Summary
finding that an alleged eight-month delay in surgical repair of an inmate's inguinal hernia was not serious enough to amount to an Eighth Amendment violation
Summary of this case from Tarafa v. B.O.P. MDC BrooklynOpinion
99 Civ. 1458 (JSM)
September 25, 2003
OPINION ORDER
Plaintiff Robert Arroyo brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his Eighth Amendment right to be free from cruel and unusual punishments by delaying for eight months allegedly necessary surgery for an inguinal hernia. Defendants have moved for summary judgment on various grounds, including Plaintiff's failure to exhaust administrative remedies, the failure to proffer evidence of deliberate indifference to Plaintiff's serious medical needs, the lack of personal involvement by the individual Defendants, qualified immunity, the failure to plead an unconstitutional pattern or practice by the municipal Defendants, the fact that the Department of Corrections and Correctional Health Services are agencies that may not be sued, and, to the extent that Plaintiff implies that he may have claims under state law, the failure to file a notice of claim.
Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) provides that a prisoner may not bring an action pursuant to 42 U.S.C. § 1983 or any other Federal law until he has exhausted any available administrative remedies. In this case, Plaintiff failed to pursue his administrative remedies, and for that reason alone, this action must be dismissed.
In October 1998, Plaintiff filed a grievance stating that he had been denied surgery for a hernia that caused him great pain and suffering. His complaint was heard in a first level informal proceeding, in which it was proposed that it be resolved as follows:
"On 10/26/98 the IGRC contacted the Clinic Manger. Grievant will be called down to have an examination. Action requested is accepted."
Plaintiff accepted this resolution, and was further examined in the clinic at Riker's Island. When that examination resulted only in further non-surgical interventions, and he was not scheduled promptly for surgery, he did not renew his grievance or otherwise seek to use the extensive five step inmate grievance resolution program that is in place at Riker's Island. His failure to do so precludes this action, despite his claim that it would have been irrational for him to appeal what he perceived to be a favorable result. Even if Plaintiff thought that he had been promised prompt surgery after his informal grievance review, shortly thereafter he obviously knew that surgery had not been performed, or even scheduled. He presents no explanation as to why he did not at least inquire as to why surgery that he allegedly thought he had been promised had not been forthcoming.
Denial of Medical Care
Even if Plaintiff had exhausted his administrative remedies, he has not sufficiently stated a claim for violation of the Eighth Amendment. In order to state a claim for an unconstitutional denial of medical care, a plaintiff must prove "deliberate indifference" to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 (1976). The deliberate indifference standard has both an objective and a subjective component. First, the alleged condition must be objectively "sufficiently serious." Such seriousness has been defined as "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995). Subjective complaints of pain are not sufficient to satisfy this standard. Espinal v. Coughlin, 98 Civ. 2579 (RPP), 2002 U.S. Dist. LEXIS 20, *9 (S.D.N.Y. Jan. 2, 2002);Chatin v. Artuz, No. 95 Civ. 7994 (KTD), 1999 U.S. Dist. LEXIS 11918, *11 (S.D.N.Y. Aug. 4, 1999), aff'd, 2002 U.S. App. LEXIS 86 (2002)("[Plaintiff's] alleged problems in his right foot may indeed be very real. His pain is not, however, of the type contemplated for satisfaction of the objective standard." (citing Liscio v. Warren, 901 F.2d 274, 277 (2d Cir. 199O)). Second, the Defendant must:
know of and disregard 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.Hathaway v. Coughlin, 37 F.3d at 66 (2d Cir. 1994) (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994)).
Charges that amount only to allegations of malpractice, and mere disagreements with respect to the quality of medical care do not state an Eighth Amendment claim. Estelle v. Gamble, 429 U.S. at 105-06, 97 S. Ct at 292 ("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. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner."). See also Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998); Espinal v. Coughlin, 2002 U.S. Dist. LEXIS 20, *10; Brown v. McElroy, 160 F. Supp.2d 699, 705-06 (S.D.N.Y. 2001); Culp v. Koenigsmann, 99 Civ. 9557 (AJP), 2000 U.S. Dist. LEXIS 10168, *32 (S.D.N.Y. July 19, 2000). Accordingly, a delay in treatment does not violate the Eighth Amendment unless it involves an act or a failure to act that evinces "a conscious disregard of a substantial risk of serious harm." Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998)); Espinal v. Coughlin, 2002 U.S. Dist. LEXIS 20, *9 ("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.").
