Opinion
02 Civ. 10010 (LAK) (GWG).
September 14, 2004
REPORT AND RECOMMENDATION
In this action under 42 U.S.C. § 1983, pro se plaintiff Antonio Cecilio claims that defendants Kang Lee, M.D. ("Dr. Lee"), Raelen Y. Milisevic, M.D. ("Dr. Milisevic"), and Frank Lancellotti, M.D. ("Dr. Lancellotti") were deliberately indifferent to his serious medical needs and thus violated his constitutional rights under the Eighth and Fourteenth Amendments. Defendants have moved for summary judgment pursuant to Fed.R.Civ.P. 56. Cecilio has moved for leave to amend his complaint pursuant to Fed.R.Civ.P. 15. For the reasons stated below, defendants' motion should be granted and Cecilio's motion should be denied.
Cecilio's complaint and its caption incorrectly refer to Dr. Lee as "Dr. Lee Kang" and incorrectly spell Dr. Milisevic's last name as "Milicevic." The Court will refer to these defendants by their correct names.
I. INTRODUCTION
A. Factual Background
1. The Defendants
Dr. Lee is employed by the New York State Department of Correctional Services ("DOCS") and has served as the Medical Director at Clinton Correctional Facility ("Clinton") since 1984. Declaration of Kang Lee, M.D., dated January 27, 2004 ("Lee Decl.") (reproduced in Declaration of Lisa E. Fleischmann, filed February 2, 2004 (Docket #23) ("Fleischmann Decl.")), ¶¶ 1-2. Dr. Lee was one of Cecilio's doctors from July 1996 to February or March 1998, when Cecilio was transferred to Eastern Correctional Facility ("Eastern"). Id. ¶ 2; Deposition of Antonio Cecilio, December 30, 2003 ("Cecilio Dep.") (reproduced as Ex. B to Fleischmann Decl.), at 19.
Dr. Milisevic is employed by DOCS and serves as a Clinical Physician at Eastern. Defendants' Statement of Material Facts Pursuant to Local Civil Rule 56.1, filed February 2, 2004 (Docket #24) ("Def. 56.1"), ¶ 5. She was one of Cecilio's doctors from March 1998 to November or December 1999, when Cecilio was transferred to Woodbourne Correctional Facility ("Woodbourne").Id. ¶ 6; Cecilio Dep. at 19.
Dr. Lancellotti is employed by DOCS as a Clinical Physician at Woodbourne. Declaration of Frank Lancellotti, M.D., dated January 27, 2004 ("Lancellotti Decl.") (reproduced in Fleischmann Decl.), ¶ 2. Since Cecilio's transfer to Woodbourne in November or December 1999 up to the present, Dr. Lancellotti has been one of Cecilio's doctors. Id. ¶ 3; Cecilio Dep. at 19.
2. Cecilio's Background Medical History
Cecilio entered the New York State correctional system in 1995. Cecilio Dep. at 19. In October 1996, Cecilio told a doctor at Clinton that he had been treated at Lincoln Hospital ("Lincoln") in 1993 for "attacks in [the] head" and "insects in [the] brain." Ambulatory Health Records, various dates ("AHR") (reproduced in Ex. C to Fleischmann Decl.), at 166; Cecilio Dep. at 49. This information was subsequently conveyed to Dr. Lee, who ordered Cecilio's medical records from Lincoln. Lee Decl. ¶ 3; Cecilio Dep. at 49. These records were received at Clinton in February 1997. Lee Decl. ¶ 3; AHR at 248. A physician at Clinton reviewed the records and noted the following:
In 1993, at the age of 17, Cecilio had a seizure, at the time his first. AHR at 248. A CT scan and MRI performed after Cecilio's seizure showed that he had a "ring enhancing lesion" in his brain. Id. At the time, Cecilio indicated that he was experiencing headaches and lower back pain. Id. Follow-up work was scheduled in order to rule out cysticercosis, toxoplasmosis, and tuberculosis. Id. On February 18, 1993, a second CT scan performed at Lincoln revealed an "enhancing left frontal lesion with mild surrounding edema which may represent a focus of infection such as toxoplasmosis or [cysticercosis]. However, we cannot rule out the possibility of a tumor." Lincoln Hospital Records, various dates ("LHR") (reproduced in Ex. C to Fleischmann Decl.), at 312. Toxoplasmosis is an infection which can be caused by, inter alia, the ingestion of undercooked meat. See http://www.cdc.gov/ncidod/dpd/parasites/toxoplasmosis (last modified Feb. 12, 2003). Cysticercosis is an infection contracted by eating tainted pork. See Declaration of Jerome M. Block, M.D., dated January 27, 2004 ("Block Decl.") (reproduced in Fleischmann Decl.), ¶ 5; Lancellotti Decl. ¶ 3 n. 1; http://www.cdc.gov/ncidod/dpd/parasites/cysticercosis (last modified Oct. 17, 2003) ("CDC on Cysticercosis"). Although it can cause lesions to form in the brain and is a cause of seizures, generally cysticercosis is not life threatening. Block Decl. ¶ 5; Lancellotti Decl. ¶ 3; CDC on Cysticercosis. When the lesions caused by cysticercosis calcify, the parasite is considered dead (although the calcified lesions remain in the brain) and anti-parasitic medications are not effective. Block Decl. ¶ 5; Lancellotti Decl. ¶ 3 n. 1; CDC on Cysticercosis.
Lincoln physicians ordered Cecilio another MRI, which was performed on February 23, 1993 and which revealed that he had a "[r]ing enhancing lesion in the left frontal lobe high in the convexity with edema" and that it "most likely represent[ed] an abscess." LHR at 301. A subsequent CT scan revealed a "small poorly enhancing ring like lesion, left frontal lobe[.] Differential diagnosis [cysticercosis, blastomycosis, tuberculosis] and less likely . . . mycosis and [histoplasmosis]." Id. at 283.
3. Cecilio's Complaints and Treatment
a. At Clinton. After Dr. Lee received and reviewed Cecilio's medical records from Lincoln, a request was made on February 13, 1997 for Cecilio to receive a CT scan with and without contrast, an MRI, a consultation with an infectious disease specialist, blood testing, and x-rays of his lumbar and thoracic spine. Lee Decl. ¶ 4; AHR at 248; Cecilio Dep. at 49. The CT scan, which was performed on February 25, 1997, revealed the following:
There is a tiny increased density in the left anterior frontal parietal region. A small calcified granuloma is consistent with this appearance, in view that there is no adjacent edema, mass effect or enhancement. A small focus of acute hemorrhage would be very unlikely. By CT density appearance alone a small calcification or small focus of acute hemorrhage can have a very similar appearance and if the patient's symptoms persist or increase then follow up study is suggested.
Radiology Reports, various dates ("Radiology Reports") (reproduced in Ex. C to Fleischmann Decl.), at 069. Dr. Lee states that this examination "revealed that [Cecilio's] brain condition . . . had not changed much in the four years since [Lincoln] conducted its tests" and that Cecilio did not have a brain tumor. Lee Decl. ¶ 4.
On March 19, 1997, in response to Cecilio's complaints of almost-daily migraine headaches, a request was made for Cecilio to undergo a neurological examination. Request and Report of Consultation, various dates ("Consultation Reports") (reproduced in Ex. C to Fleischmann Decl.), at 093. The physician who performed the neurological examination recommended that Cecilio have a snack before bedtime and also prescribed him Inderal and acetaminophen, to be taken as needed for his headaches. Id.
b. At Eastern. Medical records from Eastern reveal that Cecilio complained of headaches on only three occasions during his incarceration there. AHR at 207; Def. 56.1 ¶ 27. In response, Dr. Milisevic prescribed him Tylenol, aspirin, and Advil. Cecilio Dep. at 49.
