Plaintiff has been treated for numerous ailments at the Facility, both by medical staff as well as by outside physicians. While incarcerated at the Facility, plaintiff has been treated or examined for hearing, sinus and nasal, back, thumb and wrist, and eyesight problems or complaints as well as for other more common medical complaints. He has been examined or treated by numerous outside physicians in addition to the plastic surgeon, including at least two audiologists, at least two ear, nose and throat specialists, an optometrist, and an ophthalmologist. He has received x-rays, CAT scans, an EEG, a "visual evoke response" test, and hearing tests, as well as nasal surgery. All of the above care and treatment was provided after the May 7, 1990 incident.
D. The Complaint
In his pro se complaint, plaintiff asserts a number of purported constitutional violations that he alleges were committed by the New York State Department of Correctional Services and various employees and officials of the Facility, including the hearing officer (Raymond Smith), the doctor who treated him after the incident (Dr. Raelene Milicevic), another physician (Dr. Jing Guo), the medical records clerk at the Facility (Kim McConnell, who, among other things, arranged plaintiff's numerous trips to outside doctors), and the education supervisor at the Facility (Fred Hirsch).
Plaintiff apparently complains that defendants: (1) failed to protect him from the alleged attack by Morales; (2) failed to provide him with a fair disciplinary hearing; (3) failed to provide him with proper medical care; (4) failed to provide him with nutritional meals that comport with his religious requirements; and (5) retaliated against him for having previously filed a civil rights suit against defendant Hirsch.
During discovery, the defendants who had then been served with process served interrogatories and document requests on plaintiff, asking him to provide details and support for his claims of unconstitutional conduct. Plaintiff responded by serving a document entitled "Plaintiff's Opposition to Defendants' Requests and Interrogatories."
After plaintiff moved for a preliminary injunction, defendants cross-moved for summary judgment. Plaintiff submitted a statement in opposition to the cross-motion, to which he attached certain medical records, articles, and various other documents.
A. Standards for Summary Judgment
The standards applicable to motions for summary judgment are well-settled. A court may grant summary judgment only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). Accordingly, the court's task is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). Summary judgment is inappropriate if, resolving all ambiguities and drawing all reasonable inferences against the moving party, there exists a genuine dispute about a material fact "such that a reasonable jury could return a verdict for the nonmoving party." Id., 477 U.S. at 248-49, 106 S. Ct. at 2510-11 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970)). To defeat a motion for summary judgment, however, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). There is no issue for trial unless there exists sufficient evidence in the record favoring the party opposing summary judgment to support a jury verdict in that party's favor. Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2510-11. As the Court held in Anderson, "if the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50, 106 S. Ct. at 2511 (citations omitted).
B. Plaintiff's Claims
1. Failure To Protect
Plaintiff's claim that Facility officials failed to protect him when he was attacked by Morales must be dismissed. In his papers in opposition to the cross-motion, plaintiff fails even to address the issue, and he has provided no evidence to show that defendants acted with "deliberate indifference" in their handling of the incident involving Morales. See Morales v. New York State Department of Corrections, 842 F.2d 27, 30 (2d Cir. 1988) (section 1983 does not provide cause of action for negligent failure of prison officials to protect an inmate from injury at hands of another inmate).
Plaintiff's unsupported, conclusory statement in his complaint that unnamed officers
knew that Morales had threatened plaintiff and yet permitted him to move about freely is insufficient to raise a genuine issue of fact. Plaintiff's own testimony at his disciplinary hearing shows that the incident happened suddenly after Morales bumped into him and plaintiff responded by saying to Morales: "why don't you watch where you're going." (Exh. B at 6). Indeed, plaintiff testified that "it happened so fast." (Exh. B at 7).
No rational trier of fact could conclude from the record before the Court that defendants acted with deliberate indifference toward plaintiff with respect to their handling of the May 7th incident.
