Opinion
9:10-CV-01033 (LEK/TWD)
04-19-2016
HOWARD PERRY, Plaintiff, v. AMANDA RUPERT, MARY CORYER, LAWRENCE SEARS, Defendants.
APPEARANCES: HOWARD PERRY Plaintiff, pro se 1760 Lexington Avenue #4H New York, New York 10029 HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants The Capitol Albany, New York 12224 OF COUNSEL: RYAN E. MANLEY, ESQ. Assistant Attorney General
APPEARANCES: HOWARD PERRY
Plaintiff, pro se
1760 Lexington Avenue
#4H
New York, New York 10029 HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Attorney for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: RYAN E. MANLEY, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge REPORT-RECOMMENDATION AND ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Howard Perry, a former inmate of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges that Defendants Amanda Rupert ("Rupert"), Mary Coryer ("Coryer"), and Lawrence Sears ("Sears") violated his Eighth Amendment rights by acting with deliberate indifference to his serious medical needs. (Dkt. No. 32.) As relief, Plaintiff seeks compensatory and punitive damages in the amount of ten million dollars. Id.
This matter is now before the Court on the parties' cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. Nos. 77, 80.) For the following reasons, the Court recommends granting Defendants' motion for summary judgment (Dkt. No. 77) and denying Plaintiff's cross-motion for summary judgment (Dkt. No. 80).
I. BACKGROUND AND PROCEDURAL HISTORY
At all times relevant to this action, Plaintiff was an inmate in the custody and control of DOCCS and housed at Ogdensburg Correctional Facility ("Ogdensburg"). (Dkt. No. 32 at 8.) Plaintiff alleges that nurses Rupert and Coryer repeatedly denied him medical care for painful abdominal injuries and that they were deliberately indifferent to his serious medical needs. Id. Specifically, Plaintiff claims that on July 9, 2008, after complaining of abdominal pain and vomiting, he was wrongly transferred to Clinton Correctional Facility ("Clinton") for psychiatric evaluation, instead of receiving emergent medical care for his abdominal pain. Id. Plaintiff further claims that Sears, as Superintendent of Ogdensburg, was responsible for the actions of the medical staff. (Dkt. No. 32 at 2-3, 10.)
Page numbers in citations refer to the page numbers assigned by the Court's electronic filing system rather than to the page numbers in the original document.
Rupert declares that she is a Registered Nurse licensed to practice in the State of New York. (Dkt. No. 78-1 at 1.) In 2008, she held the position of Nurse II at Ogdensburg. Id.
Coryer declares that she is a Registered Nurse licensed to practice in the State of New York. (Dkt. No. 78-2 at 1.) In 2008, she held the position of Nurse II at Ogdensburg. Id.
Plaintiff refers to both July 8, 2008, and July 10, 2008, as the date of the onset of symptoms in his Amended Complaint. (Dkt. No. 32 at 8.) However, the medical records attached to the Amended Complaint indicate July 9, 2008, as the onset date. Id. at 19. Plaintiff correctly states July 9, 2008, as the onset date in his cross-motion for summary judgment. (Dkt. No. 80.)
In June 2007, while in DOCCS custody, Plaintiff underwent ventral hernia reconstructive surgery. (Dkt. No. 32 at 8.) Thereafter, on or about July 9, 2008, Plaintiff experienced severe stomach pains, vomiting, and fatigue. Id. He was escorted to Ogdensburg's infirmary by two inmates. Id. Plaintiff alleges that the medical staff treated him "unprofessionally" and that he was refused proper care. Id. Plaintiff claims that "in deliberate spite," his condition was "treated like minor stomach pain." Id. Plaintiff alleges that the nursing staff had "indifferent attitudes" toward Plaintiff, and as a consequence, he received "poor treatment and disregard." Id. In addition, because Rupert and Coryer failed to promptly transfer Plaintiff to a medical doctor, Plaintiff alleges that he experienced major pain and suffering, including additional complications and surgeries, which "almost" cost him his life. Id. at 8, 10. Plaintiff further alleges that Rupert and Coryer were "unruly arrogant and deliberately manipulated the records and [their] colleagues to ensure the delay in his condition." Id. at 8.
Plaintiff filed his original Complaint on August 26, 2010. (Dkt. No. 1.) Plaintiff subsequently filed an Amended Complaint, which is the operative complaint in this action, on April 22, 2013. (Dkt. No. 32.) Rupert and Coyer filed an Answer on May 24, 2013. (Dkt. No. 37.) Sears filed an Answer on July 3, 2013. (Dkt. No. 43.)
The original Complaint named Ogdensburg Correctional Facility, Superintendent Carl Hunt, Upstate Medical University, Dr. Mustafa Hassan, and Ogdensburg Correctional Medical Staff as Defendants. Id. Upon initial review, the Court sua sponte dismissed all Defendants except for Defendant Superintendent Hunt. (Dkt. No. 4.) On August 31, 2012, the Court ordered Defendant Hunt to provide Plaintiff with the names of Ogdensburg's medical staff. (Dkt. No. 17.) On September 10, 2012, the Court denied Defendant Hunt's motion for summary judgement made on the grounds of lack of personal involvement subject to reconsideration after the completion of discovery. (Dkt. No. 26.) On April 22, 2013, the Court granted Plaintiff's motion to amend the Complaint naming Rupert, Coryer, and Sears as Defendants. (Dkt. No. 31.) The Court denied Plaintiff's request to further amend the Complaint to name Carl Hunt as a Defendant, and directed the Clerk to terminate Hunt from this action. Id.
On July 9, 2013, Defendants moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rule of Civil Procedure 12 on the grounds that Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act. (Dkt. No. 44.) By Report and Recommendation dated October 16, 2013, this Court recommended denying Defendants' motion for judgment on the pleadings and further recommended scheduling an evidentiary hearing on the exhaustion issue. (Dkt. No. 48.) Judge Kahn approved and adopted the October 16, 2013, Report and Recommendation in its entirety. (Dkt. No. 49.)
This Court conducted an evidentiary hearing on August 12, 2014. (Dkt. No. 67.) Plaintiff represented himself at the hearing, having been previously assigned pro bono counsel (Dkt. No. 50), but then later refusing the assigned counsel. (Dkt. Nos. 60, 61, 62.) By Report and Recommendation dated May 27, 2015, this Court recommended that Plaintiff be permitted to pursue the claims in his Amended Complaint (Dkt. No. 32) because Rupert was estopped from asserting the failure to exhaust defense and special circumstances existed preventing Plaintiff from exhausting his administrative remedies. (Dkt. No. 68.) Judge Kahn approved and adopted the May 27, 2015, Report and Recommendation in its entirety. (Dkt. No. 69.)
Defendants have now moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 77.) Plaintiff has opposed Defendants' motion and has cross-moved for summary judgment. (Dkt. Nos. 80, 81.) Defendants filed a reply brief, along with their opposition to Plaintiff's cross-motion for summary judgment. (Dkt. No. 84.) For reasons explained below, the Court recommends granting Defendants' motion for summary judgment (Dkt. No. 77), denying Plaintiff's cross-motion for summary judgment (Dkt. No. 80), and dismissing the Amended Complaint (Dkt. No. 32) in its entirety with prejudice.
II. APPLICABLE LEGAL STANDARD
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Liberty Lobby, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 273 (citations omitted). The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory 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).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). In Jeffreys v. City of New York, the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." 426 F.3d 549, 554 (2d Cir. 2005) (emphasis in original). To defeat summary judgment, "nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Id. (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). Statements "that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged 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). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL 983876 at *3, 1999 U.S. Dist. LEXIS 16767 at *8 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
The Court will provide Plaintiff with copies of unpublished decisions in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76, 76 (2d Cir. 2009) (per curium).
When considering cross-motions for summary judgment, a court "must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Hotel Employees & Rest. Employees Union, Local 100 of New York, N.Y. & Vicinity v. City of New York Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (quoting Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993) (internal quotation marks omitted)).
