Opinion
9:21-CV-172 (MAD/MJK)
08-07-2024
DONALD GARRY, Plaintiff, v. DR. MCPHILLIPS, Defendant.
DONALD GARRY, PRO SE TIMOTHY TRIPP, ESQ., ATTORNEY FOR DEFENDANT
DONALD GARRY, PRO SE
TIMOTHY TRIPP, ESQ., ATTORNEY FOR DEFENDANT
ORDER AND REPORT-RECOMMENDATION
MITCHELL J. KATZ, United States Magistrate Judge
TO THE HONORABLE MAE A. D'AGOSTINO, United States District Court Judge:
In this pro se civil rights action, plaintiff alleges that he was denied constitutionally adequate medical care during his confinement as a pretrial detainee at the Schenectady County Jail (“SCJ”). Presently before this court is defendant Dr. McPhillips' motion for summary judgment. (Dkt. No. 63).
This matter has been referred to me for Report and Recommendation by United States District Court Judge Mae A. D'Agostino, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule (“Local Rule”) 72.3(c). For the following reasons, this court recommends that Dr. McPhillips' motion for summary judgment be granted as to plaintiff's Fourteenth Amendment deliberate indifference claim. The court further recommends that the district court decline to exercise supplemental jurisdiction over the remainder of plaintiff's complaint, i.e. his state law negligence claim, and dismiss this claim without prejudice to plaintiff filing in state court.
I. PROCEDURAL HISTORY
Plaintiff commenced this action on February 12, 2021 by filing a complaint and application to proceed in forma pauperis. (Dkt. Nos. 1, 2). By Decision and Order dated April 30, 2021, Judge D'Agostino granted plaintiff's IFP application and accepted the complaint for filing, to the extent it asserted a Fourteenth Amendment medical indifference claim and state law negligence claim against Dr. McPhillips. (Dkt. No. 8). All remaining claims were dismissed without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure to state a claim upon which relief may be granted. Issue was joined on September 7, 2021 by the filing of Dr. McPhillips' verified answer. (Dkt. No. 19).
Although denominated as a verified answer, the pleading lacks a verification page. Fed.R.Civ.P. 11 does not require that the answer be verified.
On November 13, 2023, Dr. McPhillips filed the instant motion for summary judgment (Dkt. No. 63), and on November 14, 2023, the clerk's office, sua sponte, mailed plaintiff a Notice of Due Date to Respond to Motion for Summary Judgment (“Notice”) (Dkt. No. 64). The Notice enclosed a copy of the Notification of the Consequences of Failing to Respond to a Summary Judgment Motion and advised plaintiff that pursuant to Local Rule 7.1(a)(1), his response to the summary judgment motion was due on or before December 4, 2023, and warned him that his failure to respond to the motion could result in his case being dismissed. (Dkt. No. 64).
There is no evidence that counsel for Dr. McPhillips served plaintiff with a copy of the “Consequences of Failing to Respond to a Summary Judgment Motion” document required by Local Rule 56.1(a)and 56.2. Further, Defendant's Statement of Material Facts and Dr. Mendel's affirmation fail, in numerous places, to properly cite to the record. Finally, defendant's Memorandum of Law does not comply with Local Rule 7.1(b)(1), as it does not contain a table of contents and incorrectly cites to New York State law in support of his motion pursuant to Fed.R.Civ.P. 56. Counsel is directed to read and comply with the Local Rules.
Plaintiff did not respond to the summary judgment motion by December 4, 2023 and no extension of time was requested. By text order dated December 12, 2023, the court sua sponte granted plaintiff an extension of time until January 15, 2024 to respond. (Dkt. No. 65). On January 16, 2024, plaintiff filed a letter motion requesting a stay, an extension of time to respond to the summary judgment motion, and that counsel be appointed for him. (Dkt. No. 67). The court issued a text order on January 18, 2024 denying plaintiff's request for a stay, granting plaintiff an additional extension of time until April 1, 2024 to respond to the summary judgment motion, and denying, without prejudice, his request for counsel. (Dkt. No. 68).