Cecilio also complained of having blurred vision and red eyes while at Eastern. AHR at 207. Suspecting that he had glaucoma, on September 28, 1999 and October 25, 1999, Dr. Milisevic referred Cecilio for ophthalmological testing. Id.; Consultation Reports at 209-11; accord Cecilio Dep. at 29-30.
c. At Woodbourne. Cecilio was transferred to Woodbourne at the end of 1999. Cecilio Dep. at 19. On January 12, 2001, a corrections officer reported that Cecilio might have had a seizure. AHR at 196. Medical records from that day reveal the following:
Call from [corrections officer] that [Cecilio] might have had a "seizure." [Complains of] headache [and] stomach discomfort. Feels nauseated — denies vomiting. [Complains of] temporal headache. Holding head during interview. Eyes remain "bloodshot." . . . Presently hyperactive. No rebound, no guarding. . . . Reports continued frontal headache [and] heaviness in head and [dizziness]. [Left] eye sclera reddened in inner cornea [and] drainage. . . . [History of] migraine headaches. Reports "Tylenol not helping."Id. The records also note that this was brought to the attention of Mervat Makram, M.D. ("Dr. Makram"), who was the physician on duty at Woodbourne that day. Id.; see Lancellotti Decl. ¶ 4. Cecilio was given a shot of Imitrex, a medication for headaches. AHR at 196. Following this incident, Cecilio was prescribed Dilantin, an anti-seizure medication. Cecilio Dep. at 39. He was also referred to a neurologist for a follow-up. AHR at 196.
On January 14, 2001, a corrections officer reported that Cecilio might have had another seizure. Id. at 195. According to the medical records:
12:05 a.m. Call from [corrections officer] that [Cecilio] is again foaming [at the] mouth [and] extremities rigid, eyes open [and] glassy.
12:10 a.m. Nurse escorted to [Cecilio's dormitory]. [Cecilio] presently alert [and] oriented. Good grasp bilaterally. Pupils equal [and] reactive to light. Able to move all extremities. Ambulating [without] difficulty. No seizure activity witnessed by this nurse. Both [corrections officers assigned to Cecilio's dormitory and] 3 inmates witnessed [Cecilio's] behavior tonight [and] the night of [January 12]. At that time, when [Cecilio] came to [health unit] he stated there was no seizure — he stated he had a headache [and] stomachache. [Complains of] headache [at] this time [and] states his head is "pounding." Has no memory of what happened. States he was sleeping [and] inmates woke him up. [Corrections officers] state they were unable to bring [Cecilio] out of "seizure." [Cecilio] gradually became "normal" again. No incontinence. Skin [warm and dry]. Color good. Tylenol [and] ice pack given for headache. If headache continues, bring to [health unit] for further evaluation [and] Imitrex shot.
1:30 a.m. [Cecilio] presently sleeping [with no apparent difficulties].
2:10 a.m. [Complains of] feeling nauseated, dizzy [and] still has headache. Does not want Imitrex shot. States he felt numbness in extremities [from] having shot [on January 12]. . . . States he's had headaches for 8 or 9 [years]. States "dad" has same headaches. [Inmate Rodriguez] interpreting for [Cecilio] re: stories about "seizures" he's been having. Reassured he will see [doctor on January 16] and [at] present time his [vital signs] are stable.Id. at 194-95.
Dr. Makram saw Cecilio on January 16 and noted the following:
[Cecilio] had headaches [with?] seizure activities on [January 12 and January 14 which were] observed only by [corrections officers] not [registered nurse]. Treated for headaches by Imitrex but [Cecilio] stated he had an after effect from Imitrex. Was given Fioricet instead[. Cecilio] states that works better. Still unclear of seizure activities[. W]ill start [work up].Id. at 193. Following his examination of Cecilio, Dr. Makram referred him to Albany Medical Center Hospital ("Albany") for a CT scan. Consultation Reports at 091. He marked the request as being "urgent" and noted that the reason for the scan was because Cecilio had complained of
severe headaches [with] nausea/vomiting [and] dizziness. 2 days ago had multiple bouts of [headaches and] was observed by other inmates to have frothing from the mouth [with] momentary loss of consciousness [and] possible seizure activities, no [history of] head trauma but has [history of] glaucoma [and] under [ophthalmological] care. Needs CT [scan] head [with and without] contrast to [rule out] IC pathology.Id.
A CT scan of Cecilio's brain was performed at Albany on January 22, 2001. Radiology Reports at 064. It revealed that Cecilio had an "enhancing, partly calcified nodule (5 mm) in the antero-superior left frontal lobe with surrounding edema. Focal infection versus neoplastic involvement. MRI is suggested for further evaluation." Id. The physician who performed the CT scan wrote in the report that toxoplasmosis and cysticercosis were consistent with this appearance. Id.
A follow-up MRI was performed on February 5, 2001. Id. at 060. The radiologist noted the following on the MRI report:
5 mm area of circular enhancement within an upper left frontal gyrus corresponding to the calcified lesion seen on the [January 22 CT scan]. There is no evidence of vasogenic edema on the [MRI] despite the fact that there appeared to be edema on the CT [scan]. Is [Cecilio] presently on steroid or other therapy? Granulomatous disease or toxoplasmosis should be considered though the lack of edema on MRI is most unusual. A cavernous angioma should have a halo of hemosiderin which this does not. Follow up either CT [scan] or [MRI] recommended.Id. According to Dr. Lancellotti, these tests "[e]ssentially . . . revealed that [Cecilio's] condition had not changed much at all since 1997" and that he did not have a brain tumor. Lancellotti Decl. ¶ 4.
On February 12, 2001, Dr. Lancellotti referred Cecilio for a neurological examination. Consultation Reports at 082. He noted that he was making this referral because of Cecilio's "sudden onset [of] seizures; had CT [scan] that showed enhancing partially calcified nodule (5 mm) in antero-superior frontal lobe [with] surrounding edema. Focal [infection] vs. neoplastic involvement suspected; [MRI] corroborates lesion but there is no vasogenic edema; [Cecilio] currently on Phenytoin 100 [milligrams] BID." Id. A neurological examination conducted on February 21, 2001 by Mark P. Dentinger, M.D. ("Dr. Dentinger") revealed that Cecilio likely had "toxoplasmosis or cysticercosis" caused by an "old brain infection." Id. Dr. Dentinger recommended that Cecilio continue taking Dilantin to prevent future seizures. Id.
On February 22, 2001, Dr. Lancellotti noted that a six-month follow-up neurological consultation should be conducted concerning the "seizures and focal brain lesion felt by Dr. Dentinger to be from old [infection (toxoplasmosis versus cysticercosis)]." Id. at 089. On May 14, 2001, Dr. Makram saw Cecilio and reported the following: "Headaches are more frequent [and] increased . . . intensity of pain — not responding to [regular] pain [medications]. Please take that into consideration upon evaluation." Id. On May 16, 2001, apparently in response to Dr. Lancellotti's February 22 request for a follow-up neurological consultation, a neurologist examined Cecilio. Id. After examining Cecilio, the physician concluded that Cecilio's seizures were "well controlled" by medication, that his headaches were "probably migraine," and that he had "extensive [work-up] without clear etiology determined."Id. The physician recommended that Cecilio continue Dilantin at his then-current dosage level and that he be given Elavil when needed for his migraines. Id.
