The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
BRIAN BERNARD,
Plaintiff,
No. 23-CV-3323 (LAP)
-against-
OPINION AND ORDER
SUSAN MUELLER, et al.,
Defendants.
LORETTA A. PRESKA, Senior United States District Judge:
I. Background
A. Factual Background
The Court assumes familiarity with its decision in related
case Allen v. Mueller, No. 23-CV-5651, 2024 WL 3090141 (S.D.N.Y.
June 21, 2024). A streamlined version of the relevant facts and
procedural history follows.
The above-captioned case arises from a class action brought
by several named New York State Department of Corrections and
Community Supervision (“DOCCS”) inmates on behalf of a class of
individuals in DOCCS custody whose medications were denied or
discontinued after the institution of the Medications With Abuse
Potential (“MWAP”) Policy. See Allen v. Koenigsmann, No. 19-CV-
8173, 2023 WL 2731733 (S.D.N.Y. Mar. 31, 2023).1 (See also Allen
0F
I, Plaintiff’s Memorandum of Law in Support of Motion for Class
1 The Court will refer to the class action, 19-CV-8173, as
“Allen I.”
Certification, dated May 19, 2022 (“Pl. Class Cert. Br.”) [19-CV-
8173, dkt. no. 371] at 21.)2
1F
DOCCS adopted the MWAP Policy in June 2017. (See Stewart v.
Mueller, Defendant Mueller’s Local Civil Rule 56.1 Statement of
Undisputed Facts, dated November 15, 2023 (“Mueller 56.1 Stmt.:
Stewart) [23-CV-5668, dkt. no. 19] ¶ 3.) The MWAP Policy required
any DOCCS medical provider who sought to prescribe certain
medications to submit an “MWAP Request” to the DOCCS Regional
Medical Director (“RMD”) in charge of the medical provider’s
facility. (See id. ¶ 5.) Before the DOCCS medical provider had
authority to prescribe the requested medication for long-term use
for chronic conditions, the RMD had 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 Rivera-Cruz v.
Mueller, Declaration of A.J. Agnew in Opposition to Motion for
Summary Judgment, dated December 27, 2023 (“Rivera-Cruz, Agnew
Decl.”) [23-CV-5657, dkt. no. 29], Ex. 23 [23-CV-5667, dkt. no.
29-25] at 2.) Medications that required RMD approval under the
2 Unless otherwise noted, page numbers cited herein reflect ECF
page numbers, rather than page numbers of the parties’ submissions.
The Court will also cite page numbers using the various methods of
pagination used by the parties in their exhibits (such as MD
000406).
MWAP Policy included Gabapentin (Neurontin), Lyrica (Pregabalin),
Baclofen, Flexeril (Cyclobenzaprine), Ultram (Tramadol), Percocet,
and Oxycodone. (See Mueller 56.1 Stmt.: Stewart ¶ 6.) DOCCS
rescinded the MWAP Policy on February 8, 2021. (See State
Represented Defendants’ Local Civil Rule 56.1 Statement of
Undisputed Facts, dated November 16, 2023 (“SRD 56.1 Stmt.:
Gradia”) [23-CV-5660, dkt. no. 24] ¶ 6.)
Plaintiffs in the class action asserted claims under 42 U.S.C.
§ 1983 alleging deliberate indifference to their medical needs due
to DOCCS’ implementation of the MWAP Policy and the discontinuation
and denial of their medications that ensued. (Allen I, Second
Amended Complaint, dated December 12, 2020 [19-CV-8173, dkt. no.
256] at 137-40.) Plaintiffs moved for class certification and for
a preliminary injunction seeking relief from the ongoing effects
of the MWAP Policy, arguing that DOCCS was continuing to deny
effective treatment to patients who had lost their medications due
to the MWAP Policy. (Allen I, Pl. Class Cert. Br. at 21-22; Allen
I, Plaintiff and Plaintiff-Intervenors’ Memorandum of Law in
Support of Motion for Injunctions, dated May 31, 2022 [19-CV-8173,
dkt. no. 378] at 8-9.)
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. See Allen I, 2023 WL 2731733, at *6. 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 *2-3.
Also on March 31, 2023, the Court granted the Allen I
plaintiffs’ motion for a preliminary injunction, determining
plaintiffs had demonstrated ongoing constitutional violations,
including medically unjustified discontinuations of MWAP treatment
and a likelihood of imminent future harm across the class. Allen
I, No. 19-CV-8173, 2023 WL 2752375, at *22-23 (S.D.N.Y. Mar. 31,
2023).
After a four-day bench trial, this Court converted the
preliminary injunction into a permanent injunction, concluding
that remedying the constitutional violations in DOCCS’ pain
management practices outweighed the administrative challenges
DOCCS would face in implementing a permanent injunction. Allen I,
700 F. Supp. 3d 110, 145 (S.D.N.Y. 2023). The Court then awarded
attorneys’ fees to Plaintiffs’ counsel. (Allen I, Order, dated
February 22, 2024 [19-CV-8173, dkt. no. 850] at 1.)
The Court of Appeals affirmed this Court’s decision to grant
a permanent injunction and award Plaintiffs’ counsel attorneys’
fees. Daniels et al. v. Moores, No. 24-30-pr, 2025 WL 883035, at
*1 (2d Cir. Mar. 21, 2025) (summary order). The Court of Appeals
credited the Court’s determination that “the MWAP Policy was still
de facto in place, despite being formally rescinded, because
prisoners in DOCCS custody continued to have their MWAP medications
systematically denied without medical justification and without
regard to medical need.” (Id. at *2.) In addition, the Court of
Appeals found no error in the Court’s conclusion that Plaintiffs
suffered Eighth Amendment violations and therefore irreparable
harm. (Id. at *2-3.) In so holding, the Court of Appeals
reiterated that “a deliberate indifference claim can lie where
prison officials deliberately ignore the medical recommendations
of a prisoner’s treating physicians” and where defendants
“reflexively rel[ied] on . . . 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] to the plaintiff.” (Id. at *3 (citing Johnson v.
