The opinion of the court was delivered by: LEWIS A. KAPLAN
Plaintiff, a prisoner at the Auburn Correctional Facility operated by the New York State Department of Correctional Services ("DOCS") at the time of the events relevant to this action, brings suit pursuant to 42 U.S.C. § 1983. He asserts various Fifth, Eighth and Fourteenth Amendment claims.
Plaintiff moved for partial summary judgment on October 22, 1993 but has submitted no affidavits or other evidentiary material in support of the motion. Defendants cross-move for partial summary judgment and submit affidavits of defendants Robert Greifinger, Christine Coyne and Raymond Lupo. Plaintiff, although warned of the need to supply evidentiary material in response to defendants' cross-motion,
has not done so.
Plaintiff appears to assert that his Eighth Amendment rights were violated in four respects: he allegedly (1) was denied a change of underwear for fifteen days; (2) was not transferred to another correctional facility after psychiatric personnel employed by the Office of Mental Health suggested that a transfer might reduce some of plaintiff's stress; (3) was housed on an upper gallery despite a DOCS medical order to house plaintiff on a bottom tier; and (4) was exposed to tuberculosis while working in the Auburn infirmary.
In order to prevail on a motion for summary judgment, the moving party must establish that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). It is the moving party's burden to make this demonstration on the basis of affidavits "made on personal knowledge, . . . setting forth such facts as would be admissible in evidence, and . . . showing affirmatively that the affiant is competent to testify to the matters stated therein" and certain other evidentiary material. Rule 56(e).
The standard applicable to an Eighth Amendment deliberate indifference claim is clear. In order to recover, plaintiff must establish that the defendants were deliberately indifferent to his serious medical needs, i.e., that the defendants in fact were aware of an excessive or substantial risk to the plaintiff and nevertheless failed to take reasonable action to avert that risk. Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1979-83 & n.8 (1994).
Defendants are entitled to judgment as a matter of law on the first two bases of the Eighth Amendment claim. As there are no affidavits from either side on these issues, we accept plaintiff's allegations as true for purposes of these motions. We conclude that the lack of a change of underwear for fifteen days and the failure to transfer plaintiff in the circumstances alleged do not raise matters of constitutional dimension.
Defendants have demonstrated that there is no genuine issue of fact material to the fourth basis of the Eighth Amendment claim -- the allegation that plaintiff was exposed to tuberculosis while working in the prison infirmary. Plaintiff claims to have been exposed to TB from inmate patient Jerry Fulmore. (Amend. Cpt P 1(a)) Although Fulmore did not suffer from TB (Coyne Aff. P 6 & Ex. A), prison officials learned in the spring of 1991 that five inmates had been diagnosed as having TB. (Coyne Aff. PP 4, 9) Each inmate was transferred to an outside hospital (id. P 4) and Auburn tested plaintiff, among other inmates, for TB in June and July 1991. (Id. P 11; Greifinger Aff. P 11) In November 1991 plaintiff was given a follow-up test whereupon he tested positive for exposure to TB but did not exhibit any symptoms. (Coyne Aff. PP 11-12; Greifinger Aff. PP 11-12) Plaintiff immediately was offered and accepted preventive treatment provided by Auburn. (Greifinger Aff. P 14; Coyne Aff. PP 11, 15) He began therapy consisting of INH, a standard antibiotic used in TB treatment. (Greifinger Aff. P 14) By January 1992, he was treated with various drugs recommended for multi-drug resistant TB by the Center for Disease Control. (Id.) Thus, defendants have demonstrated conclusively that they responded reasonably to plaintiff's exposure to TB. Moreover, it is undisputed that plaintiff has not suffered, and is unlikely ever to suffer, an active case of TB.
The third of plaintiff's Eighth Amendment arguments is not so easily disposed of. Plaintiff alleges that he suffered from asthma and that defendants ignored a DOCS medical order to house him on a lower tier. (Pl. 10(J) St. P 6) He claims that defendants housed him on one of the upper galleries and did not move him until May 12, 1992, the day after he had an asthma attack. (Id. & Amend. Cpt P 8(a)) Plaintiff asserts that this constituted deliberate indifference on the part of the defendants.
It is well known that climbing stairs exposes some people to serious medical risks. Defendants, however, have submitted no evidence in response to this claim beyond pointing out that plaintiff was keeplocked for 23 hours per day during the period of time in which he was housed on the upper gallery. (Def. Mem. 15) Defendants argue that plaintiff's keeplock status minimized any medical risks, thus tacitly acknowledging the possibility that climbing stairs may have created a serious medical risk to plaintiff. Given defendants' insufficient showing, we cannot exclude the possibility that ...