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MCCULLOUGH v. SCULLY

February 18, 1992

SAMUEL McCULLOUGH, Plaintiff, against WARDEN SCULLY, GREENHAVEN CORRECTIONAL FACILITY and GREENHAVEN MEDICAL DIRECTOR, Defendants,

Leisure


The opinion of the court was delivered by: PETER K. LEISURE

LEISURE, District Judge,

 This is a prisoner civil rights action brought under 42 U.S.C. § 1983 by Samuel McCullough ("Mccullough"). Defendants, various officials at the Greenhaven Correctional Facility in Stormville, New York ("Greenhaven"), now move for summary judgment. For the following reasons, defendants' summary judgment motion is granted and the action is dismissed.

 BACKGROUND

 This action arises out of alleged malfeasance by prison officials in responding to McCullough's varicose veins. Alleging that he was denied medical care for his varicose veins, and that this constituted cruel and unusual punishment, McCullough sued Greenhaven Superintendent Scully, Greenhaven Director of Health Services Ali Khuwaja and the Greenhaven Correctional Facility.

 The action was referred to Magistrate Judge Barbara A. Lee on November 4, 1988, pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. Judge Lee initially determined that this was an appropriate case for the appointment of counsel. See Memorandum Order and Opinion, dated January 27, 1989 (Lee, Mag. J.) ("January 27 Order"). However, this Order was withdrawn after fifteen months, when no counsel had volunteered to represent plaintiff. See Memorandum Order, dated April 24, 1990 (Lee, Mag. J.) ("April 24 Order").

 Pending the appointment of counsel, discovery proceeded, and document production apparently was completed. See, e.g., January 27 Order (setting discovery cut-off of May 31, 1989); Memorandum Order, dated Aug. 31, 1989 (Lee, Mag. J.) (overseeing document production). Defendants subsequently moved for summary judgment, and Judge Lee issued a Report and Recommendation on October 11, 1991 ("October 11 Report"), recommending that defendant's motion be granted and the action dismissed.

 Although plaintiff has filed both a response to the summary judgment motion and objections to the October 11 Report, the facts underlying this action are essentially undisputed. Plaintiff's varicose veins condition predates his incarceration at Greenhaven. While incarcerated at Attica Correctional Facility, McCullough was provided with support stockings, a common treatment for varicose veins. In response to further complaints about his varicose veins after his transfer from Attica to Greenhaven in August 1987, McCullough was given additional support stockings, and advised to raise his legs three times daily.

 Subsequently, on the recommendation of Dr. Kanwit, a Greenhaven staff physician, McCullough was referred to Dr. Goldman, a surgeon at Vassar Brothers Hospital ("Vassar Hospital"). After an examination and tests were conducted in July 1988, McCullough was scheduled for surgery. Before the date for surgery, however, Dr. Goldman ceased treating Greenhaven patients. Accordingly, Dr. Kanwit solicited the assistance of another Vassar Hospital surgeon, Dr. Juidabl. Dr. Juidabl initially concluded, based on an examination of McCullough on November 8, 1988, that surgery was inappropriate. However, on the suggestion of Dr. Kanwit and after two more examinations in November and December 1988, Dr. Juidabl changed his diagnosis, determining that surgery was necessary.

 McCullough was admitted to Vassar Hospital on January 3, 1989 for pre-operative screening before his surgery, which was scheduled to be performed two days later. However, McCullough's electrocardiogram revealed an arrhythmia, and the surgery was cancelled pending cardiological clearance. Mccullough was readmitted to Vassar Hospital on February 28, 1989, and the surgery for his varicose veins was performed on or about March 1, 1989.

 Plaintiff has responded to these factual allegations with a brief in opposition to defendants' summary judgment motion, dated May 30, 1990, and an unsworn affidavit objecting to Judge Lee's October 11 Report, dated October 18, 1991. However, these documents do not controvert any of defendants' factual allegations. Rather, plaintiff's submissions merely raise unsupported allegations of neglect arising from the delay in surgery. For example, McCullough asserts that his surgery was repeatedly, deliberately cancelled. Further, plaintiff objects to Judge Lee's failure to appoint counsel to represent him. Finally, McCullough raises allegations involving the prison at which he is currently incarcerated, the Auburn Correctional Facility, including verbal abuse, confinement in his cell and interference with his attendance at school. However, these allegations do not appear to relate to the defendants in the instant action.

 DISCUSSION

 A. Summary Judgment Standard

 The analysis for a summary judgment motion begins with Federal Rule of Civil Procedure 56(c), which provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The judge's responsibility when considering such a motion "is not himself to weigh the evidence and determine the truth of the matter but to determine whether there does indeed exist a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d ...


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