Thomas v. Toporek et al
Filing
19
-CLERK TO FOLLOW UP- DECISION AND ORDER granting Defendant's motion to dismiss and dismissing the complaint in its entirety with prejudice as to all defendants. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 7/16/15. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
TIMOTHY THOMAS,
Plaintiff,
-vs-
No. 6:13-CV-6371(MAT)
DECISION AND ORDER
DIANE TOPOREK, ROSALYN KILLINGER,
and CARL J. KOENIGSMANN, M.D.,
Defendants.
I.
Introduction
Pro se plaintiff Timothy Thomas (“Plaintiff”), an inmate in
custody of
Community
the
New
York
(“DOCCS”) at
instituted
this
State
Wende
action
Department
Correctional
pursuant
to
42
of
Corrections
Facility
U.S.C.
§
and
(“Wende”),
1983
against
Defendants, alleging that he was denied adequate medical care in
violation of his Eighth Amendment rights.
II.
Factual Background and Procedural History
Plaintiff is an inmate in DOCCS’ and was housed at Wende
during
all
times
relevant
to
this
Complaint.
Diane
Toporek
(“Toporek”) is a Nurse Administrator with DOCCS; Rosalyn Killinger
(“Killinger”)
is
the
DOCCS’
Deputy
Superintendent
of
Health
Services; and Carl J. Koenigsmann, M.D. (“Dr. Koenigsmann”) is the
Deputy Commissioner/Chief Medical Officer of DOCCS.
The following factual summary is gleaned from Plaintiff’s
Complaint (Dkt #1). In June of 2012, Plaintiff complained of eye
problems to officials at Wende. It seems that he had broken his
prescription
glasses
by
sitting
on
them,
and
he
was
having
difficulty reading without them. In July of 2012, Plaintiff saw an
“eye doctor” but “[his] glasses couldn’t be repaired because [he]
didn’t have them anymore.” SOF, ¶ 4.1 The eye doctor wrote in
Plaintiff’s chart that he “‘need[ed] to see [sic] eye exam’” but
that he was not “due until 1/20/2013” for such an exam. Id.
Plaintiff states that at his last sick call-out regarding his eye
issues, the eye doctor did not “fix the problem” and “kept [him]
with the same prescription” that he had received on June 9, 2010.
Id. Plaintiff asserts that he “should not be punished” for the 2011
call-out because the doctor “was examining [his] eye’s [sic] to see
if he gave [him] the wrong prescription in [his] glasses.” Id.
Plaintiff then filed a grievance on July 16, 2012, requesting
to see an eye doctor because he was “having pain and stress on the
eyes”. SOF, ¶ 3. He states that he was told that he would not be
able to see the eye doctor until January 2013. Id. However,
Plaintiff does not appear to have attached the response to this
grievance to his Complaint.
Plaintiff indicates that he went to see the “eye doctor” on
July 26, 2012, but states, cryptically, that his “glasses couldn’t
be repaired because [he] didn’t have them anymore.” SOF, ¶ 4. The
“eye doctor” indicated that he needed to have a new eye exam. Id.
Plaintiff filed a second grievance on July 30, 2012. Id., ¶ 5.
On August 6, 2012, and August 9, 2012, Plaintiff went to sick
1
References to “SOF” refer to the Statement of Facts annexed to the form
Complaint. All of the documents referenced in this Decision and Order are
attached to the Complaint but are unpaginated.
-2-
call “complaining about eye strain”, “pain”, and “discomfort in
trying to see things.” SOF, ¶ 6. Apparently, Plaintiff was told by
the medical staff during his sick call visits that he was scheduled
to the see the eye doctor in January 2013. Dissatisfied with having
to wait that long, Plaintiff submitted two grievances and also
wrote a letter complaining to the nurse administrator.
On August 14, 2012, Plaintiff saw “care provider Ms. Wrest”
regarding his asthma. Plaintiff explained to Ms. Wrest the “pain
and discomfort” he was experiencing with regard to his eyes, and
she agreed that waiting until January 2013 to see an eye specialist
was too long. Accordingly, she “pulled out a contract to have [him]
sign” so that he could see an eye specialist at an earlier date.
SOF, ¶ 8.
Plaintiff still did not get on the schedule to see an eye
specialist, so he wrote a letter to the Deputy Superintendent of
Health Services on September 2, 2012, setting forth the problems he
was having with his eyes. He also mentioned the contract that he
had
signed
in
front
of
Ms.
Wrest.
SOF,
¶
9.
Acting
Nurse
Administrator T. Walsh responded to his letter on September 12,
2012, reminding him that he saw the medical provider on August 14,
2012, at which time she scheduled him for an eye exam next month,
i.e., October of 2012. Walsh noted that the optometrist only comes
in once a month.
On September 27, 2012, Plaintiff received a decision on his
Superintendent’s Appeal of his grievances filed in July 2012. The
-3-
grievance appeal was “granted to the extent” that
[p]er investigation, it has been reported that the
grievant requested to see an eye doctor. Grievant is
scheduled to see the optometrist in October. The
optometrist is scheduled for one visit per month and sees
approximately 40 inmates. Due to no optometrist
available, the clinic fell behind in scheduling but will
be caught up by next month.