On May 17, 2001, Dr. Lancellotti ordered another follow-up neurological consultation for Cecilio. Id. at 088. After conducting the examination of Cecilio on September 12, 2001, Dr. Dentinger noted the following: "Seizure disorder controlled on medication. No evidence of progressive, structural [neurological] disorder. Overly frequent [migraines]." Id. The report also noted that prescriptions for Depakote, Elavil, and Fioricet — all of which are pain medications for headaches — had been written for Cecilio. Id.
Dr. Dentinger examined Cecilio on January 2, 2002 and increased his Depakote prescription. Id. at 090. On January 3, 2002, Dr. Lancellotti requested a three-month follow-up neurological appointment. Id. On March 27, 2002, the consulting neurologist noted that Cecilio's seizures were "well controlled." Id. The physician recommended that Cecilio continue taking Depakote and Elavil for his pain, that he also be prescribed Motrin, that he undergo an MRI "soon," and that a follow-up neurological examination be conducted in two to three months. Id. On June 5, 2002, an MRI was conducted, with the report noting: "Brain lesion: . . . Cavernous angioma? Wants a [second] opinion — would have neurologist see him [and] review film [and question if] needs to be taken out." Id. at 077. A cavernous angioma is a congenital vascular malformation prone to causing seizures and possible bleeding in the brain. Block Decl. ¶ 5. It is not life threatening. Id.; Lancellotti Decl. ¶ 3.
The following day, June 6, 2002, Dr. Lancellotti referred Cecilio for a neurosurgical consultation. Consultation Reports at 075. He noted that Cecilio had been treated for "headaches and brain lesion (which [the neurologist] thinks might be a calcified angioma)[.] Requests opinion regarding excision." Id. The consulting physician determined that Cecilio's lesion was "likely [a] cavernous angioma," that he had "[n]o neurological deficit," that "[n]o neurosurgical intervention" was required, and that the cavernous angioma was "[n]ot responsible for headaches." Id. He recommended that "neurology treat possible migraine" and that Cecilio "[r]emain on anticonvulsants." Id.
On December 16, 2002, Dr. Lancellotti apparently met with Cecilio and made the following note in his medical records: "[D]ilantin level [—] was told by [neurologist] that 300 [milligrams/day] was adequate because 400 [milligrams/day] caused side effects; currently on [D]ilantin 300 [milligrams/day]. I will not change dosage." AHR at 012.
Since January 2001, Cecilio has been taking Dilantin to control his seizures. Cecilio Dep. at 5, 39; accord Lancellotti Decl. ¶ 5. He has not had any seizures since January 14, 2001. Cecilio Dep. at 39. Cecilio has also been taking the pain medications Elavil, Ultram, and Depakote for his headaches. Id. at 5, 39-40, 44-45; accord Lancellotti Decl. ¶ 5. In addition, every four to six months Cecilio undergoes a CT scan. Cecilio Dep. at 42; accord Lancellotti Decl. ¶ 6. Cecilio regularly sees neurologists for his headaches and to follow up on his condition. Lancellotti Decl. ¶ 6. He recently saw a neurosurgeon, who again concluded that Cecilio did not need surgery. Id.
Cecilio was also referred for ophthalmological testing on September 18, 2000, November 8, 2000, May 1, 2001, June 22, 2001, and November 13, 2002, apparently to address his complaints of having red eyes. Consultation Reports at 099-101, 109, 111. He has continued to undergo routine ophthalmological checkups every three or four months. Lancellotti Decl. ¶ 6; Cecilio Dep. at 29-30. He is currently taking lubricating drops for his eyes. Cecilio Dep. at 30.
B. Procedural History
Cecilio filed his complaint in this action on December 13, 2002. See Civil Rights Complaint, filed December 13, 2002 (Docket #2) ("Compl.") (reproduced as Ex. A to Fleischmann Decl.). Cecilio's complaint, brought under 42 U.S.C. § 1983, alleges that the defendants deprived him of his civil rights under the Eighth and Fourteenth Amendments due to their deliberate indifference in providing him with medical treatment.See generally id. ¶¶ 1, 8-9.
On January 6, 2003, the court granted Cecilio's request for appointment of counsel and placed his case on the Pro Se Office's list of cases for which volunteer counsel had been requested.See Memorandum Endorsement, filed January 6, 2003 (Docket #3). By letter dated May 6, 2003, Cecilio notified the Court that no counsel had yet to volunteer to represent him. See Memorandum Endorsement, filed May 14, 2003 (Docket #15). In order to afford him additional time to secure counsel, the Court stayed all proceedings until July 3, 2003. See id. By July 3, 2003, however, no counsel had volunteered to take his case and the stay was lifted. See Order, filed July 24, 2003 (Docket #16); see also Memorandum Endorsement, filed December 4, 2003 (Docket #19). Cecilio's case was automatically removed from the Pro Se Office's list in January 2004, after a year had passed and no counsel had volunteered to take his case.
On February 2, 2004, the defendants filed a motion for summary judgment pursuant to Fed.R.Civ.P. 56, arguing, inter alia, that the defendants were entitled to qualified immunity from suit. See Notice of Motion, filed February 2, 2004 (Docket #21); see also Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment, filed February 2, 2004 (Docket #22) ("Def. Mem."), at 17-20. Defendants' motion contained a notice warning Cecilio that "THE CLAIMS YOU ASSERT IN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own sworn affidavits or other papers as required by Rule 56(e)." Notice to Pro Se Litigant Opposing Motion for Summary Judgment, filed February 2, 2004 (Docket #25) ("56.2 Notice"), at 1 (emphasis in original). In addition, it warned that any facts in defendants' statement of material facts pursuant to Local Civ. R. 56.1 may be deemed admitted if not controverted and that "[j]udgment may then be entered in defendants' favor without a trial." Id. at 2. Cecilio requested a 120-day extension of time to respond to defendants' motion. See Memorandum Endorsement, filed February 27, 2004 (Docket #29). In response, the Court noted that the time requested was extraordinary but nonetheless granted Cecilio 120 days from the date of the defendants' motion in which to file his opposition papers — that is, until June 2, 2004. Id. The Court's Order warned Cecilio that he should begin work "promptly" on responding to the motion and that he would receive "NO FURTHER EXTENSIONS." Id. (underscoring and capitalization in original).
On March 21, 2004, Cecilio sent a letter to the Clerk's Office, which the Court construed as requesting leave to amend his complaint. See Memorandum Endorsement, filed April 5, 2004 (Docket #30) ("Apr. 5, 2004 Memo. End."). He also sent a letter on April 1, 2004 stating that he had "filed a timely application to Withdraw the original complaint, and resubmit the argument in its proper form," apparently referring to his March 21 letter which he attached as an exhibit. Letter from Cecilio to the Hon. Lewis A. Kaplan, dated April 1, 2004 ("Apr. 1, 2004 Ltr."), at 1. Defendants submitted a letter in opposition to Cecilio's motion.See Letter from Lisa Fleischmann to the Hon. Lewis A. Kaplan, dated March 29, 2004.
On April 5, 2004, the Court denied Cecilio's request for leave to amend his complaint for his failure to include a copy of a proposed amended complaint. See Apr. 5, 2004 Memo. End. Nonetheless, the Court granted him leave to file a new motion to amend on or before June 2, 2004. See id. The Court instructed Cecilio that the motion had to explain why it could not have been made earlier and also had to attach a copy of a proposed amended complaint. See id. In addition, the Court stated: "Such motion may be submitted with his opposition papers to the motion for summary judgment, which also must be filed by June 2, 2004." Id. (emphasis in original).
