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June 24, 1996

AL-AMIN ABDUSH-SHAHID f/k/a ANTHONY COOK, Plaintiff, against THOMAS A. COUGHLIN, III, Commissioner; PHILLIP COOMBE, JR., First Deputy Commissioner; ROBERT B. GREIFINGER, M.D., Deputy Commissioner; LOUIS F. MANN, Superintendent; RAYMOND J. CUNNINGHAM, Captain; JAY SQUILLACE, Food Service Manager; A. DEGAUST, Lieutenant; J. RECHT, Medical Doctor; B. ALLYN, Medical Doctor; CATHY VACCA, Nurse Administrator; C. SALAVAC, X-Ray Technician; MARY KURTA, Registered Nurse, Defendants.

The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge1

 The plaintiff Al-Amin Abdush-Shahid (formerly known as Anthony Cook), an inmate currently incarcerated at Shawangunk Correctional Facility, brought this action pursuant to 42 U.S.C. § 1983 against former and current prison officials, including doctors and other medical personnel, in both their individual and official capacities. The plaintiff alleges that he was denied proper medical treatment in violation of his federal constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. In addition, the plaintiff contends his Fourth Amendment rights were violated because the defendants released his medical records without his consent. Currently before the Court is the defendants' motion for summary judgment dismissing the plaintiff's entire complaint.

 The plaintiff alleges that the defendants unconstitutionally deprived him of necessary medical care by removing him from a medically prescribed soft-food diet without a proper medical order and by delaying elective surgery to remove a small growth in his salivary gland for almost three years, thereby subjecting him to an unreasonable and unnecessary amount of physical pain and mental anguish.

 The defendants claim that they are entitled to summary judgment on various grounds, including the plaintiff's failure to present evidence that the defendants were deliberately indifferent to a serious medical condition or that the supervisory defendants were personally involved in the alleged constitutional violation. The defendants also assert that in any event they are entitled to qualified immunity.


 The following factual summary is based on the affidavits, the defendants' Local Rule 10(j) statement relating to the motion, and exhibits submitted in connection with the motion. The facts are basically undisputed and are construed in the light most favorable to the plaintiff as the nonmoving party on this motion for summary judgment.

 The plaintiff first complained about a lump in his neck above his Adam's apple on October 22, 1990. On that day, he went to the medical clinic at Shawangunk Correctional Facility and was referred to defendant Dr. Recht ("Recht") for evaluation. On October 24, 1990, Recht examined the plaintiff and x-rayed his neck. (Defs.' 10(j) PP 1-2; Vacca Aff. PP 2, 3; Cook Aff. PP 4, 5.)

 The plaintiff claims that at this first appointment he was told he would be called back for a follow-up appointment if the x-ray revealed any abnormality but that no one ever called him about the results of his x-ray. Instead, the plaintiff alleges, he did not learn that the x-ray revealed a glandstone in his salivary gland until he returned to the medical clinic over a month later on December 4, 1990. (Cook Aff. PP 6, 7.) On that day, defendant Dr. Allyn ("Allyn") told the plaintiff that the x-ray showed an eight-millimeter calculus submandibular, a small stone located in the plaintiff's left salivary gland, and referred him to the Ear, Nose, and Throat (ENT) Clinic. Allyn also placed the defendant on a soft-food diet and gave him pain medication. (Defs.' 10(j) P 3; Vacca Aff. P 4; Cook Aff. P 8.) The following day, the plaintiff, who complained that he was having difficulty with the soft diet, was placed on a full liquid diet. (Defs.' 10(j) P 4; Vacca Aff. P 5.) The ENT specialist, Dr. Stein ("Stein"), saw the plaintiff on December 8, 1990 and ordered a CAT scan of the area where the growth was detected. (Defs.' 10(j) P 5; Vacca Aff. P 6; Cook Aff. P 10.) The plaintiff was also placed back on a full regular diet. (Defs.' 10(j) P 6; Vacca Aff. P 6.)

 On January 4, 1991, the plaintiff requested emergency sick call, claiming that he was spitting up blood clots and had difficulty swallowing food. He was again placed on a full soft diet with a supplement. A second x-ray was taken to determine whether the growth had increased in size. The film showed that the growth was the same size as it was on October 24, 1990. (Defs.' 10(j) P 5; Vacca Aff. P 6.) A CAT scan performed on January 21, 1991 at Horton Memorial Hospital in Middletown, New York again revealed a growth in the plaintiff's submandibular region. (Defs.' 10(j) P 7; Vacca Aff. P 8; Cook Aff. P 11.) The plaintiff was scheduled to see Stein at the ENT Clinic on February 9, 1991. The plaintiff alleges that defendant Nurse Administrator Vacca ("Vacca") should have sent Stein both the written report of the CAT scan and the actual film itself, but because she only sent the written report, Stein was unable to determine whether he would have to operate extra-orally or intra-orally to remove the growth. (Cook Aff. P 12.) The defendants claim that Stein asked for the actual film only after he saw the plaintiff on February 9. (Defs.' 10(j) P 8; Vacca Aff. P 9.) Stein planned to look at the CAT scan films on the plaintiff's next clinic visit, rescheduled for March 9, 1991, but this appointment was cancelled. (Defs.' 10(j) P 8; Vacca Aff. P 9; Cook Aff. P 13.) The defendants claim that Stein could not keep the appointment because he had to attend to an emergency. (Defs.' 10(j) P 8; Vacca Aff. P 9.)

 On March 17, 1991, the plaintiff complained of a persistent pain in his neck. The plaintiff told medical personnel he was not taking pain medication because he was fasting. (Defs.' 10(j) P 9; Vacca Aff. PP 10, 11; Cook Aff. P 14.) The defendant claims that he is a Muslim who was obligated to fast during the Month of Ramadan. (Cook Aff. P 14.)

 The plaintiff again saw Stein on April 6, 1991. Stein recommended that an intra-oral excision of the plaintiff's submandibular stone be scheduled. (Defs.'s 10(j) P 11; Vacca Aff. PP 10, 11; Cook Aff. P 15.)

 On April 26, 1991, the plaintiff was taken off his medically prescribed soft diet. (Defs.' 10(j) P 12; Vacca Aff. P 4; Cook Aff. P 18.) The defendants allege that this occurred because the plaintiff had abused his special diet privileges from April 22 to April 26 by accepting his meals but not eating them. (Defs.' 10(j) P 12; Vacca Aff. P 4.) He accepted but did not eat 12 of 14 meals from April 22 to April 26. (Squillace Aff. P 4; Defs.' 10(j) P 13.) In a memo to Vacca, defendant Squillace, the Food Services Manager, recommended that Allyn remove the plaintiff from the special diet program, and Allyn ordered it done. (Defs.' 10(j) P 13; Compl., Exh. D.) While the plaintiff does not dispute he did not eat the special meals, he contends that he did not eat them because they were "unfit for human consumption." (Compl., Exh. E.) On May 3, 1991, the plaintiff went to the medical clinic claiming that he had not eaten in 8 days. He refused to be weighed or to have his vital signs monitored, however. (Defs.' 10(j) P 14; Vacca Aff. P 13; Ratner Aff., Exh. A (5/3/91 Ambulatory Health Record).)

 In a letter dated April 26, 1991 to defendant L.F. Mann, the superintendent of Shawangunk, the plaintiff complained that he had been improperly taken off his therapeutic diet and that he had been waiting eight months for the removal of a salivary glandstone. (Compl., Exh. E.) The deputy superintendent defendant Cunningham, who responded to the plaintiff by letter on May 13, 1991, stated that he had investigated the plaintiff's complaints against both the food service and medical departments, and that he had learned that the plaintiff was not cooperating with the medical staff and that there was no information to support the plaintiff's complaints. (Compl., Exh. C.)

