386 F.3d 432 (2nd Cir. 2004), 04-0492, McKenna v. Wright

Docket Nº:04-0492-PR.
Citation:386 F.3d 432
Party Name:Edward MCKENNA, Plaintiff-Appellee, v. Lester N. WRIGHT, Associate Commissioner/Chief Medical Officer Docs; John P. Keane, Woodbourne Correctional Facility; T.J. Miller, Deputy Supt. for Admin., Woodbourne Correctional Facility; Frank Lancellotti, Mervat Makram, Health Care Unit, Woodbourne Correctional Facility; All Unnamed Persons, Officers, Civi
Case Date:October 18, 2004
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 432

386 F.3d 432 (2nd Cir. 2004)

Edward MCKENNA, Plaintiff-Appellee,

v.

Lester N. WRIGHT, Associate Commissioner/Chief Medical Officer Docs; John P. Keane, Woodbourne Correctional Facility; T.J. Miller, Deputy Supt. for Admin., Woodbourne Correctional Facility; Frank Lancellotti, Mervat Makram, Health Care Unit, Woodbourne Correctional Facility; All Unnamed Persons, Officers, Civilians, Individually and in Their Official Capacities, Defendants-Appellants.

No. 04-0492-PR.

United States Court of Appeals, Second Circuit

October 18, 2004

Argued: Aug. 23, 2004

Page 433

Melanie L. Oxhorn, Asst. Solicitor Gen., Office of N.Y. State Atty. Gen., New York, N.Y. (Eliot Spitzer, N.Y. State Atty. Gen., Michael S. Belohlavek, Dep. Solicitor Gen., New York, N.Y., on the brief), for Defendants-Appellants.

Kristina Jones, New York, N.Y. (Sung-Hee Suh, Stacy P. Aronowitz, Schulte Roth & Zabel LLP, New York, N.Y., on the brief), for Plaintiff-Appellee.

Before: NEWMAN, MINER, and KATZMANN, Circuit Judges.

JON O. NEWMAN, Senior Circuit Judge.

This interlocutory appeal concerns (a) the procedural issue of whether a qualified immunity defense may be presented in a motion to dismiss under Rule 12(b) (6) of the Federal Rules of Civil Procedure and (b) the substantive issue of whether a qualified immunity defense is valid on such a motion in the context of a prisoner's claim for inadequate medical treatment for Hepatitis C Virus ("HCV"). These issues arise on an appeal by personnel of the New York Department of Correctional Services

Page 434

("NYDOCS") from an order of the District Court for the Southern District of New York (Harold Baer, Jr., District Judge), denying their motion to dismiss a complaint by Plaintiff-Appellee Edward McKenna. We conclude that a qualified immunity defense can be presented in a Rule 12(b) (6) motion, but that the defense faces a formidable hurdle when advanced on such a motion and was properly rejected at this preliminary stage of McKenna's case. Because the availability of qualified immunity cannot now be determined as a matter of law, we lack appellate jurisdiction and therefore dismiss the appeal.

Background

Because the Defendants-Appellants have elected to present their qualified immunity defense in a motion to dismiss for failure to state a claim on which relief may be granted, we assess the appeal on the basis of the facts alleged in the Plaintiff-Appellee's complaint, which we assume to be true for purposes of this appeal. Cf. Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 250 (2d Cir. 2001) (reviewing grant of a motion to dismiss on the basis of facts in complaint assumed to be true). McKenna has been in the custody of NYDOCS since 1990. He has HCV, a treatable chronic blood-borne virus that seriously affects the functioning of the liver. He has informed prison officials that he is a Vietnam veteran, has used drugs intravenously, has been diagnosed with a sexually transmitted disease, and has previously been incarcerated. All these circumstances are indications of potential HCV disease. In 1994, tests indicated some symptoms of HCV.

In 1998, McKenna was transferred to Woodbourne Correctional Facility, but not tested for HCV, although it was NYDOCS policy to test all those entering a new facility for HCV. In 1999, McKenna was tested, and Dr. Mervat Makram, a physician at Woodbourne and one of the defendants, told McKenna that he had HCV. In 1999, McKenna saw Dr. Frank Lancellotti, another physician at Woodbourne and also one of the defendants, who treated him for abdominal pain. In September 1999, Dr. Lancelotti refused McKenna treatment for HCV because of a NYDOCS guideline that prohibited treatment for those who would not remain incarcerated for at least twelve months after treatment began. Although McKenna had four more years to serve, he had a Parole Board appearance scheduled in just under one year, which might have resulted in his release from custody.

In 2000, after being denied parole, McKenna again requested treatment, but Dr. Lancellotti declined because McKenna was not enrolled in an Alcohol and Substance Abuse Treatment ("ASAT")...

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