APPEARANCES:

PRISONERS' LEGAL SERVICES
OF NEW YORK
Attorney for Plaintiff
105 Chambers Street
New York, NY 10007

KENNETH STEPHENS, ESQ.
Legal Aid
90 Church Street
New York, NY 10007

MR. ANTHONY PERRI
124-13 25 Road
College Point, New York 11354

HON. ELIOTT SPITZER
Attorney General of the
State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224

NEAL P. McCURN, S.J.

OF COUNSEL:

DAVID C. LEVEN, ESQ.
DEBORAH SCHNEER, ESQ.
ROBERT F. BENSING, ESQ.
STEPHEN LATIMER, ESQ.

DAVID B. ROBERTS
Assistant Attorney General

During the period August 26, 1998 to September 9, 1998, the court conducted a five day non-jury trial in this civil rights action. In accordance with Fed.R.Civ.P. 52(a), after a careful review of witnesses' testimony, and an evaluation of their credibility, and a careful review of the exhibits, the court makes the following findings of fact and conclusions of law.

In this civil rights action brought pursuant to Title 42 U.S.C. §1983 plaintiff alleges that the defendants violated his Eight Amendment rights against cruel and unusual punishment through their deficient treatment of his mental illness and by brutal conditions under which he was held at the Clinton Correctional Facility from March 22, 1990, to October 6, 1990. Defendants are sued in their individual capacities.

Defendant Thomas A Coughlin was the Commissioner of Correctional Services at the time of the events described in the complaint occurred. He was charged with the overall operation of the Department of Correctional Services ("DOCS"), and with the safe, secure and humane custody of all persons committed thereto.

Richard Surles was the Commissioner of Mental Health. He held this position during the period of time in which the events recounted in the complaint took place, and was responsible for the operation and administration of all facilities under the Office of Mental Health ("OMH"). Defendant Surles left this post on December 31, 1994.

In his complaint the plaintiff alleges: Plaintiff was confined to the custody of the New York State Department of Correctional Services ("DOCS") in May 1988, at the Downstate Correctional Facility, where it was known that he had a history of mental illness. In March, 1990, plaintiff was transferred to the Clinton Correctional Facility where he was placed in the Special Housing Unit ("SHU"). Thereafter, plaintiff was sent to the prisons's Observation Unit ("OBS"), on three separate occasions. OBS is a separate inpatient unit at Clinton which is staffed by both OMH care professionals and DOCS officers. Plaintiff's transfer to OBS came about as a result of behavioral incidents. In one incident, plaintiff slashed his arm in a suicide attempt. In another, he climbed the wall in the SHU exercise yard and placed the razor wire atop the wall around his neck and wrists. The prison staff talked him down but he was removed to OBS when he became disruptive. Plaintiff spent a total of 108 days in OBS confinement consisting of 5,32 and 71 day segments.

Plaintiff alleges that his conditions of confinement in OBS were inhuman and degrading. His cell contained only a sink, toilet and a brightly glaring light that shone twenty-four hours a day. A small window in the solid metal door was the only means of seeing into or out of the cell except for an outside window that could be opened or closed from outside the cell by a correction officer. When latter the window was opened, plaintiff's complaints of being cold were ignored for hours. He was held in this cell without clothes or a blanket for two months, and he developed body sores from having to sleep naked on the cold floor. He had no personal possessions and no basic necessities such as soap or a toothbrush in his cell. He had no writing materials and was denied all legal work, his address book and mail. There was no opportunity for personal contacts between inmates in OBS because there was no programming, exercise, recreation, or group therapy. Inmates were only permitted to leave their cells for a five minute shower twice a week or to go to the visiting room.

On May 21, 1990, plaintiff smeared feces and urine all over himself and his cell and began to refuse solid foods. No attempt was made to clean that cell by prison authorities and plaintiff was confined therein until May 31, 1990, when he was removed to another cell at OBS where he was confined under the same conditions.

On June 19, 1990, while supposedly under constant suicide observation, plaintiff severed an artery and inflicted other injuries to his body. On June 22, 1990, he was sent to Central New York Psychiatric Center ("CNYPC"). On July 31, 1990, although still displaying signs of mental illness, he was returned to Clinton because the CNYPC staff believed it was not equipped to treat him.

Upon his return to Clinton, plaintiff was again placed in the prior harsh cell conditions without clothing or a mattress. On September 19, 1990, plaintiff again reacted to alleged harassment by correction officers by destroying the sink and toilet in his cell over a two hour period without intervention by correction officers. When an officer finally entered his cell, he was cuffed, shackled and thrown face down on a cot where he was kicked in the rectum causing severe pain.

On September 24, 1990, and October 7, 1990, plaintiff attempted to hang himself. On both occasions, no one endeavored to cut him down until he had lost consciousness. On October 11, 1990, he was again sent to CNYPC where he remained until discharged from CNYPC to Sing Sing Correctional Facility on December 6, 1990.

Plaintiff maintains that he received inadequate medical care at CNYPC because it lacked the capacity to treat patients like himself who needed long term intensive care, and that he was compelled to go through the inhumanity of cell life in OBS because Clinton also lacked the capability to provide the required mental health services needed by individuals afflicted with mental illness as serious as his.

The defendants maintain that there was no proof that they were personally involved in any of the alleged wrongdoing, they were not indifferent to plaintiff's medical needs, that plaintiff failed to prove that the conditions of his confinement were unconstitutional, and that their qualified immunity bars any damage recovery by the plaintiff.

Plaintiff Anthony Perri testified on his own behalf and called an expert witness, Dr. Stuart Grassian, M.D., a psychiatrist, and several other witnesses in presenting his case. Dr. Grassian is a graduate of Harvard Medical School and maintains a faculty appointment at the medical school along with a private practice in psychiatry. He is board certified in psychiatry and, in addition, has subspeciality certifications in addictions and forensic psychiatry. Dr. Grassian has lectured, written and testified on the relationship between prison confinement and the mental Health of inmates. He has toured and interviewed inmates in prisons in Massachusetts, Kentucky, California, and various New York prisons including Attica, Auburn, Southport, Bedford Hills, Shawangunk and Great Meadow. His academic articles on the topic of "psychiatric and affects on solitary confinement" have been published in the American Journal of Psychiatry and the International Journal of Law and Psychiatry.

Dr. Grassian testified at length regarding his research into the causes of certain mental illnesses in prisoners. He stated that his research and tours of prisons led him to find a chronic syndrome comprised of a group of recurring psychiatric problems in prisoners who where kept in solitary confinement for extended periods. Extended segregation from social and environmental stimulation escalates the onslaught of mental illness. The extent of the harm caused varies, depending on the prisoner and the stringency and the length of confinement, but those with a pre-existing mental illness are extremely vulnerable.

After evaluating Anthony Perri, Dr. Grassian found that he had a biological temperament disorder, which was triggered when he was ten years old by his mother's abrupt desertion of the family leaving plaintiff, his father and two brothers to fend for themselves. The father subsequently became a heroin addict. At this point, plaintiff's mental state, already declining, further regressed. He became hyper-active and spent considerable time running to relieve his mental pressures and anxieties. The diagnostic name of his affliction was Attention Deficit Hyperactivity Disorder. When his father was hospitalized, he was placed in a foster home where he calmed down and his condition seemed to improve. His condition took a downward turn when his father was discharged from the hospital and moved plaintiff and his two brothers to New York City. Plaintiff was about fourteen years old at that time. His life soon became a nightmare. Other neighborhood children attacked him physically, and the old restlessness returned. He took to the use of narcotics as a way of settling down his mental processes. It was not long after when plaintiff's first criminal activity took place resulting in his apprehension and incarceration. In jail, he was abused by older prisoners he sought out for friendship. Again, his mind began to race and the old psychological demons returned.

Dr. Grassian testified that plaintiff's actions where not those of a calculating person trying to beat the system. He described plaintiff's thought processes as a snarl of feelings that explosively led to action. When an idea got stuck in this confusion, it was usually a bad one. The melody of reason was drowned out by the louder volume of other thoughts racing through his mind which prevented him from thinking through what the final result of his actions would be. Plaintiff's unstable mood disorder was improperly treated because it was not properly diagnosed. This is substantiated by the fact that the medical records at Clinton failed to meet the most elemental level of psychological evaluation in failing to calculate plaintiff's present history with relation to his past psychological history.

Dr. Grassian further stated that the treatment plaintiff received at the Clinton Correction Facility was totally inadequate to alleviate his mental sufferings, and, in fact, if the degrading and humiliating treatment did anything, it only worsened the disorder.

The defense also utilized expert testimony. Dr. Joel Dvoskin, a psychologist, testified regarding his opinions as to the findings and conclusions of Dr. Grassian and the mental status of Anthony Perri. Dr. Dvoskin holds a doctorate in clinical psychology from the University of Arizona and has previously testified in cases involving the mental health of prisoners. He has held an assortment of posts with the State of New York which have involved providing mental health services to prisoners confined in state prisons, including Director of Forensic Services for the State of New York and Acting Commissioner of the New York State Office of Mental Health. Dr. Dvoskin presently consults in the area of forensic psychology, maintains a private practice and teaches at the University of Arizona.

Dr. Dvoskin and Grassian are not strangers to one another or federal court. They have been on opposing sides of many cases concerning the furnishing of mental health services to prisoners. See, Langley v. Coughlin, 715 F.Supp. 522 (S.D.N.Y. 1989) (Bedford Hills); Eng v. Smith, 849 F.2d 80 (2d Cir. 1998) (Attica); Madrid v. Gomez, 889 F.Supp.. 1146 (N.D. Cal. 1995 (Pelican Bay State Prison in California); Coleman v. Wilson, 912 F.Supp.. 1282 (E.D. Cal. 1995) (California prisons).

Not unexpectedly, much of Dr. Dvoskin's testimony focused on disagreeing with Dr. Grassian's findings regarding reoccurring symptoms of mental illness found in prisoners kept in protracted isolation. He does not believe that such a syndrome uniformly results from inmates being segregated. He stated that prisons are very stressful places to begin with, inmates are confined, must follow strict rules and orders, and must endure forced associations. Isolation is just another form of prison environmental stress and inmates react to it in dissimilar ways. Inmates whose mental health deteriorates over a period of time should simply be treated by facility mental health personnel; there is no need to examine the entire segregation of individual prisoner process.

Prison mental health personnel work hard to assist inmates in adjusting to their prison environment, but it is a fact of prison life that some inmates will attempt to manipulate the system to obtain things that they want. He maintains that mental health care programs in New York prisons are excellent; they are rated by highly nationally, and are copied by other state prison systems. Prisoners get all the care they need but only what they need. If an inmate requires treatment beyond the prison O.B.S. unit, he is sent to a hospital for proper care, but because of the expense of hospitalization, the prisoner is returned to the prison O.B.S. as quickly as possible.

Dr. Dvoskin reviewed the record and medical history of Anthony Perri, but did not examine him in person. From this scrutiny, he inferred that Anthony Perri did not have a major mental illness, but, rather, a personality disorder founded in his childhood which was extremely hard to change and very difficult to deal with. He declared that state mental health workers tried as hard as they could to help him. Anything they did, such as deprive him of all personal property they thought he could use to harm himself, deny him out of cell recreation, keep him naked in a cell built specially for him without a bed or a blanket, and minimal contact with the mental health staff, was done for his benefit.

On cross examination Dr. Dvoskin admitted that inmates are usually confined in O.B.S. cells for the least possible amount of time, and that Anthony Perri was held there longer than any other inmate that he could recall. He further stated because of Anthony Perri's actions, it was very difficult for the mental health staff to try to keep him alive and, also, show him some kindness.

Aside from their evaluation of Anthony Perri's mental ailment and the course of treatment received, the testimony of Drs. Grassian and Dvoskin was more harmonious than conflicting. Both agreed that a prisoner being kept in isolated confinement over a period of time can be subject to mental disorders. However, they disagreed as to whether these disorders befell all isolated prisoners or only certain vulnerable ones. It strikes the court that this is an indistinguishable distinction. "Social science and clinical literature have consistently reported that when human beings are subjected to social isolation and reduced envionmental stimulation, they may deteriorate mentally and in some cases develop psychiatric disturbances." Madrid v. Gomez, 889 F.Supp.. 1146, 1230 (N.D. Cal. 1995). See also Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 248 (1988) (noting that there is "plenty of medical and psychological literature concerning the ill effects" of segregation of prison inmates.

Dr. Dvoskin's testimony that a New York state's mental health care program for prison inmates is highly accredited supports defendants' assertion that its mental health care system is functioning constitutionally, but it cannot be dispositive of such a conclusion. "It is beyond question that the true measure of a medical care system's constitutionally is not in its brilliantly crafted policies and state of the art facilities, but it accessibility by, and quality of service to, real people in need of actual medical service." Ruitz v. Johnson, 37 F.Supp . . . 2d 855, 902 (S.D. Tax. 1999).

Dr. Grassian's testimony regarding the quality of plaintiff's mental health treatment did little to substantiate the state's high rating for such care. He concluded that Anthony Perri's misery go round to Clinton O.B.S. to NYSPC and return was nothing more than a form of brutality that belongs in the Dark Ages. Clinton O.B.S. sent him to NYSPC because they could not adequately deal with his mental illness. When plaintiff's mental condition improves there, NYSPC determines that they do not have the capacity to treat him on a long term basis and return him to Clinton OBS to suffer the same or worse conditions that caused him to be sent to CNYSPC in the first place. OBS then reinstitutes the process by sending him back to CNYSPC after another incident. The defendants called other witnesses who described plaintiff's conditions of confinement and the mental health care he received at the Clinton Correctional Facility and the Central New York Psychiatric Center, ("CNYSPC") where plaintiff was also confined for short periods during the time in question. Defendants Coughlin and Surles both testified that they had no personal knowledge of the conditions of plaintiff's confinement at Clinton Correctional Facility or what specific mental health care he had received.

To prevail on a claim that the conditions of confinement constitute cruel and unusual punishment, a plaintiff must meet an objective and subjective test. Jolly v. Coughlin, 76 F.3d 468, 489 (2d Cir. 1996); Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.d. 811 (1994). To satisfy the objective test, "a plaintiff must show that the conditions of his confinement result in 'unquestioned and serious deprivations of basic human needs.'" Jolly, 76 F.d. at 480 (quoting Anderson v. Coughlin, 757 F.d. 33, 35 (d Cir. 1985); see Farmer, 511 U.S. at 834. (Holding that a prison official's acts must deprive an inmate of the "minimal civilized measures of life's necessities." (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The subjective test requires the plaintiff to show that the defendant prison officials imposed those conditions with deliberate indifference; Farmer, 511 U.S. at 834; Jolly, 76 F.d. at 480. For deliberate indifference to be found, the prison official must have "know[n] of and disregarded] an excessive risk to inmate health or safety; the official must [have been] aware of the fact from which the inference could have been drawn that a substantial risk of serious harm exists, and he must also [have] draw[n] the inference." Farmer, 511 U.S. at 837.

There can be no doubt that plaintiff's conditions of confinement have repeatedly been found to violate an inmate's Eighth Amendments rights. Blissett v. Coughlin, 66 F.d. 531, 537 (d. Cir. 1995); see McCray v. Burrell, (confinement of a nude prisoner in a barren cell without any personal articles) 516 F.d. 357, 359 (4th Cir. 1975); cert. dismissed, 426 U.S. 471 (1976); Hoptowit v. Mason, 682 F.d. 137, 1257-58 (9th Cir. 1982) ("The deprivation of nearly all fresh air and light, particularly when coupled with [lack of control over artificial illumination], creates an extreme hazard to physical and mental well-being of the prisoner in violation of the Eighth Amendment."); Maxwell v. Mason, 668 F.d. 361, 363 (8th Cir. 1981) (deprivation of adequate clothing and bedding bears "no relation whatsoever to any security measure" and amounts to "an unnecessary infliction of pain" to a prisoner held in isolation and permitted only underwear an a mattress).

"An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met . . . deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment regardless how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under §1983" Estelle v. Gamble, 429 U.S. 102, 103-105, 429 S.Ct. 285, 290, 291, 50 L.Ed.d. 251 (1976). "When incarceration deprives a person of reasonably necessary medical care (including psychiatric or mental health care) which would be available to him or her if not incarcerated, the prison authorities must provide such surrogate care." Langley v. Coughlin, 888 F.d. 252, 254 (d. Cir. 1989).

When the state, by imprisonment, prevents a person from caring for himself, the Constitution imposes "'a corresponding duty to assume some responsibility for his safety and general well being.'" Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480, 125 L.Ed.d. 22 (1993). Having stripped [prisoners] of virtually every means of self protection and foreclosed their access to outside aid, "society may not simply lock away offenders and let "the state of nature take its course." DeShaney v. Winnebago Dept. of Social Services, 489 U.S. 198, 199-200, 109 S.Ct. 998, 1005-1006, 103 L.Ed.d. 249 (1989). Rather, governmental officials must ensure that prisons while perhaps "restrictive and even harsh," Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L. Ed.2d 59 (1981), do not degenerate into place that violate basic standards of decency and humanity. In short, while the Eight Amendment does not mandate comfortable prisons . . . neither does it permit inhumane ones. Repeated examples of delay or denied medical care, haphazard or ill-conceived medical practices can serve to demonstrate deliberate indifference. Todaro v. Ward, 565 F.d. 48, 52 (d. Cir. 1977). The court has great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to be, the cause of serious illness and needless suffering. Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 2480, 125 L.Ed.d. 22 (1993).

There are six components of minimally adequate prison mental health care delivery system under the Eighth Amendment:

1) A systematic program for screening and evaluating inmates to identify those in need of mental health care;

2) A treatment program that involves more than segregation in close supervision of mentally ill inmates;

3) Employment of a sufficient number of mental health professionals:

4) Maintenance of accurate complete and confidential mental health treatment records;

5) Administration of psychotropic medications only with appropriate supervision and periodic examination;

6) A basic program, to identify, treat, and supervise inmates at risk for suicide.

Balla v. Idaho State Board of Corrections, 595 F.Supp.. 1558, 1577 (D. Idaho 1984); modified on other grounds F.d. 461 (9th Cir. 1988). The evidence in this case constrains the court to conclude that these minimally adequate mental health care delivery system components set forth in Balla supra, were violated by defendants' conduct.

The court must first examine the evidence adduced at trial in terms of defendants' potential §1983 liability. To bring a §1983 action against an individual, the plaintiff must show that the defendant acted under color of state law in a way that deprived the plaintiff of "any rights, privileges or immunities secured by the Constitution." 42 U.S.C. §1983. "As a prerequisite to maintaining a §1983 action against an individual in his individual capacity, a plaintiff must [establish] . . . defendant's direct or personal involvement in the alleged constitutional deprivation." Feliciano v. Goord, 97 Civ. 263, 1998 WL 436358, at 3 (S.D.N.Y. July 27, 1998) (citing Colon v. Coughlin, 58 F.2d 865, 873 (d. Cir. 1995). That is so because "[l]iability for damages in a §1983 action may not be based on the respondeat superior or vicarious liability doctrines." Id. "Nor may a defendant be held liable merely by his connection to events through links in the chain of command." Id. Prison supervisors cannot be held liable simply by virtue of the actions of subsordinates. Moreover, the mere allegation that a supervisory official is in charge of a facility or agency does not establish his personal involvement. Gill v. Mooney, 824 F.d. 192, 196 (d. Cir. 1987).

In Williams v. Smith, 781 F.d. 319, 323-24 (1986), the Second Circuit held that establishing personal involvement of a defendant in a §1983 constitutional deprivation can be demonstrated in five ways. 1) The defendant may have directly participated in the infraction. 2) a supervisory official, after learning of the violation through a report or appeal, may have failed to remedy the wrong. 3) A supervisory official may be liable because he or she created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue to continue. 4) A supervisory official may be personally liable if he or she was grossly negligent in managing subordinates who caused the unlawful condition or event. 5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

1. Defendant Coughlin

The court, therefor, will initially consider whether plaintiff Perri has come forth with sufficient proof of personal involvement on the apart of defendants Coughlin and Surles, so as to support a finding of §1983 liability in their personal capacities.

Plaintiff Perri testified that defendant Coughlin was a state actor who became aware of, and personally involved in his difficulties through his receipt of these four letters:

1) letter from Warden Senkowski of the Clinton Correctional Facility dated May 30, 1990, describing plaintiff's then ongoing hunger strike and his loss of fifteen pounds;

2) letter from plaintiff dated July 4, 1990, threatening suicide if he is returned to Clinton from CNYPC;

3) letter from plaintiff to Governor Cuomo dated July 17, 1990, describing his climbs to the roof of Green Haven Correctional Facility, and the yard wall at Clinton, a suicide attempt, his inadequate treatment, and another suicide threat; and

4) letter from defendant Coughlin to his immediate superior, John J. Poklemba, Director of Criminal Justice, dated August 28, 1990, answering an inquiry concerning the plaintiff's letter to the Governor. The letter places the blame for plaintiff's behavior on his deteriorating poor adjustment pattern which included five self-inflicted injuries or attempted suicides.

Defendant Coughlin testified he had not heard of the plaintiff, written to him or been contacted by an attorney on his behalf. He stated that while DOCS Commissioner, most of his time was spent working on matters external to the Department e.g. the politics of dealing with the legislature and the Governor. Because 8,000 to 9,000 pieces of inmate mail were annually received by DOCS, a special Department of Inmate Responses had to be established to process it. Three to four clerks read these letters and directed to them the proper Assistant Commissioners for Operations for investigation. Each letter received was affixed with a date stamp and logged in with a control number to show were the letter was sent for review and its disposition. If the reviewing party determined that a reply was necessary, a letter would be prepared and machine would affix defendant Coughlin's signature thereto.

In this manner, Superintendent Senkowski's letter of May 30, 1990, to defendant Coughlin was mandated by the DOCS policy which requires all prisoner hunger strikes to be reported to the Department. This letter was referred to, and a reply made by Glenn Goord, Deputy Commissioner for Operations. Deputy Commissioner Goord also prepared the reply to plaintiff Perri's letter of July 17, 1990, to Governor Cuomo which was inquired about by John J. Poklemba, Director of Criminal Justice and an aide of the Governor. Plaintiff's suicide threat letter of July 4, 1990, was replied to by a staff member. Suicide threats are considered very serious matters and officials of the facility where the prisoner is confined or is to be confined are notified immediately of any threats of this nature.

Regarding the possibility that plaintiff's law suit naming Coughlin as a defendant may have brought his conditions of confinement and medical treatment to Coughlin's attention, the former DOCS Commissioner testified that he was not advised of the specifics of a case unless it was a major case which could possibly have and impact upon the entire state prison system. The DOCS staff did not consider plaintiff Perri's lawsuit to be such a case. The reason for this policy is reflected in the fact that at the time of his retirement in 1994, defendant Coughlin was a named defendant in 7,000 law suits.

Defendant Coughlin further testified that he had no responsibility for the mental health care of prisoners. DOCS had entered an agreement with the Office of Mental Health whereby OMH was to provide mental health care to prison inmates through a series of satellite units in the correctional facilities and referrals therefrom to the CNYPC. Prison medical personnel would refer an inmate with an apparent mental illness to the facility satellite unit where he would be evaluated by people from the OMH and a course of treatment set by the unit chief. Defendant Coughlin had no connection with this process.

"However, even if defendant Coughlin remained uniformed he was nonetheless charged by statute with the responsibility of developing appropriate treatment for inmates in need of psychiatric care. See New York Correctional Law §401. To the extent that he failed to develop and implement such program or policies, or delegated that responsibility to others whom he then failed to supervise adequately, the liability criteria set forth in Williams are satisfied. Langley v. Coughlin, 709 F.Supp. 482, 486 (S.D.N.Y. 1989) appeal dismissed 888 F.d. 252 (d. Cir. 1989). Since it is very apparent in this case that plaintiff's mental health care was woefully inadequate, defendant Coughlin remains liable for damages occurring as a result thereof.

2. Defendant Surles

Defendant Richard C. Surles was the New York State Commissioner of Mental Health from 1987 to December 31, 1994. Plaintiff and his witnesses testified that defendant Surles was also a state actor who was made aware of plaintiff's situation by two separate events.

First, the initiation of this lawsuit as well as the commencement of two class action lawsuits in which the Commissioner of Mental Health was named as a defendant. These law suits alleges a pattern and practice of physical assaults and summary punishment in mental observation and treating units at the Clinton, Green Haven and Auburn Correctional Facilities. Tomasulo v. LeFevre, 84-CV-1035 (N.D.N.Y.), and Anderson v. Coughlin, 87-CV-141 (N.D.N.Y.). The allegations in Tomasulo specifically included the Clinton O.B.S. where plaintiff was confined, and the use of O.B.S. for punitive segregation under inhumane conditions including confining inmates in O.B.S. cells naked and without human needs.

Second, plaintiffs amended complaint alleges that neither Clinton or CNYPC had the capacity to treat mental illness like plaintiff's which required long term intensive care. Therefore, even if defendant Surles remained uninformed, he was nonetheless still charged by statute that, in cooperation with DOCS, he was to provide effective mental treatment and services to inmates, and the administration and operation of the programs established thereunder was his responsibility. New York Correction Law §401. If defendant Surles failed to carry out his statutory duty, or delegated this responsibility to others whom he did not properly supervise he would continue to be personally liable.

The testimony in this case shows that while a smattering of mental health and prison personnel attempted to alleviate plaintiffs torment, the overwhelming majority of those charged with his health care did nothing more than act to exacerbate it. The fact that plaintiff's condition was subsequently stabilized at another correctional facility to the point where he was paroled further highlights the inadequacies of his prior mental illness treatments. As stated above, New York Correction Law §401 obliges DOCS to provide mental health services to inmates, and the Office of Mental Health provides such services for DOCS. As Commissioner of Mental Health defendant Surles was responsible for providing adequate mental health treatment programs for defendant, and by not doing so, must respond in damages to plaintiff. Langley v. Coughlin, 709 F.Supp., at 486; Clarkson v. Coughlin, 783 F.Supp., 789, 796 (S.D.N.Y. 1992).

The testimony of the other witnesses in this proceeding was a miscellany of accusation and denial and did nothing to refute the legal obligations of defendants Coughlin and Surles in this case.

Defendants' attempt to interpose a defense of qualified immunity is of no avail. This defense is available to government officials to "avoid excessive disruption of government and permit the resolution of many insubstantial claims." Hallow v. Fitzgerald, 457 U.S. 800, 818; 102 S. Ct. 2727, 2738, 73 L. Ed.d. 396(1982). However, the defense is available to government officials only "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Id. The statutory or constitutional rights must be clearly established in a "particularized" sense so that "[t]he contours of the right" are that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed.d. 523 (1987).

"A right is clearly established if it meets one of three tests: (1) it is defined with reasonable clarity; or (2) the Supreme Court or Circuit has affirmed its existence; or (3) a reasonable defendant would understand from existing law that his acts were unlawful." Actions of state officials in delaying or ignoring their statutory obligations to mentally ill inmates, constitutes deliberate indifference to serious medical needs to those inmates for purposes of the Eighth Amendment. A finding of deliberate indifference necessarily precludes a finding of qualified immunity. Cook v. Sheldon, 41 F.d. 73, 78 (d. Cir. 1994). Prior to the period in 1990 when the events in this case took place, the Supreme Court had held that "deliberate indifference" to serious medical needs of prisoners" violated the Eighth Amendment, as made applicable to the states by the Fourteenth Amendment, and prisoners constitutional right to be free from inhumane conditions have been repeatedly recognized. Rhodes v. Chapman, 422 U.S. at 352. The evidence before the court shows the objective component of an Eight Amendment violation, "the defendant could not plausibly persist in claiming lack of awareness any more than prison officials who state during litigation that they will not take reasonable measures to abate an intolerable risk of which they are aware could claim to be subjectively blameless for purposes of the Eighth Amendment." Farmer v. Brennan, 511 U.S. at 846 n. 9, 114 S. Ct. at 1983 n. 9.

Therefore, based upon the above, the court finds plaintiffs mental health care was constitutionally inadequate due to the failure of the defendants to carry out their statutory obligations to establish appropriate programs for the treatment of mentally ill inmates confined in state correctional facilities, and this, in turn, triggered his confinement in inhumane conditions. As a result thereof, plaintiff sustained physical and mental suffering and damages and is entitled to reasonable compensation in the amount of Fifty Thousand and 00/100 Dollars ($50,000.00), statutory costs, disbursements and attorneys fees, for which sum defendants Coughlin and Surles are jointly and severally liable to the plaintiff. Application for attorneys fees on behalf of the plaintiff should be submitted to the court within 30 days of the date hereof.

IT IS SO ORDERED

Dated: June 10, 1999
Syracuse, New York

NEAL P McCURN
SENIOR U.S. DISTRICT JUDGE