 On May 22, 1991, the Medical Department at Shawangunk referred the plaintiff to the Dental Department to schedule an appointment with an oral surgeon to evaluate the plaintiff's glandstone. Dr. Clayton Hise ("Hise") examined the plaintiff and determined that he had an 8 millimeter by 10 millimeter opacification in the body of the left submandibular gland, the same size as previous examinations had indicated. (Defs.' 10(j) P 15; Russ Aff. P 2; Cook Aff. P 22.) Hise discussed with the plaintiff the possible treatments for this condition, which included no further treatment or surgical excision of the left submandibular gland. (Defs.' 10(j) P 15; Russ Aff. P 2.) Although Hise told the plaintiff that surgical excision of the growth involved a possibility of permanent damage to the lingual or hypoglossal nerves, the plaintiff told the doctor he wanted to have the surgery. (Defs.' 10(j) P 15; Cook Aff. P 22.)

 In late April 1991, the plaintiff had complained to defendant Phillip Coombe, Jr., First Deputy Commissioner, that he was not receiving his medically prescribed soft-food diet and that surgery to remove his salivary glandstone had not yet been performed. By letter dated May 29, 1991, Coombe responded through his deputy Robert Greifinger that he had found no basis for the plaintiff's complaint. (Compl., Exhs. G, H.) Greifinger's letter to the plaintiff stated that "the health staff is aware of your concerns and it appears that you are being appropriately cared for." (Compl., Exh. H.) Greifinger noted that the plaintiff's surgery had been rescheduled due to a required court appearance, and he assured the plaintiff that he "should receive the surgery in the near future." (Id.) In addition, Greifinger stated that he had learned the plaintiff's diet had been discontinued because he was not eating his special meals. (Id.)

 On June 4, 1991, the plaintiff wrote another letter to defendant Greifinger because the plaintiff believed that Greifinger was "mis-informed." (Compl., Exh. J.) This letter stated that the plaintiff had not eaten his special meals because they were not fit for human consumption and suggested that Greifinger did not understand the real reasons that his surgery had been delayed. (Id.) On June 27, 1991, Greifinger informed the plaintiff that the Division of Health Services and the Health Care staff had investigated his complaints; that he learned the diet was discontinued because the plaintiff was noncompliant, and that the discontinuance had no side effects; and that Stein had been evaluating the plaintiff's condition on an ongoing basis and an appointment had been scheduled in the near future. (Compl., Exh. L.) On June 4, 1991, the plaintiff also filed a grievance concerning the delay in treatment. Defendant Mann responded that the delays "were not under the medical units [sic] control" and that surgery was scheduled. (Cook Aff., Exh. A.)

 Stein was scheduled to perform the surgery on June 26, 1991 at Butterfield Hospital. Pre-operative bloodwork was done on June 21, 1991, and on June 25, 1991, another x-ray was taken to reevaluate the size and position of the stone, which remained unchanged since the first x-ray taken on October 24, 1990. (Defs.' 10(j) P 17; Vacca Aff. PP 15, 30; Russ Aff. P 3; Cook Aff. P 19.) Stein was unable to operate that day because the plaintiff's CAT scan films had not been sent to the hospital. (Defs.' 10(j) P 18; Vacca Aff. P 16; Cook Aff. P 19.) The plaintiff alleges that defendants Vacca, Recht, and Allyn were responsible for sending the CAT scan films. (Cook Aff. P 19.) On July 1, 1991, the plaintiff informed defendant Greifinger that his surgery had been postponed because the medical staff had failed to send the CAT scan films to the hospital. (Compl., Exh. M.) On the same day, the plaintiff also complained in writing to defendant Mann, stating that the "gross negligence" of the medical staff had caused his surgery to be delayed for ten months. (Compl., Exh. M.)

