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rejecting claim based on fact that one doctor recommended arthroscopic surgery for knee injury in April 1999, while another doctor concluded that surgery was not warranted until more conservative measures like physical therapy had been tried and failed
Summary of this case from Brown v. DeFrankOpinion
99 Civ. 9557 (AJP)
July 19, 2000
OPINION AND ORDER
Pro se plaintiff Freddie Julius Culp, an inmate at the Green Haven Correctional Facility, brings this action under 42 U.S.C. § 1983 and the Eighth Amendment for the prison medical staff's alleged deliberate indifference to his serious medical needs. Specifically, Culp complains of prison officials' alleged delay in authorizing surgery for a torn meniscus in his right knee and pain associated with that delay.
Defendants have moved for summary judgment, arguing that: (1) Culp does not suffer from an objectively serious medical condition and cannot demonstrate that defendants acted with deliberate indifference; and (2) all defendants are protected by qualified immunity. (Dkt. No. 14: State Br. at 10-14, 15-16; Dkt. No. 20: Correctional Physician Servs. Br. at 8-11.) The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 10.) For the reasons discussed below, defendants' summary judgment motion is GRANTED.
Defendants do not argue that Culp's claims are barred by the Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, and the Court therefore proceeds directly to the merits of his claims. See, e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *1 n. 1 (S.D.N.Y. June 13, 2000) (Peck, M.J.).
FACTS Background
Freddie Julius Culp, who was born on September 1, 1964, has been incarcerated on a robbery and assault conviction since 1991. (Dkt. No. 17:6/9/00 Alderstein Aff. Ex. A: Crime Sentence Sheet.) Culp has been incarcerated at Green Haven Correctional Facility since 1996. (Alderstein Aff. ¶ 2.) Defendant Dr. Carl J. Koenigsman is the medical director at Green Haven and defendant Dr. John Bendheim is a member of Green Haven's medical staff. (7/7/00 Koenigsman Aff. ¶ 1; Dkt. No. No. 18: Bendheim Aff. ¶ 1; Alderstein Aff. Ex. C: Koenigsman Curriculum Vitae.) Dr. Bendheim was the "primary care physician" for Culp from 1996 to October 1999. (Bendheim Aff. ¶¶ 1, 28.) Defendant Correctional Physician Services, Inc. ("CPS") contracted with the New York Department of Correctional Services ("DOCS") to provide specialty consultative medical services to inmates incarcerated at DOCS facilities. (Dkt. No. 21: Stempler Aff. ¶ 2.)
Culp's complaint alleges deliberate indifference to his medical needs, specifically, that (1) his need for surgery following a December 1998 injury to his right knee was ignored or disregarded until the surgery was performed on December 14, 1999; and (2) he was denied pain medication needed to alleviate the pain associated with his knee injury. (Dkt. No. 3: Amended Compl. at 3-6.).
Culp's Knee Injury and Subsequent Treatment
Except where indicated, the following facts are undisputed.
