Opinion
05-CV-6356 CJS.
May 9, 2007
DECISION AND ORDER
INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983 in which the plaintiff, a prison inmate who suffers from a chronic Hepatitis-C infection and cirrhosis of the liver, contends that defendants violated his rights under the 8th Amendment to the United States Constitution, by failing to provide him with the proper medical treatment. Now before the Court is defendants' motion [#31] for summary judgment. For the reasons that follow, the application is granted and this action is dismissed.
BACKGROUND
Unless otherwise indicated, the following are the facts of this case viewed in the light most favorable to the plaintiff. Plaintiff has been in the custody of the New York State Department of Correctional Services ("DOCS") for approximately 25 years. (Pl. Dep. 28, 31) Plaintiff is a native Spanish speaker who has "problems" speaking and understanding English. (Pl. Dep. 5) In or about November 2003, while he was housed at Marcy Correctional Facility ("Marcy"), plaintiff began to feel ill. Doctors at Marcy took various blood tests, but according to plaintiff, the doctors never notified him of the test results, which showed that he had Hepatitis. Nevertheless, the doctors at Marcy, who are not parties to this action, provided plaintiff with various medications to treat his symptoms, including selenium, motrin and penicillin. (Pl. Aff. [#38] p. 3)
Subsequently, plaintiff was transferred to the Segregated Housing Unit ("SHU") at Midstate Correctional Facility ("Midstate") for disciplinary reasons. At Midstate, plaintiff developed a skin rash and lost 15 pounds. (Id.) Doctors at Midstate held some type of video conference with plaintiff and other doctors concerning plaintiff's condition, after which they indicated that plaintiff was suffering from "gases" related to indigestion, for which they prescribed medication. (Id. p. 4)
SHU is essentially solitary confinement that is imposed by DOCS for disciplinary infractions. Inmates in SHU are kept locked in their cells 23 hours per day, with one hour of exercise per day.
In or about March 2004, while still in the SHU at Midstate, plaintiff began vomiting blood. Defendant Ms. Peck, a Staff Nurse II at Midstate, saw plaintiff on sick-call rounds on two occasions in March 2004. On the first occasion, Peck drew blood from plaintiff and gave him prescribed "supplements." (Pl. Dep. 13-14). Plaintiff describes his first interaction with Peck as "good." (Pl. Dep. 13; see also Id. at 19: "Q. So you didn't have a personal issue with her and you don't believe she had an issue with you? A. No. For me. [sic] I don't think so.") On the second occasion that Peck saw plaintiff, plaintiff complained to Peck about an infection, and about vomiting blood. (Pl. Dep. 15) However, plaintiff contends that Peck stated that she couldn't provide him with medical care because he did not speak English well. (Pl. Dep. 7) ("She told me she couldn't give me medical treatment because I didn't speak English well.") Significantly, however, plaintiff makes this serious allegation based upon what he was told by a fellow inmate. (Pl. Dep. 7-8) More specifically, plaintiff, who testified at his deposition with the aid of a sworn translator, indicated the following:
A. She told me I couldn't receive medical treatment.
Q. And you understood that with your limited English?
A. I had an interpreter myself. He told me — he was my interpreter and he told me that the medical treatment couldn't be denied to me. The policy that stands there about medical treatment doesn't have anything to do with races and languages [sic].
Q. Your interpreter was a fellow inmate?
A. Yes.
Q. What is his name?
A. Padre Abdulla (phonetic). It's in the supplement I sent.
Q. Is he proficient in Spanish and English?
A. Yeah. Both languages perfectly.
Q. Does he have a Hispanic background?
A. His mom is Italian. I don't know if his father is black.
Q. Is Spanish one of his primary languages?
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A. No, Italian. He's Italian.
Q. Could he have misinterpreted Mrs. Peck's message to you?
A. No because I have spoken to her and I told her straight to her, Miss Peck. And she was acting with bad attitude [sic].
Q. Describe to me the bad attitude you're talking about.
A. Inaction. No professional way. Not professional. For the job she is working at, no.
The Court consulted the "Inmate Lookup" database on DOCS' website, searched under the names "Abdulla" and "Abdullah", and found no listing for any inmate name resembling Padre Abdulla(h) or Pedro Abdulla(h).
(Pl. Dep. 12-13) Notably, since plaintiff was confined in the SHU, Peck had to talk with him through the door of his SHU cell. (Pl. Dep. 16, 18) Moreover, the inmate "translator" apparently was a fellow SHU inmate in an adjacent cell who overheard only parts of the conversation. Plaintiff states that he did not see Peck again, and that he was not seen again by a doctor until "a couple of weeks" later. (Pl. Dep. 15-16) Peck, on the other hand, indicates, in a sworn interrogatory response, that she never denied plaintiff treatment. (Peck Interrogatory Resp. [#28] ¶ 5) ("I never told plaintiff that he would be denied medical assistance because of his language.")