On April 19, 2004, the Court received from Cecilio a proposed amended complaint. See Amended Complaint, dated April 12, 2004 ("Am. Compl.") (reproduced in Letter from Cecilio to the Clerk of the Court, dated April 13, 2004 ("Apr. 13, 2004 Ltr.")). Defendants thereafter submitted a letter outlining their opposition to Cecilio's motion for leave to amend. See Letter from Fleischmann to the Court, dated April 19, 2004. On May 25, 2004, Cecilio sent a letter stating: "I understand according to court rules that the Summary Judgment is enstopped [sic] until there is a final determination reached on the Amended Complaint."See Memorandum Endorsement, filed May 28, 2004 (Docket #31) ("May 28, 2004 Memo. End.").
The Court thereupon responded to Cecilio's May 25 letter by Order stating that the motion for leave to amend was under consideration but that, "[a]s was plainly stated in the Order of April [5], 2004, [Cecilio] must still respond to the summary judgment motion by June 2, 2004. No proceedings have been 'stopped.'" Id. (emphasis in original). The Court thereuponsua sponte extended Cecilio's deadline for responding to the summary judgment motion to June 11, 2004. Id.
No opposition papers were received from Cecilio by June 11, 2004. In addition, Cecilio at no point since that date has responded to the motion for summary judgment, although he has sent several letters to the Court or to the Clerk's Office in which he has reasserted his personal view that the submission of his proposed amended complaint "held in abeyance" defendants' summary judgment motion. Letter from Cecilio to the Court, dated June 30, 2004, at 1; accord Letter from Cecilio to the Clerk of the Court, dated June 24, 2004, at 1-2; Letter from Cecilio to the Clerk of the Court, dated July 27, 2004, at 1-2. The Court's prior Orders, however, were quite clear that the summary judgment motion was not being held in abeyance and that Cecilio was still required to respond to it. Such orders were particularly needed in the instant matter, as the Court is required to adjudicate a motion raising qualified immunity "at the earliest possible stage in litigation," Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam).
II. SUMMARY JUDGMENT
A. Law Governing Summary Judgment
A district court may grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue is one that "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law." Id. at 248. Thus, "'[a] reasonably disputed, legally essential issue is both genuine and material'" and precludes a finding of summary judgment. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)).
A party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying [the evidence] which it believes demonstrate[s] the absence of a genuine issue of material fact."Celotex, 477 U.S. at 323. After the motion is properly made and supported the burden then shifts to the nonmoving party, who "'must set forth specific facts showing that there is a genuine issue for trial.'" Anderson, 477 U.S. at 250 (quoting Fed.R.Civ.P. 56(e)); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When determining whether a genuine issue of material fact exists, all reasonable factual inferences must be drawn and all ambiguities resolved in favor of the nonmoving party. See, e.g., Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson, 477 U.S. at 255); McPherson, 174 F.3d at 280. However, "[c]onclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted); accord Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).
"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23). "A defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to [his] case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48);accord Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Chase Manhattan Bank v. Am. Nat'l Bank Trust Co. of Chi., 93 F.3d 1064, 1072 (2d Cir. 1996).
The Second Circuit has held that a pro se plaintiff must be given express notice of the ramifications of failing to respond to a motion for summary judgment, see, e.g., McPherson, 174 F.3d at 280-81, as occurred here, see, e.g., 56.2 Notice at 1-2. But the fact that a plaintiff is "proceeding pro se does not otherwise relieve [him] from the usual requirements of summary judgment." Fitzpatrick v. N.Y. Cornell Hosp., 2003 WL 102853, at *5 (S.D.N.Y. Jan. 9, 2003); accord Johnson v. N.Y. Hosp., 1998 WL 851609, at *8 (S.D.N.Y. Dec. 9, 1998) (citing cases), aff'd, 189 F.3d 461 (2d Cir. 1999) (unpublished table decision).
B. Cecilio's Failure to Submit Evidence in Opposition to Defendants' Motion
In this case, Cecilio has failed to submit any evidence opposing defendants' motion for summary judgment. Cecilio was notified, however — both by the defendants in accordance with Local Civ. R. 56.2 and by the Court, on two separate occasions — that he was required to submit evidence in opposition to the motion. See 56.2 Notice at 1-2; Apr. 5, 2004 Memo. End.; May 28, 2004 Memo. End. He was further warned that if he failed to do so, the Court might accept the defendants' factual assertions as true. See 56.2 Notice at 2. Nonetheless, Cecilio has not submitted any affidavits or other evidence in response to the motion. Accordingly, the Court accepts as true the defendants' evidence on any material issues of fact. See Local Civ. R. 56.1(c). In addition, the Court is "satisfied that the citation to evidence in the record supports" defendants' assertions in their Rule 56.1 statement. Vt. Teddy Bear Co., 373 F.3d at 244 (citation omitted).
III. DELIBERATE INDIFFERENCE STANDARD
To establish a violation of the Eighth Amendment arising out of inadequate medical treatment, a prisoner is required to prove "deliberate indifference to [his] serious medical needs."Estelle v. Gamble, 429 U.S. 97, 104 (1976). The deliberate indifference standard consists of both an objective and a subjective prong. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995).
Under the objective prong, the alleged medical need must be "sufficiently serious." Id. (internal quotation marks and citation omitted). A "sufficiently serious" medical need is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Id. (internal quotation marks and citation omitted).
Under the subjective component, the prisoner must show that the defendant officials acted with a "sufficiently culpable state of mind" in depriving the prisoner of adequate medical treatment.Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). As noted in Estelle, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment." 429 U.S. at 106; accord Harrison v. Barkley, 219 F.3d 132, 139 (2d Cir. 2000). Thus, "the subjective element of deliberate indifference 'entails something more than mere negligence'" although it requires "'something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Hathaway, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)); see Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (likening the necessary state of mind to "the equivalent of criminal recklessness" (internal quotation marks and citation omitted)); Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (per curiam) (same). In order to be found "sufficiently culpable," the official must "know of and disregard an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
While the medical care received by a prisoner must be adequate, a prisoner is not entitled to receive treatment by every medical alternative. See generally Estelle, 429 U.S. at 105-07. A mere difference of opinion between a prisoner and medical personnel regarding medical treatment does not rise to the level of a constitutional violation. See, e.g., Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Nor can deliberate indifference arise simply because an inmate prefers an alternative treatment or feels that he did not get the level of medical attention that he desired. See, e.g., Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Nonetheless, "[p]rison officials are more than merely negligent if they deliberately defy the express instructions of a prisoner's doctors." Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (citation omitted); see Zentmyer v. Kendall County, 220 F.3d 805, 812 (7th Cir. 2000) (prison officials may not "substitute their judgments for a medical professional's prescription"). "If a defendant consciously chose to disregard a nurse or doctor's directions in the face of medical risks, then he may well have exhibited the necessary deliberate indifference." Zentmyer, 220 F.3d at 812. Indeed, in some instances prison doctors may be held liable for the failure to provide medical care recommended by outside doctors. See, e.g., Woods v. Goord, 2002 WL 731691, at *4-*5 (S.D.N.Y. Apr. 23, 2002) (although inmate obtained regular medical care, claim for deliberate indifference stated where he alleged that prison doctors had delayed in complying with and/or had ignored the directives of specialists over several years).