III. DEFICIENCIES IN PLAINTIFF'S CROSS-MOTION AND OPPOSITION
As required under Local Rule ("L.R.") 7.1, Defendants have filed a statement of material facts with citations to the summary judgment record. (Dkt. No. 77-2.) Although Plaintiff has opposed Defendants' motion, Plaintiff failed to respond to the statement of material facts filed by Defendants as required under L.R. 7.1(a)(3). (See Dkt No. 81.) Under the rule, the opposing party's response to the movant's statement of material facts "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." L.R. 7.1(a)(3).
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the L.R. provides that facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." But see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Defendants provided Plaintiff with the requisite notice of the consequences of his failure to respond to their summary judgment motion. (Dkt. Nos. 77, 77-1.)
However, the Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted).
The Court has opted to review the entire record in this case. Moreover, because Plaintiff's Amended Complaint (Dkt. No. 32) is verified, the Court will treat it as an affidavit in opposition to Defendants' motion. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). However, Plaintiff's cross-motion for summary judgment (Dkt. No. 80) and opposition to Defendants' motion for summary judgment (Dkt. No. 81) are unsworn, and unsworn statements are generally inadmissible in opposition to a motion for summary judgment. See, e.g., Witzenburg v. Jurgens, No. CV-05-4827 (SJF)(AKT), 2009 WL 1033395, at *11, 2009 U.S. Dist. LEXIS 32126, at *5 (E.D.N.Y. Apr. 14, 2009) (unsworn declarations are inadmissible for purposes of Rule 56 and cannot be considered by the court in deciding the motion for summary judgment). Even so, on summary judgment motions involving pro se plaintiffs, courts have been known to consider unsworn submissions in opposition. See, e.g., Hamm v. Hatcher, No. 05 Civ. 503(ER), 2013 WL 71770, at *7, 2013 U.S. Dist. LEXIS 2203, at *19-20 (S.D.N.Y. Jan. 7, 2013) (to afford pro se plaintiff special solicitude, the court considered unsworn statements in his opposition papers but only to the extent based on personal knowledge or supported by other admissible evidence in the record, on the assumption that if the allegations were sufficient to raise an issue of fact, plaintiff would be given the opportunity to submit an affidavit properly attesting to the allegations); Robles v. Khahaifa, No. 09CV718 (HBS), 2012 WL 2401574, at *7, 2012 U.S. Dist. LEXIS 87834, at *20-22 (W.D.N.Y. June 25, 2012).
In deference to Plaintiff's pro se status, the Court will consider Plaintiff's unsworn opposition to Defendants' motion for summary judgment (Dkt. No. 81), and unsworn cross-motion for summary judgment (Dkt. No. 80). Plaintiff's statement of material facts largely consists of legal arguments and conclusory allegations, with few specific facts and limited citations to the record. (See Dkt. No. 80 at 8-10.) Thus, it fails to comply with the requirements of L.R. 7.1(a)(3). Under the rule, "failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion." L.R. 7.1(a)(3); but see Holtz, 258 F.3d at 73 (district court has broad discretion to overlook a pro se litigant's failure to fully comply with local rules). Given that Plaintiff, a pro se litigant, made a good faith effort to comply with L.R. 7.1, and Defendants were able to provide a response despite the deficiencies (Dkt. No. 84-2), the Court has concluded that Plaintiff's cross-motion should not be denied on the basis of failure to comply with the local rule.
However, the Court's review has revealed that Plaintiff's submissions contain very little in the way of admissible evidence. "Conclusory 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); Smith v. Rosati, No. 9:10-CV-1502 (DNH/DEP), 2013 WL 1500422, at *12, 2013 U.S. Dist. LEXIS 54402, at *39 (N.D.N.Y. Feb. 20, 2013) ("Mere conclusory allegations that are unsupported by any record evidence are insufficient to give rise to a genuine dispute of material fact."). Evidence must be based on personal knowledge. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988).
