Opinion
No. 01-CV-6455 CJS.
April 5, 2004
Anthony Morene, Pro se, Pine City, New York, for Plaintiff.
Kelly Ann McCarthy, Esq., Office of the New York State, Attorney General, Rochester, NY, for defendant.
DECISION AND ORDER
INTRODUCTION
This is an action in which the plaintiff, Anthony Morene ("plaintiff"), a prison inmate who was formerly housed at Attica Correctional Facility ("Attica"), is suing defendants Robert Magee ("Magee") and Thomas Edwards ("Edwards"), both of whom were employed as Physician's Assistants at Attica, for denial of medical treatment pursuant to 42 U.S.C. § 1983, and for conspiracy pursuant to 42 U.S.C. § 1985(3). Now before the Court is defendants' Motion for Summary Judgment [#22] and plaintiff's Cross-motion for Summary Judgment [#30]. For the reasons stated below, defendants' motion is granted, plaintiff's cross-motion is denied, and this action is dismissed.
BACKGROUND
Unless otherwise noted, the following are the undisputed facts of this case, viewed in the light most favorable to the plaintiff. In 1987, plaintiff sustained a gunshot wound to the head, which apparently left metal bullet fragments lodged in his head near his right ear.Plaintiff's Medical Record
The following facts are taken from plaintiff's inmate ambulatory health record ("medical record."). In 2000, while incarcerated at Elmira Correctional Facility ("Elmira"), plaintiff complained to medical staff regarding headaches which he attributed to his gunshot wound 13 years earlier. A note in the medical record dated August 23, 2000, indicates that plaintiff was complaining of headache, and was refusing over-the-counter medications. On August 30, 2000, medical staff at Elmira evaluated plaintiff's complaints and advised him to use over-the-counter Tylenol or Advil for pain. An x-ray of plaintiff's skull was obtained on September 5, 2000. On September 13, 2000, Elmira medical staff met with plaintiff to review the x-ray, which, despite the presence of bullet fragments, showed "no abnormalities." Despite being told this, plaintiff demanded another x-ray. On October 26, 2000, plaintiff complained to Elmira medical staff of a headache from "doors slamming," and was given Tylenol.
On or about November 20, 2000, plaintiff was transferred to Attica. At Attica, medical services were provided to inmates by an attending physician, Dr. Laskowski ("Laskowski"), the two defendant physician's assistants, Magee and Edwards, and a staff of nurses. Inmates were seen on daily sick-call by nurses, and were seen once a week by Laskowski and by one of the defendant physician's assistants. Because there were two physician's assistants, each of the defendants saw plaintiff only twice a month at most. At Attica, plaintiff began complaining that he wanted the bullet fragments surgically removed. He also complained of headaches at various times. On December 6, 2000, Magee examined plaintiff and prescribed Motrin for plaintiff's headache. On December 18, 2000, plaintiff complained to Edwards that he could feel a bullet fragment in his ear. On December 20, 2000, Magee ordered that plaintiff's Motrin prescription be refilled.
On January 9, 2001, an outside otolaryngologic specialist ("the specialist") examined plaintiff regarding his complaints of ear pain. The specialist noted that plaintiff acknowledged grinding his teeth and placing an object in his ear (An entry in the medical chart on December 18, 2000 appears to indicate that plaintiff was cleaning his ear with a hairpin when he felt a metal fragment in the ear), and opined that plaintiff's ear pain may have been caused by those factors, or by bullet fragments. The specialist indicated that no further testing was necessary. Pl. Appendix [#27], bates-stamped document 00000024. The medical chart indicates that plaintiff did not make any further complaints of headaches in January 2001. On February 1, 2001, plaintiff told a nurse that he wanted an MRI or CT scan taken of his head. On February 3, 2001, Laskowski, the attending physician, denied plaintiff's request, noting that the specialist had not recommended further testing. On February 14, 2001, Magee recorded that plaintiff was still requesting an MRI or CT scan of his right ear. Magee noted that plaintiff had been examined by the specialist on January 9th and that Laskowski had already denied plaintiff's request for a CT scan or MRI. On May 8, 2001, plaintiff complained of right ear pain to a nurse, who gave him Tylenol. On May 9, 2000, Magee noted that plaintiff was complaining of right ear pain, and that Tylenol wasn't helping. Magee wrote another prescription for Motrin. Magee also noted in the chart that plaintiff's September 2000 x-rays showed no abnormalities, and that the specialist had indicated in January 2001 that no additional testing was necessary. On May 16, 2001, Edwards examined plaintiff, and noted that he was colaining of right ear pain and requesting an MRI. Edwards wrote that plaintiff had seen a specialist in January 2001 and that no testing was necessary. On June 6, 2001, Magee ordered a refill of plaintiff's Motrin prescription.
Plaintiff's Inmate Grievances
On May 17, 2001, plaintiff filed an inmate grievance (Grievance No. 42180-01) against Edwards, complaining that on May 16, 2001, Edwards had refused to order a CT scan or MRI. Plaintiff requested that he be placed on a list for a CT scan or MRI. The grievance was denied by the Inmate Grievance Review Committee, and was affirmed on appeal by both the facility superintendent and by the Department of Correctional Service's ("DOCS") Central Office Review Committee ("CORC"), on the grounds that the testing was not medically indicated. On June 7, 2001, plaintiff filed another inmate grievance (Grievance No. 42268-01), complaining that on the previous day, June 6, 2001, he had asked Magee "for some Motrin for pain" and that he be given a CT scan or MRI. Plaintiff again requested that he be placed on a list for a CT scan or MRI. The grievance was denied by the IGRC, on the grounds that the testing was not necessary and that plaintiff had been provided with Motrin on June 8, 2001, which denial was affirmed by both the facility superintendent and by CORC. Plaintiff's Complaint in the Instant Action
On September 19, 2001, plaintiff, proceeding pro se, commenced the instant action against Magee and Edwards pursuant to 42 U.S.C. § 1983, claiming that both defendants violated his rights under the 8th Amendment to the United States Constitution by acting with deliberate indifference to his serious medical needs. Liberally construing the complaint to raise the strongest claims that it suggests, as the Court is required to do when dealing with a pro se plaintiff, the Court finds that plaintiff is alleging four instances where defendants acted with deliberate indifference to his medical needs: 1) that between January and June of 2001, Magee refused to provide him with any Motrin (Complaint, p. 5, addendum p. 1); 2) that Magee failed to provide him with Motrin between June 6, 2001 and June 8, 2001 (Complaint, addendum p. 1); 3) that on May 16, 2001, Edwards refused to request a CT scan or MRI; and 4) that Magee and Edwards conspired to deprive plaintiff of his constitutional rights. ( Id., p. 2).
At his deposition, plaintiff testified that in this lawsuit he is only alleging claims arising between January 2001 and June 2001. Pl. Deposition, p. 20, Def. Appendix to Summary Judgment Motion.
At his deposition, plaintiff testified that he "did not recall" Magee prescribing him any medication prior to June 2001. He also testified that he "did not recall" any occasion when Magee refused to provide him with medication. Pl. Dep. pp. 27-28.
The Cross-Motions for Summary Judgment
Following the completion of discovery in this action, defendants filed their summary judgment motion [#22]. Defendants contend that they are entitled to summary judgment pursuant to 42 U.S.C. § 1997e(a) on the claim alleging denial of medical treatment between January and June 2001 and the claim alleging conspiracy. More specifically, they allege plaintiff did not exhaust his administrative remedies as to those claims before commencing this action. In that regard, defendants have submitted an affidavit from George Struebel ("Struebel"), the Inmate Grievance Program Supervisor at Attica and custodian of Attica's grievance records. According to Struebel, plaintiff only filed inmate grievances concerning his claims that Magee denied him pain medication between June 6, 2001 and June 8, 2001, and that Edwards refused to request a CT scan or MRI on May 17, 2001. Struebel acknowledges that plaintiff exhausted his administrative remedies as to these two claims, but indicates that plaintiff did not attempt to exhaust his administrative remedies as to the other claims in this action.
Defendants and the Court provided plaintiff with a notice pursuant to Irby v. New York City Transit Auth., 262 F.3d 412 (2d Cir. 2001).
It appears that plaintiff may have chosen the date of May 17th based upon an entry in medical record made by Edwards on May 10, 2001, which, due to the handwriting, is difficult to read. There is no entry in the chart on May 17, 2001.
