Allen v. New York State Department of Corrections and Community Supervision

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

PETER ALLEN, et al.,

Plaintiffs,

No. 19-CV-8173 (LAP)

-against-

OPINION & ORDER

CARL KOENIGSMANN, et al.,

Defendants.

LORETTA A. PRESKA, Senior United States District Judge:

Before the Court are two motions to dismiss the First

Amended Class Action Complaint (the “FAC”).1 First, Defendants

Drs. Ann Andola (“Andola”), Mikhail Gusman (“Gusman”), Chun Lee

(“Lee”), Kathleen Mantaro (“Mantaro”), David Karandy

(“Karandy”), and Nurse Practitioners Albert Acrish (“Acrish”)

and Mary Ashong (“Ashong”) (collectively, the “Non-State

Represented Defendants,” “NSRDs,” or “Defendant Providers”) move

to dismiss the FAC as against them pursuant to Federal Rule of

Civil Procedure 12(b)(6).2 (See dkt. nos. 92, 93, 132.) Second,

Defendants the New York State Department of Correction and

Community Services (“DOCCS”), Drs. Carl Koenigsmann

(“Koenigsmann”), John Morley (“Morley”), Susan Mueller

(“Mueller”), David S. Dinello (“Dinello”), Paula Bozer

1 (See FAC, dated December 11, 2019 [dkt. no. 76].)

2 On June 18, 2020, the Court ordered Dr. Peter Braselmann’s

request to join the NSRDs’ motion to dismiss. (See dkt. no.

146.)

(“Bozer”), John Hammer (“Hammer”), Jon Miller (“Miller”), and

Nurse Practitioner Kristin Salotti (“Salotti”) (collectively,

the “State Represented Defendants” or “Defendant

Administrators”) move to dismiss the FAC as against them

pursuant to Federal Rules of Civil Procedure 12(b)(1),3 12(b)(3),

and 12(b)(6). (See dkt. nos. 101, 102, 133.) Plaintiffs oppose

the motions. (See dkt. no. 109.) For the reasons set forth

below, Defendant Providers’ and Defendant Administrators’

motions are DENIED.

I. Background

This is a putative class action by inmates in the custody

of DOCCS who require pain management and/or neuromodulating

medication to treat chronic health conditions. On June 2, 2017,

Koenigsmann, DOCCS’ Chief Medical Officer (“CMO”) until late

2018, promulgated the Medications With Abuse Potential (“MWAP”)

Policy.4 Under the MWAP Policy, a medical provider no longer

submitted a “Non-Formulary drug request” for an MWAP medication;

rather, he or she submitted “an MWAP Request Form” to the

Regional Medical Director (“RMD”) in charge of his or her “hub.”

(See SAC ¶ 168.) Approval by an RMD or the CMO—based on the

3 The Court does not decide the pending 12(b)(1) motions, (see

dkt. no. 102 at 1; dkt no. 273 at 1, 13), as to date Plaintiffs

have not filed their opposition to the 12(b)(1) motions along

with Plaintiffs’ motion for injunctive relief. (See dkt. nos.

285, 291 at 1 n.1.)

4 (See Second Amended and Supplemental Class Action Complaint

(“SAC”), dated June 25, 2021 [dkt. no. 256] ¶¶ 156-57.)

MWAP Request Form’s contents—was required prior to a pharmacy’s

filling the requested MWAP medication. (See id. ¶¶ 35, 173,

177.) Once an RMD or the CMO declined an MWAP Request Form,

medical personnel could not give the inmate the requested MWAP

medication. (See id. ¶¶ 168, 178.)

Plaintiffs allege that “the MWAP Policy is unconstitutional

as applied to patients for whom certain MWAP medications are the

most (if not only) effective medications to treat their chronic

pain and neurological issues” because “the MWAP Policy strips

medical treatment decisions from the medical providers and

specialists who treat patients and puts it in the hands of

remote medical administrators, who invariably deny the MWAP

medications, no matter the patient’s individual medical needs.”

(Id. at 1-2.)

Plaintiffs commenced the instant action on September 2,

2019, stating claims pursuant to 42 U.S.C. § 1983 (“§ 1983”) for

violations of the Eighth Amendment. (See dkt. no. 1.) On

January 18, 2020, Plaintiffs filed the FAC. (See dkt. no. 76.)

Three months later, in April 2020, Defendants filed motions to

dismiss. (See dkt. nos. 92, 101.)

On May 5, 2020, the Court ordered the voluntary dismissal

of Count II of the FAC, as well as claims against DOCCS, Miller,

and Bozer. (See dkt. no. 111.) Thus, the Court need not decide

the following:

1. NSRDs’ arguments regarding Count II of the FAC (see dkt.

no. 93 at 18-21);

2. The State Represented Defendants’ Eleventh Amendment

argument regarding DOCCS (see dkt. no. 102 at 44-45);

3. The State Represented Defendants’ argument that

Plaintiffs failed to plead Bozer’s personal involvement

in any alleged constitutional violation (see id. at 30-

33); and

4. The State Represented Defendants’ argument that

Plaintiffs failed to plead Miller’s personal involvement

in any alleged constitutional violation (see id. at 36-

37).

On December 14, 2020, Plaintiffs moved for leave to file

the SAC, noting that the SAC intentionally did not disturb

allegations related to Defendants’ pending motions to dismiss.

(See dkt. nos. 189, 190.) Defendants did not file an

opposition. The Court granted Plaintiffs’ motion on June 7,

2021. (See dkt. no. 250.) Plaintiffs filed the SAC on June 25,

2021. (See dkt. no. 256.) The SAC substituted Defendant

Qutubuddin Dar, MD (“Dar”) for the former “John Doe, MD #1,”

added a claim against Morley in his individual capacity, removed

the voluntarily dismissed claims and defendants, and, among

other things, added new allegations regarding Koenigsmann and

Morley (who replaced Koenigsmann as CMO in late 2018). (See

dkt. no. 190 at 1.) On July 23, 2021, the Court ordered the

NSRDs’ request to apply their pending motion to dismiss (dkt.

nos. 92, 93) to the SAC. (See dkt. nos. 269, 272.) Thus, in

deciding the NSRDs’ motion to dismiss, the Court considers

Plaintiffs’ allegations in the SAC.

The State Represented Defendants filed supplemental

briefings addressing changes in Plaintiffs’ allegations since

the State Represented Defendants filed their pending motion to

dismiss. (See dkt. nos. 273, 299.) The State Represented

Defendants’ supplemental briefing also addresses DOCCS’

recission of the MWAP Policy on February 8, 2021, replaced by

Health Services Policy Number 1.24A—Prescribing for Chronic

Pain. (See dkt. no. 273 at 2.) Plaintiffs opposed the motion

to dismiss. (See dkt. no. 291.) Thus, in deciding the State

Represented Defendants’ motions to dismiss, the Court considers

Plaintiffs’ allegations in the SAC, referring to the State

Represented Defendants’ supplemental briefing regarding new

allegations raised in the SAC.

On November 8, 2021, the Court ordered the voluntary

dismissal of all claims by Plaintiffs Spencer Jackson and

Michael Vattiato (“Vattiato”), which consequently dismissed all

claims against Dar. (See dkt. no. 319.) Thus, the Court need

not decide Plaintiffs’ claims against Dar under Count II of the

SAC, (see SAC ¶¶ 1055-67), or Defendant Administrators’ motion

for improper venue for Vattiato, (see dkt. no. 102 at 44).

Finally, on April 7, 2022, the Court ordered the substitution of

Dr. Carol Moores (“Moores”) for Morley for Plaintiffs’ official

capacity claims against Morley. (See dkt. no. 342.)

II. Legal Standards

a. Rule 12(b)(3)

Federal Rule of Civil Procedure 12(b)(3) provides that a

defendant may move to dismiss for improper venue. Fed. R. Civ.

P. 12(b)(3). In adjudicating a motion to dismiss pursuant to

Rule 12(b)(3), the Court accepts as true all factual allegations

in the non-moving party’s pleadings and draws all reasonable

inferences in that party’s favor. See Blakely v. Lew, No. 13

Civ. 2140 (JMF), 2013 WL 6847102, at *1 (S.D.N.Y. Dec. 30,

2013). Under Rule 12(b)(3), the Court may consider materials

outside the pleadings. See Concesionaria DHM, S.A. v. Int’l

Fin. Corp., 307 F. Supp. 2d 553, 555 (S.D.N.Y. 2004). “Once

venue is challenged, the plaintiff has the burden to establish

that venue is proper.” Water Quality Ins. Syndicate v. Nat’l

Pollution Funds Ctr., No. 19 Civ. 6344 (PAE), 2020 WL 417653, at

*4 (S.D.N.Y. Jan. 27, 2020); see also K.A. Holdings Ltd. of N.Y.

v. Chagaris, No. 07-CV-9675, 2009 WL 10685159, at *5 (S.D.N.Y.

Nov. 13, 2009) (“On a motion to dismiss for improper venue, the

plaintiff has the burden of establishing that it has chosen a

proper venue.”). “Unless the court holds an evidentiary

hearing, however, ‘the plaintiff need only make

a prima facie showing of venue.’” NextEngine Inc. v.

NextEngine, Inc., No. 17-CV-9785 (JPO), 2019 WL 79019, at *1

(S.D.N.Y. Jan. 2, 2019) (citations omitted). Under 28 U.S.C.

§ 1406(a), if a case is filed in an improper venue, the Court

“shall dismiss, or if it be in the interest of justice, transfer

such case to any district or division in which it could have

been brought.” 28 U.S.C. § 1406(a).

b. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, the plaintiff

must plead sufficient facts “to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). That “standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that

a defendant has acted unlawfully.” Palin v. N.Y. Times Co.,

940 F.3d 804, 810 (2d Cir. 2019) (quoting Iqbal, 556 U.S. at

678). Evaluating “whether a complaint states a plausible claim

for relief” is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679.

When considering a motion to dismiss, the court “accept[s]

as true all factual allegations and draw[s] from them all

reasonable inferences.” Dane v. UnitedHealthcare Ins. Co.,

974 F.3d 183, 188 (2d Cir. 2020). It is not required, however,

“to credit conclusory allegations or legal conclusions couched

as factual allegations.” Id. (ellipsis omitted) (quoting

Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)).

“Accordingly, threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not

suffice.” Nielsen, 746 F.3d at 62 (cleaned up). “While legal

conclusions can provide the framework of a complaint, they must

be supported by factual allegations.” Iqbal, 556 U.S. at 679.

“In adjudicating a motion to dismiss, a court may consider

only the complaint, any written instrument attached to the

complaint as an exhibit, any statements or documents

incorporated in it by reference, and any document upon which the

complaint heavily relies.” ASARCO LLC v. Goodwin, 756 F.3d 191,

198 (2d Cir. 2014) (quoting In re Thelen LLP, 736 F.3d 213, 219

(2d Cir. 2013)). The Court may take judicial notice of

documents that are “integral to the complaint,” such that the

complaint “relies heavily upon [the documents’] terms and

effect.” Palin, 940 F.3d at 811 (citation omitted).

A complaint alleging a civil rights violation pursuant to

§ 1983 must contain specific factual allegations demonstrating a

deprivation of a constitutional right, or it will be dismissed.

Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).

However, claims brought pursuant to § 1983 are not subjected to

Rule 9(b)’s heightened pleading standard. O’Hara v. City of New

York, 17-CV-4766 (ILG) (RML), 2021 WL 4932287, at *5 (E.D.N.Y.

Oct. 22, 2021).

III. Discussion

a. Section 1983 Claim for Deliberate Indifference

Plaintiffs press, under § 1983, Eighth Amendment deliberate

indifference claims against Defendant Providers and Defendant

Administrators, regarding “constitutional violations that

occurred after effective medical treatment was discontinued

pursuant to the MWAP Policy.” (Dkt. no. 109 at 31.) The Court

addresses Defendant Providers’ and Defendant Administrators’

arguments in turn.

i. Claims Against Defendant Providers

1. Failure to State a Claim

A plaintiff suing under § 1983 must show that the

defendants “deprived him of a right secured by the Constitution

or laws of the United States.” Palmieri v. Lynch, 392 F.3d 73,

78 (2d Cir. 2004). In Estelle v. Gamble, 429 U.S. 97, 104-05

(1976), the Supreme Court held that “to state a cause of action

under § 1983 for violations of the Eighth Amendment’s Cruel and

Unusual Punishment Clause, a prisoner must show that the state

was deliberately indifferent to his or her medical needs.”

Charles v. Orange County, 925 F.3d 73, 85 (2d Cir. 2019) (citing

Estelle, 429 U.S. at 105); Harrison v. Barkley, 219 F.3d 132,

136 (2d Cir. 2000). Deliberate indifference may be manifested

“by prison doctors in their response to the prisoner’s needs or

by prison guards in intentionally denying or delaying access to

medical care or intentionally interfering with the treatment

once prescribed.” Estelle, 429 U.S. at 104-05.

To prevail on a claim of failure to protect or deliberate

indifference to health or safety due to unconstitutional

conditions of confinement, Plaintiffs must prove objective and

subjective elements. See Chance v. Armstrong, 143 F.3d 698, 702

(2d Cir. 1998); see also Farmer v. Brennan, 511 U.S. 825, 834

(1994) (“[A] prison official violates the Eighth Amendment only

when two requirements are met.”).

First, to meet the objective prong, “the alleged

deprivation of adequate medical care must be ‘sufficiently

serious.’” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.

