DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on February 17, 2010 by the Honorable Andrew T. Baxter, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. Report-Rec. (Dkt. No. 110). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including Plaintiff Alyton Wright’s Objections, (Dkt. No. Ill) (“Objections”), which were filed on March 8, 2010.
It is the duty of this Court to “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C..§ 636(b). “A [district] judge ... may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. This Court has considered the Objections and has undertaken a de novo review of the record and has determined that the ReporWReeommendation should be approved for the reasons stated therein.
Accordingly, it is hereby
ORDERED, that the Report-Recommendation (Dkt. No. 110) is APPROVED and ADOPTED in its ENTIRETY; and it is further
ORDERED, that Defendant Miller’s Motion for summary judgment (Dkt. No. 96) is GRANTED, and it is further
ORDERED, that Defendants Genovese, Capone, and Wright’s Motion for summary judgment (Dkt. No. 97) is GRANTED, and it is further
ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED in its entirety; and it is further
ORDERED, that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.
REPORT-RECOMMENDATION
This matter has been referred to me for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c), by the Honorable Lawrence E. Kahn, Senior United States District Judge.
In this civil rights complaint, plaintiff alleges that defendants denied him constitutionally adequate medical care and equal protection of law, while plaintiff was an inmate in the custody of the Shawangunk Correctional Facility (“Shawangunk”). He seeks declaratory and injunctive relief, as well as substantial damages.
Presently before this court are two motions for summary judgment, pursuant to Fed.R.Civ.P. 56 — one filed on behalf of defendant Miller, a private physician at Albany Medical Center (Dkt. No. 96), and the second submitted for defendants Genovese, Capone, and Wright, physicians who were employed by, or contractors for, the Department of Correctional Services (DOCS) (Dkt. No. 97). 1 Plaintiff filed a response to the motion filed by the DOCS defendants (Dkt. No. 102), but did not respond directly to the motion filed by Dr. Miller. For the following reasons, this court recommends that the defendants’ motions for summary judgment both be granted and the complaint dismissed.
1. Facts
Plaintiff was an inmate at Shawangunk during all times relevant to this action. In late 2005 and 2006, plaintiff was examined and treated by medical personnel, including Dr. Maryann Genovese, a physician at Shawangunk employed by DOCS, and Dr. Robert Capone, a retired cardiologist at the Albany Medical Center (“AMC”) and part-time consultant for DOCS. Plaintiff was referred for an echocardiogram, stress test, and ultimately, a cardiac catheterization, which was performed by Dr. Jan Houghton at AMC on April 13, 2006. (Atty. Ryan Aff. in support of Miller Sum. Jdgm. Mtn., Dkt. No. 96-2, ¶ 10; Ex. D12 (DOCS Medical Records), Dkt. No. 96-17, at DOCS-282-291, 294-295, 298-299, 304-305). 2 Plaintiff was then referred to defendant Dr. Stuart Miller, a private thoracic surgeon with privileges at AMC. 3 On April 17, 2006, Dr. Miller performed coronary bypass surgery on plaintiff (then age 43) at AMC. (Miller Aff., Dkt. No. 96-40, ¶¶ 16-21; DOCS-304-305).
The plaintiff tolerated his surgery well, and, after being discharged from AMC on April 21, 2006, he was returned to the medical unit at Shawangunk for post-operative treatment and observation. (Genovese Aff., Dkt. No. 97-3, ¶ 10; Ex. 2 (DOCS medical records), D78). Contrary to the allegations in the complaint (Dkt. No. 1 at 5, ¶ 6), Dr. Miller’s discharge instructions were forwarded to Shawangunk; three copies were included in plaintiffs medical records from DOCS. (Miller Aff. ¶ 32; DOCS-279-280, 292-293, 304-305). After reviewing the relevant DOCS medical records, the surgeon, Dr. Miller, concluded that the immediate post-operative treatment provided by Dr. Genovese and others at Shawangunk was appropriate and consistent with his discharge instructions. (Miller Aff. ¶¶ 33-34). Dr. Genovese prescribed a battery of cardiac and pain medications recommended by plaintiffs surgeon; a few of the drugs had different brand names, but had equivalent active ingredients. (Genovese Aff. ¶¶ 11, 12; Miller Aff. ¶¶ 29, 33).
By April 25, 2006, the medical staff at Shawangunk determined that the plaintiff was not suffering from any acute complications from his surgery, and returned him to the facility’s general population. (Genovese Aff. ¶ 10; D79). Plaintiff complains that he was denied appropriate follow-up medical care in that: (1) he was not appropriately excused from strenuous prison labor, which impeded his recovery and caused him considerable pain; (2) he was not scheduled for a follow-up examination with his surgeon, pursuant to post-operative instructions; and (3) he was not provided adequate prescription medication, in
Consistent with the discharge instructions from the surgeon, Dr. Miller, Dr. Genovese completed a “Medical No-Duty Status” form directing that the plaintiff was to do “no heavy lifting pushing pulling” and excusing him from his a.m. and p.m. programs for the period between April 25 and May 30, 2006.(D95). Contrary to Dr. Genovese’s recent declaration that she initially assigned plaintiff to bed rest and meals in his cell (Dkt. No. 97-3, ¶ 10), she checked the “No” box for “Bed Rest” and “Feed in Cell” on the form she completed in April 2006.