2. Disciplinary Hearing
An inmate faced with disciplinary charges has the right to advance written notice of the charges as well as certain rights to call witnesses and present evidence. Wolff v. McDonnell, 418 U.S. 539, 563-66, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). The Second Circuit has held that "prison authorities have a constitutional obligation to provide assistance to an inmate in marshaling evidence and presenting a defense when he is faced with disciplinary charges." Eng v. Coughlin, 858 F.2d 889, 897 (1988).
Plaintiff's claim that he was denied his constitutional rights with respect to his disciplinary hearing must be dismissed, for no rational trier of fact could find on the record before the Court that plaintiff's constitutional rights were violated with respect to the hearing.
Again, plaintiff has failed to provide any evidentiary support for his challenge to the disciplinary hearing. In his opposition to the cross-motion, he states only that the hearing officer "purposefully re-wound" the tape to eliminate the hearing officer's references to defendant Hirsch. The transcript itself, however, shows otherwise.
Although the hearing officer did mishandle the tape, the transcript shows that plaintiff was able to make a statement and offer evidence in his defense. The tape also shows that the hearing officer repeated the testimony that might have been lost and plaintiff agreed that the hearing officer had accurately summarized it. (Exh. B at 15). Although it is possible that a portion of the May 13th testimony was lost (see Exh. B at 5-6), at most it was two minutes of testimony. (Compare Exh. B at 5 (1:52 p.m.) to 6 (1:54 p.m.). Moreover, the portions of the transcript available for May 13th provide a context that makes it clear that Hirsch was not a subject of discussion at that point in the hearing.
The undisputed evidence shows that plaintiff was given advance written notice of the charges and an opportunity to prepare for the hearing. Ms. Lewis provided plaintiff with substantial assistance; indeed, she interviewed some ten witnesses, asking the questions that plaintiff wanted her to ask, and typed up their statements, which were read into the record at the hearing. The hearing officer also marshaled the evidence, reading the various reports into the record. The hearing officer also advised plaintiff that he could adjourn for purposes of gathering additional evidence and that witnesses with knowledge of relevant facts could be called. The hearing officer gave plaintiff an opportunity to give his side of the story, and he told plaintiff that he could present "new" evidence if he had any.
Ultimately, the hearing officer found plaintiff not guilty of the two more serious counts, finding him guilty only on the charge of fighting. That finding was well supported by the evidence, including plaintiff's own testimony, a report of an officer who witnessed the fight, evidence that plaintiff struck Morales with a magnifying glass, and the fact that injuries were sustained by both individuals involved. On this record, plaintiff's conclusory allegations of bias do not create a genuine issue of fact and summary judgment must be granted in favor of defendants on this claim. See Russell v. Coughlin, 774 F. Supp. 189, 194-97 (S.D.N.Y. 1991); Lott v. Selsky, 747 F. Supp. 226, 229-30 (S.D.N.Y. 1990), aff'd, 932 F.2d 957 (2d Cir. 1991).
3. Medical Care
Plaintiff's principal claim is based on the medical care he received at the Facility, as he has raised a host of objections to the care and treatment he received at the hands of defendants.
To prevail on a claim under section 1983 for inadequate medical care, an inmate must show a "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291, 50 L. Ed. 2d 251 (1976). Claims of negligent treatment or medical malpractice or claims based on differences of opinion as to matters of medical judgment are insufficient to state a claim under section 1983. Estelle, 429 U.S. at 106-07, 97 S. Ct. 292-93; Bryant v. Maffucci, 923 F.2d 979, 982-83 (2d Cir.), cert. denied, 502 U.S. 849, 112 S. Ct. 152, 116 L. Ed. 2d 117 (1991). See also Westlake v. Lucas, 537 F.2d 857, 860 n.5 (6th Cir. 1976) ("Where a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize claims which sound in state law.").
Plaintiff complains extensively about the failure of defendants to provide him with darker tinted glasses that he claims to require because of an eye condition. This is precisely the type of claim that the Supreme Court held to be insufficient in Estelle:
Whether an X-ray -- or additional diagnostic techniques or forms of treatment -- is indicated is a classic example of a matter for medical judgment. A medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment.