Opinion
9:15-CV-00227 (GLS/TWD)
02-16-2016
DARRELL NICKELSON, Plaintiff, v. BRIAN FISCHER, JOYCE CARVER, LESTER WRIGHT, Defendants.
APPEARANCES: DARRELL NICKELSON Plaintiff pro se 14-A-1966 Mid-State Correctional Facility P.O. Box 2500 Marcy, New York 13403 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for the Remaining Defendants The Capitol Albany, New York 12224 OF COUNSEL: RYAN W. HICKEY, ESQ. Assistant Attorney General
APPEARANCES: DARRELL NICKELSON
Plaintiff pro se
14-A-1966
Mid-State Correctional Facility
P.O. Box 2500
Marcy, New York 13403 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for the Remaining Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: RYAN W. HICKEY, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
This pro se action commenced by Plaintiff Darrell Nickelson pursuant to Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12131, et seq. ("ADA") and 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Hon. Glenn T. Suddaby, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c).
The matter is now before the Court on Defendants' motion to dismiss Plaintiff's Complaint (Dkt. No. 1) for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 20), and Plaintiff's motion for leave to amend his Complaint by substituting the three original defendant officials with their successors, named as defendants solely in their official capacities. (Dkt. No. 35.) Plaintiff has opposed Defendants' motion to dismiss. (Dkt. Nos. 35; 39-1.) Defendants have opposed Plaintiff's motion to amend. (Dkt. No. 37.) For reasons that are explained below, the Court recommends that Plaintiff's motion to amend his complaint to substitute the successors of the three named Defendants in their official capacities be granted, and that Defendants' motion to dismiss, deemed by the Court to be directed to Plaintiff's Complaint, as amended, be denied.
I. FACTUAL BACKGROUND
Plaintiff is an inmate in the custody of the New York State Department of Corrections and Community Service ("DOCCS") and is presently confined in Mid-State Correctional Facility ("Mid-State"). (Dkt. No. 29.) At the time this action was commenced, Plaintiff was confined at Great Meadow Correctional Facility ("Great Meadow") and immediately prior to being transferred to Mid-State was housed at Fishkill Correctional Facility ("Fishkill"). (Dkt. Nos. 1 at ¶ 3; 35 at ¶ 9; 39-1 at 2.)
Plaintiff most recently entered DOCCS custody on December 14, 2013. Id. at ¶ 7. On July 26, 2000, prior to his incarceration, Plaintiff was involved in a car accident that resulted in a spinal injury. Id.; Dkt. No. 35 at ¶ 5. Plaintiff has been diagnosed with multiple herniated discs and spinal stenosis. (Dkt. No. 1-1 at 7, 14, 17, 19-20.)
Although Plaintiff has alleged that the accident resulting in a spinal injury occurred on July 26, 2000, medical records annexed to his complaint show that he had an MRI of the lumbar spine on June 26, 2000, suggesting that either the date of the accident is incorrect or Plaintiff had a pre-existing spinal problem. (Dkt. No. 1-1 at 7.)
While confined at Great Meadow, Plaintiff fell backwards when his back gave out as he was going upstairs and sustained further injuries to his back. (Dkt. Nos. 1 at ¶ 8; 1-1 at 16-17.) On June 19, 2014, Great Meadow Facility Health Services Director, Dr. Karandy, ordered the following special needs for Plaintiff: (1) that he be fed in his cell until June 18, 2015; (2) that he lock on the flats until June 18, 2015; and (3) that he be issued a back brace, cane, and a tens unit with supplies until June 18, 2015. (Dkt. No. 1-1 at 1.)
"Flats" means that Plaintiff should be issued housing on the first floor of the correctional facility.
Dissatisfied with the accommodations ordered by Dr. Karandy, on July 9, 2014, Plaintiff submitted a Request for Reasonable Accommodation, in which he requested that because of the limitations on his ability to ambulate stairs and ramps due to his severe spinal injury that caused spasms and falling, he be transferred to a "facility where stairs are not at issue and where [he could] receive appropriate medical care." Id. at 1-1 at 5. On August 26, 2014, in response to Plaintiff's Request, Dr. Karandy recommended that Plaintiff be transferred to a flats facility because of arthritis of the spine. Id. at 5. A reasonable accommodation determination of Plaintiff's request, modified Dr. Karandy's recommendation by approving having Plaintiff lock on flats, was issued on August 27, 2014. Id.
