Opinion
03 cv 1618 (GBD).
January 5, 2007
ORDER
Pro se prisoner, Cyril Kendall, filed this action under 42 U.S.C. § 1983 alleging that defendants, including Dr. Adriana Vives ("the doctor") in the Clinic at the North Infirmary Command ("NIC"), were deliberately indifferent to his serious medical needs during his incarceration on Riker's Island. At the close of discovery, defendants moved for summary judgment on all of petitioner's claims. The case was referred to Magistrate Judge Ronald L. Ellis for a Report and Recommendation ("Report"). In his Report, Magistrate Judge Ellis recommended that summary judgment be granted to the defendants on all but one of plaintiff's claims. He found that defendants were not entitled to judgment as a matter of law on the plaintiff's claim against the doctor because defendants presented no evidence to explain why she continued to administer to plaintiff a medication to which he showed a severe, negative reaction and for which an apparently effective alternative was available.
The Report advised the parties that failure to file timely objections to the Report would constitute a waiver of objections. When no objections to a Report are made, the Court may adopt the Report if "there is no clear error on the face of the record."Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (citation omitted). Only defendants have filed objections which are directed against the recommendation of the Report denying summary judgment on plaintiff's claim of deliberate indifference under 42 U.S.C. § 1983. With respect to those portions of the Report to which no party specifically objected, the Court finds that the record is not facially erroneous.
When timely objection has been made to a magistrate judge's report, the district judge must make a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b). It is not required however, that the district judge conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 676 (1980). Rather, it is sufficient that the district court "arrive at its own, independent conclusion" regarding those portions to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). Accordingly, the district judge, in the exercise of sound judicial discretion, must determine the extent, if any, it should rely upon the magistrate judge's proposed "findings and recommendations." Raddatz, 447 U.S. at 676. The district judge may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C).
Plaintiff claims that for about 46 days between January 7 and February 20, 2003, defendants refused to switch his blood pressure control medication, despite knowledge of his serious reaction to the originally administered medication. When taking the drug Vasotec in 2002, plaintiff complained of swelling in various parts of his body. On January 4, 2003, he was found unresponsive on the floor and rushed to Elmhurst hospital, where doctors diagnosed him with angioedema, a condition known to be caused by Vasotec. Doctors at the hospital prescribed an alterative drug which plaintiff said eased his blood pressure as well as his swelling. Following his discharge from the hospital on January 7, 2003, he claims that the doctor at the NIC continued to administer Vasotec, which caused his swelling symptoms to resume. In his Report, Magistrate Judge Ellis determined that plaintiff's medical condition caused by Vasotec was sufficiently serious to give rise to a cause of action under the Eighth Amendment. He found that a question of triable fact existed as to the subjective culpability of the doctor at the NIC which precluded the granting of summary judgment on plaintiff's claim of deliberate indifference.
Defendants object to the Report on two grounds. First, they contend that plaintiff has not produced sufficient evidence to create an issue of fact regarding the urgency or cause of his medical condition. Second, they argue that there could be no issue of fact regarding the mental culpability of the doctor, who is alleged to have been deliberately indifferent to plaintiff's medical needs, because she discontinued the drug at issue immediately upon plaintiff's release from the Elmhurst Hospital on January 7, 2003, and treated him throughout the 46-day period that followed.
A moving party is entitled to summary judgment 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 a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Holt v. KMI-Continental Inc., 95 F.3d 123, 128 (2d Cir. 1996). When considering a motion for summary judgment, the Court's responsibility is not "to resolve disputed issues of fact but to assess whether there are any factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). In determining whether genuine issues of material fact exist, the Court must resolve all ambiguities and draw all justifiable inferences in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Holt, 95 F.3d at 129.
The moving party bears the burden of demonstrating that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223-24 (2d Cir. 1994). "[T]he movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Once the moving party discharges his burden of demonstrating that no genuine issue of material fact exists, the burden shifts to the nonmoving party to offer specific evidence showing that a genuine issue for trial exists.See Celotex, 477 U.S. at 324. "A `genuine' dispute over a material fact only arises if the evidence would allow a reasonable jury to return a verdict for the nonmoving party."Dister v. Continental Group, 859 F.2d 1108, 1114 (2d Cir. 1988) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).
Prison civil rights actions pursuant to Section 1983 alleging inadequate medical care may raise Eighth Amendment concerns.Estelle v. Gamble, 429 U.S. 97, 104 (1976). To establish an Eighth Amendment claim for inadequate medical care, a prisoner must prove "deliberate indifference" by defendants to his "serious medical needs." Estelle, 429 U.S. at 106; see also Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Objectively the prisoner medical need must be considered "sufficiently serious." Chance, 143 F.3d at 702. Subjectively, the defendants must have acted with a "sufficiently culpable state of mind" that amounts to "deliberate indifference" to the serious medical need. Hathaway v. Coughlin, 37 F.3d 63, 67 (2d Cir. 1994). A "prison official does not act in a deliberately indifferent manner unless that official knows of and disregards an excessive risk to inmate health or safety." Id. at 66. "[D]eliberate indifference entails something more than mere negligence," Farmer v. Brennan, 511 U.S. 825 (1994), and "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. "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." Id.
In their objections to the Report, the defendants contend that the plaintiff "offered no credible evidence whatsoever" to demonstrate that his medical condition was sufficiently serious and relied only on "his own self-serving statements" about his symptoms. (Objections at 5). Plaintiff's account of his hospitalization on January 4, 2003, however, is supported by medical records included as attachments in his opposition to the motion for summary judgment. (See Medical File of Cyril Kendall ("Med. File") attached as Exhibits A-C to "Affidavit and Notion [sic] in Opposition to Defendants Summary Judgment Motion" ("Pl. Memo.") Mar. 6, 2006). Specifically, the medical record entry for January 4, 2003 corroborates plaintiff's assertion that he was "found lying on the floor . . . not responsive to verbal stimuli" with "lip swelling" and blood pressure of 160/104. (Med. Entry at 0042). It also verifies that he was rushed to the emergency room of Elmhurst Hospital on the 4th of January 2003. The entry for January 7, 2003 indicates that plaintiff "was advised verbally that he should not be taking [V]asotec anymore." (Med. File at 0043). Plaintiff's attribution of the cause of his condition to Vasotec, is at least in part supported by, online information about the drug Vasotec, that he had attached to his memorandum. (See Exhibit D to Pl. Memo). Vasotec carries a special warning that the drug is known to cause a serious allergic reaction called angioedema whose symptoms include swelling of the face, lips, tongue, or throat; swelling of arms and legs; and difficulty swallowing or breathing. Id. When plaintiff was hospitalized at Elmhurst hospital, doctors there diagnosed his swelling condition as angioedema.
In his memorandum in opposition to the defendants' motion to dismiss, plaintiff recounted his medical circumstances as follows:
On January 4, 2003; I was found in a serious state laying on the floor, at the NIC Jail, unresponsive, even though I was given stimulation to revive. My blood pressure was 160/104 T-88 R-18 PIN 78%. A dangerous level that could result in death. My lips were swollen and many other serious emergency complications. I was immediately taken to the Elmhurst hospital. Where the treatment was administered. I was hospitalized for a few days. On my recovery of consciousness, the doctors informed me that I could have died due to poisoning. As such, I was told not to used anymore vasotec medication.
(Pl. Memo at 3-4).
Defendants also suggest that since plaintiff described his condition as merely "uncomfortable," it is not sufficiently serious to give rise to an Eighth Amendment cause of action. Defendants assert that his condition must arise to the level of "death, degeneration, or extreme pain."
Medical needs that have been deemed to be sufficiently serious by the Second Circuit include: an untreated tooth cavity, see Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000); chronic tooth pain lasting six months, rendering prisoner unable to chew and resulting in tooth degeneration, see Chance, 143 F.3d at 702; a ruptured Achilles tendon, see Hemmings v. Gorczyk, 134 F.3d 104, 107 (2d Cir. 1998); deprivation of "prescribed eye-glasses to avoid double vision and the loss of depth perception," Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996); and delay in removing broken hip pins from a prisoner's hip for more than two years,see Hathaway, 37 F.3d at 66. Magistrate Judge Ellis properly determined that plaintiff's medical need was sufficiently serious.
The defendant's second objection focuses on the Report's finding that an issue of fact existed as to the doctor's subjective culpability. (Report at 9). Magistrate Judge Ellis reached this conclusion because defendants in their motion for summary judgment offered no explanation as to why the doctor, as plaintiff contends, persisted in directing him to take Vasotec for 46 days after plaintiff's hospitalization before changing his medication. With their objections to the Report, defendants have submitted additional evidence in the form of an Affidavit from Dr. Vives with plaintiff's complete medical record attached. (Affidavit of Dr. Adriana Vives ("Vives Aff.") Nov. 29, 2006).
In a handwritten letter to the Court dated December 4, 2006, Plaintiff contends that the defendants' newly-submitted Affidavit of Adriana Vives "from top to bottom is fill[ed] with statement[s] of false pretense." (Letter from Cyril Kendall to the Court, (Dec. 4, 2006) at 1). Plaintiff indicates that he has not been provided with his medical records. He can only rebut the factual representations made in that affidavit after he has been provided with a complete copy of his medical record that the defendants had submitted to the Court. Id. at 2.
Under Federal Rule of Civil Procedure 72(b), a district court may consider additional evidence in making its de novo determination as to portions of a magistrate judge's report and recommendation to which specific written objections have been made. See also Hynes v. Suillace, 143 F.3d 653, 656 (2d Cir. 1998) (noting that while "[c]onsiderations of efficiency and fairness militate in favor of a full evidentiary submission for the Magistrate Judge's consideration, a district court nonetheless retains discretion to review supplementation of the record). But cf. Housing Works, Inc. v. Turner, 362 F.Supp.2d 434 (S.D.N.Y. 2005) ("Absent a most compelling reason, the submission of new evidence in conjunction with objections to the Report and Recommendation should not be permitted").
In their objections, the defendants "note that Dr. Vives, the doctor who was most responsible for treating plaintiff during the relevant period was unavailable to provide an affidavit at the time that defendants filed the motion for summary judgment. As a result, the extensive medical evidence — found in plaintiff's medical file — could not be properly interpreted and explained." (Objections at 3).
With the additional evidence, the defendants make two new factual assertions to challenge plaintiff's claim: (1) the doctor ended plaintiff's Vasotec prescription on January 7, 2003, not 46 days later as had been plaintiff's unrebutted assertion; and (2) the doctor could not possibly be found to have been deliberately indifferent to plaintiff's condition because "she did not `know' plaintiff was allergic to Vasotec on January 7, 2003 or at any other time and, more importantly, did not continue to give plaintiff Vasotec after his alleged allergic reaction." (Objections at 6).
The doctor, in her affidavit states that she discontinued plaintiff's Vasotec prescription on January 7, 2003, immediately after plaintiff told her that he was advised at Elmhurst Hospital to stop taking Vasotec. (Objections at 7 citing Vives Aff. ¶ 29). According to her account, she prescribed Metroprolol (Lopressor) as a replacement for Vasotec on February 5, 2003 (Vives Aff. ¶ 34). On February 21, 2003, she discontinued his prescription for HCTZ, another blood pressure drug and prescribed Norvasc "in response to the Consult from Elmhurst Hospital." (Id. at ¶ 36) From this account, it appears that the consult dictated the changes in medication. This consult is produced to the court as supplemental evidence (Med. File 86-87). Dated January 5, 2003, the consult was prepared by doctors at the Elmhurst Hospital who diagnosed plaintiff with angioedema and identified both Vasotec and HCTZ as causes of the condition Id. Defendants argue that since the consult was missing from the plaintiff's medical records from January 7 to February 4, 2003, the doctor could not have been aware of its findings and therefore had no knowledge of plaintiff's possible allergic reaction to his original medication.
Plaintiff acknowledges the medical record indicates that Vasotec was discontinued on January 7, 2003 (Pl. Memo at 4). He asserts, however, that the doctor continued to administer Vasotec until a switch was made to Metoprolol on February 20, 2003. Id. This switch, according to his account, lasted for only a week during which he felt much better. But he was then "put back on vasotec [sic]," which caused his conditions to worsen again. Id. According to the now-complete medical record, both Vasotec and HCTZ were drugs originally prescribed in the summer of 2002 to treat plaintiff's high blood pressure condition. Plaintiff has never mentioned the second drug HCTZ. It is unclear whether he, in alleging that the doctor continued to give him Vasotec in January and February of 2003, was actually referring to HCTZ, which the Elmhurst Hospital also identified as a possible cause to angioedema.
Defendants also emphasize the doctor's repeated and continuous treatment of plaintiff after his release from Elmhurst Hospital. The repeated treatment sessions, however do not resolve the question of her awareness of his need to change medication after his release from Elmhurst Hospital on January 4, 2003. Each time he received treatment from her following his release from the Elmhurst Hospital, plaintiff insists that he told her repeatedly that he should not be taking the medication he was being given.
In his deposition, plaintiff indicates that he repeatedly raised the issue of the proper medication the doctor following his release from the Elmhurst Hospital.
Q: And then did you continue to discuss the medication on a number of occasions?
A: Oh, yes, it's what was an ongoing discussion between herself and I. And didn't get no place.
Q: And what did she tell you about the medication?
A: She keep recommending that I take the same Vasotec. And that part I can't understand up to today.
Q: But it's possible that she didn't know you were supposed to take the other medication?
A: She knew because I told her.
Q: Right, I understand.
A: I told her. I told her this is what they told me at the [Elmhurst H]ospital.
Kendall Dep. at 91.
The Court adopts the portions of the Report against which no objections have been raised, and grants partial summary judgment for the defendants. The case is referred back to Magistrate Judge Ellis for further review and disposition of plaintiff's Section 1983 claim alleging deliberate indifference by the doctor. The Magistrate Judge shall consider the defendants' objections to the Report and the newly-submitted evidence as a renewed motion for summary judgment on that claim. Plaintiff shall have the opportunity to respond fully to the motion, and to examine and rebut defendants' newly-submitted evidence.
This Order adopts those portions of the Report to which no objections were made, and recommits the matter to the Magistrate Judge for further limited review consistent with this court's instructions herein.