Wright, 412 F.3d 398, 404, 406 (2d Cir. 2005).)
Following this Court’s denial of certification of a
“liability class,” various plaintiffs filed individual suits for
damages against various DOCCS employees, including RMDs,
physicians, and nurse practitioners (“NPs”). (See, e.g., Amended
Complaint as Severed from Allen I, filed June 30, 2023 (“AC:
Daniels”) [23-CV-5654, dkt. no. 1] at 3-5.) Similar to the
allegations made in the class action, these plaintiffs each alleged
violations of 42 U.S.C. § 1983 based on deliberate indifference to
their medical needs. (See, e.g., id. ¶¶ 349-72.) Today’s opinion
addresses the claims of Brian Bernard, Wilbert Dunbar, and Khalaire
Allah.
Before the Court are the motions of Defendants Dr. David
Dinello, Dr. Susan Mueller, Dr. Chung Lee, and Nurse Practitioner
Brandi Lynn Corigliano for summary judgment. Memorandum of Law in
Support of Defendants Dinello and Mueller’s Motion for Summary
Judgement, dated May 23, 2025 (“State Represented Defendants’
Summary Judgment Motion”)[23-cv-3323, dkt. 131]; Defendants’
Memorandum of Law in Support of their Motion for Summary Judgement,
dated May 23, 2025 (“Non-State Represented Defendants Summary
Judgement Motion”) [23-cv-3323, dkt. 138]. Plaintiff opposed.
Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motions
for Summary Judgement, dated August 1, 2025 [23-cv-3323, dkt. 154].
Defendants replied. Reply Memorandum of Law in Further Support of
Defendants Dinello and Mueller’s Motion for Summary Judgement,
dated September 10, 2025 (“State Defendants’ Summary Judgment
Motion Reply”)[23-cv-3323, dkt. 156]; Non-State Represented
Defendants’ Reply Memorandum of Law in Support of their Motion for
Summary Judgement, dated September 10, 2025 (“Non-State
Defendants’ Summary Judgment Motion Reply”)[23-cv-3323, dkt. 131].
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 verdict 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 the 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. Cnty. 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 111 (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 Wilson v. Seiter, 501
U.S. 294, 298 (1991)). 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.” 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 v. Brennan, 511 U.S. 825, 837
(1994)). 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 claims pursuant to 42
U.S.C. § 1983. Bernard, Complaint, dated Apr. 20, 2023 [23-cv-
3323, dkt. 1] at 50-51. 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, a 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
[Plaintiffs’] 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 151-52 (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. at 152. 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 [was] 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. Myers, 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. Factual Background
Due to his preexisting conditions, Mr. Bernard entered DOCCS
in 2014 with prescriptions for Celebrex and Neurontin. (See
Declaration of A.J. Agnew in Opposition to Motion for Summary
Judgment, dated July 26, 2025 (“Agnew Decl.”) [23-CV-3323, dkt.
no. 149], Ex. 28 [23-CV-3323, dkt. no. 149-33] at 2.) A May 2016
EMG showed severe chronic right L5 radiculopathy. (See Agnew
Decl., Ex. 30 [23-CV-3323, dkt. no. 149-35] at 2.) Before DOCCS
promulgated MWAP, Mr. Bernard was treated with a combination of
Celebrex, low dose Percocet, and Neurontin by Defendant Dr. Chung
Lee. (See Defendants’ Local Civil Rule 56.1 Statement of
Undisputed Facts, dated May 23, 2025 (“Non-State Represented
Defendants’ Statement of Undisputed Facts”) [23-CV-3323, dkt. no.
133] ¶ 2; Agnew Decl., Ex. 29 [23-CV-3323, dkt. no. 149-34]at 13;
Agnew Decl., Ex. 31 [23-CV-3323, dkt. no. 149-36] at 2, 4-5.) He
also had been diagnosed with degenerative lumbar disc disease and
had had a laminectomy at L4-L5 and L5-S1. (See Declaration of Dr.
Chung Lee, dated May 15, 2025 (“Lee Decl.”), Ex. A Part I [23-CV-
3323, dkt. no. 136-1] at 2.)
In June of 2017, after MWAP was promulgated, Dr. Lee submitted
MWAP Request forms to Defendant RMD Susan Mueller to continue Mr.
Bernard’s prescriptions for Percocet and Neurontin. (See Non-
State Represented Defendants’ Statement of Undisputed Facts ¶ 4.)
Dr. Mueller also forwarded the requests to Defendant RMD David
Dinello via email. (See id. ¶¶ 5-7.) Dr. Mueller refused the
Percocet and approved the Neurontin for only 30 days with no
renewals saying “Recommended referral to Pain, Neurosurg, PT.
Despite your comments to the contrary, he has never been referred
to PT. Furthermore, there are safer agents without the abuse
potential of Neurontin available for treatment of neuropathic
pain. Consider use of Cymbalta or Lamictal (not 1:1, formulary).