On or about October 7, 2014, Plaintiff filed a grievance requesting that Dr. Karandy's recommendation that he be moved to a flats facility be adopted. Id. at 3. Plaintiff complained that being housed on the flats (bottom tier) was an inadequate accommodation because it did not address his right to outdoor exercise or allow him safe access to anywhere in the facility as needed to aid in his rehabilitation. Id. The Inmate Grievance Resolution Committee rejected the action requested by Plaintiff on November 3, 2014, writing:
The Committee advises grievant that his action requested is unfavorable. Although the FHSD recommended that grievant be transferred to a flats facility, and issued grievant a flats order in the interim, that was merely a recommendation subject to review by this facility administration. The DSP, in his review capacity, sanctioned the flats order but does not have the authority to direct a transfer. Such authority is at the discretion of Central Office, and all Requests for Reasonable Accommodations are automatically reviewed by the Americans with Disabilities Department at Central Office.Id. at 4.
After being transferred to Fishkill, in or about June of 2014, Plaintiff submitted a second Request for Reasonable Accommodation seeking the same accommodation as in his July 9, 2014, Request at Great Meadow. (Dkt. No. 39-1 at 2.) Plaintiff was found by the physician who did the medical verification to have mild arthritis of the spine and left hip. Id. at 2. The physician found Plaintiff capable of climbing two flights of stairs. Id. The reasonable accommodation determination was that Plaintiff should not be housed above the second floor. Id.
Plaintiff was thereafter transferred to Mid-State. (Dkt. No. 35 at ¶ 9.) On December 2, 2015, while at Mid-State, Plaintiff submitted a third Request for Reasonable Accommodation seeking the same accommodation as in the first two. (Dkt. No. 39-1 at at 3-4.) Plaintiff has submitted two fully processed versions of the third Request, each with a different medical verification and different reasonable accommodation determination. Id.
In one, the medical verification was completed on December 8, 2015, by V.R. Mannava, M.D., a physician at Mid-State. Id. at 4. Plaintiff was found to have multiple herniated discs, spinal stenosis, and back pain that resulted in impaired ambulation. Id. On December 29, 2015, K. McDaniel ("McDaniel"), Assistant DSP at Mid-State, approved Plaintiff's transfer to a "flat" facility. Id. Plaintiff signed the inmate receipt on January 8, 2016, and indicated his agreement with the determination. Id.
See Berman v. Durkin, No. 9:13-CV-0136 (LEK/RFT), 2015 WL 1481769, at * 5, 2015 U.S. Dist. LEXIS 41014, at * 6 (N.D.N.Y. March 31, 2015) (identifying Dr. Mannava as a physician at Mid-State).
In the other, the initial medical verification was done on December 24, 2015, by the Regional Medical Director, who found that Plaintiff had no significant disability and no functional limitations. Id. at 3. Plaintiff's Request was denied by McDaniel based upon the lack of medical justification on December 29, 2015, the same day she had approved Plaintiff's transfer to a flats facility in the other version. Id. Plaintiff signed the inmate receipt on December 29, 2015, and indicated his disagreement with the determination. Id.
In a January 19, 2016, letter to the Court accompanying the two versions of his December 2, 2015, Request for Reasonable Accommodation, Plaintiff wrote "I have followed all procedures asked of me to ensure my move to a 'flat facility', but all I have been getting is a run around as the enclosed papers clearly show. As you will read from the same papers with the same dates, the differences of opinions and facts." (Dkt. No. 39 at 1.) Defendants were given an opportunity to respond to the documents submitted by Plaintiff in opposition to their motion to dismiss but elected not to do so. See Dkt. No 41, January 25, 2016, Text Order allowing Defendants until February 5, 2016, to file a supplemental reply.