It appears that the fellow inmate was not an active participant in the conversation between plaintiff and Peck, since plaintiff indicates that he did not want any inmates to hear about his liver problem. (Pl. Dep. (Pl. Dep. 14) ("I was talking to her half in English like half in Spanish because I didn't want my inmate to know about my problems because I had hepatitis because then I had the same problem with another inmate because he knew I had hepatitis and he rejected me.") This explanation makes little sense, since plaintiff admits that Peck does not speak Spanish. (Pl. Dep. 18)
Subsequently, in or about September 2004, plaintiff was transferred to Elmira Correctional Facility ("Elmira"), apparently so that he could receive specialized medical treatment for his liver condition. (Pl. Dep. 20) At Elmira, plaintiff received treatment from defendant Heman Fowler ("Fowler"), a certified Nurse Practitioner. (Pl. Dep. 20) However, plaintiff also received treatment during this same period from "numerous nurses [and] P.A.s." (Pl. Aff. [#38] p. 4) Plaintiff alleges that Fowler initially gave him medicine for his "gases" and vitamin E, and filled out paperwork to have plaintiff receive additional medical treatment. (Pl. Dep. 20, 22) Thereafter, on March 7, 2005, plaintiff received a liver biopsy, which showed "Chronic Hepatitis C ("HCV") at Stage 4 — cirrhosis/grade 2-3 portal inflammation." (Aff. of Cheng Yin, M.D. [#15] ¶ 4) Following the biopsy, medical staff at Elmira determined that plaintiff was a candidate for treatment with a "combination therapy of peginterferon (i.e., Pegasys [brand name] and Ribavarin (i.e., Copegus [brand name])." (Yin Aff. [#15] ¶ 6) However, such treatment is only effective in 40-60% of patients. (Id. ¶ 7) After three months of treatment, plaintiff did not respond to the therapy. (Yin Aff. ¶ 10) Apart from this failed treatment plan, there is "no medically acceptable known treatment," though, "experimental approaches to treatment are under evaluation in long-term clinical trials." (Yin Aff. ¶¶ 10, 12)
Defendants' specifically indicated that they were relying upon Dr. Yin's affidavit, which was previously filed in opposition to plaintiff's application for injunctive relief, in support of their summary judgment motion. (Notice of Motion [#31]) Plaintiff has submitted no medical evidence to support his allegations of deliberate indifference.
Plaintiff contends that he received the peginterferon and Ribavarin treatment from July 8, 2005 until October 21, 2005, when Fowler discontinued the treatment. (Pl. Supplement to Complaint [#5]) Fowler discontinued the treatment because plaintiff was having severe side-effects from the medication (Pl. Dep. 34), and plaintiff admits that the treatment "was actually worsening his condition." (Pl. Aff. [#38] p. 4) Nevertheless, plaintiff appears to be complaining that Fowler violated his constitutional rights by discontinuing the treatment. Plaintiff also complains that on one occasion in March 2005, he met with Fowler, and Fowler "did not know what to diagnosis was in my case." [sic] (Pl. Aff. [#38] p. 4) Finally, plaintiff alleges, in conclusory fashion, that Fowler "thwarted" his attempts to see a particular doctor named Dr. Kelly. (Pl. Aff. [#38] p. 10) However, plaintiff contends that once he was seen by Dr. Kelly, "the Dr. still couldn't make a diagnos[is]." (Id.)
In addition to Peck and Fowler, plaintiff is also suing Lester Wright, M.D. ("Wright"). Plaintiff admits that he is suing Wright because of Wright's position as DOCS' Chief Medical Officer:
Q. Okay. Mr. Mangual, to the extent that you are suing Mr. Wright — Doctor Wright, excuse me — you're suing him because he is the supervisor of all medical staff in the Department of Correctons. Is that correct?
A. Yes.
Q. Is that the only reason?
A. Because it is his responsibility like a supervisor.
(Pl. Dep 29). Additionally, plaintiff alleges that he wrote to Wright "on a few occasions" "about the treatment that I wasn't getting, and about my condition worsening," and that he "got very few replies, and no cooperation." (Pl. Aff. [#38] p. 10) More specifically, plaintiff indicates that Wright was made aware of plaintiff's condition through plaintiff's complaints to the Inmate Grievance Program, including his appeals, as well as "via an ordinary letter wherein Plaintiff complained about the inadequate level of medical care he was being subjected to." (Pl. Aff. [#38] p. 15) However, Wright states, in a sworn interrogatory response, that he has no personal knowledge concerning plaintiff's medical care. (Wright Interrogatory Resp. [#29] ¶ 16).
