Opinion
05 Civ. 6082 (RCC) (KNF).
March 5, 2007
REPORT and RECOMMENDATION
I. INTRODUCTION
Osvaldo Vasquez ("Vasquez") brought this action pro se pursuant to 42 U.S.C. § 1983. Vasquez contends the defendant exhibited deliberate indifference to his serious medical needs, in violation of the Eighth Amendment, when, on April 12, 2005, the defendant failed to change dressing applied to him post-operatively and thereby caused him pain and allowed blood to drain from the surgical site on to his clothing and bed. According to the plaintiff, the dressing was changed by another nurse approximately three and one-half hours later.
Before the Court is a motion for summary judgment made pursuant to Fed.R.Civ.P. 56 by defendant Bruce Grund ("Grund"). According to Grund, no material facts are in dispute and he is entitled to judgment as a matter of law. Grund also maintains that, in any event, he is shielded from liability to the plaintiff by the doctrine of qualified immunity.
The defendant's name is misspelled in the caption of the action.
II. BACKGROUND
Vasquez failed to respond to the defendant's motion for summary judgment. He received notice from the defendant, in accordance with the Local Civil Rules of this court, that he needed to respond to the motion via affidavit or other competent evidence, and that it would not be enough for him to rely solely upon the allegations made in his complaint. Vasquez was also advised that if he failed to controvert the statement of material facts which accompanies the defendant's motion for summary judgment, the uncontroverted facts alleged by the defendant would be deemed to be admitted by Vasquez, for the purpose of this motion. See Local Civil Rule 56.1. The Court has relied heavily on the defendant's statement of material facts in preparing the Background portion of this document.
At 8:15 a.m. on April 12, 2005, Grund changed the dressing that had been applied to the site of the incision. He noted, in the progress notes the infirmary maintained on Vasquez, that Vasquez's old dressing had "soaked" through a surgical pad. Grund observed a brown substance, with a strong odor, was draining thinly from the surgical site. However, he did not report observing any blood draining from the plaintiff's wound. According to the progress notes entry Grund made, Vasquez did not complain that he was experiencing any pain or distress in the area of his wound.
Vasquez recalls that, at approximately 1:00 p.m. on April 12, 2005, he summoned Grund and asked Grund to change his dressing. However, Grund declined to do so. This encounter between the plaintiff and the defendant, unlike the 8:15 a.m. encounter, is not reflected in Vasquez's infirmary progress notes. Vasquez alleges that when he summoned Grund at approximately 1:00 p.m., he was experiencing pain. Pain relief medication was being administered to Vasquez on an "as-needed basis." Vasquez contends he had to wait until 4:30 p.m., after a change in the infirmary nursing staff had occurred, to obtain the new dressing he desired; it was applied by another nurse.
The infirmary progress notes for Vasquez contain an entry corresponding to Vasquez's 4:30 p.m. encounter with that nurse. The nurse who assisted Vasquez, at that time, reported that his dressing was "saturated [with] thin brown serous fluid." However, the nurse did not observe that Vasquez was bleeding. According to Vasquez, after his dressing was changed at 4:30 p.m., on April 12, 2005, he did not experience another instance when blood or any other fluid drained from his surgical site.
III. DISCUSSION
Summary Judgment
Summary judgment may be granted in favor of the moving party "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); see D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356).
The moving party bears the burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forth with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986).
In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S. Ct. at 1355. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id., at 256, 106 S. Ct at 2514. Summary judgment should only be granted if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
Where, as here, a litigant appears before the court pro se, that litigant's submissions should be read liberally and interpreted so as "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999). However, this does not mean that the pro se litigant is released from the typical requirements of summary judgment. A "bald assertion" made by the pro se litigant that is not supported by evidence will not be sufficient to overcome a motion for summary judgment. See Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995). Section 1983
"To state a claim under § 1983, a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 [2d Cir. 1993]). "Allegations which are nothing more than broad, simple, and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 887 (2d Cir. 1987).
It is undisputed that Grund was acting under color of state law on April 12, 2005, when he declined to change Vasquez's dressing and, according to the plaintiff, exhibited deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. Therefore, the Court finds that Vasquez has stated a claim under § 1983.
Eighth Amendment — Deliberate Indifference to Medical Care
A person who is incarcerated is entitled to receive adequate medical care. See Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994); Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290 (1976). Deliberate indifference to the serious medical needs of a prisoner constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment and states a claim under 42 U.S.C. § 1983. See id., at 104-105, 97 S. Ct. at 291.
"[I]n the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute 'an unnecessary and wanton infliction of pain' or to be 'repugnant to the conscience of mankind.' Thus, a complaint that a [healthcare professional] has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. 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." Estelle, 429 U.S. at 105-106, 97 S. Ct. at 292.
In order for a plaintiff to satisfy his burden, he must establish two things. "First, he must establish, objectively, that his medical needs were 'sufficiently serious.'" Wilson v. Seiter, 501 U.S. 294, 298, 111 S. Ct. 2321, 2324 (1991). Medical needs are sufficiently serious, for purposes of an Eighth Amendment claim, when they present "a condition of urgency, one that may produce death, degeneration, or extreme pain." See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (citingNance v. Kelly, 912 F.2d 605, 607 [2d Cir. 1990] [Pratt, J., dissenting]).
"Second, he must establish a subjective component — that [the Defendant 'knew] of and disregard[ed] an excessive risk to [his] health or safety.'" Chatin v. Artuz, No. 95 Civ. 7994, 1999 WL 587885, at *2 (S.D.N.Y. Aug. 4, 1999) (quoting Farmer, 511 U.S. at 837, 114 S. Ct. at 1979). "With respect to the subjective showing, prison officials are not liable 'if they responded reasonably to a known risk, even if the harm ultimately was not averted.'" Chatin, 1999 WL 587885, at *2 (quoting Farmer, 511 U.S. at 826, 114 S. Ct. at 1974); see also Estelle, 429 U.S. at 106-107, 97 S. Ct. at 292 (prisoner not entitled to treatment by every medical alternative as long as treatment is reasonable).
Objective Component
In Chance v. Armstrong, 143 F.3d 698 (2d Cir. 1998), the court identified several factors that are relevant in determining whether a serious medical condition exists. They include "the existence of an injury that a reasonable [healthcare professional] or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance v. Armstrong, 143 F.3d at 702 (internal quotation marks and citations omitted).
Furthermore, in a case such as the one at bar, where the plaintiff complains of a delay in providing medical treatment, it is appropriate, in evaluating the objective sufficiency of an Eighth Amendment claim, to consider whether the delay had adverse effects on the plaintiff, that is, whether the delay worsened the pertinent medical condition. See Smith v. Carpenter, 316 F.3d 178, 186-187 (2d Cir. 2003).
The record evidence establishes that on April 12, 2005, Vasquez was assigned to the Sullivan Correctional Facility's infirmary because his post-operative condition required medical treatment. The record also establishes that, at that time, the plaintiff was being administered pain medication on an "as-needed basis" to manage his discomfort. Based on the record evidence, the Court cannot conclude that the plaintiff has satisfied his burden of establishing objectively that his medical needs on April 12, 2005, were sufficiently serious; that is, that his medical needs presented "a condition of urgency, one that may produce death, degeneration, or extreme pain." See Hathaway, 99 F.3d at 553.
While the record establishes that Vasquez was experiencing pain of such intensity that pain medication was provided to him on an "as-needed basis," the receipt of pain medication, standing alone, does not establish that the recipient was experiencing "extreme" pain. The record is devoid of any information establishing that Vasquez's condition, on April 12, 2005, was one of urgency or one that might have produced death or degeneration. Furthermore, when, as in the instant case, a prisoner's Eighth Amendment claim is based on a temporary delay in the provision of otherwise medically adequate treatment, and the effect of the delay in treatment does not worsen the prisoner's condition, no Eighth Amendment violation has occurred. See Smith, supra. Vasquez has not shown that Grund's decision to delay the changing of Vasquez's dressing caused his medical condition to worsen. In addition, the Court notes that Vasquez has never alleged that the defendant's decision not to change his dressing, midday, which caused a three and one-half hour delay in his receipt of new dressing, was intended to serve as a form of punishment. See e.g., Archer v. Dutcher, 733 F.2d 14, 16-17 (2d Cir. 1984).
Based on the above, the Court finds that the plaintiff has not met the objective component requirement of his Eighth Amendment claim.
Subjective Component
Vasquez challenges the medical judgment made by Grund respecting the type and timing of the medical treatment that was provided for him. In particular, the plaintiff challenges Grund's determination, on April 12, 2005, that Vasquez's dressing did not have to be changed midday. Challenges to medical judgments made concerning the type of treatment an incarcerated person should receive, do not give rise to an Eighth Amendment violation. See Estelle, 429 U.S. at 107, 97 S. Ct. at 292-293. "Although a prisoner is entitled to medical care, he does not have the right to the treatment of his choice." Muhammad v. Francis, No. 94 Civ. 2244, 1996 WL 657922, at *6 (S.D.N.Y. Nov. 13, 1996) (citingMcCloud v. Delaney, 677 F. Supp. 230, 232 [S.D.N.Y. 1988]). A prisoner's right to medical care is not the right to have "the type or scope of medical care which he personally desires."United States ex rel. Hyde v. McGinnis, 429 F.2d 864, 867-68 (2d Cir. 1970); see also Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Moreover, disagreements over proper treatment do not create a constitutional claim. So long as the treatment a prisoner receives is adequate, the fact that the prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation. See Chance, 143 F.3d at 703. Here, Vasquez wanted his dressing changed at midday. However, Grund did not agree that a change of dressing was warranted.
In order to meet the subjective component requirement of an Eighth Amendment claim, a plaintiff must show that the defendant acted with a sufficiently culpable state of mind since "[d]eliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law."Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). Accordingly, Vasquez must demonstrate that Grund failed to change his dressing while he was actually aware that a substantial risk existed that Vasquez would suffer serious harm as a result of his failure to accede to Vasquez's request. See Farmer, 511 U.S. at 836-837, 114 S. Ct. at 1979. Vasquez has not offered any competent evidence establishing that the defendant acted with the requisite mental state. Moreover, nothing in the record supports a finding that Vasquez suffered serious harm as a result of the decision Grund made to leave Vasquez's dressing unchanged. In the circumstance of the instant case, the Court finds that Vasquez has not met his burden with respect to the subjective component of his Eighth Amendment claim. Therefore, the defendant is entitled to the relief he seeks through the instant motion.
Inasmuch as the Court has determined that Vasquez has not established that the defendant violated the Eighth Amendment, by exhibiting deliberate indifference to a serious medical need that Vasquez had, it is unnecessary for the Court to analyze the defendant's claim that he is shielded from liability to Vasquez based upon the doctrine of qualified immunity.
IV. RECOMMENDATION
For the reasons set forth above, the defendant's motion for summary judgment should be granted.V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1350, New York, New York 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).