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noting Local Rule 7.1's underlying purpose "is to assist the court in framing the issues and determining whether there exist any triable issues of fact that would preclude the entry of summary judgment" (citation and footnote omitted)
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Civil Action No. 9:10-CV-1430 (NAM/DEP)
08-22-2012
ANDRE YOUNGBLOOD, Plaintiff, v. SGT. GLASSER, Greene Correctional Facility, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ANDRE YOUNGBLOOD, pro se
03-A-1665
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
Attorney General of
the State of New York
OF COUNSEL: DEAN J. HIGGINS, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Plaintiff Andre Youngblood, a New York State prison inmate who is proceeding pro se and in forma pauperis ("IFP"), has commenced this action pursuant to 42 U.S.C. § 1983, alleging deprivation of his civil rights. In his complaint Youngblood contends that, in violation of his rights under the Eighth Amendment, the two named defendants were deliberately indifferent to his serious medical needs by their refusal to allow him to participate in emergency sick call to address his complaints of bleeding hemorrhoids. As relief, plaintiff's complaint seeks compensatory damages in the amount of $3,000,000.
Currently pending before the court is a motion for summary judgment brought by the defendants, seeking dismissal of plaintiff's claims. In their motion defendants argue that plaintiff has failed to establish a violation of the Eighth Amendment, and additionally that his claims are procedurally barred based upon his failure to exhaust available administrative remedies before commencing suit. Having carefully reviewed defendants' motion and plaintiff's opposition, I conclude that genuine issues of fact preclude the dismissal of plaintiff's complaint for failure to exhaust administrative remedies before filing suit, but that defendants are entitled to summary judgment dismissing plaintiff's claims on the merits. I. BACKGROUND
In light of the procedural posture of the case the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in favor of the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate being held in the custody of the New York Department of Corrections and Community Supervision ("DOCCS"); at the times relevant to his claims in this action, Youngblood was designated to the Greene Correctional Facility ("Greene"), located in Coxsackie, New York. See generally Complaint (Dkt. No. 1).
On November 1, 2010, plaintiff was seen at a regular sick call in the facility's special housing unit ("SHU") by defendant Susan Derr, a registered nurse then employed by the DOCCS at Greene. Derr Decl. (Dkt. No. 34-7) ¶¶ 2, 7. During that visit plaintiff complained of hemorrhoids, but declined to describe his symptoms to Nurse Derr, and refused any treatment. Id. at ¶ 10; see also Plaintiff's Ambulatory Health Record ("AHR") (Dkt. No. 35) p. 26. Plaintiff was advised at that time that an appointment with a facility physician could not be scheduled until his symptoms were disclosed to the nurse. Derr Decl. (Dkt. No. 34-7) ¶ 11.
Plaintiff was seen by another nurse on November 2, 2010, complaining of intermittent rectal bleeding. Derr Decl. (Dkt. No. 34-7) ¶ 12; Plaintiff's AHR (Dkt. No. 35) p. 25. On that occasion Youngblood was provided with over-the-counter medication for his condition. Id.
Plaintiff was again seen by Nurse Derr on November 4, 2010, during sick call. Derr Decl. (Dkt. No. 34-7) ¶ 13; Plaintiff's AHR (Dkt. No. 35) p. 25. After renewing his complaints of rectal bleeding from internal hemorrhoids, plaintiff was provided with an over-the-counter medication for the condition. Derr Decl. (Dkt. No. 34-7) ¶ 14; Plaintiff's AHR (Dkt. No. 35) p. 25. At that time plaintiff did not appear to be in any distress, and Nurse Derr concluded that no emergent situation existed requiring an immediate appointment with a prison physician. Derr Decl. (Dkt. No. 34-7) ¶ 16. Nurse Derr thereafter scheduled the plaintiff to see a prison physician on November 11, 2010. Id. at ¶ 15; see also Plaintiff's AHR (Dkt. No. 35) p. 25.
