Opinion
Case No. C2-01-646
September 27, 2002
OPINION AND ORDER
Plaintiff, Gary Nobles, a prisoner at the London Correctional Institution, filed this action against a number of officials from that institution, as well as a private physician, Dr. Patrick Ross, alleging claims pursuant to 42 U.S.C. § 1983 and the Eighth Amendment to the United States Constitution. All defendants have moved for summary judgment. Nobles has responded to those motions. The state defendants filed a timely reply memorandum in support of their motion, and Dr. Ross has moved for leave to file a reply memorandum, which motion (file doc. #36) is GRANTED. Nobles has also filed a reply to the replies. For the following reasons, the defendants' two motions for summary judgment will be granted and this case will be dismissed with prejudice.
I.
Summary judgment is not a substitute for a trial when facts material to the Court's ultimate resolution of the case are in dispute. It may be rendered only when appropriate evidentiary materials, as described in Fed.R.Civ.P. 56(c), demonstrate the absence of a material factual dispute and the moving party is entitled to judgment as a matter of law. Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464 (1962). The moving party bears the burden of demonstrating that no material facts are in dispute, and the evidence submitted must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144 (1970). Additionally, the Court must draw all reasonable inferences from that evidence in favor of the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654 (1962). The nonmoving party does have the burden, however, after completion of sufficient discovery, to submit evidence in support of any material element of a claim or defense on which that party would bear the burden of proof at trial, even if the moving party has not submitted evidence to negate the existence of that material fact. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986);Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). of course, since "a party seeking summary judgment . . . bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, the responding party is only required to respond to those issues clearly identified by the moving party as being subject to the motion. It is with these standards in mind that the instant motion must be decided.
II.
Nobles' complaint centers around his claim that, as a result of the deliberate indifference of the defendants, he developed histoplasmosis, and that he was subsequently denied proper medical treatment for that condition. Because his complaint is verified, the Court may consider the factual allegations in the complaint, together with the affidavits which have been filed in support of and in opposition to the defendants' motions. From those documents, the Court summarizes the facts of this case as follows.
Nobles arrived at the London Correctional Institution on December 1, 1997. At the end of that month, he was assigned a bunk in 6 dormitory and given a job as a dorm porter. Part of his job included cleaning the window ledges outside the dormitory. Nobles alleges that these ledges were covered with pigeon droppings.
Around the same time, London Correctional underwent a major renovation. Nobles alleges that, as part of the renovation, clouds of dust were created which also contained histoplasmosis. He asserts that, despite his exposure to pigeon droppings and contaminated dust, he was never offered any protective gear which would have prevented him from inhaling the substances.
Almost a year later, Nobles developed a pain in his right side and began to cough up blood. He was taken to the prison infirmary and later transferred to the Corrections Medical Center. A bronchoscopy performed by Dr. Estis at the Corrections Medical Center revealed a triangular mass in the right lung which could have been caused by, among other things, histoplasmosis. Approximately two months later, Dr. Ross, a private physician, performed a thorocotomy and wedge resection of the lower right lung. According to the operative report, the section removed from Nobles' lung was a "benign inflammatory mass." Ross Affidavit, Exhibit C. The pathology report on the tissue sample revealed mild interstitial fibrosis with chronic inflammation. The diagnosis included chronic inflammation with organization and pleural fibrosis. Nobles was discharged from the hospital four days later. Dr. Ross did not believe that any follow-up treatment was necessary, and, specifically addressing one of Nobles' claims, states in his affidavit that there were no clinical or medical indications for the administration of Pneumovax, a vaccine used in the treatment of pneumonia, because Nobles' lungs were normal after the procedure and the removed mass was benign in nature.
Perhaps because the initial report prepared after the bronchoscopy indicated that one possible cause of the mass in plaintiff's lung was histoplasmosis, plaintiff began to complain in May, 1999 about having contracted histoplasmosis. In response to his complaints, the defendants consistently advised him that he had never been diagnosed with, and did not suffer from, histoplasmosis. Nevertheless, Nobles continued to complain about problems with his lung, and also requested a transfer to another institution because of his belief that he was experiencing continued exposure to histoplasmosis. Nobles was treated for continuing problems with his lung, which was attributed to a fungal growth, and he was eventually issued a bottom bunk in a nonsmoking dormitory.
The state defendants have submitted, among other evidentiary materials, an affidavit from Dr. Adil Yamour, who is also one of the defendants and who served as the medical director at the London Correctional Institution from 1994 through 2002. Dr. Yamour explained in his affidavit that histoplasmosis is a disease caused by the inhalation of spores from a fungus. He states that typically it develops within a few weeks after exposure to the fungus. Dr. Yamour became aware that Nobles believed he had contracted histoplasmosis, and tests were performed on April 9, 1999 and April 20, 1999 to determine if that was so. The results of both tests were negative. Additional tests were administered in May, 1999, both of which were negative, and in April, 2000. Every test performed showed an absence of histoplasmosis fungus in Nobles' lungs. Dr. Yamour states that, based upon his review of Dr. Ross' records and the tests performed, that "[t]here is no medical evidence that histoplasmosis was the cause of the mass removed from Nobles' lung or that Nobles was diagnosed with histoplasmos is." Exhibit E to Defendants' Motion for Summary Judgment, paragraph 9.
Nobles has not submitted a single medical document which contradicts any of the statements made by Drs. Yamour and Ross in their affidavits. He did submit a wealth of documentation received from an attorney representing a plaintiff in another case arising out of the London Correctional Institution. Those documentary materials indicate that several employees of contractors performing renovations at London Correctional did contract histoplasmosis, and that there was an OSHA investigation of the work site. As a result of this problem, contractors' employees were instructed to wear protective gear to avoid further contact with histoplasmosis. These documents, while they demonstrate that histoplasmosis may have been present at the London Correctional Institution, shed no light on the question of whether Nobles suffered from histoplasmosis in 1999 or whether he has ever suffered from histoplasmosis. It is with these facts in mind that the pending motions will be decided.
III.
To establish an Eighth Amendment violation, a prisoner must show that he or she has a serious medical condition and that the defendants displayed a deliberate indifference to his or her health. Estelle v. Gamble, 429 U.S. 97 (1976); Wilson v. Seiter, 501 U.S. 294 (1991). InFarmer v. Brennan, 511 U.S. 825, 839 (1994), the Court adopted "subjective recklessness as used in the criminal law" as the appropriate definition for deliberate indifference. It held that "a prison official cannot be held liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety. . . ." Id. at 837. Officials must be aware of facts from which they could conclude that a substantial risk exists and must actually draw that conclusion. Id. Prison officials who know of a substantial risk to the health or safety of an inmate are free from liability if "they responded reasonably to the risk, even if the harm ultimately was not averted." Id. at 844.
Because an Eighth Amendment medical claim must be premised on deliberate indifference, mere negligence by a prison doctor or prison official with respect to medical diagnosis or treatment is not actionable under 42 U.S.C. § 1983. "[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. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994).
The defendants raise a number of different issues in their summary judgment motions, including a statute of limitations issue and the lack of exhaustion of administrative remedies as required by 42 U.S.C. § 1997e. Nobles has responded to those arguments by attaching copies of numerous grievances which he filed, and by arguing that because he did not become aware that he had a medical condition related to exposure to pigeon droppings until April of 1999, this case (which has an effective filing date of April 3, 2001) was filed within the applicable two-year statute of limitations. The Court need not reach any of these issues because it is plain that Nobles cannot establish that any medical condition from which he suffers occurred as a result of his exposure to the histoplasmosis fungus.
The Court must accept as true, for purposes of ruling upon the pending motions, that Nobles worked as a porter cleaning pigeon droppings from window ledges and that he also breathed in dust generated by the renovation activities at London Correctional. The documents which he submits indicate that it is possible that persons at the London Correctional Institution could have contracted histoplasmosis during the relevant time period. However, there is absolutely no evidence from which a reasonable person could infer that Nobles contracted that disease.
The initial bronchoscopy which was performed showed a mass present in Nobles' right lung which could have been caused by many things. The doctor's statement that one of several potential causes for that medical condition could have been histoplasmosis is insufficient to create an inference that histoplasmosis was, in fact, the cause of the condition. The undisputed medical evidence in the record, including the report from Dr. Ross, the pathology report, and Dr. Yamour's affidavit all indicate that after surgery, examination of the affected tissue, and the administration of multiple tests, there was no evidence that the mass was caused by histoplasmosis. Because the bulk of Nobles' complaints relate to his assertion that he was improperly exposed to histoplasmosis-containing droppings or dust and thereby contracted histoplasmosis, all of those claims lack a factual basis and must be dismissed.
Construing Nobles' complaint liberally, he also may claim that he was denied appropriate medical treatment after the mass on his lung was discovered. However, the record refutes this claim. As soon as he became symptomatic, he was examined by a number of doctors at his own institution, at the Corrections Medical Center, and finally at the Ohio State University Hospital. Appropriate procedures were performed to diagnose and treat his condition. He was subsequently tested again for histoplasmosis and appears to have received continuing treatment for his lung condition. Dr. Yamour's affidavit states that, as of his last examination of Nobles, Nobles was histoplasmosis-free and appeared to be in good health. Simply put, there is no evidence in this record from which a rational juror could conclude that any of the defendants demonstrated deliberate indifference to Nobles' lung condition after it was identified, whether or not that condition resulted from prior exposure to pigeon droppings or dust containing the histoplasmosis fungus.
As noted above, the Court cannot grant summary judgment where material facts are in dispute. In this case, the single most important factual issue is whether Nobles ever contracted histoplasmosis. On that question, there is not sufficient evidence from which a jury or judge could conclude that he did. That being so, summary judgment is clearly appropriate.
IV.
Based upon the foregoing, the motions of defendants for summary judgment (file docs. #30 and #31) are GRANTED. This case is DISMISSED WITH PREJUDICE. The Clerk is directed to enter judgment in favor of the defendants.