Opinion
No. 03-CV-6485 CJS.
July 14, 2006
Timothy R. Mandronico, Esq., Karen Sanders, Esq., Alexander Catalano, LLC, Rochester, New York, for plaintiff.
Tamara B. Christie, Esq., Office of the New York State, Attorney General, Rochester, NY, for defendants.
DECISION AND ORDER
INTRODUCTION
This is an action pursuant to 42 U.S.C. § 1983 in which the plaintiff, Anthony Morene ("plaintiff"), a prison inmate who was formerly confined at Southport Correctional Facility ("Southport"), alleges that defendants were deliberately indifferent to his serious medical needs, in violation of the Eighth Amendment to the United States Constitution. Now before the Court is defendants' renewed motion for summary judgment [#51]. For the reasons that follow, the application is granted.
BACKGROUND
The facts underlying plaintiff's medical condition were set forth in two prior Decisions and Orders of the Court, Morene v. Magee, No. 01-CV-6455 CJS, 2004 WL 951343 (W.D.N.Y. Apr. 5, 2004) and Morene v. Alves, No. 03-CV-6485 CJS, 2005 WL 1313435 (W.D.N.Y. Jun. 1, 2005). It is sufficient here to note the following facts. In 1987, prior to being confined at Southport, plaintiff sustained a gunshot wound to the head, which left metal bullet fragments lodged in his head near his right ear. Specifically, metal fragments remain embedded in plaintiff's skull and in the fleshy part of his ear canal. Subsequently, at all relevant times herein, plaintiff was confined at Southport, where defendant John Alves, M.D. ("Alves") was the facility physician and defendant Jill Northrop N.P. ("Northrop") was a Nurse Practitioner. Defendant Lester Wright, M.D. ("Wright") was the Director of Health Services for the New York State Department of Correctional Services ("DOCS"), and defendant Kamal D. Pathak, M.D. ("Pathak") was a private Otolaryngologist.In or about December 2002, plaintiff complained to Alves regarding pain in his ear and head in the vicinity of the gunshot wound. At his deposition, plaintiff described the pain as a "sharp pain" near the back of his right ear. (Pl. Dep. 16) Plaintiff further stated that the pain was a "poking sharp pain" in his right ear which he felt when he chewed, and at other unspecified times. ( Id. at 29) In this regard, plaintiff testified, "It just hurts every now and then", with the pain being worse when chewing. ( Id.) Plaintiff also stated that the pain caused him to experience sleeplessness "a lot", but he did not further quantify the amount of sleeplessness her experienced. ( Id. at 31).
While plaintiff apparently believes that the pain is caused by the metal bullet fragments, he alternatively suspects that prison officials "planted a piece of metal in [his] ear" in 1997 or 1998. ( Id. at 40) In that regard, plaintiff wrote to both New York State Governor George Pataki and to the Department of Correctional Services Inspector General in 2003, complaining that Southport's superintendent, Michael McGinnis ("McGinnis"), had implanted a "painful metal tracking device" in his ear, and that McGinnis was preventing Southport's medical staff from removing the device. Plaintiff acknowledges that he received mental health treatment between 1997 and 1999 for "hallucinations". ( Id. at 40, 47).
In any event, in response to plaintiff's complaints of pain, Alves sent plaintiff to be examined by Pathak on December 3, 2002. Pathak found no obvious reason for plaintiff's pain, and recommended that a CT scan be performed. The following day, Alves ordered the CT scan. John Chotkowski, M.D. ("Chotkowski"), reviewed the CT scan of plaintiff's head on January 16, 2003. Chotkowski's report states, in relevant part:
CT of the head. Indication: status post gunshot wound. . . .
Findings: A few small metal fragments are noted, a few immediately posterior to the external auditory meatus and few which lie in the temporal bone. No bone disruption is evident. The mastoid air cells in the mastoid process on the right are opacified were [sic] where those on the left are aerated. The exam is otherwise normal. . . .
Summary[:] small bone fragments in and adjacent to the right temporal bone which are of doubtful clinical significance. Opacification of some of the air cells of the mastoid process on the right which could be developmental or related to prior mastoid infection. Acute infection cannot be excluded with complete certainty. Study is otherwise normal.
