Colon v. PlesciaColon v. Plescia
- Reporters:
- , ,
- Before:
- David E. Peebles
Plaintiff Peter Colon, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to
Currently before the court is a motion by defendants for summary judgment dismissing plaintiff‘s complaint. In their motion, defendants argue that the record fails to disclose participation in the events giving rise to his claims on the part of James Plescia, the superintendent of the prison facility at which the alleged incidents occurred, or Ms. Griffin, a nurse administrator at that facility. Defendants argue further that the record fails to establish a basis upon which a reasonable fact finder could conclude that any of the defendants were deliberately indifferent to
I. BACKGROUND1
Plaintiff is a prison inmate entrusted to the care and custody of the New York State Department of Correctional Services (“DOCS“); at the times relevant to his claims in this action, Colon was designated to the Washington Correctional Facility (“Washington“), located in Comstock, New York. See generally Second Amended Complaint (Dkt. No. 8). The events giving rise to plaintiff‘s claims are well chronicled, including in his ambulatory health records (“AHR“), and occurred over a five-day period during January of 2006.2 See Id.
The circumstances giving rise to plaintiff‘s claims were set in motion on January 13, 2006, when he had a tooth filled at the dental clinic at
At 8:30 on the following evening, plaintiff went to emergency sick call at the facility clinic.3 Second Amended Complaint (Dkt. No. 8) at p. 2; see also AHR at p. 9. On that occasion Colon was seen by defendant A. Mosher, a facility nurse, complaining of pain in his jaw, ear and throat, and on the left side of his face. Second Amended Complaint (Dkt. No. 8) at p. 2; see also Mosher Decl. (Dkt. No. 37-5) ¶ 7. Since plaintiff had already been seen by dental personnel the day before, had been provided with pain medication, and was scheduled to be seen by a doctor in the near future, Nurse Mosher ordered that plaintiff be returned to his housing unit. Mosher Decl. (Dkt. No. 37-5) ¶¶ 8-12.
Plaintiff returned to the facility clinic on Monday, January 16, 2006, again to attend emergency sick call. Second Amended Complaint (Dkt. No. 8) at p. 3. On that occasion Colon was seen by Darlene Stipano, a
The following day plaintiff was seen by Dr. Neil Trachtman, a physician and the Health Services Director at Washington. Second Amended Complaint (Dkt. No. 8) at p. 4; see also Trachtman Decl. (Dkt. No. 37-3) ¶ 15. During that examination, plaintiff complained of a sore throat and difficulty in swallowing. Trachtman Decl. (Dkt. No. 37-3) ¶ 16; see also AHR at p. 8. Dr. Trachtman‘s initial examination revealed no
Plaintiff returned to the facility clinic on January 18, 2006, at which time he initially saw Nurse Stipano, continuing to complain of pain but refusing any further pain medication. Stipano Decl. (Dkt. No. 37-4) ¶ 19; see also AHR at p. 7. Plaintiff was again seen on that date by Dr.
Plaintiff remained at the AMCH for testing regarding other, unrelated conditions until January 20, 2006, with no further complications related to his abscess. Id. ¶¶ 33-35. Upon his return to Washington, Colon was seen by Dr. Trachtman on January 23, 2006; at that time the physician noted that the plaintiff was continuing his prescribed medications, and had no further complaints. Id. ¶ 37; see also AHR at p. 4.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on July 12, 2007, and has since
Following the joinder of issue and completion of pretrial discovery, defendants moved for summary judgment dismissing plaintiff‘s complaint. In their motion, defendants argue that 1) plaintiff‘s claims against defendants Plescia and Griffin should be dismissed, based upon a lack of their personal involvement in the conduct giving rise to the alleged constitutional deprivation; 2) no reasonable fact finder could conclude that
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, summary judgment is warranted 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.”
A party seeking summary judgment bears the 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.
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 Respond To Defendants’ Local Rule 7.1(a)(3) Statement
In support of their motion, defendants have properly submitted a statement pursuant to Northern District of New York Local Rule 7.1(a)(3) setting forth in a concise fashion material facts which, they contend, are not genuinely disputed. Plaintiff‘s opposition to the pending summary judgment motion fails to include a responding 7.1(a)(3) statement or to
The consequences of this failure are potentially significant. By its terms, Local Rule 7.1(a)(3) 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.” See N.D.N.Y.L.R. 7.1(a)(3). Other judges from this district have found it appropriate to invoke Rule 7.1(a)(3) and its predecessor, Rule 7.1(f), deeming facts included within a Local Rule 7.1(a)(3) statement to have been admitted based upon the failure of opposing party‘s to properly respond. See, e.g. Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (Aug. 22, 2000) (McCurn, S.J.) (listing cases); see also Monahan v. New York City Dep‘t. Of Corr., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district courts’ discretion to adopt local rules like 7.1(a)(3)).6 Although it is unlikely to be outcome determinative in this instance, I recommend that the court deem the facts set forth in defendants’ Local Rule 7.1(a)(3) statement to have been admitted by the plaintiff by virtue of his failure to properly respond to that
C. Personal Involvement
A fundamental, bedrock requirement for establishing liability of a defendant under section 1983 is that the party was personally involved in some way in the alleged deprivation of constitutional rights. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 920 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must therefore show some tangible connection between the constitutional violation alleged and that particular defendant. See Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
Very often, as appears to be the case with regard to Superintendent Plescia and Nurse Administrator Griffin, higher ranking prison officials are named by inmates as defendants based purely upon their roles as supervisors and the oversight responsibilities which accompany their positions. It is well-established, however, that a supervisor cannot be liable for damages under section 1983 solely by virtue of being a supervisor; there is no respondeat superior liability under section 1983.
While respondeat superior will not suffice to establish liability, culpability on the part of a supervisory official for a civil rights violation can be established in one of several ways, including when that individual 1) has directly participated in the challenged conduct; 2) after learning of the violation through a report or appeal, has failed to remedy the wrong; 3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) was grossly negligent in managing the subordinates who caused the unlawful event; or 5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev‘d on other grounds,sub nom. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2009); see also Richardson, 347 F.3d at 435; Wright v. Smith, 21 F.3d at 501; Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986).
Conspicuously absent from plaintiff‘s second amended complaint are any allegations regarding the involvement of defendants Plescia and Griffin in the events giving rise to plaintiff‘s claims. During his deposition, plaintiff acknowledged that he was never examined by defendant Griffin. Defendants’ Exhibits (Dkt. No. 37-9) Exh. 4 at p. 10. Nowhere in plaintiff‘s second amended complaint or his responsive papers, moreover, is there any indication of a proper basis upon defendant Superintendent Plescia‘s liability could be determined. Indeed, plaintiff testified at his deposition that he named Plescia because he was in charge of the prison facility and admitted that he had no personal involvement in plaintiff‘s medical care. Id. at p. 49. Under these circumstances, I recommend dismissal of plaintiff‘s claims against Plescia and Griffin based upon lack of personal involvement.
D. Deliberate Medical Indifference
In their motion, defendants challenge plaintiff‘s ability to establish
The Eighth Amendment, which proscribes cruel and unusual punishment, encompasses punishments that involve the “unnecessary and wanton infliction of pain” and are incompatible with “the evolving standards of decency that mark the progress of a maturing society.” Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S. Ct. 285, 290, 291 (1976); see also Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1076, 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; thus, the conditions of an inmate‘s confinement are subject to Eighth Amendment scrutiny. 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)). A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement–the conditions must be “sufficiently serious” from an objective point of view, and plaintiff must demonstrate that prison officials acted subjectively with “deliberate indifference“. See Leach v. Dufrain, 103 F. Supp.2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (citing
1. Serious Medical Need
In order to state a medical indifference claim under the Eighth Amendment, a plaintiff must first allege a deprivation involving a medical need which is, in objective terms, “‘sufficiently serious‘“. Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson, 501 U.S. at 298, 111 S. Ct. at 2324), cert. denied sub nom., Foote v. Hathaway, 513 U.S. 1154, 115 S. Ct. 1108 (1995). A medical need is serious for constitutional purposes if it presents “‘a condition of urgency’ that may result in ‘degeneration’ or ‘extreme pain‘.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citations omitted). A serious medical need can also exist where “‘failure to treat a prisoner‘s condition could result in further significant injury or the unnecessary and wanton infliction of pain‘“; since medical conditions vary in severity, a decision to leave a condition
For the purposes of their motion, defendants do not contest plaintiff‘s assertion that his condition was sufficiently serious to merit Eighth Amendment protection. Indeed, plaintiff‘s complaints of extreme pain in his ear, jaw, neck and throat, the inability to eat, swelling and redness, and repeated requests for sick call, leading ultimately to his admission into AMCH for treatment, appear to satisfy this prong of the medical indifference test, at least at this stage in the proceedings. See Brown v. Bascomb, No. 05-CV-1466, 2008 WL 4283367, at *5 (N.D.N.Y. Sept. 16, 2008) (Mordue, C.J.) (holding that “excruciating pain, the
2. Deliberate Indifference
In addition to establishing the existence of a serious medical condition, to prevail on his Eighth Amendment claim plaintiff must also establish indifference to that condition on the part of one or more of the defendants. Leach v. Dufrain, 103 F. Supp. 2d at 546. Deliberate indifference 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 must also draw the inference.” Farmer, 511 U.S. at 837, 114 S. Ct. at 1978; Leach, 103 F. Supp.2d at 546 (citing Farmer, 511 U.S. at 837, 114 S. Ct. at 1970); Waldo, 1998 WL 713809, at *2 (citing Farmer, 511 U.S. at 837, 114 S. Ct. at 1970).
It is well established that mere disagreement with a prescribed course of treatment, or even a claim that negligence or medical malpractice has occurred, does not alone provide a basis to find a violation of the Eighth Amendment. Estelle, 429 U.S. at 105-06, 97 S. Ct. at 201-02; Chance, 143 F.3d at 703; Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y. 1992), aff‘d 970 F.2d 896 (2d Cir. 1992), cert. denied, 506 U.S. 1040, 113 S. Ct. 828 (1992). Diagnostic techniques and treatments are “classic example[s] of matters for medical judgment“; accordingly, prison medical staff is vested with broad discretion to determine what method of diagnosis and/or treatment to provide its patients. Estelle, 429 U.S. at 107, 97 S. Ct. at 293; Chance, 143 F.3d at 703; Rosales v. Coughlin, 10 F. Supp.2d 261, 264 (W.D.N.Y. 1998).
Where a plaintiff‘s claim is based on a delay in medical treatment, the plaintiff must show that substantial harm resulted from the delay itself. Bennett, No. 03-CV-6393, 2006 WL 987817, at *8 (citing Evans v. Manos, 336 F. Supp. 2d 255, 262 (W.D.N.Y. 2004)). As the court in Bennett noted,
[a]lthough a delay in medical care can demonstrate deliberate indifference to a prisoner‘s medical needs, a prisoner‘s Eighth Amendment rights are violated only where a delay reflects deliberate indifference to a serious risk of health or safety, to a life-threatening or fast-degenerating condition or to some other condition of extreme pain that might be alleviated through reasonably prompt treatment.
Id. (internal quotation marks omitted). In that regard, the Second Circuit has held that “(1) outright refusal of any treatment for a degenerative condition that tends to cause acute infection and pain if left untreated and (2) imposition of a seriously unreasonable condition on such treatment” both constitute deliberate indifference on the part of prison officials. Harrison, 219 F.3d at 138 (emphasis in original).
a. Nurse Mosher
Defendant Mosher‘s involvement in plaintiff‘s relevant care and treatment was extremely limited. Plaintiff was seen by Nurse Mosher on January 14, 2006 at emergency sick call. Based upon her review of available records Nurse Mosher was aware that plaintiff was seen by a dentist the previous day, had a follow-up appointment scheduled, and had been given pain medications for his condition. With that knowledge, and in light of the protocol at Washington that emergency sick calls are reserved for life threatening illnesses or conditions, defendant Mosher
Based upon these circumstances, no reasonable fact finder could conclude that defendant Mosher was deliberately indifferent to plaintiff‘s serious medical needs. The absence of available doctors after hours and the lack of appointments for non-life threatening conditions represent legitimate reasons for not providing treatment to an inmate. See Croft v. Hampton, No. 06-3838, 2008 WL 2744332, at *4-5 (8th Cir. July 15, 2008) (holding that delaying treatment of prisoner‘s injury over the weekend to the next business day was not deliberate indifference where prisoner “submitted no medical evidence showing and negative effect of the delay“); see also Harrison, 219 F.3d at 138. There is no evidence in the record indicating that plaintiff‘s condition was exacerbated by the delay. See Bennett, 2006 WL 987817, at *8; Evans, 336 F. Supp. 2d at 262. Because there is no evidence in the record tending to prove that Nurse Mosher believed that plaintiff‘s condition presented a serious risk of harm if not treated and that she disregarded such risk, and because even her negligent failure to discover this condition would not be actionable under section 1983, Estelle, 429 U. S. at 105-106 and n. 14, 97 S. Ct. at 291-292, I recommend that defendants’ motion as to Nurse Mosher be
b. Nurse Stipano
Nurse Stipano‘s involvement in plaintiff‘s care and treatment was only slightly less modest than that of Nurse Mosher. Plaintiff was seen by Nurse Stipano on or about January 16, 2006 during emergency sick call.7 According to Stipano, and plaintiff does not dispute this fact, Colon left the clinic on that date before Nurse Stipano‘s examination could be completed and acknowledges that Stipano did him a favor by moving his January 23, 2006 appointment with a prison physician up to the following day. See Plaintiff‘s Memorandum (Dkt. No. 40) at p. 3.
Under these circumstances, no reasonable fact finder could conclude that defendant Stipano was deliberately indifferent to plaintiff‘s serious medical needs, especially considering that plaintiff could not be seen on January 16, 2006 by a physician because that day was a holiday, and that there is no evidence in the record suggesting that plaintiff was
c. Dr. Trachtman
Plaintiff‘s claims against Dr. Trachtman fare no better. While there is some dispute over what precisely transpired during Dr. Trachtman‘s examination of the plaintiff on January 17, 2006, at that point Dr. Trachtman did not discern any medical condition requiring immediate care and treatment. Responsibly, in light of his inability to complete an examination on that date, Dr. Trachtman requested to see plaintiff again on January 18, 2006, the following day, at which point he discovered plaintiff‘s abscess and promptly referred him to the AMCH for treatment. At best, plaintiff‘s claim against Dr. Trachtman arising out of his January 17, 2006 actions sounding in negligence, which is not cognizable under section 1983. Rosales v. Coughlin, 10 F. Supp.2d at 264 (citing Estelle, 429 U.S. at 106 and n.14, 97 S. Ct. at 285 and Chance, 143 F.3d at 703) (other citations omitted).
In sum, plaintiff‘s claims against defendants Trachtman, Stipano,
IV. SUMMARY AND RECOMMENDATION
While named as defendants in plaintiff‘s second amended complaint, there are no allegations that would establish their personal involvement and thus provide a proper basis for finding Superintendent Plescia and Nurse Administrator Griffin liable for any constitutional deprivations resulting from plaintiff‘s medical care at Washington. I therefore recommend dismissal of plaintiff‘s claims against them based on the lack of their personal involvement.
Turning to plaintiff‘s claims of deliberate indifference as against Dr. Trachtman and Nurses Mosher and Stipano, the issue presented is whether a reasonable fact finder could conclude that a four-day delay in
Based upon the foregoing, it is hereby respectfully
RECOMMENDED that defendants’ motion for summary judgment (Dkt. No. 37) be GRANTED, and that all of plaintiff‘s claims against the various named defendants be DISMISSED.
NOTICE: Pursuant to
David E. Peebles
U.S. Magistrate Judge
Dated: July 27, 2009
Syracuse, NY