Inmate repels qualified immunity in 2d Circuit

Yes, inmates have rights. No, they are not easily proven. Even if the inmate gets shafted, the correction officers and prison doctors can invoke qualified immunity, which dismisses the case unless plaintiff can show the defendants violated clearly-established rights in light of the facts of the case. This inmate survives that formidable hurdle, the bane of all plaintiffs' civil rights lawyers.

The case is Neary v. Wu, a summary order issued on February 19. After plaintiff began experiencing severe pain in his breast and found irregular lumps, defendants prescribed medication that did not alleviate the pain, denied him a recommended surgical consultation to consider removal of the breast tissue, refused him a soy-based diet designed to reduce his symptoms and abruptly stopped a narcotic pain medication that caused withdrawal symptoms. This deliberate indifference claim proceeds under the Eighth Amendment.

Plaintiff can proceed with his case, the Second Circuit (Winter, Pooler and Abrams [D.J.]) says, because the case law is clear that  "prisoner-plaintiff establishes a 'serious medical need' where she suffered 'chronic pain the magnitude of which probably falls somewhere between annoying and extreme.'" That case is Brock v. Wright, 315 F.3d 158 (2d Cir 2003). Another case, McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004), holds that doctors who fail to run required tests despite obvious symptoms, fail to initiate necessary and apparent treatment, fail to arrange follow-up visits despite doctor's orders and deny treatment pursuant to flawed policies cannot invoke qualified immunity, since these derelictions can support a deliberate indifference case.

Plaintiff satisfies these standards, at least for now, at the pleading stage, where all facts are deemed true. Maybe defendants can argue qualified immunity again once discovery is over, for for now this case moves forward.