Plaintiff was again seen by defendant Derr on November 5, 2010, an encounter upon which Youngblood's complaint is centered. Complaint (Dkt. No. 1) § 6; Derr Decl. (Dkt. No. 34-7) ¶ 17. On that occasion he first saw Nurse Derr during regular morning sick call, but expressed no specific medical complaints concerning his hemorrhoids at that time. Derr Decl. (Dkt. No. 34-7) ¶ 17; Plaintiff's AHR (Dkt. No. 35) p. 24. Later in the day, however, Youngblood requested emergency sick call, claiming that his hemorrhoids had flared up, and he was bleeding from his rectum, exhibiting for Nurse Derr toilet tissue containing blood. Complaint (Dkt. No. 1) § 6; Derr Decl. (Dkt. No. 34-7) ¶ 18. Nurse Derr examined plaintiff's boxer shorts, which did not show any signs of blood, either old or new, and performed a visual examination of the affected area of the plaintiff's body, which failed to reveal any sign of active bleeding. Derr Decl. (Dkt. No. 34-7) ¶¶ 19-20; Higgins Decl. (Dkt. No. 34-2) Exh. A ("Plaintiff's Dep. Tr.") pp. 18-19. Plaintiff did not claim to be in pain from the hemorrhoids during the time of Nurse Derr's examination. Derr Decl. (Dkt. No. 34-7) ¶ 21.
At this point the parties' versions of the relevant events diverge somewhat. Plaintiff alleges that following the examination defendant Derr told Youngblood she had to "talk to security for an escort", and for that purpose went to speak with Corrections Sergeant Glasser. Complaint (Dkt. No. 1) § 6. Plaintiff claims he "could see everything" and witnessed Derr conversing with Glasser, and responding to Glasser's question of whether it "was a life or death situation" with a "no". Plaintiff's Dep. Tr. at p. 22. Glasser then allegedly denied plaintiff's request to be seen during emergency sick call. Id.
Defendants assert that plaintiff's request to see a doctor was immediately denied, based upon Nurse Derr's assessment that his condition was not life threatening or serious enough to require immediate attention. Derr Decl. (Dkt. No. 34-7) ¶¶ 22-23. Corrections Sergeant William Glasser has no recollection of the incident and specifically states that he was never informed of the existence of a serious medical condition involving the plaintiff, and that if he had been it would have been reported promptly to appropriate medical staff personnel. Glasser Decl. (Dkt. No. 34-8) ¶¶ 3, 7. Nurse Derr also notes that if an inmate patient presents with a life threatening medical emergency a doctor is immediately notified. Derr Decl. (Dkt. No. 34-7) ¶ 29. At that point it is the doctor's decision, and not that of a nurse, as to whether the inmate should be sent to an emergency room for treatment. Id. at ¶ 30. Only after a doctor has made the decision that the inmate should be transported would security then be contacted and advised of the doctor's orders. Id. at ¶ 31.
Youngblood's scheduled doctor's appointment was moved up one day, and he was seen on November 10, 2010 by Dr. Smith, a prison physician. Derr Decl. (Dkt. No. 34-7) ¶ 25; Plaintiff's AHR (Dkt. No. 35) p. 23. During that visit Dr. Smith diagnosed the plaintiff as suffering from internal and external hemorrhoids, with no bleeding. Derr Decl. (Dkt. No. 34-7) ¶ 25; Plaintiff's AHR (Dkt. No. 35) at p. 23. Plaintiff's records reveal no further complaints of hemorrhoids noted through May 2011. Derr Decl. (Dkt. No. 34-7) ¶ 26; see also Plaintiff's AHR (Dkt. No. 35) p. 1-22.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on November 26, 2010, and was thereafter granted IFP status. Dkt. Nos. 1, 4. Plaintiff's complaint names Nurse Derr and Sergeant Glasser as defendants, and asserts a claim of deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. See generally Complaint (Dkt. No. 1).
On January 9, 2012, defendants moved for the entry of summary judgment dismissing plaintiff's claims, arguing that he cannot establish a violation of his rights under the Eighth Amendment, and further that he failed to satisfy his statutory obligation to exhaust available administrative remedies before commencing suit. Dkt. No. 34. Defendants' motion also challenges plaintiff's request for compensatory damages and the personal involvement of defendant Glasser in the constitutional violations alleged. Id. Plaintiff has since responded in opposition to that motion in papers filed on February 20, 2012. Dkt. No. 43. Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4, 106 S. Ct. at 2511 n.4; Security Ins., 391 F.3d at 83. In the event this initial burden is met the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324, 106 S. Ct. at 2553; Anderson, 477 U.S. at 250, 106 S. Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S. Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's Failure to Oppose Defendants' Motion
Before turning to the merits of plaintiff's claims, a threshold issue to be addressed is the legal significance, if any, of his failure to include with his opposition papers a response to defendants' Local Rule 7.1(a)(3) Statement. That failure is not without potential consequences.