The "external auditory meatus" is "the passage leading from the opening of the external ear to the eardrum." MERRIAM WEBSTER'S MEDICAL DESK DICTIONARY, p. 230 (1993).
The "mastoid process" is "the process [projecting aspect] of the temporal bone behind the ear that is well developed and of some what conical form in adults," containing "mastoid cells," which are small, air-filled cavities. MERRIAM-WEBSTER'S MEDICAL DESK DICTIONARY 412-13 (1993).
Alves read Chotkowski's report on January 20, 2003, and directed that plaintiff receive "F/U [follow up] at routine clinic visit ENT clinic." While Chotkowski's report suggested that plaintiff might be suffering from an infection of the mastoid sinus, Alves ruled out that possibility, since, apart from pain, plaintiff exhibited no other symptoms of an infection. (Alves Aff. [#53] ¶¶ 5-6).
Alves subsequently sent plaintiff back to Pathak on March 4, 2003. At that time, Pathak found no abnormalities in plaintiff's ear canal. Pathak indicated that he planned to remove the metal fragments, but wanted to review the CT scan first. (Pathak Aff. [#54] ¶ 8) In other words, when Pathak tentatively scheduled surgery, he had not yet reviewed plaintiff's CT scan results. Nevertheless, Alves wrote an order on March 5, 2003, pursuant to Pathak's recommendation, for surgery to remove the metal fragments. However, after Pathak reviewed the CT scan on April 1, 2003, he decided against performing surgery, and advised Alves: "Reviewed CT scan. Pt. has tiny fragments of metal lodged on various part [sic] of the temporal bone. These do not require removal." Due to Pathak's opinion that surgery was unwarranted, Alves cancelled his surgery request on April 2, 2003. Subsequently, on April 22, 2004, Alves sent plaintiff for a dental referral, however, the results of that referral are not in the record.
At Northrop's request, Alves sent plaintiff to Pathak a third time on May 4, 2004. Following that examination, Pathak wrote to Alves: "I do not believe small fragments can be found to remove. May be worthwhile referring to upstate for 2nd opinion." However, Alves decided that a further consultation was not warranted. (Alves Aff. [#53] ¶ 11). Medical staff told plaintiff that he could have his family arrange a private consultation, but plaintiff reportedly responded that he would not do so, because it was "not worth it." (Ambulatory Health Record, May 6, 2004).
During the period at issue in this lawsuit, plaintiff made numerous complaints of pain in his right ear to medical personnel at Southport. Between January 16, 2003, the date of the CT scan, and April 8, 2003, the date plaintiff was told that his surgery had been cancelled, plaintiff requested over-the-counter ("OTC") pain medication seven times, although it is not clear that all of those times involved ear pain. According to Alves, during that period, plaintiff never complained that the OTC pain medications weren't working. Immediately after being informed that his surgery had been cancelled, plaintiff began to complain on an almost daily basis that the pain medications were not relieving his ear pain. As a result, Alves prescribed a stronger pain medication, Percogesic, on April 16, 2003. On April 27, 2003, plaintiff complained that the Percogesic "was not working." However, medical staff reported that plaintiff appeared to be in no acute distress. During the following two months, plaintiff did not complain about ear pain or the pain medication.
At his deposition, plaintiff testified that his medical records were accurate. (Pl. Dep. 35-36).