Plaintiff has alleged that he has been denied reasonable accommodations for his disability in violation of Title II of the ADA. (Dkt. No. 1 at ¶¶ 11-15.) Plaintiff's Complaint has also been construed as alleging a claim that Defendants have violated his Eighth Amendment rights as a result of their deliberate indifference to his serious medical needs. (Dkt. No. 33 at 1.) Plaintiff has not asserted any claim for money damages in his Complaint. (Dkt. No. 1.) Liberally construed, Plaintiff's Complaint appears to seek injunctive relief in the form of a mandatory injunction ordering the reasonable accommodation he seeks, namely, transfer to a flats facility as recommended by Dr. Karandy in response to Plaintiff's July 9, 2014, Request for Reasonable Accommodation submitted at Great Meadow, and as subsequently approved by McDaniel in one of the responses to Plaintiff's December 2, 2015, Request for Reasonable Accommodation submitted at Mid-State. (Dkt. Nos. 1-1 at 5; 39-1 at 4.) Plaintiff has asserted no claim for money damages. (Dkt. Nos. 1; 35.)
The Court's assessment of the relief sought by Plaintiff in his Complaint finds support in his motion for a preliminary injunction seeking a transfer from Fishkill to a "medium flats facility," which was denied by the District Court on October 30, 2015. (Dkt. Nos. 15 at 2; 33.)
II. LEGAL STANDARDS
A. Motion to Amend
Under Federal Rule of Civil Procedure 15(a), leave to amend a complaint should be "freely" granted "when justice so requires." Fed.R.Civ.P. 15(a). A motion to amend should not be denied unless there is evidence of undue delay, bad faith, prejudice to the non-movant, or futility. Foman v. Davis, 371 U.S. 178, 182 (1962). The decision to grant or deny a motion to amend is within the sound discretion of the district court. Id.
B. Rule 12(b)(6) Motion to Amend for Failure to State a Claim
A defendant may move to dismiss a complaint "for failure to state a claim upon which relief can be granted" under Rule 12(b)(6). The motion tests the formal legal sufficiency of the complaint by determining whether it conforms to Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972). Satisfaction of the requirement that a plaintiff "show" that he or she is entitled to relief requires that the complaint "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here 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 shown that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
A complaint may be dismissed, pursuant to Rule 12(b)(6), only where it appears that there are not "enough facts to state a claim that is plausible on its face." Twombly. 550 U.S. at 570. While Rule 8(a)(2) "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" does not suffice. Id. (citation omitted).
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, "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." Iqbal, 556 U.S. at 678.
In considering a Rule 12(b)(6) motion, "the court considers the complaint, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case." L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citation and internal quotation marks omitted); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (A court may consider "any written instrument attached [to the complaint] as an exhibit or documents incorporated in it by reference."). "The mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual allegations are consistent with the allegations of the plaintiff's complaint." Robles v. Bleau, No. 07-CV-0464, 2008 WL 4693153, at *6 and n.41, 2008 U.S. Dist. LEXIS 110029, at *26-27 and n.41 (N.D.N.Y. Oct. 22, 2008) (collecting cases); Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (where a pro se is faced with a motion to dismiss, a court may consider materials outside of the complaint "to the extent they are consistent with the allegations in the complaint."), vacated in part on other grounds, 317 F. Supp. 2d 160 (N.D.N.Y. 2004); see also Gil v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (in reviewing district court's dismissal of pro se plaintiff's claim, Second Circuit considered plaintiff's affidavit submitted in opposition to motion to dismiss).
In this case, the Court has considered Plaintiff's Complaint and its attachments, his verified Amended Complaint & Response to Defendant's Motion to Dismiss, and his supplemental document submission (Dkt. Nos. 1;35; 39; and 39-1) in making its recommendation on Defendants' Rule 12(b)(6) motion to dismiss.
The Court will provide Plaintiff with copies of all unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly).
Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that a "better pleading will not cure it." Id. (citation omitted).
III. ANALYSIS
A. Plaintiff's Motion to Amend
In his Amended Complaint & Response to Defendant's Motion to Dismiss, Plaintiff states that "[t]he foregoing writing is made pursuant to the Federal Rules of Civil Procedure § 15(c)(1)(C) to amend the original complaint by replacing the named defendants with the updated employees for D.O.C.C.S. in their official capacity." (Dkt. No. 35 at ¶ 1.) More specifically, Plaintiff seeks to replace former DOCCS Commissioner, Brian Fischer ("Fischer"),with Acting DOCCS Commissioner, Anthony J. Annucci ("Annucci"); former DOCCS Chief Medical Officer, Lester Wright ("Wright"), with DOCCS Chief Medical Officer, Carl J. Koenigsmann ("Koenigsmann"); and former DOCCS Director of Inmate Movement and Placement, Joyce Carver ("Carver"), with DOCCS Director of Inmate Movement and Placement, Theresa Knapp-David (incorrectly spelled "Davis" by Plaintiff) ("Knapp-David"). (Dkt. No. 35 at ¶¶ 2, 6-7, 11.)
