Opinion
02-CV-0424Sr.
August 10, 2004.
DECISION AND ORDER
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this case, including entry of final judgment. Dkt. #22.
Currently before the Court is the plaintiff's motion for clarification of the defendant's answer (Dkt. #31), and defendant's motion for summary judgment dismissing the complaint. Dkt. #49. For the following reasons, the plaintiff's motion is denied and the defendant's motion is granted.
BACKGROUND
Plaintiff is a Chilean national who was detained at the Buffalo Federal Detention Facility from November 14, 1998 through March 12, 2002. Dkt. #52, Exh. A, ¶¶ 2-3. Plaintiff commenced this action on June 11, 2002, seeking relief pursuant to 42 U.S.C. § 1983, claiming that the Immigration and Naturalization Service ("INS"), and the Buffalo Federal Detention Facility violated his constitutional rights by failing to provide him with adequate medical treatment. Dkt. #1. The Court construed plaintiff's claim as an action pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 398 (1971), and directed the plaintiff to file an amended complaint naming the government official responsible for the alleged violation as a defendant. Dkt. #5.
Effective March 1, 2003, the Immigration and Naturalization Service ceased to exist as an agency of the Department of Justice, and its immigration enforcement functions were transferred to the Bureau of Immigration and Customs Enforcement, which is part of the Department of Homeland Security.
The plaintiff filed an amended complaint on August 6, 2002, naming INS District Director M. Francis Holmes, Buffalo Federal Detention Facility Director Charles Mule, and Public Health Services Director C. Henneford as defendants. Dkt. #6. In the amended complaint, plaintiff alleges that he was
denied proper medical treatment, MRI, the [illegible] after a traumatic accident resulting [in] multiple injuries, as follows: chronic care patient, head trauma, shoulder injury, back and right iliac crest, resulting in a major depression and painful, bleeding ulcer due to an abuse of pain killers medication.
Dkt. #23, p. 5. Plaintiff also alleges that he was
denied twice for a major surgery. Denied once for a minor surgery. Major denied for [illegible] cosmetic purposes. Needed to avoid eye pain, esp. eye care. Minor needed to remove an infection on upper lid. Painful. Denied by a nurse who never treated me. Not a doctor.
Dkt. #23, p. 6. Pursuant to 28 U.S.C. § 1915A, the Court dismissed the claims against defendants Holmes and Mule for failure to allege personal involvement in the constitutional deprivation, but permitted the claims to go forward against defendant Henneford. Dkt. #7.
The defendant moves to dismiss the complaint on the grounds that: (1) the defendant is a commissioned officer of the Public Health Services who is afforded absolute immunity pursuant to the Federal Tort Claims Act, 42 U.S.C. § 233(a); (2) the defendant had no personal involvement in the alleged denial of adequate medical care; and (3) the medical providers at the Buffalo Federal Detention Center were not deliberately indifferent to any serious medical need of plaintiff. Dkt. #50.
DISCUSSION AND ANALYSIS
Motion for Clarification of the Answer
Plaintiff seeks clarification of the defendant's answer, specifically, the reason the defendant denied certain allegations in plaintiff's complaint and the meaning of certain affirmative defenses. Dkt. #31. The plaintiff bears the ultimate burden of establishing his allegations at trial; the defendant need not explain why he has chosen to deny certain allegations in his answer. The plaintiff can ascertain the factual basis for the defendant's affirmative defenses through discovery or, as is the case here, through defendant's motion for summary judgment. The plaintiff's motion is denied.
Summary Judgment
Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff." Thomas v. Irvin, 981 F. Sup 794, 799 (W.D.N.Y. 1997) (internal citations omitted).
A fact is "material" only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849 (1991).
Once the moving party has met its burden of "demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a `metaphysical doubt' concerning the facts, or on the basis of conjecture or surmise." Bryant, 923 F.2d at 982. A party seeking to defeat a motion for summary judgment
must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Pursuant to Fed.R.Civ.P. 56(e), affidavits in support of or in opposition to a motion for 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." Thus, affidavits "must be admissible themselves or must contain evidence that will be presented in an admissible form at trial." Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001), citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); see also H. Sand Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991) (hearsay testimony that would not be admissible if testified to at trial may not properly be set forth in an affidavit).
Deliberate Indifference to a Serious Medical Need
As a pretrial detainee, the plaintiff's claim of entitlement to medical treatment arises pursuant to the due process clause of the Fifth Amendment to the United States Constitution. Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996). Although the United States Supreme Court has not precisely outlined
the duties of a custodial officer under the Due process clause to provide needed medical treatment to a pretrial detainee, it is plain that an unconvicted detainee's rights are at least as great as those of a convicted prisoner. Thus, the official custodian of a pretrail detainee may be found liable for violating the detainee's due process rights if the official denied treatment needed to remedy a serious medical condition and did so because of his deliberate indifference to that need.Weyant, 101 F.3d at 856 (internal citations omitted); see Cuoco, 222 F.3d at 106 (there are two elements to plaintiff's claim: he must demonstrate that he had a "serious medical condition" and that it was met with "deliberate indifference."). The analysis is the same as that which is applied to Eighth Amendment claims. Cuoco, 222 F.3d at 106.
In assessing whether a medical condition is "sufficiently serious," the Court considers all relevant facts and circumstances, including whether a reasonable doctor or patient would consider the injury worthy of treatment; the impact of the ailment upon an individual's daily activities; and the severity and persistence of pain. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). A serious medical condition exists where the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain. Id.
With respect to the defendant's state of mind, it is clear that "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.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994), cert. denied, 513 U.S. 1154 (1995). "Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm." Id., citing Farmer, 511 U.S. at 835. Accordingly,
It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. 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. Moreover, negligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.Chance, 143 F.3d at 703.
Plaintiff's complaints reference chronic conditions for which plaintiff was receiving ongoing medical care. For example, plaintiff's eye condition was the result of a pre-exising traumatic injury which left plaintiff blind in the right eye. Dkt. #34, Exh. A. During his detention, plaintiff received ongoing medical care from an optometrist at Erie County Medical Center who prescribed eye drops for plaintiff's dry eyes and noted plaintiff's request to have his "eyes straightened for cosmetic reasons." Dkt. #34. Dr. Bailey, Clinical Director at the Buffalo Federal Detention Facility, conferred with the optometrist regarding strabismus surgery, but denied the request because the "procedure is purely cosmetic." Dkt. #34, Exh. A. Plaintiff also received numerous physical examinations and ongoing prescriptions for pain management with respect to his complaints of muscle pain, back pain and recurrent headaches. Dkt. #34, Exh. A. There is nothing in the medical record to support plaintiff's claim of a bleeding ulcer; only repeated references to management of gastroesophageal reflux disease. With respect to plaintiff's complaints of depression, plaintiff was receiving ongoing psychiatric care and prescription medication. Thus, there is nothing in the record to suggest that the plaintiff was suffering from a serious medical condition which was not being treated during his detention.
Personal Involvement
In order to be subject to liability for a constitutional violation under the Bivens doctrine, there must be some evidence that the federal employee had direct, personal involvement in the constitutional violation. Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987), cert. denied, 489 U.S. 1065 (1989); Sheehy v. Wehlage, 2004 WL 1563348 (W.D.N.Y. June 17, 2004). Personal involvement may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation; (2) was informed of the violation and failed to remedy the wrong; (3) created, or permitted continuation of, a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in supervising subordinates who committed the wrongful acts; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating unconstitutional acts were occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).
Lieutenant Commander Henneford is the Health Services Administrator of the Buffalo Federal Detention Facility. Dkt. #52, ¶ 3. His role is administrative; he oversees the budget and assures that there is adequate staff at the facility. Dkt. #32, ¶ 3. Lieutenant Commander Henneford has "no involvement in making medical determinations regarding the appropriate level of care to be provided to detainees." Dkt. #52, ¶ 7. He did not examine or diagnose the plaintiff and was not involved in any determinations with respect to his medical care. Dkt. #52, ¶¶ 8-14. The person responsible for such decisions is Brenda Bailey, M.D., Clinical Director at the Buffalo Federal Detention Facility. Dkt. #52, ¶ 5. Lietuenant Commander Henneford has no supervisory functions or oversight control over Dr. Bailey. Dkt. #52, ¶ 7. Thus, even if the plaintiff had demonstrated a question of fact with respect to his claim of denial of adequate medical treatment, plaintiff has failed to demonstrate that Lieutenant Commnader Henneford had any personal involvement in the decisions with respect to plaintiff's medical treatment.
Absolute Immunity
The Public Health Service Act provides that
The remedy against the United States provided by [the Federal Tort Claims Act] . . . for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by an commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.42 U.S.C. § 233(a). The defendant, C. Henneford, is a Lieutenant Commander with the Public Health Service. Dkt. #52, ¶ 3. In that capacity, he provides administrative supervision of clinical services provided to detainees at the Buffalo Federal Detention Center. Dkt. #52, ¶ 3. Thus, even if the defendant were personally involved in any decisions with respect to the plaintiff's medical care, those decisions would fall within the scope of his employment with the Public Health Services, thereby affording the defendant absolute immunity from a Bivens action and requiring the plaintiff to seek relief pursuant to the Federal Tort Claims Act. See Cuoco, 222 F.3d at 108 (The Federal Tort Claims Act "protects commissioned officers or employees of the Public Health Service from being subject to suit while performing medical and similar functions by requiring that such lawsuits be brought against the United States instead.").
It appears that the result would be same if plaintiff were to amend his complaint to include Dr. Bailey as a defendant.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for clarification of the defendant's answer (Dkt. #31), is DENIED, and the defendant's motion for summary judgment dismissing the complaint (Dkt. #49), is GRANTED.
SO ORDERED.