Opinion
9:20-CV-245 (AMN/DJS)
07-01-2024
ANGEL BORGES, Plaintiff, v. JOHN McPHILLIPS, Defendant.
ANGEL BORGES Plaintiff, pro se PHELAN, PHELAN, & DANEK, LLP Counsel for Defendant TIMOTHY TRIPP, ESQ. ELIZABETH A. WEIKEL, ESQ.
ANGEL BORGES Plaintiff, pro se
PHELAN, PHELAN, & DANEK, LLP Counsel for Defendant TIMOTHY TRIPP, ESQ. ELIZABETH A. WEIKEL, ESQ.
REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
DANIEL J. STEWART UNITED STATES MAGISTRATE JUDGE
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983 alleging that Defendant violated his federal constitutional rights regarding the provision of medical care while Plaintiff was incarcerated at the Schenectady County Correctional Facility (“SCCF”). Dkt. No. 20, Sec. Am. Compl. Defendant now moves for summary judgment under FED. R. CIV. P. 56 with respect to that claim. Dkt. No. 65. Defendant seeks judgment based on Plaintiff's failure to exhaust his administrative remedies and on the merits of the claim. Dkt. No. 65-1, Def's Mem. of Law at pp. 4-17. Plaintiff's 3 deadline for responding to the Motion was originally set for December 22, 2023. Dkt. No. 67. No response was received and the Court sua sponte extended Plaintiff's time to respond to February 16, 2024. Dkt. No. 70. To date, no response in opposition to the Motion has been received.
For the reasons set forth below, the Court recommends that the Motion be granted.
I. FACTUAL BACKGROUND
On September 18, 2019, while an inmate at SCCF, Plaintiff was seen by Physician's Assistant Scott regarding a complaint of chest pain. Dkt. No. 65-7, SCCF Records at p. 42.She noted a history of cardiac issues. Id. Plaintiff was given nitroglycerin, which reduced his pain. Id. He was reassessed later in the day, Id. at p. 43, and Defendant ordered that an EKG be done. Dkt. No. 65-2, Mendel Affirm. at ¶ 26. The results of the EKG were “abnormal” and Defendant directed that Plaintiff be transferred to Ellis Hospital. Id. at ¶¶ 27-28. Plaintiff underwent testing at Ellis before being returned to SCCF the following day. Id. at ¶¶ 29-31.
Citations to the SCCF medical records are to the page numbers assigned by the Court's CM/ECF system.
On September 23, Plaintiff again complained of chest pain. SCCF Records at p. 38. He was treated with nitroglycerin and aspirin. Id. Defendant again ordered an EKG which showed no changes, suggesting no need for change in the care Plaintiff was receiving. Id.; Mendel Affirm. at ¶¶ 102-103. Later that day, Plaintiff again complained 3 of chest pain. SCCF Records at p. 37. He was determined to be suffering from anxiety and given advice on how to manage it. Id. Defendant was made aware of Plaintiff's condition and directed that Plaintiff continue to be monitored. Id.
On October 11, Plaintiff was seen by PA Scott to conduct an evaluation. At that time it was noted that Plaintiff had not been experiencing chest pain since the time of the September hospital admission. Mendel Affirm. at ¶ 39. Defendant also saw Plaintiff" that day regarding a potential referral to a pulmonologist. Id.
Between October 20 and October 26, Plaintiff was seen by nurses at SCCF three times, including twice after being brought to the facility medical unit with complaints of chest pain. SCCF Records at pp. 23-28. He was evaluated each time. Id. Two EKGs were performed, with no changes noted. Id. On October 26, Plaintiff admitted to medical staff that he had not been taking his prescribed medications. Id. at p. 23. Defendant was consulted that date, and directed that Plaintiff be given Motrin. Id.
On November 3, Plaintiff was seen by medical staff for chest pains and high blood pressure. SCCF Records at p. 19. He was given medication and an EKG was performed. Id. He was scheduled to see Defendant the next day. Id. When Defendant saw Plaintiff that day, he was still complaining of chest pain, but his blood pressure was lower. Id. Defendant discontinued one medication and prescribed another. Id.
On November 23, Plaintiff presented to medical staff at 8:46 p.m. again with chest pain and his blood pressure was high. SCCF Records at p. 12. An EKG was done 3 and Defendant was consulted and directed that Plaintiff be given medication. Id. A short time later, Plaintiff's blood pressure was down and he reported feeling better. Id. at pp. 9-11.
On November 25, Plaintiff was seen for the pulmonology consult. SCCF Records at pp. 1-2. The consulting doctor ordered further testing which Defendant approved. Mendel Affirm. at ¶ 57. Plaintiff was transferred to state custody in early December 2019.
II. SUMMARY JUDGMENT STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the burden to demonstrate through “pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any,” that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial and cannot rest merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion” and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). In considering a summary judgment motion, the Court's role “is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must “read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nonetheless, summary judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).3
III. DISCUSSION
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has held that “the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). Exhaustion in prisoner cases covered by § 1997e(a) is mandatory. Id. at 524; see also Ross v. Blake, 578 U.S. 632, 638 (2016) (stating that the mandatory language of § 1997e(a) forecloses judicial discretion to craft exceptions to the requirement). Furthermore, § 1997e(a) requires “proper exhaustion,” which means using all steps of the administrative process and complying with “deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 93 (2006).
In seeking dismissal based on failure to exhaust, “defendants bear the initial burden of establishing, by pointing to ‘legally sufficient sources' such as statutes, regulations, or grievance procedures, that a grievance process exists and applies to the underlying dispute.” Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (quoting Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003)) (internal alterations omitted). In support of his Motion, Defendant cites to state regulations governing the Incarcerated Individual Grievance Program for the New York Department of
Corrections and Community Supervision. Def.'s Mem. of Law at p. 5 (citing 7 N.Y.C.R.R. § 701.5). He does so presumably because Plaintiff was incarcerated in state custody at the time of the filing of this lawsuit. See Dkt. No. 2. DOCCS' grievance program, however, relates to matters directly concerning DOCCS policies and procedures and expressly excludes authority over “[a]ny . . . action taken by an entity not under the supervision of the commissioner” of DOCCS. 7 N.Y.C.R.R. § 701.3(f). The allegations in the Second Amended Complaint relate entirely to Plaintiff's care while housed at Schenectady County Correctional Facility. See Sec. Am. Compl. New York law directs all local correctional facilities to implement grievance procedures. 9 N.Y.C.R.R. § 7032.3. There has been no evidence proffered by Defendant regarding what mechanism for grieving complaints were available at the Schenectady County Correctional Facility.
Because “defendant[][has] failed to identify, . . . any [Schenectady] County statutes or regulations showing that administrative remedies were available for events that took place in the county court holding facility,” Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d at 59, he has not carried his initial burden of showing that available administrative remedies were in place. The Court, therefore, recommends that the Motion be denied insofar as it is based upon the alleged failure to exhaust administrative remedies.
B. Medical Indifference
Plaintiff's claim for medical indifference as a pre-trial detainee is governed by the Due Process Clause of the Fourteenth Amendment, rather than by the Cruel and Unusual Punishment Clause of the Eighth Amendment. Dumel v. Westchester Cnty., 656 F.Supp.3d 454, 463 (S.D.N.Y. 2023). The standard under the Due Process Clause is similar in this context to that under the Eighth Amendment, requiring the plaintiff first to satisfy “an ‘objective prong' showing that the challenged conditions were sufficiently serious to constitute objective deprivations of [constitutional rights]” and second, to satisfy a “‘mental element prong' - showing that the officer acted with at least deliberate indifference to the challenged conditions.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017); see also Dumel v. Westchester Cnty., 656 F.Supp.3d at 463-64.