It is well established that "the State is the real party in interest for [a] plaintiff's claims against the individual defendants in their official capacities." Alster v. Goord, 745 F. Supp. 2d 317, 338 (S.D.N.Y. 2010) (citing Fox v. State Univ. of N.Y., 497 F. Supp. 2d 446, 451 (E.D.N.Y. 2007).
Plaintiff has expressed no intent to sue Annucci, Koenigsmann, and Knapp-David in their individual as well as their official capacities. (See generally Dkt. No. 35.) Furthermore, Plaintiff no longer includes Fischer, Wright, and Carver in the caption and has given no indication of an intent on his part to keep them in the lawsuit as defendants in any capacity. Id. Therefore, the Court has concluded, as Plaintiff has represented in his Amended Complaint & Response to Defendant's Motion to Dismiss, id. at ¶ 1, that it is his intent that this lawsuit proceed with Annucci, Koenigsmann, and Knapp-David as the sole Defendants in their official capacity only.
Under Federal Rule of Civil Procedure 25(d), a public "officer's successor is automatically substituted as a party" when an "officer who is a party in an official capacity . . . ceases to hold office while the action is pending." See, e.g., Selah v. Fischer, No. 9:09-cv-1363 (GLS/DEP), 2015 WL 1893340, at *7 n.14, 2015 U.S. Dist. LEXIS 49568, at *23 n.14 (N.D.N.Y. April 15, 2015) (automatically substituting Annucci for Fischer under Rule 25(d)). Because Fischer, Wright, and Carver, all sued in their official capacities, had retired prior to the commencement of this action, substitution of Annucci, Koenigsmann, and Knapp-David is arguably not automatic under Rule 25(d). Therefore, the Court recommends that Plaintiff's motion to amend his Complaint for the sole purpose of substituting Annucci, Koenigsmann, and Knapp-David as defendants in their official capacity be granted, and that Annucci, Koenigsmann, and Knapp-David, in their official capacity, be deemed to have stepped into the shoes of Fischer, Wright, and Carver on Defendants' Rule 12(b)(6) motion to dismiss.
The Court takes judicial notice of the retirement of Defendants Fischer, Wright, and Carver from the DOCCS positions in which they have been sued in their official capacities prior to the commencement of this lawsuit. (See Dkt. No. 20-1 at 9-10 and n.3&4.)
Inasmuch as the State is the real party in interest regardless of whether the action proceeds with the original Defendants or the substituted Defendants in their official capacities, the Court finds no prejudice to Annucci, Koenigsmann, and Knapp-David in their substitution Fischer, Wright, and Carver on the motion to dismiss. See Alster, 745 F. Supp. 2d at 338.
B. Plaintiff's Claim Under Title II of the ADA
1. Legal Requirements for a Violation of Title II of the ADA
Title II of the ADA provides in relevant part that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. In general, plaintiffs who seek to state a claim for disability under the ADA "must demonstrate that (1) they are 'qualified individuals' with a disability; (2) that the defendants are subject to the ADA; and (3) that plaintiffs were denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or were otherwise discriminated against by defendants, by reason of plaintiffs' disabilities." Henrietta D. v. Bloomberg, 331 F.3d 261, 272-73 (2d Cir. 2003).
Under the ADA, the term "disability" with respect to an individual means "a physical or mental impairment that substantially limits one or more major life activities of such individual"; "a record of such impairment"; or "being regarded as having such an impairment." 42 U.S.C. §12102(1). For purposes of "being regarded as having such as impairment," an individual need only establish "that he or she has been subjected to an action prohibited under [the ADA] because of an actual or perceived physical or mental impairment whether or not the impairments limits or is perceived to limit a major life activity." 42 U.S.C. § 12102(3).
As noted above, Defendants Annucci, Koenigsmann, and Knapp-David have been sued solely in their official capacities. Because state officials may not be sued in their individual capacity under Title II of the ADA, if Plaintiff were suing them in their individual capacities, they would be entitled to dismissal of the claim with prejudice. See Garcia v. State of N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir. 2001).