As for the two claims which plaintiff did exhaust, defendants also contend that they are entitled to judgment as a matter of law. In that regard, Magee contends, in an affidavit, that he did not deny plaintiff pain medication between June 6, 2001 and June 8, 2001, or at any other time. According to Magee, he wrote and submitted a prescription on June 6, 2001, the same day plaintiff requested medication. Magee indicates that he had no control over the fact that it may have taken the facility pharmacy two days to fill the prescription. Magee Aff. [#27], ¶ 8. Magee further maintains that between January and June 2001, he saw plaintiff on only three occasions, February 14th, May 9th, and June 6th, that on the 14th plaintiff did not request pain medication, and that on both of the latter two occasions, he in fact prescribed plaintiff pain medication. Id. ¶¶ 5-6, 8. Magee further indicates that it was Dr. Laskowski who made the determination to deny plaintiff's request for a CT scan or MRI, not he or Edwards. Id. ¶ 9. Finally, Magee denies that he and Edwards conspired to deny plaintiff medical treatment. Similarly, Edwards states, in a sworn affidavit, that it was Laskowski's decision to deny plaintiff the CT scan and MRI, not his. Edwards Aff. [#39], ¶¶ 7-9. Edwards also denies that he ever refused to provide plaintiff with pain medication. As to that, Edwards indicates that between January and June of 2001, he saw plaintiff on only one occasion, May 10, 2001, one day after Magee had examined plaintiff and prescribed Motrin. Id. ¶ 5. Finally, Edwards avers that he never conspired with Magee to deny plaintiff medical treatment.
In response to defendants' motion, plaintiff filed an opposition and a cross-motion for summary judgment [#30]. Plaintiff first contends that he exhausted his administrative remedies as to "several" of his claims. However, on that point, he cites only to the inmate grievances discussed above. Pl. Cross-motion [#30], p. 5. As for the CT scan/MRI claim, plaintiff contends that, despite the specialist and Laskowski indicating that the testing was not needed, Edwards should be liable for failing to order the tests, since he had the ability to do so. Plaintiff also contends that Magee is liable for depriving him of his medication over a period of two days, citing Archer v. Dutcher, 733 F.2d 14 (2d Cir. 1984).
In Archer v. Dutcher, 733 F.2d 14 (2d Cir. 1984), a pregnant prison inmate suffered cramping and vaginal bleeding while confined in a cell, and eventually miscarried. The plaintiff was complaining that prison officials had been deliberately indifferent to her serious medical needs, because they delayed transporting her to a hospital for five hours after she complained of pain. Id. at 16. The court held that under the facts of that case, a delay of even five hours could state a constitutional claim, if the defendants intended to make the plaintiff suffer. Id.
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). A court should read a pro se litigant's papers liberally, interpreting them "to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Exhaustion of Administrative Remedies
Defendants seek summary judgment in part pursuant to 42 U.S.C. § 1997e(a), which provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." In New York, it is well settled that inmates may exhaust their administrative remedies using the inmate grievance process:
[i]n New York State, those remedies consist of a three-step review process. Once a grievance is submitted to the inmate grievance resolution committee ("IGRC"), (1) the grievance is investigated and reviewed by the IGRC, which is comprised of inmates and DOCS employees; (2) if appealed, the superintendent of the facility reviews the IGRC's determination; and (3) if the superintendent's decision is appealed, the Central Office Review Committee ("CORC") makes the final administrative determination. Reyes v. Punzal, 206 F. Supp.2d 431, 432 (W.D.N.Y. 2002) (citations omitted). Where a plaintiff has failed to comply with 42 U.S.C. § 1997e(a) prior to commencing his lawsuit, the district court should dismiss the action without prejudice. Neal v. Goord, 267 F.3d 116, 121-23 (2d Cir. 2001), overruled in part on other grounds by Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002).
It is unclear at this time whether or not inmates may also exhaust their administrative remedies in other ways, see, Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003), however the Court need not consider that issue here, since plaintiff maintains only that he exhausted using the inmate grievance program.
Here, it is clear that plaintiff never exhausted his administrative remedies concerning his claims that he was denied pain medication between January 2001 and June 2001, either by Magee or Edwards, or that Magee and Edwards had conspired to deny him medical care. As defendants admit, however, plaintiff did exhaust his other claims. Because plaintiff has asserted both exhausted and unexhausted claims, the issue arises as to whether or not the Court should apply a "total exhaustion" rule, and also dismiss the exhausted claims. See, Muhammad v. Pico, No. 02 CIV. 1052 AJP, 2003 WL 21792158 at *9 (S.D.N.Y. Aug. 5, 2003) ("The issue therefore is whether the PLRA compels a rule of "total exhaustion" — whether a district court must dismiss a prisoner's entire § 1983 action if some but not all claims are administratively unexhausted, or if the Court may dismiss only those claims that are unexhausted while ruling on the exhausted claims. The decisions are divided on the issue.") (citations omitted). The Second Circuit has not ruled upon this issue. Id. Some district courts have applied a total exhaustion rule, requiring the dismissal of the entire action where less than all claims have been exhausted, see, e.g Williams v. Cooney, No. 01 CV 4623 (RCC), 2004 WL 434600 at *3 (S.D.N.Y. Mar. 8, 2004), while others have merely dismissed the unexhausted claims without prejudice and allowed the exhausted claims to go forward, see, Dimick v. Baruffo, No. 02 Civ. 2151 (LMM), 2003 WL 660826 at *5 (S.D.N.Y. Feb. 28, 2003). In this case, the Court will dismiss the unexhausted claims, but not the entire action. In that regard, defendants have not asked to have the entire action dismissed pursuant to 1997e(a), only the unexhausted claims. See, Def. Memo [#24], p. 6. ("Here, plaintiff Morene failed to exhaust his administrative remedies as to several of his claims and therefore, those claims should be dismissed."). And, in any event, the Court agrees with Judge Larimer's reasoning in Rosales v. Bennett, 297 F. Supp.2d 637, (W.D.N.Y. 2004) that there is "little reason" to dismiss the exhausted claims which are factually distinct from the unexhausted claims.
Deliberate Indifference to a Serious Medical Need
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).
In the instant case, the Court finds that Magee is entitled to summary judgment on the claim that he denied plaintiff pain medication for two days, between June 6, 2001 and June 8, 2001. First, the Court finds that plaintiff has not demonstrated a serious medical need, since at most he indicates that he suffered from a headache for two days. Even assuming that plaintiff did have a serious medical condition, Magemaintains that he promptly ordered a prescription for plaintiff on June 6, 2001, and had nothing to do with actually filling the prescription. Therefore, Magee claims, he was not personally involved in the alleged delay in providing the medicine. Plaintiff has not proffered any evidentiary proof to the contrary. Moreover, even if plaintiff had shown that Magee was somehow personally responsible for the two-day delay, he has not come forward with any evidence to suggest that Magee acted with deliberate indifference. Therefore, Magee is entitled to summary judgment on that claim.
In this regard, plaintiff's reliance on Archer v. Dutcher, 733 F.2d 14 (2d Cir. 1984) is misplaced.
As an aside, the Court notes that plaintiff's claim that Magee denied him pain medication between January 2001 and June 2001, while unexhausted, also lacks merit. According to plaintiff's complaint, he began complaining about pain in his right ear on January 9, 2001, and thereafter, Magee denied him pain medication for five months. Complaint [#1]. However, this theory is untenable, as it is undisputed in the record that: 1) plaintiff began complaining of pain in early December 2000; 2) the only reason plaintiff was examined by a specialist on January 9, 2001 was because he had already been complaining of pain; and 3) Magee wrote pain medication prescriptions for plaintiff on at least two occasions prior to January 9, 2001, namely, December 6, 2000 and December 20, 2000. Similarly, even if plaintiff had exhausted is administrative remedies as to the conspiracy claim, it too would be dismissed on the merits, since he has not demonstrated the necessary elements of such a claim. See, Amaker v. Coombe, No. 96 CIV. 1622 (JGK), 2002 W L 523388 at *15 (S.D.N.Y. Mar. 29, 2002).
The Court also finds that Edwards is entitled to summary judgment on the claim that he improperly denied plaintiff a CT scan and MRI, because plaintiff has not shown that a constitutional violation occurred, or if it did, that Edwards was personally involved in the violation. Plaintiff's claim is premised on the notion that he was somehow entitled to have a CT scan or MRI performed, simply because he thought it necessary. However, he has provided no proof whatsoever that such tests were medically necessary. See, Ramos v. Artuz, No. 00 Civ. 0149 (LTS)(H), 2003 WL 342347 at *8 (S.D.N.Y. Feb. 14, 2003) ("Medical decisions will constitute "indifference" only when they are contrary to accepted medical standards.") (Citations omitted). On the other hand, both the specialist and Laskowski determined that further testing was not medically indicated. Nor, apart from conclusory assertions, has plaintiff shown that he suffered any harm as a result of not having those tests. Accordingly, plaintiff's claim amounts to a mere disagreement over the proper course of treatment, which does not rise to the level of a constitutional violation. Even assuming that plaintiff was denied appropriate treatment, he has not shown that Edwards acted with deliberate indifference. That is, there is no evidence that Edwards knew of, yet disregarded, an excessive risk to plaintiff's health. Looked at in the light most favorable to plaintiff, the record indicates that at the time of the events complained of, plaintiff had recently developed pain in his right ear, in the same vicinity where he had suffered trauma fourteen years earlier. An x-ray series showed no abnormalities, and an otolaryngologic specialist and plaintiff's physician both determined that no additional testing was necessary. On these facts, there is no basis to find that Edwards was aware of or disregarded an excessive risk to plaintiff.
CONCLUSION
For all of the foregoing reasons, defendants' Motion for Summary Judgment [#22] is granted, plaintiff's Cross-motion for Summary Judgment [#30] is denied, and this action is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Decision and Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
So Ordered.