IV. ANALYSIS
A. Eighth Amendment Right to Receive Adequate Medical Care
Claims that prison officials have intentionally disregarded an inmate's serious medical needs fall under the Eighth Amendment umbrella of protection from the imposition of cruel and unusual punishments. Farmer v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must ensure that inmates receive adequate medical care. Id. (citing Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
A claim that prison officials have intentionally disregarded an inmate's serious medical needs has both objective and subjective elements. See Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009). "The objective 'medical need' element measures the severity of the alleged deprivation, while the subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind." Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citation omitted). "The plaintiff must show that she or he had a serious medical condition and that it was met with deliberate indifference." Id. at 72 (citation and internal quotation marks omitted). "[N]ot every lapse in medical care is a constitutional wrong. Rather, a prison official violates the Eighth Amendment only when the two requirements are met." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006).
A "serious medical condition" is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J. dissenting) (citations omitted); accord Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Relevant factors to consider when determining whether an alleged medical condition is sufficiently serious include, but are not limited to: (1) the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; (2) the presence of a medical condition that significantly affects an individual's daily activities; and (3) the existence of chronic and substantial pain. Chance, 143 F.3d at 702-03.
In order to meet the objective requirement, the alleged deprivation of adequate medical care must be "sufficiently serious." Salahuddin, 467 F.3d at 279 (citing Farmer, 511 U.S. at 834). Determining whether a deprivation is sufficiently serious also involves two inquiries. Id. The first question is whether the plaintiff was actually deprived of adequate medical care. Id. The standard to which prison officials are held in that regard is one of reasonableness. Id.
The second question is whether the purported inadequacy in the medical care was "sufficiently serious." Id. at 280. The court must examine how the care was inadequate and what harm the inadequacy caused or is likely to cause the plaintiff. Id. "In cases where the inadequacy is in the medical treatment given, the seriousness of the inquiry is narrower. For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in that treatment, the seriousness inquiry focus[es] on the challenged delay or interruption in treatment rather than the prisoner's underlying medical condition alone." Salahuddin, 467 F.3d at 280 (citation and internal quotation marks omitted).
Under the subjective element, medical mistreatment rises to the level of deliberate indifference only when it "involves culpable recklessness, i.e., an act or a failure to act . . . that evinces 'a conscious disregard of a substantial risk of serious harm.'" Id. at 703 (quoting Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)). "Deliberate indifference requires more than negligence but less than conduct undertaken for the very purpose of causing harm." Hathaway, 37 F.3d at 66. To establish deliberate indifference, an inmate must prove that (1) a prison medical care provider was aware of facts from which the inference could be drawn that the inmate had a serious medical need and (2) the medical care provider actually drew that inference. Farmer, 511 U.S. at 837; Chance, 143 F.3d at 702. The inmate then must establish that the provider consciously and intentionally disregarded or ignored that serious medical need. Farmer, 511 U.S. at 835.
An "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v. Gamble, 429 U.S. 97, 105-06 (1976). Moreover, "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim . . . under the Eighth Amendment." Id. at 106. Stated another way, "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id.; see also Smith, 316 F.3d at 184 ("Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation."). Disagreements over medication, diagnostics, forms of treatment, and the need for specialists are not adequate grounds for a § 1983 claim, since those issues implicate medical judgment and at worst negligence constituting malpractice. See Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001). Only medical malpractice that rises to the level of culpable recklessness constitutes deliberate indifference. Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011).
Prison officials can deprive inmates of medical treatment by unnecessarily delaying adequate medical treatment. Smith, 316 F.3d at 185. Where a plaintiff's claim is one of a temporary delay in the provision of otherwise adequate treatment, "it is appropriate to focus on the challenged delay . . . in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in objective terms, sufficiently serious to support an Eighth Amendment claim." Id.
