Opinion
11-P-595
02-21-2012
MARK AUSTIN GILDAY v. DONNA JURDAK & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mark Gilday, appeals from a judgment in favor of the defendants, entered on summary judgment, on his claims under the Federal and State Civil Rights Acts. See 42 U.S.C. § 1983 and G. L. c. 12, §§ 11H & 11I. Gilday, who is incarcerated at M.C.I., Norfolk, argues that a genuine issue of material fact exists as to whether Dr. Rebecca Lubelczyk was 'deliberately indifferent' to his serious medical needs, in violation of his civil rights under the Eighth Amendment to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights. We affirm substantially for the reasons stated by the motion judge and amplified in the defendants' brief at pages thirteen through twenty-three.
On appeal, Gilday has abandoned his claims against all other defendants and addresses only his claims against Dr. Lubelczyk, the Associate Program Medical Director for UMass Correctional Health (UMCH), which contracts with the Department of Correction to provide health care to incarcerated inmates.
The judge did not err in concluding that the record presented no genuine issue of material fact and that essential elements of Gilday's Federal and State Civil Rights claims based on Eighth Amendment and art. 26 claims of deliberate indifference were unlikely to be forthcoming at trial. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (Eighth Amendment claim requires prisoner to allege facts sufficient 'to evidence deliberate indifference to serious medical needs '); Torres v. Commr. of Correction, 427 Mass. 611, 615-616 (1998) (art. 26 standard requires assertion that prison official had knowledge of and ignored situation presenting substantial risk of serious harm).
Gilday's contention that Dr. Lubelczyk acted with deliberate indifference by delaying certain recommended courses of treatment utterly lacks factual support. See Langton v. Commr. of Correction, 34 Mass. App. Ct. 564, 572-574 (1993). His unverified complaint contains no specific factual allegations of deliberate indifference, nor did he file a supporting affidavit. In contrast, the defendants' statement of undisputed facts and Dr. Lubelczyk's sworn affidavit provided ample bases upon which the judge could conclude that Dr. Lubelczyk was appropriately attentive to Gilday's medical needs. Although there were delays in providing an MRI, a neurological consult, and ankle-foot orthotics, there is no indication that Dr. Lubelczyk caused the delays or acted with the intent wantonly to inflict pain. See ibid. Scheduling of the MRI was delayed because a special 'open' MRI was required due to Gilday's obesity. Gilday cannot claim he was harmed by the delayed receipt of orthotics he ultimately refused to use.
Far from deliberate indifference, the record clearly demonstrates that Dr. Lubelczyk and a team of other doctors consistently treated Gilday for various medical maladies including morbid obesity, foot drop, arthritis of the lower back, spinal stenosis, a history of cervical discectomy and fusion, and neuropathic pain. Dr. Lubelczyk and others informed Gilday that his morbid obesity was the cause of his discomfort and gave him nutrition, weight loss, and exercise recommendations with which he did not consistently comply. Additionally, Gilday regularly received various pain medications, steroidal injections, and physical therapy, and was administered an EMG test to determine the origin of his foot drop symptoms.
Judgment affirmed.
By the Court (Grasso, Fecteau & Sullivan, JJ.),