Liner v. Fischer
| Decision Date | 24 June 2013 |
| Docket Number | 11 Civ. 6711 (PAC) (JLC) |
| Parties | JOSHUA LINER, Plaintiff, v. BRIAN FISCHER, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
REPORT AND RECOMMENDATION
Plaintiff Joshua Liner, a prisoner at South port Correctional Facility in Pine City, New York, has brought this action pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional rights at several prisons where he has been incarcerated.1 Proceeding pro se, Liner has sued Brian Fischer, Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS"); Carl J. Koenigsmann, Chief Medical Officer for DOCCS; Ada Perez, Superintendent of Downstate Correctional Facility; and Lawrence Wilcox, a nurse practitioner at Lakeview Shock Incarceration Correctional Facility.
In his Amended Complaint, Liner alleges a myriad of claims: he was denied adequate medication for glaucoma; he was denied adequate foot cream and skin lotion; he was denied a bottom-bunk permit; treatment for his back pain was inadequate; guards at Gowanda, Great Meadow, and Wyoming Correctional Facilities deprived him of food; his legal mail and other property were lost, damaged, and destroyed by guards; a guard at Gowanda Correctional Facilitythreatened to urinate on his property unless Liner signed an "I-64" form; he was denied due process at two disciplinary hearings in 2011 as well as in a 2007 appeal of a disciplinary determination; and a DOCCS policy regarding inmate funds has left him without enough money in his account to buy postage stamps or other items from the prison commissary. In addition, Liner contends that he should be granted injunctive relief to (1) require that DOCCS provide him with adequate glaucoma medication; (2) prevent him from being assigned to a top bunk; (3) require that DOCCS give him medical records arising from his visits to an eye specialist; and (4) lift any disciplinary sanctions against him and remove them from his record.
Defendants have moved to dismiss the Amended Complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the motion to dismiss be granted, except as to Liner's deliberate indifference claims against Wilcox pertaining to his glaucoma treatment and chronic back pain, as to which the motion should be denied.
The following facts are taken from the Amended Complaint that Liner filed on April 23, 2012 ("Am. Compl.") (Dkt. No. 19), as well as from Liner's "Affidavit in Opposition to Defendants' Pledge" Pursuant to Fed. R. Civ. P. 12(b)(6), filed January 15, 2013 ("Pl. Opp.") (Dkt. No. 51).2
Liner, who is 54 years old, alleges that he has suffered from glaucoma since 2006. (Am. Compl. at 10).3 He asserts that an "eye specialist" has prescribed him "three bottles" of eye medication, but that from late 2010 until December 14, 2012, he received only two. (Id. at 10, 13; Pl. Opp. at 2-3, 6, 8). Liner also contends that he was denied eye medication altogether when he was temporarily transferred to Downstate Correctional Facility ("Downstate") to attend court proceedings on four different occasions in 2011 and 2012. (Am. Compl. at 1, 5, 20; Pl. Opp. at 3).4 Liner asserts that the denial of medication has caused "eye pain," "headaches," "blur [sic] vision," and a general deterioration of his vision such that he "could go blind." (Am. Compl. at 10, 20).
Liner brings specific claims against all four defendants with regard to the alleged denial of glaucoma medication. He contends that "Wilcox was personally advised on several interviews at the Lakeview Correctional Facility ("Lakeview"), that prescribed medication . . . [was] missing," but Wilcox refused to provide the missing medication. (Pl. Opp. at 2).According to Liner, Wilcox and other nurses said that Liner was being denied medication due to "'budget cuts'" that were "coming . . . out of Albany" and because "they do not believe the other bottle to[] be [n]ecessary." (Id.).5 Liner seeks damages of $750,000.00 from Wilcox. (See Am. Compl. at 17). He also seeks an injunction directing Wilcox to provide Liner with all three bottles of glaucoma medication, and a "restraining order compelling [Wilcox] to turn over all medical orders written by the eye specialist in [Wilcox's] immediate (possession) or control." (Id.).
As to Koenigsmann, Liner contends that he ordered the "exclusion of eye drop medication for treatment of glaucoma" (id. at 18); and conspired with Wilcox "to deny Plaintiff his glaucoma medication prescribed by medical eye specialist [sic]." (Id.). Liner seeks $750,000.00 in damages from Koenigsmann and an injunction compelling him to provide Liner with sufficient glaucoma medication. (See id. at 19).
As to Fischer, Liner contends that he acted with deliberate indifference to Liner's medical needs because he allegedly refused to address Liner's many grievances and complaints regarding glaucoma treatment. (See id. at 13). Liner seeks $750,000 in damages from Fischer. (See id. at 7).
Finally, as to Perez, Liner asserts that she was responsible for the denial of glaucoma medication at Downstate. Liner contends that Perez (1) acted with deliberate indifference by failing to ensure that Liner received his glaucoma medication while at Downstate (id. at 20); (2) poorly supervised staff with respect to the distribution of Liner's medication when he wastransferred to Downstate (see id.); (3) had "a policy protocol to convert dispenser of required medics from Albany DOCS Commissioner adoption," [sic] which constituted "deliberate indifference" (id.); (4) conspired with Fischer to deny Liner his medication (id.); and (5) was grossly negligent in failing to address Liner's lack of medication despite Liner's grievances and complaints to Fischer and the Governor of New York (see id. at 21). Liner seeks damages of $750,000.00 from Perez. (Id.).
In addition to his communication with Wilcox, described above, Liner generally alleges that "[t]he Central grievance process, and the magnitude of letters, grievances over . . . two years gave each defendant ample awareness of their illicit behavior." (Pl. Opp. at 5). He further asserts that, "where grievances also complaints to chief officer fail to prevail, the situation is obviously a custom" (id. at 14), and he suggests that it is implausible that "in almost an [sic] two year period they knew nothing of the deprivation of the glaucoma [medication] . . . ." (Id. at 13). As exhibits to his opposition papers, Liner attaches copies of his grievances and the institutional responses from when he was incarcerated at Lakeview (id., Exs. A, A1, A3, A4, C1), Gowanda (id., Ex. A2), Wyoming (id., Ex. B6), Elmira (id., Exs. B7, E2), and Upstate Correctional Facilities (id., Ex. C2). Liner also includes a May 15, 2010 letter to Fischer complaining about a female nurse at the Wyoming Correctional Facility ("Wyoming") who, on May 13 and 14, 2010, failed to treat his "jock itch" and his eye, head, and foot pain. (See id., Ex. A5). Liner asserts that he has filed many other grievances and complaints that are not in the record, including complaints addressed to Fischer, Koenigsmann, and Perez. (See id. at 3).6
Liner contends that he has dry, itchy skin requiring lotion. (See Am. Compl. at 16). He also asserts that he has an unspecified foot condition that requires medicated foot cream. (See id.; Pl. Opp. at 3). In describing his foot condition, Liner alleges that he has "chronic feet pain and chafting [sic], which turn into cuts when not treated." (Pl. Opp. at 3).
Liner alleges that Wilcox has been deliberately indifferent to his medical needs by providing an "inadequate dosage of feet creme medication," and by advising Liner that in order to obtain skin lotion, he must buy it from the prison commissary, which Liner cannot afford to do. (Am. Compl. at 16). Liner also asserts that Wilcox has acted with gross negligence by refusing to examine Liner's skin conditions. (Id.). In addition, Liner brings a retaliation claim against Wilcox, asserting that "[w]hen Wilcox was informed by me of the court proceeding[,] he stopped my medicated foot creme order." (Pl. Opp. at 3).
As to Koenigsmann, Liner contends that he has acted with gross negligence towards Liner's medical needs by failing to supervise medical staff, failing to maintain medical records, and allowing staff to withhold medical treatment "as punishment." (Am. Compl. at 18).
Liner alleges that he has chronic back pain, a leg injury, and bladder problems, and therefore requires a bottom bunk. (See id. at 1, 19; Pl. Opp. at 4.) Liner contends that Wilcox delayed evaluating him for a bottom bunk permit for more than two months in retaliation for Liner having filed various other grievances. (See Am. Compl. at 16). He also alleges that when Wilcox finally performed the evaluation on April 9, 2012, Wilcox did not review Liner's records properly, and thus Wilcox did not see that a nurse practitioner had previously determined that Liner should have a bottom bunk permit. (Id.).
Liner also contends that Fischer and Koenigsmann have acted with deliberate indifference to his medical needs by enforcing a policy that led to Liner having a top bunk despite his back, leg, and bladder problems. (Pl. Opp. at 4). Liner requests that an injunction be issued against Koenigsmann and Fischer to direct that Liner be assigned a bottom bunk. (Am. Compl. at 15, 19).
Liner contends that he has "permanent back damage[]" due to injuries "from an amusement park ride ([a]t Great Adventure)" and "being hit by a car." (Pl. Opp. at 5). He alleges that treatment for his back has been inadequate (Am. Compl. at 1, 19); specifically, the "pills prescribed" for his...
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