Plaintiff filed another letter motion (Dkt. No. 71) on March 27, 2024, requesting an extension of six to eight weeks to respond to the summary judgment motion and for the court to appoint a medical expert to assist him. By text order dated March 28, 2024, the court, noting that plaintiff has already been afforded two extensions of time to respond to the summary judgment motion (Dkt. Nos. 65, 68), granted plaintiff an additional extension of time until April 30, 2024 to submit his response to the motion. (Dkt. No. 72). The court's March 28, 2024 text order also denied plaintiff's request for the appointment of a medical expert. (Id.).
On April 26, 2024, plaintiff filed a letter motion requesting another extension of time until May 21, 2024 to respond to the summary judgment motion. (Dkt. No. 75). By text order dated April 26, 2024, plaintiff's request for an extension was granted, and plaintiff was advised that no further extensions of time would be granted absent a showing of good cause. (Dkt. No. 76).
Plaintiff filed another letter motion on May 20, 2024 requesting an additional extension of time until July 2, 2024 to respond to the summary judgment motion. (Dkt. No. 77). The court denied plaintiff's request on May 21, 2024 and deemed the motion submitted. (Dkt. No. 78). The court noted that while the Second Circuit directs the District Court to provide generous accommodations to incarcerated pro se individuals, that mandate does have its limits. (Id.).
II. FACTS
Plaintiff's complaint asserts claims arising from his confinement as a pretrial detainee at SCJ. The following facts are set forth as alleged in the complaint or indicated in the exhibits attached thereto.
On June 1, 2019, plaintiff was involved in “an automobile accident” and was criminally charged with “driving while intoxicated.” (Compl. at ¶ 13, Dkt. No. 1). Plaintiff “sustained serious physical injuries” from the incident, including “abrasions, contusions, lacerations, glass embedded in his face and head . . . and between the first and second metacarpels [sic] of his right hand, broken ribs on his right side[,] and a probable concussion.” (Id. at ¶ 14). Plaintiff was transported to Albany County Medical Center and treated for his injuries. (Id. at ¶ 15). Due to “head trauma[,] [plaintiff's] memory of the events of the treatment are unclear.” (Id.). Plaintiff does allege, however, that he “relie[d] on the discharge and treatment summary as detailed by prison staff to him.” (Id.).
On June 2, 2019, plaintiff was transported from the hospital to “Arraignment Court” and from there, to SCJ where he was photographed and fingerprinted. (Id. at CM/ECF pg. 14). Plaintiff was examined by two members of “medical staff” at SCJ who “used twezzers [sic] to pick glass out[ ] [of his] face [and hand]” and cleaned his other injuries. (Id. at CM/ECF pg. 15).
“[A] couple of days” later, plaintiff “started noticing a lot of pain on [his] left side ribs[.]” (Id.). Plaintiff submitted sick call slips complaining of rib pain, headaches, and dizziness. (Id.). Plaintiff “was seen by medical staff several times about this pain.” (Id.). “After a few medical visits[,]” plaintiff was seen by the Chief Medical Officer for the jail, defendant Dr. McPhillips. (Id.). At this point, plaintiff “was experiencing [sic] a lot of pain in [his] rib area[,]” which he communicated to Dr. McPhillips. (Id.). Plaintiff also informed Dr. McPhillips that he “was getting bad headach[es]” and “becoming concerned” with these complications. (Id.). Plaintiff also told Dr. McPhillips that he still had small pieces of glass in his cheek and around his eye. (Id.).
Dr. McPhillips informed plaintiff that he “looked over all [of plaintiff's] records [sic] from Albany Medical[,] and there [was] no further need for any more medical att[ention]." (Id.). Plaintiff asked Dr. McPhillips if he knew whether x-rays of his ribs had been taken, to which Dr. McPhillips responded that he did not. (Id.). According to plaintiff, Dr. McPhillips then told the escort officer that plaintiff was “all done here,” and requested that the escort officer remove him. (Id. at CM/ECF pg. 16).
Days later, plaintiff filed a grievance regarding the treatment he received from Dr. McPhillips. (Id.). Plaintiff then submitted “several sick calls” regarding his condition, which, according to plaintiff, resulted in Dr. McPhillips “yell[ing] at [him].” (Id.). At some point, plaintiff was prescribed Motrin for his continued headaches. (Id.). Plaintiff advised the nurse who prescribed the Motrin that he remained concerned about glass in his face. (Id.). The nurse told plaintiff to pick the glass out with tweezers when he is released. (Id.).