A dosing titrating schedule will be provided upon request.” (See
Bernard, Lee Decl., Ex. A Part II [23-CV-3323, dkt. no. 136-2] at
93.) Dr. Dinello also responded to Dr. Lee, “I would definitely
2F
agree with Dr. Mueller. There is insufficient medical
documentation to continue the use of Percocet for this Chronic
Non-Palliative Issue.” (Bernard, Agnew Decl., Ex. 41 [23-CV-3323,
dkt. no. 149-56] at 2 (emphasis added).) Drs. Mueller and Dinello
continued to email with Dr. Mueller’s writing that Dr. Lee was one
3 Note that page numbers on Ex. A to Dr. Lee are stamped numbers,
not ECF.
of her “difficult and nasty ones” and Dr. Dinello’s responding
that he would continue to “respond to the ones you send for
review.” (Id.)
Had Dr. Mueller reviewed Mr. Bernard’s medical records as she
said she does, see Declaration of Susan Mueller, dated May 22,
2025 (“Mueller Decl.”) [23-CV-3323, dkt. no. 129], (¶ 13) [“When
I reviewed an MWAP Request under this policy, I would evaluate the
patient’s medical issues as a whole, taking into multiple factors,
primarily the medical and social history of the particular patient,
in determining whether the MWAP medication requested was in the
best interests of the patient.”], she would have noted the May
2016 EMG showing severe chronic right L5 radiculopathy, (Agnew
Decl., Ex. 30 at 2), a diagnostic that she says “would be
significant[.]” (Mueller Decl. ¶ 14). And, as she noted, “[Mr.
Bernard] had been receiving 1200 mg of Neurontin consistently since
July 2016,” about a year, apparently without ill effect. (Id. ¶
29.)
Also on June 26, Dr. Mueller denied Dr. Lee’s MWAP request
for Percocet, saying “He is on maximal dosage of Neurontin, yet
has never been to PT, Pain, Neurosurg, etc.” (Lee Decl., Ex. A
Part III [23-CV-3323, dkt. no. 136-3] at 13.) Dr. Mueller had
approved the Neurontin, however, only for thirty days. (Agnew
Decl., Ex. 30 at 2.)
Dr. Lee reported that “attached to [Dr. Dinello’s] e-mail was
literature entitled ‘Treatment of Painful Peripheral
Neuropathies.’ He said: “It was clear to me that Drs. Dinello and
Mueller did not want me to prescribe Percocet.” (Lee Decl., ¶ 22,
Ex. A Part III-V [23-CV-3323, dkt. nos. 136-3-136-5] at 13-26.)
Dr. Lee later reported:
25. On July 3, 2017, at an MD callout, I followed
up with Mr. Bernard regarding pain control following the
denial of his Percocet prescription. I ordered an x-ray
of his right hip, and referred Mr. Bernard to Physical
Therapy and pain management.[
3F
4]
26. An x-ray done on July 6, 2017 of the right hip
and frog lateral views showed mild degenerative
osteoarthritis of the right hip.
27. During his physical therapy evaluation on July
21, 2017, Mr. Bernard reported that on a 0-10 pain scale,
his pain was at best a 4, worst at an 8 and an average
of 5.
28. On July 31, 2017, during an MD callout I
examined Mr. Bernard. Due to his reports of acute pain,
I admitted him to the infirmary for pain control . . .
prescrib[ing] Mr. Bernard Percocet for 5 days while he
was in the infirmary . . . .
30. I submitted an MWAP request for a 10-day supply
of Percocet to treat Mr. Bernard beyond the 5-day
emergency period. That request was not approved by RMD
Mueller. In her non-approval she stated “There are also
many safer alternative medications with which this
patient can be treated.”
(Lee Decl. [23-CV-3323, dkt. no. 136] ¶¶ 25-30.)
4 The referral to pain management came some four months later,
however. (Agnew Decl., Ex. 38 [23-CV-3323, dkt. no. 149-53] at 5-
6.)
In explaining her denial in this litigation, Dr. Mueller
stated: “When evaluating this request, I considered whether or not
prescribing Percocet would cause unnecessary pain for Plaintiff,
but concluded that it would not, as Plaintiff would be receiving
alternative, and much safer, pain treatment modalities and/or
medications.” (Mueller Decl. ¶ 58.) She did not, however, specify
what these treatment modalities and/or medications were and
entirely ignored the fact that Mr. Bernard had been admitted to
the infirmary for “acute pain.” (Lee Decl. ¶¶ 27-28.)
Dr. Lee thereafter prescribed Elavil and then Cymbalta for
Mr. Bernard, but Mr. Bernard eventually refused them due to side
effects. (Lee Decl. ¶¶ 32, 35, 36, 42; Ex. A Part VII, Part VIII
[23-CV-3323, dkt. nos. 136-7,136-9] at 38, 42.)
On August 17, Dr. Lee submitted a request to the pharmacy for
Neurontin, but it was not filled without “MWAP Approval.” (Lee
Decl. ¶ 33.)
Dr. Lee reported:
37. On or about September 20 and September 21, 2017,
I made two MWAP requests for Neurontin to RMD Mueller
which were not approved. In the form I had indicated
that I had provided Mr. Bernard with a 5-day emergency
supply. RMD Mueller responded ‘There should be no reason
to issue an emergency supply as pt should not be taking
this medication at this time.’ I was also referred to a
televideo training that was put on by RMD Mueller’s
sister which emphasized treatment alternatives to pain
other than Neurontin and Opioids.
38. On September 27, 2017, I made an MWAP request
for Neurontin to RMD Mueller which was not approved.
39. On September 28, 2017, I had Mr. Bernard
admitted to the infirmary for pain management in
response to his complaints of pain.
