OPINION AND ORDER

ROBERT P. PATTERSON, JR., U.S.D.J.

Defendants, Dr. Lester Silver and Physician's Assistant ("P.A.") Donna Zaken, move for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants' motion is granted.

In January 1998, Plaintiff commenced this action, brought pursuant to 42 U.S.C. § 1983, alleging that numerous employees of the New York State Department of Correctional Services ("DOCS") had denied him adequate medical care in violation of his rights guaranteed by the Eighth and Fourteenth Amendments while he was imprisoned.

On June 11, 1999, the Court granted a motion to dismiss pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12(b)(6) against all defendants other than Dr. Lester Silver and P.A. Donna Zaken. On December 11, 2000, after the close of discovery, the remaining defendants filed this motion for summary judgment pursuant to Fed.R.Civ.P. 56. On January 16, 2000, Plaintiff wrote the Court that he was unable to oppose the motion because he was unable to obtain legal help in the DOCS facility to which he had been transferred, that he is a layman in the law, an illiterate person who suffers from a mental disease and that he cannot conduct the case unaided. Plaintiff also objected to Defendants' entire motion for summary judgment "because plaintiff contends there is genuine issues of fact to be tried." On October 10, 2001, Plaintiff, having been transferred to a different DOCS facility, submitted an Opposition to Defendant's Motion for Summary Judgment. On November 2, 2001, Defendants submitted a Reply Memorandum in Support of their Motion for Summary Judgment.

Defendants' assert Plaintiff has failed to exhaust the claims brought in his complaint against Defendants Silver and P.A. Zaken except the claims against P.A. Zaken on February 2, 1995 and February 3, 1995. (Mem. of Law in Supp. of Defs.' Mot. for Summ. J. at 6.) Plaintiff does not deny that he has failed to exhaust claims against Defendants Silver and P.A. Zaken, and requests that only his unexhausted claims should be dismissed. (Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 6.) The Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997(e), provides that "No action shall be brought with respect to prison conditions under section 1983 of this title . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Therefore, all claims against Silver and P.A. Zaken are hereby dismissed except for those claims against P.A. Zaken relating to the denial of medical care on February 2, 1995 and February 3, 1995 because those claims are admitted to have been exhausted administratively.

I. Facts

It is undisputed that prior to incarceration Plaintiff suffered a gun shot wound to his right knee on November 5, 1990 which necessitated surgery which he underwent to have the bullet removed. (Pl.'s Rule 56.1 Statement, ¶ ¶ 2-3.) After Plaintiff was incarcerated in DOCS facilities, he reinjured his right leg on: October 28, 1992; July 9, 1994 (baseball injury); August 10, 1994 (soccer injury); August 16, 1994; October 5, 1994 (walking); December 10, 1994 (slip and fall); February 2, 1995 (fall down stairs). (Pl.'s Rule 56.1 Statement, ¶ ¶ 10-48.) Plaintiff visited orthopedists on July 19, 1994 and September 16, 1994, but the rupture of the anterior cruciate ligament ("ACL") was not diagnosed until March 8, 1995. (Id. at ¶ ¶ 25, 33, 59.) It was confirmed by a magnetic resonance imaging ("MRI") on May 11, 1995, and he underwent reconstructive knee surgery on August 25, 1995.

With respect to the events of February 2, 1995 and February 3, 1995, Defendant P.A. Zaken has filed a Declaration relying on the notes she made on those days, stating that on February 2, 1995, Plaintiff complained to her of injuries to his lower back, head, and right side due to a fall down stairs at the facility and Plaintiff stated that he had slid down steps on right side of his body and head; that she determined that Plaintiff was alert and oriented, that there were no hematomas, no abrasions, and no ecchymosis, or black and blue marks; there was no pain or palpation of plaintiffs ribs and back; and her examination of the head was unremarkable; that she also determined that, as Plaintiff requested medical confinement for unclear reasons as there were no apparent injuries, there was a psychological component to Plaintiffs condition, and asked Plaintiff if he wanted to speak with someone in Psychiatric Services Unit, but Plaintiff declined. (Decl. in Supp. of Summ. J., ¶ 12.)

Plaintiff admits that he was examined by Defendant P.A. Zaken on February 2, 1995 and by her examination, she concluded he did not have any injuries. (Pl.'s Rule 56.1 Statement, ¶ 49.) He asserts however, that despite the fact she had previously treated Plaintiffs chronic condition of knee instability, pain, and swelling, and was well aware of his condition, she proclaimed that there was nothing wrong with Defendant and that he was mentally insane due to his continuous complaints to his knee stating, "Are you having problems with correction officers or other inmates? Would you like to see someone in the Psychiatric Satellite Unit? There is obviously some component here — as there does not appear to be any medical condition. Will notify security." (Id. at ¶ 50.) He also asserts that, due to Defendant P.A. Zaken notifying security and informing them that Plaintiff does not have an injury, he was moved from the flats to the third floor. (Id. at ¶ 51.)

