Opinion
02-CV-578A.
March 25, 2005.
DECISION AND ORDER
INTRODUCTION
Plaintiff Peter A. Scott, Sr., currently an inmate at the Greenhaven Correctional Facility, brings this action pro se against the defendants Jose de Perio, M.D., Stephen Laskowski, M.D., and Sara DuBois, PT, pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment by denying him adequate medical care while he was housed at the Attica Correctional Facility ("ACF") during the period April 2002 to July 2002. More specifically, plaintiff claims that he has a back condition that causes him great pain and that the defendants: (1) refused to prescribe him strong enough pain medication; and (2) canceled his physical therapy in retaliation for him filing a grievance against Dr. De Perio.
On February 19, 2003, plaintiff moved to amend his complaint to add as defendants Glenn S. Goord, Commissioner, New York State Department of Correctional Services ("DOCS"), and J. Conway, Acting Superintendent of ACF. On February 25, 2003, United States Magistrate Judge Leslie G. Foschio dismissed plaintiff's motion, without prejudice.
On June 9, 2003, plaintiff again moved to amend the complaint. Although a proposed amended complaint was not submitted with this second motion to amend, it appears that plaintiff is again seeking to add Commissioner Goord and Acting Superintendent Conway as defendants.
On May 12, 2004, defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On September 15, 2004, plaintiff filed a response opposing the motion for summary judgment.
After reviewing the submissions of the parties, the Court grants defendants' motion for summary judgment and denies plaintiff's motion to amend the complaint.
STATEMENT OF FACTS
This Statement of Facts is taken from defendants' "Statement of Undisputed Facts in Support of Defendants' Motion for Summary Judgment." See Item No. 31. Plaintiff was advised in defendants' Notice of Motion, Item No. 30, and in a separate notice mailed to the plaintiff by the Court pursuant to Irby v. New York City Transit Auth., 262 F.3d 412 (2d Cir. 2001), Item No. 36, that in responding to the motion for summary judgment, he was required, pursuant to Rule 56 of the Local Rules of Civil Procedure, to submit a separate, short and concise statement of the material facts as to which he contends there exists a genuine issue which must be tried. He was further advised that a failure to do so would result in the defendants' statement of undisputed facts being deemed admitted. Plaintiff did file a document denominated "Cross Motion Statement of Facts," Item No. 39, but it simply states generally that defendants are liable and does not respond to the specific facts detailed in the defendants' "Statement of Undisputed Facts." Thus, in considering defendants' motion for summary judgment, the Court deems the facts in defendants' "Statement of Undisputed Facts" to be true. See Bonet v. McGinnis, No. 01-CV-6078L, 2004 WL 2075433, at *2 (W.D.N.Y. Sept. 16, 2004).
Defendants Jose de Perio, M.D., and Stephen Laskowski, M.D., are employed by DOCS as a medical doctors at ACF. Defendant Sara DuBois, PT, is a physical therapist employed by the Wyoming County Community Health System at Wyoming County Community Hospital (the "Hospital") in Warsaw, New York. The Hospital entered into an Operating Agreement with DOCS whereby the Hospital would provide medical treatment and diagnosis, including physical therapy, to inmates either at the Hospital's Outpatient Department or at in-facility clinics located within DOCS institutions.
As set forth in the Operating Agreement, DOCS is solely responsible for the transport of inmates to and from their custodial facility and the Hospital or from their custodial facility and the in-facility clinic. The scheduling of physical therapy visits to the Hospital or the in-facility clinic is done by DOCS in Albany, not by the Hospital or its Physical Therapy Department. Therefore, with respect to the treatment of inmates, defendant DuBois, as a physical therapist, is responsible for rendering physical therapy treatment to patient-inmates who are scheduled and transported by DOCS to the Hospital's Physical Therapy Department or to the in-facility clinics.
The Hospital has a Policy and Procedure (the "Policy"), whereby a physical therapist may discontinue a patient-inmate's physical therapy treatment following three consecutive refusals by the patient-inmate to attend such treatment. The Policy states that "[r]efusal of service implies non compliance of treatment plan unless otherwise documented by the Therapist."
2. Plaintiff's Medical Condition and Treatment He Received prior to April 2002
Plaintiff suffers from chronic degenerative disk disease which dates back to 1992. There is no cure for chronic degenerative disk disease, but plaintiff has been treated with conservative therapy, which includes medication and exercise. The medications include anti-inflammatory medications such as Roboxin and Ibuprofin.
Plaintiff also has a long history of a physical therapy regime. On May 14, 2001, he was seen by physical therapist Danielle Jensen. Plaintiff was evaluated and educated on a self-exercise program, and was provided with handouts and instructions regarding such a program.
Dr. Stein, an orthopedic surgeon, evaluated plaintiff on June 8, 2001, and found full range of motion of plaintiff's cervical spine. Plaintiff was reevaluated by Dr. Stein on July 16, 2001. Dr. Stein reported full range of motion of plaintiff's cervical spine and both upper extremities. Plaintiff's x-ray indicated that he had early signs of arthritis, and Dr. Stein diagnosed that plaintiff had degenerative disk disease of the cervical spine. Dr. Stein's plan of care included no changes to plaintiff's therapy, and follow-up as needed.
Plaintiff's physical therapy discharge summary dated September 11, 2001, discussing physical therapy services rendered from May 14, 2001 through June 15, 2001, states that plaintiff attained partial achievement of the goals/objectives of his physical therapy. Plaintiff's left rotation range of motion increased from 40% to 50%. All other ranges of motion remained the same cervically. No decrease in subjective symptoms was noted. It also was noted that plaintiff had been compliant with written instructions and educational material that had been given to him and with his at-home program of physical therapy.
On November 10, 2001, Plaintiff was given an MRI which indicated mild to moderate degenerative changes of the disks at C5-6 and C6-7, and that at these areas there was neutral foramina narrowing and flattening of the thecal sac, and at C5-6, minimal cord deformation. It was also noted that the effect of the degenerative changes were enhanced by a congenitally narrow canal.
Between November of 2001 and April of 2002, Plaintiff had thirteen (13) encounters with the ACF medical department, five (5) of which related to plaintiff's chronic degenerative disk disease. This condition was treated with medication adjustments, in addition to plaintiff continuing his at-home program of physical therapy.
3. Plaintiff's Treatment from April to October 2002
Dr. de Perio examined plaintiff on April 4, 2002, and reviewed the results of the November 10, 2001 MRI and orthopedic clinic recommendations, which recommended a course of treatment of NSAID (i.e., anti-inflammatory medication) and physical therapy. Following the recommendations of the orthopedic clinic, Dr. De Perio ordered Indocine and physical therapy.
Plaintiff was seen for an initial physical therapy evaluation by the Hospital's Physical Therapy Department on April 22, 2002. The records from the physical therapy evaluation indicate that physical therapy was recommended three times per week for four weeks, and that plaintiff's first appointment was scheduled for April 29, 2002.
On April 25, 2002, plaintiff was placed in the Special Housing Unit ("SHU") at ACF for misbehavior. Because of plaintiff's SHU status, in order for him to be transported anywhere, including to his physical therapy appointments, DOCS security procedures required that two (2) officers and one (1) sergeant assist with the transport and remain with plaintiff throughout his entire treatment. Due to high demand and the large inmate population at ACF, coverage for this and other transportation is done on a priority basis by the ACF security staff. Neither Dr. de Perio, nor the other medical staff at ACF, are routinely involved in the day-to-day scheduling of security staff for transportation of SHU inmates to outside medical appointments. If an emergency arises and outside care is needed, Dr. de Perio can intercede with the Superintendent of ACF to arrange for security to transport the prisoner to an outside facility. Ongoing physical therapy for a chronic condition such as plaintiff's, however, is not considered an emergency.
On April 29, May 1, May 3, and May 6, 2002, plaintiff was in SHU and DOCS was unable to escort him to his scheduled physical therapy appointments due to lack of security personnel.
On May 8, 2002, plaintiff was brought to the clinic for his physical therapy treatment and was treated. After receiving physical therapy, plaintiff reported no change in the level of alleged pain he was experiencing.
On May 10, 2002, DOCS was again unable to escort plaintiff to his physical therapy appointment due to lack of security personnel.
On May 20, 2002, plaintiff refused to go to physical therapy.
On May 22, 2002, DOCS again was unable to escort plaintiff to his physical therapy appointment due to lack of security personnel.
On May 24, 2002, plaintiff was brought to the clinic for his physical therapy treatment and was treated. Again, after receiving physical therapy, plaintiff reported no relief from the alleged pain he was experiencing.
On May 29, 2002, DOCS was once again unable to escort plaintiff to his physical therapy appointment due to lack of security personnel.
On May 31, 2002, plaintiff again refused physical therapy.
On June 3, June 5, June 10, June 12, and June 14, 2002, DOCS was unable to escort plaintiff to his physical therapy appointment due to lack of security personnel.
On June 17, 2002, plaintiff refused physical therapy treatment.
On June 19, 2002, DOCS was unable to escort plaintiff to his physical therapy appointment due to lack of security personnel.
On June 21, 2002, plaintiff again refused his physical therapy treatment.
That same day, June 21, 2002, defendant DuBois discontinued plaintiff's physical therapy due to plaintiff's three consecutive refusals and due to the amount of time that had elapsed since plaintiff was last seen in physical therapy. She recommended referral back to the doctor at ACF for re-evaluation, prior to continuing physical therapy, to determine the course of further treatment. This termination of treatment was done in accordance with the Hospital's Policy, as set forth above.
Defendant DuBois had no authority to order transport of any inmate to the Hospital or in-facility clinic for physical therapy. Nor did she have any control over DOCS security procedures. As a physical therapist not employed by DOCS, her only role in plaintiff's treatment was to provide him physical therapy when he was present for his physical therapy appointment and to report on his progress. This was done on every occasion plaintiff was present for his appointment.
At the time defendant DuBois terminated plaintiff's physical therapy, she had no knowledge of any grievance allegedly filed by plaintiff with DOCS against Dr. de Perio. She only became aware of the alleged grievance when she was served with and read the complaint in this case.
Even though plaintiff missed a number of physical therapy sessions due to both security issues and his own refusals to attend, it was not an emergency situation because plaintiff was trained in and had been provided with instructions for an at-home physical therapy and exercise program.
On July 7 and July 13, 2002, plaintiff was seen by Dr. Laskowski, who reviewed and discussed plaintiff's plan of care with him.
On July 24, 2002, plaintiff was seen by Physician's Assistant Edwards at ACF, who made a provisional diagnosis of cervical radiculopathy and referred plaintiff to the Erie County Medical Center ("ECMC") Orthopedic Clinic.
On August 13, 2002, plaintiff commenced this lawsuit.
On September 12, 2002, plaintiff was transported to ECMC and was examined by Joseph Kowalski, M.D., of the ECMC Orthopedic Clinic. Dr. Kowalski noted that plaintiff had degenerative disk disease of C5-6 and C6-7, and recommended conservative management, to include physical therapy and NSAID.
On September 14, 2002, plaintiff was again seen by Dr. Laskowski. Dr. Laskowski renewed plaintiff's medication and noted that he was not yet in possession of plaintiff's recent orthopedic consult report from the ECMC Orthopedic Clinic.
On October 16, 2002, Dr. de Perio referred plaintiff to a specialist in spine management at the ECMC Spine Clinic for further evaluation and recommendations for continued treatment. He made this referral due to plaintiff's long history of chronic degenerative disk disease, his ongoing complaints of back pain, ineffectiveness of pain management, ineffectiveness of plaintiff's physical therapy regime, including plaintiff's self-exercise program of physical therapy over the previous year, and numerous orthopedic consults.
DISCUSSION
1. Summary Judgment StandardWhen determining a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. United States v. Collado, 348 F.3d 323, 326 (2d Cir. 2003), cert. denied, 541 U.S. 904 (2004). Summary judgment is only appropriate if, based on the pleadings and evidentiary submissions, there is no genuine material issue of fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Stated differently, the Court may grant defendants' motion for summary judgment only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (alterations in original) (internal quotations and citations omitted).
2. Eighth Amendment Standard
Plaintiff claims that defendants denied him proper medical treatment for his back condition during the period April 2002 to July 2002 while he was incarcerated at ACF, in violation of the Eighth Amendment's prohibition against the infliction of "cruel and unusual punishment." To establish an Eighth Amendment violation for inadequate provision of medical treatment, a prisoner must prove "deliberate indifference" to the inmate's serious medical needs. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995). Under this standard, "only the deliberate infliction of punishment, and not an ordinary lack of due care for prisoner interests or safety, lead[s] to liability." Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999).
The law regarding a claim for denial of adequate medical treatment was concisely summarized in the recent case of Veloz v. New York, 339 F. Supp. 2d 505 (S.D.N.Y. 2004):
In order to establish a claim of inadequate medical care in violation of the Eighth Amendment, a prisoner must allege acts or omissions demonstrating "`deliberate indifference' to a substantial risk of serious harm. . . ." "Deliberate indifference" to a prisoner's medical need is demonstrated by proof that prison officials "intentionally den[ied,] or delay[ed] access to medical care or intentionally interfer[ed] with the treatment once prescribed." The "deliberate indifference" standard consists of both an objective and a subjective component. First, the alleged deprivation must be "sufficiently serious that it denies a prisoner `the minimal civilized measures of life's necessities.'" The "sufficiently serious" requirement "`contemplates a condition of urgency, one that may produce death, degeneration, or extreme pain.'" Second, a defendant must act with a "sufficiently culpable state of mind." Deliberate indifference exists when a prison official knows of and disregards an excessive risk to inmate health or safety; the official must 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.
Negligent treatment or medical malpractice, or a claim based on differences of opinion over matters of medical judgment, are insufficient to state an Eighth Amendment claim. Rather, the alleged conduct must be such that it is "repugnant to the conscience of mankind" or "incompatible with the evolving standards of decency that mark the progress of a maturing society." To establish deliberate indifference, plaintiff must demonstrate that the defendants "actually wish[ed] him harm, or at least, [were] totally unconcerned with his welfare."Id. at 521 (alterations in original) (citations omitted).
3. Application of Law to the Instant Case
Even if it is assumed in this case that plaintiff's back condition was serious enough to implicate constitutional concerns, the record does not support a finding that the defendants acted with deliberate indifference to plaintiff's needs. To the contrary, the record shows that plaintiff received exceptional and on-going treatment from the defendants for his back pain. Dr. de Perio and Dr. Laskowski provided plaintiff with diagnostic testing and pain medication, recommended physical therapy and referred plaintiff to outside consultants for evaluation and diagnosis. When plaintiff did attend physical therapy, defendant DuBois provided him with adequate treatment.
In his complaint, plaintiff asserts two instances of inadequate medical care. First, he claims that the pain medication prescribed by Dr. de Perio and Dr. Laskowski was not strong enough to relieve his back pain. That allegation is essentially a disagreement with his medical providers' decision not to prescribe stronger pain medication rather than a claim that medical attention was denied entirely. While prisoners have a right to medical care, they do not have a right to chose a specific type of treatment. See Grant v. Burroughs, No. 96 Civ. 2753, 2000 WL 1277592, at *5 (S.D.N.Y. Sept. 8, 2000) (prisoner denied pain medication does not have a constitutional right to treatment of his choice). 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. See Wandell v. Koenigsmann, No. 99 Civ. 8652, 2000 WL 1036030, at *5 (S.D.N.Y. Jul. 27, 2000). At most, such allegations may rise to the level of a medical malpractice claim, a type of action in which the Eighth Amendment is not implicated. Estelle v, Gamble, 429 U.S. 97, 105-07 (1976). Plaintiff has not offered any evidence that stronger medication was not provided for any reason other than a medical decision. It is not for the Court to second guess plaintiff's medical providers as to what medicine or what dosage should have been prescribed to treat the plaintiff.
In his submissions regarding the summary judgment motion, plaintiff cites two other instances when he claims to have been denied medical treatment. First, he claims that in December 2002, while in SHU, he was "vomiting up blood" and requested to see a doctor, but had to wait five days before being treated. Second, he mentions briefly that at some unspecified time, Dr. de Perio failed to administer medication to him when he was in methadone detoxification. Plaintiff has not moved to amend his complaint to add claims regarding these alleged incidents. In addition, he has not alleged or provided any evidence that these incidents, if they occurred, caused him any serious or on-going harm. Nor has he alleged or offered any proof that medical care was withheld in these instances in order to punish or harm him. Accordingly, the Court shall not consider them.
Second, plaintiff complains that his physical therapy was discontinued. He claims that Dr. de Perio discontinued the physical therapy in retaliation for plaintiff having filed a grievance against him. Plaintiff's retaliation claim is not supported by the record. The undisputed evidence is that plaintiff's physical therapy was discontinued by defendant DuBois, not Dr. de Perio, and that DuBois did so, pursuant to the Hospital's Policy, based on plaintiff's three consecutive refusals to attend, as well as the length of time that had elapsed since the plaintiff was last seen in physical therapy. Defendant DuBois is not an employee of DOCS, and had no knowledge of any grievance filed by plaintiff against Dr. de Perio. Thus, the record cannot support a finding that plaintiff's physical therapy was discontinued for retaliatory purposes. Moreover, plaintiff has failed to put forth any other evidence that the defendants deliberately discontinued his physical therapy in order to punish or harm him.
Plaintiff has provided an "affidavit" from a another prisoner who allegedly was confined in SHU at the same time the plaintiff was confined there. Item No. 22. He states that he never saw plaintiff refuse to go to physical therapy. Besides technical problems with the affidavit ( i.e., not notarized), it does not change the result here. On at least three occasions, defendant DuBois was informed by DOCS personnel that plaintiff refused to attend his appointments and she made her decision to discontinue his therapy based on those representations. Plaintiff has failed to present any evidence that DuBois knew or should have known that such statements were false, if indeed they were false.
In his response to the motion for summary judgment, plaintiff alleges, for the first time, that defendant DuBois conspired with the other defendants to retaliate against him. However, he offers no evidence to support this conclusory allegation. Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (retaliation claims "must be `supported by specific and detailed factual allegations,' not stated `in wholly conclusory terms'") (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). Thus, the Court finds that this "conspiracy" claim must be dismissed.
Although not expressly stated, plaintiff may also be asserting an Eighth Amendment claim based on the instances when he was not transported to his physical therapy appointments. However, the undisputed evidence is that none of the defendants in this case had any control or responsibility for transporting plaintiff to his appointments. That responsibility belonged to DOCS security personnel. In addition, there is no evidence that plaintiff was deliberately not transported to his appointments in order to punish or harm him.
In sum, the Court finds that based on the evidence in the record, no reasonable jury could return a verdict in favor of the plaintiff on his Eighth Amendment claim. Plaintiff has failed to come forth with any evidence that the defendants deliberately withheld or delayed treatment in order to punish or harm him. Accordingly, defendants are entitled to summary judgment.
Defendants also argue that they are entitled to summary judgment on the ground of qualified immunity. In light of the Court's holding, it need not address this issue.
4. Plaintiff's Motion to Amend Complaint
As stated above, plaintiff has moved to amend the complaint to add Commissioner Goord and Acting Superintendent Conway as defendants. For an actionable claim to survive against state officials in their personal capacity, a plaintiff must demonstrate "personal involvement of defendants in alleged constitutional deprivations. . . ." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted); see also Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.) ("The rule in this circuit is that when monetary damages are sought under § 1983, the general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required."), cert. denied, 414 U.S. 1033 (1973).
Personal involvement of a supervisory official may be established "by evidence that: (1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring."Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 254 (2d Cir. 2001) (alterations in original) (quoting Colon, 58 F.3d at 873). Neither plaintiff's proposed amended complaint nor his motion to amend the complaint allege any personal involvement on behalf of either Commissioner Goord and Acting Superintendent Conway. Accordingly, plaintiff's motion to amend the complaint is denied.
CONCLUSION
For the reasons stated, the Court: (1) grants defendants' motion for summary judgment; and (2) denies plaintiff's motion to amend the complaint. The Clerk of Court is hereby ordered to take all steps necessary to close the case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith, and therefore denies leave to appeal in forma pauperis. Further requests to proceed on appeal in forma pauperis must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.