13-4428-pr Dotson v. Fischer

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not ha ve precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (wit h the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 2 nd day of June, two thousand fifteen. 3

4 PRESENT: 5 R OBERT D. S ACK , 6 B ARRINGTON D. P ARKER , 7 S USAN L. C ARNEY , 8 Circuit Judges

. 9

_____________ _______________ ______________ 10

11 T YRONE D OTSON , 12
13 Plaintiff-Appellant, 14
15 v. No. 13-4428-pr 16

17 B RIAN F ISCHER , C OMMISSIONER , N EW Y ORK S TATE 18 D EPARTMENT OF C ORRECTIONS AND C OMMUNITY 19 S UPERVISION , D R

. C ARL J. K OENIGSMANN , D EPUTY 20 C OMMISSIONER AND C HIEF M EDICAL O FFICER , N EW 21 Y ORK S TATE D EPARTMENT OF C ORRECTIONS AND 22 C OMMUNITY S UPERVISION , D R

. E ILEEN D INISIO , 23 R EGIONAL M EDICAL D IRECTOR , N EW Y ORK S TATE 24 D EPARTMENT OF C ORRECTIONS AND C OMMUNITY 25 S UPERVISION , D R

. B EVERLY P RINCE , E RIE C OUNTY 26 M EDICAL C ENTER , D ALE A RTUS , S UPERINTENDENT , 27 W ENDE C ORRECTIONAL F ACILITY , N EW Y ORK S TATE 28 D EPARTMENT OF C ORRECTIONS AND C OMMUNITY 292 S UPERVISION , R OSALYN K ILLINGER , D EPUTY 1 S UPERINTENDENT FOR H EALTH S ERVICES , 2 W ENDE C ORRECTIONAL F ACILITY , N EW Y ORK 3 S TATE D EPARTMENT OF C ORRECTIONS AND 4 C OMMUNITY S UPERVISION , T HOMAS S TICHT , 5 D EPUTY S UPERINTENDENT FOR S ECURITY S ERVICES , 6 W ENDE C ORRECTIONAL F ACILITY , N EW Y ORK S TATE 7 D EPARTMENT OF C ORRECTIONS AND C OMMUNITY 8 S UPERVISION , D R

. J ACQUELINE L EVITTE , F ACILITY 9 H EALTH S ERVICES D IRECTOR , W ENDE 10 C ORRECTIONAL F ACILITY , N EW Y ORK S TATE 11 D EPARTMENT OF C ORRECTIONS AND C OMMUNITY 12 S UPERVISION , 13

14 Defendants. * 15

_____________ _______________ ______________ 16

17 FOR PLAINTIFF-APPELLANT: B RYAN J. W EGRZYN (Ross E. Morrison, on 18 the brief ), BuckleySandler LLP, New York, 19 NY. 20

21

22 FOR THE ATTORNEY GENERAL 23 OF NEW YORK AS AMICUS CURIAE: Andrew Ayers and Kate H. Nepveu, 24 Assistant Solicitors General, and Barbara 25 D. Underwood, Solicitor General, for Eric 26 T. Schneiderman, Attorney General of the 27 State of New York, Albany, NY. 28
29 Appeal from a judgment of the United Stat es District Court for the Western District 30 of New York (Arcara, J. ). 31

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 32 ADJUDGED, AND DECREED that the November 5, 2013 judgment of the District 33

Court is VACATED and the cause is REMANDED for further proceedings consistent 34

with this order. 35

* The Clerk of Court is respectfully directed to amend the official caption in this case to conform to the above.3 Plaintiff Tyrone Dotson brings claims under 42 U.S.C. § 1983 for alleged violations 1 of his First and Eighth Amendm ent rights during his incarceration at the state-run Wende 2 Correctional Facility in Alden, New York. He alleges that he was deliberately denied 3 adequate medical treatment by prison official s and was retaliated against for making related 4 complaints. Acting sua sponte , the District Court dismissed his pro se complaint and amended 5 complaint pursuant to 28 U.S.C. §§ 1915(e)(2 ) and 1915A(b). We assume the parties’ 6 familiarity with the underlying facts and the pro cedural history of the case, to which we refer 7 only as necessary to explain our d ecision to vacate and remand. 1 8