"The purpose of [Title II of the ADA] is to 'eliminate discrimination on the basis of disability and to ensure evenhanded treatment between the disabled and able-bodied.'" Maccharulo v. New York State Dept. of Corr. Servs., No. 08 Civ 301 (LTS), 2010 WL 2899751, at *2, 2010 U.S. Dist. LEXIS 73312, at *7 (S.D.N.Y. July 21, 2010) (quoting Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)). Under Title II of the ADA, a defendant discriminates when it fails to make a reasonable accommodation that would permit a qualified disabled individual "to have access to and take a meaningful part in public services." Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir 2004); Disabled In Action v. Board of Elections of New York, 752 F.3d 189, 197 (2d Cir. 2014) ("A public entity discriminates against a qualified individual with a disability when it fails to provide 'meaningful access' to its benefits, programs, or services.")
The Supreme Court has held that state prisons "fall squarely within the statutory definition of 'public entity'" in Title II of the ADA, and state inmates may maintain ADA claims. Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 210 (1998); see also Hilton v. Wright, 673 F.3d 120, 128 (2d Cir. 2012) (DOCCS treated as a public entity under Title II of the ADA).
2. Analysis of Whether Plaintiff has Stated a Claim for Violation of Title II of the ADA
The Court finds that the Plaintiff has stated a claim for violation of Title II of the ADA against Defendants in their official capacities through the allegations in his Complaint and the documents attached thereto, his Amended Complaint & Response to Defendant's Motion to Dismiss, and his supplemental document submission. (Dkt. Nos. 1; 35; 39; and 39-1.)
Plaintiff has not asserted a claim for money damages against Annucci, Koenigsmann, or Knapp-David in their official capacities in his Complaint or Amended Complaint & Response to Defendant's Motion to Dismiss. (Dkt. Nos. 1 and 35.) Therefore, the Court finds it unnecessary to address whether a claim for money damages by Plaintiff could survive an Eleventh Amendment bar on this motion to dismiss. See Garcia, 280 F.3d at 109-10 (Eleventh Amendment sovereign immunity abrogated by Congress where plaintiff can establish that Title II violation was motivated by discriminatory animus or ill will based on plaintiff's disability); Bolmer v. Oliveira, 594 F.3d 134, 146-48 (2d Cir. 2010) (requirement of showing of discriminatory animus or ill will based on plaintiff's disability is not applicable when abrogation of sovereign immunity is supported by the enforcement of due process rights); see also Dean v. University of Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178, 194-95 (2d Cir. 2015) (acknowledging that the Supreme Court decision in United States v. Georgia, 546 U.S. 151, 159 (2006) had called Garcia's validity into question but not deciding the issue).
Plaintiff has made a plausible showing that he is a qualified individual with a disability under Title II of the ADA. Plaintiff's medical records reveal that he suffers from herniated discs and spinal stenosis. (Dkt. No. 1-1 at 7, 9-15.) According to the Ambulatory Health Record dated June 23, 2014, Plaintiff fell backwards when his back gave out while he was going up stairs. Id. at 21. Medical records appear to indicate that Plaintiff sustained further injuries to his back as a result of the fall. Id. at 16-20. In addition, after Plaintiff's fall, Dr. Karandy ordered Plaintiff to be locked on flats, fed in his cell, given a back brace and cane, and to also be given a tens unit and supplies for a period of a year. Id. at 1.
Furthermore, as discussed above, the law is well settled that DOCCS is subject to the ADA. The Court finds that Plaintiff has also made a plausible showing that he has been denied the opportunity to participate in or benefit from specific DOCCS services, programs, or activities. The Court acknowledges that Plaintiff's Complaint (Dkt. No. 1) and Amended Complaint & Response to Defendant's Motion to Dismiss (Dkt. No. 35) are lacking in detailed factual allegations regarding the denial of opportunities. A copy of the grievance Plaintiff filed from the determination of his Request for Reasonable Accommodation at Green Meadow does, however, contend that being locked on flats, the accommodation granted at Green Meadow, was inadequate because it did not address his right to outdoor exercise or allow him safe access to anywhere in the facility as needed to aid his rehabilitation. (Dkt. No. 1-1 at 3.)
