Summary
noting that courts do not consider an H-Pylori infection to be a serious medical need
Summary of this case from Girard v. CollaoOpinion
04 Civ. 2804 (PAC).
July 5, 2006
MEMORANDUM DECISION AND ORDER
Pro se plaintiff Lawrence Robinson ("Robinson" or "Plaintiff"), currently incarcerated at the Otisville Correctional Facility ("OCF" or "Otisville"), brings this civil rights action pursuant to 42 U.S.C. § 1983 for compensatory and punitive damages and declaratory and equitable relief in connection with claims of deliberate indifference by defendants. Robinson alleges that OCF officials knew and failed to address a problem with contaminated water, from which he contracted the Heliobacter Pylori ("H. pylori") bacterium. Robinson further alleges that, subsequent to his infection, defendants failed to provide him with proper medical treatment. Defendant state prison officials and personnel now move for summary judgment. For the reasons set forth below, the Court grants defendants' motion.
Title 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
Defendants include former Otisville Superintendent Ernest Edwards, current Otisville Superintendent Robert J. Ebert, New York State Department of Correctional Services ("DOCS") Commissioner Glenn Goord, Director of DOCS' Inmate Grievance Program Thomas Eagen, OCF Facility Health Services Director Robert Sarreck, M.D., and Nurse Administrator Hilda Miller (collectively "Defendants").
BACKGROUND
I. The Complaint
Robinson alleges that Defendants Edwards, Ebert, and Goord acted with deliberate indifference in permitting and failing to cure the provision of contaminated water at Otisville (Compl. at 5-7). In particular, Robinson claims that OCS's water supply was contaminated by the bacterium H. pylori in 1997 and 1998, (id. at 5,) and that prison officials responded by having clean water shipped into the facility (id.). Infected prisoners suffered from and were treated for various gastrointestinal symptoms (id.). As a result of this problem, prisoners requested continuous testing of the water, which Robinson alleges prison officials refused to do (id. at 6).
Robinson's Complaint is not organized in paragraph form; accordingly, the Court cites to page numbers.
Robinson claims that H. pylori-contaminated water has been a continuing problem, even though numbers of infected prisoners declined (id. at 6-7). In 2000 and 2001, Robinson asserts that H. pylori contamination of facility water recurred and that prison officials failed to "investigate the situation" (id. at 7). With regard to Defendants Dr. Sarreck and Nurse Administrator Miller, Robinson contends that these medical prison personnel failed to notify their supervisors about the "outbreak" of H. Pylori contamination in 1997, 1998, 1999, 2000, and 2001 (id. at 8). Robinson appears to further maintain that a clear case of an "outbreak" of H. pylori contamination occurred in 2000 and 2001 (id. at 7-8).
Robinson alleges that Defendants failed to provide him with proper medical treatment and misinformed him about his symptoms (id. at 9). Robinson also maintains that H. pylori infection has resulted in his suffering from "constant pain, cramps in the stomach area, periodic vomiting, dark spots of blood inside of stool, and a form of halitosis" (id. at 9). Robinson further contends that the infection has caused "stress" for him and his family (id. at 10). In particular, Robinson alleges that, in April, 2001, he did not receive any treatment for continuing symptoms of the infection and that Defendants provided an incomplete course of treatment (id. at 9).
II. Statement of the Facts
Unless otherwise noted, the following facts are undisputed.
The facts are taken from the Defendants' Statement pursuant to Local Rule 56.1 (Docket No. 20); Affidavits and Exhibits attached to the May 31, 2005 Declaration of Neil Shevlin in Support of the Motion for Summary Judgment, and Plaintiff's Opposition to Defendants' Motion for Summary Judgment. The Court notes that Plaintiff failed to submit any affidavits in opposition to Defendants' summary judgment motion. The Rules of Civil Procedure provide that affidavits submitted in opposition to summary judgment "shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Furthermore, "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, 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." Id.