 The plaintiff's operation was rescheduled with Hise on July 26, 1991 at Vassar Brothers Hospital. The surgery was again cancelled, however, because the plaintiff's blood analysis indicated that he had elevated liver enzymes, and the anesthesiologist refused to administer anesthesia under such circumstances. (Defs.' 10(j) P 19-20; Cook Aff. P 23.) The defendants claim that it is likely that the surgery would not have been performed on June 26, 1991 for the same reason. (Defs.' 10(j) P 20; Russ Aff. P 5.)

 The defendants claim, and the plaintiff does not contest, that when an anesthesiologist overrides a surgeon's determination that a patient is fit for surgery, an internist must do a history and physical of the patient and give clearance for surgery. On August 12, 1991, Dr. Russ ("Russ") spoke to Hines, Assistant Commissioner of Health Services, who stated that an internist with privileges at Vassar Hospital must clear plaintiff in order for him (Hise) to perform the surgery. Hise spoke to a number of internists but none was willing to take on the case. Russ then advised Dr. Devane ("Devane"), the Acting Director of Dental Services, of the problems he had encountered obtaining a surgeon to perform the plaintiff's surgery. Devane consulted with Hines, who, after reviewing plaintiff's medical records, scheduled an appointment for the plaintiff to be seen at Upstate Medical Center on September 18, 1991 for surgical evaluation. (Defs.' 10(j) at PP 21-22; Russ Aff. PP 6, 7; Cook Aff. P 24.)

 Some time before August 16, 1991, the plaintiff wrote to defendant Coughlin to complain about the medical treatment he had received at Shawangunk. Coughlin responded in a letter dated August 16, 1991 that an investigation into the plaintiff's complaints revealed that surgery to removal his glandstone had been postponed because of problems with his bloodwork, that new bloodwork had been performed, and that if the results were normal, the plaintiff would be rescheduled for surgery. (Cook Aff., Exh. A.)

 The plaintiff's surgery was rescheduled for September 18, 1991. (Russ Aff. PP 6, 7.) On September 12, 1991, the plaintiff was transferred to Auburn Correctional Facility where he was housed while being treated at the SUNY/Upstate Medical Center. (Defs.' 10(j) P 23; Cook Aff. P 25.) On September 18, 1991, he was examined at SUNY/Upstate Medical Center, but his surgery was once again cancelled because his bloodwork indicated abnormal liver enzymes. (Defs.' 10(j) P 23; Russ Aff. P 8; Vacca Aff. P 20; Cook Aff. P 26.) Blood work was to be done on the plaintiff while in prison at Auburn, and follow-up appointments were scheduled with the Medical and ENT clinics at Upstate for October 10 and 11, 1991. However, on September 23, 1991, the plaintiff refused to permit the bloodwork to be done at Auburn. (Defs.' 10(j) P 23; Russ Aff. P 8; Vacca Aff. P 20; Ratner Aff., Exh. A (9/23/91 Refusal of Medical Exam. and/or Treatment form).) The plaintiff was then returned to Shawangunk on September 25, 1991. (Defs.' 10(j) P 24.)

 The bloodwork the Upstate clinic ordered was performed at Shawangunk on September 27, 1991. (Defs.' 10(j) P 25; Russ Aff. P 10; Vacca Aff. P 21; Ratner Aff., Exh. A (9/27/91 Ambulatory Health Record).) The plaintiff was told he was on administrative hold awaiting a trip back to Auburn and the Upstate Medical Center, where he would be examined by an internist and his surgery would be rescheduled. The plaintiff never made this trip. The defendants allege that this trip was cancelled because the plaintiff refused to be housed at Auburn, citing security concerns. (Defs.' 10(j) P 25; Russ Aff. P 9; Cook Aff. P 28.) In a memorandum dated September 27, 1991 from the plaintiff to Louis Mann, the superintendent of Shawangunk, the plaintiff affirmed that he disallowed the Facility Health Director at Auburn from rendering medical attention to him "under any circumstances" and that

medical attention like that which I received in Auburn, I do not need or want. Additionally, I stand by my writing(s) with respects to the medical staff at Auburn Correctional Facility and them being able to treat me.