According to plaintiff, “immediately” upon his re-assignment to general population, he was returned to his job program in grounds keeping, which necessarily included heavy lifting, pushing, and pulling, and which exacerbated his post-operative pain. (Complaint at 6, ¶¶ 8, 9). In response to the summary judgment motion, plaintiff stated that “[o]nly after repeated complaints of pain ... to medical personnel, ... did any medical personnel get the understanding that plaintiffs assigned work program consisted of performing strenuous upper body activity .... ” (PL Dec., Dkt. No. 102-1, ¶¶ 17-20). However, the DOCS medical records for April and May 2006 do not reflect any complaints from plaintiff regarding pain related to his work or other information that would have put Dr. Genovese or Dr. Capone on notice that, contrary to medical orders, plaintiff was being required to engage in strenuous work during the month following his surgery. (D41-D45, D99).
DOCS did not schedule a follow-up appointment with the plaintiffs surgeon, Dr. Miller, contrary to the discharge directions. (Miller Aff. ¶¶31, 32; DOCS-305). Instead, plaintiff was referred for a consultation on May 11, 2006 with Dr. Capone, the part-time cardiology consultant for DOCS. (Genovese Aff. ¶ 25; D42, D99, D124). Dr. Genovese stated that she did not have the “final say” regarding whether or when consultations she recommended would be scheduled; but she noted that “Consultation with a Cardiologist to treat [plaintiffs] on-going condition and recovery from surgery was appropriate.” (Genovese Aff. ¶25). While Dr. Miller stated that it was the responsibility of DOCS to schedule a follow-up visit, he noted: “Routinely, surgical patients are discharged back to the cardiologist for follow-up. Certainly, if the cardiologist had any concerns about a patient’s possible need for subsequent surgery or further medication, he or she would have contacted my office.” (Miller Aff. ¶ 36). Dr. Capone concluded that, at least until March 2007, plaintiff was not suffering from any complications from the surgery that required a consultation with the surgeon. “Had the plaintiff been experiencing issues with the incision site, e.g. infection, non-closure, swelling, I would have been more apt to recommend to his facility physician that he see Dr. Miller. This, however, was not the case with plaintiff.” (Capone Aff., Dkt. No. 97-11, ¶¶ 17).
In the month following his surgery, plaintiff was treated with Percocet to manage his pain, in accordance with the direction of Dr. Miller (Miller Aff. ¶ 33; DOCS-305) and the recommendation of Dr. Capone (Capone Aff. ¶ 11; D99). During much of this time period, plaintiff was receiving Percocet three times per day. (Genovese Aff. ¶ 15; D81-82). The medical records reflect the medical judgment of the DOCS medical staff that, by May 11, 2006, the plaintiff should be weaned from Percocet and transitioned to non-prescription pain relievers, such as Tylenol. (D42, D99).
The DOCS medical records document that plaintiff started complaining about
On or about June 21, 2006, plaintiff filed a grievance, claiming he was not receiving the proper pain medication. (Complaint at 7, ¶ 15). Defendant Dr. Lester Wright, the Chief Medical Officer for DOCS referred the complaint to RHSA (Regional Health Services Administrator) Pedro Diaz, who investigated the matter. On July 18, 2006, Mr. Diaz wrote plaintiff that the facility health services director (Dr. Genovese) was the final arbiter regarding the appropriate medications to prescribe for the plaintiff. (DOCS-330). 4
In June and July, plaintiff was treated by the medical staff at Shawangunk more than a dozen times. On June 29, 2006, Dr. Genovese issued new “Medical No-Duty Status” orders that the plaintiff should not be required to do heavy lifting, pushing, or pulling for the next six months. (D97). She followed up with a Memorandum to the Programming Committee at Shawangunk confirming the limitations of the plaintiffs physical activities. (DOCS-326). Dr. Genovese also referred plaintiff for a chest X-ray in early July, which revealed no objective source of his chest pain. (DOCS-190, 339; D35). From July 12 through 31, 2006, Dr. Genovese again prescribed Percocet to the plaintiff, reducing the dosage from twice per day to a single daily dose for the last week. (D35, D37, D83-84). Then, the medical staff started using Naprosyn to address plaintiffs pain.(D35).
After at least two more complaints regarding chest pain, plaintiff was referred again to cardiologist, Dr. Capone on August 16, 2006. (D32-33, 102). Dr. Capone recommended that plaintiff be prescribed Percocet; but Dr. Genovese, after reviewing the results of the consultation, continued to rely on Naprosyn to manage plaintiffs pain. (D30, 32,102).
For the balance of 2006, plaintiff continued to seek medical treatment at Shawangunk, complaining of pain, not only in his chest, but in his shoulder and ribs. The DOCS medical staff continued to try to ensure that plaintiffs work programs did not involve inappropriately strenuous upper body work. (D28).
5
Plaintiffs treating doctors prescribed different-medications, including the muscle relaxant Robaxin.
6
(D27). On November 8, 2006,
The physical therapist recommended that the plaintiff be examined by his surgeon. (D101; DOCS-221). After plaintiff wrote Dr. Genovese in early 2007 requesting to be examined by Dr. Miller, an administrative official at Shawangunk advised plaintiff that follow-up would be through a cardiologist. (DOCS-327-329; D22).
Plaintiff alleges that, on three occasions, he wrote Dr. Miller with questions about his care, but that the surgeon. never responded. (Complaint at 9, ¶ 30). Dr. Miller states that the plaintiff wrote him only once, in January 2007, claiming that his pain medication had been stopped too early, and that he was not being given appropriate post-operative care. (Miller Aff. ¶ 35; Ex. F-3, Dkt. No. 96-39 at 1). Dr. Miller explained that he did not respond to plaintiffs letter because he assumed his care was being overseen by a cardiologist who would have referred the inmate back to the surgeon if the plaintiff was suffering complications. Dr. Miller also stated: “It is my belief that none of my cardiothoracic patients, including the plaintiff, would require pain medication nearly eight months after surgery.” (Miller Aff. ¶ 36).
Plaintiff was again seen by Dr. Capone on March 23, 2007, and he recommended a consultation with plaintiffs surgeon. (D113). In his affidavit, Dr. Capone explained: “Following my fourth consultation with plaintiff on March 23, 2007, in light of his repeated complaints of lingering chest wall pain I made a recommendation in his chart that he be examined by Dr. Miller.... Based upon my previous examinations of plaintiff, I did not consider such a consultation necessary until this time. (Capone Aff. ¶ 18). Dr. Genovese approved the referral to the thoracic surgeon on April 18, 2007. (DOCS-206, 208).
Dr. Miller examined plaintiff on June 18, 2007 at Albany Medical Center. 7 The plaintiff complained of intermittent chest pain and expressed concern about the difference in size of his two pectoralis major muscles. Dr. Miller concluded that any pain was not cardiac in nature, but was musculoskeletal. He did not perceive any difference in the relative size of the muscles that plaintiff was concerned about and recommended that he continue to work out to rebuild muscle mass. Dr. Miller recommended that a cardiologist could do any appropriate follow-up. (Miller Aff. ¶¶ 38-42; Ex. F-l, Dkt. No. 96-37, at 1-4; DOCS-207; D125).
Following his examination by Dr. Miller, plaintiff continued to receive medical attention at Shawangunk for claims of pain in his chest, ribs, and shoulder. (D1-D16). Dr. Genovese issued another “Medical No-Duty Status” form, restricting plaintiff from engaging in heaving lifting, pushing, pulling, or weight lifting. (D98). Plaintiff had a least one further consultation with a cardiologist (other than Dr. Capone) on February 6, 2008. (DOCS-202).
Defendants allege that, during the course of his treatment at Shawangunk, plaintiff refused prescribed treatment or was non-compliant with the direction of the medical staff with some frequency. As documented in the Affidavit of Dr. Genovese and the cited DOCS medical records, plaintiff periodically skipped or refused to take cardiac and blood pressure medication. (Genovese Aff. ¶ 13). He frequently declined to take Ibuprofen or non-steroidal anti-inflammatory drugs
Plaintiff offers explanations for the various instances of his purported resistance to treatment and medication prescribed by the medical staff at Shawangunk. He claims that he discontinued the therapeutic diet and missed blood pressure check-ups because he was physically unable to walk to the distant locations in the prison where these services were offered. He failed to comply with the direction of the physical therapist only when he was physically incapable of doing what was asked. (PI. Dec. ¶¶ 31-33). Plaintiff claims that his lamentations about his inability to perform the heavy work in which he previously engaged as a construction worker were misconstrued as a refusal to stop engaging in strenuous labor at Shawangunk. (PI. Dec. ¶ 22). He denies that he refused nonprescription pain medications, but only explained that they were ineffective in relieving his severe pain. (PI. Dec. ¶¶ 14, 16). However, the medical records corroborate that the defendant resisted the direction of the medical staff, particularly with respect to their efforts to wean him from Percocet and try to manage his pain with nonprescription medications. (Genovese Aff. ¶ 16; D~2,13,15, 27, 28, 41).
II. Summary Judgment
The amended complaint alleges that the defendants showed deliberate indifference to plaintiffs medical needs in connection with his post-operative care. Plaintiff also recasts that same basic claim as a denial of his Fourteenth Amendment due process and equal protection rights, alleging that Dr. Genovese’s decisions regarding what medications to prescribe were influenced by her perception of plaintiff as a “drug addict.”
Defendant Miller, the surgeon at the Albany Medical Center, has moved for summary judgment, arguing that there is no factual support for the claim (1) that he acted under color of state law when he provided medical treatment to plaintiff or (2) that defendant Miller was deliberately indifferent to plaintiffs medical need.
Defendants Genovese, Capone, and Wright, the physicians employed or under contract with DOCS, have moved separately for summary judgment, arguing (1) that, to the extent the defendants are named in their official capacity, they are entitled to Eleventh Amendment immunity; (2) that there are no facts in the record to support the claim that the defendants were deliberately indifferent to plaintiffs medical needs; (3) that, as to Defendant Wright, he had no personal involvement in plaintiffs care and thus cannot be held liable under Section 1983; (4) that plaintiffs Fourteenth Amendment claim is unsubstantiated; and (5) these defendants are protected by qualified immunity.
For the reasons set forth below, this court concludes that all of the defendants are entitled to summary judgment on plaintiffs Eighth Amendment medical care cause of action because there is no factual support for the claim that they provided unreasonable care or acted with deliberate indifferent to plaintiffs medical needs. The Court would also recommend granting summary judgment on plaintiffs Fourteenth Amendment claim, which is mispled and should be subsumed within plaintiffs Eighth Amendment cause of action. This court concludes that it is not necessary to resolve other issues raised by the
A. Legal Standards for Summary Judgment
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56;
Thompson v. Gjivoje,
In meeting its burden, the party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying the portions of “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477
U.S. 317, 323,
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial.
Id.
“Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude summary judgment.”
Salahuddin v. Coughlin,
While a court “ ‘is not required to consider what the parties fail to point out,’ ” the court may in its discretion opt to conduct “an assiduous view of the record” even where a party fails to respond to the moving party’s statement of material facts.
Holtz v. Rockefeller & Co.,
B. Eleventh Amendment
It is now well-settled that the state itself cannot be sued under section
The amended complaint does not specify whether the DOCS defendants are being sued in their individual or official capacity. The DOCS defendants correctly argue that, to the extent that they are being sued in their official capacity for money damages, that cause of action should be dismissed under the Eleventh Amendment.
Huang v. Johnson,
C. State Action (Defendant Miller)
To state a claim under Section 1983, “a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins,
The traditional definition of acting under color of state law requires that the defendant in a § 1983 action have exercised power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” ...
To constitute state action, “the deprivation must be caused by the exercise of some right or privilege created by the State ... or by a person for whom the State is responsible,” and “the party charged with the deprivation must be a person who may fairly be said to be a state actor.”
Id.
at 49,
Defendant Miller argues that he is entitled to summary judgment as a matter of law because, when he was providing medical treatment to defendant, he was not a state actor, and thus was not “acting under color of state law.” As Dr. Miller’s affidavit and supporting documentation establish, AMC had a contract with DOCS that provided for medical treatment of DOCS inmates in a secure inpatient unit at AMC. Dr. Miller and other members of his professional practice (Capital Cardiology) were not employees of AMC, but had admitting privileges, and were “often” requested to provide consultations and surgery to DOCS patients at AMC. Neither Dr. Miller, nor his practice group, had any employment or direct contractual relationship with DOCS. (Miller Aff. ¶¶ 8-15 & Ex. C., Dkt. No. 96-5 at 10,16-19). 8
... It is the physician’s function within the state system, not the precise terms of his employment, that determines whether his actions can fairly be attributed to the State.... Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights. The State bore an affirmative obligation to provide adequate medical care to [the inmate plaintiff]; the State delegated that function to respondent [physician]; and respondent voluntarily assumed the obligation by contract.
... It is the physician’s function while working for the State, not the amount of time he spends in performance of those duties or the fact that he may be employed by others to perform similar duties, that determines whether he is acting under color of state law.
... [T]he fact that a state employee’s role parallels one in the private sector is not, by itself, reason to conclude that the former is not acting under color of state law in performing his duties....
Moreover, although the provision of medical services is a function traditionally performed by private individuals, the context in which respondent [physician] performs these services for the State (quite apart from the source of remuneration) distinguishes the relationship between respondent and [the inmate plaintiff] from the ordinary physician-patient relationship.... Respondent carried out his duties at the state prison within the prison hospital. That correctional setting, specifically designed to be removed from the community, inevitably affects the exercise of professional judgment. Unlike the situation confronting free patients, the nonmedical functions of prison life inevitably influence the nature, timing, and form of medical care provided to inmates such as [the plaintiff].
West v. Atkins,
Defendant Miller argues that the circumstances under which he provided medical services to plaintiff — in a private hospital setting and not pursuant to a contract with DOCS — distinguishes him from the physician/contractor in
West v. Atkins
and compels the conclusion that he is not a state actor. In support of this position, defendant Miller sites the opinion of U.S. District Judge Hurd in
Nunez v. Horn,
holding, in the alternative, that a physician who, without a contractual relationship with DOCS, performed surgery on a state inmate in a private hospital, did not act under color of state law.
Nunez v. Horn,
There are, however, some additional circumstances regarding the relationship between Dr. Miller, AMC, DOCS, and the plaintiff/patient that complicate the analysis of whether Dr. Miller performed surgery on the plaintiff while acting under color of state law. As Dr. Miller admits, AMC had a contract with DOCS to provide medical services to state inmates in a se
Wfliile Dr. Miller and his practice group were not a party to the AMC contract with DOCS, they had an ongoing relationship with AMC and “often” provided consultation and surgery services to state inmates. (Miller Aff. ¶ 14). Moreover, they apparently benefitted from the AMC/DOCS contract in at least two respects. The contract appears to set forth the terms of the reimbursement, by DOCS, of private physicians for treatment of inmates at AMC at 167% of Medicare rates. The contract also provides treating physicians with indemnification by DOCS if they were to be sued by an inmate/patient for professional negligence. (Ex. C., Dkt. No. 96-5 at 2, 10, 13, 16-19).
10
See West v. Atkins,
When a party enters into a contractual relationship with the state penal institution to provide specific medical services to inmates, it is undertaking freely, and for consideration, responsibility for a specific portion of the state’s overall obligation to provide medical care for incarcerated persons. In such a circumstance, the provider has assumed freely the same liability as the state. Similarly, when a person accepts employment with a private entity that contracts with the state, he understands that he is accepting the responsibility to perform his duties in conformity with the Constitution.
In contrast, private organizations and their employees that have only an incidental and transitory relationship with the state’s penal system usually cannot be said to have accepted, voluntarily, theresponsibility of acting for the state and assuming the state’s responsibility for incarcerated persons. For instance, an emergency medical system that has a preexisting obligation to serve all persons who present themselves for emergency treatment hardly can be said to have entered into a specific voluntary undertaking to assume the state’s special responsibility to incarcerated persons.
Rodriguez v. Plymouth Ambulance Service,
Many of the relevant factual nuances regarding the relationship between Dr. Miller, AMC, DOCS, and DOCS inmate/patients — e.g., the nature of the contractual or other arrangements between AMC and doctors with admitting privileges — have not been fully developed by the summary judgment motion. Moreover, the established facts regarding those relationships appear to place the question of whether Dr. Miller was a state actor in this case in a gray area not clearly resolved by existing ease law. As discussed below, this court will recommend that summary judgment be granted as to defendant Miller based on the absence of any factual support for the allegation that the surgeon provided unreasonable care or acted with deliberate indifference to plaintiffs medical needs. Accordingly, it is not necessary to decide the state action issue to resolve the pending motion.
See, e.g., Young v. Smith,
07-CV-6312,
D. Claims of Inadequate Medical Care
1. Legal Standards
In order to state an Eighth Amendment claim based on constitutionally inadequate medical treatment, the plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”
Estelle v. Gamble,
a. Objective Element
In order to meet the objective requirement, the alleged deprivation of ad
The second part of the objective test asks whether the purported inadequacy in the medical care is “sufficiently serious.”
Id.
at 280. The court must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the plaintiff.
Id.
(citing
Helling v. McKinney,
b. Subjective Element
The second element is subjective and asks whether the official acted with “a sufficiently culpable state of mind.”
Id.
(citing
Wilson v. Seiter,
In order to rise to the level of deliberate indifference, the defendant must have known of and disregarded an excessive risk to the inmate’s health or safety.
Id.
(citing
Chance,
Additionally, a plaintiffs disagreement with prescribed treatment does not rise to the level of a constitutional claim.
Sonds v. St. Barnabas Hosp. Correctional Health Services,
Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment.
Sonds,
2. Application of Legal Standards
Defendants do not appear to contest that the plaintiff suffered from a serious medical condition in connection with his open-heart surgery and post-operative recovery. However, as discussed further below, there are not material facts supporting plaintiffs claim that he was denied adequate or reasonable medical care or that the defendants acted with deliberate indifference to his medical needs.
a. Defendant Miller
Plaintiff does not contest the adequacy or reasonableness of the medical care that he received from Dr. Miller in connection with his heart surgery. Instead, he claims that Dr. Miller denied him constitutionally adequate medical care by (1) failing to ensure that his post-operative instructions were received and followed by the medical staff at Shawangunk; (2) failing to respond to the letters plaintiff wrote to the surgeon complaining about his post-operative care; and (3) failing to conduct a follow-up examination of the plaintiff. (Complaint at 12, ¶ 6).
The DOCS medical records confirm that the Shawangunk medical staff did, in fact, receive Dr. Miller’s discharge instructions regarding the plaintiff. (Miller Aff. ¶ 32; DOCS-279-280, 292-293, 304-305). In light of the clear documentary evidence, the plaintiffs eonclusory claim that the surgeon’s directions regarding post-operative care were never forwarded to the prison does not create a factual dispute.
See Benitez v. Pecenco,
92 Civ. 7670,
Dr. Miller acknowledges that the plaintiff wrote him once, in January 2007, claiming that his pain medication had been stopped too early and that he was not being given appropriate post-operative
It is my belief that none of my cardiothoracic patients, including the plaintiff, would require pain medication nearly eight months after surgery. Routinely surgical patients are discharged back to the cardiologist for follow-up. Certainly, if the cardiologist had any concerns about a patient’s possible need for subsequent surgery or further medication, he or she would have contacted my office.”
(Miller Aff. ¶ 36). DOCS referred plaintiff to Dr. Miller later in 2007 (after plaintiff filed his complaint), and he conducted an examination.
Dr. Miller had no control over if and when DOCS would refer a inmate to him for a follow-up examination after the inmate had been returned to the care of the prison medical staff. (Miller Aff. ¶¶ 30, 31). Under those circumstances, he can not be liable under Section 1983 for not getting involved earlier in plaintiffs postoperative care.
See, e.g., Smith v. Woods,
9:05-cv-1439 (LEK/DEP),
Plaintiffs conclusory and unsupported allegations do not create a material issue of fact supporting his claim that Dr. Miller provided unreasonable care or acted with deliberate indifference to his medical needs. Accordingly, this court recommends that Dr. Miller’s summary judgment motion be granted,
b. Defendants Genovese and Capone
Plaintiff also claims that defendant Genovese, his primary treating physician at Shawangunk and defendant Capone, the consulting cardiologist who examined him at least four times, provided him constitutionally deficient post-operative medical care. In particular, plaintiff claims: (1) these doctors did not ensure that he was appropriately excused from strenuous prison labor, which impeded his recovery and caused him considerable pain; (2) they did not ensure that he was scheduled for a follow-up examination with his surgeon, pursuant to post-operative instructions; and (3) they did not recommend or prescribe adequate prescription medication, in particular sufficient medication to manage his post-operative pain. (Complaint at 9-10).
The defendants’ conduct with respect to these specific issues must be viewed in the broader context of the extensive and continuing medical care and treatment they provided to plaintiff following his surgery, as described in the factual discussion above.
See Estelle v. Gamble,
i. Work Assignments
Plaintiff alleges that Dr. Genovese and Dr. Capone knew that, despite clear medical orders that he was not to engage in heavy lifting, pushing, or pulling, he was being required to engage in strenuous physical labor contrary to those directions. However, the DOCS medical records for April and May 2006 do not reflect any complaints from plaintiff about his work or other indications that he was being required to engage in physical activities contrary to the doctor’s instructions. (D41-D45, D99). Several entries seem inconsistent with plaintiffs claim that he was doing strenuous work during the month following his surgery, when Dr. Genovese ordered that he be excused from a.m. and p.m. work programs.
12
In any event, there is no evidence in the record to support plaintiffs conclusory claim that the prison doctors knew and deliberately ignored that he was being required to engage in work that was inconsistent with their medical instructions. These doctors cannot be liable under Section 1983 if the defendant engaged in inappropriate work contrary to their medical direction and without their knowledge.
13
See, e.g., Atkinson v. Fischer,
9:07-cv-368 (GLS/GHL),
The medical records document that Dr. Genovese repeatedly provided medical orders directing that plaintiff not engage in heavy lifting, pushing, and pulling. (D9598). And, when, months after plaintiffs surgery, there was some indication that plaintiff was performing inappropriately strenuous labor, perhaps because he missed doing heavy work, Dr. Genovese took additional steps to stop that.
14
This
ii. Follow-up Examination by Specialist
While plaintiff is correct that the Shawangunk facility did not refer plaintiff for a follow-up examination by his surgeon in the months following his surgery, he was referred to be examined by cardiologist, Dr. Capone, on at least four occasions. All of plaintiffs treating doctors, including his surgeon, agreed that followup care provided by a cardiologist was medically appropriate. (Miller Aff. ¶ 36; Capone Aff. ¶ 17; Genovese Aff. ¶ 25). Plaintiffs disagreement with his treating doctors that he should have been seen promptly by his heart surgeon, as opposed to a cardiologist, does not support a claim for deliberate indifference.
See, e.g., Dawson v. Williams,
04 Civ. 1834,
After his last examination of plaintiff on March 23, 2007, Dr. Capone recommended a consultation with the thoracic surgeon in light of plaintiffs repeated complaints of lingering chest wall pain. (Capone Aff. ¶ 18; D113). Dr. Genovese approved the referral to the thoracic surgeon on April 18, 2007. (DOCS-206, 208). Dr. Miller examined plaintiff on June 18, 2007 at Albany Medical Center. Dr. Miller concluded that any pain plaintiff was experiencing was not cardiac in nature, but was musculoskeletal. He recommended that a cardiologist could do any appropriate follow-up. (Miller Aff. ¶¶ 38-42; Ex. F-l, Dkt. No. 96-37, at 1-4; DOCS-207; D125).
Evans v. Manos suggests how a prison inmate’s claim for a delay in medical treatment should be evaluated under the Eighth Amendment:
“Although 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 ‘the 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.’ ”...
Evans v. Manos,
In this case, it is clear that the delay in the referral of plaintiff for a follow-up examination by his surgeon, during which time he was seen four times by a cardiologist, did not result in any adverse consequences to the plaintiff or increase the risk of adverse effects. Moreover, there is no evidence to support plaintiffs conclusory allegation that the decision to have plaintiff examined by a cardiologist instead of his surgeon was motivated by any improper indifference to his medical care.
See, e.g., Pabon v. Goord,
99 Civ. 5869,
iii. Medication
Plaintiff also alleges that Dr. Genovese and Dr. Capone failed to prescribe the medications specified by the surgeon and, thereafter, failed to prescribe adequate medication to manage his severe pain. The affidavits of the doctors and the supporting medical records establish that, Dr. Genovese did, in fact, prescribe the post-operative cardiac and pain medications recommended by Dr. Miller, although she substituted a few drugs with different brand names, but the same active ingredients. (Genovese Aff. ¶¶ 11, 12; Miller Aff. ¶¶ 29, 33). Plaintiffs conclusory allegations to the contrary do not create an issue of fact.
See Benitez v. Pecenco,
Plaintiffs remaining claim regarding medication is that Dr. Genovese, and to a lesser extent, Dr. Capone, failed to prescribe or recommend medication that was sufficiently potent to treat his serious pain. The factual record, discussed above, establish that Dr. Genovese, following the advice of Dr. Miller and Dr. Capone, prescribed Percocet to plaintiff during the month following his surgery — in April and May 2006. She also prescribed Percocet to plaintiff for a period in July 2006; but did not do so in August 2006, contrary to the recommendation of Dr. Capone. In his affidavit, Dr. Capone noted, “The facility physician is tasked [with overseeing the delivery of medication] as he/she is more involved with the day to day treatment of each inmate and is thus more knowledgeable into the individual needs and concerns of each inmate. For example, the facility
During the time period that Dr. Genovese was not willing to treat plaintiff with potent prescription pain killers like Percocet, she tried a variety of other medications in an attempt to manage plaintiffs claimed pain — Tylenol, Ibuprofen, Naprosyn (a NSAID), and Robaxin (a muscle relaxant). Plaintiff was resistant to Dr. Genovese’s efforts to wean him from Percocet and periodically refused these alternatives. (Genovese Aff. ¶ 16). Plaintiff claims that Dr. Genovese once told him that she would no longer prescribe pain medications because he was “a drug addict.” (PI. Aff., Dkt. No. 102-2 at 3, ¶ 18). 15 Dr. Genovese only indirectly responds to this allegation by stating “My provisioning of pain medication to plaintiff was based upon my own medical judgment after observing and treating the patient following his surgery.” (Genovese Aff. ¶ 17).
Differences in opinions between a doctor and an inmate patient as to the appropriate pain medication clearly do not support a claim that the doctor was deliberately indifferent to the inmate’s “serious” medical needs.
See, e.g., Evans v. Manos,
Plaintiff does not provide any support for his claim that Dr. Genovese was motivated by an improper disregarded for his medical needs other than his allegation that she once stated she was denying him Percocet because he was a drug addict. However, as Dr. Capone’s statement (quoted above) suggests, concern about prescribing narcotic pain medication, on which inmates with possible substance abuse issues could become dependent, may inform a medical judgment about what drug to prescribe.
See, e.g., Rivera v. Dyett,
88 Civ. 4707,
iv. Conclusion
Plaintiffs conclusory and unsupported allegations do not create a material issue of fact supporting his claim that Dr. Genovese and/or Dr. Capone provided unreasonable care or acted with deliberate indifference to his medical needs. Accordingly, this court recommends that the summary judgment motion of the DOCS defendants be granted with respect to plaintiffs Eighth Amendment claim.
c. Defendant Wright (Personal Involvement)
Plaintiff claims that Defendant Wright, the DOCS Chief Medical Officer, should be liable for deliberate indifference to his medical needs. Plaintiff alleges that, in response to his complaint to Dr. Wright that he was not receiving sufficient pain medication, Dr. Wright delegated responsibility to investigate and reply to another DOC employee, who advised that plaintiff’s treating physician was the final arbiter with respect to medical decisions regarding medication. (Complaint at 12-13, ¶ 9). While not contesting plaintiffs allegations about how his complaint to Dr. Wright was handled (see DOCS-330), defendant persuasively argues that he was not personally involved in plaintiffs medical care to the extent required to make him liable under Section 1983. 16 In any event, the determination that there no constitutional violation relating to the decision of the DOCS medical staff regarding plaintiffs pain medication would necessarily negate Section 1983 liability on the part of the Chief Medical Officer.
E. Fourteenth Amendment Claim
Plaintiffs complaint states a vague Fourteenth Amendment cause of action which references both due process and equal protection. (Complaint at 4, 14). The apparent basis for this claim is the allegation that Dr. Genovese refused to prescribe certain potent pain medication to plaintiff based on her perception that he was a drug addict. This court concludes that this cause of action is mis-pled and essentially duplicates plaintiffs Eighth Amendment claim that Dr. Genovese was deliberately indifferent to his serious medical need for particular pain medications.
The Equal Protection Clause of the Fourteenth Amendment provides that the government shall treat all similarly situated people alike.
Giano v. Senkowski,
To establish an equal protection violation, the plaintiff must show that the defendants applied a different standard to similarly situated individuals.
Wiggins v. N.Y. City Dep’t of Corr.,
06 Civ.1946,
2. Application of Legal Standards
Even accepting as true the plaintiffs unsupported allegation that Dr. Genovese denied him narcotic pain medication because she perceived him as a drug addict, plaintiff states no viable equal protection claim. Assuming that actual or perceived “drug addicts” constitute a viable “class” under the Equal Protection Clause, prison authorities may treat members of such a group differently than non-addicts, as long as the disparate treatment is rationally related to a valid public policy goal.
See Burka v. New York City Transit Authority,
F. Qualified Immunity
Plaintiffs Genovese, Capone, and Wright have argued that they are entitled to qualified immunity because they “acted reasonably” in providing medical treatment to the plaintiff. Given the conclusions discussed above that the defendants did not violate any constitutional right of the plaintiff, this court does not need to address the claims of qualified immunity.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that defendant Miller’s motion for summary judgment (Dkt. No. 96) be GRANTED;
RECOMMENDED, that the motion for summary judgment of Defendants Genovese, Capone, and Wright (Dkt. No. 97) be GRANTED; and
RECOMMENDED, that plaintiffs complaint be DISMISSED in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette,
Notes
. Plaintiff’s complaint named various other defendants, who have been terminated from the action as a result of plaintiff’s motion to dismiss them. (Dkt.Nos.52, 58)
. Both the Miller and Genovese/Capone/Wright summary judgment motions append voluminous medical records from the Shawangunk facility and DOCS. The DOCS records attached to the Miller motion were filed as Exhibits D-l through D-13 (Dkt. Nos. 96- 6 through 96-13) and have consecutive page numbers starting with "DOCS-0001.” The DOCS records attached to the Genovese/Capone/Wright motions are attached as Exhibits 1 through 7 to the Affidavit of defendant Genovese (Dkt. No. 97-4 through 97- 10) and have consecutive page numbers starting with "DI.” The DOCS medical records will be referred to herein by the "DOCS’' or “D” numbers.
. As discussed in more detail below, AMC had a contract with DOCS that provided for medical treatment of DOCS inmates in a secure inpatient unit at AMC. Dr. Miller and other members of his professional practice (Capital Cardiology) were not employees of AMC, but had admitting privileges, and were often requested to provide consultations and surgery to DOCS patients at AMC. Neither Dr. Miller, nor his practice group, had any employment or contractual relationship with DOCS. (Miller Aff. ¶¶ 8-15 & Ex. C„ Dkt. No. 96-5).
. Mr. Diaz’s letter (dated July 18, 2006) erroneously refers to the date of plaintiff’s grievance as July 26, 2006. Plaintiff claims that he exhausted his administrative remedies by filing this grievance and appealing the denial to Albany DOCS Central Office Review Committee (CORC), which upheld the adverse decision. (Complaint at 15). Although none of the parties attach copies of any documents relating to the grievance other than the Diaz letter, the defendants do not assert that plaintiff failed to exhaust his administrative remedies in the summary judgment motions.
. Plaintiff admits that, by late 2006, he was in a work program that involved no heavy lifting, pushing, or pulling. He stated that he did not seek further relief from his work assignments during this time period because of the less strenuous nature of the work. (PL Dec. ¶ 20).
. See http://dailymed.nlm.nih.gov/dailymed/ drugInfo.cfm?id=1254, for a description of Robaxin on the DailyMed website, a service of the National Library of Medicine of the National Institutes of Health.
. There were apparently some delays in plaintiff's appointment because of Dr. Miller's busy schedule. (Ex. F-l, Dkt. No. 96-37 at 7; Ex. F-2, Dkt. No. 96-38 at 10, 12). In the interim, plaintiff filed his complaint, on May 2, 2007.
. In this case, although he received proper notice of his obligation to respond to defendant’s motion in accordance with Local Rules (Dkt. No. 97-1), the plaintiff did not file a statement of undisputed material facts responding to defendant Miller’s motion, as required by Local Rule 7.1(a)(3). Consequently, the court may accept the properly supported facts contained in the defendant's Rule 7,1 statement (Dkt. No. 97-2) as true for purposes of this motion.
See, e.g., Govan v. Campbell,
. In the contract, AMC and DOCS agree to the creation of a 10-bed secure unit at AMC to treat inmates. Section III.3. of the contract provides that "... AMC and the physicians attending said [inmate] patient shall be solely responsible for rendering medical care to the inmate patient, as the same is rendered to regular and normal patients at AMC.” Section III. 5. provides: “It shall at all times be the responsibility of the DEPARTMENT to provide adequate and proper security and supervision of the patients admitted to AMC who are in the custody and control of the DEPARTMENT, and this shall be true whether they are in the secure unit or any other part of AMC.” (Ex. C, Dkt. No. 96-5 at 6).
. The indemnity provisions of the AMC contract with DOCS appear to extend, to medical professionals who provide medical services at AMC to inmates at the request of DOCS, the protections afforded by N.Y. Correction Law § 24-a and Public Officers Law § 17, which would indemnify the professionals as to any claims of negligence by the inmate. (Ex. C., Dkt. No. 96-5 at 18).
. Dr. Miller establishes that he was not an employee of AMC, but does not elaborate on the formal or informal arrangements between AMC and the doctors who have admitting privileges there.
. See, e.g., May 3, 2006 entries on D-43 ("Feels OK.... No chest pain. Pt states does some walking.”); May 10, 2006 notes of consultation with Dr. Capone on D-99 ("Still in pain .... Continue limited upper body exertion.”).
. As a consultant, Dr. Capone recommended diagnostic or therapeutic measures to prison doctors, but did not have the authority to prescribed medications, arrange for outside consultations, or alter an inmate's work schedule. (Capone Aff. ¶ 2). Plaintiff does not concede Dr. Capone's lack of authority with respect to inmate patients, but has no apparent factual basis for his position on this issue. (Pltf. Dec., Dkt. No. 102-1 at 6-7). Thus, Dr. Capone may also rely on the argument that he cannot be liable for decisions and actions of others with respect to plaintiff’s work assignments.
See Smith v. Woods,
.
See, e.g.,
D28 (notes of 9/27/06 medical appointment: "Find out what his program is. He should not be lifting > 10 lbs.”); D14 (notes of 7/19/07 medical appointment: "Told again no lifting says to me if I can’t do that, what am I going to do... .wants to do heavy work”); DOCS-326 (7/19/07 memorandum of Dr. Genovese to the Programming Commit
. Plaintiff's medical history included an acknowledgment of substance abuse, albeit in the distant past. (Pltf. Aff., Dkt. No. 102-2 at 3, ¶ 18; DOCS-354). He also noted that he was in the drug treatment program at Shawangunk. (Complaint at 9, ¶ 29).
. Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and
respondeat superior
is an inappropriate theory of liability.
Richardson
v.
Goord,