On October 2, 2012, Plaintiff signed the Superintendent Appeal
form, indicating that he was appealing the matter to the Central
Office Review Committee (“CORC”) “because the fact of the matter is
that [he] was denied medical treatment to see an eye doctor from
June to October 2012.”
Plaintiff then wrote a letter to the DOCCS Chief Medical
Officer explaining that prison medical staff would not help him
with the pain and suffering he was experiencing. Regional Health
Service Administrator Eileen R. Dinisio (“Dinisio”) responded to
his letter on October 11, 2012, noting that he had been evaluated
by his primary care physician and seen by optical services in July
2012, and that he had an appointment scheduled in the near future
to be seen in the optometry clinic for an eye exam. Dinisio
suggested that until he was able to have an eye exam, Plaintiff
continue to go to sick call-out if he had problems.
Also on October 11, 2012, Plaintiff “finally got [his] eyes
examine[d].” SOF, ¶ 11.
On December 26, 2012, he received his new
glasses. However, when they were fitted, the optometrist “bent the
glasses to [sic] much, so a few days later the glasses started
hurting [his] ears.” Id. Plaintiff complained, and was placed on a
-4-
call-out to have his glasses adjusted on January 16, 2013. At that
time, however, the optometrist was unable to re-adjust the glasses,
so he ordered Plaintiff another pair.
On February 13, 2013, Plaintiff received a decision from the
CORC stating that his request was “unanimously accepted in part”,
that is, it was accepted “only to the extent that CORC upholds the
determination of the Superintendent for the reasons stated” in the
September 27, 2012 decision. The CORC noted that Plaintiff had been
seen by optical services on July 26, 2012; November 21, 2012;
December 26, 2012; and January 16, 2013; and had been seen by the
optometrist on October 11, 2012. In addition, he received his new
eyeglasses on December 26, 2012; and had them adjusted on January
23, 2013. Finally, the CORC noted that Plaintiff had an upcoming
follow-up appointment with optical services.
Plaintiff then filed the instant suit on July 15, 2013,
alleging the denial of adequate medical care with regard to his eye
issues. His first claim is asserted against Toporek and covers the
time-period from June 20, 2012, to August 9, 2012. His second claim
is
asserted
against
Killinger;
the
only
date
identified
is
September 2, 2012. Finally, his third claim is asserted against Dr.
Koenigsmann; again, the only date indicated is September 2, 2012.
The gist of
all of
his
claims
is
that
he
wrote
letters
to
Defendants in August and September seeking an immediate appointment
with an optometrist, and complaining that he was unable to be
scheduled to see an optometrist until October.
-5-
Defendants have filed a Motion to Dismiss the Complaint for
failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Plaintiff filed a memorandum of law in
opposition to the motion.
For the reasons that follow, Defendants’ Motion to Dismiss is
granted, and the Complaint is dismissed.
III. Defendants’ Motion to Dismiss
A.
Legal Standard Applicable to Rule 12(b)(6) Motions
Rule 12(b)(6) allows dismissal of complaints based upon the
plaintiff’s failure “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). In order “[t]o survive a motion
to
dismiss
under
[Rule
12(b)(6)],
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, ___ U.S.
___, ___, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167
L.Ed.2d 929 (2007)). In assessing a claim’s plausibility, the
district court must “assume [the] veracity” of all well-pleaded
factual allegations contained in the complaint, Iqbal, 129 S. Ct.
at 1950, and draw every reasonable inference in favor of the
plaintiff, Zinermon v. Burch, 494 U.S. 113, 118 (1990). Where, as
here, the
plaintiff
is
proceeding
pro
se,
his
complaint and
supporting papers must be read “liberally” and interpreted to
“raise the strongest arguments that they suggest.” Soto v. Walker,
44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d
-6-
787, 790 (2d Cir. 1994)). However, the plaintiff’s allegations must
consist of more than mere labels or a “formulaic recitation of the
elements of a cause of action,” and bare legal conclusions are “not
entitled to the assumption of truth.” Iqbal, 129 S. Ct. at 1949–50.
B.
The Eighth Amendment and Prison Medical Care
The Eighth Amendment prohibits the infliction of cruel and
unusual punishment and is applicable to the states through the Due
Process Clause of the Fourteenth Amendment. Tramell v. Keane, 338
F.3d 155, 161 (2d Cir. 2003) (citation omitted). “Punishment”
encompasses deprivations imposed incident to imprisonment. Estelle
v. Gamble, 429 U.S. 97, 102–03 (1976).
Additionally, the Eighth
Amendment dictates that prisoners are entitled to adequate medical
care. See id. at 104 (“[D]eliberate indifference to serious medical
needs
of
prisoners
constitutes
the
‘unnecessary
and
wanton
infliction of pain[ ]’ proscribed by the Eighth Amendment.”)