After an incident involving prison guards in late December 1998, Culp complained of pain in his right knee. (Bendheim Aff. ¶ 6 Ex. A: 12/30/98 Medical Record; Culp 56.1 Stmt. ¶ 1.) The day after the altercation, an x-ray was taken of Culp's right knee, and the report indicated that the configuration of Culp's knee was within normal limits. (Bendheim Aff. ¶ 6 Ex. A: 12/30/98 Medical Record; see Culp 56.1 Stmt. ¶ 2 at p. 2 Ex. A-3:12/20/98 x-ray report.) During January, February and March 1999, Culp was seen either by a doctor or other medical staff at Green Haven and complained of knee pain during at least some of these visits. (Bendheim Aff. ¶¶ 7-12 Exs. B-F; Culp 56.1 Stmt. at p. 3 Exs. B-C: 2/99 3/99 Medical Records.) Defendants claim that on February 2, 1999, Culp was seen by Dr. Fein, who noted some soft-tissue swelling of the inside part of Culp's knee and referred Culp for orthopedic surgery consultation (Bendheim Aff. ¶ 9 Ex. C: 2/2/99 Medical Record); Culp alleges that it was not until March 2 that he was seen by a doctor and expressed intense pain in his right knee and difficulty walking (Culp 56.1 Stmt. at p. 3; Culp Ex. C-3:3/2/99 Medical Record; but see Culp Ex. B-4:2/2/99 Medical Record showing he was seen by a dr.). The parties agree that Culp did see a doctor, Dr. Silver, on March 2, and he was seen again in mid-March. (Bendheim Aff. ¶¶ 10-12 Exs. D-E: 3/2/99, 3/16/99 3/22/99 Medical Records; Culp 56.1 Stmt. at p. 3 Ex. C-4: 3/16/99 3/22/99 Medical Records.) On March 16, Culp was given a cane so he could avoid placing weight on the knee. (Bendheim Aff. ¶ 11 Ex. E: 3/16/99 Medical Record.) An MRI was ordered and was taken on April 5, which showed a "small knee joint effusion" in Culp's right knee. (Bendheim Aff. ¶ 13 Ex. G: 4/5/99 MRI report; Culp 56.1 Stmt. at p. 3 Ex. D-3:4/5/99 MRI report.) On April 19, Dr. Bendheim noted continued swelling but concluded that there was no medical need for surgery at that time. (Bendheim Aff. ¶ 14 Ex. H: 4/19/99 Medical Report.)
In late April 1999, after the MRI report, Culp was seen at Green Haven's orthopedic clinic by Dr. Schwartz, who recommended arthroscopic knee surgery. (Bendheim Aff. ¶ 15 Exs. H-I: 4/22/99 4/29/99 Medical Records; Culp 56.1 Stmt. at p. 3 Exs. D-2 D-3:4/5/99 MRI Reports.)
Correctional Physician Services reviewed the recommendation for surgery and on June 8, 1999 denied it on the basis of "lack of medical necessity." (Bendheim Aff. ¶ 16 Ex. J: 6/8/909 Consultant Report; Culp. 56.1 Stmt. at p. 3 Ex. D-4:6/8/99 Consultant Report; CPS Rule 56.1 Stmt. Ex. E: 9/25/99 CPS Response to deny surgery and "treat conserv[atively]."). CPS explained that it was "unable to pre-certify this request [for arthroscopy] because there is no documented evidence of an existing medical condition that warrants an invasive procedure prior to attempts at more conservative means of treatment and evaluation." (Culp. Ex. D-5: 9/10/99 CPS Letter.) Dr. Norman Stempler, the CPS doctor who made the decision to deny surgery despite another doctor's recommendation for surgery, explained:
3. As an employee of CPS, I review recommendations made by orthopedists who contract with CPS to provide consults to the inmates at specific correctional facilities. It was in this capacity that I became involved in the care of the plaintiff herein, FREDDIE JULIUS CULP. On May 25, 1999 I reviewed and rejected the recommendation by John Gallina, M.D., the orthopedist who first recommended arthroscopic surgery upon Mr. Culp on April 21, 1999.
4. In reviewing Dr. Gallina's recommendation, I was provided with Mr. Culp's medical record which indicated that he had a negative MRI of the right knee, except for a small joint effusion. The record also indicated that Mr. Culp had not had any other conservative treatment for the knee injury. In reviewing Mr. Culp's case, I was guided by the records and my training and experience. Additionally, I was also guided by the InterQual Indications for Surgery and Procedures (attached to the motion papers as Exhibit "G"), which is generally accepted in the medical community as a reference tool for suggested treatment modalities of orthopedic injuries.
5. Arthroscopic surgery was not indicated in the case of Mr. Culp. In the absence of a significant finding on MRI or x-ray and without a course of conservative therapy, there is no indication for invasive surgery. Arthroscopic surgery has a host of potential complications including infection, bleeding and the requirement for general anesthesia which has its own risks. Significantly, the InterQual Indications for Surgery and Procedures further confirms that surgery was not indicated wherein it recommended a course of conservative therapy in cases such as Mr. Culp's prior to resorting to surgery.
6. My recommendation that the patient seek conservative therapy with drainage, if necessary, and injection of cortical steroids was well within acceptable standards of practice and completely appropriate for this patient, inmate or otherwise.