A plaintiff alleging deliberate indifference need not produce "expert medical testimony." Hathaway, 37 F.3d at 68. However, a plaintiff "may not rely simply on conclusory allegations or speculation to avoid summary judgment, but instead must offer evidence to show that '[his] version of the events is not wholly fanciful.'" Morris v. Lindau, 196 F.3d 102, 109 (2d Cir. 1999) (quoting D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911 (1998)).
IV. DISCUSSION
A. Defendants' Motion for Summary Judgment
Cecilio's complaint alleges that the defendants were deliberately indifferent to his serious medical needs in the following ways: (1) the defendants failed to timely diagnose his "brain tumor," which Cecilio claims "was the source of [his] headaches and dizziness as early as 1997 through January 2001," Compl. ¶ 9(1); (2) the defendants failed to properly treat his "brain tumor" until he suffered seizures in January 2001, id. ¶ 9(2); (3) the defendants "fail[ed] to inform" him of test results which allegedly showed that he had a brain tumor, id. ¶ 9(3); and (4) the defendants delayed "a few weeks" in bringing him to a neurologist after his January 2001 seizures, id. ¶ 9(4).
Defendants do not argue that any of the claims are unexhausted. Rather, defendants have moved for summary judgment on the following grounds: (1) Cecilio has not demonstrated that any of the defendants were deliberately indifferent to his serious medical needs, see Def. Mem. at 8-15; (2) the claims against Dr. Lee and Dr. Milisevic are time-barred, see id. at 15-17; and (3) the defendants are entitled to qualified immunity, see id. at 17-20. Because there is no genuine issue as to any material fact on Cecilio's claim of deliberate indifference, there is no need to consider defendants' other two arguments.
While Cecilio's complaint asserts that he has a "brain tumor,"e.g., Compl. ¶¶ 8-9, the tests performed on Cecilio between 1993 and 2002 far from confirm that Cecilio has a tumor. Rather, the physicians who have examined Cecilio have arrived at different conclusions about what is causing Cecilio's headaches and dizziness and about what caused Cecilio's seizures. Several of the physicians opined that Cecilio has either a cysticercosis cyst or a cavernous angioma. See, e.g., LHR at 283; Radiology Reports at 064; Consultation Reports at 075, 077, 082; see also Block Decl. ¶ 5 (opining, after a review of all of Cecilio's medical records, that Cecilio does not have a brain tumor and instead likely has a cysticercosis cyst or a cavernous angioma). None of these doctors, however, has ever concluded that he has a "tumor." In any event, the Court assumes without deciding that there is sufficient evidence in the record to show that Cecilio suffers from a "sufficiently serious" medical condition to satisfy the objective prong of deliberative indifference analysis.
For purposes of the subjective prong of deliberative indifference analysis, however, the question is whether the defendants "kn[ew] of and disregarded" an excessive risk to Cecilio's health or safety — regardless of whether or not a "brain tumor" caused Cecilio's headaches, seizures, and other conditions. To answer this question, the Court will examine the treatment afforded Cecilio at each prison separately to determine whether the evidence demonstrates that any of the defendant physicians "kn[ew] of and disregarded" such a risk.
1. Cecilio's Treatment at Clinton
The record reflects that the physicians at Clinton — including Dr. Lee — attempted to address all of Cecilio's complaints through testing, medication, or both. When Dr. Lee was first informed of Cecilio's 1993 treatment at Lincoln for "attacks in [the] head" and "insects in [the] brain," he ordered Cecilio's medical records from Lincoln. AHR at 166; Cecilio Dep. at 49; Lee Decl. ¶ 3. Those records revealed that Cecilio had suffered a seizure in 1993 and that he had a lesion in his brain. See AHR at 248; LHR at 283, 301, 312. The records also included the opinion of physicians at Lincoln — who examined a CT scan performed on Cecilio's brain — that the lesion "may [have] represent[ed] a focus of infection such as toxoplasmosis or [cysticercosis]" but that they "[could not] rule out the possibility of a tumor." LHR at 312. In order to rule out this possibility, an MRI and another CT scan were ordered. See id. at 283, 301. The physicians who conducted these tests confirmed that Cecilio did in fact have a lesion, determined that it "most likely represent[ed] an abscess," and diagnosed Cecilio with "[cysticercosis, blastomycosis, tuberculosis] and less likely . . . mycosis and [histoplasmosis]." Id.
After Dr. Lee reviewed these records, he made a request for Cecilio to receive another MRI and another CT scan. Lee Decl. ¶ 4; AHR at 248; Cecilio Dep. at 49. He also recommended that Cecilio consult with an infectious disease specialist, that Cecilio's blood be tested, and that x-rays be performed. Id. The CT scan — performed 12 days after the request was made — revealed that there was a "tiny increased density" in Cecilio's head and that this was "consistent with" a "small calcified granuloma." Radiology Reports at 069. The CT scan also stated that acute hemorrhage would be "very unlikely" but that a small calcification or a small acute hemorrhage could have a "very similar appearance." Id. According to Dr. Lee, these tests revealed that Cecilio's condition "had not changed much in the four years since [Lincoln] conducted its tests" and that Cecilio did not have a brain tumor. Lee Decl. ¶ 4. Nevertheless, because Cecilio continued to complain of headaches on an almost daily basis into March 1997, a neurological examination was ordered and Cecilio was prescribed medication for his pain — Inderal and acetaminophen. Consultation Reports at 093.
None of this conduct amounts to deliberate indifference. First, there is simply no evidence of any brain tumor, let alone evidence of Dr. Lee's failure to diagnose it. Second, the record reflects that Dr. Lee made significant and timely efforts in attempting to diagnose whatever ailment besets Cecilio. Once he received and reviewed the Lincoln medical records — which noted that physicians "[could not] rule out the possibility of a tumor," LHR at 312 — Dr. Lee immediately made the request for Cecilio to have various examinations, including a CT scan, x-rays, an MRI, and a consultation with an infectious disease specialist. Lee Decl. ¶ 4; AHR at 248; Cecilio Dep. at 49. The CT scan was performed less than two weeks later. See Radiology Reports at 069. The tests revealed that Cecilio did not have a tumor. See Lee Decl. ¶ 4. In addition, Cecilio's headache complaints were timely addressed by Dr. Lee when he ordered a neurological examination and prescribed him two different types of medication for his pain. See Consultation Reports at 093.
Because the testing performed by Dr. Lee confirmed that Cecilio did not have a tumor, there was simply no need for Dr. Lee to treat a tumor. Moreover, Dr. Lee's testing led him to the opinion that Cecilio had a "small calcified granuloma," which was consistent with the Lincoln test results. Radiology Reports at 069; Lee Decl. ¶ 4. Cecilio has not offered any proposal as to how Dr. Lee should have acted when faced with this "small calcified granuloma." Defendants have indicated that such a granuloma is consistent with the condition called cysticercosis, which can cause lesions to form in the brain. See Block Decl. ¶ 5; Lee Decl. ¶ 4; Lancellotti Decl. ¶ 3. However, because calcified lesions are considered dead, anti-parasitic medications are not effective. Block Decl. ¶ 5; Lancellotti Decl. ¶ 3 n. 1; CDC on Cysticercosis. Thus, the record reflects that there was no need to treat Cecilio with such anti-parasitic medications.