Furthermore, in August of 2014, Dr. Karandy recommended that Plaintiff be housed in a flats facility due to arthritis of the spine. Id. at 5. Subsequently, in December of 2015, Dr. Mannava found that Plaintiff was disabled due to multiple herniated discs and spinal stenosis and had impaired ambulation, and in one version of Plaintiff's December 2, 2015, Request for Reasonable Accommodation, McDaniel approved Plaintiff's transfer to a flats facility on December 29, 2015. (Dkt. No. 39-1 at 4.)
For purposes of Defendants' motion to dismiss, the Court can infer from Plaintiff's grievance and from the medical verifications in Plaintiff's Requests for Reasonable Accommodation that failing to house him in a flats facility might realistically result in his being denied the opportunity to participate in or benefit from DOCCS services, programs, or activities that required him to climb stairs.
In light of the foregoing, the Court recommends that Defendants' motion to dismiss Plaintiff's claim under Title II of the ADA be denied.
3. Claim for Injunctive Relief Under Title II of the ADA
The Second Circuit has held that under the doctrine set forth in Ex Parte Young, 209 U.S. 123, 155-56 (1908), claims for prospective injunctive relief may be pursued under Title II of the ADA. See Henrietta D., 331 F.3d at 287-88 (Eleventh Amendment does not preclude suits against state officers in their official capacity for prospective injunctive relief to prevent a continuing violation of federal law). The Court has construed Plaintiff's Complaint as seeking a mandatory injunction ordering that he be transferred to a flats facility as recommended by Dr. Karandy in response to Plaintiff's July 9, 2014, Request for Reasonable Accommodation and as approved by McDaniel in one version of Plaintiff's Mid-State Request for Reasonable accommodation. (See Dkt. Nos. 1 at ¶ 15; 1-1 at 5; 39-1 at 4.)
Defendants have argued in their Memorandum of Law that Plaintiff's request for injunctive relief is moot because he is no longer housed at Green Haven, and "[i]t is settled in this Circuit that a transfer from a prison facility moots an action for injunctive relief against the transferring facility." Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir. 1996). However, Plaintiff has not sued Green Haven officials but rather DOCCS, through its officials sued in their official capacities, and Plaintiff's reasonable accommodation claim arguably falls within the exception for challenged actions that are "capable of repetition yet evading review." See Pugh v. Gordon, 571 F. Supp. 2d 477, 488 (S.D.N.Y. 2008) (citing Murphy v. Hunt, 455 U.S. 478, 482 (1982).
In fact, it appears from the allegations in Plaintiff's Amended Complaint & Response to Defendant's Motion to Dismiss (Dkt. No. 35), as well as his most recent document submission (Dkt. Nos. 39; 39-1), that he intends to expand his ADA claim to include his present confinement at Mid-State and the recent inconsistent determinations of his third Request for Reasonable Accommodation. (Dkt. No. 35 at ¶¶ 9-10.) See Robles, 2008 WL 4693153, at * 6 and n.41 (finding it appropriate to consider a pro se litigant's papers in opposition to a motion to dismiss as effectively amending the allegations of the complaint where consistent). Since Plaintiff is presently housed at Mid-State, the Court finds that his conditions at Mid-State are relevant to his reasonable accommodations claim under Title II of the ADA and to his request for injunctive relief, and that his request for injunctive relief is not moot.
C. Plaintiff's Eighth Amendment Claim for Inadequate Medical Care
Plaintiff's Complaint has been construed as alleging a claim of deliberate indifference to a serious medical condition in violation of his Eighth Amendment rights under 42 U.S.C. § 1983. (Dkt. Nos. 20-1 at 8; 33 at 1.) Defendants seek dismissal of the medical deliberate indifference claim for failure to state a claim. (Dkt. Nos. 20-1 at 8-14; 37 at 8-9.)
Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). A claim that prison officials have intentionally disregarded an inmate's serious medical needs has both objective and subjective elements. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). "The plaintiff must show that she or he had a serious medical condition and that it was met with deliberate indifference." Id. at 72 (citation and internal quotation marks omitted). "The objective 'medical need' element measures the severity of the alleged deprivation, while the subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citation omitted). "[N]ot every lapse in medical care is a constitutional wrong. Rather, a prison official violates the Eighth Amendment only when the two requirements are met." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (citation and internal quotation marks omitted).