(Stempler Aff. ¶¶ 3-6; see also id. ¶ 8.) CPS's expert medical witness, Dr. Edward Haberman, opined that the denial of arthroscopic surgery in May-June 1999 "was appropriate as surgery was not indicated given the largely negative MRI and the fact that the plaintiff had not undergone a course of conservative therapy." (Haberman Aff. ¶ 3; see also id. ¶ 4: "There was no undue delay in the performance of the surgery, and in any event, no additional injuries were cause[d] to the plaintiff's knee while conservative treatment measures were ongoing. Accordingly, plaintiff received treatment well within accepted standards of orthopedic practice and nothing that the CPS physicians did or failed to do caused any injury to the plaintiff.")
On July 22, 1999, Dr. Bendheim examined Culp, observed that Culp had a normal gait and that his knee "was within normal limits, and so Dr. Bendheim discontinued Culp's prescription for ultram since Culp was receiving other pain killers. (Bendheim Aff. ¶ 20 Ex. N: 7/22/99 Medical Record; Culp 56.1 Stmt. at p. 3 Ex. E-2:7/22/99 Medical Record.) In the months of August through November 1999, Culp's medical complaints received ongoing attention from Green Haven's medical doctors and staff via doctor and nurse visits, a twelve week course of physicaltherapy, a renewed cane permit, and painkiller prescription renewals. (Bendheim Aff. ¶¶ 22-28, 30-31 Exs.: O-Y.)
On November 3, 1999, after Culp finished his course of physical therapy, due to a lack of improvement, an ortho-surgery consultant renewed the recommendation for an arthroscopy. (Bendheim Aff. ¶¶ 31-32 Ex. Z; Culp Ex. K-2.) On December 14, 1999, arthroscopic surgery was performed on Culp's right knee at St. Agnes Hospital. (Bendheim Aff. ¶ 34 Exs. CC DD: 12/14/99 Medical Record; Culp 56.1 Stmt. at p. 6 Ex. K-10.)
Medical Opinion, Including Expert, Testimony
Dr. Bendheim stated that where, as here, an MRI shows no identifiable injury (e.g., no meniscus tear), "surgery is considered to be an option pursued when more conservative courses of treatment are unsuccessful" because of the risks of surgery. (Bendheim Aff. ¶ 37.) According to Dr. Bendheim, that is why Culp was first treated conservatively "but after all attempts at conservative management failed to fully relieve his knee pain, he underwent arthroscopic surgery." (Id. ¶¶ 37-38.)
Dr. Koenigsman also referred to the conservative nature of Culp's treatment:
[P]laintiff's medical care was continuous and appropriate. Surgery was given only after physical therapy and other provisions to assist plaintiff were shown not to work. This program was consistent with sound medical practice, which generally discourages surgery in favor of more conservative courses of treatment.
(Koenigsman 7/7/00 Aff. ¶ 7; see also the CPS testimony discussed at pages 4-6 above.)
The State defendants' expert medical witness, Dr. Edward S. Crane, also opined as to the propriety of Culp's treatment by defendants:
The records indicate that Mr. Culp was examined shortly after the alleged injury of 12/29/98. He was evaluated on numerous occasions at the medical facility. In addition, he was examined by the orthopedic surgeon on three occasions, the physiatrist on two occasions, prior to the surgery of 12/14/99. An MRI of the knee was performed on 4/5/99 and it showed no meniscal tear.
Meniscal tears are very common conditions in the knee. They can be present for years without causing any symptoms. Many patients "live" with meniscal tears without ever having surgery. It is appropriate to attempt a course of conservative therapy including non-steroidal anti-inflammatory medications and physical therapy which often alleviate symptoms and obviate the knee for surgery.
When the operation was performed on 12/14/99 a torn medial meniscus was found — but there was no evidence of any additional damage to the knee such as erosion of the articular cartilage or chondromalacia. There was no harm done to Mr. Culp as a result of the one year interval between the incident of 12/29/98 and the surgery of 12/14/99.
The medical services provided to Mr. Culp were appropriate. Reasonable medical attention was given to him. Any disability or residuals in the right knee would not have been prevented by earlier surgery.
(Alderstein Aff. Ex. E: Dr. Crane's Expert Report at 1-2.)
