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finding that a one week delay in visit to orthopedist for treatment of a hand fracture was not sufficiently serious where Plaintiff received splint, ace bandage and ibuprofen
Summary of this case from Jimenez v. SommerOpinion
01-CV-0266E(Sr)
February 13, 2003.
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Ruiz — an inmate at the Orleans Correctional Facility ("Orleans") — filed a Complaint on April 11, 2001 asserting claims under 42 U.S.C. § 1983 for defendants' alleged deliberate indifference to his medical needs in violation of the Eighth Amendment to the United States Constitution. Ruiz filed an Amended Complaint October 2, 2001. On May 13, 2002 defendants filed a motion seeking summary judgment of dismissal. Ruiz filed opposing papers June 25, 2002. For the reasons set forth below, defendants' motion for summary judgment will be granted.
Ruiz alleges the following. Ruiz fractured his right hand November 24, 2000 and he received medical attention at the Medina Memorial Hospital ("Medina") later that day. Medina staff applied a splint and ace bandage to Ruiz's hand, prescribed Ibuprofen and directed Ruiz to see a specialist. Ruiz was scheduled to consult a specialist at Erie County Medical Center ("ECMC") on December 7, 2000. This appointment was cancelled by security personnel because no vehicle was available that day to transport Ruiz to ECMC. Consequently, Ruiz's appointment at ECMC was rescheduled for December 14, 2000. Ruiz claims that the one-week delay caused his hand to partially heal — thus prohibiting the ECMC specialist from being able to properly set Ruiz's hand. Ruiz further claims that such delay — which he attributes as having been caused by defendants Homrighouse and Preiss — resulted in pain and permanent disfigurement. ECMC staff applied a splint and ace bandage to Ruiz's hand.
During the relevant period, Carol A. Preiss was the Deputy Superintendent for Administration at Orleans and Charles Homrighouse was Deputy Superintendent of Security at Orleans.
Ruiz returned to "the hospital" January 4, 2001 with complaints of persistent pain. He claims, however, to have been denied pain medication other than Ibuprofen. Ruiz was directed to undergo physical therapy. Moreover, Dr. Sinha allegedly failed to refer Ruiz for surgery — despite Medina's direction that treatment and follow-up were needed.
It is not clear whether Ruiz is referring to Medina or ECMC. Based on defendants' Statement of Undisputed Facts, however, it appears that Ruiz is referring to ECMC.
Dr. Sinha is the supervisor of the infirmary at Orleans.
On February 1, 2001 ECMC staff removed Ruiz's splint and discharged him from their care. Ruiz alleges that his hand is disabled and deformed and he claims that the physical therapy caused him additional pain and suffering. He claims that his injuries resulted from defendants' deliberate indifference to his medical needs and their failure to provide transportation on December 7, 2000. Accordingly, he claims that the defendants violated their duty to provide adequate medical treatment.
Ruiz's allegations are largely consistent with defendants' Statement of Undisputed Facts ("defendants' Statement"). Although Ruiz filed a responding statement pursuant to Rule 7.1(e) of this Court's Local Rules of Civil Procedure, such merely reasserted plaintiff's contention that his Eighth Amendment rights had been violated. Nonetheless, the relevant facts are straightforward and relatively undisputed.
Defendants' Statement appears erroneous in that it states that Ruiz "was housed in the Orleans Correctional Facility's hospital from December 27, 2000, to December 24, 2000 ***." Moreover, defendants' Statement does not cite to the record — which is unhelpful to this Court.
Rule 56(c) of the Federal Rules of Civil Procedure ("FRCvP") states that summary judgment may be granted only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In other words, after discovery and upon a motion, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is thus appropriate where there is "no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Of course, the moving party bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970)). If the moving party makes such a showing, the non-moving party must then come forward with evidence of specific facts sufficient to support a jury verdict in order to survive the summary judgment motion. Ibid.; FRCvP 56(e).
With respect to the first prong of Anderson, a genuine issue of material fact exists if the evidence in the record "is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, at 248. Stated another way, there is "no genuine issue as to any material fact" where there is a "complete failure of proof concerning an essential element of the nonmoving party's case." Celotex, at 323. Under the second prong of Anderson, the disputed fact must be material, which is to say that it "might affect the outcome of the suit under the governing law ***." Anderson, at 248.
See also Anderson, at 252 ("The mere existence of a scintilla of evidence in support of the [movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [movant].").
Furthermore, "[i]n assessing the record to determine whether there is a genuine issue as to any material fact, the district court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000) (citing Anderson, at 255). Nonetheless, mere conclusions, conjecture, unsubstantiated allegations or surmise on the part of the non-moving party are insufficient to defeat a well-grounded motion for summary judgment. Goenaga, at 18. Furthermore, inasmuch as Ruiz is proceeding pro se this Court will "read his supporting papers liberally, and *** interpret them to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). "Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome" a properly supported motion for summary judgment. Rodriguez v. Ames, 224 F. Supp.2d 555, 558 (W.D.N.Y. 2002) (quoting Rodriguez v. Hahn, 209 F. Supp.2d 344, 348 (S.D.N.Y. 2002)).
See footnote 7.
Inadequate medical care violates the Eighth Amendment's proscription against cruel and unusual punishment where a defendant acts with "deliberate indifference to [a prisoner's] serious medical needs." Harrison v. Barkley, 219 F.3d 132, 136 (2000) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Accordingly, Ruiz's section 1983 claim must involve "`deliberate indifference' to his `serious' medical needs." Wilson v. Seiter, 501 U.S. 294, 297 (1991) (emphasis added). This "deliberate indifference" inquiry has both objective and subjective factors. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). The objective factor examines whether the deprivation was sufficiently serious, whereas the subjective factor examines whether any defendant acted with a sufficiently culpable state of mind. Ibid. In examining the seriousness of the medical need, Ruiz must have "a condition of urgency, one that may produce death, degeneration, or extreme pain." Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002). The subjective factor requires Ruiz to demonstrate that defendants were (1) aware of facts from which the inference could have been drawn that a substantial risk of serious harm existed and (2) that defendants in fact drew such an inference. Ibid. Moreover, "[b]ecause 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." Smith v. Carpenter, 2003 WL 115223, at *4 (2d Cir. 2003) (citing Estelle, at 105-106).
A section 1983 claim requires the plaintiff to demonstrate that he was deprived, by a person or persons acting under state authority, of a right, privilege or immunity protected under the Constitution or a federal statute. See Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999). Deliberate indifference claims are predicated upon the Eighth and Fourteenth Amendments to the United States Constitution. Ibid. The Eighth Amendment — made applicable to defendants by the Fourteenth Amendment — prohibits the infliction of unnecessary and wanton pain on those convicted of crimes. Hudson v. McMillian, 503 U.S. 1, 5 (1992).
Indeed, "allegations of `inadvertent failure to provide adequate medical care,' or of a `negligent *** diagnos[is],' simply fail to establish the requisite culpable state of mind." Wilson, at 297 (citations omitted).
Citing Farmer v. Brennan, 511 U.S. 825, 837 (1994), and Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied sub nom., Foote v. Hathaway, 513 U.S. 1154 (1995).
With respect to Homrighouse and Preiss, Ruiz alleges that they are responsible for the one-week delay of his visit with an orthopedic specialist at ECMC. Ruiz's section 1983 claims against Homrighouse and Preiss will be dismissed for several reasons. First, with respect to the objective prong, Ruiz's fractured metacarpal was not sufficiently serious. See Rivera v. Johnson, 1996 WL 549336, at *2 (W.D.N.Y. 1996). In Rivera, this Court dismissed an inmate's section 1983 claim predicated upon alleged "deliberate indifference" as to medical treatment because a "broken finger, without more, simply does not present a condition of urgency of the type that may produce death, degeneration or extreme pain which correspondingly merits constitutional protection." Ibid. Likewise, in Henderson v. Doe, 1999 WL 378333, at *2-3 (S.D.N.Y. 1999), it was held that a broken finger was not sufficiently serious to warrant constitutional protection. Accordingly, Ruiz's section 1983 claims against Homrighouse and Preiss will be dismissed because he fails as a matter of law to allege a sufficiently serious medical condition.
See also Veloz v. New York, 35 F. Supp.2d 305, 312 (S.D.N.Y. 1999) (finding that broken toe was not sufficiently serious — as would be required for a finding of deliberate indifference under the Eighth Amendment — because such condition was not "urgent, degenerative or produc[ing] extreme pain"); Jermosen v. Coughlin, 1995 WL 780975, at *4 (W.D.N.Y. 1995) (finding inmate's alleged orthopedic condition involving his feet and back — which allegedly caused "severe pain" — not sufficiently serious); Malsh v. Austin, 901 F. Supp. 757, 762 (S.D.N.Y. 1995) (finding that delay of non-emergent dental appointment for three weeks was not a sufficiently serious deprivation).
Second, even if Ruiz's condition had been sufficiently serious, the alleged "indifference" — a one-week delay in Ruiz's consultation with an orthopedist — did not constitute deliberate indifference to his medical needs. Indeed, it is undisputed that Ruiz was afforded immediate medical attention — to wit, he was taken to Medina's emergency room on the day he broke his hand, he was treated with a splint and an ace bandage, Ibuprofen was provided and he was scheduled to see an orthopedic specialist at ECMC. Consequently, Ruiz received necessary and appropriate medical treatment. Indeed, 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." Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Moreover, Ruiz's unsubstantiated claim that the one-week delay caused a degeneration in his condition is inadequate to bar summary judgment. Indeed, Ruiz presents no evidence whatsoever to refute the expert opinion of Dr. Donald J. Nenno, II — an orthopedist who examined Ruiz on January 24, 2002 — that the one-week delay did not affect Ruiz's injuries. Dr. Nenno stated that
See Rodriguez, at 563. Rodriguez is very similar to the present case. Like Rodriguez, Ruiz had injured his hand in an altercation with another inmate. Ibid. Rodriguez had been sent to the emergency room 15 days after he had injured his distal right 4th metacarpal. Ibid. Ruiz, on the other hand, was sent to the emergency room the same day that he injured his mid-distal right 5th metacarpal. Rodriguez claimed that the 15-day delay caused the bone to heal improperly and rendered him disfigured. Ibid. Likewise, Ruiz claims that the 7-day delay caused the bone to heal improperly and rendered him disfigured. In Rodriguez, Judge Larimer held that defendants' 15-day delay was not deliberate indifference because the medical staff had sent Rodriguez to the emergency room as soon as they had an X-ray report showing the fracture to his hand. Ibid. Likewise, the 7-day delay caused by the need to reschedule Ruiz's appointment — regardless of who canceled the December 7 appointment — was not deliberate indifference because the rescheduling was necessitated by a lack of available transportation on that day and Ruiz was provided with adequate interim treatment.
See Henderson, at *2 (finding that inmate with broken finger received constitutionally adequate treatment where he was examined the day he was injured and was provided an X-ray, a splint and pain medication); Rodriguez, at 561-563 (finding that neither a one-week delay in scheduling an appointment to see a specialist nor a 15-day delay in sending inmate to the emergency room for treatment of a broken hand constituted medical indifference); Dempsey v. Ruggiero, 1995 WL 591300, at *2-4 (E.D.N.Y. 1995) (finding that three-month delay in sending inmate to neurologist for inmate's alleged head injuries was not deliberately indifferent where delay was caused by inmate's transfer to another facility and where inmate was provided interim treatment). Likewise, the one-week delay experienced by Ruiz in consulting an orthopedist did not constitute actionable medical indifference. Moreover, Ruiz ignores the prompt treatment that he did receive. Muhammad v. Unger, 2002 WL 450010, at *3 (W.D.N.Y. 2002) (noting that inmate's characterization of "delay" in treatment ignored the fact that he was provided "extensive medical treatment from the onset of his symptoms"); Jermosen, at *4 (finding no indifference — let alone "deliberate indifference" — where an inmate was promptly treated while he waited several months to see an orthopedist). Finally, as discussed below, the undisputed evidence indicates that Ruiz's condition did not warrant an immediate consultation with an orthopedist.
Quoting from Ruiz v. Estelle, 679 F.2d 1115, 1123 (5th Cir. 1982). "`The Constitution does not mandate comfortable prisons,' and, for plaintiff to succeed in this action, he must show that `he [was] incarcerated under conditions posing a substantial risk of serious harm' and that prison officials were deliberately indifferent to his health or safety." LaCroix v. Williams, 2000 WL 1375737, at *3 (W.D.N.Y. 2000) (citing Farmer — see footnote 12 ___, at 834). Moreover, 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." Henderson, at *2 (citing Dean, at 215).
"[t]he delay in follow-up from 2 to 3 weeks for his fractured metacarpal has no impact on his current state of disability. It is my feeling that no treatment or intervention was required at that time or at this time." Decl. of Peter B. Sullivan, Esq., Ex. C.
Accordingly, inasmuch as it was not medically necessary for Ruiz to consult an orthopedist within two weeks of his injury (as opposed to three weeks), the rescheduling of his appointment with an orthopedist was not deliberate indifference to his medicals needs. See Henderson, at *2-3 (finding that failure to refer inmate with a broken finger to a specialist did not constitute deliberate indifference where he was provided prompt and appropriate treatment including a splint and pain relief). Ruiz's section 1983 claims will therefore be dismissed.
Ruiz testified that the staff at ECMC informed him that there would have been no difference even if he had kept his appointment on December 7, 2000. Ruiz Dep., at 33 ("[ECMC] said they couldn't do anything, even if I would have gone two weeks after, it was already too late being it was three weeks already since the incident.") (emphasis added). Subsequent deposition elicited the following exchange:
"Q. You said something a moment ago, somebody told you that even by December 7th it was healed?
"A. Yes, it would have been too late already.
"Q. Too late for what?
"A. Too late for them to do anything.
"Q. Who said that?
"A. Dr. Carter at ECMC.
* * * * *
"Q. He told you — I'm not trying to put words in your mouth. Correct me if I am wrong. Basically, it didn't matter, they couldn't do anything further for you on the fourteenth and wouldn't have been able to do anything else for you on the seventh?
"A. Yeah, exactly, because of the two weeks it was healed." Ruiz Dep., at 34-35.
Accordingly, Ruiz's testimony undermines his contention that the one-week delay caused his injuries. Furthermore, to the extent that Ruiz claims that the fact that he had to wait three weeks to see an orthopedist, such is nonetheless not actionable under section 1983 for the reasons set forth above — namely, that a broken metacarpal bone is not sufficiently serious to warrant constitutional protection.
See Rodriguez, at 561-563 (finding no deliberate indifference where an inmate waited (1) 15 days to go to the emergency room for treatment of a broken hand, (2) one week to see a gastrointestinal specialist and (3) 4 weeks for a colonoscopy). Notably, in Rodriguez, the inmate's appointment for a colonoscopy was rescheduled because there was no available security escort available on the day his appointment was scheduled. Id. at 561.
See Amaker v. Coombe, 2002 WL 523388, at *8 (S.D.N.Y. 2002) (dismissing section 1983 claim for alleged deliberate indifference because plaintiff produced no evidence refuting medical experts' affidavits opining that plaintiff had received adequate care). Moreover, Ruiz essentially claims that defendants failed to get him to an orthopedist sooner. Such, however, "is at most a claim of medical malpractice and not a constitutional violation actionable under section 1983." Dempsey, supra note 15, at *4 (dismissing inmate's section 1983 medical indifference claim predicated upon three-month delay in obtaining consultation with a neurologist).
Third, Ruiz fails to establish the requisite subjective factor as required under Wilson. Ruiz presents no evidence whatsoever that any defendant made the decision to cancel his scheduled departure on December 7, 2000 — thus prohibiting him from consulting a specialist at ECMC until December 14, 2000. Indeed, the evidence in the record indicates that neither Homrighouse nor Preiss was aware of Ruiz's condition on December 7, 2000, let alone personally involved in the decision to cancel his trip to ECMC. Accordingly, Ruiz's section 1983 claims fail because neither Homrighouse nor Preiss was personally involved in canceling the ECMC appointment initially scheduled for December 7, 2000.
See Homrighouse Decl., at ¶¶ 3, 10; Preiss Decl., at ¶¶ 3-5; Sinha Decl., at ¶ 6; Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997) (holding that section 1983 liability requires "personal involvement" by the defendant in the alleged constitutional violation).
See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (holding that "personal involvement of a supervisory defendant may 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 to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring."). Ruiz does not show that any defendant was "personally involved" in the cancellation of his appointment within the meaning of Colon. See Ruiz Dep., at 43-46. Moreover, defendants' supervisory positions are "not enough to generate liability, insofar as `[t]here is no respondeat superior liability in § 1983 cases.'" Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). Indeed, Ruiz "must specifically demonstrate how the personal involvement of these defendants supports his claims of liability." LaCroix, supra note 16, at *4 (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). This he has failed to do.
See Rodriguez, at 560 (dismissing inmate's section 1983/medical indifference claim because he failed to show that the defendant "knew of and disregarded the plaintiff's serious medical needs").
Ruiz's section 1983 claim against Dr. Sinha is based on (1) Dr. Sinha's alleged failure to refer Ruiz for surgery — despite an alleged direction from the medical staff at Medina to do so — and (2) an alleged refusal to provide pain medication. Ruiz's section 1983 claims against Dr. Sinha for alleged deliberate indifference must be dismissed for several reasons. First, as noted above, Ruiz's condition was not sufficiently serious — and thus his deliberate indifference claim fails as a matter of law. Second, Ruiz's contention that he should have been referred for surgery is merely a difference of opinion with respect to a course of treatment, which is not actionable under section 1983. Finally, Dr. Sinha was not deliberately indifferent to Ruiz inasmuch as Dr. Sinha and the Orleans medical staff provided medical treatment to Ruiz including, inter alia, a splint and ace bandage, same-day referral to the emergency room, pain medication, physical therapy and referral to an orthopedist. Such treatment does not constitute deliberate indifference.
To the extent that Ruiz predicates his section 1983 claim against Dr. Sinha for the one-week delay, such will be dismissed for the same reasons that Ruiz's section 1983 claims will be dismissed against Homrighouse and Preiss.
Indeed, allegations that the treatment rendered "was inconsistent with the doctor's orders is insufficient to show a [section 1983] violation" for deliberate indifference. See Muhammad, at *3 (citing Ross v. Kelly, 784 F. Supp. 35, 46 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040 (1992)).
Although Ruiz disputes having been given Ibuprofen, such is irrelevant in light of this Court's finding that Ruiz's medical condition was not sufficiently serious.
See Dr. Sinha Decl., at ¶¶ 10-12 (discussing Ruiz's treatment); Ruiz Dep., at 17-23, 25-28, 37-39 (same).
See Dr. Sinha Decl., at ¶¶ 4-5 (noting that Dr. Sutton was primarily responsible for Ruiz's treatment), ¶¶ 8-9 (stating that Dr. Sinha was not aware of any recommendation of surgery from the Medina medical staff); Cardin v. Erway, 2001 WL 1188167, at *4 (W.D.N.Y. 2001) (dismissing section 1983 claim because the doctor was not deliberately indifferent when he treated inmate until there was no further treatment to be provided).
Having found that Ruiz has failed to establish that (1) his medical condition was objectively sufficiently serious or (2) any defendant was deliberately indifferent to such condition — the lack of either of which is fatal to plaintiff's section 1983 claims ___, this Court finds that there is no genuine issue of material fact whether defendants acted with deliberate indifference towards Ruiz's medical condition. Accordingly, plaintiff's section 1983 claims will be dismissed.
Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted, that all of plaintiff's claims are dismissed and that the Clerk of the Court shall close this case. Moreover, this Court declines to issue a certificate of appealability and certifies that any appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915 because plaintiff has not made a substantial showing of the denial of a constitutional right.