Application of the deliberate indifference standard to the facts of this case makes clear that summary judgment must be granted in favor of the Defendants. First, Plaintiff's inguinal hernia was not objectively a "serious" enough condition to satisfy the objective prong of the test. InGonzalez v. Greifinger, No. 95 Civ. 7932 (RWS), 1997 U.S. Dist LEXIS 18677,*7 (S.D.N.Y. Nov. 22, 1997), the Court found that an 11 month delay in surgically repairing the plaintiff's umbilical hernia, followed by surgery that resulted in complications, failed to satisfy the constitutional serious medical need standard.
Other courts have found objectively insufficient claims relating to a toothache, Tyler v. Rapone, 603 F. Supp. 268, 271-72 (E.D. Pa. 1985), a broken finger, Rodriguez v. Joyce, 693 F. Supp. 1250, 1252-53 (D. Me. 1988), and pain in the knee, Espinal v. Coughlin, 2002 U.S. LEXIS 20, *9. See also Abdul-Akbar v. Dept. of Corrections, 910 F. Supp. 986, 1006 (D. Del. 1995), aff'd. 111 F.3d 125 (3rd Cir.), cert. denied, 522 U.S. 852 (1997) ("It is questionable whether a hernia is a `serious medical need.'").
In this case, Plaintiff's condition was not "one of urgency that may produce death, degeneration, or extreme pain," and was far less serious than the types of conditions that have been found to constitute "serious medical needs." Plaintiff has not alleged, let alone presented evidence to show, that his condition was, at any point, "fast degenerating" or "life threatening," or that Defendants delayed necessary medical treatment in order to punish him.
Secondly, with respect to the subjective prong, all that Plaintiff has alleged is negligence. There is no evidence that Plaintiff ever was denied medical treatment. To the contrary, he testified that he was promptly taken to the clinic whenever he asked to be, and it is clear that he was seen in the clinic at Riker's Island more than 30 times during the eight month period at issue here. Also, there is ample evidence in the record of attempts to ameliorate Plaintiff's condition without surgery. The hernia, which Plaintiff first noticed 1993, and which was repeatedly diagnosed as a reducible hernia, was reduced at least twice. He was prescribed pain medication, a scrotal support, various trusses, ice packs, elevation, and a surgical consultation was requested. Ultimately, in January 1999, the hernia was surgically repaired at Kings County Medical Center. These interventions were consistent with the diagnosis made and treatment prescribed at Beth Israel Hospital one month before Plaintiff was incarcerated. There too he was diagnosed with an "easily reducible RIH [right inguinal hernia]," and told to purchase a scrotal support, or truss, for comfort. At that time, he also was given an appointment for a surgical consultation, which he did not attend.
In addition to treatment for the hernia, Plaintiff was treated for a number of other conditions while incarcerated at Riker's Island. He received medical attention for drug dependency, mental health issues, dyspepsia, heartburn, and ingrown toe nails, and was prescribed eyeglasses at the Riker's Island clinic. Thus, there is absolutely no evidence his medical needs were ignored by Defendants.
Plaintiff's alleged urgent need and desire for surgery is further undercut by his refusal to undergo prescribed surgery for a left inguinal hernia, which was diagnosed and scheduled at the time of the surgical repair of the right inguinal hernia.
Moreover, Plaintiff has not alleged that the hernia became worse, or that his general condition deteriorated as a result of the alleged delay in surgery. The evidence also is that, unlike in Gonzalez v. Greifinqer, 1997 U.S. Dist. LEXIS 18677, the surgery ultimately was performed successfully and without complications.
His allegation is that the hernia was, at all times, the size of a softball.
Finally, Defendants have presented evidence that attempting to treat a hernia conservatively prior to performing surgery constitutes reasonable medical practice. Plaintiff, on the other hand, did not present any medical opinion testimony to support his argument that it was unreasonable to first attempt to treat his hernia non-surgically, and to resort to surgery only after such methods had failed. See Culp v. Koeniqsmann, 2000 U.S. Dist. LEXIS 10168, *11. Accordingly, Plaintiff has failed to meet his burden of proof in opposition to Defendants' motion for summary judgment. Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553 (1986); Cifarelli v. Village of Babylon, 93 F.2d 47, 51 (2d Cir. 1996) ("[M] ere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment."); Goenaqa v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995).
It also appears that Plaintiff has not alleged that the municipal Defendants engaged in a pattern or practice of indifference to prisoners' medical needs, as required by Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38 (1978); Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). Nor has Plaintiff alleged any personal participation by Dr. Ye Hum Kim. However, in light of the foregoing, there is no need to address either these issues or the Defendants' claims of qualified immunity. Furthermore, having dismissed all of Plaintiff's federal claims, the Court also will dismiss whatever state law claims he intended to state pursuant to this Court's supplemental jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139 (1966).
Conclusion
For the foregoing reasons, Defendants' motion for summary judgment is granted and the Second Amended Complaint is dismissed.
SO ORDERED.