Not surprisingly, Culp did not present any medical opinion testimony to support his case. Rather, Culp's claim relies on one doctor's recommendation for arthroscopic surgery: "Notably, when the outside orthopedics [sic] specifically recommended surgery, it was at that hour that surgery should have been scheduled and not met by a denial by Correction Physician Services. . . ." (Culp 6/15/00 Aff. ¶ 14; see also Culp Br. at 5.)
ANALYSIS I. GOVERNING LEGAL STANDARDS GOVERNING LEGAL STANDARDS A. Summary Judgment Standards
Rule 56(c) of the Federal Rules of Civil Procedure provides 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 of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).
See also, e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *4 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Gill v. DeFrank, 98 Civ. 7851, 2000 WL 270854 at *4 (S.D.N.Y. March 9, 2000) (Peck, M.J.), report rec. adopted in relevant part, 98 Civ. 7851, 2000 WL 897152 (S.D.N.Y. July 6, 2000) (Buchwald, D.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *3 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 534 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.); Watson v. McGinnis, 981 F. Supp. 815, 817 (S.D.N Y 1997) (Kaplan, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N Y Jan. 23, 1997) (Peck, M.J.).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4. Greenfield v. City of New York, 2000 WL 124992 at *3; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 817; Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997) (Peck, M.J.).
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.
To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986). Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.
See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534.
See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor."
Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513. The Court draws all inferences in favor of the nonmoving party — here, Culp — only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.
See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 534; Watson v. McGinnis, 981 F. Supp. at 818; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818.; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *4; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted).
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.
See also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *5; Greenfield v. City of New York, 2000 WL 124992 at *4; Salahuddin v. Coughlin, 999 F. Supp. at 535; Watson v. McGinnis, 981 F. Supp. at 818; Ruiz v. Selsky, 1997 WL 137448 at *3.
"The Court recognizes that it must `extend extra consideration' to pro se plaintiffs" such as Culp and that "pro se parties are `to be given "special latitude on summary judgment motions."'" Salahuddin v. Coughlin, 999 F. Supp. at 535 (citing cases). "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases); see also, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *5.
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Carbonell v. Goord, 2000 WL 760751 at *4; Gill v. DeFrank, 2000 WL 270854 at *5; Watson v. McGinnis, 981 F. Supp. at 818; see also, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "`to raise the strongest arguments that they suggest'").
B. § 1983 and Deliberate Indifference to Serious Medical Needs
To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law. See 42 U.S.C. § 1983; West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254-55 (1988). "Section 1983 itself," however, "creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citation omitted), cert. denied, 512 U.S. 1240, 114 S.Ct. 2749 (1994).
See also, e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *5 (S.D.N.Y. June 13, 2000); Gill v. DeFrank, 98 Civ. 7851, 2000 WL 270854 at *5 (S.D.N.Y. March 9, 2000) (Peck, M.J.); Greenfield v. City of New York, 99 Civ. 2330, 2000 WL 124992 at *4 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Ali v. Szabo, 81 F. Supp.2d 447, 453 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.); Jackson v. Johnson, 15 F. Supp.2d 341, 355 (S.D.N Y 1998) (Kaplan, D.J. Peck, M.J.); Silva v. Sanford, 91 Civ. 1776, 1998 WL 205326 at *8 (S.D.N.Y. April 24, 1998) (Peck, M.J.); Williams v. Keane, 95 Civ. 0379, 1997 WL 527677 at *3 (S.D.N.Y. Aug. 25, 1997) (Peck, M.J.).
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *5 Ali v. Szabo, 81 F. Supp.2d at 453; Jackson v. Johnson, 15 F. Supp.2d at 255-56; Silva v. Sanford, 1998 WL 205326 at *8; Williams v. Keane, 1997 WL 527677 at *3; Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *4 (S.D.N Y March 24, 1997) (Peck, M.J.); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N Y 1995) (Sotomayor, D.J. Peck, M.J.).
