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dismissing a complaint where an inmate underwent an appendectomy 19 days after an initial complaint of abdominal pain and cramps led to a diagnosis of a stomach virus
Summary of this case from Clark v. LayOpinion
99 Civ. 9878 (AJP).
September 29, 2000.
OPINION AND ORDER
Pro se plaintiff Darryl L. Freeman brought this action for damages under 42 U.S.C. § 1983 and the Eighth Amendment, alleging that officials at Fishkill Correctional Facility "were deliberately indifferent to his medical needs by their wanton failure to provide adequate medical care at a time when plaintiff was suffering great pain due to an inflamed appendix which later required removal by means of surgery." (Freeman Br. at 1.)
Defendants have moved for summary judgment, arguing that: (1) there was no deliberate indifference to Freeman's medical care (Defs. Br. at 7-13); (2) defendants Goord, Strack and Mikler had no personal involvement in any alleged violation (id. at 13-17); (3) defendants are entitled to qualified immunity (id. at 17-19); and (4) claims brought against defendants in their official capacities are barred by the Eleventh Amendment (id. at 19-20).
The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 16.)
Freeman concedes that his complaint should be dismissed as to defendants Strack and Goord because they were not personally involved in the alleged violations. (See Freeman Br. at 5; Freeman Resp. at 4.) Accordingly, the complaint is dismissed as to those two defendants.
Goord is the Commissioner of DOCS. (See, e.g., Amended Compl. ¶ 11; Defs. Freeman 56.1 Stmts. ¶ 5.) Strack is the Superintendent of Fishkill. (See, e.g., Amended Compl. ¶ 11; Defs. Freeman 56.1 Stmts. ¶ 7.)
"It is black letter law that a suit against a state official in his official capacity seeking damages is barred by the Eleventh Amendment. . . ." Jackson v. Johnson, 30 F. Supp.2d 613, 618 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.) ( cases cited therein). Since plaintiff Freeman's complaint seeks only damages, his claims against all defendants in their official capacities are dismissed.
Finally, summary judgment is GRANTED in favor of the remaining defendants in their personal capacity, for the reasons discussed below.
FACTS
Background
Darryl L. Freeman has been serving a prison term since 1981 for attempted murder. (Barbour Aff. Ex. A: Freeman Dep. at 10; Defs. Freeman 56.1 Stmts. ¶¶ 3-4.) At all times relevant to this action, Freeman was incarcerated at Fishkill Correctional Facility. (Defs. Freeman 56.1 Stmts. ¶ 2.)
Defendants Ivan Mikler, Catherine Frater and Dennis Brooker are employees of the New York State Department of Correctional Services ("DOCS"): Mikler was Fishkill's Facility Health Services Director during the relevant period; Frater and Brooker are registered nurses at Fishkill. (Freeman Dep. at 23-24; Defs. Freeman 56.1 Stmts. ¶¶ 11, 21, 27; Mikler Aff. ¶¶ 3-4; Frater Aff. ¶¶ 1-3; Brooker Aff. ¶¶ 1-3.)
The Events of November 6, 1998 to November 25, 1998
On November 6, 1998, Freeman attended sick call where, according to Freeman, he told Nurse Frater that he had been experiencing "pains, cramps, and diarrhea for three days," requested to see a doctor, and asked for a medical excuse from his work program. (Freeman Dep. at 26-30, 33; Freeman 56.1 Stmt. ¶¶ 39-40.) Freeman had not sought medical treatment for the diarrhea prior to November 6, 1998 because he was attending the Family Reunion-Program ("FRP"). (Freeman Dep. at 27-28; Defs. Freeman 56.1 Stmts. ¶ 41.) Freeman told Nurse Frater that during the two-day program, he had eaten, among other things, barbeque chicken and macaroni and cheese. (Freeman Dep. at 31; Defs. Freeman 56.1 Stmts. ¶ 43.) According to Freeman, Nurse Frater "gave a superficial glance at the first page contained in [his] medical folder and said something to the effect, `this is your first time down here at sick-call.'" (Freeman 56.1 Stmt. ¶ 44.) Freeman claims that Nurse Frater told him he had a stomach virus and that "there [was] nothing she [could] do about that." (Freeman 56.1 Stmt. ¶ 44; see also Freeman Dep. at 30.) Nurse Frater gave Freeman a bottle of Kaopectate and advised him to eat small portions of food and to drink plenty of fluids. (Freeman Dep. at 29; Defs. Freeman 56.1 Stmts. ¶ 44; Frater Aff. ¶ 7; Barbour Aff. Ex. D at 1: medical record, 11/6/98.) According to Freeman, Nurse Frater told him that it was not necessary that he see a doctor. (Freeman Dep. at 30-31.)