In October 2019, plaintiff was taken into custody by the New York State Department of Corrections and Community Supervision ("DOCCS"). (Id. at CM/ECF pg. 16). Plaintiff received a “routine” chest x-ray during processing at Downstate Correctional Facility, where, according to plaintiff, they “noticed [his] ribs were fractured and they needed to do a more thorough exam on the same ribs [he] was complaining about to the [SCJ] doctor.” (Id. at CM/ECF pgs. 16, 18).
Dr. McPhillips' Memorandum of Law (Dkt. No. 63-14), Statement of Material Facts (Dkt. No. 63-1), and the Expert Affirmation of Dr. Lawrence Mendel (Dkt. No. 63-3) summarize what they allege are undisputed facts that support granting defendant's motion for summary judgment. Rather than discuss these facts at the outset, the court will address them to the extent necessary to address the issues raised in Dr. McPhillips' summary judgment motion.
III. SUMMARY JUDGMENT
A. Legal Standard
A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Jeffreys, 426 F.3d at 554 (“The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful.”). “Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Statements “that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obligated to “read [the pro se party's] supporting papers liberally, and .. interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, “a pro se party's ‘bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991).
B. Local Rule 56.1
“While courts are required to give due deference to a plaintiff's pro se status, that status ‘does not relieve plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.'” Jackson v. Moore, No. 9:21-CV- 1001 (GTS/ATB), 2023 WL 4710869, at *2 (N.D.N.Y. Apr. 14, 2023) (quoting Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)), report and recommendation adopted, No. 9:21-CV-1001 (GTS/ATB), 2023 WL 4711091 (N.D.N.Y. July 24, 2023). “Where a party has failed to respond to the movant's statement of material facts as required by Local Rule 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the non-movant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion.” Id. (citing Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)).
Accordingly, courts in the Second Circuit have held that when a party moves for summary judgment against a pro se litigant, either the movant or the district court must provide the pro se litigant with notice of the consequences of failing to respond to the motion. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir. 1999). Courts in this district have routinely held that when such notice is provided and a pro se plaintiff fails to respond to a motion for summary judgment, the court may accept the defendant's factual assertions as true to the extent they are supported by the evidence in the record. See, Jackson, 2023 WL 4710869 at *2; see also Price v. Oropallo, 9:13-CV-563 (GTS/TWD), 2014 WL 4146276, at *5 (N.D.N.Y. Aug. 2014) (“An unopposed summary judgment motion may properly be granted ‘only if the facts as to which there is no genuine dispute show that the moving party is entitled to judgment as a matter of law.'”) (quoting, Champion, 76 F.3d at 486); Ahmed v. Frazer & Jones, Co., 5:13-CV-573 (GTS/TWD), 2015 WL 470648 (N.D.N.Y. Feb. 4, 2015).
Furthermore, where a non-movant has failed to respond to a movant's “properly filed and facially meritorious memorandum of law” submitted in support of its motion for summary judgment, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3). Saraceni v. Retting, No. 5:21-CV-0936 (GTS/TWD), 2024 WL 1329033, at *13 (N.D.N.Y. Mar. 28, 2024). Significantly, this rule applies even to pro se litigants, “especially ones who have received notice of the consequence of that failure to respond.” Ahmed, 2015 WL 470648 at *2. Furthermore, a district court “has no duty to perform an independent review of the record to find proof of a factual dispute--even if that nonmoving party is proceeding pro se. (This is because the Court extends special solicitude to the pro se litigant, in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.).” Ahmed, 2015 WL 470648 at *2; see also Price, 2014 WL 4146276 at *5.
IV. DELIBERATE INDIFFERENCE TO SERIOUS MEDICAL NEEDS
A. Legal Standard
Plaintiff's deliberate-indifference claim based on conduct that occurred while he was a pretrial detainee is properly analyzed under the Fourteenth Amendment. See Colon v. City of New York, No. 8-CV-3142 , 2009 WL 1424169, at *5 (S.D.N.Y. May 21, 2009) (citing Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir. 1991)); see also Geano v. City of New York, 21-CV-301, 2024 WL 947439, *7 (S.D.N.Y. Jan. 4 2024) (“Genao's deliberate-indifference claim based on conduct that occurred while he was a pretrial detainee is properly analyzed under the Fourteenth Amendment.”)