Dotson challenges the District Court’s di smissal of his Eighth Amendment claims 9 against Drs. Dinisio, Koenigsmann, and Prince , and of his First Amendment claim against 10 Sticht. Dotson alleges that Drs. Dinisio and Koenigsmann, each of whom had supervisory 11 authority over inmates’ medical care, violated the Eighth Amendment by denying an urgent 12 recommendation that he receive surgery to remove a cyst in his left ear, delaying the surgery 13 for one year and prolonging his severe sympto ms. He asserts that Dr. Prince provided 14 unconstitutionally inadequate medical care in connection with the surgery that she 15 performed on his left ear. Finally, he claims that Sticht, the Deputy Superintendent for 16 Security, violated the First Amendment by imposing on Dotson conditions akin to 17 disciplinary confinement in retaliation for Dots on’s repeated filing of grievances. Sticht 18 accomplished this, Dotson alleges, by changingto a “medical keeplock” permit a “feed-in19 cell” permit that Dotson was issued for medical reasons. 20

The District Court (Judge Larimer) review ed Dotson’s initial complaint as required by 21 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, whic h apply to actions brought by prisoners 22 proceeding in forma pauperis and provide for dismissal of a complaint that is frivolous, 23 malicious, or fails to state a claim on which relief may be granted. See Abbas v. Dixon , 480 24

1 Because the District Court dismissed the action befo re process was served, the defendants listed in the complaint are not parties to this appeal and filed no brief as appellees. At our invitation, however, the Office of the Attorney General of the State of New York filed a brief as amicus curiae in support of the position of the state defendants an d of one defendant, Dr. Prince, who was a state

contractor.4 F.3d 636, 639 (2d Cir. 2007). In May 2013, the court dismi ssed with prejudice the Eighth 1 Amendment count against Dr. Prince for failure to state a claim. It further dismissed 2 without prejudice the claims against Drs. Dinisio and Koenigsmann under the Eighth 3 Amendment and against Sticht under the First Amendment, permitting Dotson to file an 4 amended complaint as to these defendants. Dotson did so, supplementing his original 5 allegations. 6

On November 5, 2013, the District Court (by then, Judge Arcara) determined—also 7 under §§ 1915(e)(2) and 1915A—that the amended co mplaint, too, failed to state a claim to 8 relief as to the remaining defendants and en tered judgment dismissing the action with 9 prejudice. Dotson timely appealed, and our Court granted Dotson’s motions for leave to 10 proceed in forma pauperis on appeal and for appointment of counsel. 2 11

Now ably counseled, Dotson argues on appe al that the District Court erred in 12 dismissing his constitutional claims against St icht and Drs. Dinisio, Koenigsmann, and 13

Prince. We review de novo a District Court’s sua sponte dismissal of a complaint under 28 14 U.S.C. §§ 1915(e)(2 ) and 1915A. See Giano v. Goord , 250 F.3d 146, 149- 150 (2d Cir. 2001); see 15 also Larkin v. Savage , 318 F.3d 138, 139 (2d Cir. 2003) (p er curiam). To avoid dismissal, a 16 complaint must plead “enough facts to state a cl aim to relief that is plausible on its face.” 17 Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the 18 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 19 defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). 20

We afford a pro se litigant “special solicitude” by interpreting a complaint filed pro se “to raise 21 the strongest claims that it suggests.” Hill v. Curcione , 657 F.3d 116, 122 (2d Cir. 2011) 22 (internal alterations and quotation marks omitted). 23

2 Pro bono counsel Bryan J. Wegrzyn and Ross E. Mo rrison of BuckleySandler have performed ably in this matter, and the Court appreciates their se rvice, which it hopes may continue on remand. If counsel is disinclined, however, to continue its representation in further proceedings, the District Court should appoint new counsel.5 Upon considered review, we conclude that the District Court erred by dismissing 1 Dotson’s Eighth Amendment claims that Drs. Dinisio and Koenigsmann unconstitutionally 2 denied him medical care. A prisoner pressing such a claim must colorably allege that the 3

defendant acted with deliberate indiffere nce to his serious medical needs. See Hilton v. 4 Wright , 673 F.3d 120, 127 (2d Cir. 2012) (per curiam). A “serious medical need” exists 5 where, objectively, “the failure to treat a pr isoner’s condition could result in further 6 significant injury or the unnecessary and wanton infliction of pain.” Harrison v. Barkley , 219 7 F.3d 132, 136 (2d Cir. 2000) (internal quotation marks omitte d). “Deliberate indifference” 8 requires allegations of the defendants’ subject ive state of mind: that the prison official 9 “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.” Smith v. Carpenter

, 10 316 F.3d 178, 184 (2d Cir. 2003) (interna l quotation marks omitted). 11

The amended complaint plausibly alleges a se rious medical need. Dotson alleges that 12 a CAT scan revealed a cyst in his left ear, and that Nurse Practitioner Jennifer Wrest 13 recommended surgery and requested an “urgent” le vel of attention. App. 41. Over the year 14 following that “urgent” recommendation, while the recommended surgery was delayed, 15 Dotson complained on numerous occasions of “v ertigo, blinding headaches, extreme pain in 16 his left ear, and increased hearing loss.” Id. at 41-42. When the cyst was finally removed, 17 one year later, it was of “significant size.” Id. at 42. Such allegations of a “condition of 18 urgency” that “may produce . . . extreme pain ” satisfy the objective prong of the analysis. 19 Hathaway v. Coughlin , 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation marks omitted). 20