Following the completion of discovery, defendants filed the subject summary judgment motion. Defendants contend that plaintiff cannot prove that any defendant was deliberately indifferent to plaintiff's medical needs. Moreover, defendants maintain that plaintiff cannot establish that Wright was personally involved in plaintiff's medical care. Plaintiff, proceeding pro se, filed a response to the motion. The Court has now thoroughly considered the parties' submissions and the entire record in this action.
As part of defendants' Notice of Motion [#31], they filed and served a "Notice to Pro Se Litigants Opposing Summary Judgment" as required by Local Rule 56.2 and Irby v. New York City Transit Authority, 262 F.3d 412 (2d Cir. 2001).
ANALYSIS
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) ( citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). To do this, the non-moving party must present evidence sufficient to support a jury verdict in its favor. Anderson, 477 U.S. at 249; see also, FED. R. CIV. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, and adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P. 56(e). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, because plaintiff is proceeding pro se, the Court is required to construe his submissions liberally, "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Plaintiff is suing in this action pursuant to 42 U.S.C. § 1983, and the legal principles applicable to such claims are well settled:
In order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a "person" acting "under the color of state law," and (b) that the defendant caused the plaintiff to be deprived of a federal right. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Additionally, "[i]n this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977).
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An individual cannot be held liable for damages under § 1983 "merely because he held a high position of authority," but can be held liable if he was personally involved in the alleged deprivation. See Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Personal involvement can 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 . . . by failing to act on information indicating that unconstitutional acts were occurring. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 122, 127 (2d Cir. 2004).
Plaintiff is asserting claims for deliberate indifference to his serious medical needs in violation of the Eighth Amendment. The standard for such a claim is clear:
In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove deliberate indifference to his serious medical needs. This standard incorporates both objective and subjective elements. The objective `medical need' element measures the severity of the alleged deprivation, while the subjective `deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind.
Because the Eighth Amendment is not a vehicle for bringing medical malpractice claims, nor a substitute for state tort law, not every lapse in prison medical care will rise to the level of a constitutional violation. [T]he Supreme Court [has] explained that the Eighth Amendment's prohibition on cruel and unusual punishments encompasses the deliberate failure to treat a prisoner's serious illness or injury resulting in the infliction of unnecessary pain and suffering. Because society does not expect that prisoners will have unqualified access to health care, a prisoner must first make this threshold showing of serious illness or injury in order to state an Eighth Amendment claim for denial of medical care. Similarly, a prisoner must demonstrate more than an inadvertent failure to provide adequate medical care by prison officials to successfully establish Eighth Amendment liability. An official acts with the requisite deliberate indifference when that official knows of and disregards an excessive risk to inmate health or safety, a state of mind equivalent to the familiar standard of `recklessness' as used in criminal law.Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003) (citations and internal quotations omitted). Courts have repeatedly held that disagreements over treatment do not rise to the level of a Constitutional violation. See, Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) ("It is well-established that mere disagreement over the proper treatment does not create a constitutional claim."). Similarly, negligence constituting medical malpractice, without more, will not establish a constitutional claim. Id. (citation omitted).
In this case, the Court notes, at the outset, that defendants do not dispute that plaintiff's medical condition is sufficiently serious. Instead, defendants contend that they were not deliberately indifferent to plaintiff's medical needs. The Court agrees, and finds that plaintiff has not come forward with evidence suggesting that a Constitutional violation occurred. Beginning with Nurse Peck, plaintiff's evidence consists solely of a hearsay statement, by another inmate, that Peck said she would not treat plaintiff. Generally, statements made through an interpreter are not considered hearsay:
Except in unusual circumstances, an interpreter is `no more than a language conduit and therefore his translation [does] not entail an additional level of hearsay.'" United States v. Lopez, 937 F.2d 716, 724 (2d Cir. 1991) ( quoting United States v. Koskerides, 877 F.2d 1129, 1135 (2d Cir. 1989)). Further, . . . `the translator is normally viewed as an agent of the defendant; hence the translation is attributable to the defendant as his own admission and is properly characterizable as non-hearsay under Rule 801(d)(2)(C) or (D) [of the Federal Rules of Evidence].'" Id. ( quoting United States v. Da Silva, 725 F.2d 828, 831 (2d Cir. 1983)).U.S. v. Ermichine, No. 99 CR.419(LMM), 2002 WL 869825 at *1 (S.D.N.Y. May 3, 2002). The instant case, however, is unusual for the reasons discussed above. Specifically, the "interpreter" in this case is not an interpreter at all in the ordinary sense of the word, but rather, is an SHU inmate who was under no obligation to provide an accurate translation of what Peck said. Clearly, the inmate "translator" was not Peck's agent. In fact, based on plaintiff's own statements, it does not appear that the inmate "translator" was an active participant in plaintiff's conversation with Peck, since plaintiff wanted to keep his medical condition confidential. Additionally, the alleged statement lacks indicia of trustworthiness. Apart from the fact that the "interpreter" is a convicted felon serving time in SHU, the scenario alleged by plaintiff is quite implausible. It is highly unlikely that Peck would tell plaintiff that she was refusing to treat him because he did not speak English well, particularly since, as plaintiff admits, she had already provided him with medical care and there was no animosity between the two. It is also quite improbable that Peck would make such a statement within earshot of other inmates on an SHU cellblock. In short, the alleged statement by Peck is unreliable hearsay. Peck is therefore entitled to summary judgment, since plaintiff has not come forward with evidentiary proof in admissible form to dispute her sworn statement.
