Opinion
99 CIV. 3455 (DLC).
January 4, 2001.
Hector Gonzalez, Pro Se, Adirondack Correctional Facility, Raybrook, NY, For Plaintiff.
Richard C. Rubenstein, Assistant Attorney General Office of the New York State Attorney General New York, NY, For Defendants.
OPINION AND ORDER
On or about December 21, 1998, inmate Hector Gonzalez ("Gonzalez") filed this action under 42 U.S.C. § 1983 ("Section 1983") alleging, principally, indifference to his serious medical needs and seeking si million in damages. Since this action was transferred from the Northern District of New York, plaintiff has filed several amended complaints, the last of which was filed on March 20, 2000. Defendants' motion to dismiss was granted in part on March 13, 2000, and discovery concluded on September 8, 2000. The remaining two defendants, Joseph McGue ("McGue") and Dr. Herbert Bergamini ("the Doctor"), have now moved for summary judgment. For the following reasons, their motion is granted.
While plaintiff asserted in his deposition that he was additionally seeking injunctive relief, he does not request injunctive relief in his complaint.
BACKGROUND
While Gonzalez was incarcerated at the Downstate Correctional Facility on May 13, 1996, a fellow inmate cut his hair with clippers. Gonzalez contends that the clippers were "infected" with debris and dried blood, and he protested their use, but McGue ordered the other inmate to continue using the clippers on Gonzalez. Gonzalez asserts that the inmate nicked him with the clippers, that a bump started to form on his head a few hours later, and that he sought medical attention for the bump soon thereafter. The medical records kept by the Department of Correctional Services ("DOCS") reflect that Gonzalez first complained about a bump on his head during an examination about one year later, on May 12, 1997, and indicated that he wanted the bump removed at that time. DOCS records also reflect that, on October 9, 1998, a physician's assistant observed a skin lesion on Gonzalez's head that Gonzalez kept picking and squeezing. The notes reflect that the assistant believed the lesion could be either a "granuloma" (a skin irritation) or basal cell cancer.
The lesion was examined four days later, on October 13, 1998, by Dr. Bergamini. Dr. Bergamini graduated from Cornell Medical School and trained in general surgery at Bellevue. He has a private practice and is one of the doctors on staff at Adirondack Correctional Facility, where Gonzalez is currently incarcerated. After examining Gonzalez, the Doctor ordered a biopsy, since the lesion was consistent with basal cell cancer. According to the Doctor, basal cell cancer is a slow growing cancer that does not metastasize and is not life threatening.
When Dr. Bergamini examined Gonzalez again on March 12, 1999, he concluded that a biopsy was no longer necessary and diagnosed the condition as a partially plugged sweat gland, not cancer. The Doctor explains, in his affidavit, that a plugged sweat gland, which is also called a wen, is a lump under the skin filled with ordinary skin sebum. According to the Doctor, wens are treated — if at all — for cosmetic purposes only and do not pose any health risk. When the Doctor examined Gonzalez again on August 30, 2000, he observed a tiny lesion on the scalp with no break in the skin and concluded that this was consistent with a wen and inconsistent with cancer. The Doctor's affidavit indicates that in his 39 years of practice he has seen and treated hundreds of cases of basal cell and other forms of skin cancer. He is unaware of any scientific explanation for the origin of wens and is aware of no scientific basis from which one could conclude that being nicked by infected hair clippers would cause a wen.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "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." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record and (2) whether the facts in dispute are material based on the substantive law at issue.
Where, as here, a party is proceeding pro se, this Court has an obligation to "read [the pro se party's] 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, a pro se party's "bald assertion," completely unsupported by evidence, is insufficient to overcome a motion for summary judgment. Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
The Court provided plaintiff with a notice describing the requirements for opposing a motion for summary judgment in its March 6, 2000 Order, and defendants provided plaintiff with an additional notice describing these same requirements on October 13, 2000.
To state a claim under Section 1983 for inadequate medical care, "a plaintiff must show that the defendant acted with deliberate indifference to serious medical needs." Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (internal quotation omitted). The deliberate indifference standard has an objective and subjective component. Objectively, the inmate must have a medical condition that is "sufficiently serious." See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). A "serious medical condition" exists where "the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain." Harrison, 219 F.3d at 136 (internal quotation omitted). To meet the subjective component, a plaintiff must show that a defendant "knew of and disregarded the plaintiff's serious medical needs." Id. at 137. Mere negligence or medical malpractice does not constitute deliberate indifference see Hathaway, 99 F.3d at 553, nor do mere differences of opinion between the prisoner and the defendants concerning the proper course of treatment, see Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)
A. The Doctor
Gonzalez has failed to raise an issue of fact that would prevent entry of summary judgment against him on his claim against the Doctor. Accepting that the deliberate failure to treat basal cell carcinoma would constitute a violation of an inmate's constitutional rights, the plaintiff has nonetheless failed to provide sufficient evidence to raise a question of fact that he has such a condition or that the Doctor was deliberately indifferent to his medical needs by refusing to treat it. It did not constitute deliberate indifference to leave Gonzalez's skin condition untreated in October 1998 considering that basal cell cancer — the Doctor's early diagnosis — is slow growing, does not metastasize, and is not life threatening. Compare with Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000) (refusal to treat degenerative tooth cavity could constitute deliberate indifference to serious medical condition). The Doctor's ultimate failure to perform a biopsy, based upon his conclusion that basal cell carcinoma was not the cause of plaintiff's skin condition, does not constitute deliberate indifference to any serious medical condition. See Chance, 143 F.3d at 703; Hathaway, 99 F.3d at 553.
The papers submitted by the plaintiff in this case reflect a genuine and understandable concern over his skin condition. Fortunately for the plaintiff, a careful evaluation of the condition over the course of two years by a well-educated and competent physician has led to the conclusion that the condition is not cancerous and is not a health risk.
B. McGue
Plaintiff alleges that McGue violated his Eighth Amendment rights by ordering that his hair be cut with "infected" clippers. Whether McGue's actions met the subjective element of the deliberate indifference standard is a disputed question of fact. If McGue, for example, ordered that Gonzalez's hair be cut with clippers covered with blood from other inmates, plaintiff may be able to establish that McGue was, as a subjective matter, deliberately indifferent to Gonzalez's potential exposure to communicable disease. Compare with Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999) (prison officials' deliberate indifference to an inmate's exposure to environmental tobacco smoke can violate the Eighth Amendment). For the reasons already described, however, the plaintiff has failed to raise an issue of fact regarding the objective component of an Eighth Amendment claim. There is no medical evidence that being nicked by infected clippers can cause cancer, that the plaintiff has cancer, or that the plaintiff has any other serious medical condition.
Defendants' argument, based on the plaintiff's deposition testimony, that plaintiff's claims are based only in negligence is swiftly rejected. Plaintiff brought this complaint against both defendants under Section 1983, and a pro se plaintiff's statement in deposition that a defendant acted negligently is not the kind of admission that will bar his right to proceed in his Section 1983 claims.