To state a claim for deliberate indifference to serious medical needs, a pretrial detainee must satisfy a two-pronged test. First, “the alleged deprivation of adequate medical care must be ‘sufficiently serious.'” Lloyd v. City of New York, 246 F.Supp.3d 704, 717 (S.D.N.Y. 2017) (quoting Spavone v. N.Y. State Dep't of Corr. Servs., 719 F.3d 127, 139 (2dCir. 2013)). Second, the defendant must act with a “sufficiently culpable state of mind.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996).
The objective prong requires “that the alleged deprivation of medical treatment is, in objective terms, ‘sufficiently serious'- that is, the prisoner must prove that his medical need was ‘a condition of urgency, one that may produce death, degeneration, or extreme pain.'” Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998)). To determine whether inadequate care is “sufficiently serious,” a court must “examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.” Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). “Where a plaintiff alleges that inadequate care was provided-instead of alleging a failure to provide any treatment-the inquiry focuses on ‘the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract.'” Revels v. Corr. Med. Care, Inc., No. 9:17-CV-0088 (MAD/TWD), 2018 WL 1578157, at *4 (N.D.N.Y. Mar. 28, 2018) (quoting Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003)); see also Ray v. Zamilus, No. 13-CV-2201, 2017 WL 4329722, *8 (S.D.N.Y. Sept. 27, 2017) (finding that where a “plaintiff suffered from a delay in treatment, rather than a complete lack of treatment, the objective element must be satisfied by harm that resulted from the delay”); Hunter v. City of New York, 35 F.Supp.3d 310, 320 (E.D.N.Y. Aug. 2014) (“Under the circumstances-where Plaintiff was ultimately diagnosed with a fractured rib, complained of pain at the time of his arrest and at each subsequent clinic visit, did not receive any medical treatment until five days after his arrest and was prescribed narcotic pain medication when he was eventually diagnosed with a fractured rib-Plaintiff's pain resulting from the fractured rib rises to the level of a serious medical condition.” (collecting cases)).
“Regarding the subjective component, ‘[i]n Darnell, [the Second Circuit] clarified that deliberate indifference, in the context of a Fourteenth Amendment due process claim can be shown by something akin to recklessness, and does not require proof of a malicious or callous state of mind.'” Geano, 2024 WL 947439, *8 (quoting Charles v. Orange County, 925 F.3d 73, 86, (2d Cir. 2019)) (citing Darnell, 849 F.3d at 33-34). Therefore, deliberate indifference under the Fourteenth Amendment, “can be established by either a subjective or objective standard: A plaintiff can prove deliberate indifference by showing that the defendant official ‘recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to [the plaintiff's] health or safety.'” Charles, 925 F.3d at 87 (quoting Darnell, 849 F.3d at 35 (emphasis and alterations in the original)).
Nevertheless, prison officials and medical officers have wide discretion in treating prisoners, and “determinations of medical providers concerning the care and safety of patients are given a ‘presumption of correctness.'” Sonds v. St.Barnabas Hosp. Corr. Health Servs., 151 F.Supp.2d 303, 312 (S.D.N.Y. 2001) (quoting Perez v. The County of Westchester, 83 F.Supp.2d 435, 440 (S.D.N.Y. 2000)). “[D]isagreements over medications . . . forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a Section 1983 claim.” Id. Even if those medical judgments amount to negligence or malpractice, malpractice does not become a constitutional violation simply because the plaintiff is incarcerated. Id.; see also Daniels v. Williams, 474 U.S. 327, 333 (1986) (noting that negligence is not actionable under Section 1983); Palacio v. Ocasio, No. 02-CV-6726, 2006 WL 2372250, at *11 (S.D.N.Y. Aug. 11, 2006), aff'd, 345 Fed. App'x 668 (2d Cir. 2009); Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) (citations omitted) (“Mere medical malpractice is not tantamount to deliberate indifference, but it may rise to the level of deliberate indifference when it involves culpable recklessness, i.e., an act or a failure to act ... that evinces a conscious disregard of a substantial risk of serious harm.”).
