Summary
dismissing section 1983 claim because the doctor was not deliberately indifferent when he treated inmate until there was no further treatment to be provided
Summary of this case from Ruiz v. HomerighouseOpinion
99-CV-0382E (Sr)
October 3, 2001
MEMORANDUM and ORDER
Plaintiff brings this action pro se alleging claims under 42 U.S.C. § 1983 for violation of his Eighth Amendment rights based upon a denial of medical treatment, and deliberate indifference and medical malpractice against Margaret Erway — a registered Nurse at the Orleans Correctional Facility ("Orleans") — and Dr. Brij Sinha — a medical doctor at Orleans — for injuries suffered while he was in their care as an inmate at Orleans. Specifically plaintiff claims that while he was incarcerated he was denied emergency sick call by the medical department causing him to come very close to death and was later denied outpatient treatment which exacerbated his condition.
Defendants have moved for summary judgment on plaintiff's Eighth Amendment claim — based on the fact that plaintiff cannot establish a deliberate indifference to his medical needs and/or denial of medical treatment — and his medical malpractice claims. Alternatively, defendants have made a motion to dismiss for failure to prosecute. For the reasons that follow, defendants motion for summary judgment will be granted as will be their motion to dismiss for failure to prosecute.
On March 25, 1996 at 4:00 a.m. plaintiff told the officer on duty that he needed "sick-call" because he had a history of bleeding ulcers, was currently bleeding internally, had previously almost bled to death under the same circumstances, had just come from the bathroom where his stool contained black blood, was extremely dizzy while standing and felt that he would pass out. Pl.'s Grievance at 1-2. When he was asked by this officer if he could make it to the infirmary under his own power he informed the officer that the loss of blood had weakened him to the point where he did not believe he could safely do so. Id. at 2. Plaintiff was informed by the officer that he would have to wait until 6:45 a.m. when a sick-call was running before he could go to the hospital. Ibid. Plaintiff pleaded with the officer that this had happened to him before and he had almost died, to which the officer responded, "Well then I don't know what to tell you." Ibid. Plaintiff then returned to his bunk. At 6:45 sick-call was announced, but plaintiff felt too weak to walk to it. Ibid. He informed an officer of such but was told that no ambulance would be called and, if plaintiff wanted help to make it to sick-call, he would have to wake up some of his friends to get him there. Pl.'s Grievance at 2.
The statement of the facts here is taken from a grievance plaintiff filed with the New York State Department of Corrections. The copies of plaintiff's grievance that this Court received appear not to have any pagination; therefore this Court has assigned consecutive numbers to the pages.
At 7:00 a.m. plaintiff claims he was beginning to get fearful of his life and tried once more to have an officer assist him make it to sick-call. Id. at 3. When he was denied help he made the nearly one-third of a mile walk to the infirmary himself. Ibid. Plaintiff informed the officer at the infirmary of his ailment and the officer in turn informed Nurse Erway. Ibid. The officer returned and told plaintiff that Nurse Erway had told him to have a seat. Ibid. Several non-emergency patients then were seen and plaintiff re-voiced his concern to the officer, to which the officer responded "I don't know what to tell you, I already told them of your problem". Pl.'s Grievance at 3.
Another nurse passed by and plaintiff called out to her for help. Id. at 4. She brought out a wheelchair and took him into an office. Ibid. After his blood pressure had been taken, an ambulance was called and plaintiff was taken to Medina Hospital where he was given medication and two pints of blood. Ibid. Various tests were performed on plaintiff yet the hospital staff could not determine the source of the bleeding so they gave him another two pints of blood. Ibid. He remained in the hospital for another week until he had stabilized and was transported back to Orleans. Pl.'s Grievance at 4.
While plaintiff was at Medina he was told that he would be coming back for additional treatment and tests on an out-patient basis, yet on April 18, 1997 he saw Orleans physician Dr. Sinha — who was well aware that they never found the source of bleeding — and was told that he would not be coming back. Ibid. After plaintiff informed Dr. Sinha of the seriousness of his condition, he was told to "get out" Id. at 5. Plaintiff then informed Dr. Sinha of a host of his other ailments, namely a spine curvature, one leg being shorter than another and a damaged finger. Dr. Sinha again informed plaintiff that there was nothing that he could do. Ibid.
On April 21, 1997 plaintiff signed up for another sick-call and was sent to see Dr. Hussain. According to plaintiff, Dr. Hussain was extremely helpful and listened to his problems and started treating his problems. Ibid. Dr. Hussain would not, however, send him back to Medina. Pl.'s Grievance at 5.