2006) (citations omitted). To determine whether a deprivation

is sufficiently serious, the court conducts a two-part inquiry.

Id. First, Plaintiffs must demonstrate that they were “actually

deprived of adequate medical care.” Id. In Salahuddin, the

Court of Appeals held that an inmate receives adequate medical

care when “prison officials [] act reasonably [in response to an

inmate-health risk].” Id. at 279 (citation omitted).

Conversely, however, “failing ‘to take reasonable measures’ in

response to a medical condition can lead to liability.” Id. at

280 (citation omitted).

Second, the court inquires “whether the inadequacy in

medical care is sufficiently serious.” Id.; see also Sonds v.

St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 310

(S.D.N.Y. 2001) (noting that courts deem a medical condition

“‘serious’ if it is ‘one that has been diagnosed by a physician

as requiring treatment’” (citation omitted)). Because

Plaintiffs acknowledge that they received some medical care

related to their underlying conditions but allege that the care

they received was inadequate, “the seriousness inquiry

‘focus[es] on the challenged delay or interruption in treatment

rather than the prisoner’s underlying medical condition alone.’”

Salahuddin, 467 F.3d at 280 (quoting Smith v. Carpenter, 316

F.3d 178, 185 (2d Cir. 2003)); see also Sonds, 151 F. Supp. 2d

at 310 (“The seriousness of an inmate’s medical need may also be

determined by reference to the effect of denying the particular

treatment.”).5

The second prong of the deliberate indifference test is

subjective and requires Plaintiffs to demonstrate that

Defendants had “a sufficiently culpable state of mind.”

Salahuddin, 467 F.3d at 280 (citing Wilson v. Seiter, 501 U.S.

294, 300 (1991)). A defendant had a sufficiently culpable state

of mind if he or she “acted or failed to act ‘while actually

aware of a substantial risk that serious inmate harm will

result.’” Horace v. Gibbs, 802 F. App’x 11, 14 (2d Cir. 2020)

(quoting Salahuddin, 467 F.3d at 280); see also Brock v. Wright,

315 F.3d 158, 164 (2d Cir. 2003) (noting that “evidence that the

risk was obvious or otherwise must have been known to a

defendant is sufficient to permit a jury to conclude that the

defendant was actually aware of [the risk]”). The level of

5 Plaintiffs acknowledge that they “were not denied care;”

rather, Plaintiffs allege that the medical care they received

after the MWAP Policy was promulgated was inadequate to treat

their preexisting medical needs. (Dkt. no. 109 at 12 n.4.)

This acknowledgment is significant as case law demonstrates a

difference in the second inquiry of the objective prong if a

plaintiff is denied care. See Salahuddin, 467 F.3d at 280

(noting that “if the unreasonable medical care is a failure to

provide any treatment for an inmate’s medical condition, courts

examine whether the inmate’s medical condition is sufficiently

serious . . . includ[ing] whether ‘a reasonable doctor or

patient would find [it] important and worthy of comment,’

whether the condition ‘significantly affects an individual’s

daily activities,’ and whether it causes ‘chronic and

substantial pain.’” (citations omitted, emphasis added)).

subjective culpability required is “the equivalent of criminal

recklessness.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir.

2003) (quotation marks and citation omitted). It is “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.

“Proof of awareness of a substantial risk of the harm suffices.”

Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 835).

Defendant Providers argue that Plaintiffs’ allegations fail

to give rise to the plausible inference that they satisfy either

prong of the deliberate indifference test. (See dkt. no. 93 at

21-37.) Specifically, Defendant Providers argue that Plaintiffs

do not allege a policy-based deliberate indifference claim but

rather “eighteen factually distinct and separate deliberate

indifferen[ce] claims,” each failing as to Defendant Providers

because “Plaintiffs were frequently seen and treated, prescribed

pain medication and other modalities, sent to pain clinics, and

referred to outside specialists.” (Id. at 1, 24.) The Court

disagrees.

As to the first subpart of the objective prong, Plaintiffs

have adequately pleaded that they were actually deprived of

adequate medical care. First, Plaintiffs allege that Defendant

Providers failed to take reasonable measures treating Plaintiffs

under the MWAP Policy because Defendant Providers’ treatment

deviated from medical norms, considering the following:

1. The Federal Bureau of Prisons’ “Pain Management of

Inmates,” Clinical Guideline “does not prohibit the use

of opioids or neuromodulating medications like Lyrica and

Neurontin.” (SAC ¶ 122.)

2. The National Commission on Correctional Health Care—of

which DOCCS is an accredited member—published a position

statement on “Management of Noncancer Chronic Pain”

recommending that “when patient function remains poor and

pain is not well controlled, and other options have been

exhausted, a therapeutic trial of medication, including

opioids, should be considered. . . . Policies banning

opioids should be eschewed. Opiates should be considered

with caution after weighing other treatment options.”

(Id. ¶¶ 118-21 (emphasis added).)

Next, Plaintiffs ask the Court to draw a series of

inferences that Defendant Providers deviated from reasonable

medical practices. (See dkt. no. 109 at 34-36.) Specifically,

Plaintiffs ask the Court to infer that Defendant Providers’

dismissal of specialty doctors’ recommendations of MWAP

medications without explanation diverged from reasonable medical

practices based on the MWAP Policy and not medical judgment.

(See id.) Defendant Providers agree that “a deliberate

indifference claim can lie where prison officials deliberately

ignore the medical recommendations of a prisoner’s treating

physicians.” Johnson v. Wright, 412 F.3d 398, 404 (2d Cir.

2005); (see dkt. no. 132 at 4.).

Plaintiff Aaron Dockery’s request on June 20, 2017, for

either increased Neurontin or a more effective medication to

address his multiple sclerosis illustrates how the Court can

draw these inferences. (See SAC ¶ 484.) On the same day (18

days after DOCCS promulgated the MWAP Policy), rather than

increasing Dockery’s intake of Neurontin, Salotti developed “a

tapering schedule to take Mr. Dockery off his Neurontin

completely . . . [and] prescribed Depakote, a psychiatric

medication.” (Id. ¶ 485.) “Salotti made no reference in Mr.

Dockery’s [ambulatory health record (“AHR”)] to the

discontinuation of his Neurontin, nor is there any justification

in his medical records.” (Id. ¶ 486.) The following month,

Dockery saw neurologist Dr. Jubelt who not only “noted that the

facility ha[d] stopped his Neurontin and prescribed Depakote”

but also wrote, “since cannot get Neurontin, could try Lyrica

. . . .” (Id. ¶ 488.) Despite reviewing Dr. Jubelt’s

recommendation for Lyrica, Salotti “never attempted to order

Lyrica.” (Id. ¶ 489.) Taking these allegations as true, it is

reasonable for the Court to infer that Salotti tapered Dockery

off Neurontin, could not acquire Neurontin going forward, and

declined filing an MWAP Request Form for Lyrica—despite Dr.

Jubelt’s recommendation—in response to the MWAP Policy.

While the Court acknowledges that Salotti is a State

Represented Defendant, Plaintiffs similarly alleged that

Defendant Providers ignored specialists’ recommendations without

reasoning due to the MWAP Policy. For example, although Lee

noted in Plaintiff Mark Daniels’ AHR that neurologist Dr.

Dirisio recommended “Lyrica/Neurontin,” he “did not note why he

dismissed Dr. Dirisio’s recommendation . . . .” (Id. ¶ 407.)

In fact, during six specialty visits over three years,

specialists recommended prescribing Daniels Neurontin, Baclofen,

or Lyrica, but each recommendation was dismissed. (Id. ¶ 417.)

Taking these allegations as true, it is reasonable for the Court

to infer that Defendant Providers’ failure to prescribe

Neurontin, Baclofen, or Lyrica for Daniels was in response to

the MWAP Policy. Based on these examples, Plaintiffs have

adequately pleaded facts to permit the Court to infer that

Defendant Providers’ dismissal of specialty doctors’

recommendations of MWAP medications without explanation diverged

from reasonable medical practices because of the MWAP Policy and

not Defendant Providers’ medical judgment. (See dkt. no. 109 at

34-36.)

Finally, Plaintiffs allege that “Defendant Providers

prescribed patients psychiatric medication alternatives that

were ineffective and left patients with unbearable side

effects.” (Id. at 31.) In response, Defendant Providers seek

to dismiss Count II of the SAC as to Defendants Andola, Mantaro,

Ashong, and Acrish because Plaintiffs do not allege that these

Defendant Providers prescribed “psychiatric medications (i.e.[,]

Cymbalta; Depakote; Lamictal; and sometimes Elavil).” (Dkt. no.

132 at 3.) However, Plaintiffs plausibly alleged these

Defendants’ involvement in ignoring specialty doctors’

recommendations of MWAP medications.6 (See SAC ¶¶ 464, 467, 550,

602, 657-58.)

While Defendant Providers agree that the Court of Appeals

has held that “a physician may be deliberately indifferent if he

6 Defendant Providers also sought to dismiss Defendant Karandy

because he did not prescribe psychiatric medications. (See dkt.

no. 132 at 3.) However, unlike Defendants Andola, Mantaro,

Ashong, and Acrish, Plaintiffs have not adequately alleged that

Karandy ignored specialty doctors’ recommendations of MWAP

medications. Despite this difference, the Court does not

dismiss Karandy. Count II of the SAC also alleges that “MDs and

Mid-Level Clinicians [] abruptly discontinue a patient’s MWAP

medications regardless of the patient’s medical needs or the

successful treatment to date.” (SAC ¶ 1063.) Taking Plaintiffs’

allegations as true, on June 9, 2017, when DOCCS transferred

Derrick Williams from Green Haven to Great Meadow, Williams’s

preexisting prescription for Neurontin was discontinued. (SAC

¶ 1008.) Although Karandy “did not see or evaluate Mr. Williams

until July 17, 2017,” the Court may draw the reasonable

inference that Karandy either discontinued Williams’s Neurontin

on June 9, 2017, or did not note his neuropathic problems (which

may have resulted in the reinstatement of Neurontin) when he

evaluated Williams on July 17, 2017 because “[i]t does not seem

that Dr. Karandy had access to Mr. Williams’ medical chart or

history.” (Id. ¶ 1009.)

or she consciously chooses ‘an easier and less efficacious’

treatment plan,” Rodriguez v. Manenti, 606 F. App’x 25, 27 (2d

Cir. 2015) (citation omitted); (dkt. no. 132 at 3-4), Defendant

Providers misconstrue Plaintiffs’ allegations regarding their

involvement. Defendant Providers argue that once denied by an

RMD, they had no choice but to discontinue inmates’ MWAP

medications. (Dkt. no. 132 at 3-5.) However, Plaintiffs’

allegations are more nuanced. Plaintiffs allege that Defendant

Providers were deliberately indifferent by not submitting MWAP

Request Forms in response to specialist doctors’ recommendations

(effectively choosing a less efficacious treatment plan) because

of the MWAP Policy, not based on medical judgment. (Dkt. no.

109 at 35-36.) Accordingly, the Court finds that Plaintiffs

have adequately pleaded the first subpart of the objective

prong.

As to the second subpart of the objective prong, Plaintiffs

argue that this prong is met as “[n]either set of Defendants

contends that Plaintiffs did not truly suffer after the

discontinuation of MWAPs.” (Id. at 34.) The Court agrees that

Defendant Providers do not debate the severity of Plaintiffs’

suffering after the discontinuation of their MWAP medications.

Thus, the Court finds that Plaintiffs have adequately pleaded

the second subpart of the objective prong.

As to the second subjective prong, Defendant Providers

argue that because they provided alternative treatments to

Plaintiffs following the promulgation of the MWAP Policy,

Plaintiffs have not adequately pleaded the required mental

culpability. (See dkt. no. 93 at 25-37.) As stated above, the

second prong requires a plaintiff to allege that a defendant

“acted or failed to act while actually aware of a substantial

risk that serious inmate harm will result.” Horace, 802 F.

App’x at 14 (cleaned up). As shown in the examples discussed

above, Plaintiffs have alleged that Defendant Providers (1) were

aware of Plaintiffs’ chronic pain and neurological issues after

their MWAP medications were discontinued, (2) knew that their

prescribed course of treatment for Plaintiffs’ pain management

did not include the MWAP medications recommended by specialist

doctors, and (3) declined to file MWAP Request Forms based on

those recommendations. See Hathaway v. Coughlin, 37 F.3d 63, 68

(2d Cir. 1994). Accordingly, the Court finds that Plaintiffs

have adequately pleaded the second prong of the deliberate

indifference test. Thus, Defendant Providers’ motion to dismiss

for failure to state a claim is denied.

ii. Claims Against Defendant Administrators

1. Failure to State a Claim

Defendant Administrators first dispute that a “general

policy denying medications regardless of need [existed], rather

than discrete decisions based on individual factors.” (Dkt. no.

133 at 3.) That argument fails. Plaintiffs clearly allege that

on June 2, 2017, Koenigsmann promulgated the MWAP Policy, an

allegation that must be accepted as true at this stage. (See

SAC ¶¶ 156-57.)

The Court pauses to note that Plaintiffs do not allege that

the MWAP Policy was a blanket policy. Rather, Plaintiffs

contend that Defendant Administrators’ implementation of the

MWAP Policy established a pattern of deliberate indifference

“that denied patients individualized assessments of need” and

gave “less efficacious treatment for reasons not deriving from

medical judgment.” (Dkt. no. 109 at 16 n.6, 19.) At most,

Plaintiffs allege that the “MWAP Policy acts as an almost

wholesale ban on certain medications within DOCCS and does not

comport with the standard of care articulated in the community.”

(Dkt. no. 291 at 3.)

Defendant Administrators further assert that no unifying

“policy” or “pattern” existed with regards to Defendant

Administrators’ implementation and enforcement of the MWAP

Policy because of the alleged forty-six MWAP Requests, over

forty percent (nineteen MWAP Requests) were approved. (See dkt.

no. 102 at 15, 17.) In response, Plaintiffs urge the Court to

shift its focus from the number of approved MWAP Requests to the

fact that Defendant Administrators “discontinued each and every

Plaintiff’s MWAP prescriptions by November 2017 – except for

Aaron Dockery and John Gradia” who lost their MWAPs by June

2018. (Dkt. no. 109 at 17.) Moreover, Plaintiffs allege that

“Defendant RMDs repeatedly and systematically refused the

prescription or re-prescription of MWAPs to patients . . . no

matter the recommendations of treating providers and

specialists, nor the patient’s individualized medical needs.”

(SAC ¶ 193.)

The Court finds that, at this stage, the number of

approvals and denials is not dispositive but that Plaintiffs

adequately allege that RMDs denied MWAP Requests because of the

MWAP Policy. (See id. ¶ 499 (noting that a doctor at Albany

Medical Center stated that the deputy superintendent of the jail

told him “that [Neurontin] has been taken off of all inmates in

this region”); id. ¶ 746 (noting that Lee told Plaintiff Hugh

Knight “that ‘Albany’ will not allow him to have Lyrica”).)

Defendant Administrators next contend that even if the

Court finds that Plaintiffs have sufficiently pleaded a

“policy,” the SAC contains diffuse allegations on behalf of

individuals with a variety of dissimilar medical conditions

receiving varied treatments, including the application of the

MWAP Policy to them. (See dkt. no. 102 at 17-19.) This

argument is premature and goes to typicality for class

certification. (See dkt. no. 109 at 17 n.10.) Thus, the Court

need not address this argument at this stage.

Next, the Court assesses whether Plaintiffs have adequately

pleaded facts to support an Eighth Amendment claim for

deliberate indifference based on Defendant Administrators’

implementation and enforcement of the MWAP Policy. The Court

addresses the deliberate indifference test’s objective and

subjective prongs in turn.

The root of Defendant Administrators’ argument regarding

the objective prong—whether Plaintiffs were actually deprived of

adequate medical care—is that Plaintiffs’ allegations merely

show RMDs’ and the CMO’s exercising their medical judgment under

a variety of circumstances as opposed to acting pursuant to a

common policy. (See dkt. no. 133 at 14-15.) Plaintiffs counter

that they have established a prima facie deliberate indifference

claim based on “allegations that MWAP refusals were policy

driven” in a way that contravened professional norms and medical

standards. (Dkt. no. 109 at 21.) The Court agrees. The Court

cannot dismiss Defendant Administrators, at this stage, based on

their assertions that they were exercising medical judgment

because whether an approval or denial of an MWAP Request was the

product of sound medical judgment, negligence, or deliberate

indifference is a factual issue. For the reasons stated above,

Plaintiffs have adequately pleaded that the RMDs’ enforcement of

the MWAP Policy was “policy driven” in a way that diverged from

medical norms of other prison systems. (See SAC ¶¶ 119-128.)

Accordingly, the Court finds that Plaintiffs have adequately

pleaded the first subpart of the objective prong.

The second subpart of the objective prong is met because

Defendant Administrators do not contend that Plaintiffs did not

in fact suffer after the discontinuation of their MWAP

medications. (See dkt. no. 109 at 34.) Accordingly, the Court

finds that Plaintiffs have adequately pleaded the second subpart

of the objective prong.

With respect to the subjective prong, Defendant

Administrators argue that Plaintiffs’ allegations fail to

support that Defendant Administrators acted with a “sufficiently

culpable state of mind” because the MWAP Policy “permitted the

exercise of medical judgment.” (See dkt. no. 102 at 23.)

Defendant Administrators rely on the court’s holdings in Sonds

v. St. Barnabas Hospital Correctional Health Services, 151 F.

Supp. 2d 303 (S.D.N.Y. 2001) that a “difference of opinion

between a prisoner and prison officials regarding medical

treatment does not, as a matter of law, constitute deliberate

indifference” and that “disagreements over medications,

diagnostic techniques . . . , forms of treatment, or the need

for specialists or the timing of their intervention, are not

adequate grounds for a Section 1983 claim.” Id. at 311-12.

However, the allegations in the SAC are not disagreements

between prisoners and prison officials over their medications.

Rather, Plaintiffs allege that by implementing and enforcing the

MWAP Policy, RMDs ceased Plaintiffs’ MWAP medications and denied

Facility Treating Physicians’ and Mid-Level Clinicians’ MWAP

Requests pursuant to the MWAP Policy, not their medical

judgment. Given these allegations, and as stated above, courts

have held that a “physician may be deliberately indifferent if

he or she consciously chooses ‘an easier and less efficacious’

treatment plan.” Chance, 143 F.3d at 703; see also id. at 703-

04 (finding that the plaintiff adequately alleged deliberate

indifference where the defendant chose the plaintiff’s treatment

based on monetary incentives); Walker v. County of Nassau, 15-

CV-4794, 2016 WL 11481725, at *9 (E.D.N.Y. 2016) (“‘[J]udgments

that have no sound medical basis, contravene professional norms,

and appear designed simply to justify an easier course of

treatment . . . may provide the basis of a claim’ under the

Eighth Amendment.” (quoting Stevens v. Goord, 535 F. Supp. 2d

373, 388 (S.D.N.Y. 2008))). Taking Plaintiffs allegations as

true, the Court finds that Plaintiffs have adequately pleaded

that Defendant Administrators based their decisions regarding

MWAP Requests on criteria other than sound medical judgment.

(See SAC ¶ 181 (Koenigsmann writing to Dinello that in

“discussions, grievance responses, et cetera, we need to be

extremely careful about indicating that anyone is having their

medication discontinued because of a new policy. Changing meds

based on policy is doomed to failure . . . .”); dkt. no. 109 at

23-24 (noting that Non-Formulary Requests required Facility

Treating Physicians and Mid-Level Clinicians to include the same

information as MWAP Request Forms and that RMDs approved Non-

Formulary Requests based on the same medical criteria in which

they denied MWAP Requests after the promulgation of the MWAP

Policy).) Accordingly, the Court finds that Plaintiffs have

adequately pleaded the subjective prong. Thus, Defendant

Administrators’ motion to dismiss for failure to state a claim

is denied.

2. Personal Involvement of Defendant

Administrators Salotti, Hammer, Dinello, and

Mueller

Defendant Administrators argue that Plaintiffs failed to

plead the personal involvement of Salotti, Dinello, Mueller, and

Hammer in any alleged constitutional violations. (See dkt. no.