40. On or about September 28, 2017, I made an MWAP
request for Percocet. I noted that he was in the
infirmary and the medication was being requested to
treat acute pain. RMD Mueller did not approve the
request.
41. On or about September 28, 2017, I also made an
MWAP request for Neurontin to RMD Mueller which was not
approved[.] I was told to choose a “safer agent.”
(Id. ¶¶ 37-41 (emphasis added).)
In denying the request, Dr. Mueller asserted again that:
When evaluating this request, I considered whether
not prescribing Neurontin would cause unnecessary pain
for Plaintiff, but concluded that it would not, as
Plaintiff would be receiving alternative, and much
safer, pain treatment modalities and/or medications.
Such alternative modalities and/or medications would, in
my medical opinion, be more successful in treating
Plaintiff’s chronic pain.
(Mueller Decl. ¶¶ 84, 96, 107). Dr. Mueller did not specify
the “pain treatment and/or medications” she thought Mr.
Bernard would be receiving and again ignored his admission to
the infirmary in “acute pain.” (Lee Decl. ¶ 40.)
Dr. Lee further reported:
Mr. Bernard was examined on October 12, 2017. He
had refused Cymbalta due to claimed side effects and was
requesting pain management. I prescribed him other
alternative medications to try including Depakote and
Mobic based upon the directives received from RMD
Mueller my clinical supervisor. On October 12, 2017, I
made a request that Mr. Bernard be referred to a pain
therapy specialist. That request was denied.
(Id. ¶ 42-43.)
In February of 2018, DOCCS transferred Mr. Bernard out of
Shawangunk. (See Non-State Represented Defendants’ Statement of
Undisputed Facts ¶ 70.) In late January of 2019, Mr. Bernard was
in Marcy Correctional Facility (“Marcy”) and the care of NP Brandi
Lynn Corigliano. (Id. ¶ 71.) Marcy’s Facility Health Services
Director, Dr. Shehab Zaki, testified under oath that by 2020 no
MWAP medications had been prescribed at Marcy “in years.” (Agnew
Decl., Ex. 17 [23-CV-3323, dkt. no. 149-17], Transcript of Shehab
Zaki (“Zaki Tr.”) 44:18-45:20.)
When Mr. Bernard arrived at Marcy, he met with Dr. Robert
Burdick5 for his medical intake. Dr. Burdick recorded:
4F
[n]ew indraft Multiple Medical “Problems” chart
reviewed. Trying to make myself stronger and better for
my back surgery” (HE WANTS . . .) I want my pain, nerve
meds back[.] I want my eggcrate mattress[,] I want
this[,] I want that[.] I want a wooden cane. TOLD to
never ask again for gabapentin, codeine, wooden cane or
eggcrate mattress [sic]. NOT available at this facility.
Obvious con artist and drug seeker overly solicit[ous],
polite but demanding[.]
(Ramage Decl., Ex. N [23-CV-3323, dkt. no. 130-14] at 30.)
5 Dr. Burdick was dismissed by stipulation and order dated June 9,
2025. (Dkt. no. 141.)
According to Mr. Bernard, at this interaction, a member of
Marcy medical staff told him:
[A] “[d]on’t you ever ask for any type of those
medications again, we don’t do that here. And if you –
you keep asking, we’ll send you to the box.”
(Declaration of Ryan E. Manley in Support of Motion for Summary
Judgment, dated May 23, 2025 [23-CV-3323, dkt. no. 137], Ex. B
[23-CV-3323, dkt. no. 137-2] (“Bernard Tr.”) 237:20-238:23.)
When Mr. Bernard finally met with Defendant Corigliano, she
noted his history of spinal stenosis. (See Non-State Represented
Defendants’ Statement of Undisputed Facts ¶ 76.) He again
requested Celebrex, Percocet, and Neurontin, which she denied,
saying “we need to try conservative therapy before I can request
controlled or non-[pharmacy] substances.” (See id. ¶ 77;
Declaration of Brandi Corigliano, dated May 16, 2025 [23-CV-3323,
dkt. no. 135] (“Corigliano Decl.”), Ex. A Part I [23-CV-3323, dkt.
no. 135-1] at 13.)6
5F
At his medical visit on March 1, it appears that Mr. Bernard
asked to “[change] med from naproxen to Celebrex,” but no action
was taken. (Id. at 15.) On March 4, however, NP Corigliano stated
Mr. Bernard “reported Naproxen wasn’t effective so [she] trialed
6 Note that page numbers on Ex. A to the Corigliano Declaration are
stamped numbers, not ECF.
him on Celebrex.” (Corigliano Decl. [23-CV-3323, dkt. no. 135] ¶
16, Ex. A Part I [23-CV-3323, dkt. no. 135-1] at 16, 25.)
On May 3, 2019, Mr. Bernard had an Orthopedics Appointment
where he was diagnosed with “midline low back pain, unspecified
chronicity, with sciatica presence unspecified.” (Corigliano
Decl., Ex. A Part II [23-CV-3323, dkt. no. 135-2] at 62.)
Orthopedics recommended a referral to pain management. The
radiology report noted “anterolisthesis of L3/L4” and “spinal
stenosis from L3-S1 with bilateral foraminal stenosis at those
levels[.]” (Id. at 60.) The plan recommended was to refer Mr.
Bernard to pain management. (Id.)
NP Corigliano referred Mr. Bernard to pain management
(Corigliano Decl., Ex. A Part I at 52) which recommended, inter
alia, a back brace and Topomax, (Corigliano Decl., Ex. A Part II
at 65). NP Corigliano, with Mr. Bernard’s agreement, prescribed
Topomax on July 18. (Corigliano Decl., Ex. A Part II at 68.) She
also ordered a new MRI. (Id.)