Nurse Frater admits that Freeman attended sick call on November 6, 1998, but alleges that Freeman told her he had diarrhea for two days rather than three. (Frater Aff. ¶ 6;see also Barbour Aff. Ex. D. at 1: medical record, 11/6/98.) She denies that Freeman requested to see a doctor, alleging that she would have recorded any such request in the "subjective" portion of his medical chart. (Frater Aff. ¶¶ 7-8; see Defs. Ex. D at 1: medical record, 11/6/98.)
"The FRP, which is governed by the New York Codes, Rules and Regulations (`NYCRR'), offers inmates extended private visits with their spouses and families. See N.Y. Comp. Codes R. Regs. Tit. 7, §§ 220.1-220.6 (1986). Generally, FRP visits take place overnight or over a weekend in a trailer within the prison facility." Hernandez v. Coughlin, 18 F.3d 133, 135 (2d Cir.),cert. denied. 513 U.S. 836, 115 S.Ct. 117 (1994). (See also Defs. Freeman 56.1 Stmts. ¶ 42.)
Nurse Frater claims she reviewed Freeman's medical history and determined that there was nothing in that history to suggest that his complaint of diarrhea was indicative of a more serious problem. (Frater Aff. ¶ 6.)
Nurse Frater denies telling Freeman he had a stomach virus, alleging that as a registered nurse, she is not authorized to make diagnoses. (Frater Aff. ¶ 9.)
After seeing Nurse Frater, Freeman returned to his cube (i.e., his living quarters) and to his work assignment in the woodshop. (Freeman Dep. at 31-32; Defs. Freeman 56.1 Stmts. ¶¶ 46-47.) Freeman claims that he only returned to his cube and work "because Nurse Frater failed to allow [him] to see a Doctor as requested, and refused to issue a medical excuse from work." (Freeman 56.1 Stmt. ¶ 46; see also Freeman Dep. at 33.)
Freeman alleges that his diarrhea ceased "[a] couple of days after going to sick call," but that his pain persisted for the next nineteen days. (Freeman Dep. at 34.) Between his November 6, 1998 visit to Nurse Frater and the morning of November 25, 1998, however, Freeman did not request a sick call or any type of medical attention. (Freeman Dep. at 34-35; Defs. Freeman 56.1 Stmts. ¶ 48.) Rather, he continued to go to the woodshop program and drink the Kaopectate that Nurse Frater had given him. (Freeman Dep. at 32-36; Defs. Freeman 56.1 Stmts. ¶ 49.) Freeman claims he "did not request a sick call visit between November 6, 1998 and November 24, 1998, because [he] had been impressed by Nurse Frater's comment that it was only a stomach virus and . . . [he] relied on same expecting the `stomach virus' to eventually dissipate with consumption of the kaopectate given to him by Nurse Frater." (Freeman 56.1 Stmt. ¶ 48; see also Freeman Dep. at 34.) Freeman told three fellow inmates about his abdominal pain, but did not inform any staff members. (Freeman Dep. at 35.)