The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" and conduct that offends "evolving standards of decency." E.g., Wilson v. Seiter, 501 U.S. 294, 297, 308, 111 S.Ct. 2321, 2323, 2329 (1991); Estelle v. Gamble, 429 U.S. 97, 102, 104-05, 97 S.Ct. 285, 290, 291 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925 (1976); Carbonell v. Goord, 2000 WL 760751 at *5; Gill v. DeFrank, 2000 WL 270854 at *10.
To establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs. See, e.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291.
See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *6; Gill v. DeFrank, 2000 WL 270854 at *10; Howard v. Headly, 72 F. Supp.2d 118, 123 (E.D.N.Y. 1999).
As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108 (1995). "Objectively, the deprivation must be `sufficiently serious.'" Id.
See also, e.g., Carbonell v. Goord, 2000 WL 760751 at *6; Gill v. DeFrank, 2000 WL 270854 at *10.
Eighth Amendment protection extends to "`a condition of urgency' that may result in `degeneration' or `extreme pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Moreover, deliberate indifference to future as well as present health problems may be actionable under the Eighth Amendment. See, e.g., Helling v. McKinney, 509 U.S. at 33-35, 113 S.Ct. at 2480-82; accord, e.g., Warren v. Keane, 196 F.3d 330, 332-33 (2d Cir. 1999); Baumann v. Walsh, 36 F. Supp.2d 508, 510 (N.D.N.Y. 1999); Petrazzoulo v. United States Marshals Service, 999 F. Supp. 401, 407 (W.D.N Y 1998).
"Subjectively, the charged official must act with a sufficiently capable state of mind." Hathaway v. Coughlin, 99 F.3d at 553. "The required state of mind, equivalent to criminal recklessness, is that the official '"knows of and disregards 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."'" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994))).
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *6; Gill v. DeFrank, 2000 WL 270854 at *11.
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *6; Gill v. DeFrank, 2000 WL 270854 at *11; see also, e.g., LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998) ("To succeed in showing deliberate indifference, [plaintiff] must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger.").
Mere disagreements with the quality of medical care, however, do not state an Eighth Amendment claim. E.g., Estelle v. Gamble, 429 U.S. at 106-07, 97 S.Ct. at 292-93 ("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. . . . A medical decision not to order an x-ray, or like measures, does not represent cruel and unusual punishment."); Hathaway v. Coughlin, 37 F.3d at 70 (Jacobs, C.J., dissenting) ("'We do not sit as a medical board of review. Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors.'"); Troy v. Kuhlmann, 96 Civ. 7190, 1999 WL 825622 at *6 (S.D.N.Y. Oct. 15, 1999) ("a prisoner's disagreement with the diagnostic techniques or forms of treatment employed by medical personnel does not itself give rise to an Eighth Amendment claim"); Brown v. Selwin, 98 Civ. 3008, 1999 WL 756404 at *6 (S.D.N.Y. Sept. 24, 1999) (citing cases); Negron v. Macomber, 95 Civ. 4151, 1999 WL 608777 at *6 (S.D.N.Y. Aug. 11, 1999); Espinal v. Coughlin, 98 Civ. 2579, 1999 WL 387435 at *3 (S.D.N.Y. June 14, 1999).
"Deliberate indifference requires more than mere negligence, but less than conduct undertaken for the very purpose of causing harm." Hathaway v. Coughlin, 37 F.3d at 66. Carbonell must demonstrate that defendants knew of and disregarded an excessive risk to his health and safety. Id. (citing Farmer v. Brennan, 511 U.S. at 837, 114 S.Ct. at 1979); see also, e.g., Farmer v. Brennan, 511 U.S. at 842, 114 S.Ct. at 1981 ("[A] factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk is obvious."); Hathaway v. Coughlin, 99 F.3d at 553 ("[T]he alleged deprivation must be sufficiently serious in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists.") (citations omitted).
Furthermore, a delay in medical treatment does not necessarily invoke the Eighth Amendment:
Although a delay in providing necessary medical care may in some cases constitute deliberate indifference, this Court 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. No such circumstances are present here. At no point was [plaintiff's] condition "fast degenerating" or "life threatening," and there is no indication that [defendant] delayed treatment in order to punish him. Moreover, any delay in treatment in this case does not give rise to the egregious level identified in Hathaway. That [plaintiff] feels something more should have been done to treat his injuries is not a sufficient basis for a deliberate indifference claim.