 (Cook Aff., Exh. A.)

 The defendants then made efforts to accommodate the plaintiff's apparent refusal to travel to Auburn. On October 10, 1991, Russ alerted Dr. Robert McArdle ("McArdle"), Director of Dental Services, of the plaintiff's situation. McArdle suggested that a local surgeon, Dr. Tse ("Tse"), review the case. On October 18, after reviewing the plaintiff's medical history, radiographs, and case history, Tse informed Russ that he was not interested in the case. (Defs.' 10(j) P 26.) On October 22, 1991, Russ spoke to a representative of Medicus, an HMO, about whether Medicus had an internist who had privileges at Vassar Hospital who could clear the plaintiff for surgery, and learned that Medicus did not. On October 28, Vacca told Russ that Dr. Chandler ("Chandler"), an internist at Green Haven Correctional Facility, had privileges at Vassar. (Defs.' 10(j) P 27; Russ Aff. P 12; Vacca Aff. P 22.)

 Meanwhile, the plaintiff was seen by prison medical personnel many times during the month of October 1991. He was placed on a dental soft diet on October 8, and he was proscribed pain mediation on several occasions. At times slight swelling on the side of his neck and tenderness at the submandibular site were noted. (Ratner Aff., Exh. A (10/2/91-10/30/91 Ambulatory Health Records).) The plaintiff also sent letters complaining about his medical treatment to defendant Coughlin. In a letter dated November 6, 1991, Coughlin stated that the Division of Health Services had investigated the plaintiff's medical treatment and informed Coughlin that abnormal bloodwork and the plaintiff's lack of cooperation delayed the surgery. Coughlin concluded that "every effort has been made to address your health concerns." (Cook Aff., Exh. A.)

 On November 8, 1991, Chandler saw the plaintiff at Green Haven for a pre-operative history and physical. Although Chandler cleared the plaintiff for surgery, the plaintiff allegedly called Chandler an idiot. The plaintiff sent Russ and Sheridan letters stating that he wanted a second opinion because he did not want anesthesia administered improperly. Russ told the plaintiff that it was up to him whether he wanted to have the surgery. (Defs.' 10(j) P 28; Cook Aff., Exh. A. (11/19/91 Letter from Cook to Sheridan); Cook Aff., Exh. A (11/8/91 Letter from Cook to Russ).)

 The plaintiff was not present at the Shawangunk facility from December 4, 1991 to December 17, 1991 because of a court appearance and was thus unavailable for treatment during this time period. (Defs.' 10(j) P 29; Vacca Aff. P 24; Cook Aff. P 31.) On December 18, 1991, the plaintiff requested pain medication because his medicine order had expired while he was out of the facility. The plaintiff refused the Extra Strength Tylenol that was offered to him, and was scheduled for a medical renewal evaluation by Allyn on December 26, 1991. (Defs.' 10(j) P 29.) On December 22, the plaintiff requested emergency sick call, complaining of pain and swelling in his neck and stating that Extra Strength Tylenol was not effective for relief of his pain. No obvious swelling was noted, but the submandibular site was tender to the touch. Defendant Recht, who was contacted by phone, prescribed Anaprox. On December 26, defendant Allyn renewed the plaintiff's Anaprox prescription. (Defs. 10(j) P 30; Vacca Aff. PP 24-25; Ratner Aff., Exh. A (12/17/91-12/26/91 Ambulatory Health Records).)

 On December 20, 1991, the plaintiff went to the Dental Department and asked that Russ reschedule the surgery. Russ spoke to Hise, who stated that he would schedule the surgery, but it would require two oral surgeons and could not take place ...

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