Northrop examined plaintiff on June 22, 2003, at which time plaintiff complained of ear pain. At plaintiff's request, Northrop asked Alves if plaintiff should be seen again by an Otolaryngologist. However Alves denied the request, because he saw no change in plaintiff's condition. Plaintiff subsequently made no complaints regarding ear pain or the pain medications for approximately two months. In September 2003, plaintiff was housed temporarily at Attica Correctional Facility, where medical staff prescribed him Percogesic. When plaintiff returned to Southport after a week in Attica, he was not continued on Percogesic. Plaintiff did not complain about pain or his medications from mid-September until early November 2003. Plaintiff complained to Alves about pain on November 3, 2003, and Alves directed that plaintiff receive Advil and Percogesic. In November and December 2003, plaintiff complained about pain in his ear "approximately every other day," and stated that the medications were not working. Nonetheless, Alves continued plaintiff on Percogesic through mid-December 2003. On December 15, 2003, Northrop gave plaintiff Motrin in addition to the Percogesic, and Alves subsequently prescribed both Percogesic and Motrin for plaintiff as needed for pain. Between December 20, 2003 and March 6, 2004, plaintiff made no additional complaints of pain nor did he request additional medication. On March 6 and March 11, 2004, plaintiff again complained of ear pain, and Northrop ordered that plaintiff be placed on Naprosyn. Plaintiff complained that the Naprosyn was not helping, but Alves directed that it be continued. On March 29, 2004, Northrop discontinued the Naprosyn and ordered that plaintiff be given Ultram, which, according to Alves, is designed for "management of moderate to moderately severe chronic pain." After a few days, plaintiff complained that the Ultram was not working, but Alves directed that it be continued. In addition to his complaints of pain, plaintiff also complained on two occasions, December 4 and December 6, 2003, that he was having trouble sleeping because of pain.
In addition to complaining to Alves and Northrop, plaintiff wrote letters to Wright. Specifically, plaintiff alleges that on four occasions, he wrote letters to Wright, complaining that the pain medications weren't helping, and requesting that surgery be scheduled. However, he states that Wright never responded to his letters. (Pl. Dep. 25).
Plaintiff states that he wrote to Wright on April 21, 2003, April 22, 2003, April 23, 2003, and April 24, 2003. (Pl. Dep. 24).
Plaintiff commenced this action against Wright, Alves, and Northrop, on October 3, 2003. Plaintiff later amended his complaint to add Pathak as a defendant, although he never served Pathak with a summons and complaint. In this action, plaintiff alleges that defendants violated his Eighth Amendment rights in essentially two ways: 1) by failing to provide surgery to remove bullet fragments from his "external auditory meatus"; and 2) by failing to provide more effective pain medication.
The parties conducted discovery, after which defendants Alves, Northrop and Wright filed the subject motion for summary judgment. Alves and Northrop contend that they are entitled to summary judgment because they provided appropriate medical care to plaintiff. More specifically, Alves states in an affidavit that it is his opinion, to a reasonable degree of medical certainty, that plaintiff's complaints of pain are not caused by the metal fragments, and that surgery was not warranted. (Alves Aff. [#53] ¶¶ 9-10) Pathak also states in an affidavit that it is his opinion, to a reasonable degree of medical certainty, that plaintiff's complaints of pain are not caused by the metal fragments. (Pathak Aff. [#54] ¶ 14) Alves and Northrop further state that they were entitled to rely on Pathak's expert opinion that surgery was unnecessary, and they note that plaintiff has not come forward with any medical evidence to refute that opinion. Similarly, with regard to plaintiff's pain medications, defendants state that they consistently used a variety of different pain relievers in an attempt to alleviate plaintiff's complaints. Therefore Alves and Northrop maintain that plaintiff's complaints about the care that they provided amount to a mere disagreement over the proper treatment. Wright, on the other hand, contends that he had no personal involvement in the alleged constitutional violations.
Counsel for the parties appeared before the undersigned for oral argument on July 13, 2006. The Court has thoroughly considered the entire record and the arguments of counsel.
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).
Pathak
At the outset, the Court notes that Pathak is not actually a defendant in this action, since he was never served with a summons and complaint. The statute of limitations as to Pathak has also likely long since expired. Accordingly, the purported claims against Pathak are dismissed. Alves and Northrop
Turning to the claims against Alves and Northrop, the Court finds that both defendants are entitled to summary judgment. The standard to be applied in a case involving an alleged Eighth Amendment violation arising from denial of medical care is well settled:
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).
