Opinion
02-CV-0007E(Sr).
March 24, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 alleging that defendant violated his Eighth Amendment rights by deliberately disregarding his medical needs. Defendant John Alves, M.D., the Facility Health Services Director of the Medical Services Unit at Southport Correctional Facility ("Southport"), has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons set forth herein below, defendant's motion will be granted.
The following facts are undisputed unless otherwise noted. Plaintiff was incarcerated at Southport between October 2, 2001 and January 25, 2002. Prior to arriving at Southport, plaintiff was incarcerated at Wende Correctional Facility ("Wende"). Medical records reveal that plaintiff had complained of, and was treated for, back pain on numerous occasions while he was housed at Wende. See Alves Decl., Ex. A, at 23-40. In February of 2001, an examination of plaintiff by Robert M. Lifeso, M.D., a neurologist, revealed an "extruded right of center L4-5 disc significantly compressing the right L5 traversing root." Id. at 81. Dr. Lifeso wrote that, "[w]e have explained to Mr. Wilson that it has been over a year since his problem and I would suggest, considering everything else has failed, we consider a right L4-5 simple discectomy without fusion." Ibid. Pursuant to this recommendation, surgery was scheduled for May 25, 2001. Id. at 78-79. Apparently, plaintiff had initially agreed to the surgery and intended to undergo such procedure until at least May 24, at which time he signed a Procedure/Surgical Prep Form and an Outside Hospital Admission form. Id. at 133-134. However, on May 25, 2001, plaintiff signed a form refusing to have the surgery. Id. at 77. His reason for doing so is unclear from the medical records. Plaintiff was subsequently transferred to Southport on October 2, 2001.
Defendant's first treatment and evaluation of plaintiff occurred on October 4, 2001, when plaintiff requested an emergency sick-call complaining of back pain. Defendant reviewed plaintiff's medical records and history from Wende and ordered medication to alleviate plaintiff's pain. Id. at 23. On October 10, plaintiff complained to prison staff that he had fallen and was experiencing severe back pain. Plaintiff was seen by three separate healthcare workers, including defendant. The medical records show that plaintiff refused to remain in the infirmary for hospitalization and treatment. Id. at 20, 130. Defendant prescribed an anti-inflammatory medication — Naprosyn, 375 mg. three times daily — for plaintiff and recommended a subsequent re-evaluation. Defendant examined plaintiff again on October 15 and renewed his pain medication. On October 18, defendant examined plaintiff and discussed with him the cause of his back pain. Defendant also ordered discontinuation of the Naprosyn and added Ultram in an attempt to alleviate plaintiff's back pain. In addition, defendant ordered that plaintiff be relocated to Southport's ground floor and to only be cuffed in front due to his continuing back pain. Id. at 19.
Defendant also noted plaintiff's history of both a herniated disc and his prior refusal of surgery at Wende.
Although defendant repeatedly refers to such medication as "Ultran," the correct spelling of the prescribed medication is Ultram. Utram is a prescription-only analgesic indicated for the management of moderate to moderately severe pain in adults.
As of October 18, plaintiff was being housed on the second floor of Southport. However, after plaintiff indicated to defendant that his severe back pain made it very difficult to walk up and down stairs defendant ordered that his cell be relocated to the ground level.
On October 22, defendant examined plaintiff after he had allegedly fallen down a staircase. Plaintiff was hospitalized and treated with pain medication, including nonnarcotic steroids. Plaintiff remained in the infirmary from October 22 through October 24, at which time defendant discharged him back to his housing unit under orders to continue his pain medication. On November 2, plaintiff complained to the nurse on duty that his pain medication was not working. Consequently, defendant increased plaintiff's prescribed dosage. Id. at 16. Plaintiff repeated such a complaint the following day. While defendant was notified of such complaint, he took no action at that time. However, when plaintiff complained of back pain again on November 4, defendant discontinued the Ultram and prescribed Tylenol with Codeine. Ibid. On November 8, plaintiff complained that the newly prescribed medication was not effective and requested a back brace and an extra mattress. In response, defendant ordered a back brace and an extra mattress for plaintiff the following day. Id. at 15. Plaintiff was subsequently seen by defendant on November 16 and 19 in response to similar complaints. Defendant discussed pain management with him, including the chronic back condition and the treatment needed for supportive care which would be ongoing with the symptoms of chronic back pain that he was experiencing. Alves Decl. ¶ 20. In addition, defendant increased plaintiff's dosage of Tylenol with Codeine and added Naprosyn as part of his treatment. On November 23, defendant was informed by a nurse that, despite this recent increase in pain medication, plaintiff was still complaining to medical staff about its ineffectiveness. Id. ¶ 18. Defendant determined that plaintiff should continue with his treatment in order to provide an effective evaluation of plaintiff's pain management. Id. ¶ 21. Plaintiff complained of back pain again on November 27 and 28 and requested to see a specialist. On December 2, plaintiff once again requested that he be seen by a specialist or defendant. Defendant subsequently examined plaintiff on December 10, at which time defendant discontinued the Tylenol with Codeine and prescribed Percocet. Id. ¶ 27. Plaintiff suffered a negative side-effect to the Percocet and was placed back on the Tylenol with Codeine. Subsequent to December 12, 2001, defendant was not aware, nor do the medical records reflect, that plaintiff made any further complaints regarding his back pain prior to his transfer to the Elmira Correctional Facility on January 25, 2002. Id. ¶¶ 29-30.
Although defendant ordered that plaintiff be relocated to the ground floor on October 18, 2002, plaintiff alleges that he was still being housed on the second floor at the time of his fall. While plaintiff blames this on defendant, defendant asserts that it was the responsibility of the security staff at Southport to execute his October 18 order when a cell became available on the ground floor. Alves Reply Decl. ¶ 11.
Defendant explains that, "I had increased [plaintiff's] dosage of Ultran [sic] the day before, therefore, I ordered that he continue on the increased medication for a longer period of time to enable myself and the plaintiff to determine its effects." Alves Dec. ¶ 15.
The plaintiff in fact claimed that he had a back brace upon his arrival at Southport on October 2, 2001, but that the brace was taken from him by medical staff and never returned. Pl.'s Reply ¶ 2. However, a review of plaintiff's draft intake sheet from his arrival at Southport does not indicate that he arrived with a back brace. See Alves Decl., Ex. A, at 22.
Plaintiff does not dispute such facts but contends that summary judgment should be denied because (1) defendant did not continue his physical therapy that he had been previously receiving at Wende, (2) he was initially denied a back brace by Southport's medical staff, (3) defendant ignored the fact that he was being housed on the second floor, (4) defendant did not take x-rays of his ankle and back after he fell down the stairs on October 22, 2001 and (5) defendant did not respond to his repeated requests to see him. See Pl.'s Reply ¶¶ 1-7.
FRCvP 56(c) states that summary judgment "shall be rendered forthwith 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." A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate, this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("conclusory allegations, conjecture and speculation * * * are insufficient to create a genuine issue of fact"). Furthermore, 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, 322-323 (1986).
The Court is also mindful of the fact that it must construe plaintiff's pleadings liberally. See McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) (holding that "when the plaintiff proceeds pro se, * * * a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations").
In order to maintain his Eighth Amendment claim, plaintiff "must, at a minimum, allege deliberate indifference to his serious medical needs." Wilson v. Seiter, 501 U.S. 294, 297 (1991). Whether plaintiff can show deliberate indifference is analyzed pursuant to the Due Process clause and involves both an objective and subjective element. Weyant v. Okst, 101 F.3d 845, 856 (2d Cir. 1996).
First, the alleged indifference must concern an objectively serious injury. Although not clearly defined in this circuit, an injury is sufficiently serious, for purposes of an Eighth Amendment analysis, if it is a "condition of urgency, one that may produce death, degeneration, or extreme pain." Morales v. Mackalm, 278 F.3d 126, 132 (2d Cir. 2002) (citation and quotation marks omitted). In addition, "a condition may be sufficiently serious where the failure to treat it could result in further significant injury or the unnecessary and wanton infliction of pain." Rodriguez v. Westchester County Jail Corr. Dep't, 2003 WL 1907963, at *4 (S.D.N.Y. 2003) (citations and punctuation marks omitted).
Second, plaintiff must satisfy the subjective prong of the deliberate indifference inquiry — to wit, he must show that the defendant acted with a sufficiently culpable state of mind. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). To establish such culpability, plaintiff must show more than mere negligence, but something less than conduct taken to cause intentional harm. Ibid. More specifically, plaintiff must show that defendant both knew of and disregarded an excessive risk to his health or safety and that defendant was both "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." Ibid. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). 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, 316 F.3d 178, 184 (2d Cir. 2003) (citing Estelle v. Gamble, 429 U.S. 97, 105-106 (1976)). "Thus, a complaint that a physician 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." Estelle, at 106.
Plaintiff has failed to raise a material issue of genuine fact with regard to his alleged claims and he has not put forth sufficient facts from which a reasonable trier of fact could find in his favor. Assuming that plaintiff's back pain is sufficiently serious to satisfy the objective prong of his eighth amendment claim, plaintiff cannot satisfy the subjective prong. The medical records reveal that defendant responded to each of plaintiff's complaints regarding his back pain in a timely fashion. Although plaintiff has alleged that defendant "deliberately ignored" his back problem by not ordering him to remain on Southport's ground floor, the record reveals that defendant had made such an order on October 18, 2001, which was just fourteen days after defendant's first evaluation of plaintiff. See Alves Decl., Ex. A, at 19, 23. Furthermore, plaintiff has failed to show that defendant deliberately disregarded any of his complaints of back pain or his requests for either a back brace or physical therapy. In any event, plaintiff's allegations fall well short of showing that defendant was both aware of and disregarded a "substantial risk of serious harm" to him. Plaintiff's allegations are simply insufficient to support a constitutional violation and, at best, they amount to nothing more than allegations of negligent medical care. However, it is well established that while such a claim may afford the plaintiff "recourse under state medical malpractice laws, [it] cannot form the basis for an Eighth Amendment claim." Muhammad v. Unger, 2002 WL 450010, at *2 (W.D.N.Y. 2002); see also Estelle, at 106 (holding that allegations "that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment"); Arroyo v. Schaefer, 548 F.2d 47, 49 (2d Cir. 1977) ("Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.").
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that the Clerk of this Court shall close this case.