On February 3, 1995, Plaintiff was again seen by P.A. Zaken in the medical clinic. According to her Declaration, he complained of back stiffness and requested medical unemployment which she denied; she ordered an outside consultation for the orthopedist for Plaintiffs complaints of his right knee; ordered Flexeril for muscle spasms of Plaintiffs back and decided that an MRI might not be feasible due to the possibility of it causing a shift in the metal fragments in Plaintiffs knee. (Decl. in Supp. of Defs.' Mot. for Summ. J., ¶ 13.)

On February 3, 1995, according to Plaintiff, he strongly expressed to P.A. Zaken that she had misdiagnosed him the day before because his condition had gotten worse. (Pl.'s Rule 56.1 Statement, ¶ 52.) He requested medical confinement, which she denied, and she prescribed some painkillers for him. (Id.; Ex. B, 564.) Plaintiff does not deny that P.A. Zaken referred him to an orthopedist.

On March 8, 1995, Plaintiff was examined by the orthopedist and the orthopedist recommended that he have an MRI exam. (Id.; Pl.'s Rule 56.1 Statement, ¶ 59.) On May 11, the MRI was performed and on July 11, 1995, the orthopedist confirmed the MRI showed a need for surgery and scheduled him for reconstructive knee surgery which was performed on August 25, 1995. (Id. at ¶ ¶ 63, 66.)

II. Deliberate Indifference Standard

In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove, "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976). There is both an objective and subjective component to this test. To satisfy the objective prong, the alleged deprivation must be "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). There must be "a condition of urgency, one that may produce death, degeneration or extreme pain." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (citations omitted). The subjective prong requires that the defendant "must act with a sufficiently culpable state of mind." Id. An official acts with deliberate indifference when that official "knows of and disregards 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 v. Brennan, 511 U.S. 825, 837 (1994).

Plaintiff asserts that these facts constitute a triable set of facts against P.A. Zaken for deliberate indifference on February 2, 1995 and February 3, 1995: (1) Plaintiff had re-injured his right knee and was in extreme pain at the time he had been examined by Defendant P.A. Zaken; (2) subsequent review of Plaintiffs medical records show that he was suffering from an exacerbated injury to his right knee, but Defendant failed to diagnose the correct information, deliberately delaying Plaintiffs access to proper treatment; (3) she turned his injury into a mental health condition when she noted in his medical file, notified Security, and revoked his work limitation slip; and (4) released him from the clinic even though she knew he was in need of proper medical treatment. (Pl.'s Opp'n to Def.'s Mot. for Summ. J. at 9.)

Plaintiffs assertions, taken at face value, do not rise to the level of deliberate indifference. His complaint of extreme pain and deliberate delay of access to proper treatment does not meet the standard under the Eighth Amendment. Complaints of pain are subjective criteria not objective criteria upon which a medical practitioner has to rely in decisions for treatment. Also, a delay in treatment does not necessarily invoke the Eighth Amendment. The Second Circuit has "reserved such a classification for cases in which, for example officials deliberately delayed care as a form of punishment; ignored a `life-threatening and fast-degenerating' condition for three days, or delayed major surgery for over two years." Demata v. New York State Corr. Dept. of Health Servs., 1999 WL 753142 at *2, 198 F.3d 233 (2d Cir. Sept. 17, 1999) (citations omitted). Plaintiffs condition was neither "life threatening" nor "fast-degenerating." In Sharp v. Jeanty, 1993 WL 498095 at * 2 (S.D.N.Y. Nov. 30, 1993), the court found that Plaintiffs complaints of pain in his knee, that ultimately culminated in surgery, that were repeatedly ignored by defendant, even if true, would not by itself reach the Eighth Amendment standard. As in Sharp, Plaintiff does not proffer any information that demonstrates the necessary "hostile intent or deliberate indifference" on the part of P.A. Zaken. Tomarkin v. Ward, 534 F. Supp. 1224, 1231 (S.D.N.Y. 1982). Nor is the conduct he has alleged "repugnant to the conscience of mankind." Estelle v. Gamble, 429 U.S. at 105.

Plaintiffs assertion that subsequent review of his medical records show that he was suffering from an exacerbated injury to his knee, and that Defendant P.A. Zaken "failed to diagnose the correct information deliberately delaying Plaintiffs access to treatment" is at most an allegation of negligence or disagreement with a course of treatment which does not rise to the deliberate indifference standard. Chance v. Armstrong, 143 F.3d 698, 703 (1998). Estelle v. Gamble, 429 U.S. at 106-07 ("Thus, 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 . . . A medical decision not to order an x-ray, or like measures, does not represent cruel and unusual punishment.").

Plaintiff's assertion that P.A. Zaken turned his medical condition into a mental health condition is also, at best a claim for a difference in course of treatment. Defendant P.A. Zaken made a determination on February 2, 1995, seeing no apparent injuries and hearing his requests for medical confinement, that there might be a psychological component to his injury. In line with her assessment, she offered for him to speak to someone in the Psychiatric Satellite Unit. Even if her assessment was incorrect, this would only amount to a difference in opinion of course of treatment or negligence.

Plaintiffs claim that P.A. Zaken released him even though she knew he was in need of medical assistance is simply not founded on any facts. It is uncontested that P.A. Zaken ordered a pain killer for Plaintiffs complaints concerning his back and ordered an outside consultation for the orthopedist for Plaintiffs complaints of his right knee.

Additionally, Plaintiff did not have a sufficiently serious medical condition for purposes of the Eighth Amendment. Dr. Crane, Defendants' independent medical expert, states that a rupture of the ACL is a common knee injury and is often a chronic condition with which people may function well without operative intervention. (Mem. of Law in Supp. of Defs' Mot. for Summ. J. at 4-5.) He also opined that the period of time between Plaintiffs complaints and his knee surgery is also not unreasonable. Even using the date he first complained of a reinjury, on October 28, 1992, not the relevant dates of February 2, 1995 and February 3, 1995, and overlooking his sports injuries to his knee thereafter, it was less than three years until he had his knee surgery. In Demata v. New York State Corr. Dept. of Health Servs., 1999 WL 753142, 198 F.3d 233 (2d Cir. Sept. 17, 1999), Demata's knee injury occurred on February 23, 1994; in September of 1994, the knee was examined by an orthopedist who prescribed physical therapy and a knee support, and an MRI was done; Demata still complained of pain and was given Tylenol and more physical therapy; then, in March 1997, three years after his injury, additional medical consultations and MRIs culminated in knee surgery. Id. The Second Circuit noted, "strengthening exercises are in fact a form of medical care [and] Demata's mere disagreement with this form of treatment does not establish deliberate indifference." Id. at 3. In Culp v. Koenigsmann, No. 99 Civ. 9557 (AJP), 2000 WL 995495 (S.D.N.Y. July 19, 2000), the court found that Culp had not alleged sufficient facts to meet the standard of the Eighth Amendment. There was no evidence from which a reasonable juror could conclude that defendants acted with deliberate indifference to his well-being as Culp was seen frequently by prison medical staff and by outside consultants; he was given x-rays and an MRI, all of which were negative; and he was given medical treatment, even if conservative, of a cane, physical therapy and follow-up exams. Id. The court found the fact that there was a "delay" from injury to surgery of one year is at most a disagreement to the appropriate course of medical treatment. Id.

Plaintiff argues that Defendant acted purposefully in her deliberate indifference to Plaintiffs safety as she was aware of his pain and failed to provide access to immediate and necessary medical treatment. Complaints of pain are subjective indicia of injury, not objective indicia. As discussed above, Plaintiff is arguing with Defendant's course of treatment.

On both February 2, 1995 and February 3, 1995, P.A. Zaken completed reasonable examinations of the Defendant. At most, Petitioner's claims amount to disagreement with a course of treatment or negligence. The claims do not rise to deliberate indifference to a serious medical need.Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994. No reasonable juror could conclude that P.A. Zaken was deliberately indifferent to Plaintiffs medical needs. Summary judgment is granted.

III. Qualified Immunity

Qualified immunity gives officials protection from personal liability for damages under § 1983. Walker v. McClellan, 126 F.3d 127, 129 (2d Cir. 1997). Officials are entitled to such immunity as long as their "conduct does not violate clearly established statutory or constitutional right of which a reasonable person would have known." Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). As described above, P.A. Zaken's actions on February 2, 1995 and February 3, 1995 did not violate "clearly established statutory or constitutional rights" of the Plaintiff under established precedent in this Circuit or in the Supreme Court.

For the above reasons, Defendant P.A. Zaken is entitled to qualified immunity. The Defendants' motion for Summary Judgment is granted and the case is dismissed.

IT IS SO ORDERED.