The August 14 MRI showed extensive issues from L3 to S1
including congenital narrowing, diffuse bulge and facet joint
arthropathy, severe stenosis and bilateral foraminal narrowing and
impression on exiting nerve roots. (Agnew Decl., Ex. 33-3 [23-
CV-3323, dkt. no. 149-45] at 51-52.)
NP Corigliano reported:
24. On August 28, 2019, Mr. Bernard received a right S1
transforaminal steroid injection at pain management. It was
recommended that he be seen by a neurologist. There was no
recommendation to adjust or change any medications (p. 81).
After reviewing pain management a consult with neuro surgery
was entered (81).
(Corigliano Decl. ¶ 24, Ex. A Part II at 81-82.)
NP Corigliano further reported:
25. On September 3, 2019, I saw Mr. Bernard for a
routine physical and I referred Mr. Bernard to be seen
by a neurologist and follow-up based upon the injection
he received on August 28, 2019. I also signed a permit
for Mr. Bernard to have a TENS unit, long johns (top and
bottom), back and knee braces, Dr. Scholl’s shoe
inserts, an egg crate, and that he sleep on a low bunk
on his housing unit. (p. 84; p. 123; p. 141).
(Conigliaro Decl. ¶25.)
On September 19, 2019, Mr. Bernard communicated to NP
Corigliano that the injections had failed and Topomax was causing
him side effects; he asked for Neurontin. (Corigliano Decl., Ex.
A Part II at 84.) Corigliano refused again despite that in just
the nine months since Mr. Bernard arrived at Marcy, there were
twenty-five references in his records to his severe pain and need
for pain management, many of which were recorded by NP Corigliano.
(See Agnew Decl. Ex. 33-1 [23-CV-3323, dkt. no. 149-43] at 1, 4-
7, 9-10, 13; Ex. 33-2 [23-CV-3323, dkt. no. 149-44] at 21, 24-25,
32, 34-35, 39, 41-42, 44; Ex. 33-3 at 50, 55, 58, 61.)
On January 24, 2020, NP Corigliano ordered a CT Myelogram
“which was needed prior to Mr. Bernard[’s] being able to see the
orthopedic specialist for his spine.” (Corigliano Decl. ¶ 33, Ex.
A Part II at 103.) As she reported:
34. Mr. Bernard was seen by orthopedic surgeon Dr.
Daryll Dykes on January 31, 2020, to discuss his
persistent back pain, lower extremity radicular pain,
numbness, tingling, and weakness. After review of Mr.
Bernard’s CT scan and Myelogram, Dr. Dykes opined that
Mr. Bernard, “certainly has multilevel degenerative
spondylosis, spinal stenosis and spondylolisthesis and
these findings correlate with his symptoms and
dysfunction . . . . From a surgical perspective, he would
have no alternative other than multilevel revision
decompression with instrumented fusion. All this would
have some likely benefit, I certainly could not
guarantee him success from any perspective: pain,
restoration of function, restoration of strength, etc.
. . . . At this point, he is inclined to continue with
nonsurgical options including appropriate pain
management, strengthening conditioning, and activity
moderation. We did have a brief discussion about the
potential role of a dorsal column stimulator as a less
invasive option to help with his pain, although this
will not provide appreciable benefit from the strength
perspective. He states understanding and would like to
pursue these nonoperative options further. Surgery is a
last resort option in his mind. He will follow up as
needed. (pp. 125-126).
35. I reviewed this consultation and noted the
recommendation for non-operative options by pain
management. I entered a request for Mr. Bernard to be
seen by Pain Management.
(Corigliano Decl. ¶¶ 34-35, Ex. A Part II at 105, Ex. A Part III
[23-CV-3323, dkt. no. 135-3] at 125-126.)
On February 20, 2020, Mr. Bernard saw a pain specialist who
noted that “he could not tolerate Topomax” and recommended that he
“try Gabapentin [Neurontin],” that he undergo an epidural lysis of
adhesions, and that he continue exercise. (Corigliano Decl. Ex.
A. Part III at 152.)
NP Corigliano questioned the Gabapentin [Neurontin]
recommendation and did not act on it but instead ordered physical
therapy and an epidural. (Corigliano Decl. ¶ 37.) In response to
NP Corigliano’s refusal to follow the orthopedist’s recommendation
and prescribe Gabapentin [Neurontin], she told Mr. Bernard “what
do you want me to do, I’m giving you all I can give you right now.
Nobody [even] gets Celebrex, blah-blah-blah . . . .” (Bernard Tr.
243: 20-23.) NP Corigliano has not denied the conversation.
Following the Allen I class action litigation, Dr. John
Morley, then-Chief Medical Officer of DOCCS, asked NP Corigliano
for a summary of Mr. Bernard’s pain management. (See Non-State
Represented Defendants’ Statement of Undisputed Facts ¶ 150.) NP
Corigliano wrote him back on July 21, 2020, (Corigliano Decl.
¶¶ 41-42, Ex. B[23-CV-3323, dkt. no. 135-5] at 2), but omitted to
inform him of:
•
Mr. Bernard’s 1/27/2020 myelogram (Corigliano Decl., Ex A
Part III at 116-117) and CT of the Lumbar Spine (id. at 118-
119). The latter showed:
“Lumbar CT Myelogram Impression: L3-L4: Severe bilateral
facet arthropathy buckling of ligamentum flavum causing
severe spinal canal stenosis and compression of cauda
equina neve roots particularly descending L4 nerve roots
in the lateral recesses. There is a moderate to severe
narrowing of bilateral neural foramina. Grade 1
anterolisthesis is noted. L4-L5: Moderate to severe
facet arthropathy is noted with the thickening of
ligamentum flavum there is indentation of descending L5
nerve roots I the lateral recesses, left more than right.
There is severe narrowing of left and the moderate to
severe narrowing of right neural foramina. The central
canal is preserved due to laminectomy.”
(Id. at 119)
•
Mr. Bernard’s spinal x-rays on 1/31/2020 showing:
“Findings/Impression: Rightward scoliosis of the lumbar
spine remains unchanged. Stable is also mild
anterolisthesis of L3 and L4. Again seen is
developmentally small canal status post posterior
decompression from L2-L3 down to L4-L5 level. Multilevel
advanced facet arthropathy from L2-L3 down to L5-S1
level is redemonstrated. The gas pattern in the abdomen
is nonspecific nonobstructive.”
(Agnew Decl., Ex. 34-1 [23-CV-3323, dkt. no. 149-47] at 19.)
•
The pain management specialist’s recommendation of treatment
of Mr. Bernard with Neurontin on 2/20/2020(Corigliano Decl.,
Ex. A Part III at 152).
On November 10, 2020 NP Corigliano filled out a “MWAP and
Chronic Pain Patient Reassessment Form” for Mr. Bernard, in which
she stated “[u]ntil this month inmate has not presented to medical
since 2/2020 with complaints of pain.” (Non-State Represented
Defendants’ Statement of Undisputed Facts ¶ 169; Agnew Decl., Ex.
34-3 [23-CV-3323, dkt. no. 149-49] at 9-11) She notes that “I was
very familiar at that time with this patient. I thoroughly answered
the questions on the form from my knowledge of the patient, recent
physical examination and review of the medical records I had
available to me.” (Corigliano Decl. ¶ 48.) Despite her self-
proclaimed knowledge of Mr. Bernard’s history and review of his
medical records, NP Corigliano omitted the following complaints of
pain by Mr. Bernard:
•
Agnew Decl., Ex. 34-1, at 8 on 2/4/20 Mr. Bernard requests
“pain management”
•
Agnew Decl., Ex. 34-2, [23-CV-3323, dkt. no 149-48] at 1 on
2/20/20 complaint of “low back pain and [right] sciatica”
•
Id. at 2 on 2/25/20 “back pain”
•
Id. at 6 on 6/25/20 “low back pain”
•
Id. at 9-10 on 7/30/20 “back/hip/knee pain,” and “chronic
back pain” and on 8/17/20 “chronic back pain issues”
•
Id. at 11 on 9/10/20 “requesting to have cortisone injections
done for pain management,” and 9/28/20 “lower back [andright]
knee pain”
•
Id. at 16 on 9/30/20 hip and knee pain and request for
Neurontin
•
Id. at 18 on 10/8/20 “severe lower back pain”
•
Agnew Decl., Ex. 34-3 at 6 on 10/30/20 “excruciating pain”
•
Id. at 6 on 11/3/20 discussing non-surgical interventions for
pain before considering surgery
•
Id. at 12 on 11/13/20 “Is in constant pain . . . He’s in very
much agony.”
On December 10, 2020, Mr. Bernard was transferred from Marcy,
(Corigliano Decl. ¶ 53), to Green Correctional Facility where he
was prescribed Neurontin. (Bernard Tr. 243:24-245:9.)
B. Plaintiff’s Claim for Deliberate Indifference
1. Objective Prong: Whether Plaintiff Suffered a Sufficiently
Serious Deprivation of Adequate Medical Care
While the Non-State Represented Defendants argue that here,
no reasonable jury could conclude that Plaintiff suffered a
sufficiently serious deprivation of adequate medical care by these
defendants, e.g., (Non-State Represented Defendants Summary
Judgement Motion at 18), they nowhere elaborate on this argument.
In this case where Plaintiff alleges that the Defendants
provided inadequate care as opposed to a failure to provide any
care, as noted above, the inquiry focuses on “the particular
risk of harm faced by a prisoner due to the challenged
deprivation of care, rather than the severity of the prisoner’s
underlying medical condition, considered in the abstract[.]”
Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (citing
Chance v. Armstrong, 143 F.3d 698, 702-03 (2d Cir. 1998)).
However, Defendants fail to engage in the “sufficiently serious”
analysis that they propose the Court follow and that precedent
demands. Even if the courses of treatment that the Defendants
recommended as alternatives to Neurontin and Lyrica were “safer”
because they carried fewer risks of substance abuse or
addiction than did Neurontin and Percocet, (Statement of
Undisputed Facts PP 21, 41, 69) opting for such alternatives
came with “particular risks” of their own. See Smith, 316 F.3d
at 187. Namely, the risks attributable to denying Mr. Bernard
Neurontin or Percocet are that Mr. Bernard would suffer chronic
and substantial pain to a greater degree than if he was
prescribed either of those medications and that he would suffer
greater pain than was necessary given his condition.
Objectively, there can be no dispute that Mr. Bernard
suffered from serious medical conditions causing chronic pain.
As noted above, before his admission to DOCCS in 2014, Mr.
