; the Dental Department of DOCCS; Defendants Viereckl-Prast and Dawson;
Defendant Koenigsmann; Defendant Maryann Genovese, medical doctor formerly employed at
Sing Sing (“Defendant Genovese”); Dr. Alam; Defendant Gage; and Defendant Capra. (Id. ¶
56.) Additionally, on March 28, 2012, the Legal Aid Society of New York wrote to Defendant
Heath requesting that Plaintiff be examined by a dentist familiar with Plaintiff’s condition. (Id. ¶
57.) On June 18, 2012, the Legal Aid Society wrote to Acting Superintendent Keyser on
Plaintiff’s behalf requesting that Plaintiff be seen by a specialist. (Id. ¶ 58.) On October 11,
2012 and November 29, 2012 New York State Senator Tony Avella wrote to Defendant Fischer
on Plaintiff’s behalf regarding Defendant Willim’s recommendation that Plaintiff be examined
by a specialist. (Id. ¶ 59.) Senator Avella also wrote to Defendant Annucci on July 31, 2013 on
Plaintiff’s behalf. (Id. ¶ 60.) Plaintiff’s parents and wife wrote to Defendants, (id. ¶ 61) and
Plaintiff submitted formal grievances to the Inmate Grievance Resolution Committee at Sing
Sing. (Id. ¶ 62.) Plaintiff also reported to sick call on numerous occasions, (id. ¶ 63.) and the
emergency room on at least four occasions. (Id. ¶ 64.)
In response, Defendant Heath wrote to Plaintiff that the dental staff addressed Plaintiff’s
concerns by requesting a night guard for him to wear. (Id. ¶ 67.) Defendant Capra informed
Plaintiff in writing that he forwarded Plaintiff’s letters to Defendant Gage. (Id. ¶ 68.) Neither
Defendant Gage nor Defendant Genovese did anything to ensure Plaintiff was seen by a
prosthodontist. (Id. ¶ 69.) Defendants Dawson and Viereckl-Prast did not respond to Plaintiff’s
letters or facilitate the specialty treatment recommended by Dr. Moore. (Id. ¶ 70.) Defendant
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Jacobson did not assist Plaintiff in being examined by a prosthodontist, nor did Defendant
Willim. (Id. ¶¶ 71–72.) Defendant Koenigsmann responded to Plaintiff’s dental issues in short
letters containing purportedly false statements. (Id. ¶ 73.) Defendant D’Silva denied, without
justification, the referral of Plaintiff to a prosthodontist. (Id. ¶ 84.) Defendant Fischer responded
to Senator Avella’s letter notifying the Senator that Plaintiff received medication for his chronic
pain, and Defendant Annucci confirmed in a letter to Senator Avella that Plaintiff was referred to
a prosthodontist but Defendant D’Silva did not or would not approval the referral. (Id. ¶¶ 86–
87.) To date, the only treatment Plaintiff has received for his condition is a night guard. (Id. ¶
88.)
STANDARD ON A MOTION TO DISMISS
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 566
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “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.” Iqbal, 566
U.S. at 678. Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Starr v. Sony BMG Music Entm’t, 592 F.3d 314, 321 (2d Cir.
2010). A court should accept non-conclusory allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor. Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir.
2008). “[T]he duty of a court ‘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.’” DiFolco v.
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MSNBC Cable L.L.C., 622 F.3d 104, 113 (2d Cir. 2010) (quoting Cooper v. Parsky, 140 F.3d
433, 440 (2d Cir. 1998)).
“Pro se complaints are held to less stringent standards than those drafted by lawyers,
even following Twombly and Iqbal.” Thomas v. Westchester, No. 12–CV–6718 (CS), 2013 WL
3357171 (S.D.N.Y. July 3, 2013); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The
court should read pro se complaints “to raise the strongest arguments that they suggest.” Pabon
v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). Even so, “pro se plaintiffs . . . cannot withstand a
motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to
relief above the speculative level.” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d 218, 224
(S.D.N.Y. 2010) (internal quotation marks omitted). Dismissal is justified where “the complaint
lacks an allegation regarding an element necessary to obtain relief,” and the “duty to liberally
construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.” Geldzahler v. N.Y.
Med. Coll., 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and alterations
omitted).