A. The Parties
Plaintiff is a state prisoner and has been incarcerated at OCF from August 9, 1999 to the present (Defendants' Statement Pursuant to Local Rule 56.1 ("Local Rule 56.1 Statement") ¶ 1; May 31, 2005 Declaration of Neil Shevlin in Support of Motion for Summary Judgment ("Shevlin Decl.") Ex. F). Defendants include the following prison officials: Ernest Edwards, OCF Superintendent from 1995 to August 21, 2002 (Local Rule 56.1 Statement ¶ 2); Robert J. Ebert, OCF Superintendent from May 2003 to the present (id. ¶ 3); Glenn S. Goord, Commissioner of the New York State Department of Correctional Services ("DOCS") (id. ¶ 4); Thomas G. Eagen, Director of DOCS' Inmate Grievance Program Central Office Review Committee ("CORC") (Defs.' Local Rule 56.1 Statement ¶ 5); Robert Sarreck, M.D., OCF Facility Health Services Director (id. ¶ 6); and Hilda Miller, OCF Nurse Administrator (id. ¶ 7).
B. Procedural History of this Action
Robinson's Complaint was filed on April 13, 2004 (Docket Nos. 1 2). At that time, Robinson also submitted an application to the Court for appointment of counsel (Docket No. 3), which the Court denied on February 10, 2005 (Docket No. 14). Following the grant of a request for an extension of time, Defendants filed an Answer on September 8, 2004 (Docket No. 11). A proceeding was held on October 29, 2004 before Judge Denny Chin of this District, to whom this action was previously assigned. The parties engaged in discovery and Defendants moved for summary judgment on June 1, 2005. The action was reassigned to this Court on August 8, 2005 and the motion was fully submitted on August 12, 2005 (Docket No. 25).
Robinson was a plaintiff in a separate action filed in this District asserting virtually identical claims. In that action, the District Court granted defendants' motion for summary judgment. See Cherry v. Edwards, No. 01 Civ. 7886, 2005 WL 107095 (S.D.N.Y. Jan. 18, 2005). The case was dismissed as against Robinson without prejudice for failure to exhaust administrative remedies. Cherry v. Edwards, 01 Civ. 7886, slip. op. at 5 (S.D.N.Y. Nov. 18, 2002) (memorandum order).
C. The H. Pylori Bacterium
H. pylori is a common bacterium and approximately fifty percent of the world's population has been estimated to be infected (Frank Decl. ¶ 10). This pathogen weakens the protective coating of the stomach and the duodenum, allowing acid to get through the sensitive lining underneath (Sarreck Aff. ¶ 8). H. pylori infection causes abdominal discomfort (id.). The standard medical protocol to treat the infection involves taking antibiotics and bismuth over a seven to fourteen day period (id.).
Humans are the principal reservoir of this bacterium and the prevalence of H. pylori infection varies widely by geographic area, age, race, ethnicity and socio-economic status (Frank Decl. ¶ 10; Pl.'s Opp'n Mot. Summ. J. ¶ 41). In the United States, approximately twenty percent of persons under forty years of age and half of persons over sixty years of age are infected with this pathogen (Sarreck Aff. ¶ 8). Overall, factors such as inadequate sanitation practices, low socio-economic status, crowded or high density living conditions appear to be related to higher prevalence of H. pylori infection (Frank Decl. ¶ 11). Poor hygiene and crowded conditions facilitate infection and may explain, in part, institutional clustering of the H. pylori infection (id.).
Water borne transmission, probably due to inadequate sanitation, may also be another source of infection, especially in parts of the world where untreated water is common (id. ¶ 12; Pl.'s Opp'n Summ. J. ¶ 41). Recent studies in the United States link clinical H. pylori infection with consumption of contaminated well water and the most recent research suggests that the common housefly contributes to H. pylori transmission (Frank Decl. ¶ 12; Pl.'s Opp'n Summ. J. ¶ 41). On the whole, however, the state of knowledge regarding the epidemiology and transmission of this bacterium is rather limited (Frank Decl. ¶ 12; Pl.'s Opp'n Summ. J. ¶ 41). Once infected, the pathogenesis and epidemiologic source of this common infection is rarely known (Frank Decl. ¶ 13).