A "serious medical condition" is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting) (citations omitted); accord Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain. Chance, 143 F.3d at 702-03.
Under the subjective element, medical mistreatment rises to the level of deliberate indifference only when it "involves culpable recklessness, i.e., an act or a failure to act . . . that evinces 'a conscious disregard of a substantial risk of serious harm.'" Id. at 703 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). "Deliberate indifference requires more than negligence but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66. To establish deliberate indifference, an inmate must prove that (1) a prison medical care provider was aware of facts from which the inference could be drawn that the inmate had a serious medical need; and (2) the medical care provider actually drew that inference. Farmer, 511 U.S. at 837; Chance,143 F.3d at 702; see also Salahuddin, 467 F.3d at 280 (mental state for deliberate indifference "requires that the charged official act or fail to act while actually aware of a substantial risk that serious harm will result."). Significantly, non-medical personnel may engage in deliberate indifference if they intentionally deny or delay access to medical care. See Jean v. Barber, No. 9:09-cv-430 (MAD/GHL), 2011 WL 2975218, at *5, 2011 U.S. Dist. LEXIS 79499, at *13 (N.D.N.Y. July 21, 2011).
The Court finds solely for purposes of Defendants' motion to dismiss for failure to state a claim that Plaintiff has made a plausible showing that he has a serious medical condition. The Court also finds that solely for purposes of this motion, Plaintiff has made a plausible showing of deliberate indifference to his serious medical needs by various non-party DOCCS officials who have been involved in the denial of Plaintiff 's physician recommended transfer to a flats facility. The Court's finding is based upon Plaintiff's medical records showing, inter alia, disc herniations and spinal stenosis (Dkt. No. 1-1 at 7, 9, 13-20); Plaintiff's Ambulatory Health Record reporting that he had fallen backwards going up stairs because his back gave out, id. at 21; the findings by both Dr. Karandy and Dr. Mannava that Plaintiff has spinal disabilities that create problems in ambulating and, according to Dr. Karandy warranted Plaintiff's transfer to a flats facility, id. at 5; Dkt. No. 39-1 at 3-4; and the conflicting Reasonable Accommodation Request determinations by McDaniel. (Dkt. No. 39-1 at 3-4.)
Plaintiff's Eighth Amendment medical indifference claim is asserted against Defendants in their official capacities only, and the State is therefore the real party in interest. See Alster, 745 F. Supp. 2d at 338. The Eleventh Amendment does not bar a claim for prospective injunctive relief against defendants sued in their official capacities for violation of an inmate's Eighth Amendment medical indifference claim. See, e.g., Day v. Gallagher, No. 3:15-cv-001574 (JAM), 2015 WL 9482895, at *2, 2015 U.S. Dist. LEXIS 169972, at *3 (D. Conn. Dec. 21, 2015) (Eleventh Amendment does not bar claims for injunctive relief against state officials sued in their official capacities). In addition to the DOCCS officials identified on Plaintiff's Requests for Reasonable Accommodation, the IGRC, in denying Plaintiff's grievance, explained that "authority [to direct a transfer] is at the discretion of Central Office, and all Requests for Reasonable Accommodations are automatically reviewed by the Americans with Disabilities Department at Central Office." (Dkt. No. 1-1 at 4.)
Based upon the foregoing, the Court recommends that Defendants' motion to dismiss Plaintiff's Eighth Amendment medical indifference claim be denied.
ACCORDINGLY, it is hereby
RECOMMENDED that Plaintiff's motion for leave to amend his Complaint (Dkt. No. 35) be GRANTED for the sole purpose of substituting Annucci, Koenigsmann, and Knapp-David as defendants in their official capacities, and that Annucci, Koenigsmann, and Knapp-David, in their official capacities, be deemed to have stepped into the shoes of Fischer, Wright, and Carver for purposes of Defendants' Rule 12(b)(6) motion to dismiss; and it is further
RECOMMENDED that Defendants' Rule 12(b)(6) motion to dismiss Plaintiff's Complaint, as amended, for failure to state a claim (Dkt. No. 20) be DENIED; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with a copies of the unpublished decision cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: February 16, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge