rejecting Defendants’ narrower view that the right at issue in the plaintiff’s Eighth Amendment claim was a “right to be free from crumbling asbestos”
How later courts described this case
- rejecting Defendants’ narrower view that the right at issue in the plaintiff’s Eighth Amendment claim was a “right to be free from crumbling asbestos”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PETER ALLEN,
Plaintiff,
No. 23-CV-5651 (LAP)
-against-
MEMORANDUM AND ORDER
SUSAN MUELLER, et al.,
Defendants.
LORETTA A. PRESKA, Senior United States District Judge:
Before the Court are the motions for summary judgment filed
by Defendants Dr. Susan Mueller and Dr. David Dinello (the “State
Represented Defendants” or “SRDs”),1 (see dkt. no. 26)2 and by
Dr. Ann Andola and Dr. Mikhail Gusman (the “Non-State Represented
1 Carl Koenigsmann was initially named as a defendant in the above-
captioned case and joined the State Represented Defendants in their
motion for summary judgment. However, the parties stipulated to
Mr. Koenigsmann’s dismissal from this case with prejudice on
January 18, 2024, which stipulation the Court so-ordered four days
later. (See dkt. nos. 53, 54.)
2 In support of their motion for summary judgment, the SRDs filed
a Memorandum of Law in Support of Their Motion for Summary
Judgment, (see dkt. no. 27 [the “SRD Br.”]), the Declaration of
Carl J. Koenigsmann, (see dkt. no. 28), the Declaration of David
Dinello, (see dkt. no. 29 [the “Dinello Decl.”]), the Declaration
of Susan Mueller, (see dkt. no. 30 [the “Mueller Decl.”]), the
Declaration of Rachel Seguin, (see dkt. no. 31), the Declaration
of Michael J. Keane, (see dkt. no. 32 [the “Keane Decl.”]), and
exhibits attached thereto, and the SRDs’ Rule 56.1 Statement, (see
dkt. no. 33 [the “SRD 56.1 Stmt.”]). The SRDs also filed a Reply
Memorandum of Law in Further Support of Their Motion for Summary
Judgment, (see dkt. no. 65 [the “SRD Reply”]), a Counter Statement
to Plaintiff’s 56.1 Statement, (see dkt. no. 63), and the Reply
Affidavit of Michael J. Keane and exhibits attached thereto, (see
dkt. no. 64).
Defendants” or “NSRDs”), (see dkt. no. 26).3 Plaintiff opposes
the motions filed by both the State Represented Defendants and the
Non-State Represented Defendants, (see dkt. no. 59 [“Pl. Opp.”]).4
For the reasons set forth below, the State Represented
Defendants’ motion is GRANTED in part and DENIED in part, and the
Non-State Represented Defendants’ motion is DENIED in its
entirety.
I. Background
A. Factual Background
1. The Parties
Plaintiff Peter Allen is an inmate who is currently housed at
Eastern Correctional Facility (“Eastern”), a prison facility under
the supervision and control of the New York State Department of
3 In support of their motion for summary judgment, the NSRDs filed
their Amended Memorandum of Law in Support of Their Motion for
Summary Judgment, (see dkt. no. 35 [the “NRSD Br.”]), the NRSDs’
Rule 56.1 Statement, (see dkt. no. 18 [the “NSRD 56.1 Stmt.”]),
the Declaration of Ryan E. Manley and exhibits attached thereto,
(see dkt. no. 19 [the “Manley Decl.”]), the Declaration of Ann E.
Loricchio Andola and exhibits attached thereto, (see dkt. no. 20
[the “Andola Decl.”]). The NSRDs have also filed a Reply
Memorandum of Law in Support of Their Motion for Summary Judgment,
(see dkt. no. 62 [the “NSRD Reply”]), and Counter Statement to
Plaintiff’s Rule 56.1 Statement, (see dkt. no. 61.)
4 In further support of his opposition, Plaintiff filed the
Declaration of A.J. Agnew and exhibits attached thereto, (see dkt.
no. 43 [the “Agnew Decl.”]), the Declaration of Kathryn Haas and
exhibits attached thereto, (see dkt. no. 44 [the “Haas Decl.”]),
and a Statement Pursuant to Local Rule 56.1, (see dkt. no. 40 [“Pl.
56.1 Stmt.”]). Plaintiff has also filed a Response to Defendants’
Amended Statements of Undisputed Facts, (see dkt. no. 70).
Corrections and Community Supervision (“DOCCS”). (See SRD 56.1
Stmt. ¶ 1.) Plaintiff suffers from numerous chronic pains,
including neck and joint pain, neuropathy, arthritis in his left
knee, lumbar levoscoliosis, and degenerative disc disease
throughout his cervical, thoracic, and lumbar spine. (See id.
¶ 11; Pl. 56.1 Stmt. at 9-10; Andola Decl. ¶ 12.) He has also
been diagnosed with moderate degenerative cervical spondylosis and
COPD/Emphysema. (See Andola Decl. ¶ 12.)
Non-State Represented Defendant Ann Andola (“Dr. Andola”)
worked as a clinical physician at Eastern from 2009 to 2021 and
again since February 2023. (See id. ¶ 2.) She was Plaintiff’s
primary care physician from approximately October 2014 through
September 2021, and has been his primary care physician since
February 2023. (See id. ¶ 12.) Non-State Represented Defendant
Mikhail Gusman (“Dr. Gusman”) is a physician at DOCCS who
periodically treated Plaintiff. (See NSRD 56.1 Stmt. ¶ 24;
Complaint, dkt. no. 1 [“Compl.”] ¶ 17.)
State Represented Defendants Susan Mueller (“Dr. Mueller”)
and David Dinello (“Dr. Dinello”) were Regional Medical Directors
(“RMD”) at DOCCS at all times relevant to the instant motions.
(See SRD 56.1 Stmt. ¶¶ 3-4.) Dr. Mueller remains an RMD at DOCCS,
whereas Dr. Dinello left his position in 2021. (See id.)
2. Plaintiff’s Medical and Treatment History
Before January 2017, Plaintiff had been prescribed Neurontin,5
Elavil,6 and Ultram7 to treat his pain. (See Andola Decl. ¶ 13;
see also id. Ex. A at 1-2.) Dr. Mueller asserts that in addition
to those three pain medications, Plaintiff’s pain has been treated
with Tylenol, Ibuprofen, Meloxican, Piroxicam, a TENS unit, a left
knee brace, a soft cervical collar, and back brace. (See Mueller
Decl. ¶ 24.) Dr. Mueller also asserts that medical professionals
at DOCCS had separately recommended Lamictal, non-steroidal anti-
inflammatory agents, topicals, Lidoderm patches, Cymbalta, Celexa,
Depakote, Tegretol, and other tricyclics to treat Plaintiff’s
pain. (See id.)
In February 2017, Dr. Andola examined Plaintiff after he
reported sciatic pain in his sleep. (See Andola Decl. ¶ 15.) Upon
her examination, Dr. Andola increased the dosage of Plaintiff’s
Neurontin prescription to 900 mg twice per day and authorized
additional accommodations such as gel insoles, a knee brace, a
5 Neurontin is the brand name for gabapentin, a medication used to
treat neuropathic pain. Any references herein to gabapentin shall
be used to refer interchangeably to Neurontin. (See Andola Decl.
¶ 13 n.2.)
6 Elavil is the brand name for amitriptyline, a tricyclic
antidepressant used to treat depression that may also be prescribed
to relieve neuropathic pain. (See Andola Decl. ¶¶ 13 n.3, 25 n.5.)
7 Ultram is the brand name for Tramadol, an opioid analgesic
prescribed to relieve pain. (See Andola Decl. ¶ 13 n.1.)
cane, a TENS unit, an extra blanket, and an extra pillow. (See
id.) On May 4, 2017, after Plaintiff informed Dr. Andola that the
pain in his back had worsened and requested a higher dosage of
Neurontin, Dr. Andola increased his Neurontin dosage to 1200 mg
twice per day. (See id. ¶ 16.)
Plaintiff also has a history of substance abuse and
depression. (See SRD 56.1 Stmt. ¶ 12; see also Andola Decl. ¶ 12.)
In 2011, security officials at the facility at which Plaintiff was
serving his sentence at that time accused Plaintiff of diverting
his Ultram and Neurontin. (See Expert Report of Dr. Adam Carinci,
dated March 5, 2022, Allen v. Koenigsmann, 19-cv-8173 [“Allen I”],
dkt. no. 348-16, at 1). In addition, Dr. Mueller asserts that
Plaintiff has a history of cocaine and heroin use and received two
“Tier 3 Drug Use tickets at Eastern” in 2017. (See Mueller Decl.
¶ 46). Plaintiff disputes each of those assertions. (See Pl.
56.1 Stmt. at 10-11, 31.) However, on January 17, 2017,
Plaintiff’s urine sample returned a positive test for
Buprenorphine, a substance that was known within DOCCS as a drug
of abuse at the time. (See Andola Decl. ¶ 14; see also id. Ex.
A at 3.)
3. The MWAP Policy
On June 1, 2017, DOCCS adopted the Medications With Abuse
Potential (“MWAP”) Policy. (See SRD 56.1 Stmt. ¶ 5; Keane Decl.
Ex. A.) The MWAP Policy was authorized by Carl Koenigsmann, then
the Chief Medical Officer of DOCCS. (See SRD 56.1 Stmt. ¶ 2; Keane
Decl. Ex. A.) The MWAP Policy required any DOCCS medical provider
who sought to prescribe certain medications to submit an “MWAP
Request” to the DOCCS RMD in charge of the medical provider’s
facility. (See SRD 56.1 Stmt. ¶ 7.) Before the DOCCS medical
provider had authority to prescribe the requested medication for
long-term use for chronic conditions, the RMD would have to approve
the MWAP Request. (See id.)
The stated purpose of the MWAP Policy was to control the
prescriptions of medications that DOCCS believed might carry the
risk of abuse or dependence by DOCCS inmates. (See NSRD 56.1
Stmt. ¶ 5.) Medications that required RMD approval under the MWAP
Policy included Neurontin, Lyrica,8 Baclofen, Flexeril, Ultram,
Percocet, and Oxycodone. (See SRD 56.1 Stmt. ¶ 8.) Treating
physicians at DOCCS facilities could face discipline for failing
to adhere to the MWAP Policy. (See NSRD 56.1 Stmt. ¶ 9.)
4. The June 9, 2017, MWAP Request for Neurontin
On June 9, 2017, Dr. Andola submitted an MWAP Request to
Dr. Mueller, in which she sought approval to prescribe Plaintiff
a one-month bid of 1200 mg of Neurontin—i.e., to continue his then-
current dosage—with eleven refills to treat Plaintiff’s chronic
8 Lyrica is the brand name for Pregablin, a medication used to
treat nerve pain. (See Andola Decl. ¶ 30 n. 8.)
pain. (See SRD 56.1 Stmt. ¶ 15; Keane Decl. Exs. C and D.) In
her MWAP Request, Dr. Andola noted that Plaintiff had seen a
neurosurgeon in September 2015 and undergone radiologic testing in
January 2016. (See Keane Decl. Ex. D.) On June 13, 2017,
Dr. Mueller responded, saying she needed “EMG findings with [the]
date,” which were “far more important than radiologic findings”
Dr. Andola had included in her MWAP Request. (Keane Decl. Ex. E.)
Dr. Andola responded later that day, summarizing the findings of
an EMG9 taken on August 7, 2015, but noting that the actual results
of the EMG were no longer in Plaintiff’s chart—only the summary
she had provided Dr. Mueller. (See Keane Decl. Ex. G.). In that
same email, Dr. Andola copied DOCCS doctors Dinello, Gusman, and
John Hammer. (See id.)
Dr. Dinello responded on June 14, 2017, noting that Plaintiff
“does have well documented Chronic Pain issues. No question.”
(Keane Decl. Ex. H.) However, Dr. Dinello noted, the MWAP Policy
“encourages . . . Providers to find safer alternative treatment
modalities,” which would “include safer medication . . . Lidocaine
Patches, Voltaren Gel, Cymbalta,” other forms of therapy, and
“[e]ven Surgical Intervention if necessary.” (Id.) Dinello stated
that prescribing Plaintiff Neurontin “could be fine for now” and
that Plaintiff could be “weaned off [Neurontin] as alternative
9 “EMG” is an acronym for the diagnostic electromyelogram. (See
Mueller Decl. ¶ 15.)
treatment modalities are attempted.” (Id.) He attached a list of
potential alternative medications to his email. (See id.) After
Dr. Andola responded the next day to ask if Dr. Dinello’s email
constituted approval of her MWAP Request and to report that
Plaintiff had reported in a visit to her that day that Neurontin
improved the “pins and needles, numbness, and pains in his legs,”
Dr. Dinello responded within fifteen minutes that Dr. Andola’s
MWAP request for Neurontin “ha[d] not been approved” and that he
“[s]uggest[ed] alternative treatment[.]” (Keane Decl. Ex. I.)
Over the remainder of that week, Dr. Andola exchanged emails
with Dr. Mueller and Dr. Dinello about what the appropriate
alternative course of treatment would be for Plaintiff. (See Keane
Decl. Exs. J-M.) Dr. Andola expressed confoundment that the RMDs
had not approved Neurontin, noted that the medication supported
the sort of pain caused by nerve damage that Plaintiff was
suffering from, noted that Plaintiff was already using several
alternative treatment options Dr. Dinello and Dr. Mueller had
suggested, and expressed doubt that certain other of their
suggested medication alternatives would be medically appropriate
for Plaintiff. (See Keane Decl. Ex. J.)
Dr. Mueller then suggested Dr. Andola prescribe Lamictal,
noting its use for “long-term treatment of neuropathy” and lack of
abuse potential, and both she and Dr. Dinello offered to help
Dr. Andola with its dosage and titration. (See Keane Decl. Exs. K,
L.) Dr. Andola told the RMDs that she had “no comfort level” and
no experience with Lamictal. (See Keane Decl. Ex. L.) After
explaining Lamictal’s use and its risk potential, the RMDs informed
Dr. Andola that the plan was to wean Plaintiff off Neurontin and
then start his Lamictal regimen. (See id.)
Dr. Mueller asserts that upon receiving the MWAP Request to
continue prescribing Plaintiff Neurontin on June 9, 2017, she
reviewed Plaintiff’s medical records and employed a multifactor
analysis that, she says, was her general practice when reviewing
MWAP Requests. (See Mueller Decl. ¶¶ 14, 18, 32.) Dr. Mueller
notes that among the criteria she would typically consider in this
evaluation were: the treating physician’s diagnosis of the inmate;
results of specific diagnostic tests that supported or undercut
that diagnosis; the underlying cause of the inmate’s pain; and the
social and disciplinary history of the inmate, including any
history of drug abuse, addiction, or diversion. (See id. ¶¶ 14-
20.) She states that after reviewing Plaintiff’s medical records
and considering the standard criteria she typically employed, she
determined that Dr. Andola should treat Plaintiff with “safer and
more effective modalities,” which “were available and could be
tried.” (See id. ¶¶ 32, 35.)
For his part, Dr. Dinello asserts that it was his practice
when reviewing MWAP Requests to “consider all information, both
medical and social” before determining whether to approve the
prescription requested. (Dinello Decl. ¶ 18.) Like Dr. Mueller,
such criteria included the inmate’s underlying diagnosis,
information supporting that diagnosis such as the results of
specific tests, and any personal history of drug abuse, addiction,
or diversion. (See id. ¶¶ 19-20.) Dr. Dinello states that upon
reviewing Dr. Andola’s MWAP Request for Neurontin and Plaintiff’s
medical records, he believed that the physicians should encourage
“alternative, and safer, treatment modalities” for Plaintiff,
specifically “non-habit-forming treatment alternatives.” (Id.
¶¶ 29, 31.) As described above, the alternative modalities Dinello
suggested included Lidocaine patches, Voltaren gel, Cymbalta, and
possibly surgery. (See id. ¶ 34; see also Keane Decl. Ex. H.)
Dinello indicates that this medical judgment was based upon what
Plaintiff’s medical records purportedly revealed was a history of
substance abuse and allegations of medication diversion. (See
Dinello Decl. ¶ 30.) Dr. Dinello also indicates that he believed
the alternative treatments he suggested were safer for Plaintiff
because Plaintiff’s history indicated he was vulnerable to the
risks of addiction and abuse that are present when taking MWAP
medications. (See id.)
Both Dr. Mueller and Dr. Dinello also assert that Neurontin
was “well documented” as an “extremely problematic
medication . . . within Corrections, where it had been frequently
diverted and misused.” (Mueller Decl. ¶ 31; see also Dinello Decl.
¶ 43.) Although, both RMDs note, Neurontin is not an opioid, it
possesses addictive qualities and potentially serious side
effects. (See Mueller Decl. ¶ 31.)
After her exchange with Dr. Mueller and Dr. Dinello,
Dr. Andola weaned Plaintiff off Neurontin and continued
prescriptions for Elavil, Ibuprofen, and Tylenol.10 (See SRD 56.1
Stmt. ¶ 42.) On July 20, 2017, Dr. Andola met with Plaintiff, who
reported he was unhappy with the pain relief he was receiving as
he was being weaned off Neurontin and treated with Elavil. (See
Andola Decl. ¶ 26.) Dr. Andola noted Plaintiff was not
experiencing any side effects from taking Elavil but that Plaintiff
was “not a candidate for Cymbalta” because of its “known major
drug to drug interaction with Elavil.” (Id.)
At several points over the next few years, Plaintiff
complained to Dr. Andola about pain he was experiencing. In August
2017, Plaintiff complained of back pain and a lack of sleep as he
was being weaned off Neurontin. (See id. ¶ 27.) On March 8, 2018,
Plaintiff requested Neurontin to treat his pain, but Dr. Andola
10 Dinello and Mueller both assert that Plaintiff was also
prescribed Lamictal but refused to take it. (See SRD 56.1 Stmt.
¶¶ 42-43; Mueller Decl. ¶ 40.) However, Plaintiff disputes this,
(see Pl. 56.1 Stmt. at 26-27; dkt. no. 70 at 12), and Dr. Andola
states she did not prescribe Plaintiff Lamictal because she “was
not comfortable with its use for” him, (see Andola Decl. ¶ 25).
The Court credits Dr. Andola’s assertion and concludes Plaintiff
was not prescribed, and did not refuse, a prescription for
Lamictal.
asserts that she could not have prescribed it for him because RMDs
Mueller and Dinello had already denied her MWAP Request. (See id.
¶ 29.) That same day, Plaintiff refused to leave Eastern for an
ultrasound of his liver because, he told Dr. Andola, he did not
want to be restrained by handcuffs or shackles for such an “outside
trip.” (See id.)
5. The October 4, 2018, MWAP Request for Lyrica
On October 4, 2018, Plaintiff requested a trial of Lyrica to
treat his pain. (See id. ¶ 30.) That same day, Dr. Andola
submitted a new MWAP Request for a 30-day prescription of 75 mg of
Lyrica to Dr. Mueller. (See id. ¶ 31; see also Keane Decl. Exs.
N-O; NSRD 56.1 Stmt. ¶ 20; SRD 56.1 Stmt. ¶ 47.) Dr. Mueller
denied the MWAP Request for Lyrica, noting in her response that
Andola had not provided “[a]ctual results” of Plaintiff’s EMG with
her request or mentioned other prescription modalities, and that
she could not find any references to pertinent consultations with
specialists. (See Keane Ex. N. at 2.; SRD 56.1 Stmt. ¶ 49.)
Dr. Mueller also recommended to Dr. Andola that Andola refer
Plaintiff for physical therapy, or to an orthopedist or
neurologist, and recommended treating Plaintiff’s pain with non-
steroidal anti-inflammatory medications or topical treatments like
“Dolorac, Capsin . . .Lidoderm patch[es], Cymbalta,” and others.
(See Keane Ex. N. at 2; SRD 56.1 Stmt. ¶ 50; Mueller Decl. ¶ 45.)
In her email response, Dr. Mueller also asserted both that
Plaintiff had a history of substance abuse and had received tickets
for drug use at Eastern. (See Keane Decl. Ex. P.) In response,
Dr. Andola stated that Plaintiff “apparently is not a good
candidate for mwap medication” but noted that the two drug tickets
Mueller had mentioned in her prior email were “not recent by
medical standards as [they were] over 6 months” old. (Id.)
Mueller asserts that her decision to deny the MWAP Request
for Lyrica was based on her “medical judgment,” including the
topics she mentioned in her email to Dr. Andola about the lack of
information about recent physical therapy treatment and the lack
of specialist referrals, as well as the facts that Dr. Andola
apparently had not first attempted other medications, that
Plaintiff had a history of substance abuse, and Lyrica’s “addictive
properties” and propensity to cause “serious side effects” and
“withdrawal symptoms when abruptly discontinued.” (Mueller Decl.
¶ 44.) She asserts that her medical judgment indicated that the
medically appropriate course at that time was to pursue “safer and
likely more effective avenues of treatment” than Lyrica. (Id.
¶ 49.)
Dr. Dinello was not involved in any decision regarding the
MWAP Request for Lyrica Dr. Andola submitted on October 4, 2018.
(See SRD 56.1 Stmt. ¶ 48.)
6. Subsequent Events
After Dr. Mueller denied the MWAP Request for Lyrica,
Dr. Andola continued to treat Plaintiff, including prescribing
additional accommodations—such as a cane, a knee brace, and gel
insoles—to help with his pain. (See Andola Decl. ¶¶ 32, 35.) On
May 20, 2019, Plaintiff asked Dr. Andola to be restarted on
Neurontin after complaining of severe insomnia and bad reactions
to Elavil. (See id. ¶ 33.) In response, Dr. Andola reminded him
that the RMDs had previously denied her MWAP Request for Neurontin.
(See id.) On July 28, 2020, Dr. Andola saw Plaintiff, who
complained of “constant chronic pain” and commented both that
Ultram and Neurontin had previously helped him and that Elavil
helped his pain with “no side effects.” (See id. ¶ 36.)
Dr. Andola asserts that in late 2020, in response to a request
from DOCCS, she filled out an assessment in which she noted that
Plaintiff had refused to consider surgery on his lumbar spine and
refused to undergo physical therapy, and stated her concern that
he desired to take “habit-forming, addictive medications[.]” (See
id. ¶¶ 40-41.) She reports that Plaintiff repeatedly told her he
did not want to take trips outside of Eastern, including for
medical testing or consultations, because he would have to be
physically restrained by shackles during such trips. (See id.
¶ 37.)
Plaintiff testified that, at some point after his Neurontin
prescription was discontinued, he told Dr. Gusman that he was in
pain, that he felt Neurontin had previously treated his pain
effectively, and that none of the medications he was taking as
alternatives to Neurontin were treating his pain effectively. (See
Agnew Decl. Ex. 25 at 209:14-210:11.)
DOCCS rescinded the MWAP Policy on February 8, 2021. (See
SRD 56.1 Stmt. ¶ 6.)
B. Procedural History
The instant case arises from a class action lawsuit brought
by Plaintiff and several other named DOCCS inmates on behalf of a
class of individuals in DOCCS custody whose medications were denied
or discontinued after the institution of the MWAP Policy. (See
Allen I, 19-cv-8173, dkt. no. 371 at 7.) On March 31, 2023, this
Court issued an opinion granting the Allen I plaintiffs’ motion to
certify a class to pursue injunctive relief but denying the
plaintiffs’ motion to certify a class to pursue damages for
liability. See Allen I, No. 19-cv-8173 (LAP), 2023 WL 2731733,
at *6 (S.D.N.Y. Mar. 31, 2023). The Court held that plaintiffs in
Allen I had failed to show that the proposed “liability class” had
standing to sue under Article III of the United States
Constitution. See id. at *2.
Following this Court’s denial of certification of a
“liability class,” Plaintiff filed the instant individual suit for
damages on June 30, 2023. (See Compl.) In his complaint,
Plaintiff asserted two claims under 42. U.S.C. § 1983 for
deliberate indifference to his medical needs due to DOCCS’s
implementation of the MWAP Policy and the discontinuation and
denial of Plaintiff’s medications that ensued. (See id. ¶¶ 318-
40.)
On November 15, 2023, the Non-State Represented Defendants
moved for summary judgment. (See dkt. no. 22.) The State
Represented Defendants filed their motion for summary judgment on
November 16, 2023. (See dkt. no. 26.)
II. Legal Standard
Summary Judgment is appropriate where the moving party “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “‘It is the movant’s burden to show that no genuine
factual dispute exists.’” I.M. v. United States, 362 F. Supp. 3d
161, 189 (S.D.N.Y. 2019) (quoting Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004)). A genuine dispute
of material fact exists “if the evidence is such that a reasonable
jury could return a judgment for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “On a motion
for summary judgment, a fact is material if it ‘might affect the
outcome of the suit under the governing law.’” Royal Crown Day
Care LLC v. Dep’t of Health & Mental Hygiene of City of N.Y., 746
F.3d 538, 544 (2d Cir. 2014) (quoting Liberty Lobby, Inc., 477
U.S. at 248).
“‘In moving for summary judgment against a party who will
bear the ultimate burden of proof at trial, the movant's burden
will be satisfied if he can point to an absence of evidence to
support an essential element of the nonmoving party's claim.’” In
re AXA Equitable Life Ins. Co. COI Litig., 595 F. Supp. 3d 196,
215 (S.D.N.Y. 2022) (quoting Goenaga v. March of Dimes Birth
Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)). In ruling on a
motion for summary judgment, a court must “construe the facts in
the light most favorable to the non-moving party and must resolve
all ambiguities and draw all reasonable inferences against the
movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011)
(quotation marks and citations omitted).
“If the movant meets its burden, ‘the nonmoving party must
come forward with admissible evidence sufficient to raise a genuine
issue of fact for trial in order to avoid summary judgment.’” Kayo
v. Mertz, 531 F. Supp. 3d 774, 787 (S.D.N.Y. 2021) (quoting
Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)).
“The non-moving party ‘cannot defeat the motion by relying on the
allegations in [its] pleading, or on conclusory statements, or on
mere assertions that affidavits supporting the motion are not
credible.’” In re AXA, 595 F. Supp. 3d. at 215 (quoting Gottlieb
v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)). The non-
moving party must “create more than a ‘metaphysical’ possibility
that his allegations [a]re correct; he need[s] to ‘come forward
with specific facts showing that there is a genuine issue for
trial.’” Wrobel v. Cnty. of Erie, 692 F.3d 22, 30 (2d Cir. 2012)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586–87 (1986)).
III. Applicable Law
A. Eighth Amendment
The Eighth Amendment to the United States Constitution
prohibits government officials from inflicting “cruel and unusual
punishments” on those in their care. U.S. Const. amend. VIII.
Pursuant to the right to be free from cruel and unusual
punishments, the Eighth Amendment prohibits prisons officials from
acting with “deliberate indifference to serious medical needs of
prisoners[.]” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
A prison official can be held liable for deliberate
indifference in violation of the Eighth Amendment “only when two
requirements are met.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d
Cir. 2006) (internal quotations and citations omitted), abrogated
in part on other grounds by Kravitz v. Purcell, 87 F.4th 11 (2d
Cir. 2023). The first requirement the plaintiff must meet “is
objective: the alleged deprivation of adequate medical care must
be ‘sufficiently serious.’” Id. (quoting Farmer v. Brennan, 511
U.S. 825, 834 (1994)). The second requirement “is subjective:
the charged official must act with a sufficiently culpable state
of mind.” Id. at 280. Put differently, a plaintiff “must show,
for each defendant, that the defendant acted with deliberate
indifference to [his] medical needs.” Brock v. Wright, 315 F.3d
158, 162 (2d Cir. 2003) (citing Estelle, 429 U.S. at 104).
Satisfying the objective prong entails two inquires. First,
the Court must assess “whether the prisoner was actually deprived
of adequate medical care.” Salahuddin, 467 F.3d at 279. The
second part of the objective inquiry asks whether the deprivation
or inadequacy of the plaintiff’s medical care is “sufficiently
serious.” See id. at 280.
Determining if the deprivation of medical care is
sufficiently serious is “necessarily contextual and fact-specific”
which requires “tailor[ing] [it] to the specific circumstances of
each case.” Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003)
(cleaned up) (internal quotations and citations omitted). This
includes examining the plaintiff’s claim differently depending on
whether he alleges the prison officials completely “fail[ed] to
provide any treatment for [his] medical condition” or alleges only
that the medical treatment he received was inadequate. See
Salahuddin, 467 F.3d at 280.
If the former, the Court must “examine whether the inmate’s
medical condition is sufficiently serious.” Id. at 280 (emphasis
added). Certain factors courts consider when evaluating the
seriousness of a medical condition include whether “a reasonable
doctor or patient would find [the condition] important and worthy
of comment or treatment,” whether the condition “significantly
affects an individual’s daily activities,” or “the existence of
chronic and substantial pain.” Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998) (internal quotations and citations omitted).
If, however, the plaintiff alleges only “inadequacy [] in the
medical treatment [he was] given, the seriousness inquiry is
narrower.” Salahuddin, 467 F.3d at 280. Instead of determining
the seriousness of the plaintiff’s underlying condition, the Court
must focus its inquiry “on the challenged delay or interruption in
treatment[.]” Id. (citing Smith, 316 F.3d at 185). Such inquiry
requires the Court to examine “the particular risk of harm” the
plaintiff faced as a result of the deprivation, “rather than the
severity of the [plaintiff’s] underlying medical condition[.]”
Smith, 316 F.3d at 186.
Accordingly, the Court inquires how serious the plaintiff’s
underlying medical condition is if he alleges he was entirely
denied care, whereas it must assess the “particular risks
attributable” to a provision of allegedly insufficient care or the
“severity of [a] temporary deprivation” in care if that is the
deprivation the plaintiff alleges. Id. at 186-87 (emphasis
added).
To satisfy the subjective prong, i.e., to prove a prison
official was deliberately indifferent to his or her medical needs,
a plaintiff must “show that a particular defendant ‘knows of and
disregards an excessive risk to inmate health or safety.’” Brock,
315 F.3d at 164 (quoting Farmer, 511 U.S. at 837). This standard
is akin to a mental state of subjective recklessness, as used in
criminal law. See Salahuddin, 467 F.3d at 280. The plaintiff may
demonstrate the defendant’s knowledge either by proving the
official had actual knowledge of the risks to the plaintiff’s
health or by proving “that the risk was obvious or otherwise must
have been known to [the] defendant[.]” Brock, 315 F.3d at 164.
B. Personal Involvement
Plaintiff asserts his Eighth Amendment claim pursuant to 42
U.S.C. § 1983. (See Compl. ¶¶ 318-40.) To prevail on a § 1983
claim for a constitutional violation, “a plaintiff must plead and
prove ‘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)). Thus,
to establish a particular defendant’s liability, Plaintiff must
“establish that [the particular defendant] violated the Eighth
Amendment by [his or her] own conduct, not by reason of [his or
her] supervision of others who committed the violation” and that
each particular defendant “knew of and disregarded an excessive
risk to [Plaintiff’s] health or safety.” Id. at 619 (citing Vega
v. Semple, 963 F.3d 259, 273 (2d Cir. 2020)).
Such personal involvement requires “direct participation, or
failure to remedy the alleged wrong after learning of it, or
creation of a policy or custom under which unconstitutional
practices occurred[.]” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir.
1996) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
C. Qualified Immunity
The Supreme Court has held that “[g]overnment officials are
entitled to qualified immunity [from liability] with respect to
‘discretionary functions’ performed in their official capacities.”
Ziglar v. Abbasi, 582 U.S. 120, 150 (2017) (quoting Anderson v.
Creighton, 483 U.S. 635, 638 (1987)). Whether a government
official can invoke qualified immunity “turns on the ‘objective
legal reasonableness’ of the official’s acts.” Id. at 151
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)). The
reasonableness of the official’s actions “must be ‘assessed in
light of the legal rules that were clearly established at the time
[the action] was taken.’” Id. (quoting Creighton, 483
U.S. at 639).
To determine whether the official violated rights that were
“clearly established,” the Court “must ask whether it would have
been clear to a reasonable officer that the alleged conduct was
unlawful in the situation he confronted.” Id. at 152 (internal
quotations and citations omitted). “[I]f a reasonable officer
might not have known for certain that the conduct was unlawful[, ]
then the officer is immune from liability.” Id. As the Supreme
Court phrased differently in a previous case, the “right must be
sufficiently clear that every reasonable official would have
understood that what he [wa]s doing violate[d] that right.” Taylor
v. Barkes, 575 U.S. 822, 825 (2015) (internal quotations and
citations omitted).
When confronted with the qualified immunity defense, the
Court must determine the scope of the right that the plaintiff
asserts was clearly established and that the official violated.
There need not exist “a case directly on point” that addresses
facts perfectly analogous to the instant case before the Court,
“but existing precedent must have placed the statutory or
constitutional question beyond debate.” Id. (internal quotations
and citations omitted). In other words, “the precise conduct at
issue need not previously have been ruled unlawful” for the Court
to conclude that the right was clearly established. Griffin v.
Amatucci, 611 F. App’x 732, 734 (2d Cir. 2015) (summary order)
(citing Zahrey v. Coffey, 221 F.3d 342, 357 (2d Cir. 2000)). As
the Court of Appeals has noted in the specific context of claims
of deliberate indifference in violation of the Eighth Amendment,
assertions of qualified immunity “are not analyzed body-part by
body-part” or with “specificity as to the site and cause of
pain[.]” Collymore v. Krystal Myers, RN, 74 F.4th 22, 30 (2d Cir.
2023). Such a “restricted view of the right” alleged to have been
violated would be unnecessarily narrow in determining whether the
right was clearly established at the time of its alleged violation.
See LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998).
On the other hand, “the clearly established right must be
defined with specificity,” and the “dispositive question is
whether the violative nature of particular conduct is clearly
established.” Vega, 963 F.3d at 275 (emphasis in original)
(internal quotations and citations omitted). Accordingly, the
Court must undertake this inquiry “in light of the specific context
of the case, not as a broad general proposition.” Id. In the
context of claims for deliberate indifference, this means
“‘sufficiently serious’ medical conditions ‘should not be defined
at a high level of generality.’” Collymore, 74 F. 4th at 30
(quoting White v. Pauly, 580 U.S. 73, 79 (2017)).
IV. Discussion
A. Plaintiff’s Claim for Deliberate Indifference
1. Objective Prong: Whether Plaintiff Suffered a
Sufficiently Serious Deprivation of Adequate Medical
Care
The State Represented Defendants argue Plaintiff cannot show
a deprivation of care sufficiently serious to satisfy the objective
prong of the deliberate indifference inquiry because he was offered
alternative medications and treatments that the State Represented
Defendants contend were “safer modalities than [the medications]
he preferred.” (See SRD Br. at 19-20.) Specifically, they argue
that because Plaintiff “was offered and received medical care and
treatment” alternatives to the prescriptions of Neurontin and
Lyrica that Dr. Andola requested on his behalf, Plaintiff can only
show that the “deprivation” of these medications from him was
sufficiently serious if it exposed him to the “‘particular risks
attributable’” to choosing treatment alternatives in lieu of
Neurontin and Lyrica. (See id. at 19 (quoting Smith, 316
F.3d at 187).) The State Represented Defendants contend that
Plaintiff cannot show he was exposed to such “particular risks.”
See id.
The State Represented Defendants provide the correct standard
by which this Court must assess whether the deprivation of
Plaintiff’s medical care was sufficiently serious. See Smith, 316
F.3d at 187. However, they fail to engage in the very
“sufficiently serious” analysis that they propose the Court follow
and that precedent demands. The State Represented Defendants fail
to grapple with the reality that, even if the courses of treatment
that they recommended as alternatives to Neurontin and Lyrica were
“safer” because they carried fewer risks of substance abuse or
addiction than did Neurontin and Lyrica, opting for such
alternatives came with “particular risks” of their own. Namely,
the risks attributable to denying Plaintiff Neurontin or Lyrica
are that Plaintiff would suffer chronic and substantial pain to a
greater degree than he would have had he been prescribed either of
those medications and that he would suffer greater pain than was
necessary given his condition.
The Court need look no further than State Represented
Defendants’ own submissions to conclude that such risks to
Plaintiff were present when they opted not to grant Dr. Andola’s
request to continue Plaintiff’s Neurontin prescription. The State
Represented Defendants note that Plaintiff “has a history of neck
and joint pain, with known neuropathy, severe arthritis,” as well
as “chronic neck and arm pain” and a “history of back pain and
peripheral neuropathy.” (SRD 56.1 Stmt. ¶ 11.) In his email to
Dr. Andola on June 14, 2017, Dr. Dinello noted that Plaintiff “does
have well documented Chronic Pain Issues. No question.” (See
Keane Decl. Ex. H.) Dr. Andola emailed Dr. Dinello and Dr. Mueller
the next day to tell them, in part, that Plaintiff told her that
the “pins and needles, numbness, and pains in [his] legs [were]
better” when he was taking the Neurontin. (Keane Decl. Ex. I.)
Dr. Andola separately noted that Plaintiff had been diagnosed with
lumbar levoscoliosis and degenerative disc disease throughout his
cervical, thoracic, and lumbar spine. (See Andola Decl. ¶ 12.)
Although not exhaustive, the record demonstrates that Plaintiff
suffered serious, chronic pain in multiple parts of his body, which
manifested itself in multiple symptoms and that the Neurontin he
had previously taken helped to alleviate that pain. The record
also shows that the State Represented Defendants were aware of
Plaintiff’s chronic pain issues, his report that the Neurontin
improved his pain symptoms, and Dr. Andola’s insight that
Plaintiff was already using the RMDs’ proposed alternative
treatment options and her doubt that certain other alternatives
would be medically appropriate for Plaintiff.
Therefore, the State Represented Defendants cannot credibly
argue that there were no “particular risks attributable” to denying
Dr. Andola’s MWAP requests for Neurontin and Lyrica and opting
instead for alternative treatment modalities for Plaintiff’s pain.
The particular risk inherent in the State Represented Defendants’
decision is the aggravation of Plaintiff’s documented chronic pain
if he were to be weaned off—or, in the case of Lyrica, denied—a
medication that treats such pain. The risk that Plaintiff would
suffer chronic and substantial pain due to the denial of the
requests to prescribe Neurontin and Lyrica is a severe enough
deprivation of care to make these denials sufficiently serious.
See Smith, 316 F.3d at 186-87. Thus, because denying Dr. Andola’s
MWAP Requests for Neurontin and Lyrica placed Plaintiff at risk of
aggravated and chronic pain in several places on his body, such
denial satisfies the objective prong of the deliberate
indifference inquiry.
The Non-State Represented Defendants similarly fail to
grapple with the fact that denying Plaintiff Neurontin and Lyrica
created a “particular risk[]” that Plaintiff would suffer a greater
degree of pain than he would have had to endure had he been
prescribed those medications. See Smith, 316 F.3d at 187. They
point to the numerous other prescriptions and accommodations
Dr. Andola gave Plaintiff to treat his pain, which the Non-State
Represented Defendants argue was “reasonable and, therefore
adequate [care] under the Eighth Amendment.” (NRSD Br. at 16.)
However, this argument misses the mark. As described above,
even though Dr. Andola may have provided Plaintiff numerous
treatment alternatives to Neurontin and Lyrica, such alternative
care may still have deprived Plaintiff of adequate care by creating
“particular risks” that he would suffer “chronic and substantial
pain” without the requested medications. See Smith, 316
F.3d at 187; Chance, 143 F.3d at 702. Because the decision to
provide Plaintiff these alternative treatments—rather than
Neurontin and Lyrica—gave rise to a risk that Plaintiff would
suffer chronic pain to a greater degree than he would have on those
medications, the alleged deprivation of care is sufficiently
serious under the objective prong of the Eighth Amendment inquiry.
See Smith, 316 F.3d at 186-87.
2. Subjective Prong: Whether Defendants Consciously
Disregarded an Excessive Risk of Harm to Plaintiff’s
Health
The State Represented Defendants argue that they lacked the
“requisite culpable state of mind” necessary to satisfy the
subjective prong of the deliberate indifference inquiry. (See SRD
Br. at 11 (citing Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994).) According to the State Represented Defendants, the Court
cannot conclude they were deliberately indifferent to Plaintiff’s
medical needs because they concluded that the “long-term use of
Neurontin,” which has “addictive properties and side effects,”
yielded to “safer alternative modalities and medications” after
they “engaged in a comprehensive review of [his] medical history”
that included a history of substance abuse. (Id. at 15 (citations
omitted).) They contend that their review and denial constituted
“principled decisions” based on medical judgments about the proper
way to treat Plaintiff that differed from the courses of action
Dr. Andola initially sought—prescriptions for Neurontin and
Lyrica. (See id. at 11-13.) As the State Represented Defendants
would have it, because their decisions “not [to] leav[e]
Plaintiff’s pain untreated, but [to] recommend[] several safer
alternative treatments and medications” and minimize the risks of
substance abuse and addiction were deliberative and grounded in
medical considerations, they lacked the recklessness necessary to
establish deliberate indifference to his medical needs. (Id.
at 11, 16.)
The State Represented Defendants correctly assert both that
mere disagreement with Dr. Andola over the superior course of
treatment and allegations of medical malpractice do not qualify as
deliberate indifference to Plaintiff’s medical needs. (See id.
at 10-11, 17 (citing Hernandez v. Keane, 341 F.3d 137, 144 (2d
Cir. 2003), and Chance, 143 F.3d at 703).) There is little
question that if that is all Plaintiff alleged or all that the
evidence illustrated, the State Represented Defendants would
likely be entitled to summary judgment. Indeed, the State
Represented Defendants have sufficiently demonstrated, through
their email exchanges with Dr. Andola, that they did not
immediately and automatically deny Dr. Andola’s MWAP Requests for
Neurontin and Lyrica and instead reviewed Plaintiff’s medical
records, considered Plaintiff’s social history against the drugs’
risks of addiction and abuse, and ultimately concluded it would be
safer not to prescribe Plaintiff those medications. (See Keane
Decl. Exs. D-O.)
However, the key inquiry when determining subjective
indifference is whether a particular defendant “kn[ew] of and
disregard[ed] an excessive risk to inmate health or safety.”
Brock, 315 F.3d at 164 (citing Farmer, 511 U.S. at 837).
a. The SRDs’ Denial of Neurontin
With respect to the MWAP Request for Neurontin, the record
evidence demonstrates that a reasonable jury could conclude that
the State Represented Defendants disregarded an excessive risk
that Plaintiff would suffer a great and unnecessary degree of
chronic pain if they did not approve the renewal of his Neurontin
prescription. Accordingly, the Court cannot grant the State
Represented Defendants’ summary judgment motion with respect to
the denial of the MWAP Request for Neurontin.
As to Dr. Mueller, she describes in detail the process she
would typically undertake when she received an MWAP Request and
the criteria she would typically consider when she evaluated
whether to approve such requests. (See Mueller Decl. ¶¶ 14-21.)
She asserts that it was her practice to “consider all criteria”
and “tak[e] into account multiple factors, primarily the medical
and social history of the particular patient,” when making such
determination. (Id. ¶¶ 14, 18.) She states that she “reviewed
the Plaintiff’s medical records” and “consider[ed] all of the
factors” after receiving Dr. Andola’s MWAP Request for Neurontin
on June 9, 2017, upon which she determined that “safer modalities
should be followed.” (Id. ¶¶ 23, 32.)
However, Dr. Mueller never specifies which of the criteria or
factors that she typically evaluated when analyzing an MWAP Request
she actually considered before she and Dr. Dinello denied
Dr. Andola’s request for Neurontin. Mueller recites Plaintiff’s
medical history and the treatments he had previously received for
his various maladies, (see id. ¶ 24), but provides no indication
as to how Plaintiff’s history of chronic pain or the treatments he
had received for such pain factored into her decision to deny the
request for Neurontin. Stating that she “reviewed the Plaintiff’s
medical records” cannot, in itself, demonstrate that Dr. Mueller
considered the risk of exacerbating Plaintiff’s chronic pain if
his Neurontin was discontinued or even that she considered whether
the “safer modalities” she and Dr. Dinello recommended would treat
his pain adequately. (See id. ¶¶ 23, 32.) Here, Plaintiff’s
medical records made clear that for years he had suffered serious
chronic pain which was treated with Neurontin—as well as other
treatments—for a period of time. The State Represented Defendants
have put forth no contention or evidence that Dr. Mueller
specifically considered the efficacy of Plaintiff’s prior
Neurontin treatment or the risk that Plaintiff’s pain would worsen
if he was taken off Neurontin in favor of an alternative treatment.
Accordingly, they have not shown, as a matter of law, that
Dr. Mueller did not disregard an excessive risk that Plaintiff’s
pain would deteriorate when she reviewed and denied Dr. Andola’s
MWAP Request for Neurontin. See Brock, 315 F.3d at 164.
Dr. Mueller implies—but does not say explicitly—that she did
specifically consider Plaintiff’s social history, including his
history of substance abuse, as well as the “addictive qualities
and potentially serious side-effects” of Neurontin when she
received the MWAP Request for the medication in June 2017. (See
Mueller Decl. ¶¶ 31-32.) Although it appears from Dr. Mueller’s
own assertions and from the record that these were some of the
factors she considered when reviewing the MWAP Request for
Neurontin, such consideration cannot overcome the apparent lack of
counterweight to the risk of excessive pain that Plaintiff might
suffer if he were to be taken off Neurontin.
Therefore, the Court cannot find that Dr. Mueller lacked the
reckless state of mind necessary to violate Plaintiff’s Eighth
Amendment rights. As described above, the record does not show
that she properly considered the “excessive risk to [Plaintiff’s]
health or safety”—namely, the risk of excessive pain—that would
result from denying the MWAP Request for Neurontin. See Brock,
315 F.3d at 164 (quoting Farmer, 511 U.S. at 837). The Court
cannot grant summary judgment as to Dr. Mueller for the Neurontin
MWAP Request denial.
For the same reasons, the Court cannot grant summary judgment
to Dr. Dinello for the denial of the June 9, 2017, MWAP Request
for Neurontin that Dr. Andola submitted. Like Dr. Mueller,
Dr. Dinello attests to his standard practice of considering an
inmate’s medical and social history when reviewing an MWAP Request
and asserts that after receiving Dr. Andola’s MWAP Request for
Neurontin and reviewing Plaintiff’s medical records, his medical
judgment indicated that Dr. Andola should try alternative
treatments to treat Plaintiff’s pain. (See Dinello Decl. ¶¶ 18-
20, 30.) While Dr. Dinello states that he preferred alternative
treatments because he believed they were safer and presented lesser
risks of addiction and abuse than those associated with Neurontin,
(see id. ¶ 30), his assertions about his medical judgment are
lacking in specificity about what in his review of Plaintiff’s
medical record ultimately led to his conclusion.
More particularly, Dr. Dinello does not specify what facts in
Plaintiff’s medical history he believed made Plaintiff vulnerable
to substance abuse, what specific properties of Neurontin he
believed made Plaintiff vulnerable to abusing the medication, or,
most pertinent, what consideration he gave—if any—to the
seriousness of Plaintiff’s chronic pain and what treatment would
address that pain most effectively. Although Dr. Dinello mentions
Plaintiff’s history of substance abuse and medication diversion,
(see id.), he does not specify which incidents of abuse or
diversion cautioned against prescribing Neurontin or what weight
he gave such history in his overall evaluation of the MWAP Request.
Nor does he state why Neurontin in particular might pose a risk to
Plaintiff’s habits. He states only that Plaintiff’s history of
substance abuse and diversion “increased the risk of MWAP
medications given [Plaintiff’s] particular circumstances” and,
therefore, “treatment alternatives with a safer risk/benefit
ratio” were preferable. (Id. ¶¶ 30-31, 33.) Without more
specificity, the Court might reasonably conclude that any history
of substance abuse or diversion might have led Dr. Dinello to deny
any request to treat Plaintiff with an MWAP medication.
And, although Dr. Dinello mentions the “risk/benefit ratio”
of continuing Plaintiff’s Neurontin prescription, he gives no
indication that he considered the benefits to Plaintiff that might
come from granting Dr. Andola’s request. Dr. Dinello’s emails to
Dr. Andola make clear that he knew how serious Plaintiff’s pain
condition was. (See Keane Decl. Ex. H (noting Plaintiff “does
have well documented Chronic Pain Issues. No question.”).) But
there is no information about what medications or treatments
Dr. Dinello believed would provide Plaintiff the benefit of pain
mitigation. Nor is there any indication that Dr. Dinello evaluated
how effective Neurontin had been at treating Plaintiff’s pain
before Dr. Andola submitted her MWAP Request. In other words, the
evidence the State Represented Defendants submitted shows not that
Dr. Dinello gave much consideration to the seriousness of
Plaintiff’s pain or the optimal way to treat it but that he looked
instead only for treatments that would minimize risks of abuse.
Accordingly, the State Represented Defendants have not
demonstrated, as a matter of law, that Dr. Dinello did not
disregard an excessive risk of which he was aware—namely, that
denying Dr. Andola’a MWAP Request for Neurontin would exacerbate
Plaintiff’s chronic pain. Because the State Represented
Defendants failed to defeat Plaintiff’s argument on the subjective
prong of the deliberate indifference inquiry, the Court cannot
grant summary judgment to Dr. Dinello for his denial of the
Neurontin MWAP Request. See Brock, 315 F.3d at 164.
b. The SRDs’ Denial of Lyrica
Dr. Mueller’s denial of Dr. Andola’s October 4, 2018, MWAP
Request to prescribe Plaintiff Lyrica presents a closer call
regarding her attention or indifference to Plaintiff’s medical
needs. As she did in response to Dr. Andola’s MWAP Request for
Neurontin, Dr. Mueller considered Lyrica’s addictive properties,
propensity to cause withdrawal symptoms, and side effects, as well
as the concerns that the medication raised for patients with
histories of substance abuse or psychiatric disorders, both of
which, she says, were present with Plaintiff. (See Mueller Decl.
¶ 44.) But in contrast to her assessment of the request for
Neurontin, Dr. Mueller specifies that in response to the request
for Lyrica, she evaluated the fact that Plaintiff had not received
physical therapy for more than two years, that such physical
therapy was limited in scope, and Plaintiff had refused some
physical therapy sessions. (See id.) She also indicates that
Dr. Andola’s request did not reveal whether Plaintiff had been
referred to any specialists and that she believed Plaintiff should
be referred to a pain management specialist, orthopedist,
neurologist, or physical therapist. (See id. ¶¶ 44-45.) She also
asserts that she believed that other medications Plaintiff could
use would not only be safer but more effective at treating his
pain. (See id. ¶ 45.)
All of this reflects Dr. Mueller’s attention to Plaintiff’s
specific medical needs beyond a mere worry about his social history
or the dangerous qualities of Lyrica—which is all that she
previously exhibited in response to the MWAP Request for Neurontin.
Dr. Mueller’s actions reveal that she reviewed Plaintiff’s
treatment history and recommended paths underutilized or not yet
taken to treat his pain, including directing him to appropriate
specialists for further evaluation and putting him on other
medications that would mitigate his pain effectively. Thus, unlike
her denial of the Neurontin request, it appears that Dr. Mueller
considered not only the risks of prescribing Plaintiff Lyrica but
the relative effectiveness and benefit of the medication as well.
Accordingly, the record does not support that Dr. Mueller
displayed a subjective disregard to the excessive risk that
Plaintiff would suffer unnecessary additional pain should he have
been denied a prescription for Lyrica. Therefore, Plaintiff cannot
satisfy the subjective prong of his Eighth Amendment claim with
respect to Dr. Mueller’s denial of the October 4, 2018, MWAP
Request for Lyrica.
c. Dr. Andola’s Subjective Treatment of Plaintiff
Plaintiff has raised a genuine dispute of material fact
regarding Dr. Andola’s subjective state of mind in and around both
June 2017 and October 2018 that prevents the Court from granting
her motion for summary judgment for the denials of her MWAP
Requests for Neurontin and Lyrica.
Dr. Andola’s argument that she was not subjectively reckless
in her treatment of Plaintiff boils down to the assertions that
she “attempt[ed] to get Plaintiff’s Neurontin approved,” (NSRD
Reply at 5), through her emails with Dr. Mueller and Dr. Dinello
and, when those attempts failed, “provided [Plaintiff] alternate
accommodations” and “refused to prescribe [Plaintiff] certain
medications that she believed would cause harm.” (NSRD Br. at 17.)
Dr. Andola indicates that these actions demonstrate she did all
she could in the face of the MWAP Policy, which contained no
written procedures she could follow to appeal denials like the
ones Dr. Mueller and Dr. Dinello issued. (See NSRD Reply at 2-5.)
The Court acknowledges that the MWAP Policy severely
restrained Dr. Andola’s ability to prescribe Plaintiff the
medications she believed were effective or necessary to treat his
pain. However, the record contains substantial testimony from
Dr. Mueller, Dr. Dinello, and Dr. Carl Koenigsmann stating that
treating physicians could and would appeal informally to RMDs or
to Dr. Koenigsmann directly to get the requested MWAP prescription
approved if the physicians believed it was the optimal course of
treatment. (See Manley Decl. Ex. C at 273:8-278:12; Manley Decl.
Ex. E at 109:9-111:21; Manley Decl. Ex. I at 177:3-179:8.)
Indeed, Dr. Koenigsmann stated that there were many occasions on
which he approved a treating physician’s MWAP Request after an RMD
had denied it. (See Manley Decl. Ex. E at 110:8-14.) Although
the Court takes Dr. Andola’s point that the lack of any written
appeal procedure in the MWAP Policy made any prospective appeal
opaque and uncertain, the record reveals that there may have
existed alternative pathways to get approval for the prescriptions
for medications that she believed would most effectively treat
Plaintiff’s pain. Whether Dr. Andola knew of these opportunities,
sought to pursue them after either MWAP Request denial, or
disregarded these options is a question of fact that cannot be
resolved on the current record.
The lengthy back-and-forth Dr. Andola had over email with
Dr. Mueller and Dr. Dinello in June 2017 to persuade them to
approve her MWAP Request for Neurontin presents a close question
as to her subjective state of mind about Plaintiff’s medical care.
She provided as much of the requested information from Plaintiff’s
medical history as she could, expressed her professional opinion
about some of the RMDs’ suggested alternative treatments, sought
other treatment suggestions, and expressed comfort maintaining the
treatment regimen Plaintiff was on at the time, which included
Neurontin. (See Keane Decl. Exs. J-L.) She certainly did not
surrender her pursuit of Plaintiff’s proper treatment quickly or
easily. However, as described above and despite the efforts
Dr. Andola did take, the record is not clear whether she also knew
of or pursued alternative channels to obtain a prescription for
Neurontin to treat Plaintiff’s pain, whether she knew of such paths
to a Neurontin prescription approval and disregarded them after
she exchanged emails with Dr. Dinello and Dr. Mueller in June 2017,
or whether she knew of and disregarded effective pain medications
that she could seek to prescribe for Plaintiff other than the
Neurontin he specifically requested and continued to request.
The October 4, 2018, MWAP Request for Lyrica presents a much
less narrow question of fact. The record does not reveal
Dr. Andola made any attempt to obtain a prescription for Lyrica
after Dr. Mueller denied the request. One day after the denial,
Dr. Andola thanked Dr. Mueller for “consider[ing]” the MWAP
Request and seemed to accept that “apparently [Plaintiff] is not
a good candidate for mwap medication.” (Keane Ex. P.) Given that
Dr. Andola knew the degree of pain Plaintiff was suffering at the
time, her apparently ready acceptance of Dr. Mueller’s denial
paints an even more plausible picture of a subjective disregard of
Plaintiff’s medical needs. And, as discussed above regarding the
denial of Dr. Andola’s MWAP Request for Neurontin, there is no
evidence in the record indicating if she knew of and disregarded
effective pain medications that she could seek to prescribe for
Plaintiff other than the Lyrica he had specifically requested.
Accordingly, the Non-State Represented Defendants have not
put forth sufficient evidence to defeat Plaintiff’s contention
that Dr. Andola knew of and disregarded an excessive risk that the
course of action and course of treatment she chose after the MWAP
Request denials would exacerbate Plaintiff’s chronic pain.
Because there remain genuine disputes as to Dr. Andola’s
subjective state of mind in treating Plaintiff, the Non-State
Represented Defendants’ motion as to Dr. Andola is denied. See
Liberty Lobby, Inc., 477 U.S. at 248.
B. Dr. Gusman’s and Dr. Dinello’s Personal Involvement
Dr. Gusman has failed to demonstrate that, as a matter of
law, he cannot be held liable because he was not personally
involved in the deprivation of Plaintiff’s medical care. To
establish liability, Plaintiff is required to plead and
demonstrate that Dr. Gusman directly participated in or failed to
remedy the unconstitutional deliberate indifference to his medical
needs. See Iqbal, 556 U.S. at 676; Black, 76 F.3d at 74. The
only allegation in Plaintiff’s complaint mentioning Dr. Gusman
that relates to alleged incidents of deliberate indifference is
that Dr. Gusman was “cc’d” on an email Dr. Andola sent to
Dr. Dinello and Dr. Mueller providing additional information
Dr. Mueller had requested upon receiving the MWAP Request for
Neurontin. (See Compl. ¶ 294.) This allegation alone would be
insufficient to show that Dr. Gusman directly participated in
denying Plaintiff the Neurontin Dr. Andola requested for Plaintiff
or that he failed to act to remedy an unconstitutional act. See
Iqbal, 556 U.S. at 676; Black, 76 F.3d at 74.
However, the evidentiary record presents a question of fact
for the jury regarding whether Dr. Gusman was personally involved
in denying Plaintiff adequate medical care. The evidentiary
support upon which Plaintiff relies to assert Dr. Gusman’s
personal involvement are (1) the emails in June 2017 on which
Dr. Gusman was copied regarding Dr. Andola’s MWAP Request for
Neurontin, and (2) Plaintiff’s own deposition testimony in which
he asserted both that he had been treated by Dr. Gusman after he
was taken off Neurontin and that he told Dr. Gusman that Neurontin
had treated his pain effectively and that the alternative
treatments on which he had been placed were not as effective. (See
Pl. Opp. at 53-54; Agnew Decl. Ex. 25 at 209:14-210:15.)
Mere receipt of information of alleged deprivation of
constitutional rights is, in itself, insufficient to establish
personal involvement. See Goris v. Breslin, 402 F. App’x 582, 584
(2d Cir. 2010) (citing Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.
1997)). In Goris, the Court of Appeals affirmed the district
court’s holding that a defendant was not sufficiently involved in
deliberate indifference to the plaintiff’s medical needs where he
had “recei[ved] [] two letters from [the plaintiff],” even though
the defendant then “promptly referred” those letters to “other
individuals for investigation and response.” Id. By contrast,
the record here does not demonstrate that Dr. Gusman even took
steps of referral to others—only that, like the defendant in Goris,
he received emails sent by Dr. Andola, Dr. Mueller, and
Dr. Dinello. Without more in the record demonstrating what actions
Dr. Gusman took or what omissions he made after receiving those
emails, the evidence of mere receipt cannot substantiate his
personal involvement. See Goris, 402 F. App’x at 584; Sealey, 116
F.3d at 51. Therefore, just as the allegation that Dr. Gusman
received emails containing information related to Dr. Andola’s
MWAP Request is insufficient to establish personal involvement,
the evidentiary record of his receipt of those emails is
insufficient, too.
However, Plaintiff’s deposition testimony creates a question
of fact regarding Dr. Gusman’s personal involvement in the denial
of adequate medical care. Plaintiff testified that, after his
Neurontin prescription was discontinued, he told Dr. Gusman that
he was in pain, that he felt Neurontin had previously treated his
pain effectively, and that none of the medications he was taking
as alternatives to Neurontin were treating his pain effectively.
(See Agnew Decl. Ex. 25 at 209:14-210:11.) Although Plaintiff did
not testify that he specifically asked Dr. Gusman to re-prescribe
Neurontin after its discontinuation or to submit a new MWAP Request
for Neurontin, his testimony reveals that he made Dr. Gusman aware
of the pain he suffered following the discontinuation of his
Neurontin prescription and the ineffectiveness of the medications
that replaced Neurontin. For certain, Plaintiff’s testimony about
the information he gave Dr. Gusman is vague—he did not indicate in
his deposition when this interaction with Dr. Gusman occurred or
what Plaintiff hoped Dr. Gusman might do to remedy his pain.
However, at this stage, the Court must construe the record—
including Plaintiff’s testimony—in the light most favorable to
Plaintiff and “must resolve all ambiguities and draw all reasonable
inferences against the movant.” Brod, 653 F.3d at 164 (internal
quotations and citations omitted).
Thus, although Plaintiff’s testimony presents a very close
factual question, it creates sufficient ambiguity to prevent the
Court from granting the Non-State Represented Defendants’ motion
on the basis that Dr. Gusman was not personally involved. Because
the record is ambiguous as to what Dr. Gusman knew about the extent
of Plaintiff’s pain, when he knew it, and what, if anything,
Plaintiff asked Dr. Gusman to do about it, the Court cannot say,
as a matter of law, that no reasonable jury could conclude
Dr. Gusman was personally involved in the denial of adequate
medical care for Plaintiff.
The lack of clarity regarding Dr. Gusman’s knowledge of
Plaintiff’s pain and treatment following the discontinuation of
Plaintiff’s Neurontin prescription also requires the Court to deny
the Non-State Represented Defendants’ motion on their alternative
ground that Dr. Gusman was not deliberately indifferent to
Plaintiff’s medical needs. (See NSRD Br. at 12 n.1.) Plaintiff’s
testimony that he told Dr. Gusman about the pain he was in and did
not believe the replacement medications adequately treated the
pain creates a question of fact about when Dr. Gusman learned of
Plaintiff’s pain, what he knew about the inadequacy of the
alternative treatment, and the extent of his knowledge. It also
creates a question of fact about whether Dr. Gusman took any action
in response to what Plaintiff told him or whether he instead
disregarded the risk that Plaintiff would continue to suffer
unnecessary pain without new, adequate medications or treatment.
Accordingly, the Court cannot grant summary judgment for
Dr. Gusman. See Brock, 315 F.3d at 164; Liberty Lobby, Inc., 477
U.S. at 248.
Dr. Dinello, on the other hand, cannot be liable for any
deprivation of medical care resulting from the denial of the
October 4, 2018, MWAP Request for Lyrica. The parties do not
dispute that he played no part in Dr. Mueller’s denial of
Dr. Andola’s request. Therefore, Dr. Dinello was not sufficiently
involved in the denial to incur liability for the denial of that
request. See Iqbal, 556 U.S. at 676; Black, 76 F.3d at 74.
C. Qualified Immunity
Plaintiff asserts that the clearly established right each of
the Defendants should have known he or she was violating was
Plaintiff’s right to be free from prison officials’ “deliberate[]
indifferen[ce] to an inmate’s serious medical needs.” (See Pl.
Opp. at 58.) The State Represented Defendants argue the right was
narrower—namely, that the right violated was the “den[ial] [of]
long-term prescriptions of medications that have addictive
qualities and potentially serious side-effects in favor of safer
treatment strategies.” (SRD Br. at 23.) The Non-State Represented
Defendants do not explicitly articulate what right was or was not
clearly established, instead arguing that Dr. Andola’s
“particularized interaction” with Plaintiff and the “myriad of
unique facts regarding [her] individual treatment decisions” make
it impossible to fit her actions into any clearly established
right, thereby entitling her to qualified immunity. (See NSRD
Br. at 19-20.)
At a minimum, Plaintiff has a “right to be free from
deliberate indifference to serious medical needs.” See LaBounty,
137 F.3d at 74 (rejecting Defendants’ narrower view that the right
at issue in the plaintiff’s Eighth Amendment claim was a “right to
be free from crumbling asbestos”). However, because Court of
Appeals precedent demands defining the “clearly established right”
with specificity as to the particular conduct, see Vega, 963
F.3d at 275, the Court finds that a narrower definition of
Plaintiff’s right at issue is required.
1. The SRDs’ Qualified Immunity Defense
In Griffin v. Amatucci, an inmate at Upstate Correctional
Facility alleged that a doctor and a nurse at the facility had
violated the Eighth Amendment “by refusing to provide him with a
treating-physician recommended humidifier for his . . . [CPAP]
machine pursuant to a policy of not providing humidifiers.” 611
F. App’x at 734. The Court of Appeals relied on Johnson v. Wright
and Brock v. Wright to conclude that the “clearly established
right” at issue was a right to be free from a “reflexive
application of [a] . . . policy in the face of a contrary
recommendation by [plaintiff’s] treating physician[.]” Id.
at 735. Given the similarities between the allegations in Griffin
and the ones Plaintiff has put forth in the instant case, the Court
finds the Court of Appeals’ reasoning persuasive.