Demata v. New York State Correctional Dep't of Health Servs., No. 99-0066, 198 F.3d 233 (Table), 1999 WL 753142 at *2 (2d Cir. Sept. 17, 1999) (citations omitted) (summary judgment for defendants where plaintiff complained of knee injury in February 1994 and surgery not done until March 1997).
C. Qualified Immunity
Qualified Immunity As the Second Circuit has explained, government actors are entitled to qualified immunity from liability for civil damages when they perform discretionary functions "if either (1) their conduct `did not violate clearly established rights of which a reasonable person would have known,' or (2) `it was objectively reasonable to believe that [their] acts did not violate these clearly established rights.'" Young v. County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998); accord, e.g., Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000). "The availability of the defense depends on whether a reasonable [official] could have believed his action to be lawful, in light of clearly established law and the information [he] possessed." Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996) (internal quotation marks omitted).
See also, e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *7 n. 16 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Gill v. DeFrank, 98 Civ. 7851, 2000 WL 270854 at *8-9 (S.D.N.Y. March 9, 2000) (Peck, M.J.), report rec. adopted in relevant part, 98 Civ. 7851, 2000 WL 897152 (S.D.N.Y. July 6, 2000) (Buchwald, D.J.); Ali v. Szabo, 81 F. Supp.2d 447, 460-61 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.); Jackson v. Johnson, 15 F. Supp.2d 341, 351 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Salahuddin v. Coughlin, 999 F. Supp. 526, 536-37 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.).
See also, e.g., Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536 (1991); Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3040 (1987); Martinez v. Simonetti, 2000 WL 129188 at *7; Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *8.
Defendants here appropriately do not dispute that it was clearly established that a prison official's deliberate indifference to an inmate's serious medical needs would violate the Eighth Amendment. (See State Br. at 17-20; see cases cited at pages 13-16 above.) See also, e.g., Smith v. Greifinger, No. 99-0042, 208 F.3d 203 (table), 2000 WL 288362 at *3 (2d Cir. March 17, 2000) (inmate's right to be free from deliberate indifference to his serious medical needs is clearly established) (citing LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 (1976))); Candelaria v. Cunningham, 98 Civ. 6273, 2000 WL 280052 at *6 (S.D.N.Y. March 14, 2000); Carbonell v. Goord, 2000 WL 760751 at *7. Rather, defendants argue under the second prong of the qualified immunity test that "it was reasonable for defendants to take the actions that they took with respect to plaintiff." (State Br. at 15.)
"The objective reasonableness test is met — and the defendant[s] [are] entitled to immunity — if `officers of reasonable competence could disagree' on the legality of the defendant[s'] actions." Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995). However, defendants are entitled to summary judgment on qualified immunity grounds only if, viewing the evidence in the light most favorable to and drawing all reasonable inferences in favor of the plaintiff, no rational jury could conclude that it was objectively unreasonable for defendants to believe that their actions did not violate a clearly established right. See, e.g., Williams v. Greifinger, 97 F.3d 699, 706 (2d Cir. 1996); In re State Police Litigation, 88 F.3d 111, 123 (2d Cir. 1996); Lennon v. Miller, 66 F.3d at 420-21; Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *9. "In other words, if any reasonable trier of fact could find that the defendants' actions were objectively unreasonable, then the defendants are not entitled to summary judgment." Lennon v. Miller, 66 F.3d at 420; accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *9.
Accord, e.g., Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *9.
