his hand and wrist in a job where repetitious hand motions were required.
Although Levy's examination of Ross and his testimony occurred subsequent to December 1990, his findings underscore the conflict that existed in the medical community concerning Ross' condition. This division of medical opinion concerning Ross certainly suggests that no constitutional violation occurred because one course of treatment (preferred by Ross) was not followed. Dr. Korn also testified at trial and gave conflicting testimony.
At trial, Dr. Korn testified that in his opinion Ross should be operated on soon to correct the carpal tunnel syndrome in his wrist. He believed that an arthroscopic examination was appropriate concerning Ross' knees in order to aid in the diagnosis and treatment. Concerning stairs, he believed that they should be avoided if possible. He disagreed with Dr. Zogby's reports concerning stair climbing, and he did not recommend walking as a therapy for Ross' leg problems.
In short, many of the medical opinions relating to Ross were modified or challenged by different physicians, some of them from the most prestigious medical facilities in the state. When there is conflicting medical evidence as to the severity of an inmate's condition, "courts will not attempt to second-guess licensed physicians as to the propriety of a particular course of medical treatment for a given prisoner-patient." Thomas v. Pate, 493 F.2d at 158.
It is also hard to fault civilian prison personnel when the medical experts differed on the nature of care required. It is understandable and appropriate that civilian prison supervisory personnel would defer to the medical opinions of the prison doctors and other consulting physicians regarding the severity of plaintiff's condition and the proper course of treatment. See McEachern v. Civiletti, 502 F. Supp. 532, 534 (N.D. Ill. 1980) (prison administrators "must necessarily place their confidence in the reports of the prison doctors whenever an inmate disputes a medical opinion as to what treatment is necessary and proper.")
In fact, most facilities have attempted to accommodate Ross' needs. Most facilities directed that plaintiff be housed on the first floor of a cell block to minimize stair-climbing. Some attempted to accommodate Ross by placing him in the infirmary or providing him with a wheelchair. In any event, it is clear after considering all of the medical evidence that excessive stair-climbing should have been avoided but that occasional, moderate stair-climbing was not harmful.
Furthermore, I find no credible evidence that prison personnel deliberately ignored the serious medical needs of Ross or intentionally interfered with his medical treatment. In fact, because of the conflicting medical opinions and probably because of Ross' complaints, Ross was seen not only by prison medical personnel but also by numerous outside consultants. I find no deliberate indifference to Ross' care but rather an attempt to ascertain Ross' problems and to determine the appropriate treatment. There certainly was delay, lack of communication and other problems associated with making a final diagnosis of Ross' problem, all of which were regrettable and should be corrected, but in light of the circumstances of this case, I do not find that either singly or considered as a whole these matters resulted in such a deprivation of care as to constitute a constitutional violation.
B. Delay in the Delivery of Medical Care.
Plaintiff next complains that "serious delays occurred in virtually every aspect of his medical care," which, according to Ross, evidences defendants' deliberate indifference to his medical needs.
While it is undeniable that delays did occur in Ross' treatment, I do not believe that the prison staff purposely caused the delays or intentionally ignored his medical condition. Likewise, I do not find that defendants deprived Ross of needed care in any constitutionally significant sense, or displayed an intention to punish him by withholding or intentionally delaying treatment. In fact, Ross himself is largely to blame for many of the delays in treatment. The testimony demonstrates rather conclusively that Ross often second-guessed and disagreed with his treating and examining physicians concerning what his appropriate care should be. He even refused treatment altogether on a number of occasions, either because he wanted to check the doctor's credentials more thoroughly, because he believed that another course of treatment was warranted or because he "changed his mind" about the procedure. Given Ross' constant declinations to be treated by prison doctors and some outside specialists alike, any failure to treat his knee and wrist ailments was at best malpractice which, under Estelle, does not rise to the level of deliberate indifference. See Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir. 1986).
To be sure, deliberate indifference may be shown where prison officials erect arbitrary and burdensome procedures that "result in interminable delays and outright denials of medical care to suffering inmates." Todaro v. Ward, 565 F.2d 48, 53 (2d Cir. 1977). In Todaro, the Second Circuit found the administration of medical services at Bedford Hills Correctional Facility for women to be inadequate. The Court noted that "essential medical services were denied, or unreasonably delayed and inmates forced to suffer needless pain." 565 F.2d at 50.
The Court of Appeals also noted that the district court in Todaro correctly rejected many of the plaintiffs' claims of inadequate medical care, "drawing distinctions between those practices which, while perhaps undesirable, do not amount to constitutional violations, and those that do." Id. at 53. Specifically, the district court had determined that the plaintiffs "failed to prove deficiencies rising to constitutional dimensions in the (1) delayed administration of health examinations upon admission to the institution; (2) delayed reporting of diagnostic test results; (3) treatment of the chronically ill; (4) assignment of medically unapproved duties; and (5) access to outside specialists and elective surgery." Id. (emphasis added).