Johnson, on which the Court of Appeals relied in Griffin, is
even more on point to the facts of the instant case and provides
what this Court finds is the appropriately tailored right in the
assessment of the State Represented Defendants’ qualified immunity
defense. In Johnson, the plaintiff claimed New York State
corrections officials were deliberately indifferent to his serious
medical needs because the officials had denied a request from the
plaintiff’s treating physician to prescribe the plaintiff a
particular medication to treat his Hepatitis C. See Johnson v.
Wright, 412 F.3d 398, 400-02 (2d Cir. 2005). The officials had
denied the physician’s request because a department policy in
effect at the time permitted the officials to deny such treatment
if an inmate had a recent history of substance abuse, which the
plaintiff did. See id. at 401.
In its review of the plaintiff’s argument that the officials
had violated the Eighth Amendment, the Court of Appeals framed the
question in the case as whether “the application of the policy” of
denying Hepatitis C medications to inmates with a history of
substance abuse “in plaintiff’s case could have amounted to
deliberate indifference to plaintiff’s medical needs.”
Id. at 404. In vacating the district court’s decision granting
summary judgment to the defendant corrections officials on this
question, the Court of Appeals held that a jury could find that
“the defendants acted with deliberate indifference by reflexively
relying on the medical soundness of the . . . substance abuse
policy when they had been put on notice that the medically
appropriate decision could be, instead, to depart from the [policy]
and prescribe” the medication the inmate’s treating physician
recommended. Id. at 406. The Court of Appeals articulated a
similar question of deliberate indifference two years prior in
Brock: “whether following [a] policy” forbidding certain
treatments absent particular symptoms resulted in unconstitutional
deliberate indifference to the plaintiff’s medical needs. See
Brock, 315 F.3d at 162, 166.
The Court finds that the Eighth Amendment right the Court of
Appeals articulated in Johnson—the right to be free from reflexive
application of a policy denying a medication to any inmate with
substance abuse risk—provides the clearly established right to
analyze the State Represented Defendants’ qualified immunity
argument given the degree of similarity to the allegations
Plaintiff has put forth. The Court also concludes that the right
defined in Johnson is defined specifically enough to render it
clearly established in the context of Eighth Amendment claims.
See Collymore, 74 F.4th at 30; Vega, 963 F.3d at 275.
As in Johnson and Brock, the instant case involves (1) a
treating physician’s request to implement a particular treatment,
(2) senior corrections officials’ rejection of that request,
(3) due to a policy favoring such rejection. And, as in Johnson
specifically, the treating physician here sought to prescribe a
medication that the officials rejected because the policy in
question favored such rejections due to the risk of substance
abuse. In both cases, the Court of Appeals held that granting
summary judgment for the prison officials was inappropriate
because a jury could conclude, based on the evidence, that the
prison officials’ deference to policy constituted deliberate
indifference because it was made without sufficient consideration
of the inmate’s medical needs or of the treating physician’s
recommendation. See Johnson, 412 F.3d at 404-06; Brock, 315
F.3d at 167.
Therefore, the Court finds that the Court of Appeals has
spoken sufficiently clearly in holding that inmates have an Eighth
Amendment right not to have prison officials rely on a policy to
reject a request for a medication when the officials know it might
be medically appropriate to prescribe the medication instead.
Because the Court of Appeals ruled on this right nearly two decades
ago, and later reiterated the right in Griffin, it should have
been “clear to a reasonable officer” that the denial of
Dr. Andola’s request to treat Plaintiff with Neurontin was
unlawful. See Ziglar, 582 U.S. at 152. Accordingly, Plaintiff’s
right was clearly established and not subject to the State
Represented Defendants’ qualified immunity defense. See id.
2. The NSRDs’ Qualified Immunity Defense
The Non-State Represented Defendants argue that the facts of
the instant case are too unique for there to have been a clearly
established right Dr. Andola knowingly violated and that
Dr. Andola acted in an objectively reasonable manner after the
RMDs rejected her MWAP Requests. (See NSRD Br. at 18-20.)
The Non-State Represented Defendants are correct that
Dr. Andola would be entitled to immunity “if either (a) [her]
action[s] did not violate clearly established law, or (b) it was
objectively reasonable for [her] to believe that [her] action did
not violate such law.” Johnson v. Newburgh Enlarged Sch. Dist.,
239 F.3d 246, 250 (2d Cir. 2001) (internal quotations and citations
omitted). The Court finds that the particular right clearly
established by law as applicable to Dr. Andola—as distinct from
Plaintiff’s clearly established right to be free from the RMDs’
reflexive application of a policy in determining his medical
treatment—is the right to be free from a physician’s deliberate
indifference to his medical needs through “consciously choos[ing]
an easier and less efficacious treatment plan.” Chance, 143
F.3d at 703 (internal quotations and citations omitted). The
Court of Appeals not only articulated this right in Chance v.
Armstrong but reaffirmed in Brock that it is a right protected by
the Eighth Amendment. See Brock, 315 F.3d at 167.
As the Court described in detail above, there remain genuine
issues of material fact about whether Dr. Andola’s course of
treatment following the RMDs’ denials constituted knowing and
deliberate indifference to Plaintiff’s medical needs, including
whether she consciously chose an easier, less efficacious
treatment plan than was warranted. See Chance, 143 F.3d at 703.
Thus, at this stage, the Court cannot conclude as a matter of law
that she did not violate a clearly established right.
Because of those same disputed facts, the Court cannot find
that Dr. Andola is entitled to qualified immunity on the basis of
her objective reasonableness. “[W]here . . . the objective
reasonableness of an officer’s actions depends on disputed facts,
summary judgment based on qualified immunity is properly denied.”
Knight v. N.Y. State Dep’t of Corrs., 2022 WL 1004186, at *18
(S.D.N.Y. Mar. 30, 2022) (internal quotations and citations
omitted). This is because the question of reasonableness in a
physician’s treatment of a prisoner is “not whether [the
physician’s] actions were objectively reasonable based on [the
physician’s] own version of his [or her] actions,” but on whether
the physician’s actions “were objectively reasonable based on the
record viewed in the light most favorable to [the plaintiff] and
with all inferences drawn in [the plaintiff’s] favor.” Warren v.
Chakravorty, 2006 WL 2067736, at *8 (S.D.N.Y. July 25, 2006)
(denying summary judgment based on a qualified immunity defense).
Taking the record in the light most favorable to Plaintiff, as the
Court must on the Non-State Represented Defendants’ motion, the
Court concludes that a reasonable jury could conclude that
Dr. Andola’s chosen course of treatment was not objectively
reasonable given her apparent lack of effort to pursue alternative
routes to get approval for her MWAP Requests or to obtain
prescriptions for Plaintiff’s pain other than those Plaintiff
specifically requested. Accordingly, Dr. Andola is not entitled
to summary judgment on the basis of qualified immunity.
For the very same reasons, the Court cannot grant the Non-
State Represented Defendants’ motion with respect to Dr. Gusman on
the basis of qualified immunity. As described in detail above,
the record contains a genuine dispute of material fact about
whether Dr. Gusman knew of and disregarded the risks to Plaintiff’s
health after Plaintiff informed him of the pain he was suffering
and the ineffectiveness of the alternative treatments he had been
given. As is the case with Dr. Andola, this factual dispute raises
a question for the jury about whether Dr. Gusman chose or
maintained an easier and less efficacious treatment for Plaintiff
after he learned of Plaintiff’s pain and the ineffectiveness of
the medications that replaced his Neurontin prescription. The
same factual dispute would also permit a reasonable jury to
conclude that Dr. Gusman’s response—or lack thereof—to what
Plaintiff told him about his pain and treatment was not objectively
reasonable. Therefore, because the Non-State Represented
Defendants failed to show that Dr. Gusman’s actions did not violate
clearly established law or were objectively reasonable, the Court
cannot dismiss him on the basis of qualified immunity at this
stage. See Newburgh Enlarged Sch. Dist., 289 F.3d at 250; Knight,
2022 WL 1004186, at *18; Chance, 143 F.3d at 703.
D. Exhaustion of Remedies
Because the Court has granted the State Represented
Defendants’ motion with respect to the denial of Dr. Andola’s
October 4, 2018, MWAP Request for Lyrica, the Court need not rule
on their argument that Plaintiff failed to exhaust his
administrative remedies following that denial. (See SRD
Br. at 24-25.)
V. Conclusion
For the reasons set forth above, the State Represented
Defendants’ motion is granted in part and denied in part. The
motion is DENIED with respect to the June 9, 2017, MWAP Request
for Neurontin but GRANTED with respect to the October 4, 2018,
MWAP Request for Lyrica.
The Non-State Represented Defendants’ motion is DENIED in its
entirety.
Trial in the above-captioned case is scheduled for October
28, 2024, at 10:00 a.m. The parties shall submit a proposed
schedule for filing a joint pretrial order, motions in limine,
oppositions to motions in limine, joint proposed jury
instructions, and proposed voir dire questions no later than July
12, 2024.
The Clerk of the Court shall close docket entry numbers 17,
22, and 26.
SO ORDERED.
Dated: June 21, 2024
New York, New York
LORETTA A. PRESKA
Senior United States District Judge
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