The amended complaint also plausibly alle ges that Drs. Dini sio and Koenigsmann 21 acted with sufficiently culpable states of mind to support liability. To satisfy this prong of 22 the deliberate indifference test, a plaintiff must allege only that the defendant was “aware of 23

facts” from which one could infer that “a substa ntial risk of serious harm” existed, and that 24 the defendant actually drew that inference. Farmer v. Brennan , 511 U.S. 825, 837 (1994); see 25

also Hilton , 673 F.3d at 127. Here, Dotson asserts that Drs. Dinisio and Koenigsmann 26

reviewed Wrest’s evaluation and recommendati on that his condition demanded “urgent” 27 care and rejected it, apparently without causing him to be examined again in person or taking 286 any further step. As noted, their denials are a lleged to have delayed Dotson’s surgery for one 1 year and resulted in the continuation of seve re symptoms. Allegations of delayed medical 2 care may support a finding of deliberate indifference to a serious medical need, see, e.g. , 3 Hathaway v. Coughlin , 841 F.2d 48, 50-51 (2d Cir. 1988), an d allegations that delayed treatment 4 resulted in serious harm may bear on the reas onableness of an inference of a defendant’s 5 knowledge of the risks to which he or she subjected the plaintiff, see Hilton , 673 F.3d at 127. 6 We believe Dotson’s allegations suffice at this ea rly stage of the litigation to state a plausible 7

claim to relief. 8

We similarly conclude that the District Court erred by dismissing Dotson’s Eighth 9 Amendment claim against Dr. Prince for her affirm ative acts. Although mere allegations of 10 medical malpractice are generally insufficient to support liability, see Estelle v. Gamble , 429 U.S. 11 97, 105-06 (1976), allegations regarding the provision of medical care may be actionable 12 under the Eighth Amendment when the alleged malpractice involves culpable recklessness, 13 that is, “an act . . . by a prison doctor that ev inces a conscious disregard of a substantial risk 14

of serious harm.” Hill , 657 F.3d at 123 (internal alterati ons and quotation marks omitted). 15 Here, Dotson alleges that Dr. Prince mismanaged hi s first surgery by leaving gauze in his ear; 16 that after a second surgery by Dr. Prince, he experienced months of vertigo, “excessive 17 bleeding at the incision, and pain in the eyes,” App. 14; and that when he saw Dr. Prince for 18 a follow-up appointment, she ad mitted that Dotson “now ha[d] a hole in his left ear drum” 19

and that she needed to refer him to some one “more qualified,” App. 15. Construing 20

Dotson’s pro se pleadings, as we must, to raise the st rongest arguments they suggest, we rule 21 that Dotson’s allegations permit a reasonable in ference that Dr. Prince’s malpractice rose to 22 a level of culpable recklessness and suffice to state an Eighth Amendment claim. 23

Finally, we conclude that the District Court improperly dismissed Dotson’s First 24 Amendment retaliation claim against Sticht. To st ate such a claim, an inmate must allege 25 that he engaged in protected conduct and that his conduct was a “substantial or motivating 26 factor” for an adverse action taken by a prison official. Holland v. Goord , 758 F.3d 215, 225 27 (2d Cir. 2014) (internal quotation marks omitte d). “[T]emporal proximity of an allegedly 287 retaliatory misbehavior report to a grievan ce may serve as circumstantial evidence of 1

retaliation.” Gayle v. Gonyea , 313 F.3d 677, 683 (2d Cir. 2002) (citing Colon v. Coughlin , 58 F.3d 2 865, 872 (2d Cir. 1995)). Al though Dotson’s pleadings on th is matter are not a model of 3 clarity, they suggest sufficient temporal proximity between Dotson’s complaints of 4 inadequate medical care and Sticht’s deci sion placing Dotson in keeplock to support 5 Dotson’s retaliation claim at this pleading st age. With the assistance of counsel, Dotson may 6 replead this claim if he so chooses and the District Court can then reassess its viability. 7

* * * 8

We therefore VACATE the judgment of the District Court and REMAND the 9 cause for further proceedings consistent with this order. 3 10

11

FOR THE COURT: 12 Catherine O’Hagan Wolfe, Clerk of Court 13

3 Our vacatur and remand are without prejudice to any motion to dismiss the complaint that defendants may file after they have been served with the amended complaint. We also leave open the possibility that, represented by counsel, Do tson may propose an additional amended complaint appending any relevant medical docu ments that he has procured.