B. Analysis
1. Objective Prong
Plaintiff claims that Dr. McPhillips was deliberately indifferent by denying him a repeat chest x-ray for evaluation of rib pain. Plaintiff also alleges that he was not provided adequate and necessary medical care for complaints of headaches, and glass embedded in his face and hand. These allegations are belied by the record and plaintiff cannot demonstrate that he was actually deprived of adequate medical care or that the purported inadequacy was “sufficiently serious.” Salahuddin, 467 F.3d at 279 . As set forth below, the documentary evidence, plaintiff's sworn deposition testimony, and Dr. Mendel's expert opinion all establish that the care provided to plaintiff by Dr. McPhillips at SCJ was reasonable, and, therefore, adequate under the Fourteenth Amendment.
On August 28, 2017, almost two years prior to his detention at SCJ, plaintiff presented to Ellis Hospital Emergency Department where he was diagnosed with an acute right sixth rib fracture and was prescribed Tramadol and Ibuprofen for pain. (Dkt. No. 67-3 at 3-4).,
All page references to the medical records submitted as exhibits are to the CM/ECF pagination system.
Although plaintiff's deposition testimony denied ever having injured ribs prior to the June 1, 2019 motor vehicle accident (Dkt. No. 63-13 at 85), he admitted to counsel by telephone on May 9, 2023 that he was in fact diagnosed with a broken rib(s) at Ellis Hospital in 2018 resulting from a fight he was involved in at a gas station. Counsel sought to have plaintiff confirm his May 9, 2023 telephonic admission via a Notice to Admit dated June 20, 2023. (Dkt. No. 63-6). Having failed to respond to defendant's request for admission within thirty days of service, plaintiff is deemed to have admitted that he was transported to Ellis Hospital in 2018 after having been involved in a fight and diagnosed with a broken rib(s). Fed.R.Civ.P. 36(a)(3). “A matter admitted under [Rule 36] is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” Fed. R. Ci. P. 36(b). The Second Circuit permits admissions under Rule 36(a) to be used for purposes of summary judgment. Donovan v. Carls Drug Co., 703 F.2d 650, 651 (2d Cir.1983), rejected on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133-34 (1988).
On June 1, 2019, plaintiff was involved in a motor vehicle accident and was transported to Albany Medical Center by Mohawk Ambulance Service where he underwent a full trauma workup. (Dkt. No. 63-9, pg. 18). Notably, plaintiff denied “any pain or discomfort” and was “able to ambulate roughly half a mile prior to apprehension.” (Id., pgs. 21, 46). On physical examination, plaintiff was not in acute distress and had a right eye laceration with periorbital ecchymosis. (Id., pg. 49). The remainder of plaintiff's physical examination was unremarkable. (Id.).
The undisputed documentary evidence establishes that plaintiff also underwent extensive imaging upon his examination at Albany Medical Center, including a head CT, spine CT, a CT of the chest, abdomen, and pelvis with contrast as well x-rays of the chest, knee, wrist, and right hand. (Id.). Dr. Chernoff's radiology report indicated that plaintiff did not suffer any “acute traumatic injury in the chest, abdomen or pelvis.” (Id., pg. 64.) Significantly, and central to the determination in this matter, Dr. Chernoff noted that while there was “no acute displaced fracture,” “there [was] an old lateral right sixth rib fracture.” (Id.). Upon discharge, the emergency room doctor noted that plaintiff “refus[ed] laceration repair of his right eye,” that the “CT scan of the head, neck and chest abdomen and pelvis [were] normal,” and that “X-rays of the right hand and right knee show[ed] no evidence of fracture.” (Id., pg. 33).
Plaintiff was thereafter transported to SCJ. During plaintiff's intake processing on June 2, 2019, Nurse Frederick noted:
[Patient] seen at Albany Med [status post motor vehicle accident]... [Patient's] face covered in dried blood and pieces of glass, which were removed. Multiple abrasions to [right] forehead, eye area and nose/cheek. Bacitracin applied after cleansing with [normal saline]. [Patient] reportedly refused sutures to [right] eye laceration but after cleansing, no obvious area in need of suturing, [Patient] also with abrasion and three gauges to [right] hand; all cleansed, [antibiotics] ointment applied and hand wrapped. Also [complains of right] rib pain and [right] knee pain. No evidence of bruising noted to ribs, abdomen/chest. [Positive] bruising swelling noted to [right] knee and cold pack applied. Per Albany Med, CT head, neck, [chest, abdomen, pelvis] and x-rays of [right] hand/knee all negative.(Dkt. No. 63-10, pg. 14).