Corrections Officer Rosemary Coon was assigned to Freeman's housing unit from 10:30 p.m. on November 24, 1998 to 6:30 a.m. on November 25, 1998. (Defs. Freeman 56.1 Stmts. ¶¶ 50, 52; Coon Aff. ¶¶ 1-2.) At some point during the night, Officer Coon observed Freeman awake, sitting up and smoking a cigarette. (Defs. Freeman 56.1 Stmts. ¶ 53; Coon Aff. ¶ 3.) Freeman alleges that at another time, Officer Coon observed him "lying on his bunk in [a] fetal position." (Freeman 56.1 Stmt. ¶ 54.)
Officer Coon is not a defendant in this action. (See Amended Compl.)
Officer Coon does not recall seeing Freeman in a fetal position. (Coon Aff. ¶ 3.) She alleges, however, that at one point she "asked plaintiff if anything was the matter and [he] indicated that he had a little indigestion and that the medication he had was not working." (Id.)
At approximately 5:20 a.m. on November 25, 1998, Freeman walked from his cube to Officer Coon's station. (Freeman Dep. at 36-39; Defs. Freeman 56.1 Stmts. ¶ 55.) According to Freeman, he was "bent at the waist, in a 75 degree forward lean, holding his stomach." (Freeman 56.1 Stmt. ¶ 56.) Freeman told Officer Coon that he had bad stomach cramps and wanted to go to the central clinic. (Freeman Dep. at 36-39; Defs. Freeman 56.1 Stmts. ¶ 57; Coon Aff. ¶¶ 4-5.) Freeman claims that he also told Officer Coon that there was something "seriously wrong" and that he was in a lot of pain. (Freeman Dep. at 36, 39.) Officer Coon called the central clinic and told Nurse Dennis Brooker that Freeman had bad stomach cramps and, according to Freeman, that he was in "a lot of pain." (Freeman Dep. at 39-40; Defs. Freeman 56.1 Stmts. ¶¶ 58-59; Coon Aff. ¶ 5; Brooker Aff. ¶ 9; Barbour Aff. Ex. E: Housing 5-2 Log, 11/25/98 at 5:20 a.m.)
Coon alleges that Freeman walked to her office "in an upright manner" without any apparent difficulty. (Coon Aff. ¶ 4.)
Nurse Brooker told Officer Coon that he would not see Freeman at that time, but would schedule him for a 7:30 a.m. sick call; Officer Coon relayed this information to Freeman. (Freeman Dep. at 40-42; Defs. Freeman 56.1 Stmts. ¶¶ 63, 65; Coon Aff. ¶ 5; Brooker Aff. ¶ 10.) After being told he was scheduled for 7:30 a.m. sick call, Freeman returned to his bed without complaint. (Defs. Freeman 56.1 Stmts. ¶ 67; Coon Aff. ¶ 5; Freeman Dep. at 42.)
According to Nurse Brooker: "From 10:30 p.m. on November 24, 1998 and 6:30 a.m. on November 25, 1998, there were no doctors or physician's assistants present at Fishkill" and Nurse Brooker did not have access to x-ray equipment. (Brooker Aff. ¶¶ 6, 8.) However, Nurse Brooker alleges that "[d]uring that shift, either a doctor or a physician's assistant was on call and could be reached by telephone," in an emergency. (Id. ¶ 8.) Nurse Brooker claims that it is his usual practice to respond to night time calls requesting medical assistance by "taking information given . . . by facility personnel and asking additional questions relating to symptoms and pain location," and "[biased upon the information received and a review of the patient's medical records, . . . make a determination as to whether an immediate, physical examination was necessary or if the patient would be referred to the morning sick call." (Id. ¶ 6.) He further claims that "without prior existing medical problems, plaintiff's symptom of bad stomach cramps, alone, was not an emergency condition" and that he "was not told that plaintiff was vomiting, experiencing nausea, holding his abdomen or complaining of fever, all factors suggesting appendicitis or a emergency medical condition." (Id. ¶ 9.)
