in this regard also that the records of plaintiff's admission to Central New York Psychiatric Center on 1/5/88 reflect "some swelling of . . . both ankles, especially the right one," and that "the patient was walking without too much difficulty." (Ex. D13, p.4).
Taken together, the record does not by a preponderance of the evidence compel the factual conclusion that either defendant necessarily should have, or must have, been aware of plaintiff's injury
III. Conclusions of Law:
Plaintiff is not understood to complain about the care he received after his 12/29 complaint to Dr. Kanar; rather, plaintiff complains that the evidence shows that the failure to treat him during the period from 12/22/87 until Kanar's visit on 12/29/87 constitutes denial of his rights under the Eighth Amendment by defendants Lodge and Crozier. Failing that, plaintiff claims that the failure of these defendants to comprehend his condition during that period constitutes at least negligence under New York State law.
a. 42 U.S.C. § 1983:
To prevail on his claim under Title 42, section 1983, plaintiff must show that officials were 1) acting under color of state law, 2) that their actions deprived plaintiff of a right guaranteed by the constitution or the laws of the united States, see, Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908, (1981), and 3) that the defendants' acts were the proximate cause of the injuries and consequent damages sustained by the plaintiff. Martinez v. California, 444 U.S. 277, 62 L. Ed. 2d 481, 100 S. Ct. 553, (1980). Under § 1983, the standard for determining if there has been an unconstitutional denial of medical care is whether there has been a deliberate indifference to prisoner's serious medical need, illness or injury. Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); see also, Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. den'd, 502 U.S. 849 (1991); Hathaway v. Coughlin, 841 F.2d 48 (2d Cir. 1988).
Deliberate indifference to the serious medical needs of prisoners was defined by the Supreme Court as that which "constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Estelle, 429 U.S. at 104 (1976), citing Gregg v. Georgia, 429 U.S. 182 (1976). While one isolated failure to provide medical treatment to a prisoner, without more, is ordinarily not actionable, such action may rise to the level of constitutional violation if surrounding circumstances suggest a degree of deliberateness, rather than inadvertence, in the failure to render meaningful treatment. Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987), Brown v. Coughlin, 758 F. Supp. 876 (S.D.N.Y. 1991).
On this record plaintiff has failed to demonstrate deliberate indifference on the part of either of these defendants. The Court has found that after the use of force incident plaintiff was examined by physician's assistant Belkin and did not bring his injury to Belkin's attention. Plaintiff thereafter remained highly agitated and refused all care from the MSHU psychiatric staff, including defendant Crosier who visited plaintiff twice during his confinement in OBS I. On both visits Crosier attempted to interview plaintiff to ascertain his condition and needs and in both instances Crosier was violently rebuffed. In the absence of overt symptoms of his injury plaintiff had no Constitutional right to expect further from Crosier. Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir. 1986); cf. P.C. v. McLaughlin, 913 F.2d 1033, 1044-45 (2d Cir. 1990) (no clearly established right to counselling services having rejected them when offered).
Likewise, the evidence establishes only that defendant Lodge discharged his duties and suffered abuse from plaintiff in return. See Gill, 824 F.2d at 196 (dismissal appropriate if plaintiff's behavior made it difficult or impossible for him to be treated effectively). In the absence of evidence that Lodge knew or had reason to know of plaintiff's injury, Lodge is not fairly chargeable with deliberate indifference to plaintiff's medical needs. Cf. H.C. v. Jarrard, 786 F.2d 1080, 1083 (11th Cir. 1986) (prevailing plaintiff's demands for medical attention ignored for three days); Lewis v. Cooper, 771 F.2d 334, 337 (7th Cir. 1985) (jury found that prevailing plaintiff "requested medical assistance immediately" and obviously required medical care).
Nor does the record support the imposition of supervisory liability on Crosier for his failure to institute a policy of follow-up medical exams for inmates admitted to OBS I. See Williams v. Smith, 781 F.2d 319 (2d Cir. 1986). As found above, inmates admitted to OBS I are given a preliminary medical examination. C.O.s assigned to OBS I are required to make rounds every fifteen minutes and, as Lodge demonstrated at his deposition, are instructed of DOCS' and MSHU's policy that each medical complaint should be reported to MSHU medical staff for assessment. The record further reflects that this policy was followed as to at least one other inmate during the relevant period. These policies are reasonably designed to provide sufficient protection of inmates' rights under the Eighth Amendment. That plaintiff was particularly uncooperative and suffered an injury which was not immediately apparent does not render these policies constitutionally infirm. Indeed the record reflects that upon the first documented report of his injury to MSHU staff plaintiff received prompt and adequate medical care.
In short then, the Court finds that neither Crosier nor Lodge are liable under § 1983 or the Eighth Amendment.
Plaintiff's common-law negligence theory fails for similar reasons. Negligence, of course, requires the Court to find that these defendants had a duty of care to plaintiff; that these defendants breached that duty; and that plaintiff was damaged as a result of that breach. See Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976); 79 NY Jurisprudence 2d, Negligence § 8. In this case the defendants' had a duty of reasonable care to plaintiff. In the absence of a showing by a preponderance of the evidence that either defendant had notice of plaintiff's injury or would have discovered plaintiff's injury but for the failure to exercise due care, however, the Court finds no breach of the duty of reasonable care by these defendants. See Pulka 40 N.Y.2d at 782 (in the absence of duty there is no breach and without a breach there is no liability).
Once again, the evidence establishes neither that these defendants were told by plaintiff of his injury nor that the nature of that injury was such that these defendants should have discovered it in the exercise of due care. Rather, the record shows that these defendants took reasonable steps to ascertain and monitor plaintiff's condition, and that when plaintiff disclosed his injury to them he received prompt medical attention. Plaintiff has not, therefore, established that either Lodge or Crosier were negligent in their dealings with him.
The Court notes also that plaintiff, at least in his pretrial memorandum, attempts to assert a claim for inadequate psychiatric care based primarily on the failure of MSHU psychiatrists to monitor him during the period from 12/23 to 12/28. The record does not reflect any per se violation in this regard. Certainly Lodge had no duty regarding plaintiff's psychiatric care. Furthermore, Crosier visited plaintiff on 12/24 and was violently rebuffed. Finally, plaintiff was not "totally abandoned" during the period following Crosier's visit until Kanar and Crosier's return visits on 12/29, (a holiday period during which Crosier was off.) The fact is that plaintiff was monitored around the clock and provided prescribed medications and had access to round the clock nurses. In any event plaintiff introduced no evidence that the care he received fell below the standard of care in the relevant community Schrempf v. State, 66 N.Y.2d 289, 295, 496 N.Y.S.2d 973, 487 N.E.2d 883 (1985), or that he was damaged in some way by the failure of psychiatric staff to visit during this period. See Pulka 40 N.Y.2d at 784 ("'Negligence in the air, so to speak, will not do'") (citations omitted).
Notwithstanding counsel's able and compassionate representation of his client, the evidence simply does not establish the liability of either defendant Crosier or defendant Lodge under either of plaintiff's legal theories. Judgment is therefore entered in favor of defendants Lodge and Crosier and plaintiff's complaint is DISMISSED in its entirety.
IT IS SO ORDERED
Binghamton, New York
July 22, 1995
Thomas J. McAvoy
Chief U.S. District Judge.