The first prong is evaluated under an objective standard and considers whether the alleged deprivation of adequate medical care was “sufficiently serious.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “In the medical care context, analyzing this objective requirement involves two inquiries: whether the [plaintiff] was actually deprived of adequate medical care, and whether the inadequacy in medical care is sufficiently serious, which in turn requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the [plaintiff].” Johnson v. Schiff, 2019 WL 4688542, at *11 (S.D.N.Y. Sept. 26, 2019) (quoting Salahuddin v. Goord, 467 F.3d at 279-80) (quotation marks omitted). Here, while the record establishes that Plaintiff had a serious medical condition involving his heart, he has not established that he was deprived of medical care. In fact, the record demonstrates the exact opposite. Plaintiff was seen on multiple occasions by medical staff, including Defendant, during his time at SCCF. During that time, Plaintiff was regularly evaluated by medical staff, underwent diagnostic testing, provided with medication, and transferred on one occasion to an outside hospital. Defendant personally interacted with Plaintiff only on a few occasions, but was consulted about his condition on others. On those occasions, Defendant directed an appropriate course of treatment, including medication and hospitalization. See generally SCCF Records.
Plaintiff's allegations concern alleged errors on Defendant's part in his treatment. He testified at his deposition, for example, that Defendant should not have made medication changes without doing particular lab work. Dkt. No. 65-9 at pp. 70-71. He also complains that Defendant erred in not ordering his transport to the hospital on other occasions. See, e.g., Id. at pp. 61 & 74-75. However, “disagreements over medications, diagnostic techniques (e.g., the need for X-rays), forms of treatment, or the need for specialists . . . are not adequate grounds for a Section 1983 claim.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001); see also Cusamano v. Sobek, 604 F.Supp.2d 416, 439 n. 37 (N.D.N.Y. 2009); Proctor v. Vadlamudi, 992 F.Supp. 156, 159 (N.D.N.Y. 1998). Here, Plaintiff can point to nothing other than disagreements about the course of his care to support his contention that he was not adequately treated. But because “[i]t is well-established that mere disagreement over the proper treatment does not create a constitutional claim,” Chance v. Armstrong, 143 F.3d at 703, summary judgment on this ground is appropriate.
To the extent Plaintiff contends that he suffered seven heart attacks without treatment while incarcerated at SCCF, Dkt. No. 65-9 at p. 94, this claim is entirely speculative and lacking any support in the record.
Nor is there a question of fact with respect to the subjective element. In contrast to the standard under the Eighth Amendment, in the Fourteenth Amendment context, it is not necessary for a plaintiff to establish subjective “proof of a malicious or callous state of mind” on the part of the defendant. Charles v. Orange Cnty., 925 F.3d at 86 (citing Darnell v. Pineiro, 849 F.3d at 33-34). Instead, in the context of a Fourteenth Amendment Due Process claim, deliberate indifference “can be shown by something akin to recklessness.” Id. The Second Circuit has explained that “‘recklessness' can be defined subjectively (what a person actually knew, and disregarded), or objectively (what a reasonable person knew, or should have known).” Darnell v. Pineiro, 849 F.3d at 29 (citing Farmerv. Brennan, 511 U.S. at 836-37). As a result, deliberate indifference can be proven by “showing that the defendant official ‘recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to [the plaintiff's] health or safety.'” Charles v. Orange Cnty., 925 F.3d at 87.
Despite a somewhat-lessened threshold, evidence of mere negligence will not suffice. Id. “Thus, mere medical malpractice is not tantamount to deliberate indifference, but it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an act or failure to act . . . that evinces a conscious disregard of a substantial risk of serious harm.” Id. (quoting Cuoco v. Moritsugo, 222 F.3d 99, 107 (2d Cir. 2000). Accordingly, a plaintiff “asserting a Fourteenth Amendment claim for deliberate indifference to his medical needs can allege either that the defendants knew that failing to provide the complained of medical treatment would pose a substantial risk to his health or that the defendants should have known that failing to provide the omitted medical treatment would pose a substantial risk to [his] health.” Id. (emphasis in original).
Here, the record establishes nothing close to the recklessness required to state a claim. As noted above, Defendant was in no way indifferent to Plaintiff's needs. He consistently ordered testing, prescribed medication, and arranged for consultation with a specialist. During his deposition, Plaintiff conceded that Defendant and hospital staff were attempting to provide him good care. Dkt. No. 65-9 at p. 69. There is simply no evidence to suggest that Defendant was aware of or reckless to risks to Plaintiff's health that were not addressed in an appropriate clinical manner.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendant's Motion for Summary Judgment (Dkt. No. 65) be GRANTED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72 & 6(a).
If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).