About two hours later, at approximately 7:30 a.m., Freeman went to sick call. (Freeman Dep. at 43-44; Defs. Freeman 56.1 Stmts. ¶ 68.) Freeman was initially seen by Nurse Stalmach who referred Freeman to physician's assistant Robert A. Macomber. (Freeman Dep. at 43-44; Defs. Freeman 56.1 Stmts. ¶ 69; Barbour Aff. Ex. D at 1: medical record, 11/25/98; Macomber Aff. ¶¶ 6, 10.)
Stalmach and Macomber are not defendants in this action.(See Amended Compl.)
Freeman told Macomber that he had pain in the right lower portion of his abdomen. (Freeman Dep. at 44; Defs. Freeman 56.1 Stmts. ¶ 70; Macomber Aff. ¶ 6.) Macomber examined Freeman, ordered an abdominal x-ray, and upon its review, observed an abnormality in that area. (Freeman Dep. at 44-45; Defs. Freeman 56.1 Stmts. ¶ 77; Macomber Aff. ¶¶ 9, 11.) Macomber transferred Freeman to St. Agnes Hospital where additional tests were performed and it was determined that Freeman had acute appendicitis. (Defs. Freeman 56.1 Stmts. ¶ 78; Macomber Aff. ¶ 13; Barbour Aff. Ex. D: medical record, 11/25/98.) According to Freeman, it was approximately 10:30 a.m. when Macomber told him he was going to the hospital and 12:45 p.m. before Freeman left Fishkill. (Freeman Dep. at 45; Barbour Aff. Ex. C at 5: 6/4/99 Grievance at 2.) Freeman underwent an appendectomy at the hospital at approximately 7:00 p.m. that evening. (Defs. Freeman 56.1 Stmts. ¶¶ 78, 80; Barbour Aff. Ex. C at 5: 6/4/99 Grievance at 2.)
Two days later, on November 27, 1998, Freeman was returned to Fishkill where he asked to be returned to his housing unit. (Defs. Freeman 56.1 Stmts. ¶ 81.) Freeman alleges that he experienced "a lot of pain" for three to four weeks following his appendectomy, but that he stopped taking the prescribed Tylenol with codeine because he "did not like the way it made [him] feel." (Freeman Dep. at 47.)
Freeman submitted an inmate grievance dated June 4, 1999 complaining about Nurse Brooker's refusal to see him immediately on November 25, 1998. (Amended Compl. ¶ II.C.; Barbour Aff. Ex. C: 6/4/99 Grievance at 2; see also Barbour Aff. Ex. C at 7.) The committee which reviewed his complaint "recommend[ed] that the superintendent investigate this matter to determine if negligence occurred." (Barbour Aff. Ex. C at 8: 6/21/99 Response to Grievance.) Upon review, it was determined that "the Medical Department provided appropriate treatment based upon the grievant's symptoms." (Barbour Aff. Ex. C at 6: 7/6/99 Disposition.)
ANALYSIS
I. 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., Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *4 (S.D.N.Y. July 19, 2000) (Peck, M.J.); 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 WI 270854 at *4 (S.D.N.Y. March 9, 2000) (Peck, M.J.), report rec. adopted in relevant part. 2000 WI 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 WI 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., Culp v. Koenigsmann, 2000 WL 995495 at *4;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 818, Ruiz v. Selsky, 96 Civ. 2003, 1997 WL 137448 at *3 (S.D.N.Y. March 24, 1997) (Peck, M.J.).
Accord, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *4;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.
Accord, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *5;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., Culp v. Koenigsmann, 2000 WL 995495 at *5;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, Freeman — 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; Culp v. Koenigsmann, 2000 WL 995495 at *5; 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., Culp. v. Koenigsmann, 2000 WL 995495 at *5;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., Culp v. Koenigsmann, 2000 WL 995495 at *5;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., Culp v. Koenigsmann, 2000 WL 995495 at *5;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., Culp v. Koenigsmann, 2000 WL 995495 at *5;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; Culp v. Koenigsmann, 2000 WL 995495 at *5;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 Freeman 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).