102 at 33-40.) Specifically, Defendant Administrators argue

Salotti, Dinello, Mueller, and Hammer merely exercised their

medical judgment when they discontinued MWAP medications. (See

dkt. no. 133 at 12-14.) The Court addresses each Defendant’s

involvement in turn.

With respect to Salotti, the parties focus on Salotti’s

care of Dockery in June and July 2017. (See SAC ¶¶ 481-89.) As

discussed above, after “Dockery requested an increase in his

Neurontin or a change to an even more effective medication,”

Salotti tapered Dockery off Neurontin and prescribed Depakote.

(Id. ¶¶ 484-85.) Defendant Administrators contend that

Salotti’s decision to discontinue Dockery’s Neurontin and change

to Depakote “is clearly the type of discretionary medical

decision-making that is inadequate to support a constitutional

claim.” (Dkt. no. 102 at 35.) However, at this stage, it

remains a question of fact whether Depakote is an effective

alternative to Neurontin. Moreover, the focus of Plaintiffs’

allegations against Defendant Administrators is that prior to

the promulgation of the MWAP Policy, Dockery was prescribed

Neurontin, which Salotti renewed on May 24, 2017. (SAC ¶ 481.)

One month later, after the MWAP Policy was promulgated, Salotti

not only tapered Dockery off Neurontin but also did not submit

an MWAP Request Form for an alternative MWAP medication, Lyrica,

that Dockery’s neurologist recommended. (Id. ¶¶ 488-89.)

Accordingly, the Court finds that Plaintiffs adequately allege

Salotti’s involvement in an alleged constitutional violations.

With respect to Hammer, Dinello, and Mueller, Plaintiffs

adequately allege these Defendants’ involvement in an alleged

constitutional violation because each Defendant denied an MWAP

Request. (See id. ¶¶ 552-54 (Hammer’s denying Ashong’s MWAP

request for Baclofen for Plaintiff Eddie Fields); id. ¶¶ 494-96

(Dinello’s denying Mantaro’s MWAP request for Neurontin for

Dockery); id. ¶ 309 (Mueller’s denying Andola’s MWAP request for

Lyrica for Plaintiff Peter Allen).) While Defendant

Administrators argue that Plaintiffs only allege that Mueller

approved MWAP medications through Non-Formulary Requests prior

to the promulgation of the MWAP Policy, (see dkt. no. 133 at 13-

14), the Court notes that, at this stage, Plaintiffs’

allegations that Hammer, Dinello, and Mueller denied MWAP

Requests is sufficient. Accordingly, Defendant Administrators’

motion to dismiss Salotti, Hammer, Dinello, and Mueller for lack

of personal involvement is denied.

3. Personal Involvement of Koenigsmann and

Morley

Defendant Administrators also argue that Plaintiffs failed

to plead the personal involvement of CMOs Koenigsmann and Morley

in any constitutional violation.7 (See dkt. no. 273 at 14.)

“It is well settled that, in order to establish a

defendant’s individual liability in a suit brought under § 1983,

7 Following the parties’ supplemental briefing Moores replaced

Morley as the current CMO of DOCCS. (See dkt. no. 342.) This

personnel change does not affect the Court’s analysis of

Morley’s personal involvement because Plaintiffs sued

Koenigsmann and Morley in their individual capacities. (See SAC

¶¶ 1045-54.)

a plaintiff must show . . . the defendant’s personal involvement

in the alleged constitutional deprivation.” Grullon v. City of

New Haven, 720 F.3d 133, 138 (2d Cir. 2013); Farid v. Ellen, 593

F.3d 233, 249 (2d Cir. 2010). To establish personal

involvement, a plaintiff must plead that “each Government-

official defendant, through the official’s own individual

actions, has violated the Constitution.” Tangreti v. Bachmann,

983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 676 (2009)). As the Court of Appeals stated in

Tangreti, “[t]he factors necessary to establish a [§ 1983]

violation will vary with the constitutional provision at issue

because the elements of different constitutional violations

vary. The violation must be established against the supervisory

official directly.” Id. “[F]or deliberate-indifference claims

under the Eighth Amendment against a prison supervisor, the

plaintiff must plead and prove that the supervisor had

subjective knowledge of a substantial risk of serious harm to an

inmate and disregard it.” Id. at 616. Thus, Plaintiffs must

show that Koenigsmann and Morley themselves “personally knew of

and disregarded an excessive risk to [Plaintiffs’] health or

safety.” Id. at 619 (cleaned up).

Plaintiffs allege that Koenigsmann and Morley received over

100 advocacy letters written “by patients, lawyers from Legal

Aid Society, Prisoners Legal Services and small law firms,

politicians, clergy members and family members on behalf of

putative class members injured by MWAP.” (SAC ¶ 229.) However,

“it is well-established that an allegation that an official

ignored a prisoner’s letter of protest and request for an

investigation of allegations made therein is insufficient to

hold that official liable for the alleged violations.” Allah v.

Annucci, No. 16-CV-1841 (KMK), 2018 WL 4571679, at *6 (S.D.N.Y.

Sept. 24, 2018) (collecting cases); see also Mateo v. Fischer,

682 F. Supp. 2d 423, 430 (S.D.N.Y. 2010) (“Courts in this

circuit have said that the receipt of letters or grievances, by

itself, does not amount to personal involvement.”); Reid v. City

of New York, No. 20-CV-644 (GBD) (JLC), 2021 WL 3477243, at *19

(S.D.N.Y. Aug. 6, 2021), report and recommendation adopted, No.

20-CV-644 (GBD) (JLC), 2021 WL 4177756 (S.D.N.Y. Sept. 14,

2021).

With respect to Morley, Plaintiffs allege that after

reading patient complaints, Morley forwarded them “to the person

who oversees the [Regional Health Services Administrators

(“RHSA”)]” who then contacted the patient’s facility and

responded accordingly. (SAC ¶¶ 232-33, 235.) The fact that

Morley forwarded putative class members’ complaints to the RHSA

for a response does not establish that he was personally

involved in a constitutional deprivation. See Mateo, 682 F.

Supp. 2d at 430. However, Plaintiffs also allege that “Morley

personally investigates and answers the letters from politicians

regarding the medical care of DOCCS’ patients and then forwards

his drafts to Commissioner Annucci’s office.” (SAC ¶ 248.)

Because Plaintiffs allege that Morley investigated letters

“from New York State Assemblyman David Weprin, members of the

Committee on Correction and other politicians,” the Court may

draw the reasonable inference that such investigation included

reviewing inmates’ medical records and/or speaking with the

relevant Facility Treating Physician. (Id.) Such an

investigation would make Morley aware of the risk to inmates’

health due to the discontinuation of their MWAP medications.