Turning to the claim against Fowler, the Court similarly finds that plaintiff has failed to come forward with evidence that Fowler committed a constitutional violation. At most, plaintiff has alleged that Fowler was negligent in failing to diagnose his condition sooner. However, even assuming that plaintiff could establish that Fowler was negligent for failing to diagnose plaintiff's condition sooner, such as when plaintiff first arrived at Elmira, which plaintiff has not done, plaintiff has not come forward with any medical evidence to support his belief that the peginterferon/Ribavarin treatment would have been successful if it had started a few months earlier. Apart from suggesting that Fowler was negligent, plaintiff's claims amount to disagreements with Fowler over the proper treatment, which as discussed above, are not actionable under § 1983. Accordingly, Fowler is entitled to summary judgment.
Finally, the Court finds that, even assuming, arguendo, that a constitutional violation occurred, Wright would be entitled to summary judgment due to a lack of personal involvement by him. Here, the only possible basis for finding personal involvement is plaintiff's claim that he sent a letter to Wright, expressing his dissatisfaction with his medical treatment. However, generally speaking, the receipt of a letter is insufficient to establish personal involvement under § 1983. See, e.g., Petty v. Goord, No. 00 Civ. 803 (MBM), 2002 WL 31458240 at *8 (S.D.N.Y. Nov. 4, 2002) (Mukasey, J.) ("[C]ourts in this Circuit, applying the principles laid out in Colon [v.Coughlin, 58 F.3d 865 (2d Cir. 1995)], have agreed that receiving a letter from an inmate does not constitute sufficient personal involvement to generate supervisory liability."); accord, Barclay v. Poland, No. 03CV6585CJS(FE), 2006 WL 145552 (W.D.N.Y. Jan. 19, 2006) (Siragusa, J.) Instead, courts typically require something more before finding personal involvement. See, e.g., Rivera v. Pataki, No. 04 Civ. 1286(MBM), 2005 WL 407710 at *23 (S.D.N.Y. Feb. 7, 2005) (Mukasey, J.) ( quoting Johnson v. Wright, 234 F.Supp.2d 352, 363-64 (S.D.N.Y. 2002)) ("[P]ersonal involvement will be found . . . where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint.") However, there is no per se rule in this regard. See, Suarez v. Keiser, No. 04-CV-6362 CJS, 2006 WL 543725 at *6 (W.D.N.Y. Mar. 3, 2006) ("Such situations must be evaluated on a case-by-case basis. That is, the details of an inmate's letter might trigger a particular supervisor's duty to investigate or to take some action, or it might not.")
In this case, the Court finds that plaintiff's allegation that he sent a letter to Wright is insufficient to find personal involvement. Significantly, the letter that plaintiff allegedly sent is not part of the record, so the Court does not know exactly what plaintiff allegedly stated to Wright. See, Colon v. Coughlin, 58 F.3d at 873 ("The contents of the letter are not specified; we do not know, therefore, whether the letter was one that reasonably should have prompted Senkowski to investigate.") Moreover, Wright states, in a sworn interrogatory response, that he has no personal knowledge concerning plaintiff's medical care. (Wright Interrogatory Response [#29] ¶ 16) Consequently, regardless of the contents of the letter, there is no indication that it was ever seen by Wright. Consequently, the Court finds that plaintiff has not demonstrated a triable issue of fact as to Wright's personal involvement.
CONCLUSION
For all of the foregoing reasons, defendants' application for summary judgment [#31] is granted, and this action is dismissed.
SO ORDERED.