The Second Circuit has made it clear that while whether or not a defendant acted with a specific state of mind is frequently a question for resolution by a jury, "summary judgment can be appropriate on the subjective prong of an inadequate-medical-care claim, and Plaintiff must point to actual evidence in the record permitting the inference that Defendants acted with deliberate indifference; he cannot rely on conjecture or speculation." Castillo v. Rodas, No. 09 Civ. 9919(AJN), 2014 WL 1257274, at *6, 2014 U.S. Dist. LEXIS 41282, at *18 (S.D.N.Y. Mar. 25, 2014).
B. The Events of July 9, 2008 to July 11, 2008
Plaintiff's Ambulatory Health Records ("AHR") indicate that on July 9, 2008, at approximately 11:40 a.m., Plaintiff presented to the infirmary complaining of abdominal pain. (Dkt. No. 78 at 3.) Plaintiff informed Rupert that he had vomited three times. Id. The AHR indicates that Rupert attempted to examine Plaintiff and ask him questions about his symptoms, but Plaintiff demanded to see a sergeant. Id. Rupert advised Plaintiff that if this was an emergency, he needed to be examined and treated. Id. Plaintiff jumped up, and left the medical unit without being examined. Id.
The AHR is a DOCCS document in which an inmate's medical care is recorded, based on the date of the services. (Dkt. No. 78-2 at 2.)
Plaintiff returned to the infirmary approximately one hour later, at 12:30 p.m. Id. He arrived via stretcher and was examined by Coryer. Id. The AHR indicates that Plaintiff was "vague" about his symptoms but did complain of vomiting. Id. Upon examination, Plaintiff had active bowel sounds, stable vital sounds, and no fever. Id. Plaintiff was admitted to an observation room. Id. At 1:10 p.m., Coryer observed Plaintiff resting quietly on his left side. Id. Coryer checked on Plaintiff again at 1:30 p.m., and noted that Plaintiff was not in distress, even though he claimed to have vomited six times. Id.
Later that day, while still in medical observation, Plaintiff screamed for help from staff, was crying uncontrollably, and begging people "not to leave him [there]." Id. at 4. The AHR indicates that Plaintiff was unable to control his emotions, was yelling, and appeared to be in a "manic state." Id. Plaintiff was crying "sounds," but did not form words. Id. Plaintiff then became very calm and requested to return to his unit. Id. Plaintiff became increasingly agitated, was laughing hysterically, and refused to answer questions. Id. Plaintiff dozed for five minutes, then woke up and began pacing in the observation room. Id. Plaintiff continued to vary from being agitated to serene, and paced and slept intermittently. Id.
In light of Plaintiff's behavior, Rupert tried to conduct a suicide screening with Plaintiff. Id. However, Plaintiff refused to answer the suicide questionnaire, and refused to speak or acknowledge any staff. Id. Later that evening, Plaintiff was transferred to Clinton for a mental health evaluation. Id. Plaintiff was examined by mental health staff at approximately 7:13 p.m. Id. at 5. At that time, his vitals were stable, and no injuries were indicated or noted. Id. Plaintiff's history of ventral hernia repair was noted on the AHR. Id. Plaintiff complained of nausea. Id. Plaintiff was encouraged to rest, drink lots of fluids, and let staff know if his condition worsened. Id. The next day, on July 10, 2010, Plaintiff was discharged from Clinton and transferred back to Ogdensburg. Id. at 6.
Plaintiff was next seen by Ogdensburg medical staff on July 11, 2008, at approximately 7:45 a.m. Id. at 7. Plaintiff again complained of vomiting. Id. Upon examination, Coryer noted that Plaintiff's vital signs were normal. Id. He did not have a fever. Id. Coryer admitted Plaintiff to an observation room to be evaluated by a medical doctor. Id. Coryer observed Plaintiff sleeping at 8:30 a.m. Id.
Thereafter, Plaintiff was examined by Dr. Chalom, Ogdensburg's Facility Health Services Director. (Dkt. No. 78-1 at ¶ 23.) The AHR indicates that Plaintiff was complaining of epigastric issues for three days, and that Plaintiff described his pain as "muscle pulling." (Dkt. No. 78 at 7.) Plaintiff stated that he had many episodes of vomiting, and that he had not had a bowel movement or eaten in three days. Id. Upon examination, Dr. Chalom noted Plaintiff's abdomen was soft and not tender, and that his bowel sounds were active. Id. Dr. Chalom ordered Plaintiff Zantac and Dulcolax. Id. Dr. Chalom observed Plaintiff drinking juice. Id.