B. § 1983 and Deliberate Indifference to Serious Medical Needs
Accord, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *5;Carbonell v. Goord, 2000 WL 760751 at *5; 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'").
See also, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *5;Carbonell v. Goord, 2000 WL 760751 at *5. Gill v. DeFrank, 2000 WL 270854 at *5.
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., Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *6 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Carbonell v.Goord, 99 Civ. 3208, 2000 WL 760751 at *5 (S.D.N.Y. June 13, 2000) (Peck, M.J.); 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. July 23, 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., Culp v. Koenigsmann, 2000 WL 995495 at *6;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).
See also, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *6;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.
Accord, e.g., Culp v. Koenigsmann, 2000 WL995495 at *6;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. 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. 25, 33-35 113 S.Ct. 2475, 2480-82 (1993) (holding that exposure to unreasonably high levels of second hand smoke is sufficient to support the objective component of an Eighth Amendment claim).
See also, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *6;Carbonell v. Goord, 2000 WL 760751 at *6; Gill v. DeFrank, 2000 WL 270854 at *10.
Accord, e.g., Warren v. Keane, 196 F.3d 330, 332-33 (2d Cir. 1999); Culp v. Koenigsman, 2000 WL 995495 at *6; 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 culpable 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., Culp v. Koenigsmann, 2000 WL 995495 at *6;Carbonell v. Goord, 2000 WL 760751 at *6. Gill v. DeFrank, 2000 WL 270854 at *11.
Accord, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *6;Carbonell v. Goord, 2000 WL760751 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.").
Deliberate indifference may be "manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care."Estelle v. Gamble, 429 U.S. at 104-05, 97 S.Ct. at 291. However, an "inadvertent failure to provide adequate medical care" does not constitute "deliberate indifference." Estelle v.Gamble, 429 U.S. at 105-06, 97 S.Ct. at 292; accord, e.g., Burton v. New York State Dep't of Corrections, 93 Civ. 6028, 1994 WL 97164 at *2 (S.D.N.Y. March 2, 1994) (Sotomayor, D.J.). "Thus, 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." Estelle v.Gamble, 429 U.S. at 106, 97 S.Ct. at 292; accord, e.g., Hathaway v. Coughlin, 99 F.3d at 553; Carbonell v. Goord, 2000 WL 760751 at *9 n. 20; Felipe v. New York State Dep't of Correctional Servs. No. 95-CV-1735, 1998 WL 178803 at *3 (N.D.N.Y. April 10, 1998) (Pooler, D.J.). As the Supreme Court has stated, "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106, 97 S.Ct. at 292; accord, e.g., Hathaway v. Coughlin, 99 F.3d at 553; Burton v. New York State Dep't of Corrections, 1994 WL 97164 at *2; see, e.g., 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.'"); Culp v. Koenigsmann, 2000 WL 995495 at *7 ("Mere disagreements with the quality of medical care, however, do not state an Eighth Amendment claim.").
See, e.g., Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994) (delay for more than two years in removing broken pins from prisoner's hip despite nearly fifty complaints of pain), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108 (1995); Liscio v. Warren, 901 F.2d 274, 277 (2d Cir. 1990) (failure to provide medical attention to a delirious inmate for three days); Williams v.Vincent, 508 F.2d 541, 544 (2d Cir. 1974) (doctor chose "easier and less efficacious treatment" of throwing away inmate's ear and stitching the stump rather than attempting to reattach ear).
See also, e.g., 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).
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 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); accord, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *7.8.
C. Supervisory Liability for § 1983 Claims
"It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v.Smith 21 F.3d 496, 501 (2d Cir. 1994); accord, e.g., Fischl v.Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.) ("In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.").