The court's rules require that a motion seeking the entry of summary judgment must be accompanied by a statement of material facts with respect to which, the moving party contends, there exists no genuine issue. See N.D.N.Y.L.R. 7.1(a)(3). The purpose underlying this rule, which is typical of many local court rules governing summary judgment motion practice, is to assist the court in framing the issues and determining whether there exist any triable issues of fact that would preclude the entry of summary judgment. Anderson v. Dolgencorp of New York, Nos. 1:09-CV-360, 1:09-CV-363, 2011 WL 1770301, at * 1 n. 2 (N.D.N.Y. May 9, 2001) (Sharpe, J.). In order to fulfill this salutary purpose, it is essential for the court to have the benefit of both the moving party's statement and an opposition statement addressing the facts set forth in the initial statement.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In this instance the defendants have complied with Local Rule 7.1(a)(3), providing a statement setting forth forty-three facts as to which, they contend, there is no genuine triable issue. Plaintiff had failed to respond to that statement. By its express terms, the governing rule provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y.L.R. 7.1(a)(3). Ordinarily, I would recommend that this portion of the rule be invoked based upon plaintiff's failure to respond to defendants' Local Rule 7.1(a)(3) Statement. I note, however, that the defendants' motion in this case was not accompanied by a notice warning the plaintiff of the consequences of failing to respond to Defendants' Local Rule 7.1(a)(3) Statement, as required by this court's local rules in cases involving pro se litigants. See N.D.N.Y.L.R. 56.2. Based upon this failure, I recommend that the court not deem the facts set forth in defendants' Local Rule 7.1(a)(3) to have been admitted by Youngblood, despite his failure to respond to that statement.
C. Failure to Exhaust Administrative Remedies
In support of their motion for summary judgment, defendants argue that plaintiff's complaint must be dismissed for failure to exhaust administrative remedies. The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 2382 (2006); Hargrove v. Riley, No. CV-04-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 992 (2002) (citation omitted). In the event a defendant named in such an action establishes that the inmate plaintiff failed properly to exhaust available remedies prior to commencing the action, his or her complaint is subject to dismissal. See Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 94-95, 126 S. Ct. at 2387-88 (holding that the PLRA requires "proper exhaustion" of available remedies). "Proper exhaustion" requires a plaintiff to procedurally exhaust his or her claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95, 126 S. Ct. at 2388; see also Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (citing Woodford).
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "in a substantive sense", an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his or her available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted).
New York prison inmates are subject to an Inmate Grievance Program ("IGP") established by the DOCS and recognized as an "available" remedy for purposes of the PLRA. See Mingues v. Nelson, No. 96 CV 5396, 2004 WL 324898, at *4 (S.D.N.Y. Feb. 20, 2004) (citing Mojias v. Johnson, 351 F.3d 606 (2d Cir. 2003) and Snider v. Melindez, 199 F.3d 108, 112-13 (2d Cir.1999)). The IGP consists of a three-step review process. First, a written grievance is submitted to the Inmate Grievance Review Committee ("IGRC") within twenty-one days of the incident. 7 N.Y.C.R.R. § 701.5(a). The IGRC, which is comprised of inmates and facility employees, then issues a determination regarding the grievance. Id. at §§ 701.4(b), 701.5(b). If an appeal is filed, the superintendent of the facility next reviews the IGRC's determination and issues a decision. Id. at § 701.5(c). The third level of the process affords the inmate the right to appeal the superintendent's ruling to the Central Office Review Committee ("CORC"), which makes the final administrative decision. Id. at § 701.5(d). Ordinarily, absent the finding of a basis to excuse non-compliance with this prescribed process, only upon exhaustion of these three levels of review may a prisoner seek relief pursuant to section 1983 in a federal court. Reyes v. Punzal, 206 F. Supp. 2d 431, 432 (W.D.N.Y. 2002) (citing, inter alia, Sulton v. Greiner, No. 00 Civ. 0727, 2000 WL 1809284, at *3 (S.D.N.Y. Dec. 11, 2000)).
The IGP supervisor may waive the grievance timeliness requirement due to "mitigating circumstances." 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a)-(b).
Despite an inmate's entitlement in most instances to file and pursue a grievance in accordance with the IGP, there are circumstances under which the grievance procedure nonetheless is deemed not to have been available to an inmate plaintiff. See Hemphill, 380 F.3d at 687-88. Thus, for example, "[e]xhaustion may be considered unavailable in situations where plaintiff is unaware of the grievance procedures or did not understand it, . . . or where defendants' behavior prevents plaintiff from seeking administrative remedies." Hargrove, 2007 WL 389003, at *8 (citations omitted) (noting, for example, that a defendant's failure to advance plaintiff's grievances or the issuance of threats against an inmate to deter the filing of a grievance may effectively render the administrative process unavailable). When testing the availability of administrative remedies in the face of claims that undue influence from prison workers has caused a plaintiff inmate to forego the formal grievance process, courts employ an objective test, examining whether "a similarly situated individual of ordinary firmness [would] have deemed them available." Id. at 688 (quotations and citations omitted); see Hargrove, 2007 WL 389003, at *8.
In his complaint, which is given under penalty of perjury and is thus the functional equivalent of an affidavit, see Bennett v. Goord, 343 F.3d 133, 139 (2d Cir. 2003), plaintiff alleges that he filed a grievance concerning the alleged medical indifference, and that after it was initially denied he appealed the matter to the prison superintendent, and then on to the CORC. See Complaint (Dkt. No. 1) § 4. Similarly, in his deposition testimony, plaintiff claims that he filed a grievance regarding defendants Derr and Glasser based upon their denial of his request for emergency sick call, and that he pursued the grievance through to the CORC. Plaintiff's Dep. Tr. at p. 25.
It is true that plaintiff's deposition testimony is somewhat equivocal regarding his appeal to the CORC. At one point during his deposition plaintiff appears to have confirmed the statement contained within his complaint, to the effect that his appeal to the CORC was unsuccessful. See Plaintiff's Dep. Tr. at p. 25. Later in the deposition, however, he seemingly retreats from that position, testifying that after appealing to the CORC he received no response from that body. Id. at p. 26. This potential inconsistency, particularly in the absence of any proof submitted by the defendants to the effect that no appeal to the CORC was taken, is insufficient to establish, as a matter of law, that plaintiff failed to satisfy his exhaustion requirement under the PLRA. I therefore recommend that the portion of defendants' motion seeking dismissal of plaintiff's claims on the procedural basis of failure to exhaust be denied.
Although plaintiff has not provided a copy of a grievance related to the November 5, 2010 claim, he has provided a copy of a "Formal Complaint" submitted by him to the Office of the DOCCS Inspector General on November 7, 2010. See Dkt. No. 30 at pp. 9-12. In it, plaintiff describes Nurse Derr's examination and treatment as well as Sergeant Glasser's alleged involvement, and claims both were deliberately indifferent to his serious medical needs and guilty of Eighth Amendment violations. Id.
D. Plaintiff's Eighth Amendment Claim
Plaintiff claims that by denying him emergency sick call on November 5, 2010, defendants were deliberately indifferent to his serious medical needs. Claims that prison officials have intentionally disregarded an inmate's medical needs fall under the umbrella of protection from the imposition of cruel and unusual punishment afforded by the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S. Ct. 285, 290, 291 (1976). The Eighth Amendment prohibits punishment that involves the "unnecessary and wanton infliction of pain" and is incompatible with "the evolving standards of decency that mark the progress of a maturing society." Id.; see also Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement. Farmer v. Brennan, 511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S. Ct. 2392, 2400 (1981)). To satisfy their obligations under the Eighth Amendment, prison officials must "ensure that inmates receive adequate food, shelter, and medical care, and must take reasonable measures to guarantee the safety of inmates." Farmer, 511 U.S. at 832, 114 S. Ct. at 1976 (quoting Hudson v. Palmer, 468 U.S. 517, 526-27, 104 S. Ct. 3194, 3200 (1984)) (internal quotations omitted).
A claim alleging that prison officials have violated the Eighth Amendment by inflicting cruel and unusual punishment must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F. Supp. 2d 344, 356 (E.D.N.Y. 2010). Addressing the objective element, to prevail a plaintiff must establish a violation sufficiently serious by objective terms, "in the sense that a condition of urgency, one that may produce death, degeneration, or extreme pain exists." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). With respect to the subjective element, a plaintiff must also demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). Claims of medical indifference are subject to analysis utilizing this Eighth Amendment paradigm. See Salahuddin v. Goord, 467 F.3d 263, 279-81 (2d Cir. 2006).
1. Objective Requirement
Analysis of the objective, "sufficiently serious," requirement of an Eighth Amendment medical indifference claim begins with an inquiry into "whether the prisoner was actually deprived of adequate medical care . . .", and centers upon whether prison officials acted reasonably in treating the plaintiff. Salahuddin, 467 F.3d at 279. A second prong of the objective test addresses whether the inadequacy in medical treatment was sufficiently serious. Id. at 280. If there is a complete failure to provide treatment, the court must look to the seriousness of the inmate's medical condition. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). If, on the other hand, the complaint alleges that treatment was provided but was inadequate, the seriousness inquiry is more narrowly confined to that alleged inadequacy, rather than focusing upon the seriousness of the prisoner's medical condition. Salahuddin, 467 F.3d at 280. "For example, if the prisoner is receiving on-going treatment and the offending conduct is an unreasonable delay or interruption in treatment. . . [the focus of] the inquiry is on the challenged delay or interruption, rather than the prisoner's underlying medical condition alone." Id. (quoting Smith, 316 F.3d at 185) (internal quotations omitted). In other words, at the heart of the relevant inquiry is the seriousness of the medical need, and whether from an objective viewpoint the temporary deprivation was sufficiently harmful to establish a constitutional violation. Smith, 316 F.3d at 186. Of course, "when medical treatment is denied for a prolonged period of time, or when a degenerative medical condition is neglected over sufficient time, the alleged deprivation of care can no longer be characterized as 'delayed treatment', but may properly be viewed as a 'refusal' to provide medical treatment." Id. at 186, n.10 (quoting Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000)).
Since medical conditions vary in severity, a decision to leave a condition untreated may or may not raise constitutional concerns, depending on the circumstances. Harrison, 219 F.3d at 136-37 (quoting, inter alia, Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). Relevant factors informing this determination include whether the plaintiff suffers from an injury or condition that a "'reasonable doctor or patient would find important and worthy of comment or treatment'", a condition that "'significantly affects'" a prisoner's daily activities, or "'the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (citation omitted); Lafave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *3 (N.D.N.Y. Apr. 3, 2002) (Sharpe, M.J.) (citation omitted).
In this instance the plaintiff complained of hemorrhoids over a period of only a few days, during which he claims to have experienced rectal bleeding associated with a hemorrhoidal condition for which he had received treatment previously. Plaintiff maintains that his constitutional rights were violated as a result of a five-day delay in arranging for a physician to examine his hemorrhoids. Proof of such complaints and the modest delay at issue is not sufficient to establish an Eighth Amendment claim. Generally speaking, hemorrhoids do not constitute a serious medical condition, the delay in treatment of which would amount to a constitutional violation. Lowman v. Perlman, No. 9:06-CV-0422, 2008 WL 4104554, at *5 (N.D.N.Y. Aug. 29, 2008) (Kahn, D.J. and Treece, M.J.); Cabassa v. Gummerson, No. 01-CV-1039, 2006 WL 1559215, at *9-10 (N.D.N.Y. Mar. 30, 2006) (Lowe, M.J.), report and recommendation adopted, 2006 WL 1555656 (N.D.N.Y. Jun. 1, 2006) (Hurd, D.J.); Kendall v. Kittles, No. C0 Civ. 628(GEL), 2004 WL 1752818, at *6 (S.D.N.Y. Aug. 4, 2004) ("Hemorrhoids, albeit, uncomfortable, are a minor issue, far removed from the category of medical conditions that have been deemed 'sufficiently serious' by other courts."); but see Muhammad v. New York Dep't of Corrs., No. 10 Civ. 1707, 2011 WL 797506 (S.D.N.Y. Feb. 3, 2011) (where plaintiff alleged that his hemorrhoids caused him to experience "unbearable and excruciating pain, left him chronically weakened, and has interfered with daily activities by making it practically impossible for him to use the bathroom", plaintiff "sufficiently pled that his medical condition constituted a serious medical need" although "at some later stage in the litigation" it may become clear that the claims are not adequately supported), report and recommendation adopted, 2011 WL 797672 (S.D.N.Y. Mar. 3, 2011).
I note, moreover that it cannot seriously be argued that plaintiff did not receive medical attention for his hemorrhoids. Compare Black v. Fischer, No. 9:08-CV-0232, 2010 WL 2985081, at *11 (N.D.N.Y. July 1, 2010) (Peebles, M.J.) (plaintiff was visited by a nurse, provided with ointment, and "reassured by a physician that, despite some bleeding, his condition was not serious or life threatening"). Plaintiff complained of the condition beginning in early November 2010. See generally Plaintiff's AHR (Dkt. No. 35). Each time he complained he was examined by a nurse, provided with stool softeners and ointment, and scheduled to meet with a physician a few days later. See id. When plaintiff complained of some bleeding he was examined by Nurse Derr, who did not observe any old or new blood on his boxer shorts or in his buttock area. It does not appear that plaintiff claimed to have been in pain as a result of hemorrhoids - a fact which distinguishes this case from such cases as Muhammad. Moreover, plaintiff's medical records reflect that after being examined by a prison physician on November 10, 2010 for the condition, Youngblood did not register any further complaints regarding his hemorrhoids.
In sum, the record now before the court clearly establishes that prison officials were attentive, to the plaintiff's complaints, and acted reasonably in treating plaintiff's hemorrhoids. Plaintiff's apparent dissatisfaction or disagreement with the treatment that he received for his hemorrhoids is patently insufficient to establish an Eighth Amendment violation. Tafari v. McCarthy, 714 F. Supp. 2d 317, 366 (N.D.N.Y. 2010) (citation omitted); McQueen v. Cnty. of Albany, No. 9:08-CV-799, 2010 WL 338081, at *12 (N.D.N.Y. Jan. 28, 2010) (Hurd, J. and Peebles, M.J.) (citations omitted).
2. Subjective Element
The second, subjective, requirement for establishing an Eighth Amendment medical indifference claim mandates a showing of a sufficiently culpable state of mind, or deliberate indifference, on the part of one or more of the defendants to a plaintiff's serious medical needs. Salahuddin, 467 F.3d at 280 (citing Wilson v. Seiter, 501 U.S. 294, 300, 111 S. Ct. 2321, 2325 (1991)). Deliberate indifference, in a constitutional sense, exists if an 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 [or she] must also draw the inference." Farmer, 511 U.S. at 837, 114 S. Ct. at 1979; Leach v. Dufrain, 103 F. Supp. 2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (citing Farmer); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. and Homer, M.J.) (same). Deliberate indifference is a mental state equivalent to subjective recklessness as the term is used in criminal law. Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40, 114 S. Ct. 1970).
For the same reasons that plaintiff cannot prove the objective element of a medical indifference claim, he fails with respect to the subjective prong. Plaintiff's hemorrhoids did not expose him to substantial risk of harm if left untreated, and the condition, in fact, was not ignored by prison personnel, who instead considered his complaints and administered what they regarded to be appropriate treatment. Simply stated, the record is devoid of any evidence suggesting that either of the defendants was deliberately indifferent to plaintiff's medical needs. See Black, 9:08-CV-0232, 2010 WL 2985081, at *11.
IV. SUMMARY AND CONCLUSION
Addressing first defendants' exhaustion argument, I conclude that defendants have failed to establish, without contradiction, that plaintiff did not satisfy his exhaustion requirements obligations under the PLRA before commencing this action, and therefore recommend denial of the portion of defendants' motion seeking dismissal of plaintiff's complaint on this procedural basis. Turning to the merits, I find that despite plaintiff's claim that he was subjected to cruel and unusual punishment because defendants Nurse Derr and Sergeant Glasser denied him access to emergency sick call when he complained of hemorrhoids, based upon the record before the court no reasonable factfinder could conclude that plaintiff can meet both the subjective and objective prongs of the controlling Eighth Amendment test. Accordingly, I recommend that defendants' motion for summary judgment dismissing plaintiff's Eighth Amendment claims on the merits be granted.
Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment dismissing plaintiff's complaint (Dkt. No. 34) be GRANTED, and that plaintiff's complaint be DISMISSED in its entirety, on the merits.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
__________________
David E. Peebles
U.S. Magistrate Judge
Dated: August 22, 2012
Syracuse, NY