Dr. Chalom is not a party to this action. (Dkt. No. 32.)
Zantac is commonly used to treat acid reflux. (Dkt. No. 78-1 at 5.)
Dulcolax is commonly used to treat constipation. (Dkt. No. 78-1 at 5.)
At 10:15 a.m., Coryer observed Plaintiff drink approximately four ounces of apple juice. Id. at 8. As ordered, Coryer gave Plaintiff Zantac and Ducolax. Id. At that time, Plaintiff did not appear in any distress and had been sleeping. Id. At 10:30 a.m., Plaintiff vomited clear liquids onto the floor and at 10:40 a.m., was given a Compazine suppository per the doctor's order. Id. The AHR indicates that Plaintiff was ordered to have clear liquids for twenty-four hours, Zantac two times per day, and Compazine three times per day as needed. Id.
Compazine suppository is commonly used to treat severe nausea and vomiting. (Dkt. No. 78-1 at 5.)
Plaintiff was transferred to Riverview Correctional Facility ("Riverview") to be admitted to their infirmary for evaluation and treatment. Id. Plaintiff was received by Riverview by 12:15 p.m. on July 11, 2008. Id. At that time, Plaintiff complained of abdominal discomfort and severe pain. Id. Plaintiff began writhing in bed and vomited green bile. Id. Plaintiff was then transferred from Riverview to Claxton-Hepburn Medical Center ("Claxton"). (Dkt. No. 78 at 9.)
Once admitted to Claxton, Plaintiff was examined by Dr. V. Prasad Yitta. (Dkt. No. 78 at 9.) Upon examination, Plaintiff's abdomen was distended but soft. Id. He had no tenderness, no guarding, no rigidity, and no rebound tenderness. Id. He had hyperactive bowel sounds and no obvious hernia at that time. Id. Plaintiff's CT scan revealed evidence of small bowel obstruction. Id. at 10. Abdominal x-rays revealed "still persistent obstruction." Id.
Dr. Yitta is not a party to this action. (Dkt. No. 32.)
Dr. Yitta determined the best course of treatment was to treat Plaintiff with non-operative measures, including hospitalization, intravenous fluids, and nasogastric decompression. Id. Dr. Yitta explained to Plaintiff that it was "better to avoid surgery as long as possible." Id. Dr. Yitta further explained to Plaintiff that any surgery would be difficult because of Plaintiff's previous operations and potential adhesions. Id. The AHR reflects that Plaintiff understood and was agreeable to the plan. Id. Four days later, on July 15, 2008, Plaintiff underwent an exploratory laparotomy with a small bowel resection. Id. at 11. Plaintiff was discharged from Claxton on August 14, 2008, in improved condition. Id. at 11-12.
While at Claxton, Plaintiff also underwent (1) a laparotomy and end ileostomy on July 17, 2008, (2) an abdominal exploration and washout and packing for temporary closure on July 19, 2008, and (3) an abdominal wound washout and closure of large ventral hernia with biological mesh on July 23, 2008. (Dkt. No. 78 at 11.)
C. Defendants Rupert and Coryer
Defendants appear to concede that Plaintiff had a serious medical need. (See Dkt. No. 77-3.) Defendant dispute the allegations that Rupert and Coryer did not provide Plaintiff any medical treatment and that they were deliberately indifferent to Plaintiff's serous medical needs. Id. at 10.