See also, e.g., Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *6 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Ali v. Szabo, 81 F. Supp.2d 447, 462 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.); Jackson v. Johnson, 15 F. Supp.2d 341, 365 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Watson v. McGinnis, 964 F. Supp. 127, 130 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.); Wright v. Nunez, 950 F. Supp. 610, 611 (S.D.N.Y. 1997) (Martin, D.J. Peck, M.J.);McCray v. Kralik, 96 Civ. 3891, 1996 WL 378273 at *3 (S.D.N Y July 1, 1996) (Peck, M.J.).
"The personal involvement of a supervisory defendant may be shown by evidence that: (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 [citizens] by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d at 873. D. Qualified Immunity
Accord, e.g., Wright v. Smith, 21 F.3d at 501; Carbonell v. Goord, 2000 WL 760751 at *7; Ali v. Szabo, 81 F. Supp.2d at 462-63; Jackson v. Johnson 15 F. Supp.2d at 365; Watson v.McGinnis, 964 F. Supp. at 130; Wright v. Nunez, 950 F. Supp. at 611; Lloyde v. Lord, 94 Civ. 484, 1997 WL 123996 at *1 (S.D.N Y March 19, 1997); McCray v. Kralik, 1996 WL 378273 at *3;Zamakshari v. Dvoskin, 899 F. Supp. at 1109.
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., Culp v. Koenigsmann, 99 Civ. 9557, 2000 WL 995495 at *8 (S.D.N.Y. July 19, 2000) (Peck, M.J.); 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; Culp v. Koenigsmann, 2000 WL 995495 at *8;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 Defs. Br. at 17-20; see cases cited at pages 14-18 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); Culp v.Koenigsmann, 2000 WL 995495 at *8; 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." (Defs. 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. "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., Culp v.Koenigsmann, 2000 WL 995495 at *8; Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *9.
Accord, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *8;Carbonell v. Goord, 2000 WL 760751 at *7. Gill v. DeFrank, 2000 WL 270854 at *9.
See also, e.g., Culp v. Koenigsmann, 2000 WL 995495 at *8;Carbonell v. Goord, 2000 WL 760751 at *7; Gill v. DeFrank, 2000 WL 270854 at *9.
II. THE ALLEGATIONS AGAINST NURSE FRATER, NURSE BROOKER AND DR. MIKLER ARE INSUFFICIENT TO GIVE RISE TO § 1983 LIABILITY A. Nurse Frater
Freeman contends that if Nurse Frater had not refused his request to see a doctor on November 6, 1998 when he told Nurse Frater that he had been suffering from pain, cramps and diarrhea for three days, he would have been prescribed antibiotics and would not have had to undergo an appendectomy nineteen days later and suffer from cramps and pain in the meantime. (See Amended Compl. ¶ IV-A; see also, e.g., Freeman Dep. at 48.) Freeman alleges that Nurse Frater demonstrated deliberate indifference by "just giving [him] a bottle of Kaopectate without examining [him]." (Freeman Dep. at 56.)
Freeman has presented no evidence that it is medically possible to prevent appendicitis with antibiotics (or any other treatment), and the Court — having gone to law school not medical school — is in no position to take judicial notice in this area. But even assuming that Freeman's appendectomy could have been prevented by the administration of antibiotics on November 6, 1998, Freeman has failed to allege facts sufficient to show that Nurse Frater acted with deliberate indifference,i.e that Nurse Frater knew of and disregarded an excessive risk to Freeman's health. See, e.g., Farmer v. Brennen, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994). Freeman has not pointed to any facts of which Nurse Erater was aware "from which the inference could be drawn that a substantial risk of serious harm exist[ed]." Id. As of November 6, 1998, there was no evidence in Freeman's chart of chronic diarrhea or any pre-existing condition to suggest that his current complaint was anything but temporary. (See Barbour Aff. Ex. D: Freeman medical records.) Moreover, the fact that Freeman told Nurse Frater he had eaten barbeque chicken and macaroni and cheese within the past several days (see, e.g., Freeman Dep. at 31) provided Nurse Frater with a reasonable basis to believe that giving Freeman a bottle of Kaopectate and telling him to eat lightly and to drink plenty of fluids would be sufficient. Finally, there is no indication that Freeman was in such severe pain on November 6, 1998 that it would be apparent to Nurse Frater that Freeman's health was in danger.
The undisputed evidence in the record, from Physicians Assistant Macomber, is that "diarrhea [alone] is not a symptom of appendicitis" and if Freeman were suffering from symptoms of appendicitis on November 6, 1998, "it would certainly have advanced well before nineteen days had passed." (Macomber Aff. ¶ 9.)
Even if Nurse Frater should have examined Freeman more closely on November 6, referred him to a doctor or suggested a follow-up visit if his condition did not improve, Nurse Frater's treatment would constitute at most negligence, which does not give rise to an Eighth Amendment claim. Because there is no indication that Nurse Frater was aware of and chose to ignore a serious risk to Freeman's health or safety, summary judgment is granted in her favor. See, e.g., Felipe v. New York State Dep't of Correctional Servs., No. 95-CV-1735, 1998 WL 178803 at *3 (N.D.N.Y. April 10, 1998) (Pooler, D.J.) (granting defendants judgment on pleadings where plaintiff who complained of stomach pains was eventually diagnosed with gallbladder disease which required surgery; "Although [plaintiff] may have disagreed with their form of treatment, such as their administration of Mylanta and Zantac and their directive to drink lots of fluids, there is no allegation that any of these staff members were actually aware that such treatment was inadequate. Plaintiff's allegations amount to nothing more than possible medical malpractice or negligence.");Esnouf v. Matty, 635 F. Supp. 211, 212, 215 (E.D. Pa. 1986) (dismissing § 1983 claim as "sound[ing] in negligence only" where plaintiff alleged that he reported to prison infirmary complaining of stomach pains, and despite treatment with antacids returned on following three days with worsening symptoms before being transferred to local hospital for appendectomy). B. Nurse Brooker
Compare e.g., Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000) (denying summary judgment where prison nursing staff repeatedly acknowledged risk of appendicitis but did not contact a doctor, authorize transportation to the hospital or treat inmate's pain); Rosen v. Chang, 811 F. Supp. 754 (D.R.I. 1993) (denying nurse summary judgment where nurse "knew of [inmate]'s constant abdominal pains, knew of his vomiting, and knew of his continual appearances at sick call extending from a period starting in late November 1988 to mid-January 1989" but did not allow inmate, who ultimately died from untreated appendicitis, to see doctor until January 13, 1989).
Freeman contends that had Nurse Brooker agreed to see him at 5:20 a.m. when told that Freeman was in pain and wished to see him, Nurse Brooker would have seen that Freeman was in a "life-threatening situation." (Amended Compl. ¶ IV-A.) Freeman alleges that "after it was explained to [Nurse Brooker] that [Freeman] had a medical concern and [Nurse Brooker] did not see [him], it was apparent" that Nurse Brooker intended Freeman to be in pain. (Freeman Dep. at 56.)
Freeman has failed to allege facts sufficient to subject Brooker to § 1983 liability. At 5:20 a.m. on November 25, 1998, Officer Coon called Nurse Brooker and told Nurse Brooker that Freeman had bad stomach cramps and, according to Freeman, that Freeman was in a lot of pain. (See, e.g., Freeman Dep. at 40; Brooker Aff. ¶ 9.) Nurse Brooker refused to see Freeman immediately, instead scheduling him for the 7:30 a.m. sick call, approximately two hours later. (See, e.g., Freeman 56.1 Stmt. ¶ 63; Brooker Aff. ¶ 10.) There was nothing in Freeman's medical history which would have put Nurse Brooker on notice that Freeman was suffering from the onset of appendicitis (see Defs. Ex. D: Freeman medical records) and there is no evidence that Officer Coon gave Nurse Brooker any reason to believe that there was an emergency on hand. The fact that Freeman had been suffering from abdominal pains for the past nineteen days was not documented because, as Freeman admits, he had not sought medical attention since his November 6 visit to Nurse Frater. (See, e.g, Freeman Dep. at 34-35.)
As with Nurse Frater, there is no evidence that Nurse Brooker knew of and disregarded a substantial risk to Freeman's health. Accordingly, as Freeman has failed to show that Nurse Brooker acted with deliberate indifference, summary judgment is granted in Nurse Brooker's favor. See, e.g., Dias v. Vose, 865 F. Supp. 53, 59-60 (D. Mass. 1994) (doctor's failure to send inmate to hospital with emergency ward, while possibly negligent, was not deliberate indifference to serious medical need, even though delay in appendicitis surgery caused complications, absent evidence that doctor was conscious of risk to inmate if he were not operated upon immediately), aff'd mem., 50 F.3d 1 (1st Cir. 1995). C. Dr. Mikler
Compare, e.g., Archer v. Dutcher, 733 F.2d 14, 16 (2d Cir. 1994) (summary judgment inappropriate where there was evidence that five-hour delay in providing emergency treatment may have been intended to make plaintiff suffer); Thomas v. Arevalo, 95 Civ. 4704, 1998 WL 427623 at *8 (S.D.N.Y. July 28, 1998) (Sotomayor, D.J.) (denying summary judgment where there was evidence that defendants failed to schedule inmate for retinal surgery for thirteen days despite defendants' personal awareness of retinal detachment symptoms).
Freeman has submitted copies of forty-nine inmate grievances from 1998 and 1999, complaining about medical care at Fishkill.(See Freeman Br. Ex. A.) Freeman contends that Dr. Mikler, as Fishkill's Facility Health Services Director, knowingly allowed the nurses at Fishkill to operate in a "wrong and illegal" manner. (Amended Compl. ¶ IV-A.) In addition, he argues that inadequate medical facilities at Fishkill — including the absence of any doctors or physician assistants at 5:20 a.m on November 25, 1998 and Nurse Brooker's lack of access to x-ray equipment — contributed to Nurse Brooker's decision to schedule Freeman for a 7:30 a.m. sick call instead of treating Freeman's complaint as an emergency. (See Freeman Br. at 4-5.) While Freeman himself did not complain to Dr. Mikler, he contends that "[t]here should be no doubt that plaintiff would have received the same treatment of inattentiveness had he forwarded a written complaint directly to Dr. Mikler. This pattern of abuse by Dr. Mikler in not responding to inmates' medical complaints are not so remote in time as to excuse him . . . from having to prove that there was no subjective intent . . . to cause plaintiff the pain and suffering that he was made to endure." (Freeman Br. at 4.)
As noted in Point I(C) above, a supervisory official may be held liable under § 1983 when there is "evidence that . . . (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 [citizens] by failing to act on information indicating that unconstitutional acts were occurring." Colon v.Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Here, regardless of the level of medical care generally at Fishkill (and even assuming that grievances alone could constitute evidence of that level of care), Freeman has failed to identify an underlying constitutional violation for which Mikler could be held responsible. As Freeman has shown at most negligence by defendants Frater and Brooker, it follows that Mikler, who is being sued in his supervisory capacity, cannot be subject to § 1983 liability. See, e.g., Bryant v. Maffucci, 923 F.2d 979, 984 (2d Cir.) ("Obviously if defendants Allan, Powell, and Thackeray cannot be held liable for their conduct because it was at most negligent, it follows logically that defendants Maffucci and Jackson, who are only implicated because of their supervisory authority over the practices and procedures followed at the prison, also are not subject to being held liable."), cert. denied, 502 U.S. 849, 112 S.Ct. 152 (1991).
CONCLUSION
For the reasons set forth above, all defendants are granted summary and the complaint is dismissed.
SO ORDERED.