Bernard had been diagnosed with degenerative lumbar disc disease
and had had a laminectomy at L4-L5 and L5-S1. (Agnew Decl.,
Ex. 28 [23-CV-3323, dkt. no. 149-33] at 2.) At his May 3,
2019, orthopedics appointment, Mr. Bernard was diagnosed with
“midline low back pain, unspecified chronicity with sciatica
presence unspecified[.]” (Corigliano Decl., Ex. A Part II at
62.) The accompanying radiology report noted “anterolesthesis
of L3/L4” and “spinal stenosis from L3-S1 with bilateral
foraminal stenosis at those levels[.]” (Id. at 60.) An August
14, 2019 MRI showed extensive issues from L3-S1 including
“congenital narrowing[,]... diffuse bulge and facet joint
arthropathy[,]... severe stenosis [and] bilateral foraminal
narrowing and impression on the existing nerve roots.” (Agnew
Decl., Ex. 33-3 at 51-52; see also Corigliano Decl., Ex. A Part
II at 76.) Dr. Daryll Dykes, after reviewing Mr. Bernard’s CT
scan and Myelogram, noted “the patient certainly has multilevel
degenerative spondylolisthesis[.]” (Corigliano Decl. ¶ 34, Ex.
A Part III at 125-26.) Mr. Bernard’s admissions to the infirmary
and continuing complaints of pain, at the very least, raise a
question of fact as to whether the treatment prescribed by
Defendants subjected him to the risk of chronic and substantial
pain.
2. Subjective Prong: whether Defendants Knew of and
Disregarded an Excessive Risk to Plaintiff’s Health and
Safety
“[P]ersonal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” Shomo v. City of New York, 579 F.3d 176,
184 (2d Cir. 2009) (citation omitted). To hold a prison official
liable under § 1983 “requires a showing of more than the linkage
in the prison chain of command.” Ayers v. Coughlin, 780 F.2d
205, 210 (2d Cir. 1985). Instead plaintiffs must present
evidence sufficient to establish that “each Government-official
defendant, through the official’s own individual actions, has
violated the Constitution.” Iqbal, 556 U.S. at 676 (2009);
accord Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020).
Dr. Dinello
As noted above, the June 26, 2017 MWAP request was submitted
to, and denied by, Dr. Mueller. Dr. Dinello merely concurred
in Dr. Mueller’s denial. Accordingly, Dr. Dinello’s motion for
summary judgment is granted.
Dr. Mueller
As noted above, Dr. Mueller rejected Dr. Lee’s June 2017
request for a year’s worth of Neurontin with the now-familiar
ritual incantation that “there are safer agents without the abuse
potential of Neurontin available. . . . ” (Lee Decl., Ex A Part
II at 9.) In light of 1) the May 2016 EMG showing severe chronic
right R5 radiculopathy, (Agnew Decl., Ex. 30 at 2), a diagnostic
that she says “would be significant,” (Mueller Decl. ¶ 14), and 2)
that, as she noted, “[Mr. Bernard] had been receiving 1200mg of
Neurontin consistently since July 2016,” about a year, apparently
without ill effect, (id. at ¶ 29), a question of fact is presented
as to whether Dr. Mueller exercised her medical judgment in denying
the MWAP requests—as she stated in her post-litigation
declaration—or whether she relied reflexively on the MWAP
policies—as stated in her denials of the MWAP requests.7 As in
6F
Ippolito v. Goord, a jury could find that Dr. Mueller acted with
deliberate indifference by “reflexively rely[ing] on the purported
[medical] soundness of the [MWAP policy] itself, even where [she
was] on notice” by Plaintiff’s past successful treatment with MWAP
medications and the recommendation of outside experts and prison
doctors “that a departure [from the MWAP policy] might be medically
7 This is particularly so because Dr. Mueller referred Dr. Lee to
a televideo training reflecting the MWAP policy “put on by RMD
Mueller’s sister[.]” (Lee Decl. ¶ 37.)
appropriate.” No. 05-CV-6683, 2012 WL 4210125, at *13 (W.D.N.Y.
Sept. 19, 2012) (internal quotations omitted); see also Johnson,
412 F.3d at 406.
Dr. Mueller also rejected Dr. Lee’s August 4, 2017 request
for a ten-day supply of Percocet, (Lee Decl. ¶ 30, Ex. A 34-
36), his September 20 request for Neurontin, his September 28
request for Neurontin and Percocet, and his October 13 request
for Neurontin. (Id. ¶ 37, 40, 41, 44.) In addition to the
ritual incantation of safer alternatives, Dr. Mueller stated:
“When evaluating [the June 2017] request, I considered whether
or not prescribing Percocet would cause unnecessary pain for
Plaintiff, but concluded that it would not, as Plaintiff would
be receiving alternative, and much safer, pain treatment
modalities and/or medications.” (Mueller Decl. ¶ 58.) She
did not, however, specify what these treatment modalities and/or
medications were and entirely ignored the fact that Mr. Bernard
had been admitted to the infirmary for “acute pain.” (Lee Decl.
¶ 28; see also Mueller Decl. ¶¶ 84, 96, 107 (applying the same
considerations to the other MWAP denials as June 2017)).
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). Accordingly, Dr. Mueller’s motion for summary judgment
is denied.
As the above recitation also demonstrates, Dr. Mueller was
intimately involved in Mr. Bernard’s treatment, thus satisfying
the requirement for personal involvement.
Dr. Lee
The above recitation demonstrates that Dr. Lee provided
attentive care to Mr. Bernard. At most, Dr. Lee delayed referring
Mr. Bernard to pain therapy for four months after the
recommendation to do so, but he eventually did it. (Lee Decl. ¶¶
20, 43.)