See https://pubmed.ncbi.nlm.nih.gov/31939701/ (last visited July 30, 2024) (noting acronym CAP to refer to imaging of the chest, abdomen, and pelvis).
During a follow up appointment with PA Dowling at SCJ on June 7, 2019, there was no indication that plaintiff complained of right rib pain. (Id., pg. 14). PA Dowling also noted that plaintiff's facial and right-hand abrasions were to be treated topically twice daily. (Id., pg. 11). On June 11, 2019, plaintiff complained to RN Frederick of “knee and head pain.” (Id., pg. 20). RN Frederick noted that plaintiff's facial abrasions “appeared well-healed,” and prescribed Ibuprofen for pain. (Id.). At that time, plaintiff requested a chest x-ray due to a concern for a rib fracture. (Id.). RN Frederick referred plaintiff's request for a chest x-ray to Dr. McPhillips for further discussions. (Id.).
Plaintiff placed another medical sick call on June 14, 2019 complaining of, among other things, left-hand pain, and glass in his right-hand. (Id., at 19). Noting some redness and swelling in plaintiff's right-hand and the potential for infection, Nurse LaBrake prescribed Bactrim and Motrin and referred plaintiff to see Dr. McPhillips. (Id., pgs. 19-20). On June 16, 2019, plaintiff treated with RN Frederick, complaining of broken teeth and throbbing pain when he ate. (Id., pg. 18). Significantly, plaintiff did not complain about rib pain or the effects of broken glass during this encounter.
Plaintiff next treated with Dr. McPhillips on June 17, 2019 complaining of headaches, rib pain and glass in his skin. (Id, pg. 18). Dr. McPhillips noted “small erythematous areas around and above” plaintiff's eyes and advised plaintiff that further x-rays of his ribs were not medically indicated because of the negative imaging studies at Albany Medical Center. (Id.). According to Dr. Mendel, defendant's expert, “it was more than reasonable for Dr. McPhillips and the medical providers at SCJ to rely on the extensive imaging obtained from Albany Medical Center and the trauma workup and evaluation to conclude that repeat imaging was not indicated to assess for rib facture.” (Dkt. No. 63-3 at ¶ 45). In fact, Dr. Mendel opined that “ordering unnecessary repeat imaging to reassess for a potential rib fracture, when it had already been done at Albany Medical Center, would subject the patient to further and unnecessary radiation.” (Id.).
Plaintiff again complained of tooth pain on July 13, 2019, but did report any pain in his ribs or the effects of glass in his skin. (Id., pgs. 17-18). Plaintiff was prescribed Ibuprofen and was referred for a dental consultation. (Id., pg. 18). Plaintiff placed a medical sick call on July 15, 2019, complaining of glass in his right cheek. (Id., pg. 17). Nurse Miller performed an assessment and noted a small raised red area on plaintiff's right cheek. (Id.). Plaintiff denied any itching, burning or signs of infection. (Id.). Dr. McPhillips evaluated plaintiff and instructed him to continue the plan of care and to wait and see if the area extruded any additional glass. (Id.). Notably, plaintiff did not complain about rib pain during his July 15, 2019 encounter with Nurse Miller and Dr. McPhillips. Also, plaintiff did not report any rib pain or discomfort from glass at his September 3, 2019 and October 16, 2019 encounters with Dr. McPhillips and Nurse Miller. (Id., pgs. 16-17).
In addition to the undisputed medical records from SCJ, plaintiff's deposition testimony, which he acknowledged as being true and accurate (Dkt. No. 63-13, pg. 104), supports a determination that there are no genuine issues of material fact as to whether plaintiff received adequate medical from Dr. McPhillips while detained at SCJ. Specifically, plaintiff testified that Dr. McPhillips reviewed the records from Albany Medical Center with him and that based on his review of the same, further imaging of his right-side ribs was not clinically indicated. (Id., pgs. 46-48). Plaintiff later testified that according to Dr. McPhillips, nothing could be done to treat his ribs even if they were broken. (Id., pg. 72); see also Id., pg. 77 (“[Dr. McPhillips] did tell me that there's no need for an X-ray because even if the ribs are broken, there's nothing you can do.”). Plaintiff further testified that his rib injuries “bothered [him] the whole month of June and half of July.” (Id., pgs. 89-90). Dr. McPhillips' statement to plaintiff is consistent with Dr. Mendel's opinion that even if an additional imaging series was positive for a rib fracture, Dr. McPhillips could not have done anything more for plaintiff since the “treatment for a rib fracture is rest.” (Dkt. No. 63-3, ¶ 51).
All page references to plaintiff's deposition transcripts are to the CM/ECF pagination system.
Plaintiff testified that he did not believe that the imaging conducted at Albany Medical Center was proper. (Dkt. No. 63-13, pg. 82). When asked how he arrived at that conclusion, plaintiff testified that someone at Downstate Correctional Facility told him after he was transferred there from SCJ. (Id., pg. 84). According to plaintiff, an X- ray technician at Downstate Correctional Facility did not know that he had an imaging study, including a CT scan, performed at Albany Medical Center. (Id., pg. 86). Nevertheless, plaintiff testified that in his opinion, it was a “mistake” for Dr. McPhillips not to have ordered me an X-ray” even though he testified earlier that his ribs stopped hurting in July 2019. (Id., pgs. 90, 98).
Further, plaintiff's allegation that the X-ray technician at Downstate Correctional Facility “noticed [his] ribs were fractured and they needed to do a more thorough exam on the same ribs [he] was complaining about to the [SCJ] doctor” (Dkt. No. 1, at CM/ECF pgs. 16, 18) is belied by the record evidence and does not support his claim of deliberate indifference to serious medical needs. Notwithstanding his allegations, plaintiff testified at his deposition that the x-rays taken at Downstate Correctional Facility revealed a healed rib fracture (Dkt. No. 63-13, at pg. 89) which was confirmed by the October 21 and October 25, 2019 radiology reports generated from that imaging (Dkt. No. 1, at CM/ECF pgs. 18-19). Again, plaintiff testified that he no longer experienced pain in his ribs as of July 2019, several months before he was transferred to Downstate Correctional Facility.
A February 3, 2023 imaging study from Ellis Hospital ordered after plaintiff complained of left rib pain from a motorcycle accident noted a “[r]ight posterior sixth rib [that] has an old, healed fracture, unchanged compared to 2018” also undermines his complaint of medical indifference. (Dkt. No. 63-12). The February 3, 2023 imaging study is consistent with Dr. Chernoff's June 1, 2019 radiology report which noted “an old lateral right sixth rib fracture.” (Dkt. No. 63-9, pg. 64). The right rib fracture noted on February 3, 2023 and by Dr. Chernoff is the one admitted to by plaintiff during his May 9, 2023 telephone call with Dr. McPhillips' counsel.
With respect to his complaint about glass being embedded in his skin, plaintiff testified that during his intake at SCJ, “they took their time to take the glass out with tweezers . . . [and] [t]hey cleaned up my eye and said there was no need for the sutures.” (Id., pg. 60). Plaintiff also testified that in addition to receiving antibiotics, the medical staff at SCJ spent “maybe two hours” cleaning his hand and facial wounds/abrasions. (Id., pg. 64). Notably, plaintiff testified that he “[did not] know” what additional care and treatment he wanted for the glass in and around his face. (Id., pg. 80). Fatal to plaintiff's claim regarding the glass in his hand and face is his testimony that “they attended to help me with the glass and making sure it didn't get infected.” (Id., pg. 86).
Based on the foregoing, plaintiff has failed to raise a triable issue of fact as to whether he suffered from a serious medical need due to a deprivation in care. There is no evidence that plaintiff had a broken rib, and in fact, the evidence confirms that plaintiff did not suffer any fractures because of the motor vehicle accident precipitating his medical care at SCJ. Otherwise, the injuries as established by the medical evidence before this court - headaches, lacerations, and soreness - are not, objectively speaking, sufficiently serious to satisfy the objective component of the deliberate indifference inquiry. See Jones v. Furman, No. 02-CV-939, 2007 WL 894218, at *10 (W.D.N.Y. Mar. 21, 2007) (explaining that soreness, pain in and a lump behind ear, lump on back of head, abrasions on nose and knuckle, and bruising to back, ribs and legs do not constitute a serious medical condition); Garcia v. Furnia, No. 12-CV-924 (GTS/ATB), 2014 WL 4685104, at *4 (N.D.N.Y. Sept. 19, 2014) (finding no sufficiently serious medical need where the plaintiff suffered from “(1) body soreness; (2) a black eye; (3) scrapes and minor contusions; (4) a headache; (5) a loose tooth; (6) a ‘wobbly' knee; and (7) blurriness in one eye”). Plaintiff has failed to establish that any delay in treatment, or failure to treat, his alleged conditions caused any symptoms of his underlying conditions to worsen or put him at an unreasonable risk of future harm. On the contrary, it is undisputed that plaintiff's pain and lacerations were reasonably treated with Ibuprofen and antibiotics, and that his complaints of pain resolved within two months, without further complication. Accordingly, summary judgment is recommended.
2. Subjective Prong
Even if plaintiff were found to have satisfied the objective prong, he cannot satisfy the subjective prong of a Fourteenth Amendment deliberate indifference claim. The record is clear that Dr. McPhillips treated plaintiff and responded to all his complaints. Namely, Dr. McPhillips followed plaintiff's complaints of pain and the possibility of retained glass from his car accident, noting that plaintiff should continue his plan of care which included pain medication and antibiotics. (Dkt. No. 63-10, at 1420). Dr. McPhillips' refusal to order an x-ray of plaintiff's rib was reasonably based on his observation that extensive imaging and testing had been performed immediately after the motor vehicle accident precipitating plaintiff's complaints of pain, and were negative. Based on this record, plaintiff cannot show that Dr. McPhillips “‘knew, or should have known'” that his decision not to order an additional imaging study or provide additional treatment to plaintiff's complaint of glass embedded in his skin “‘posed an excessive risk to health or safety.'” Lloyd, 246 F.Supp.3d at 719 (quoting Darnell, 849 F.3d at 33, 35). Accordingly, the court concludes that there is no genuine dispute of material fact with respect to the mens rea prong of plaintiff's Fourteenth Amendment deliberate indifference claim.
V. SUPPLEMENAL JURISDICION
In addition to his Section 1983 claim, plaintiff also alleges a state law negligence claim against Dr. McPhillips. (Dkt. No. 1). A district court may decline to exercise supplemental jurisdiction over a state law claim if the district court “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Courts deciding whether to exercise supplemental jurisdiction must balance the so-called Gibbs factors outlined by the Supreme Court in United States v. Gibbs, 383 U.S. 715, 726 (1966). Those factors include the “values of judicial economy, convenience, fairness, and comity.” Delaney v. Bank of America Corp., 766 F.3d 163, 170 (2d Cir. 2014) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). The Supreme Court has instructed that “in the usual case in which all federal-law claims are eliminated before trial, the balance of [these] factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.” Cohill, 484 U.S. at 350 n.7.
Here, in light of the court's aforementioned recommendation, judicial economy and comity weigh in favor of dismissing the remaining state law claim without prejudice so that plaintiff may, if he chooses, pursue it in an appropriate state court. The court's declination to exercise supplemental jurisdiction over plaintiff's state law claim is not a commentary on the validity of that claim one way or the other. Rather, the court's recommendation is based on an analysis that the resolution of plaintiff's state law claim is best made by a state court.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that defendant's motion for summary judgment (Dkt. No. 63) be GRANTED as to plaintiff's Fourteenth Amendment deliberate indifference claim against Dr. McPhillips, and plaintiff's complaint (Dkt. No. 1) be DISMISSED WITH PREJUDICE as to this cause of action; and it is
RECOMMENDED that plaintiff's complaint (Dkt. No. 1) otherwise be DISMISSED IN ITS ENTIRETY WITHOUT PREJUDICE to plaintiff filing his state law negligence claims in state court; and it is
ORDERED that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
(Image Omitted)