Although more attentive care might have been preferable, the actions of the defendants here can scarcely be said to offend accepted standards of decency, indicate obduracy or amount to the wanton infliction of unnecessary pain. In short, plaintiff has failed to show that defendants intentionally delayed needed medical treatment. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990) (finding that the failure of prison officials to provide a prisoner's medical records to transferee prison, causing confiscation of prisoner's sling, further injury, and delay in treatment did not rise to level of deliberate indifference); Nolley v. County of Erie, 776 F. Supp. 715, 740 (W.D.N.Y. 1991) (Curtin, J.) (finding that late delivery or non-delivery of AZT to HIV infected inmate, while deplorable, did not amount to deliberate indifference because there was a lack of evidence that defendants possessed the culpable state of mind necessary for an Eighth Amendment violation).
C. Frequent Transfers.
Plaintiff also contends that the frequency with which he was transferred effectively denied him access to medical care.
The number of transfers in this case is troubling, but it is quite clear that inmates are routinely transferred throughout the system. An inmate has no right to remain in a specific institution. See Meachum v. Fano, 427 U.S. 215, 225, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976). In Meachum, 427 U.S at 225, the Supreme Court stated:
The Due Process Clause [does not] in and of itself protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose. That life in one prison is much more disagreeable than in another does not in and of itself signify that a Fourteenth Amendment liberty interest is implicated when a prisoner is transferred to the institution with the more severe rules. . . . Transfers between institutions, for example, are made for a variety of reasons and often involve no more than informed predictions as to what would best serve institutional security or the safety and welfare of the inmate.
Indeed, some of the transfers were made in an attempt to move Ross to a facility that could better deal with his medical problems. It is true that the transfers often necessitated repetition of some testing, but it also had the effect of causing Ross to be seen by numerous orthopedic surgeons and other doctors throughout the state. To be sure, it would have been preferable if Ross' medical problems could have been finally identified and treated while at one institution so that both Ross and prison officials could resolve his medical problems. It seems apparent, however, that both the nature and extent of Ross' problems as well as the needed treatment were a matter of dispute, which could not be resolved in a short period of time. I do not believe that the evidence established that the transfers were made for an improper purpose. "The record does not support a finding that transfer decisions have been made in bad faith, out of pique, or on irrational grounds." Cruz v. Ward, 558 F.2d 658, 662 (2d Cir. 1977), cert. denied, 434 U.S. 1018, 54 L. Ed. 2d 765, 98 S. Ct. 740 (1978).
Plaintiff would impute to defendants an improper motive because of the frequency with which he was transferred. In particular, Ross claims that defendants violated the Department of Correction's "Policy, Procedures and Guidelines Manual" ("PPGM") on several occasions when they transferred him. I find this argument to be without merit.
The PPGM states that "each inmate awaiting priority admission to or follow up care at an outside health care provider or awaiting a therapeutic device for which fitting is required will appear on the [medical hold] list, as well as any other inmates whose health interests would not be served through transfer." (Ex. 421). Plaintiff claims that inmates awaiting follow-up care should be placed on the list.
In my view, ample evidence supports a finding that the PPGM did not apply here to preclude Ross' transfers. On a number of occasions, plaintiff himself requested that he be transferred. On others, Ross refused surgical procedures that were recommended. For example, in a February 22, 1988 letter to Dr. Donald Sheridan at Clinton Correctional Facility, Dr. Jerome Davis stated that he suggested surgery on plaintiff's right wrist but that plaintiff wanted "to think about it and will let us know." (Ex. 214).
Similarly, in June 1988, Dr. Louis Nunez wanted to perform arthroscopic surgery on plaintiff's knee. Plaintiff initially agreed but then withdrew his consent in a signed and notarized "withdrawal of surgical consent" statement. The form stated that "I am withdrawing surgical consent pending the checking of Dr. Nunez's credentials . . . . Furthermore I do not consent to any medical hold regarding my being kept in this facility." (Ex. 231). In the latter situation, plaintiff expressly rejected a medical hold. In addition, the record does not indicate that surgery or follow-up procedures were scheduled in either of these cases where he declined recommended treatment.
More importantly, even assuming the applicability of the PPGM in this case, "not every breach of prison regulations will give rise to an Eighth Amendment claim. What counts is whether the official conduct of which the plaintiff complains was in derogation of the constitutionally mandated 'deliberate indifference' standard."
DesRosiers, 949 F.2d at 21; see also McGill v. Duckworth, 944 F.2d 344, 350 (7th Cir. 1991) (guard's breach of prison's rules not equivalent to Eighth Amendment violation); Amsden v. Moran, 904 F.2d 748, 757 (1st Cir. 1990) (a state actor does not violate the substantive component of the due process clause merely by violating a state law or regulation), cert. denied, 112 L. Ed. 2d 702, 111 S. Ct. 713 (1991). On the facts of this case, I find that the transfers were not made in an effort to punish or intentionally deprive plaintiff of medical treatment. The care given plaintiff exceeded the constitutional minimum required by the Eighth Amendment.
Based on all the evidence, I find in favor of all defendants on all of plaintiff's claims, and I further determine and direct that plaintiff's complaint be and hereby is dismissed.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
February 5, 1992.