An Eighth Amendment deliberate indifference claim is not limited to a situation where a doctor allegedly withheld treatment altogether. Rather,
[i]n certain instances, a physician may be deliberately indifferent if he or she consciously chooses "an easier and less efficacious" treatment plan. Williams v. Vincent, 508 F.2d 541, 544 (2d Cir. 1974); see also Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989) (reaffirming position that "choice of an easier but less efficacious course of treatment can constitute deliberate indifference"). In Williams, for example, the plaintiff alleged that the prison doctors chose simply to close a wound caused by the severing of his ear rather than attempting to reattach the organ. [The Second Circuit] held that this form of treatment could constitute deliberate indifference rather than a mere difference of opinion over a matter of medical judgment.Chance v. Armstrong, 143 F.3d at 703.
Applying these principles of law, the Court finds that Alves and Northrop are entitled to summary judgment. Plaintiff insists that defendants should have arranged for him to have surgery to remove the metal fragments from his auditory meatus. However, he provides no medical evidence that such a procedure is medically necessary. Instead, he relies solely on his subjective belief that the metal fragments, which did not bother him at all between 1987 and 2000, are the cause of the pain in his ear. Meanwhile, Alves and Pathak both state, to a reasonable degree of medical certainty, that the surgery is unnecessary. As discussed above, this type of disagreement over the proper course of treatment does not give rise to a constitutional violation. Similarly, while plaintiff alleges that the pain medications that he was given failed to alleviate his pain and sleeplessness, it is undisputed that defendants consistently provided him with such medications. Moreover, in response to plaintiff's complaints that the medications were not working, defendants gave him a series of different pain medications, including Advil, Percogesic, Naprosyn, and eventually, Ultram. Consequently, the Court finds that plaintiff's allegations in this regard similarly amount to a mere disagreement over treatment. See, Veloz v. New York, 339 F.Supp.2d 505, 525 (S.D.N.Y. 2004) ("Differences in opinion by a doctor and a prisoner over the appropriate medication to be prescribed is a disagreement over a treatment plan and does not implicate the Eighth Amendment."), aff'd 2006 WL 1082836 (2d Cir. Apr. 24, 2006). Finally, the Court notes that during oral argument, plaintiff's counsel placed particular emphasis on the fact that Alves and Northrop had provided plaintiff with only OTC pain relievers for a year before providing him with stronger medications, and on the fact that Alves never obtained a second opinion from an Otolaryngologist besides Pathak. However, the Court finds that these arguments amount to a disagreement over treatment, which does not give rise to an Eighth Amendment violation. The motion for summary judgment by Alves and Northrop is granted.
At oral argument, plaintiff's counsel also referred to the fact that, in 2005, while plaintiff was housed at Auburn Correctional Facility, a facility doctor recommended that plaintiff receive a pain evaluation. However, plaintiff's treatment at Auburn in 2005 is not the subject of this lawsuit.
Wright
Since the Court has concluded that Alves and Northrop are entitled to summary judgment, the supervisory claim against Wright must also fail. In any event, the Court would find that plaintiff has not made the necessary showing that Wright was personally involved in the alleged constitutional violations. It is well settled that "personal involvement" under 42 U.S.C. § 1983 may arise in the following ways:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon v. Coughlin, 58 F.3d 865, 873 (2d Circuit 1995) (citation omitted).
Here, the only possible ground upon which to find that Wright was personally involved is number (2) above, based on the letters that plaintiff sent to him. Defendants contend, inter alia, that "the mere receipt of a letter of complaint from an inmate is insufficient to establish personal involvement and liability under § 1983." (Def. Memo [#57 p. 12) In general, this may be a correct statement of the law. 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, 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, this Court has previously held that 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.")
Nonetheless, the Court agrees that, in this case, plaintiff's allegation that he sent four letters to Wright is insufficient to find personal involvement. Most notably, the record does not contain the letters that plaintiff allegedly sent to Wright, so the Court does not know exactly what plaintiff related in them. 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.") At his deposition, plaintiff stated only that his letters were "small letter[s] to ask that to [sic] remove the metal fragments, that the meds wasn't controlling the pain. . . . Basically telling them the meds were not controlling the pain and would you provide surgery." (Pl. Dep. 25) The Court finds that this allegation is not sufficient to raise a triable issue of fact as to Wright's personal involvement.
CONCLUSION
For all of the foregoing reasons, defendants' summary judgment motion [#51] is granted in its entirety, and this action is dismissed.
So Ordered.