C. Complaints About OCF Water Quality and H. Pylori Contamination
Until June 1998, OCF received water from a reservoir (Heyward Aff. ¶ 4; Edwards Aff. ¶ 5). This water was processed at a treatment plant located on the grounds of the facility (Heyward Aff. ¶ 4; Edwards Aff. ¶ 5). After June 1998, OCF obtained water from wells (Heyward Aff. ¶ 4; Edwards Aff. ¶ 5). Well water is pumped to the Village of Otisville for processing and then pumped to a booster station and to the facility (Heyward Aff. ¶ 4)). OCF tests the water for chlorine and PH levels daily and for bacteria monthly (id.). The facility also tests the water periodically for radioactivity, lead and copper (id.). The water samples that the facility collects for testing have already traveled through the prison pipes (id.).
In 1997 and 1998, OCF officials received complaints about the water and, more particularly, that it contained visible organisms (Edwards Aff. ¶ 3). In January, 1998, the superintendent at the time, Edwards, ordered that the water be tested and that water be shipped into the facility until the water was deemed safe to drink (id. ¶; R. Miller Aff. ¶ 5). Testing by the New York State Department of Health determined that the water contained insect larvae but that the water was safe for human consumption; Superintendent Edwards ordered the shipment of water into the facility to cease (Edwards Aff. ¶ 4 Ex. B (New York State Department of Health reports showing that organisms detected in water samples collected on January 15, 1998 contained insect larvae of the Order Diptera (flies and midges) and organisms detected in water samples collected on February 9, 1998 contained insect larvae of the Order Haplotaxida (annelid worm) and the Order Diptera); R. Miller Aff. ¶ 5). Water trucks remained at the facility for several weeks while the State conducted testing (Edwards Aff. Heyward Aff. ¶ 5). On January 29, 1998, Edwards issued a facility-wide memorandum informing inmates and staff that the water had been tested and deemed safe for drinking (Edwards Aff. ¶ 4 Ex. B).
The record before the Court indicates that inmates periodically raised concerns regarding the quality of the water and H. pylori contamination to prison officials through the OCF Inmate Liaison Committee ("ILC") (Edwards Aff. ¶ 6; Shevlin Decl. Ex. C, at 41 (minutes from October. 13, 2000 meeting, which included discussion of concerns regarding problems with the quality of facility water); id. Ex. A, at 59 (minutes from March 27, 2001 ILC meeting, which included an agenda item for H. pylori). After one such complaint, prison officials responded with a memorandum dated April 13, 2001 acknowledging inmate concerns, providing information about the H. pylori bacterium, and indicating that no evidence existed that the bacterium was being transmitted through the facility water (id. Ex. C). From 2002 to April 2004, the Inmate Liaison Committee did not have any further discussion regarding problems with the water (Defs.' Local Rule 56.1 Statement ¶ 51; R. Miller Aff. ¶ 9).
Beginning in 2000, OCF medical personnel began to keep statistics on the number of inmates with confirmed cases of H. pylori infection (H. Miller Aff. ¶ 7). From May 2000 to December 2000, five prisoners tested positive for H. pylori infection; in 2001 and again in 2002, 12 prisoners tested positive; in 2003, 5 prisoners tested positive; and in 2004, 2 prisoners tested positive (id.). All of these prisoners received treatment for the H. pylori infection, which involved a 10-day protocol of large doses of antacids and antibiotics and admittance to the prison infirmary (id.; id. ¶ 5). Otisville houses approximately 500 prisoners during a year (id. ¶ 8).
Prison officials contend that the water has been safe for human consumption during the relevant period (see, e.g., Ebert Aff. ¶ 4 (current superintendent maintaining that no problems have occurred with the water since he assumed the position in May 2003); Edwards Aff. ¶ 7 (former superintendent stating that water was safe to drink from 1995 to October 31, 2002); R. Miller Aff. ¶ 9 (water deemed safe to drink from 1999 until April 29, 2004); Heyward Aff. ¶ 5 (senior filter plant operator at OCF contending that from 1995 to the present, the water has been safe to drink)). The water at the Otisville facility is the same water that is and was used by the Village of Otisville (Miller Aff. ¶ 6).
In his Complaint, Robinson maintains that problems with water quality have persisted (Compl. at 5, 6, 7,8); but see (Shevlin Decl. Ex. J (Robinson Dep. at 58:1-2 (Mar. 15, 2005) (Plaintiff stating that OCF water quality has improved)). Robinson, however, does not present any documentary or testimonial evidence to support the bare assertion set out in his pleadings. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (a party may not rest on the "mere allegations or denials" asserted in his pleadings);Odom v. Keane, 95 Civ. 9941, 1997 U.S. Dist. LEXIS 14077, at *8 (S.D.N.Y. Sept. 15, 1997) (stating that "a pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment") (citing Carey v. Crescenzi, 923 F.3d 18, 21 (2d Cir. 1995)).
D. Robinson's Medical History and Grievance Complaints
In 1999, two years after the initial concerns regarding H. pylori infection surfaced, Robinson arrived at Otisville with a six-year history of stomach problems and gastrointestinal ailments, (Sarreck Aff. ¶ 4; Frank Decl. ¶ 4 (noting that Robinson's stomach problems dated back to 1993); Shevlin Decl. Ex. J (Robinson Dep. at 46:9-10 (Mar. 15, 2005) (Robinson admitting that he had stomach problems at other facilities but maintaining, however, that they were not as severe at that time as they are now)). An Upper G.I. Series performed on January 12, 1993 revealed that Robinson had gastritis (Sarreck Aff. ¶ 4). Gastritis is an inflammation, irritation or erosion of the lining of the stomach and it can cause abdominal pain, indigestion, a burning sensation in the stomach and black stool (id.). Robinson was prescribed Zantac and Maalox to treat this condition (id.). Robinson complained of stomach problems on numerous occasions (i.e., once on January 13, 2000, five times in April 2000, and four times in June 2000) (id. ¶¶ 5-6). During the April to June, 2000 time period, Robinson was provided with Maalox and instructed to increase his intake of fluid and fiber and to switch to a low-fat diet (id. ¶ 6).
On July 1, 2000, Robinson tested positive for H. Pylori (Sarreck Aff. ¶ 7; Frank Decl. ¶ 5; Shevlin Decl. Ex. G at 75) and received treatment at the prison infirmary from July 7, 2000 until July 17, 2000 (Sarreck Aff. ¶ 8; Shevlin Decl. Ex. G at 277-80 (prison infirmary admission notes)).
Robinson complained of abdominal ailments again in September 7, 2000 (id. ¶ 9) and of rectal bleeding on December 11, 2000 (id. ¶ 10). Robinson periodically complained of various gastrointestinal problems on subsequent occasions (i.e., once in July, 2001, once in November, 2001, once in April, 2002, twice in May, 2003, once in June, 2003, and twice in July, 2003) (id. ¶¶ 11-16).
While incarcerated, Robinson sought medical attention on many occasions — 24 times in 1997, 21 times in 1998, 32 times in 1999, 42 times in 2000, 16 times in 2001, 12 times in 2002, 34 times in 2003, and 23 times in 2004 (Frank Decl. ¶ 9). Robinson sought medical attention over 200 times over an 8 year period — or, on average, approximately once every two weeks (id.).
In addition to the multiple occasions on which Robinson sought medical attention at OCF, Robinson also received extensive diagnostic screening and procedures. For example, in July 2003, an ultrasound was performed on Robinson, which ruled out pancreatic and biliary disease (Frank Decl. ¶ 6; Shevlin Decl. Ex. G at 21, 41, 370 (indicating "essentially normal abdominal sonography")). On August 19, 2003, a gastroenterologist examined Robinson and recommended that he undergo a colonoscopy and an esophago-gastro duodenoscopy ("EGD") (which involves scoping a patient from the throat and esophagus to the intestines) (Sarreck Aff. ¶ 17). On September 17, 2003, Robinson had an Upper GI Series performed and the tests came back normal (Sarreck Aff. ¶ 20; Frank Decl. ¶ 7; Shevlin Decl. Ex. G at 20 (report indicating "normal upper GI series"))). On September 25, 2003, Robinson had a colonoscopy and an EGD performed (Sarreck Aff. ¶ 21; Frank Decl. ¶ 7; Shevlin Decl. Ex. G at 55). The colonoscopy revealed internal hemorrhoids as well as a benign polyp (Sarreck Aff. ¶ 21; Frank Decl. ¶ 7; Shevlin Decl. Ex. G at 55-56). Followup tests from the colonoscopy confirmed that Robinson tested negative for H. pylori (Sarreck Aff. ¶ 21; Frank Decl. ¶ 7; Shevlin Decl. Ex. G at 22). The EGD revealed that Robinson has esophagitis and mild gastritis (Sarreck Aff. ¶ 21; Frank Decl. ¶ 7; Shevlin Decl. Ex. G at 58). Esophagitis is an inflammation of the lining of the esophagus, which can cause heartburn (Sarreck Aff. ¶ 21). Robinson was prescribed Prevacid and a followup visit to the gastroenterology clinic in three months was recommended (Sarreck Aff. ¶ 21).
Robinson maintains that he was never fully cured or treated for the H. pylori infection, but does not provide any support for his contention other than his bare assertion (Shevlin Decl. Ex. J. (Robinson Dep. at 38:4)).
On August 26, 2004, a second colonoscopy was performed on Robinson (Sarreck Aff. ¶ 25). This procedure revealed "significant hemorrhoids with some blood," (Shevlin Decl. Ex. G at 49), as well as mild diverticulosis (id.; Sarreck Aff. ¶ 25,). Diverticulosis comes about when small pouches in the colon fill with food and become infected; the condition is treated through diet (Sarreck Aff. ¶ 25).
Robinson claims that he still suffers from gastritis (Shevlin Decl. Ex. G at 47:23) and rectal bleeding (id. at 49:13-15), although he does not believe the source to be hemorrhoids (id. at 47:19-21). Robinson maintains that he contracted the H. pylori bacterium from the facility water "because [he] caught it" (id. at 57:7). Robinson complains that he has never been fully treated or cured, (id. at 79:11-16, 18-20) and takes issue with the fact that the facility provides allegedly less effective generic medication rather then brand names (id. at 79:16-18, 81:8-12).
E. Defendants Ebert, Goord, and Eagen
Several of the named Defendants (i.e., Ebert, Goord, Eagen) in this action had no personal dealings with Robinson whatsoever and never received any correspondence from Robinson regarding his complaints (Ebert Aff. ¶ 3; Goord Aff. ¶¶ 6-7; Eagen Aff. ¶ 3; Pl.'s Opp'n Mot. Summ. J. ¶ 9 (not disputing that Plaintiff never had personal dealings with Ebert), ¶¶ 11-12 (same as to Goord), ¶¶ 22-26 (same as to Eagen); see also Shevlin Decl. Ex. J (Robinson Dep. at 70:14-17 (Plaintiff admitting he never wrote to Edwards or had any personal interactions with him), 71:23 (Plaintiff admitting he never wrote to Goord)).
Robinson essentially argues that Defendants Ebert, Goord, and Eagen should have been aware of the problem of and complaints related to water quality by virtue of their positions, but does not affirmatively state that he had any personal dealings with these defendants by personal correspondence or other means (Pl.'s Opp'n Mot. Summ. J. ¶¶ 9-26).
G. Robinson's Exhaustion of Administrative Remedies
Robinson filed grievance complaints on January 2, 2003 seeking a cash award and water filtration (Shevlin Decl. Ex. H) and on May 6, 2003 seeking better medical care and water filtration (id. Ex. I). The Inmate Grievance Program denied these requests and the Central Office Review Committee unanimously upheld those denials on February 27, 2002 and May 11, 2003, respectively (id. Exs.H I).
DISCUSSION
A. Standard of Review
I. Applicable Legal Standards
A motion for summary judgment shall be granted "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, "summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Id.
Thus, summary judgment should only be granted if "the nonmoving party `has failed to make a sufficient showing on an essential element of [his] case with respect to which [he] has the burden of proof.'" Berger v. United States, 87 F.3d 60, 65 (2d Cir. 1996) (citation omitted). The Court "resolve[s] all ambiguities, and credit[s] all rational factual inferences, in favor of the plaintiff." Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004) (citation omitted). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994) (citation omitted). The Court should, thus, grant summary judgment only "[w]hen no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994) (citation omitted).
"When considering motions to dismiss the claims of plaintiffs proceeding pro se, courts in this Circuit are instructed to construe the pleadings liberally," and "[t]his is especially true when dealing with civil rights complaints" like the one at bar.Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001) (citations omitted). Thus, "[a]lthough the same summary judgment rules are applicable when a party is proceeding pro se, `special latitude' is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are worded inartfully." Cherry v. Edwards, 01 Civ. 7886, 2005 WL 107095, at *7 (S.D.N.Y. Jan. 18, 2005) (citations omitted). Nevertheless, "a pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Odom v. Keane, 95 Civ. 9941, 1997 U.S. Dist. LEXIS 14077, at *8 (Sept. 15, 1997) (citing Carey v. Crescenzi, 923 F.3d 18, 21 (2d Cir. 1995)). Thus, a nonmoving party "may not rely on conclusory allegations or unsubstantiated speculation," Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 428 (2d Cir.), cert. denied, 534 U.S. 891 (2001) (internal quotation marks and citation omitted), or create a genuine issue of material fact by presenting contradictory or unsupported statements. Securities Exchange Comm'n v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978) ("The party opposing the motion must set forth `concrete particulars' . . . [;] [i]t is not sufficient merely to assert a conclusion without supplying supporting arguments or facts in opposition to the motion." (citations omitted)).
B. Deliberate Indifference
In Estelle v. Gamble, the Supreme Court announced that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain,' proscribed by the Eight Amendment." 429 U.S. 97, 104 (1976) (citing Gregg v. Georgia, 428 U.S. 153, 173 (1976)). TheEstelle Court noted that:
Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend `evolving standards of decency' in violation of the Eight Amendment.Id. at 106. Moreover, "`[d]eliberate indifference' describes a mental state more blameworthy than negligence; but a plaintiff is not required to show that the defendant acted for the `very purpose of causing harm or with knowledge that harm will result."Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003), cert. denied, 543 U.S. 1093 (2005) (citation omitted).
The deliberate indifference standard contains both an objective and a subjective test. Farmer v. Brennan, 511 U.S. 825, 829-37 (1994).
First, the alleged deprivation must be, in objective terms, "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298 (1991). See Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting) (standard contemplates "a condition of urgency, one that may produce death, degeneration, or extreme pain") (citations omitted). Second, the charged official must act with a sufficiently culpable state of mind. See Wilson, 501 U.S. at 298. . . . More specifically, 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; 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." Id. at 1979.Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). In addition, where a prisoner sues a defendant in his or her individual capacity, liability depends on a showing that the defendant acted with deliberate indifference and "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983."Hernandez v. Keane, 341 F.3d at 144 (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)) (internal quotation marks omitted).
The Court notes that Defendants sought to dismiss the action on procedural grounds for failure to exhaust administrative remedies. More specifically, Defendants maintain that Robinson failed to exhaust his administrative remedies as to any of the defendants because he did not mention them by name in either of the two grievances he filed (Defs.' Mem. Supp. Mot. Summ. J. at 3). The Second Circuit has held that exhaustion of administrative remedies of an inmate's § 1983 claim is not jurisdictional, although of course "a prisoner must [nevertheless] exhaust his . . . administrative remedies prior to filing a claim under § 1983." Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003). Under the unique circumstances of this case — where a previous lawsuit was filed by Plaintiff against identical defendants (which was dismissed without prejudice for failure to exhaust administrative remedies), where multiple grievance complaints had been filed against the same defendants, and where Richardson has otherwise complied with the administrative remedies process — DOCS prison officials (although unnamed) were on sufficient notice to satisfy the exhaustion requirement. Unlike the prison officials in Brewer v. Anderson, on which Defendants rely, the Defendants here had the opportunity to consider and attempt to resolve the issues raised prior to the commencement of the litigation. 02 Civ. 3570, 2004 U.S. Dist. LEXIS 1680, at *10 (S.D.N.Y. Feb. 4, 2004).
A. Defendants Ebert, Goord, and Eagen
Prisoners who sue prison officials in their individual capacity and assert "deliberate indifference claims" must show personal involvement of defendants in alleged constitutional deprivations.Id.; see also Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001) ("It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." (citation and internal quotation marks omitted)). To recover damages from a supervisor for § 1983 claims, a plaintiff must show that the supervisor (1) participated directly in the alleged constitutional violation, (2) learned of it through a report or appeal but failed to remedy the wrong; (3) created or maintained a policy or custom which gave rise to the violations; or (4) was grossly negligent in the supervision of subordinates who cased the violations to occur.Newburgh Enlarged Sch. Dist., 239 F.3d at 254.
Defendants Ebert, Goord, and Eagen contend — and Robinson does not dispute — that none of them had any direct dealings or personal involvement with Robinson whatsoever. Robinson does not allege that any of these Defendants learned of any § 1983 violations through a report or appeal or that any such violations resulted from a policy or practice instituted by the Defendants (Ebert Aff. ¶ 3; Goord Aff. ¶¶ 6-7; Eagen Aff. ¶ 3; Pl.'s Opp'n Mot. Summ. J. ¶¶ 9, 11-12, 22-26; Shevlin Decl. Ex. J (Robinson Dep. at 70:14-17, 71:23)). Moreover, in this case, no basis exists to maintain that any of these Defendants were grossly negligent in their supervision of subordinates. For example, Defendants maintain policies and procedures for ensuring that correctional facilities contain water suitable for human consumption and, when concerns arose regarding OCF water quality and safety in 1998, Defendant prison officials took immediate steps to provide potable water and have the facility water tested. Accordingly, Defendants' motion for summary judgment dismissing the action is granted as against Defendants Ebert, Goord, and Eagen on this ground.
B. Water Quality
As noted previously, Robinson contends that Defendants were deliberately indifferent to the health risks posed by allegedly H. pylori-infected facility water. More specifically, Robinson alleges that Defendants failed to address this problem by neither conducting more frequent testing nor by installing water filtration (Shevlin Decl. Ex. I; see also Compl. at 6). Moreover, Robinson makes the bald allegation that OCF experienced an "outbreak" of H. pylori infection in 2000 (Compl. at 8; see also Shevlin Decl. Ex. J. (Robinson Dep. at 66:23-67:9 (alleging that during the time period of 1997 to 2000 between 20 to 25 inmates became infected with H. pylori)).
Preliminarily, the Court notes that Robinson was transferred to OCF in August, 1999, following the events of late 1998 and early 1999 that gave rise to and followed initial concerns regarding water quality and safety at the facility. Contrary to Robinson's assertion, the fact that from 2001 to 2004, out of an average of 500 inmates incarcerated at OCF on an annual basis, between two and twelve prisoners tested positive for the bacterium does not indicate that a health problem — let alone an outbreak — existed at OCF, or that the bacterium was transmitted through OCF water.See Cherry v. Edwards, 01 Civ. 7886, 2005 WL 107095, at *8 (Jan. 18, 2005) (arriving at a similar conclusion regarding 8 reported cases in a year). "[B]ecause it appears undisputed that H. pylori is `the most common infection worldwide' [and] that more than half of the people in the United States are infected by the time they reach their 40s," Robinson's bare assertions of a facility outbreak is "plainly insufficient to show that there was a greater than normal incidence of infection at OCF" or to show that OCF's water system contributed in any way to transmitting the pathogen. Id. In fact, Robinson does not submit any evidence (and, in fact, cannot submit because none exists) to rebut Defendants' contention that multiple sources of transmission exist for the H. pylori bacterium and that — given the state of scientific knowledge to date — the source of transmission for any given infection is practically unknowable.
Further, Robinson cannot show — and certainly has not presented any evidence — that any of the Defendants were deliberately indifferent to concerns related to the OCF water system. Defendants have submitted affidavits indicating that OCF has procedures in place to monitor the quality of the OCF water through daily, monthly, and periodic testing of various substances to ensure its safety and Robinson has not presented any evidence to rebut this evidence.Id.
In addition, other than bare assertions, Robinson has not submitted any evidence that Defendants Sarreck or Miller knew about H. pylori contamination of water prior to or following Superintendent Edward's involvement and then failed to properly inform supervisors.
Thus, the Court concludes that Defendants were not deliberately indifferent to the possibility of the transmission of H. pylori through facility water. For this additional reason, Defendants Ebert, Goord, and Eagen are entitled to summary judgment as are Defendants Edwards, Sarreck and Miller.
C. Medical Treatment
Robinson's second claim is that Dr. Sarreck and Nurse Administrator Miller failed to provide proper medical treatment following his testing positive for H. pylori.
Where a claim for deliberate indifference has been asserted on the basis of H. pylori infection, courts have rejected that such allegations constituted an Eight Amendment or § 1983 violation.See, e.g., Henderson v. Huibregtse, 05 Civ. 157, 2005 U.S. Dist. LEXIS 7761, at *9 (W.D. Wis. Apr. 25, 2005) (rejecting "deliberate indifference claim" based on alleged contraction of H. pylori infection from unsanitary toilet water); Cherry v. Edwards, 2005 WL 107095, at **9-10 (concluding that Plaintiffs failed to make the requisite showing); Ross v. McGinnis, 00 Civ. 275, 2004 U.S. Dist. LEXIS 9367, at *26 (W.D.N.Y. Mar. 29, 2004) (concluding that a two-month delay in providing treatment for H. pylori infection did not constitute a constitutional violation).
As noted previously, "[t]he deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 37 F.3d at 66. "Assuming that an H. pylori infection rises to the level of a sufficiently serious medical condition,"Cherry v. Edwards, 2005 WL 107095, at *9, (i.e., the objective prong); but see Ross v. McGinnis, 2004 U.S. Dist. LEXIS 9367, at *26 (finding that plaintiff's gastrointestinal complaints did not constitute a serious medical need), Robinson needed to show that Sarreck and Miller "act[ed] with a sufficiently culpable state of mind" (i.e., the subjective prong). Hathaway v. Coughlin, 37 F.3d at 66. Robinson, however, fails to show that Defendants knew of and disregarded an excessive risk to inmate health and that Defendants were aware of facts from which the inference could be drawn that a substantial risk of serous harm existed and also drew that inference. Id.
Robinson does not dispute that he received treatment for his H. pylori infection. The record demonstrates that Robinson received extensive diagnostic and follow up care related to each of his continuing and various gastrointestinal complaints throughout the relevant period (Shevlin Decl Ex. J. (Robinson Dep. at 31:12-33:25, 37:24-38:12, 40:13-24). Moreover, three years' following the diagnosis and treatment for H. pylori infection, Robinson tested negative for the bacterium. Further, Robinson's complaints (e.g., stomach cramps, bloody stool, etc.) are easily explained by his confirmed diagnoses for mild gastritis and internal hemorrhoids. In such circumstances, no reasonable juror could find, on the basis of Robinson's conclusory and unsubstantiated assertions, that the medical personnel at OCF "acted with a sufficiently culpable state of mind," id., and showed deliberate indifference to a serious medical condition.See Cherry v. Edwards, 2005 WL 107095, at *9.
Furthermore, with regard to Robinson's complaint that he receives generic rather than brand name medicines (Compl. at 9; Shevlin Decl. Ex. J. (Robinson Dep. at 81:8-12, 82-7-9), Robinson is not entitled to the medication or level of medical attention he demands. See, e.g., Chance v. Armstrong, 143 F.3d 698, 793 (2d Cir. 1998) ("So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." (citation omitted)); Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986) ("The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves . . .; [t]he essential test is one of medical necessity and not one simply of desirability." (citation and internal quotation marks omitted)); Sonds v. St. Barnabus Hosp. Corr. Health Servs., 151 F. Supp. 2d 312 (S.D.N.Y. 2001)
Defendants are thus entitled to summary judgment with respect to Robinson's deliberate indifference claim on the basis of improper medical treatment.
CONCLUSION
Defendants' motion for summary judgment is GRANTED and the Clerk of the Court is requested to close this case.
Because the Court finds, as a substantive matter, that Defendants are entitled to summary judgment on Robinson's deliberate indifference claims, the Court does not address Defendants' alternate grounds for dismissal.