(internal quotation omitted).
To state an Eighth Amendment claim for denial of adequate
medical care, a prisoner must demonstrate that prison officials
acted
with
“deliberate
indifference”
to
his
“serious
medical
needs.” Estelle, 429 U.S. at 104. Such a claim thus contains two
elements: (1) the plaintiff must have a serious medical condition,
and (2) the prison officials must have acted with deliberate
indifference in regard to that condition. Farmer v. Brennan, 511
U.S. 825, 834–35 (1994); see also, e.g., Hathaway v. Coughlin, 37
F.3d 63, 66 (2d Cir. 1994).
-7-
The first prong of the test considers, from an objective
standpoint, whether the medical condition presents “a condition of
urgency that may result in degeneration or extreme pain.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (internal quotation
marks
and
citation
omitted).
Relevant
factors
include
“[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 individuals daily
activities; or the existence of chronic and substantial pain.” Id.
(quotation omitted; alteration in Chance).
The second prong asks whether the defendants, subjectively
speaking, acted with the requisite culpable mental state, something
akin to criminal recklessness. Wilson v. Seiter, 501 U.S. 294, 30103
(1991);
see
also
Hathaway,
37
F.3d
at
66.
“Deliberate
indifference” requires “something more than mere negligence . . .
[but] something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.” Farmer, 511
U.S.
at
835.
Significantly,
simple
medical
malpractice
is
insufficient to support an Eighth Amendment claim, unless “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.’” Chance, 143 F.3d
at 702 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996); citation omitted in Chance)).
-8-
C.
Analysis
As noted above, Plaintiff asserts that he suffered eye strain
and migraines from not having the proper strength prescription
glasses for a period of time, and that he allegedly almost went
“legally blind”. The Court assumes, arguendo, that Plaintiff has
adequately alleged a serious medical condition for purposes of an
Eighth Amendment claim. See Koehl v. Dalshseim, 85 F.3d 86, 88 (2d
Cir. 1996) (the prisoner’s alleged medical need for prescribed
eyeglasses to avoid double vision and loss of depth perception was
sufficiently serious to support his claim that prison officials’
deprivation of his glasses violated Eighth Amendment; “[s]uch
visual deficiencies can readily cause a person to fall or walk into
objects, and [the prisoner] alleged that he has experienced such
occurrences, and has suffered injuries as a consequence”) (citing
Gamble, 429 U.S. at 103).
Turning to the second prong of the test, the Court notes that
in a case such as this one in which the prisoner has actually
received medical treatment, deliberate indifference will not be
found unless “‘the medical attention rendered [was] so woefully
inadequate as to amount to no treatment at all.’” Westlake v.
Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976) (quoting Tolbert v.
Eyman, 434 F.2d 625, 626 (9th Cir. 1970)). The allegations in
Plaintiff’s Complaint and the documents annexed thereto plainly are
insufficient to state a plausible claim that Defendants acted with
“a state of mind that is the equivalent of criminal recklessness.”
-9-
Hathaway v. Coughlin, 99 F.3d at 553. Instead, they show that
Defendants were as responsive as they could be to Plaintiff’s
requests for treatment given the limited visits the optometrist
made to the facility (only one per month); the large number of
inmates
who
needed
to
be
seen
when
the
optometrist
visited
(approximately 40 patients); and the fact that the optometrist was
unable to visit for one of the months at issue. As the Wende
officials explained, they had fallen behind on scheduling optometry
appointments as a result of the optometrist’s lack of availability,
but had gotten caught up within about a month. Thus, the delay in
having Plaintiff see the optometrist was not due to Defendants’
conscious disregard of a substantial risk to his Plaintiff’s
health, or a wilful desire to prevent Plaintiff from receiving the
medical
care
he
requested.
Moreover,
as
Plaintiff
concedes,
Defendants accommodated Plaintiff’s request to be seen sooner, and
his scheduled appointment was moved up from January 2013, to
October 2012.
At the very most, Plaintiff’s Complaint alleges negligence in
arranging to have a substitute or additional optometrist visit
Wende to deal with the backlog, but as explained above, mere
negligence does not amount to a constitutional violation. See,
e.g., Daniels v. Williams, 474 U.S. 327, 328 (1986) (holding that
a merely “negligent act of an official causing unintended loss of
or injury to life, liberty, or property” does not constitute a
constitutional claim); Chance, 143 F.3d at 703 (stating that
-10-
“negligence, even if it constitutes medical malpractice, does not,
without more, engender a constitutional claim”). Accordingly, the
Court
finds
that
Plaintiff
has
failed
to
come
forward
with
sufficient factual matter, accepted as true, to state a claim to
relief under the Eighth Amendment that is plausible on its face.
V.
Conclusion
For all the foregoing reasons, Defendant’s Motion to Dismiss
is granted; and the Complaint is dismissed in its entirety with
prejudice as to all Defendants. The Clerk of the Court is directed
to close the case.
SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 15, 2015
Rochester, New York
-11-
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