Cecilio also complains that Dr. Lee neglected to tell him of the February 1997 tests results, which allegedly showed that he had either a "brain tumor" or an "infection." Compl. ¶ 9(3); Cecilio Dep. at 35; see Compl. ¶ 14 ("On February 25, 1997, Brain tests were performed on [Cecilio], where it was discovered by [Dr. Lee that] a brain tumor was present. [Yet Dr. Lee] did nothing, nor did he inform [Cecilio] that he had a potentially life threatening condition and more importantly what could be done about it."). But Dr. Lee did refer Cecilio to an infectious disease specialist, see AHR at 248, which Dr. Lee notes in an affidavit he has submitted in this case:
[Cecilio's] claim that he was not informed of his condition is belied by his own medical records, which show that the staff ordered tests that would have required [Cecilio's] written consent. [Cecilio] knew he was undergoing tests and in view of his experience at [Lincoln] and his presumptive knowledge of his diagnosis, he knew why he was undergoing tests. Although I have no recollection of speaking with him directly, it is my practice to discuss a patient's condition with him and to explain why diagnostic testing has been ordered. If the inmate does not speak English, I make every effort to have someone translate for me. Indeed, even crediting [Cecilio's] claim that he was not told of his condition, [Cecilio] was certainly aware, from [his stay at Lincoln], of the nature of his condition. The fact of the additional diagnostic testing would have suggested to him that the medical staff was following up on his condition.
Lee Decl. ¶ 7.
In sum, there is no evidence to show that Dr. Lee "kn[ew] of and disregarded" any risk — let alone an "excessive risk" — to Cecilio's health or safety. Thus, Cecilio has not met his burden of producing evidence to show that Dr. Lee was deliberately indifferent to his medical needs.
2. Cecilio's Treatment at Eastern
The record of Cecilio's treatment at Eastern is similarly devoid of evidence of deliberate indifference. Rather, the record reflects that attempts were made to address all three of Cecilio's complaints of headaches during his incarceration there.See AHR at 207; Def. 56.1 ¶ 27. Dr. Milisevic prescribed him Tylenol, aspirin, and Advil. Cecilio Dep. at 49. While Cecilio implies that these medications were not working, there is absolutely no evidence that he told Dr. Milisevic — or any other physician at Eastern — that these medications were ineffective. Moreover, even had he done so, Cecilio has produced no evidence as to what these physicians should have instead prescribed him or otherwise done for his condition.
The only other complaint made by Cecilio at Eastern was for blurred vision and red eyes. See AHR at 207. But notwithstanding the fact that Cecilio does not even allege in his original complaint that his eye problems were serious in nature, the record reflects that he received proper medical attention for these complaints as well. Dr. Milisevic's examination of Cecilio led her to believe that Cecilio might have glaucoma and so, on September 28, 1999 and October 25, 1999, she referred him for ophthalmological testing. Id.; Consultation Reports at 209-11;accord Cecilio Dep. at 29-30. These efforts doom Cecilio's claim that Dr. Milisevic was deliberately indifferent to his eye complaints.
3. Cecilio's Treatment at Woodbourne
Cecilio claims that Dr. Lancellotti was deliberately indifferent for failing to timely diagnose his condition, for failing to properly treat his condition, and for delaying "a few weeks" in bringing him to a neurologist after his seizures in January 2001. See Compl. ¶¶ 9(1)-(2), (4).
Once again, not only are Cecilio's claims of deliberate indifference unsupported by the record, the evidence that does exist suggests just the opposite. With respect to the failure-to-diagnose claim, Dr. Lancellotti has submitted an affidavit in this case in which he indicates that, when he first consulted with Cecilio prior to his having the January 2001 seizures, he was likely aware — from reviewing Cecilio's medical history chart — that Cecilio had been diagnosed as having small calcifications in his brain that were probably a remnant of an old brain infection, such as cysticercosis or a cavernous angioma. See Lancellotti Decl. ¶ 3. Because neither condition is generally considered to be life threatening and because calcified lesions are considered dead, see Block Decl. ¶ 5; Lancellotti Decl. ¶ 3 n. 1; CDC on Cysticercosis, there was simply nothing that would have indicated to Dr. Lancellotti or to other Woodbourne physicians that Cecilio was in need of any medications above and beyond what he had already been taking prior to his transfer to Woodbourne. Therefore, there is no genuine issue of material fact as to Cecilio's failure-to-diagnose claim as Cecilio has not even shown a negligent failure to diagnose.
Cecilio's failure-to-treat claim fares no better. After Cecilio's seizure on January 12, 2001, he was treated by Dr. Makram, who was the physician on duty at Woodbourne that day. AHR at 196; see Lancellotti Decl. ¶ 4. Cecilio was prescribed an anti-seizure medication (Dilantin) and was given a shot of Imitrex, a headache medication. AHR at 196; Cecilio Dep. at 39. He was also referred to a neurologist for a follow-up. AHR at 196. Cecilio does not indicate what Dr. Lancellotti, Dr. Makram, or any other Woodbourne physician should have done instead of or in addition to this. Without such information it cannot be said that the treatment that was afforded Cecilio immediately after his January 12 seizure was in any way inadequate.
Concerning Cecilio's January 14, 2001 seizure, he alleges that there was a delay in calling the health clinic immediately after he experienced the seizure. See Cecilio Dep. at 24-26. He also states that, following his observation at the clinic, he was returned to his cell and the doctors "didn't want to see [him] again." Id. at 26. But there is no evidence to support either of these contentions. Rather, the medical records indicate that the clinic received a call at 12:05 a.m., that five minutes later a nurse saw Cecilio in his dormitory, where he was described as being "alert" and "oriented," and that he was again visited at 1:30 a.m., where he was described as sleeping with no apparent difficulties. AHR at 195. When Cecilio did again complain at 2:10 a.m. of feeling nauseated and dizzy and of having a headache, the nurse first attempted to treat him with Imitrex. Id. at 194. But because Cecilio stated that he had experienced aftereffects from Imitrex when he was given the shot after his seizure on January 12, the nurse instead gave him Fioricet. Id.; accord id. at 193. In addition, the nurse ascertained that Cecilio's vital signs were stable and assured him that he would see a physician on January 16. Id. at 194. And, indeed, Cecilio did see a physician on January 16. Id. at 193. Dr. Makram examined Cecilio on January 16 and indicated in his report that Cecilio had stated to him that the Fioricet prescription was working "better." Id. But because Dr. Makram was "unclear of seizure activities," he referred Cecilio to Albany for a CT scan, marking the request as "urgent." Id.; Consultation Reports at 091. The CT scan was performed at Albany on January 22. Radiology Reports at 064. Thus, Cecilio's contention that there was a "delay of a few weeks" after his January 14 seizure in bringing him to a neurologist, Compl. ¶ 9(4), which he "imagine[d]" was Dr. Lancellotti's fault, Cecilio Dep. at 24, is entirely unsupported. Moreover, the general claim that Woodbourne physicians did not adequately treat his condition immediately following the seizures is also without support. Certainly, there is nothing to suggest that these physicians acted with deliberate indifference to his medical needs.
Cecilio's treatment in the months following his seizures also does not reflect any deliberate indifference. The Albany CT scan (and follow-up MRI) "[e]ssentially . . . revealed that [Cecilio's] condition had not changed much at all since 1997" and that he did not have a brain tumor. Lancellotti Decl. ¶ 4. Indeed, the doctors who performed these examinations opined that Cecilio had a "[f]ocal infection" and that toxoplasmosis and cysticercosis were consistent with the lesion in his brain. Radiology Reports at 064. Cecilio apparently believes that these tests showed that he has a brain tumor and that Dr. Lancellotti was obligated to inform him of this. See Compl. ¶ 9(3). But the reports make no mention of a tumor. See Radiology Reports at 060, 064. Moreover, only a week after the MRI was performed Dr. Lancellotti referred Cecilio for another neurological examination in order to follow-up on the Albany results. See Consultation Reports at 082. Dr. Dentinger's neurological examination on February 21, 2001 revealed that Cecilio likely had "toxoplasmosis or cysticercosis" caused by an "old brain infection" and that he should continue taking Dilantin, which he had been taking ever since his January 2001 seizures. Id.; accord Lancellotti Decl. ¶ 5; Cecilio Dep. at 5, 39.
Later, in May 2001, Cecilio complained of more frequent and intense headaches. See Consultation Reports at 089. But there is no evidence of deliberate indifference to these complaints either. On May 16, 2001, a neurologist examined Cecilio and concluded that his seizures were "well controlled," that his headaches were "probably migraine," and that he should both continue Dilantin and be prescribed Elavil for his migraine pains. Id. Cecilio now states that Elavil is not working. See Cecilio Dep. at 40-41. But there is no evidence that Cecilio told any physician that Elavil was not working. Moreover, he is currently taking three different pain medications for his headaches — Elavil, Ultram, and Depakote, see id. at 5, 39-40, 44-45 — at least some of which he admits are working "[a] little," id. at 45. Thus, it is clear that the physicians have made and are continuing to make efforts to remedy Cecilio's headaches through a variety of prescriptions. In any event, merely that certain of the medications are not working does not constitute proof that the physicians are acting or acted in the past with deliberate indifference to Cecilio's medical needs. Indeed, the record clearly reflects that they are trying different medications in an attempt to combat Cecilio's migraines. Accord id. (stating that his Woodbourne doctors are "trying to find out what [he] should take for [his] headache").
The record also reflects that Cecilio received adequate medical attention throughout the balance of 2001 and 2002. A neurological examination was conducted on September 12, 2001, which revealed that Cecilio's seizures were being controlled by Dilantin. See Consultation Reports at 088. Dr. Dentinger examined Cecilio on January 2, 2002 and increased his Depakote prescription. Id. at 090. The following day, Dr. Lancellotti requested a three-month follow-up neurological appointment. Id. This examination was conducted on March 27, 2002. Id. The consulting neurologist indicated that Cecilio's seizures were "well controlled," that Cecilio should continue taking Depakote and Elavil for his headaches, and that he also be prescribed Motrin. Id. A follow-up MRI was conducted at the consulting neurologist's request on June 5, 2002. Id. at 077. The doctor who took the MRI opined that Cecilio had a cavernous angioma but that he wanted a second opinion to determine whether surgery was required. Id. The next day, Dr. Lancellotti referred Cecilio for a neurosurgical consultation. Id. at 075. The consulting physician confirmed that Cecilio's lesion was "likely [a] cavernous angioma," that he had "[n]o neurological deficit," that the cavernous angioma was "[n]ot responsible for headaches," and that "[n]o neurosurgical intervention" was required. Id. He recommended that "neurology treat possible migraine" and that Cecilio "[r]emain on anticonvulsants." Id. The final set of medical records — from December 2002 — indicates that Dr. Lancellotti had been informed by a neurologist that Cecilio should continue at 300 milligrams/day of Dilantin because 400 milligrams/day would cause side effects. AHR at 012.
While it is not clear from his complaint that Cecilio is alleging that his eye problems are serious, he was referred for ophthalmological testing on September 18, 2000, November 8, 2000, May 1, 2001, June 22, 2001, and November 13, 2002. Consultation Reports at 099-101, 109, 111. He has continued to undergo routine ophthalmological checkups (every three or four months) and he is currently taking lubricating eye drops. Lancellotti Decl. ¶ 6; Cecilio Dep. at 29-30. Put simply, there is no evidence that any complaints regarding his eye problems have been ignored or somehow inadequately addressed.
In sum, the record is replete with evidence that Cecilio's seizures and complaints of headaches, dizziness, and eye problems have been timely addressed by Woodbourne physicians. He has not had any seizures since January 14, 2001. Cecilio Dep. at 39. In addition, every four to six months Cecilio undergoes a CT scan and he regularly sees neurologists to follow up on his condition and on his headaches. Lancellotti Decl. ¶ 6; Cecilio Dep. at 42. His most recent visit to a neurosurgeon once again resulted in the determination that he did not need surgery. Lancellotti Decl. ¶ 6. Moreover, there is no gap in Cecilio's treatment that would indicate any delay in providing him with adequate medical treatment. Thus, the physicians at Woodbourne have rendered adequate medical treatment.
While Cecilio may not be happy with the methods used in his treatment or with the medications being prescribed by his physicians, no claim of deliberate indifference arises simply because Cecilio prefers an alternative treatment or feels that he did not get the level of medical attention that he desired.See, e.g., Estelle, 429 U.S. at 105-07; Chance, 143 F.3d at 703; Dean, 804 F.2d at 215. All that Cecilio is entitled to under the Constitution is "adequate" medical treatment. E.g., Chance, 143 F.3d at 703. In addition, while Cecilio has stated that he believes the defendants were "negligen[t]" in treating him, Cecilio Dep. at 55, a showing of deliberate indifference requires something "'more than mere negligence.'" Hathaway, 99 F.3d at 553 (quoting Farmer, 511 U.S. at 835). Cecilio has offered nothing other than conclusory allegations and speculation to support his claim of deliberate indifference. Without any evidence in support of his claim, it must necessarily fail.See, e.g., Morris, 196 F.3d at 109.
Accordingly, defendants' motion for summary judgment should be granted.
B. Cecilio's Motion for Leave to Amend
Cecilio has also moved for leave to amend his complaint. See Apr. 13, 2004 Ltr. Although Cecilio was explicitly ordered to provide a copy of a proposed amended complaint, see Apr. 5, 2004 Memo. End., much of the document he labels "Amended Complaint" reads more as argument in support of amending the complaint rather than as a proposed amended complaint itself. In any event, Cecilio summarizes the difference between his proposed complaint and his original complaint as follows:
[T]he basis of the original complaint was misunderstood by the court and the Office of the Attorney General in that [Cecilio] at no fault of his own but because of a misreading of professional medical records, by a layman (namely a Law clerk at [Woodbourne]) who misread [sic] said medical records made the determination to state in the original complaint that [Cecilio] suffered from a "Brain Tumor."
. . . .
[Cecilio] seeks leave to amend his pleading theory in that the Law Clerk originally addressing his issue mis-wrote the actual application of the medical condition namely a cysticercosis cyst, that is now active.
Am. Compl. ¶¶ 2, 6; see also Apr. 1, 2004 Ltr. at 2 ("[Cecilio], a layman of the law[,] settled for the use of the term 'brain Tumor' because he went to a Law Clerk to address this problem, and not speaking [E]nglish depended on the understanding of such clerk who misinformed him of a Brain Tumor, when in fact it should have read 'Benign Brain condition.'"). Cecilio provides virtually no factual allegations in the proposed amended complaint, apparently believing that it incorporates by reference the allegations of the original complaint. The few factual allegations he makes constitute essentially a reargument of the significance of the evidence adduced during discovery. See Am. Compl. ¶¶ 7-9. He concludes by stating that he seeks "to only Amend the conditions of the original complaint and claim in thatthe facts remain the same." Id. ¶ 12 (emphasis added).