II. APPLICATION OF THESE LEGAL PRINCIPLES TO CULP'S CLAIMS OF THESE LEGAL PRINCIPLES TO CULP'S CLAIMS
Culp has not alleged sufficient facts to meet the subjective prong of the two-part deliberate indifference test. He has presented no evidence from which a reasonable juror could conclude that defendants acted with deliberate indifference to his well-being or acted with a sufficiently culpable state of mind. (See pages 3-8 above.) Culp was seen frequently by prison medical staff and by outside consultants. (See pages 3-6 above.) He was given x-rays and an MRI, all of which were negative. (See pages 3-4 above.) He was given "conservative" medical treatment — medication, a cane, physical therapy — with repeated follow-up examinations. (See pages 4-8 above.) It does not appear that there was any lack of due care. Culp's claim is based on the fact that one doctor recommended arthroscopic surgery in April 1999, while another doctor, employed by CPS, concluded that surgery was not warranted until more conservative measures like physical therapy had been tried and failed. At most, Culp's treatment reflects a difference in opinion as to his medical treatment rather than any deliberate indifference to his medical needs. As stated earlier, mere disagreement in treatment does not amount to an Eighth Amendment violation. (See cases cited at page 13-16 above.) Carbonell's claim is quite similar to the claim in Demata v. New York State Dep't of Correctional Servs., No. 99-0066, 198 F.3d 233 (table), 1999 WL 753142 (2d Cir. Sept. 17, 1999). In that case, Demata's knee injury occurred on February 23, 1994. In September 1994, an MRI was performed and the knee was examined by an orthopedist, who prescribed physical therapy and a knee support; Demode continued to complain of pain and was given Tylenol and increased physical therapy; finally, additional medical consultations and MRIs culminated in knee surgery in March 1997, three years after his injury. Id., 1999 WL 753142 at *1. The Second Circuit affirmed the grant of summary judgment to the prison nurse administrator who Demode complained had delayed his medical care, id. at *2, and to a treating prison doctor who prescribed physical therapy, id. at *3. The Second Circuit noted that "strengthening exercises are in fact a form of medical care [and] Demode's mere disagreement with this form of treatment does not establish deliberate indifference." Id. at *3. Culp's case, in which the "delay" from injury to surgery is one year, not the three years in Demode, similarly is at most a disagreement as to the appropriate course of medical treatment.
While in today's climate one might speculate that cost may have been a consideration in CPS's decision, there is no evidence to that effect in the record.
Similarly, in Sharp v. Jeanty, 93 Civ. 0220, 1993 WL 498095 (S.D.N.Y. Nov. 30, 1993), a prisoner brought a § 1983 action alleging deliberate indifference to his medical needs following a knee injury. His complaint was dismissed since his medical "records indicate[d] an extensive and ongoing course of medical treatment" of his injury, and many of his allegations amounted to "second guessing the treatments of his health care providers. `[A] prisoner's disagreement with his prescribed treatment does not afford a basis for relief under § 1983.'" Id. at *2; see also, e.g., Slone v. O'Dea, No. 96-5444, 107 F.3d 871 (Table), 1997 WL 68218 at *1 (6th Cir. Feb. 18, 1997)
("Although [plaintiff] did not receive the treatment he desired, his Eighth Amendment rights were not violated as [the prison doctor] did provide conservative treatment . . ."); Birdwell v. Gomez, No. 95-16849, 97 F.3d 1458 (Table), 1996 WL 554460 at *1 (9th Cir. Sept. 23, 1996); Maxey v. Astorga, No. 93-16952, 29 F.3d 633 (Table), 1994 WL 328212 at *1 (9th Cir. July 6, 1994) ("a difference in medical opinion about treatment does not amount to a deliberate indifference to serious medical needs"); McCutcheon v. Sood, No. 99 C 932, 2000 WL 528481 at *3 (N.D.Ill. April 26, 2000); Bittaker v. Gomez, No. C-95-0552, 1999 WL 66514 at *5 (N.D.Cal. Feb. 8, 1999); Bednar v. County of Schuykill, 29 F. Supp.2d 250, 253 (E.D.Pa. 1998); Mendez v. John, No. 95-CV-1305, 1998 WL 159543 at *2-4 (N.D.N.Y. March 31, 1998) (Pooler, D.J.); Nelson v. Baggia, No. 92-3175, 1994 WL 230455 at *3 (C.D.Ill. Feb. 22, 1994) (no deliberate indifference where conservative treatment of knee injury was used, followed by surgery). Accordingly, defendants are entitled to summary judgment.
The Court, therefore, need not reach the issue of qualified immunity.
CONCLUSION
For the reasons set forth above, defendants' summary judgment motion is GRANTED GRANTED. The Clerk of Court is directed to enter judgment accordingly.SO ORDERED.