DISCUSSION
Plaintiff’s present cause of action pursuant to 42 U.S.C. § 1983 relates to Defendants’
alleged failure to properly treat Plaintiff’s dental condition beginning in February 2012 during
his incarceration at Sing Sing. The Cruel and Unusual Punishments clause of the Eighth
Amendment forms the basis of a convicted prisoner’s claim that he or she is not being provided
adequate medical care. Est v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (citing Weyant v. Okst,
101 F.3d 845, 856 (2d Cir. 1996)). An Eighth Amendment claim of inadequate medical care
requires a demonstration of “deliberate indifference to [a prisoner's] serious medical needs.”
Estelle v. Gamble, 429 U.S. 97, 104 (1976).
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To sustain a claim of deliberate indifference, a plaintiff must allege that (1) objectively,
the deprivation of adequate medical care was sufficiently serious, and (2) subjectively,
defendants acted with deliberate indifference. See Farmer v. Brennan, 511 U.S. 825, 834
(1994); Salahuddin v. Goord, 467 F.3d 263, 279–81 (2d Cir. 2006). “The objective component
requires that ‘the alleged deprivation must be sufficiently serious, in the sense that a condition of
urgency, one that may produce death, degeneration, or extreme pain exists.’” Hill v. Curcione,
657 F.3d 116, 122 (2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996)) (internal quotation marks omitted). 3 For the subjective prong, the official charged with
deliberate indifference must act with a “sufficiently culpable state of mind.” See Wilson v.
Seiter, 501 U.S. 294, 298 (1991). A prison official may only be found liable if “the official
knows of and disregards an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
“Medical malpractice does not rise to the level of a constitutional violation unless the
malpractice involves culpable recklessness—‘an act or a failure to act by [a] prison doctor that
evinces a conscious disregard of a substantial risk of serious harm.’” Hill, 657 F.3d at 123
(quoting Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)) (internal quotation marks
omitted). See also Hathaway, 99 F.3d at 553 (observing that “negligent malpractice do[es] not
state a claim of deliberate indifference”). “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.” Smith v. Carpenter, 316 F.3d
178, 184 (2d Cir. 2003). Finally, “[b]ecause Section 1983 imposes liability only upon those who
actually cause a deprivation of rights, personal involvement of defendants in alleged
3
For the limited purpose of their motion, Defendants concede that Plaintiff’s dental condition constitutes a serious
medical condition (objective prong). (Defs.’ Mot. at 7.)
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constitutional deprivations is a prerequisite to an award of damages under § 1983.” Blyden v.
Mancusi, 186 F.3d 252, 264 (2d Cir. 1999) (citation and internal quotation marks omitted).
As to each defendant, therefore, Plaintiff is required to allege personal involvement in the
actions demonstrating deliberate indifference to his dental needs. Defendants contend that
Plaintiff’s allegations with respect to Defendants Willim, Jacobson, Dawson, and Viereckl-Prast
demonstrate that they actively treated his medical issues and, at best, amount to state claims for
dental malpractice. (Defs.’ Mot. at 1-2.) As for Defendants Annucci, Fischer, Capra, Heath,
Genovese, and Gage, Defendants argue that Plaintiff fails to allege sufficient personal
involvement to state § 1983 claims. (Id. at 2.) For the following reasons, Plaintiff’s allegations
of deliberate indifference are sufficient with respect to Defendant Willim and Defendant
Jacobson and insufficient with respect to Defendant Dawson, Defendant Viereckl-Prast,
Defendant Annucci, Defendant Fischer, Defendant Capra, Defendant Heath, Defendant
Genovese, and Defendant Gage.
I.
Claims Against Defendants Willim, Jacobson, Dawson, and Viereckl-Prast
A. Defendant Willim
Plaintiff’s allegations with respect to Defendant Willim appear to center on Defendant
Willim’s alleged failure to ensure Plaintiff was examined by a specialist (prosthodontist) after
examining Plaintiff on several occasions and discussing Plaintiff’s condition with him.
(Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Pl.’s Opp.”) at 3.) The
Complaint alleges that Defendant Willim, in response to Plaintiff’s complaints that his bite felt
awkward, ground two of Plaintiff’s teeth. (Compl. ¶¶ 5–7.) Defendant Willim ground two more
of Plaintiff’s teeth in 2011 when Plaintiff informed Defendant Willim that he was experiencing
severe headaches. (Id. ¶¶ 10–12.) Defendant Willim then referred Plaintiff to Westchester
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Medical Center to have two teeth extracted. (Id. ¶ 14.) Though Defendant Willim ceased being
Plaintiff’s assigned dentist on February 2, 2012 (id. ¶ 17), he examined Plaintiff a few days later
and advised him that he required reconstructive surgery and braces, neither of which would be
provided for by the DOCCS. (Id. ¶ 28.) Plaintiff additionally alleges that Defendant Willim told
Plaintiff that he agreed Defendant Jacobson ground Plaintiff’s teeth improperly. (Id. ¶¶ 27–28.)
Defendant Willim notified Plaintiff that he would need to seek treatment through an outside
clinic (id. ¶ 29) and informed Plaintiff that he would speak to Defendant Jacobson and Plaintiff’s
prison physician about sending Plaintiff to an outside facility. (Id. ¶ 32.)
Construing the facts in the light most favorable to Plaintiff, as is required by the Court at
this juncture, it appears Defendant Willim was aware that Plaintiff faced a substantial risk of
harm absent reconstructive surgery, but “he disregarded that risk recklessly when he failed to
make an appointment for [Plaintiff] to see a specialist.” Ciaprazi v. Jacobson, No. 13-cv-4183
(PAC) (KNF), 2014 WL 2751023, at *11 (S.D.N.Y. June 17, 2014) report and recommendation
adopted as modified, No. 13-cv-4813 (PAC) (KNF), 2014 WL 5050591 (S.D.N.Y. Sept. 23,
2014), leave to appeal denied (Jan. 8, 2015). 4 In any event, even if the Court were to conclude
that Defendant Willim’s promise to speak with Defendant Jacobson and Plaintiff’s prison
physician about sending Plaintiff to an outside facility constituted a referral, it nevertheless
appears that Defendant Willim may have acted with deliberate indifference in treating Plaintiff.
In Hathaway v. Coughlin, the Second Circuit declined to adopt a rule that a general practitioner
need only refer a patient to a specialist to avoid liability for deliberate indifference. 37 F.3d at
68. There, the court reasoned that the general practitioner “personally saw and treated [the
4
Defendants argue that Plaintiff fails to allege that Defendant Willim had authority to approve Plaintiff’s treatment
by a specialist. (Defs.’ Mot. at 7.) Defendants cite no case law in support of the proposition that a plaintiff must
explicitly allege a doctor has authority to approve a referral, and the Court declines to adopt such a high bar to
pleading a claim for deliberate indifference to medical needs, particularly for a pro se plaintiff.
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patient] on the majority of the numerous occasions on which [the patient] complained about pain.
As such, [the doctor] was the official most familiar with [the patient’s] condition, even as a
general practitioner.” Id. While the Second Circuit noted that the doctor’s arguments regarding
his status as a general practitioner may ultimately persuade a jury that he did not violate the
plaintiff’s Eighth Amendment rights, the court held that such a determination was properly left
for the jury. Here too, the Court finds that whether Defendant Willim—Plaintiff’s assigned
dentist who examined him on numerous occasions and was aware of Plaintiff’s severe pain—
acted with deliberate indifference towards Plaintiff cannot be resolved at this stage of the
litigation. Plaintiff has alleged sufficiently a claim of deliberate indifference as against
Defendant Willim to survive the Defendants’ motion to dismiss.
B. Defendant Jacobson
Plaintiff alleges that Defendant Jacobson shaved off a substantial part or virtually all of
12 of Plaintiff’s teeth, despite the fact that Plaintiff consented to the shaving of only 2 teeth.
(Compl. ¶¶ 20–22.) The Complaint further states that the shaving aggravated certain preexisting
conditions as well as created new medical issues for Plaintiff. (Id. ¶ 25.) Defendants contend,
on the other hand, that Plaintiff’s claim against Defendant Jacobson amounts to nothing more
than a disagreement over the nature of his treatment, which is at best a claim for dental
malpractice. (Defs.’ Mot. at 8.) 5
“Whether a course of treatment was the product of sound medical judgment, negligence,
or deliberate indifference depends on the facts of the case.” Chance, 143 F.3d at 703. “While
‘mere medical malpractice’ is not tantamount to deliberate indifference, certain instances of
5
In his opposition brief, Plaintiff asserts that this is not a case of mere disagreement over medical treatment. (Pl.’s
Opp. at 10.) As Plaintiff astutely points out, based upon the facts alleged in the Complaint, there was an agreement
between Plaintiff and medical personnel as to the proper course of treatment—examination by a prosthodontist.
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medical malpractice may rise to the level of deliberate indifference; namely, when the
malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that
evinces ‘a conscious disregard of a substantial risk of serious harm.’” Hathaway, 99 F.3d at 553
(quoting Farmer, 511 U.S. at ––––, 114 S.Ct. at 1980.). In the present action, Plaintiff alleges
that Defendant Willim confirmed Plaintiff’s belief that Defendant Jacobson over-shaved
Plaintiff’s teeth. (Compl. ¶ 27.) One dentist’s medical opinion that another dentist’s course of
treatment aggravated, rather than alleviated, a patient’s medical condition certainly tends to
support a finding of deliberate indifference. See Hemmings v. Gorczyk, 134 F.3d 104, 109 (2d
Cir. 1998) (holding that plaintiff could prove requisite culpable state of mind to allege deliberate
indifference claim by pointing to the fact that nurse “aggravated his condition by allegedly taking
away one of his crutches”); Shepherd v. Fischer, No. 9:10-cv-1524 (TJM) (DEP), 2015 WL
1246049, at *10 (N.D.N.Y. Feb. 23, 2015) report and recommendation adopted, No. 9:10-cv1524, 2015 WL 1275298 (N.D.N.Y. Mar. 18, 2015) (holding that defendants “did aggravate
plaintiff’s medical conditions” and “were deliberately indifferent to plaintiff’s medical needs”).
Though further development of the factual record may reveal that Defendant Jacobson’s
treatment of Plaintiff was in fact the product of sound medical judgment, the Court finds that at
this time Plaintiff has adequately stated a cause of action as against Defendant Jacobson.
C. Defendants Dawson and Viereckl-Prast
Plaintiff’s allegations against Defendants Dawson and Viereckl-Prast consist of the
following: (1) On May 4, 2013, they examined Plaintiff and referred him to an oral surgeon; (2)
they received letters from Plaintiff concerning Defendant Jacobson’s treatment and failed to
respond; and (3) they failed to facilitate specialty treatment recommended by Dr. Moore. The
alleged failure to respond to Plaintiff’s letters does not give rise to liability under § 1983. See
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Rivera v. Goord, 119 F. Supp. 2d 327, 344 (S.D.N.Y. 2000) (collecting cases). Therefore, the
question for the Court is whether Defendants’ failure to facilitate treatment by a second specialist
after referring Plaintiff to an initial specialist constitutes deliberate indifference. Unlike
Defendant Willim and Defendant Jacobson, whom Plaintiff alleges never formally referred
Plaintiff to a prosthodontist, Defendant Dawson and Defendant Viereckl-Prast referred Plaintiff
to an oral surgeon after examining him. “Referr[al] for specialist care” constitutes an
“appropriate treatment action[].” Harrington v. Mid-State Corr. Facility, No. 09-cv-85 (TJM)
(DRH), 2010 WL 3522520, at *11 (N.D.N.Y. May 21, 2010) report and recommendation
adopted, No. 09-cv-85 (TJM) (DRH), 2010 WL 3522516 (N.D.N.Y. Sept. 2, 2010) (citing Dean
v. Coughlin, 804 F.3d 207, 215 (2d Cir. 1986)). In light of the fact that neither of these
defendants was Plaintiff’s primary dentist or primary treating physician, the Court finds that they
were not under an obligation to make an unending number of referrals for specialist treatment on
Plaintiff’s behalf. The facts alleged in the Complaint with regard to Defendant Dawson and
Defendant Viereckl-Prast simply do not support the claims that these defendants deliberately
disregarded an excessive risk to Plaintiff’s safety. Accordingly, the claims against Defendant
Dawson and Defendant Viereckl-Prast are dismissed.
II.
Claims Against Defendants Annucci, Fischer, Capra, Heath, Genovese, and Gage
Plaintiff’s Section 1983 claims as alleged against Defendants Annucci, Fischer, Capra,
Heath, Genovese, and Gage are generally premised upon their purported failures to properly
address his letters detailing his dental issues. To successfully allege Section 1983 liability, a
plaintiff must demonstrate “personal involvement” and cannot merely rely upon an individual’s
position of authority. Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (holding that liability
“requires a showing of more than the linkage in the prison chain of command”) (citing Williams
13
v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974); Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.
1973)). “The 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 865, 873 (2d Cir. 1995).
With respect to the second Colon factor, courts in this circuit appear to be split over
whether a prison official’s receipt of a grievance letter from an inmate sufficiently establishes
personal involvement. See Mateo v. Fischer, 682 F. Supp. 2d 423, 430 (S.D.N.Y. 2010)
(“Courts in the Second Circuit are divided on whether a supervisor’s ‘review and denial of a
grievance constitutes personal involvement in the underlying alleged unconstitutional act.’”
(quoting Burton v. Lynch, 664 F. Supp. 2d 349, 360 (S.D.N.Y. 2009)); compare Rivera, 119 F.
Supp. 2d at 344 (holding that plaintiff’s assertions that he wrote to certain defendants regarding
his medical condition and those complaints were ignored “are insufficient to hold these
[defendants] liable under § 1983”) (collecting cases) and Warren v. Goord, 476 F. Supp. 2d 407,
413 (S.D.N.Y. 2007) (concluding that denial of grievance letter does not establish personal
involvement) with Hall v. Artuz, 954 F. Supp. 90, 95 (S.D.N.Y. 1997) (holding that defendants’
awareness of deprivation of medical care, vis-à-vis letters from plaintiff, sufficiently establishes
personal involvement at the summary judgment stage) and Eldridge v. Williams, No. 10-cv-0423
(LTS), 2013 WL 4005499, at *5 (S.D.N.Y. July 30, 2013) (“A defendant’s personal receipt of a
14
complaint or letter and subjective awareness of the alleged unconstitutional conditions may be
one factor that helps establish personal involvement.”).
To reconcile the split among courts in this Circuit, this Court finds support in examining
(i) the precise nature of a defendant’s response to a grievance letter and (ii) the nature of the
defendant’s employment (including the degree of oversight over the patient associated with the
defendant’s position). Relying on Burton, the court in Mateo noted that the “degree of response
to an inmate’s grievance—for example, between summarily denying a grievance and denying it
in a detailed response that specifically addressed the plaintiff’s allegations,” may be “persuasive”
in discerning personal involvement. 682 F. Supp. 2d at 430. “A supervisor’s detailed, specific
response to a plaintiff's complaint suggests that the supervisor has considered the plaintiff's
allegations and evaluated possible responses.” Id. at 430–31 (citations omitted). Additionally,
whether the individual defendant is a medical prison official or non-medical prison official may
have some bearing on the level of response necessary to ensure that individual does not act with
deliberate indifference. See Hernandez v. Keane, 341 F.3d 137, 148 (2d Cir. 2003) (holding that
the prison superintendent (non-medical prison official) did not act with deliberate indifference
when he delegated responsibility for investigating an inmate’s medical complaints to other prison
staff); Greeno v. Daley, 414 F.3d 645, 656 (7th Cir. 2005) (“[W]e can see no deliberate
indifference given that [the non-medical prison official] investigated the complaints and referred
them to the medical providers who could be expected to address [plaintiff’s] complaints.”).
In examining the issue of whether Plaintiff has sufficiently alleged personal involvement,
the Court distinguishes between those defendants who were or are employed in non-medical
positions at Sing Sing—Defendants Annucci, Fischer, Capra, and Heath—and defendants who
were or are employed in medical positions—Defendants Genovese and Gage.
15
A. Defendants Annucci, Fischer, Capra, and Heath
Plaintiff contends that Defendant Annucci “acquiesced in the denial of treatment”
because he received letters from New York State Senator Tony Avella and Plaintiff himself
regarding Plaintiff’s dental condition, and Defendant Annucci responded to Senator Avella’s
letter confirming that Plaintiff was referred to a prosthodontist but Defendant D’Silva did not or
would not approve the referral. (Pl.’s Opp. at 18–19.) Based upon the allegations in the
Complaint, it is evident that Defendant Annucci did not ignore Plaintiff’s letter and evidently
undertook some sort of effort to investigate Plaintiff’s complaints as he discerned that Defendant
D’Silva would not approve the referral. Given that Defendant Annucci is the Commissioner of
DOCCS, the Court finds that his response was appropriate. As a non-medical official, Defendant
Annucci was not in a position to critically evaluate the quality of Plaintiff’s medical treatment
nor was he required to engage in a deep-dive investigation of the exact nature of Plaintiff’s
medical ailments. The Court finds that Defendant Annucci’s course of action does not establish
that he acted with deliberate indifference towards Plaintiff and dismisses Plaintiff’s claim against
Defendant Annucci.
The factual allegations against Defendant Fischer, former Commissioner of DOCCS, are
nearly identical to those against Defendant Annucci; in short, Defendant Fischer received
correspondence from Senator Avella regarding Plaintiff and responded to that letter. For the
same reasons as stated above, the Court dismisses Plaintiff’s claim against Defendant Fischer.
Similarly, as to Defendants Capra and Heath, Plaintiff asserts that their personal
involvement stems from their receipt of written and in-person complaints from Plaintiff, as well
as their written responses to Plaintiff’s letters. (Pl.’s Opp. at 19.) Plaintiff concedes that
Defendant Capra informed Plaintiff that he would speak with Defendant Gage—a medical doctor
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at Sing Sing—about Plaintiff’s condition. (Compl. ¶ 54.) Additionally, in response to a letter
from the Legal Aid Society sent on Plaintiff’s behalf, Defendant Heath wrote to Plaintiff that the
dental staff addressed his concerns by furnishing him with a night guard. (Id. ¶ 67.) There is no
evidence that these defendants ignored Plaintiff’s complaints; instead, the allegations are clear
that they responded to Plaintiff’s letters. Both Defendant Capra and Defendant Heath, as nonmedical officials at Sing Sing, acted in an appropriate manner by deferring to the judgment of
medical staff to properly treat Plaintiff’s dental issues. See Mateo, 682 F. Supp. 2d at 430
(determining no personal involvement when a “supervisor forwarded a complaint or grievance to
another official for handling”) (citing Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Ramos v.
Artuz, No. 00-cv-0149, 2001 WL 840131, at *8 (S.D.N.Y. July 25, 2001) (superintendent lacked
personal involvement where he forwarded inmate’s complaint letters to appropriate subordinates
and advised plaintiff of his actions)). Because “prison superintendents receive large numbers of
letters from inmates,” it is permissible for them to “‘delegate subordinates to handle them.’”
Mateo, 682 F. Supp. 2d at 430 (quoting Walker v. Pataro, No. 99-4607, 2002 WL 664040, at *12
(S.D.N.Y. Apr. 23, 2002)). Therefore, the Court dismisses the claims against Defendant Capra
and Defendant Heath.
B. Defendants Genovese and Gage
With respect to Defendant Genovese and Defendant Gage, Plaintiff contends that their
receipt of letters regarding Plaintiff’s dental issues constitutes personal involvement. (Pl.’s Opp.
at 21.) As stated above, “the receipt of letters or grievances, by itself, does not amount to
personal involvement.” Mateo, 682 F. Supp. 2d at 430 (collecting cases). Plaintiff further
appears to argue that Defendant Genovese and Defendant Gage were, by virtue of their positions
as Facility Health Services Directors, responsible for ensuring that a prosthodontist examined
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Plaintiff. (Pl.'s Opp. at 21.) However, an individual defendant's supervismy role does not
automatically translate into that defendant's personal involvement. Ayers, 780 F.2d at 210.
Furthermore, as Defendants point out, practically speaking, Defendants Genovese and Gage are
medical doctors, not dentists, and would not have been involved in the treatment of Plaintiffs
dental issues. (Defs.' Mot. at 11, n. 6.) On Plaintiffs pleadings, the Comt concludes that
Defendant Genovese and Defendant Gage lack personal involvement. Accordingly, the claims
against them are dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is GRANTED with respect to
Plaintiffs claims against Defendant Dawson, Defendant Viereckl-Prast, Defendant Annucci,
Defendant Fischer, Defendant Capra, Defendant Heath, Defendant Genovese, and Defendant
Gage and DENIED with respect to Plaintiffs claims against Defendant Willim and Defendant
Jacobson. Defendants Willim and Jacobson are directed to file an answer within 30 days hereof.
The parties are directed to appear for an initial pre-trial conference on March 24, 2016 at 10:45
am. Defendants are directed to appear in person. Defendants' counsel shall make arrangements
with the appropriate correctional facility for Plaintiff to appear via telephone conference. Parties
are further directed to submit a completed case management plan. The Comt respectfully directs
the Clerk to terminate the motion at ECF No. 41.
Dated:
SO ORDERED:
January 25, 2016
White Plains, New York
United States District Judge
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