Even assuming that Morley conducted no investigation before

responding to politicians’ letters, the fact that politicians

sent Koenigsmann and Morley letters advocating for inmates

seeking MWAP medications to treat their chronic health

conditions is evidence that the risk of serious inmate harm was

obvious to Morley. See Brock, 315 F.3d at 164. Given that

Morley testified that patient letters to New York politicians

“are [] unfounded” and that Morley provides letter responses to

Commissioner Annucci’s office to send, the Court may infer that

Morley disregards inmates’ complaints. (SAC ¶ 247.) Thus,

Plaintiffs have adequately alleged Morley’s personal involvement

in violating Plaintiffs’ constitutional rights.

Plaintiffs’ allegations regarding Morley’s process of

reading and forwarding complaints to RHSA also applies to

Koenigsmann. (Id. ¶ 234.) For the reasons stated above, the

fact that Koenisgmann ignored New York Assemblyman David

Weprin’s letter “requesting proper medical treatment for

[Plaintiff John] Gradia’s pain and suffering”8 does not amount to

personal involvement. (Id. ¶ 588.) However, Plaintiffs also

allege that Koenigsmann knew of and disregarded an excessive

risk to Gradia’s health when Rabbi Frank Maxwell emailed

Koenigsmann regarding Mueller’s rejecting Gradia’s pain

management specialist’s recommendation of 100mg of Ultram. (Id.

¶ 234.) Defendant Administrators argue that Rabbi Maxwell’s

letter to Koenigsmann does not amount to personal involvement

because it failed “to sufficiently put [Koenigsmann] on notice

of an alleged constitutional violation.” (Dkt. no. 299 at 6.)

However, this is not an instance where Koenigsmann received and

ignored a complaint. In response to Rabbi Maxwell’s email,

Koenigsmann stated,

[t]his patient is under the care of pain

specialists and has a future appointment

scheduled. Ultram is an addicting agent which

8 Defendant Administrators argue that “[i]t appears from the SAC

that the letter to Dr. Koenigsmann prompted the approval of the

requested MWAP medication, which presumably was the goal of the

letter.” (Dkt. no. 299 at 7.) The Court disagrees with this

characterization. Plaintiffs allege that Koenigsmann ignored

Assemblyman Weprin’s letter and that “[o]ddly” one week later,

Dinello “approv[ed] Percocet for five days.” (SAC ¶ 588.)

is not appropriate for long term management of

pain syndromes as is the trend in the

community. The focus of pain management is

not complete pain relief but to regain and

maintain function. If the patient is able to

carry out his activities of daily living that

is successful treatment.

(SAC ¶¶ 238-39.)

The level of detail in Koenigsmann’s response suggests that

Koenigsmann reviewed Gradia’s condition and his treatment

history. These allegations are distinguishable from the facts

in Mateo where the court found no personal involvement where the

defendant “received [plaintiff’s] letters, forwarded at least

two of them to subordinates for investigation, and sent

[plaintiff] a response to the effect that [plaintiff] had

provided insufficient information to support his allegations.”

Mateo, 682 F. Supp. 2d at 431; see also Gardner v. Koenigsmann,

No. 21-cv-10185 (PMH), 2022 WL 1058498, at *3 (S.D.N.Y. Mar. 30,

2022) (holding that plaintiff’s allegation that defendant

responded to plaintiff’s complaint “by directing Plaintiff to

comply with DOCCS’ procedures . . . is substantively no

different from ignoring the complaints and is, accordingly,

insufficient to implicate [defendant] in any constitutional

violation”).

Koenigsmann’s response to Rabbi Maxwell addresses the core

of Plaintiffs’ allegations: (1) whether prescribing MWAP

medications violates medical norms; (2) whether non-MWAP

medications effectively treat Plaintiffs’ conditions; and

(3) whether DOCCS medical personnel knew that patients

experienced pain resulting from the discontinuation of their

former MWAP medications. The Court finds that Koenigsmann’s

response to Rabbi Maxwell is sufficiently detailed to

demonstrate personal involvement. See Mateo, 682 F. Supp. 2d at

430-31 (finding that a “supervisor’s detailed, specific response

to a plaintiff’s complaint” constituted personal involvement

because it “suggests that the supervisor has considered the

plaintiff’s allegations and evaluated possible responses”); see

also Rashid v. Hussain, No. 95-CV-00676, 1997 WL 642549, at *3

(N.D.N.Y. Oct. 15, 1997) (denying summary judgment as to the

defendant’s personal involvement because while “the mere fact

that [the defendant] responded to a letter complaining about

[the plaintiff’s] medical treatment would not, by itself,

subject [the defendant] to liability,” plaintiff’s response to

the defendant detailed his “condition, his treatment history,

and his complaints regarding his care at Eastern”). Thus,

Plaintiffs adequately alleged Koenigsmann’s personal

involvement. Accordingly, Defendant Administrators’ motion to

dismiss Morley and Koenigsmann is denied.

b. Qualified Immunity

Both Defendant Providers and Administrators moved pursuant

to Rule 12(b)(6) to dismiss for qualified immunity. The Court

addresses Defendant Providers’ and Administrators’ arguments in

turn.

i. Defendant Providers

“Qualified immunity shields government officials performing

discretionary functions ‘from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.’” Zellner v. Summerlin, 494 F.3d 344, 367 (2d

Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). “In the Second Circuit, ‘a right is clearly

established if (1) the law is defined with reasonable clarity,

(2) the Supreme Court or the Second Circuit has recognized the

right, and (3) a reasonable defendant would have understood from

the existing law that his conduct was unlawful.’” Schubert v.

City of Rye, 775 F. Supp. 2d 689, 702 (S.D.N.Y. 2011) (quoting

Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004)).

Qualified immunity is an affirmative defense, and the

parties agree that when raised on a Rule 12(b)(6) motion instead

of a motion for summary judgment, defendants face a more

“stringent standard.” McKenna v. Wright, 386 F.3d 432, 436 (2d

Cir. 2004). “Not only must the facts supporting the defense

appear on the face of the complaint, but . . . the motion may be

granted only where ‘it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim that would

entitle him to relief.’” Id. (citation omitted). Thus,

Plaintiffs are entitled to all reasonable inferences from the

facts alleged, including those defeating Defendant Providers’

immunity defense. See id.

Defendant Providers first re-raise their position that

Plaintiffs have inadequately pleaded facts supporting a

deliberate indifference claim in violation of the Eighth

Amendment. (Dkt. no. 93 at 39.) The Court disagrees for the

reasons stated above.

Next, Defendant Providers argue that they are entitled to

qualified immunity because “reasonable officials in the NSRD’s

positions could have believed that their actions did not violate

any of the Plaintiff’s constitutional rights” because once an

RMD denied a Defendant Provider’s MWAP Request, the Defendant

Provider had to discontinue the MWAP prescription. (Id. at 39-

40.) Plaintiffs oppose arguing that granting Defendant

Providers qualified immunity at this stage would be premature

because whether Defendant Providers lacked means to treat

Plaintiffs effectively after RMDs denied requests for MWAP

medications are “questions of fact to be determined through

discovery.” (Dkt. no. 109 at 44.) The Court agrees. Because

Plaintiffs alleged methods that Defendant Providers employed to

obtain MWAP medications after an RMD denied an MWAP request, the

Court may reasonably infer that Defendant Providers had some

means to treat patients after the denial of an MWAP Request.

(See SAC ¶ 786 (Lee’s treating Plaintiff Terry Mathis with

Ultram for five days after Mueller denied Lee’s MWAP Request).)

The Court notes Plaintiffs’ acknowledgment that “Defendant

Providers may eventually prove that after MWAP approvals were

denied they had no means of effectively treating patients,”

entitling them to qualified immunity. (Dkt. no. 109 at 44.)

However, the Court agrees that, at this stage, it is premature

for the Court to grant Defendant Providers’ affirmative defense

on the pleadings. Moreover, the Court finds that Defendant

Providers’ position does not account for Plaintiffs’ allegations

concerning Defendant Providers’ not filing MWAP Requests in

response to specialists’ recommendations due to the MWAP Policy.

Accordingly, Defendant Providers’ motion to dismiss the SAC on

the ground of qualified immunity is denied.

ii. Defendant Administrators

Defendant Administrators’ 12(b)(6) motion for qualified

immunity raises many of the same arguments as Defendant

Providers’ motion.

First, Defendant Administrators re-assert their position

that Plaintiffs have inadequately pleaded facts supporting a

deliberate indifference claim in violation of the Eighth

Amendment. (See dkt. no. 102 at 41-42.) The Court disagrees

for the reasons stated above. The Court pauses to note that

Defendant Administrators’ arguments misconstrue Plaintiffs’

allegations against them. Plaintiffs do not allege that

Defendant Administrators treated Plaintiffs. Rather,

Plaintiffs’ claims against Defendant Administrators relate to

the implementation and enforcement of the MWAP Policy (including

denying MWAP Requests) and the MWAP Policy’s responsibility for

the discontinuation of Plaintiffs’ MWAP medications. The Court

finds that Defendant Administrators’ briefing addresses

Plaintiffs’ allegations as against Defendant Providers rather

than those as against Defendant Administrators. (See id. at 41-

43 (disputing whether the Supreme Court or Court of Appeals have

recognized a right that medical staff must defer their medical

judgment in favor of specialists’ recommendations).)

Next, Defendant Administrators, like Defendant Providers,

contend that they are entitled to qualified immunity because “it

was objectively reasonable for them to believe that their

actions did not violate any clearly established right.” (Id. at

40.) Because the Court has found that Plaintiffs have

adequately pleaded a deliberate indifference claim against

Defendant Administrators, it would be premature for the Court to

grant Defendant Administrators’ motion for qualified immunity at

this stage.

Finally, Defendant Administrators argue that state

officials are “entitled to a separate analysis of qualified

immunity where it would be objectively reasonable for them to

believe that they were not sufficiently involved in a matter to

implicate their constitutional liability in light of clearly

established law.” (Id. at 43; see also dkt. no. 299 at 9-10.)

Because Plaintiffs do not bring a claim of supervisory

liability, (see dkt. no. 291 at 2), only claims against

Defendant Administrators in their individual capacities, (see

SAC ¶¶ 1045-54), no further analysis is needed. Accordingly,

Defendant Administrators’ motion to dismiss the SAC on the

ground of qualified immunity is denied.

c. Improper Venue for Plaintiffs Ortiz and Knight

Defendant Administrators move to dismiss Plaintiffs

Vattiato, Rahman, Ortiz, and Knight for improper venue. (See

dkt. no. 102 at 44.) The Court need not consider Vattiato as

the Court ordered the voluntary dismissal of all claims by

Vattiato on November 8, 2021. (See dkt. no. 319.) In addition,

Defendant Administrators withdrew their improper venue argument

against Rahman. (See dkt. no. 133 at 14.) The Court addresses

the remaining two Plaintiffs in turn.

First, Plaintiffs acknowledge that “there may be grounds

for dismissal of the claims of Plaintiff[] Ortiz” and

“anticipate taking some action [with respect to Ortiz] before an

opinion is drafted on these motions.” (Dkt. no. 109 at 41

n.29.) However, to date, Plaintiffs have not voluntarily

dismissed Ortiz’s claims. The Court finds that Plaintiffs have

met their burden of making a prima facie showing of venue for

Ortiz. Plaintiffs allege that in August 2016, medical personnel

at Downstate Correctional Facility in Dutchess County prescribed

Ortiz Neurontin and Baclofen. (See SAC ¶¶ 809-13.) After Ortiz

was transferred to Great Meadow Correctional Facility, his

Neurontin was discontinued “for reasons unknown on May 1, 2017

. . . by Dr. John Doe #2.” (Id. ¶¶ 820-22.) Plaintiffs’

allegations are sufficient because they show that “[p]rior to

May 2017, Mr. Ortiz’s pain was effectively treated with

Neurontin and Baclofen.” (Id. ¶ 825.) Thus, Defendant

Administrators’ motion to dismiss Ortiz for improper venue is

denied.

Next, Defendant Administrators note that Plaintiffs’

citations in support of Knight’s argument for venue pertain to a

different Plaintiff, Sean Pritchett. (See dkt. no. 133 at 14.)

However, the Court finds that Plaintiffs have met their burden

of making a prima facie showing of venue for Knight. Plaintiffs

allege that “[w]hile in Sullivan Correctional Facility [in

Sullivan County] until 2014 Mr. Knight was successfully treated

with Lyrica.” (SAC ¶ 735.) Although Knight was transferred to

Shawangunk in November 2014, “where his Lyrica prescription was

changed to Neurontin,” he requested the re-prescription of

Lyrica through October 2018. (Id. ¶¶ 736-46.) Plaintiffs

further allege that Lee repeatedly told Knight that “‘Albany’

will not allow him to have Lyrica.” (Id. 7 746.) Plaintiffs’

allegations are sufficient because they show that Knight’s pain

was effectively treated with Lyrica for years and that

alternative medications were not successful. Thus, Defendant

Administrators’ motion to dismiss Knight for improper venue is

denied.

Iv. Conclusion

For the foregoing reasons, Defendant Providers’ motion to

dismiss [dkt. no. 92] and Defendant Administrators’ motion to

dismiss [dkt. nos. 101] is DENIED. The Clerk of the Court shall

close the open motions [dkt. nos. 92, 101].

SO ORDERED.

Dated: May 19, 2022

New York, New York

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LORETTA A, PRESKA

Senior United States District Judge

40