1. Law Governing Motions for Leave to Amend
While generally "leave [to amend a complaint] shall be freely given," Fed.R.Civ.P. 15(a), "'[u]ndue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party . . . [or] futility of amendment' will serve to prevent an amendment prior to trial," Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) (quotingFoman v. Davis, 371 U.S. 178, 182 (1962)); see also State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981) (indicating that undue delay alone is an insufficient basis upon which to deny leave to amend and that an accompanying showing of bad faith or undue prejudice is required). A proposed amendment is futile when it fails to state a claim. See, e.g., Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990). Thus, it is settled that a court may deny leave to file a proposed amended complaint where "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Ricciuti, 941 F.2d at 123 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Normally, a motion for leave to amend is adjudicated without resort to any outside evidence. See, e.g., Nettis v. Levitt, 241 F.3d 186, 194 n. 4 (2d Cir. 2001) ("Determinations of futility [of amendment] are made under the same standards that govern Rule 12(b)(6) motions to dismiss."); see also Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989) ("On a motion to dismiss, the district court must limit itself to a consideration of the facts alleged on the face of the complaint and to any documents attached as exhibits or incorporated by reference." (citations omitted)). However, "the rule is different where, as here, the [motion for leave to amend] is made in response to a Fed.R.Civ.P. 56 motion for summary judgment," Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). In such a situation, "even if the amended complaint would state a valid claim on its face, the court may deny the amendment as futile when the evidence in support of the plaintiff's proposed new claim creates no triable issue of fact and the defendant would be entitled to judgment as a matter of law under Fed.R.Civ.P. 56(c)." Id.; accord Stoner v. N.Y.C. Ballet Co., 2002 WL 523270, at *14 n. 10 (S.D.N.Y. Apr. 8, 2002) (denying motion to amend seeking to add claim which "might survive a motion to dismiss" but would "immediately be subject to dismissal on a motion for summary judgment"); Azurite Corp. v. Amster Co., 844 F. Supp. 929, 939 (S.D.N.Y. 1994) (denying plaintiff leave to amend complaint where proposed amendment "would be futile because the factual foundations of [plaintiff's] new allegations are insufficient, as a matter of law, to withstand defendants' motion for summary judgment"), aff'd, 52 F.3d 15 (2d Cir. 1995).
2. Discussion
The proposed amendment is obviously futile. Even after combining the factual allegations of the proposed complaint with those in the original complaint — which Cecilio apparently believes is the effect of his submitting the proposed amended complaint — the only new items alleged by Cecilio are that his headaches, seizures, and dizzy spells are caused by a "cysticercosis cyst" (rather than a "brain tumor," which he alleged in the original complaint) and various other statements concerning his eye problems, such as that he suffers from "los[s] of vision" and "partial sight" and that the problems are "life threatening." Am. Compl. ¶¶ 2, 4-6, 8-9, 11; see also Apr. 1, 2004 Ltr. at 2 (stating that an amendment is needed "to reflect [Cecilio's] partial lost [sic] of vision, the lack of treatment for his eyes, etc."). In other words, as Cecilio himself concedes, "the facts remain the same." Id. ¶ 12 (emphasis added). But, as described above, defendants are entitled to judgment as a matter of law on the ground that Cecilio's medical treatment does not reflect any deliberate indifference to his medical needs.
That Cecilio now alleges that his ailments are caused by a "cysticercosis cyst" rather than a "brain tumor" has absolutely no effect on the defendants' argument that there is no evidence to show that Cecilio's doctors were deliberately indifferent to his medical needs. In addition, as explained above the record is clear that Cecilio has seen — and continues to see — an ophthalmologist on a regular basis, see Consultation Reports at 099-101, 109, 111; Lancellotti Decl. ¶ 6; Cecilio Dep. at 29-30;see also Cecilio Dep. at 30 (indicating that Cecilio is currently taking lubricating eye drops). Thus, there is no triable issue of fact on these claims and, a fortiori, any amendment that merely changes the nomenclature of the original complaint would be futile. See, e.g., Milanese, 244 F.3d at 110.
Cecilio also states that his due process rights were violated when the Court rejected his initial application for leave to amend. See Am. Compl. ¶¶ 15, 17. This claim is meritless for a number of reasons. First, the Court denied his application because he failed to include a copy of a proposed amended complaint. See Apr. 5, 2004 Memo. End.; see also, e.g., Smith v. Planas, 151 F.R.D. 547, 550 (S.D.N.Y. 1993) (explaining that "a complete copy of the proposed amended complaint must accompany the motion [for leave to amend] so that both the Court and opposing parties can understand the exact changes sought" and that, "[w]here the proposed amended complaint does not accompany the motion to amend," the court "may deny the motion without prejudice" (citations omitted)). In addition, Cecilio has not suffered any prejudice by the Court's denial since he was granted leave to renew his motion, see Apr. 5, 2004 Memo. End., which he exercised by submitting a copy of his proposed amended complaint.
In addition, Cecilio's motion should be denied on the ground that he unduly delayed in bringing it with the result that any amendment now would cause undue prejudice to the defendants. The excuse Cecilio proffers for moving for leave to amend at this stage of the litigation — after discovery has already concluded and defendants have filed a motion for summary judgment — is that he does not speak English and that a prison law clerk erred in reading Cecilio's medical records to reflect that he had a "brain tumor." See, e.g., Am. Compl. ¶¶ 2, 6; Apr. 1, 2004 Ltr. at 2. But — putting aside the point that the existence of a brain tumor is not germane to defendants' argument that there was no deliberate indifference to Cecilio's medical needs — Cecilio was under an obligation to make this correction earlier, instead of waiting until after discovery had concluded and defendants had filed their motion for summary judgment. See, e.g., Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 88 (2d Cir.) ("[A] proposed amendment . . . [is] especially prejudicial . . . [when] discovery had already been completed and [the non-movant] had already filed a motion for summary judgment." (internal quotation marks and citation omitted)), cert. denied, 525 U.S. 1041 (1998); Cresswell v. Sullivan Cromwell, 922 F.2d 60, 72 (2d Cir. 1990) (affirming denial of leave to amend complaint where plaintiffs offered no satisfactory explanation for making their motion until over one month after discovery had concluded and after defendant had moved for summary judgment), cert. denied, 505 U.S. 1222 (1992); Messier v. Southbury Training Sch., 1999 WL 20907, at *4 (D. Conn. Jan. 5, 1999) ("The classic situation where courts deny leave to amend arises when a party files a Rule 15(a) motion after discovery has been completed or the nonmoving party has filed for summary judgment." (emphasis in original) (citing cases)); see also Juncewicz v. Patton, 2002 WL 31654957, at *6 (W.D.N.Y. Oct. 8, 2002) ("[D]enial of leave to amend is especially appropriate 'where it appears that a [party's] purpose in asserting a new claim is [his] anticipation of an adverse ruling on the original claims.'" (quoting Bymoen v. Herzog, Heine, Geduld, Inc., 1991 WL 95387, at *1 (S.D.N.Y. May 28, 1991))). As previously noted, the existing record is sufficient to defeat the proposed amended complaint. But even if Cecilio could point to some additional discovery that would be relevant to that new complaint, it would be unfair to impose on defendants the burden of conducting such discovery now — including, for example, obtaining another expert and/or re-deposing Cecilio — and of making a second motion for summary judgment. See, e.g., James v. United States, 2003 WL 22149524, at *5 (S.D.N.Y. Sept. 17, 2003) (denial of leave to amend complaint is appropriate where fact discovery is completed and the proposed amendment would require the re-opening of fact discovery and a new round of expert discovery).
Accordingly, Cecilio's motion for leave to amend his complaint should be denied.
Conclusion
For the foregoing reasons, defendants' motion for summary judgment should be granted and Cecilio's motion for leave to amend his complaint should be denied. Judgment should be entered in favor of the defendants.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections.See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Lewis A. Kaplan, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Kaplan. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).