Summary
granting summary judgment where plaintiff "acknowledges that he has not identified any expert who will testify that his injury was aggravated as a result of the claimed delay in medical treatment . . . and admits that no medical records exist which supports that a delay in medical care resulted in aggravation of his injury"
Summary of this case from Ray v. ZamilusOpinion
99-CV-1799
April 12, 2001
TOBIN and DEMPF, Attorneys for Plaintiff, Albany, N.Y. 12207. OF COUNSEL: KEVIN A. LUIBRAND, ESQ.
LANDAM, CORSI, BALLAINE FORD, P.C., Attorneys for Defendant Joseph Rozeff, New York, New York 10271-0079. OF COUNSEL: MARK S. LANDMAN, ESQ.
RYAN SMALLCOMBE, LLP, Attorneys for Defedants Wayne Peplowski and the City of Rensselaer Albany, New York 12209, OF COUNSEL: CLAUDIA A. RYAN, ESQ.
MEMORANDUM DECISION AND ORDER
On November 4, 1998, Assistant Conductor Gary Paugh had plaintiff put off an Amtrak train at the Rensselaer, N.Y. station for allegedly creating a disturbance. He was immediately arrested for disorderly conduct by defendant Wayne Peplowski, a City of Rensselaer police officer, and defendant Jonathan Rozoff, an Amtrak police officer, and taken, along with his luggage, to the Rensselaer Police Department. Plaintiff was placed on a bench in the booking area of the station, and his luggage was placed nearby. Defendant Rozoff was seated at the booking desk preparing a criminal information charging plaintiff with disorderly conduct. Defendant Poplowski was also present in the booking area, but left briefly to obtain some required paperwork.
Plaintiff alleges that while he was seated in the booking area, an unidentified City of Rensselaer Police Officer started searching through his luggage, and when he stood up and to make an objection, the police officer struck him with an open hand hitting plaintiff on his left ear. Plaintiff fell to the floor stunned. He claims that defendants Rozeff and Peplowski then picked him up and dragged him to a jail cell where he passed out. He awoke the next morning with severe pain in his left ear and the blanket his head had rested upon saturated with blood. Plaintiff claims that he then cleaned himself up, had breakfast, was taken to court, pled guilty to the charge, paid the assessed fine and was released from custody. He went immediately to have his ear examined at the Albany Medical Center where he was diagnosed as having a perforated left ear drum, was treated with antibiotics, and was advised to obtain follow up medical attention. The court notes that the police guard on duty that morning makes no mention in the Renesselaer Police Department Prisoner Log of seeing a blood drenched blanket in plaintiffs cell when he awakened plaintiff and provided him with breakfast. (Luibrand — Affidavit in Partial Opposition to Defendants' Motions for Summary Judgment, Ex. H)
Plaintiff commenced this action on November 23, 1999, asserting that because defendants Rozeff and Peplowski denied him his constitutional right to medical treatment in violation of 42 U.S.C. § 1983, he suffered permanent damage to his left ear, including extreme pain and ringing in his ear as well as mental suffering. The complaint also contains a pendent state claim for assault and battery. Plaintiff seeks compensatory and punitive damages, attorney's fees and costs.
On April 28, 2000, plaintiff's motion to amend the complaint to add Amtrak as a party defendant and asserting causes of action of conspiracy to violate 42 U.S.C. § 1985, negligence and respondeat superior was granted, however, the record does not show that an amended complaint was ever served on Amtrak.
Currently before the court are individual motions for summary judgment, one made by defendant Rozeff, and the other by defendants Peplowski and the City of Rensselaer for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has entered partial opposition to each of these motions.
DISCUSSION
Rule 56 of the Federal Rules of Civil Procedure permits summary judgment where the evidence demonstrates that "there is no genuine issue of any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2709, 91 L.Ed.2d 202 (1986). Summary judgment is properly regarded as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catreet, 477 U.S. 317, 327, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (quoting Federal Rule of Civil Procedure 1). In determining whether there is a genuine issue of material fact a court must resolve all ambiguities and draw inferences against the moving party. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (l962) ( per curiam). An issue of credibility is insufficient to preclude the granting of a motion for summary judgment. Neither side can rely on conclusory allegations or statements in affidavits. The disputed issue of fact must be supported by evidence that would allow a "rational trier of fact to find for the non-moving party."Mashusita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Unsupported allegations will not suffice to create a triable issue of fact. Goenga v. March of Dimes Birth Defects Federation, 51 F.3d 14, 18 (2d Cir. 1995). Nor will factual disputes that are irrelevant to the disposition of the suit under governing law preclude any entry of summary judgment. Anderson, 477 U.S. at 247, 106 S.Ct. at 2509.
The papers submitted by plaintiff in opposition to the two summary judgment motions address only that portion of his first cause of action that claims that defendants Peplowski and Rozeff denied him medical attention in an unconstitutional manner. Plaintiff did not challenge the contentions made by defendants Peplowski and Rozeff in their motion papers that plaintiffs claims in his first cause of action regarding defendant Rozeff's striking the plaintiff, and defendant Peplowski's failure to intervene to stop this assault, are without merit, as is the state law assault and battery claim he sets forth in his second cause of action. The court agrees with the defendants' positions here and will dismiss these causes of action. The only remaining claim for the court to consider in these summary judgment motions is that defendants Peplowski and Rozeff did not provide medical treatment to plaintiff for his injured ear.
Although plaintiff does not so state in his complaint, what he is claiming is that defendants Roseff and Peplowski were deliberately indifferent to his serious medical needs. The Eighth Amendment's prohibition on cruel and unusual punishment proscribes "deliberate indifference to serious medical needs manifested by . . . intentionally delaying access to medical care. Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). The Eighth Amendment does not apply in cases where there has been no formal adjudication of guilt. City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983). The rights of one who has not been convicted are protected by the Due Process Clause and . . . it is plain that the unconvicted detainee's rights are at least as great as those of the convicted prisoner. Weyant v. Osk, 101 F.3d 845, 856 (2d Cir. 1996). Therefore, the deliberate indifference claims apply arise under the Due Process Clause of either the Fourteenth Amendment or the Fifth Amendment. Cuoco v. Mortisgugu, 222 F.2d 99, 106 (2d Cir. 2000).
Here, plaintiff was under arrest and in custody at the time of the alleged delay of medical attention, and had not been arraigned or convicted of any crime. He was neither a pre-trial detainee nor a prisoner, but an arrestee in custody. Even though the Supreme Court has not formulated the duties of the custodial official under the Due Process Clause to provide medical care to arrestees, it is clear that the arrestee's rights are as great as those afforded to the pre-trial detainee and to a convicted prisoner under the Eighth Amendment. Hence, plaintiffs denial of medical care claim will be analyzed under Eighth Amendment case law. Smith v. Montefiore Medical Center-Health Services Division, 22 F. Supp.2d 275, 280 (S.D.N.Y. 1998).
"The deliberate indifference standard is comprised of an objective and subjective prong. First the alleged deprivation must be, in objective terms, "sufficiently serious' [and] [s]econd, the charged official must act with sufficiently culpable state of mind. Hathaway v. Coughlin, 37 F.2d 63, 66 (2d Cir. 1994). For the first prong, a sufficiently serious medical need "contemplates a condition urgency, one that may produce death, degeneration, or extreme pain." Id. To meet the second prong, "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." Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct., 128 L.Ed.2d 811 (1994). The subjective element of deliberate indifference "entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result" Id. at 835.