To the extent that Mr. Bernard argues that Dr. Lee took no
steps to appeal the RMDs’ denial of his request for MWAP
medications or otherwise deviate from the MWAP policy, the argument
is unavailing. First, Dr. Lee submitted at least one MWAP request
to the pharmacy without requesting approval from the RMD, but the
pharmacy would not fill the request without MWAP approval. (Lee
Decl. ¶ 15, 33.)
Second, the case law does not support this argument. In
Griffin, a nurse administrator had denied an inmate a humidifier,
because the primary treating provider’s policy was to deny such
requests. See 611 F. App’x. at 735. The court found that “the
record [was] devoid of any evidence suggesting that Nurse Smith
had authority to deviate from Dr. Amatucci’s policy.” Id.
Ultimately, the Court held that she had been at most negligent and
that as such, she was entitled to qualified immunity. Id. This
reasoning has been followed in a number of other cases. See, e.g.,
Jackson v. Sheehan, No. 16-CV-6710, 2021 WL 795313, at *6-*7
(W.D.N.Y. Mar. 2, 2021) (physician’s assistant who requested
treatment but was unable either to prescribe the medication himself
or overrule the Chief Medical Officer’s denial was entitled to
qualified immunity); Tangreti, 983 F.3d at 619-20, n.7 (2d Cir.
2020) (counselor of inmate who was sexually assaulted entitled to
qualified immunity in part because she “was not responsible either
for procuring cameras or for York’s camera policy . . . apart from
discussing this problem with other officials, Bachmann had no
further responsibility to resolve it”); Ippolito, 2012 WL 4210125,
at *7 (treating physician’s assistant not personally involved
where he had no authority to override the medical director and
order the requested medical treatment).
The same is true here; there is no evidence that Dr. Lee had
the authority to administer MWAP medications without RMD approval
or to appeal RMD disapproval. Accordingly, Dr. Lee’s motion for
summary judgment is granted.
NP Corigliano
Upon Mr. Bernard’s arrival at Marcy he requested the
Gabapentin (Neurontin) he had been receiving, but dismissed
Defendant Dr. Burdick relied on the apparent policy at Marcy of no
MWAP medications. See Ramage Decl., Ex. N at 30. As related by
Mr. Bernard, in response to Mr. Bernard’s request, a member of
Marcy medical staff told him: “[d]on’t you ever ask for any type
of those medications again, we don’t do that here. And if you –
you keep asking, we’ll send you to the box.” (Bernard Tr. 237:14-
238:4.)
Similarly, at his February 6, 2019, meeting with NP Corigliano
where Mr. Bernard requested the MWAP medications he had been taking
without incident, she said “we need to try conservative therapy
before I can request controlled or non-[pharmacy] substances.”
(Corigliano Decl., Ex. A Part I at 13 (emphasis added).)
Particularly in light of the threats made to Mr. Bernard upon his
asking for MWAP medications, NP Corigliano’s statements, on one
hand, that she “need[ed] to try conservative therapy before [she
could] request controlled or non-[pharmacy] substances,” (id.),
and “what do you want me to do, I’m giving you all I can give you
now. Nobody [even] gets Celebrex. . . .” (Bernard Tr. 243:20-22),
and, on the other hand, that “[b]ased on [her] training and
experience, [she] believed this to be a reasonable treatment plan
to treat Mr. Bernard. . . ” (Corigliano Decl. ¶ 16), present an
issue of fact as to whether she was reflexively relying on the
MWAP policy or relying on her training and experience. See
Ippolito, supra, No. 05-Civ-6683, 2012 WL 421025 at *13. The same
can be said about her several subsequent refusals to prescribe
Neurontin in the face of expert’s recommendation for Neurontin
(Corigliaro Decl. ¶ 24, Ex. A Part III at 152 (pain specialist
recommendation for Neurontin)), Mr. Bernard’s continuing
complaints of pain (detailed extensively in Section IV.A), and his
prior use of Neurontin without incident.
Finally, NP Corigliano’s omission in her July 21, 2020, emails
to Dr. Morley of numerous imaging studies showing serious back
issues and her November 10, 2020 “MWAP and Chronic Pain
Reassessment Form” asserting that Mr. Bernard had “not presented
to medical since February 2020 with complaints of pain” when he
had so presented at least nine times raise an issue of fact as to
whether those omissions and misstatements were deliberate or
merely negligent.
Accordingly, NP Corigliano’s motion for summary judgment is
denied.
As the above recitation also demonstrates, NP Corigliano was
intimately involved in Mr. Bernard’s treatment, thus satisfying
the personal involvement requirement.
Finally, as to qualified immunity, the Court adopts its
previous holding in 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.” Daniels, 2025
WL 949842, at *26. Moreover, because there are disputed facts on
the basis of reasonableness, the Court cannot find that Defendants
Mueller and Corigliano are entitled to summary judgment on the
basis of qualified immunity. See Daniels, 2025 WL 949842, at *27;
see also Husain v. Springer, 494 F.3d 108, 133 (2d Cir. 2007)
(“[S]ummary judgment on qualified immunity grounds is not
appropriate when there are facts in dispute that are material to
a determination of reasonableness.”).
V. Conclusion
For the seasons set out above:
1. Dr. Dinello’s motion for summary judgment is granted;
2. Dr. Mueller’s motion for summary judgment is denied;
3. Dr. Lee’s motion for summary judgment is granted; and
4. NP Corigliano’s motion for summary judgment is denied.
Counsel shall confer and inform the Court by letter no later
than April 14, 2026, how they propose to proceed.
The Clerk of Court shall close docket numbers 126 and 132 in
23-cv-3323.
SO ORDERED.
Dated: March 30, 2026
New York, New York
LORETTA A. PRESKA
Senior United States District Judge
39