Since plaintiff has been released from Medina he has been to Orleans sick-call numerous times suffering and complaining of weakness, dizziness, fatigue, red bloody stools and stomach pains like never before; yet they refuse to admit him. Plaintiff's Appeal at 2.
This is taken from plaintiff's appeal of his grievance proceeding.
Defendants, in their statement of undisputed facts in support of their motion for summary judgment, point to facts suggesting that plaintiff had not complained of his pains to the extent that he claims in his grievance that he did and that the medical staff at Orleans was much more accommodating to his needs than plaintiff claims. They also point out that from March 28, 1996 until March 25, 1997 plaintiff had forty-one medical encounters. Defs.' Stat. of Undisp. Facts. ¶ 10. Plaintiff never responded to this filing by defendants.
Plaintiff brought this case by filling out a form provided him by Orleans and filing such form with this Court. Plaintiff also attached the grievance he had filed with the Department of Corrections and his appeal of the Department's determination. Plaintiff tried unsuccessfully to procure legal representation and then decided to proceed pro se.
This Court's original scheduling order stated that all discovery shall conclude on May 1, 2000 and that all motions to compel discovery shall be returnable on or before April 3, 2000. On March 20, 2000 defendants served plaintiff with a notice to take his deposition on April 14, 2000 at the Offices of the Attorney General in Buffalo, N.Y. On April 6, 2000 plaintiff filed a motion to reschedule his deposition citing unreasonable notice. Plaintiff argued that this Court should order that he be deposed by telephone because he was just released from prison and does not have the time or the money to travel to Buffalo and he is required to participate in a residential "halfway house" program for six months. On April 21, 2000 United States Magistrate Judge Carol F. Heckman revised the original scheduling order and ordered that plaintiff's deposition instead be taken on September 15, 2000 in Buffalo N.Y., a date to which all parties agreed. Her order also directed the parties' attention to Rule 16(f) of the Federal Rules of Civil Procedure ("FRCvP") which allows a court to impose sanctions if any of its directions is not followed. Plaintiff failed to attend said deposition despite being given five months' notice.
As a preliminary matter, this Court notes that plaintiff is proceeding pro se and therefore special attention must be paid to ensure that he is not placed at a disadvantage in opposing this motion for summary judgment simply because he is not represented. The Second Circuit Court of Appeals has recently reminded the district courts that will be their practice to vacate summary judgment dismissals against a pro se litigant when the pro se litigant is unaware of the consequences of failing to respond adequately to the motion for summary judgment. Irby v. New York City Transit Authority, 00-9421 2001 U.S. App. Lexis 18827, 6 (2d Cir. Aug. 22, 2001). The Irby court then went on to place the responsibility of alerting the pro se plaintiff to the consequences of noncompliance first with the defense counsel and then with the court. Ibid. This Court finds that the necessary notice has been given. Counsel for the defendant sent plaintiff a Notice of Motion for Summary Judgment on November 16, 2000 alerting plaintiff that, among other things; "all material facts set forth in [defendant's] statement of facts submitted with this motion shall be considered admitted by you unless you file your own statement identifying those facts as to which you maintain there is a genuine issue to be tried" and that, "[i]f you do not respond, summary judgment, as appropriate, may be entered against you. If summary judgment is granted, your case will be dismissed and there will be no trial." In addition, Judge Heckman's April 21, 2000 order brought to plaintiff's attention the possibility of sanctions for failure to comply with directions of the Court. This Court is satisfied that plaintiff has been provided with the information necessary for this Court to hear defendants' summary judgment motion.
FRCvP 56(c) states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter law." The party seeking summary judgment bears the burden of demonstrating to the court the "lack of a genuine triable issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). A fact is material if it "might affect the outcome of the suit under the governing law" and is genuine if it "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 247-248 (1986). When ruling on a motion for summary judgment the court must view the facts in the "light most favorable to the opposing party." Adkins v. Kress Co., 398 U.S. 144, 157 (1970). However, the opposing party may not rest upon conclusory statements in his pleadings, but rather is required to "set forth specific facts showing that there is a genuine issue for trial." FRCvP 56(e).
In order to succeed on a 42 U.S.C. § 1983 claim based upon Eighth Amendment grounds, plaintiff "must, at a minimum allege deliberate indifference to his serious medical needs." Wilson v. Seiter et al, 501 U.S. 294, 297 (1991) Plaintiff first must prove that the alleged deprivation viewed objectively is sufficiently serious. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1995). To be sufficiently serious, the ailment must be "one that may produce death, degeneration, or extreme pain." Ibid. Next the plaintiff must prove that the prison official acted with a sufficiently culpable state of mind. Ibid. This requires that the prison official "both knows of and disregards an excessive 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." Ibid., citing Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Internal citations omitted.
Internal citations omitted.
Plaintiff here has done nothing for his cause other than to file a complaint, six single-spaced pages of grievances he has with the medical staff at Orleans and an additional four-page appeal from the determination of the Department of Correction Inmate Grievance Program. Under FRCvP 56 a party may not just rely on what is in his pleadings but instead must "set forth specific facts showing that there is a genuine issue for trial". Plaintiff has also refused to participate in any depositions. Normally this total lack of involvement in a case and failure to comply with the procedural requirements of FRCvP 56 would be enough to entitle the defendant to summary judgment.
This Court however sympathizes with plaintiff's unsuccessful quest to find an attorney and assures plaintiff that, even if he had been represented, the facts he has alleged simply do not create any genuine issue of material fact as to whether he was subjected to deliberate indifference and denial of medical treatment which has risen to the level where he would have a section 1983 claim based on a violation of his Eighth Amendment rights. Therefore, this Court would grant summary judgment for defendants regardless of whether plaintiff had counsel.
As stated supra there is both a subjective and objective component to plaintiff's claim, yet this Court believes that plaintiff has failed to satisfy the subjective component of this test. Bleeding ulcers have been held to be a sufficiently serious condition which could give rise to an Eighth Amendment claim Massey v. Don Hutto et al. 545 F.2d 45, 46-47 (8th Cir. 1976). Therefore, plaintiff has shown that he is suffering from an objectively serious condition. Plaintiff however has not put forward any evidence that the defendants were deliberately indifferent toward his condition. Such requires that plaintiff prove that the defendants were aware of his condition yet chose to ignore it. Farmer v. Brennan, 511 U.S. 825, 837-838 (1994). According to plaintiff's own grievance filed with the New York State Department of Correctional Services, Dr. Sinha and Nurse Erway did attempt to alleviate plaintiff's conditions when he was admitted to the infirmary. They also saw him after he was released from the hospital. There came a point in time where Dr. Sinha informed plaintiff that he would no longer be treating him but that was because Dr. Sinha believed that they could not locate the source of the bleeding and had done all that could be done for plaintiff, not because he consciously disregarded any known risk to plaintiff. Therefore, even if plaintiff had complied with the FRCvP and properly opposed defendants' motion for summary judgment, this Court would still grant summary judgment on plaintiff's deliberate indifference and denial of medical treatment claims.
Defendant will also be granted summary judgment on their medical-malpractice claims. Defendants are both employees of the Department of Correctional Services and any liability for medical malpractice would be governed by New York Corrections Law § 24(1) which provides that:
All citations to New York Corrections Law are to "McKINNEY's 2001".
"No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employer.
New York Corrections Law § 24(2) provides that any such claim would have to be brought in New York's Court of Claims. The Second Circuit Court of Appeals has read section 24(1) to also prevent medical malpractice suits against correctional facilities in federal district courts. Baker v. Coughlin, 77 F.3d 12, 14 (2d Cir. 1996). Therefore and because plaintiff's medical malpractice claim is not properly before this Court, summary judgment will be granted on said claim.
Even if plaintiff had meet his burden in opposing defendants' motion for summary judgment, this Court would nonetheless grant defendants' motion to dismiss for failure to prosecute. Plaintiff failed to attend the April 14, 2000 deposition in Buffalo even after he was given 25 days' notice of such. On April 21, 2000 plaintiff was informed that he was to appear in Buffalo for a deposition to be taken on September 15, 2000, almost five months later. Plaintiff failed to attend such deposition even after being warned by Judge Heckman that sanctions could be imposed for non-compliance. Plaintiff also has failed to put in any papers after he requested discovery from defendants.
"All litigants, including pro ses have an obligation to comply with court orders. When they flout that obligation they must suffer the consequences their actions." Baba v. Japan Travel Bureau Inter., Inc., 111 F.3d 2, 5 (2d Cir. 1997). A court is within its discretion to dismiss a case for non-compliance with its orders so long as the pro se plaintiff has been given a warning as to the penalty for non-compliance. Ibid. Here plaintiff has done nothing to help move case along other then ask for discovery and that his depositions be delayed. This Court opines that, in a case such as this, where plaintiff has been so uninvolved, dismissal for failure to prosecute is entirely appropriate. Therefore, in addition to granting defendants' motion for summary judgment on plaintiff's Eighth Amendment and medical malpractice claims, such claims will also be dismissed because of plaintiff's failure to prosecute them.
Internal citations omitted.
Accordingly, it is hereby ORDERED that defendants' motions for summary judgment and dismissal for failure to prosecute on plaintiff's medical malpractice, deliberate indifference and denial of medical treatment claims are granted and that this case shall thereupon be closed.