Here, contrary to Plaintiff's claim that the medical staff at Ogdensburg did not provide adequate medical care, as detailed above, Plaintiffs' medical records are replete with instances of the medical staff tending to his complaints from July 9, 2008 to July 11, 2008. (See Dkt. No. 78 at 3-8.) Although Plaintiff describes the treatment that he received from Rupert and Coryer as lacking empathy and their attitude toward him indifferent and unprofessional, the record shows that Rupert and Coryer, along with other medical staff, were attentive to Plaintiff's needs, performing several examinations, keeping Plaintiff for observation, prescribing medications, transferring Plaintiff to a DOCCS facility for a mental health examination, and ultimately transferring Plaintiff to a DOCCS facility for further medical treatment. Id. Plaintiff's conclusory allegations that Rupert and Coryer denied him medical care cannot negate Plaintiff's medical records which show Defendants' almost continuous care of his abdominal issues. See Wright v. Genovese, 694 F. Supp. 2d 137, 156-57 (N.D.N.Y. 2010) ("Plaintiff's . . . conclusory allegations of deliberate indifference do not negate the extensive evidence that [the doctor] and others reasonably and diligently addressed plaintiff's medical needs over an extended period of time."); Williamson v. Goord, No. 9:02-CV-00521 (GLS/GHL), 2006 WL 1977438, at *21, 2006 U.S. Dist. LEXIS 46828, at *14 (N.D.N.Y. July 11, 2006) (recommending dismissal where the defendants "promptly and dutifully" provided care and requested necessary testing). In sum, no genuine issue of material facts exists that Rupert and Coryer withheld medical care from Plaintiff or delayed his treatment.
Plaintiff argues that he should have received emergent medical care on July 9, 2008, when he first presented to the infirmary with abdominal pain, instead of being transferred to Clinton for mental health evaluation. (Dkt. No. 32 at 8.) However, a mere disagreement as to the medically proper course of treatment is not a sufficient basis for a deliberate indifference claims. See Chance, 143 F.3d at 703. An inmate does not have the right to treatment of his choice. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). "[D]eliberate indifference [will not] be found when an inmate simply prefers an alternative treatment or feels that he did not get the level of medical attention that he desired." Cherry v. Edwards, No. 01 Civ. 7886(FM), 2005 WL 107095, at *8, 2005 U.S. Dist. LEXIS 702, at *22-23 (S.D.N.Y. Jan. 18, 2005) (citation omitted), aff'd, 155 F. App'x 529 (2d Cir. 2005).
In support of Defendant's motion for summary judgment, Rupert declares that out of concern for Plaintiff's mental well-being, she attempted to conduct a suicide screening with Plaintiff. (Dkt. No. 78-2 at 3.) However, Plaintiff refused to answer the suicide questionnaire, and refused to speak or acknowledge any staff. Id. Rupert declares that Central New York Psychiatric Center ("CNYPC") does not have a satellite unit at Ogdensburg. Id. at 4. However, CNYPC does have a satellite unit located at Clinton. Id. Based upon Plaintiff's mental state, the lack of a mental health unit at Ogdensburg, Plaintiff's inability to cooperate with medical staff, and the fact that Plaintiff's only physical ailment appeared to be nausea, it was decided that CNYPC at Clinton was best equipped to treat Plaintiff. Id. Rupert contacted Clinton, and they advised that they had a bed available for Plaintiff. Id. Accordingly, Plaintiff was transported to Clinton for a mental health evaluation on July 9, 2008. Id.
In this case, Plaintiff disagrees with the medical decision to send him to Clinton on July 9, 2008. (Dkt. No. 32 at 8.) However, a difference of opinion between a prisoner and prison officials regarding medical treatment does not constitute deliberate indifference. See Chance, 143 F.3d at 709. Given the evidence of treatment Plaintiff received July 9, 2008 through July 11, 2008, no reasonable jury could find that either Rupert or Coryer had been deliberately indifferent to Plaintiff's serous medical needs. See Selevan v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (finding summary judgment appropriate where the nonmovant fails to "come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on an essential element of a claim") (internal quotation marks omitted).
Moreover, Plaintiff cannot show that the minimal delay in diagnosing his small bowel obstruction was deliberate, or caused a worsening of his condition. See, e.g., Warren v. Corcoran, No. 9:09-CV-1146 (DNH/ATB), 2011 WL 5599587, at *6, 2011 U.S. Dist. LEXIS 135012, at *17-18 (N.D.N.Y. Oct. 20, 2011) (finding no delay in treatment or care where an inmate complained of and was provided treated for abdominal pain with varying degrees of success over the course of a six-month period of time before the inmate was diagnosed with a small bowel obstruction and had surgery). Here, even though Plaintiff was diagnosed with a small bowel obstruction on July 12, 2008, immediate surgery was not recommended. (Dkt. No. 78 at 9-10.) Rather, Dr. Yitta recommend treating Plaintiff with nonoperative measures. Id. at 10. Plaintiff agreed with Dr. Yitta's treatment plan. Id. Accordingly, Plaintiff cannot show that Rupert or Coryer were responsible for any delay in diagnosis, or any resulting complications from the July 16, 2008, surgery.
In light of the foregoing, the Court recommends that Defendants Rupert and Coryer be granted summary judgment on the merits on Plaintiff's Eighth Amendment claim.
D. Defendant Sears
"It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show, inter alia, the defendant's personal involvement in the alleged constitutional deprivation." Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations omitted). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6, 2012 U.S. Dist. LEXIS 25367, at *22-23 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (a "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections . . . in a § 1983 claim") (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.
The Second Circuit has expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon, 720 F.3d at 139. --------
Here, Plaintiff brings an Eighth Amendment supervisory liability claim against Sears. (Dkt. No. 32.) Plaintiff fails to allege that Sears was personally involved in any of the alleged events. Rather, Plaintiff claims that Sears, as Superintendent, is liable for the actions of Ogdensburg's medical staff. (Dkt. No. 32 at 10.) At his deposition, Plaintiff testified that he named Sears as a Defendant because he was the supervisor of Ogdensburg and "supervised somebody that supervised [Rupert and Coryer]." (Dkt. No. 77-7 at 15.) Plaintiff further testified that he had no interactions with Sears. Id. at 15-16.
In support of Defendants' motion for summary judgment, Sears declares he held the position of Superintendent of Ogdensburg from July 2007, through June 2010. (Dkt. No. 77-8 at 1.) As Superintendent, he was responsible for the overall supervision of and management of the facility. Id. at 2. Sears declares that he delegated responsibility to Deputy Superintendents and subordinate staff. Id. Decisions made regarding the medical care and course of treatment for inmates were ultimately the responsibility of the Facility Health Services Director. Id.
In July 2008, Rupert and Coryer each held the position of Nurse II at Ogdensburg, and reported directly to the Facility Health Services Director. Id. Sears declares that he did not participate in decisions regarding whether an inmate should be transferred or moved out of Ogdensburg for medical reasons. Id. Finally, Sears declares that he did not participate in any decision regarding Plaintiff's medical care in July 2008. Id.
Here, there is no evidence of any personal involvement by Sears under the Colon categories. Plaintiff concedes as much, and requests that Sears be dismissed from this action. (Dkt. No. 80 at 7; Dkt. No. 81 at 2.)
In light of the foregoing, the Court recommends that Defendant Sears be granted summary judgment on the merits on Plaintiff's Eighth Amendment claim.
E. Qualified Immunity
Defendants contend that if the Court were to find that their actions violated Plaintiff's Eighth Amendment rights, they are entitled to qualified immunity. (Dkt. No. 77-3 at 14-17.) Inasmuch as the Court is recommending that Defendants be granted summary judgment on other grounds, it finds it unnecessary to reach the qualified immunity argument.
ACCORDINGLY it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 77) be GRANTED IN ITS ENTIRETY; and it is further
RECOMMENDED that Plaintiff's cross-motion for summary judgment (Dkt. No. 80) be DENIED; and it is further
RECOMMENDED that Plaintiff's Amended Complaint (Dkt. No. 32) be DISMISSED IN ITS ENTIRETIY WITH PREJUDICE; and it is further
ORDERED that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: April 19, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge