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February 5, 1992

WALTER KELLY, et al, Defendants.

The opinion of the court was delivered by: DAVID G. LARIMER


 This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by a prison inmate in the custody of the New York State Department of Corrections (DOCS). The plaintiff, Joseph Allen Ross, claims that the numerous defendants -- all present or former employees of the Department of Corrections -- failed to attend to his medical needs. Specifically, plaintiff alleges that defendants demonstrated deliberate indifference to his serious medical needs in violation of the Eighth Amendment of the United States Constitution.

 This action was originally brought by Ross, pro se. Prior to trial, the Court assigned David Hoffberg, Esq., of Nixon, Hargrave, Devans & Doyle, Rochester, New York, to represent Ross. *fn1"

 The matter was tried to the Court and the Court took testimony from plaintiff and approximately nineteen other witnesses. In addition, the parties submitted plaintiff's entire medical file and hundreds of other documents and reports -- mostly from DOCS' files -- concerning plaintiff and his medical care. This decision constitutes my findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52.

 This case is troubling in several respects. After a careful review of all of the evidence, it is apparent that there were lapses in the medical care given to plaintiff. Equally apparent, however, is the fact that plaintiff was examined and treated by numerous doctors employed by DOCS as well as by several consulting physicians at some of the best medical facilities in the state. There was to some degree a conflict among the physicians who examined plaintiff both as to the severity of his medical problems and as to the proper treatment for those problems. I am not able to say on this record that plaintiff received the best care under the circumstances. But whether plaintiff received the best possible care is not the ultimate issue here. This is not an action alleging malpractice or breach of contract to provide care. It is a civil rights case and plaintiff has the burden of convincing the Court by a preponderance of the evidence that the care and treatment he received while in the custody of the Department of Corrections was so bad that it constituted deliberate indifference to his serious medical needs in violation of the Eighth Amendment.

 On this record, I do not find such gross conduct as to constitute deliberate indifference to Ross' medical needs. While his care and treatment may not have been the most ideal, it was certainly not of such a character as to rise to the level of a constitutional violation. Therefore, plaintiff's complaint must be dismissed and judgment entered in favor of all defendants.


 In early 1984, Ross was convicted of murder in the second degree for the killing of his wife. He was sentenced on March 23, 1984, to a term of imprisonment of twenty-five years to life. Ross was sent first to the Attica Correctional Facility in April 1984. Since that time, Ross has been transferred numerous times and has resided in approximately eight different state correctional facilities, some of them on more than one occasion.

 Ross has complained of medical problems since he first entered the prison system and he continues to complain to this day. In his second Amended Complaint, plaintiff sued thirty-three state employees at various institutions where he had been incarcerated. Almost every superintendent, doctor or nurse that had contact with plaintiff throughout his prison stay was named as a defendant.

 The Court granted summary judgment as to some of the named defendants and plaintiff dropped his claims against others as the case proceeded to trial.

 Plaintiff's complaints related principally to his left knee and to both of his wrists. Just before he was arrested for murder in January 1983, plaintiff had undergone arthroscopic surgery on his left knee by a private surgeon at the Lennox Hill Hospital in New York City. He was advised by that doctor to do straight-leg raises and extensive walking as part of his rehabilitation program. Ross was on crutches and encountered some difficulty in his fourteen month period of pre-trial detention in New York. None of his present claims, however, relate to that period. Plaintiff's action involves only his treatment after he was sentenced in March 1984.

 As to his left knee, plaintiff suffered from weakness and extensive pain. His condition was later diagnosed as "bilateral chondromalacia patella," which is a softening of the weight bearing cartilage in the knee. Damage to the cartilage caused pain when the knee was bent. Plaintiff also suffered from carpal tunnel syndrome principally in his right wrist.

 It is the lack of treatment and care concerning these maladies that plaintiff claims constitutes a constitutional violation.

 Ross was first committed to Attica from April 1984 to May 1985. During that stay he was treated by Dr. Frederick Downs, the Health Services Director at Attica. Downs, who is a named defendant, saw Ross on numerous occasions and provided treatment for Ross' leg problems. Ross testified at trial that his complaint against Downs was Downs' failure to order an orthopedic consultation and to see to it that Ross got proper exercise and medication. Apparently, Downs had advised Ross that he believed his problems related to degenerative arthritis. Downs and Ross were in conflict when Ross insisted that the doctor follow precisely the directions that Ross had received from his private physician who had performed the arthroscopy in January 1983.

 Dr. Downs testified at trial that he received complaints from Ross concerning pain in his knees and lower back. Downs further testified that he prescribed medicine, exercise and leg braces. Downs recommended that Ross go for an outpatient consultation to the Erie County Medical Center, but, according to Downs, Ross refused. He also recommended that Ross receive an arthrogram but Ross refused that treatment as well. Ross' objection to these consultations was apparently based on his belief that his private physician had already done the necessary testing. Downs, on the other hand, believed that the prior physician's evaluation was outdated since it was made a year previously. Concerning stair-climbing, Downs recommended that Ross "limit" his stair-climbing.

 Ross has also sued Attica Superintendent Walter R. Kelly and Richard Lester, the facility's Health Care Administrator. Ross' claim against these defendants is that they did not adequately respond to Ross' complaints about what he perceived to be Dr. Downs' poor treatment.

 Superintendent Kelly testified and denied that he had any independent recollection of Ross or his complaints. He would have routinely delegated prisoners' complaints to the responsible manager or supervisor. Since Kelly was not a physician, he relied on Downs' opinion because he was the facility's Health Services Director.

 Richard Lester dealt with Ross when he complained, which occurred about seven or eight times during Ross' initial stay at Attica. He recalled that Ross was not satisfied with the leg braces that had been constructed and he returned both of them. Ross complained of delays in getting new orthopedic devices and Lester explained that such delay was an unfortunate part of prison life.

 Ross had many complaints. He complained about delays in getting his leg braces and a neoprene sleeve that had been ordered. He complained because he was not provided with sand weights and his exercise program, but was instead required to use the free weights that were available to all the inmates. There were also about a dozen times during his stay at Attica when his medicine was not delivered promptly.

 In May 1985, Ross was transferred to the Auburn Correctional Facility where he remained until November 1985. Near the end of his stay at Auburn, Ross obtained an outside orthopedic consultation with Dr. Brett Greenky at the Upstate Medical Center in Syracuse, New York. This referral was made on advice of Auburn's Medical Director, Dr. Ira Weiner.

 Dr. Greenky diagnosed Ross' leg problem as bilateral chondromalacia patella. He recommended that Ross be immobilized for two weeks, that he perform approximately one thousand straight-leg raises per day and that he utilize a neoprene sleeve for his knees.

 Ross' complaint at Auburn was that he never got the neoprene sleeve recommended by Dr. Greenky and that he was denied the use of weights to perform his exercises.

 For a time, Dr. Weiner ordered Ross to be housed in the infirmary and provided him with a wheelchair because of Ross' leg pain. At this institution, Ross had a dispute with some nurses about receiving crutches. Apparently, at least some of his early requests for crutches were denied because his medical file had not yet been received from Attica.

 Ross also complained about stair-climbing at Auburn, as he did at every facility. At Auburn, plaintiff was housed in the "flats," which was the bottom floor of the cell block, in order to reduce the number of stairs that he would have to climb. Ross was, however, not satisfied with this because he had to climb a few stairs to get to his cell.

 Auburn Superintendent Robert Henderson is also named as a defendant, apparently for failing to respond adequately to plaintiff's complaints about lack of care. Henderson testified that he did receive complaints from Ross, but since they involved complaints about medical care, he referred them all to the medical staff. Henderson recalled consulting with the staff concerning Ross' medical care and was satisfied with their response. Basically, Henderson relied on the judgment of the medical staff concerning decisions about treatment for patients. In fact, Henderson wrote to Ross on July 1, 1985, and specifically told him that he would not substitute his judgment for that of the medical staff. (Ex. 24). He also responded to Ross' complaint that he had not received the orthopedic consultation that had been ordered by assuring Ross that he was on the list. He informed Ross that there was a lengthy waiting list for orthopedic consultations such as his. Henderson testified that because of the malpractice situation, he had encountered difficulty in getting local doctors in Auburn to see prison patients. As a result, he was required to send inmates to the Upstate Medical Center in Syracuse, New York, which resulted in considerable delay for cases that were not emergencies.

 It was also during his stay at Clinton that Ross refused some treatment recommended by the staff. On December 17, 1985, Ross refused to go for an orthopedic consultation in Glens Falls, New York. (Ex. 54). Ross declined because he believed that he had already been evaluated sufficiently. In addition, about a week later, Ross refused to be hospitalized for his knee pain because he believed it was preferable to keep walking. (Ex. 57).

 In January 1986, plaintiff was transferred to the Great Meadow Correctional Facility where he remained for six months. During his stay there, Ross was examined by four separate physicians. Dr. Joseph H. Foote was the Health Services Director at Great Meadow. When plaintiff first arrived at the facility, Foote directed that plaintiff be seen by Dr. Quellman, a board certified orthopedic surgeon. Quellman recommended physical therapy for Ross' leg. Ross received some outpatient physical therapy from Nancy Siegel, a physical therapist. Ross went to the therapy sessions but claimed that they actually aggravated his injury.

 Because Ross continued to complain, Dr. Foote ordered another consultation with a physical therapist, Dr. David G. Welch. Dr. Welch wrote a detailed report concerning Ross to Dr. Foote on February 24, 1986. (Ex. 86). Welch described Ross as having some "early" chondromalacia of the patella. He believed that plaintiff had muscle weaknesses and problems with his gait which should require "only minimal physical therapy." Welch recommended that Ross walk up a slope and "take the stairs" down. (Ex. 86). Welch did not approve Ross' request to use 35-40 pound weights. Instead, he thought that 10 pound weights were sufficient. His conclusion was that Ross should show "improvement over time" and that he would not be left "with any significant disability" as a result of his knee problem. (Ex. 86).

 On April 2, 1986, Dr. Foote wrote a detailed report to the facility's Superintendent, Everett Jones, concerning Ross' care. (Ex. 100). Foote minimized Ross' ailments. He concluded that Ross had some problems but believed that he should have no lasting disability. Foote pointed out that Ross often refused to follow the recommended care if Ross happened to disagree with the nature of that treatment or care. "This man does not agree with therapy recommendations or with our consulting orthopedic physician." (Ex. 100). He also thought that Ross was exaggerating his problems and he believed that Ross moved around the facility better then he claimed.

 Plaintiff received another consultive examination while at Great Meadow. He was seen by Dr. Robert G. Sellig, who made no major recommendations. Dr. Sellig did not believe that Ross needed special shoes or the use of a cane. He also did not recommend heat treatments, but he did believe that some exercising of the quadriceps was beneficial. (Ex. 104). Concerning stair climbing, Sellig noted that patients with knee pain are advised not to do "extensive" stair climbing. In sum, his diagnosis did not reflect any grave problems with Ross.

 Plaintiff was next transferred to Green Haven Correctional Facility from July 1986 to March 1987. Plaintiff has no claims against any state employees at this facility.

 During his stay at Green Haven, plaintiff was seen by Dr. Conrad A. Kanaar, a board certified rehabilitation specialist. Dr. Kanaar found "minimal evidence of chondromalacia." (Ex. 129). His diagnosis was "incoordination of muscle function at the knee associated with long use of knee supports and a cane." (Ex. 129). He advised Ross not to use the leg brace but to continue with his exercise program. He made no written recommendation concerning stairs.

 On March 10, 1987, Ross was moved back to the Attica Correctional Facility. During his four month stay, Ross received an orthopedic consultation with a Dr. Bouillon, a board certified orthopedic surgeon. This doctor recommended a new leg brace for Ross and advised plaintiff to avoid stairs. (Ex. 158). At this facility, plaintiff was not required to climb stairs to reach his ...

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