Here, plaintiffs evidence does not support a claim of deliberate indifference against either defendant Rozeff or defendant Peplowski. First, assuming that plaintiff had a sufficiently serious medical need, plaintiff has not shown that either defendants' state of mind was deliberate indifference as formulated in Farmer v. Brennan, Id. Plaintiff does not call attention to evidence to support that either defendant knew the facts from which he could draw that inference. Id. at 837. He only speculates that either or both defendants may have seen him struck by the unidentified police officer because they both were entering and leaving the booking room throughout the period he was being detained there. Furthermore, plaintiff offers no evidence that his need for medical attention was evident. At the Albany Medical Center he was diagnosed as having a perforated left ear drum, treated with antibiotics, and advised to obtain follow up medical evaluation. Plaintiffs alleged injury was internal. There is no evidence in plaintiffs's testimony or any document from which it can be inferred that plaintiff had suffered a serious injury obvious to either of the defendants. "It is impossible to respond to invisible injury without notice." Owens v. Colburn, 860 F. Supp. 996, 974-75 (N.D.N.Y. 1994). Plaintiff has not presented any evidence that either defendant would have known that plaintiff needed medical attention just by looking at him.
The record also indicates that plaintiffs medical problem may have pre-existed his being struck on the left outer ear by an unidentified police officer. On February 14, 2000, plaintiff had his left ear examined by a Doctor Qec, at The Queen Emma Clinics in Hawaii. Dr. Qec's examination report states that plaintiff said "in November 1998, he injured his ear while diving into a pool." Plaintiffs left ear was again examined at an ENT clinic in the same medical facility on February 23, 2000, by Meredith K.L. Pang, M.D. Dr. Pang's examination report states that plaintiff said the ear was injured in Colorado "while playing basketball 16 months ago." (Def, Peplowski's Notice of Motion, Ex. L).
In paragraph 20 of his complaint plaintiff maintains that he asked for medical treatment after he had been struck on the ear. The record disagrees with this assertion. Plaintiff has admitted as part of his opposition papers that at no point did he either cry out or express pain or or request medical assistance from any member of the City of Rensselaer Police Department, the officer who woke him in the morning and escorted him to court, nor the presiding judge of the court. Plaintiff first complained of his injury at the Albany Medical Center. He has put forward no evidence that defendants Rozeff and Peplowski would have known that he needed medical attention just by looking at him thereby failing to demonstrate that defendants had the requisite state of mind underFarmer v. Brennan to show deliberate indifference to plaintiffs medical needs.
Plaintiff also alleges that the defendants conduct in delaying him medical assistance caused him permanent injury. (Complaint ¶ 24). A delay in providing medical care to an arrestee does not by itself violate the constitution. Shockly v. Jones, 823 F.2d 1068, 1072 (7th Cir. 1987). To establish a constitutional violation, an arrestee must show that he suffered substantial harm as a result of the delay in receiving medical care. de La Paz v. Danzel, 646 F. Supp. 914, 922-23 (D.C.N.D. Ill. 1986). A plaintiff who complains that a "delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of delay in medical treatment." Hill v. DeKalb Regional Youth Detention Center, 40 F.3d 1176, 1188 (11th Cir. 1994). Not only has plaintiff not done this, he acknowledges that he has not identified any expert who will testify that his injury was aggravated as a result of the claimed delay in medical treatment, (Plnf. 7.1(a)(3) Respn to Peplowski ¶ 36), and admits that no medical records exist which supports that a delay in medical care resulted in aggravation of his injury. (Id. at ¶ 37)
The evidence submitted does not support plaintiffs claim that defendants Rozeff and Peplowski exhibited deliberate indifference to plaintiffs medical needs, and these defendants are entitled to summary judgment on plaintiffs claim of deliberate medical indifference to his medical needs. What is more, because plaintiff has not established any legally cognizable federal claim against municipal police officer defendant Pepolski, no claim can lie against municipal defendant The City of Rensselaer. City of Los Angles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)
Defendants Rozeff and Peplowski have both set forth affirmative defenses of qualified immunity. In an action brought under 42 U.S.C. § 1983, a plaintiff must establish that a person acting under color of state law deprived him of a federal right. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923, L. 64 Ed.2d 572 (1980). If a plaintiff fails to set forth facts sufficient to meet these elements, as has occurred in the instant case, the court need not consider whether a defendant is entitled to qualified immunity. Calhoun v. New York State Division of Parole Officers, 999 F.2d 647, 652 (2d Cir. 1993).
Accordingly, the two motions for summary judgment made by defendants Rozeff and Peplowski and the City of Rensselaer are GRANTED and the complaint is DISMISSED.