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HALL v. ARTUZ

February 10, 1997

ARTHUR HALL, Plaintiff, against CHRISTOPHER ARTUZ, LAWRENCE ZWILLINGER, and JAMES MANION, Defendants.


The opinion of the court was delivered by: CEDARBAUM

 CEDARBAUM, J.

 Plaintiff Arthur Hall, a state prisoner incarcerated in Green Haven Correctional Facility ("Green Haven") during the time period relevant to this action, sues under 42 U.S.C. § 1983. He alleges that defendants violated his Eighth Amendment rights by denying him proper medical treatment. During the relevant time period, defendant Christopher Artuz was Superintendent of Green Haven, defendant Lawrence Zwillinger was Regional Health Services Administrator of Green Haven, and defendant James Manion was Medical Director of Green Haven. The parties have made cross-motions for summary judgment. For the reasons discussed below, plaintiff's motion is denied and defendants' motion is granted with respect to defendant Manion but denied with respect to defendants Artuz and Zwillinger.

 Background

 Hall alleges in the Complaint that on May 20, 1994, Dr. Howard Baruch, an orthopedic specialist who was not affiliated with Green Haven, ordered that Hall receive physical therapy following knee surgery. Hall claims that he did not receive physical therapy as ordered and that the lack of physical therapy has caused his legs to become very weak and painful. He claims that as a result, he is now unable to climb up or walk down stairs. The Complaint also alleges that Hall's medically required knee braces were taken from him on April 30, 1994, and that he was forced to walk without them until October 7, 1994. *fn1" Hall also alleges that each of the defendants was aware that he was not receiving physical therapy as the doctor had ordered and that each of the defendants was deliberately indifferent to satisfying his medical needs. He claims that Manion reviewed Dr. Baruch's report as part of Manion's responsibility to review and carry out the recommendations of outside specialists. He further alleges that he wrote Zwillinger and Artuz repeatedly about his failure to receive physical therapy. He also alleges that on June 9, 1994, he submitted an inmate grievance concerning his failure to receive physical therapy and knee braces.

 The dates in Hall's Complaint do not seem to be entirely accurate. They are internally inconsistent and at variance with dates suggested in other papers submitted by Hall in connection with these motions. But, it is undisputed that Hall has had multiple knee surgeries. Medical records *fn2" show that Dr. Baruch performed surgeries on September 2, 1992, December 7, 1992, December 30, 1992, and January 20, 1993. Def. Ex. B. The records also show that Hall refused to be evaluated for physical therapy on March 9, 1993. Def. Ex. B. It is undisputed that Hall was placed on a course of physical therapy at some point after his last knee surgery. Records dated in April 1993, May 1993, October 1993, November 1993, and March 1994 prescribe regimens of physical therapy. Def. Ex. B. Records beginning in June of 1993 recommend knee braces. Def. Ex. B. The medical record on which plaintiff appears to rely is a report of a medical consultation dated May 20, 1994, which recommends "therapy" and braces. Attach. Pl.'s Aff.; Def. Ex. B. The signature of the consulting doctor on that report is illegible but presumably it is the report of Dr. Baruch to which plaintiff refers in his Complaint.

 Medical records also show that Hall attended physical therapy from June 2, 1993, to May 9, 1994, for a total of 21 visits. Def. Ex. C. During that time, Hall refused physical therapy six times. Among the reasons he gave for each of these refusals were the fact that he had not been fully informed of the consequences of treatment, that his knees were swollen and sore, that the doctor had ordered him not to attend physical therapy because his knees were to be operated on again, and that it was too late in the day. The records also show two occasions on which Hall did not attend scheduled physical therapy because no "runner" was available and one occasion on which Hall did not attend scheduled physical therapy and an officer stated that they "didn't get call-out" and it was "too late" because Hall could "only attend when no general population inmates are at physical therapy." A report dated December 21, 1993, notes that physical therapy had been prescribed on November 2, 1993, but that Hall had not yet been called for physical therapy.

 From May 5, 1994, to February 4, 1995, Hall was in the Special Housing Unit ("SHU") for disciplinary reasons. Def. 3(g); Def. Ex. E. Defendants assert that during the time plaintiff was in SHU, he continued to receive medical treatment for his knees, including anti-inflammatory medication, rest, x-rays, and permission to use knee supports when he left SHU. Def. Ex. H. Medical records confirm that plaintiff was examined for knee complaints on multiple occasions while he was in SHU. Def. Ex. H. These records do not mention physical therapy, although many of them do refer to knee braces. Defendants do not contend that Hall received any physical therapy after May 9, 1994.

 Discussion

 As a preliminary matter, defendants argue that this Court lacks subject matter jurisdiction over plaintiff's damage claims since claims for money damages against state officials sued in their official capacities are barred by the Eleventh Amendment. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101-02, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984); Farid v. Smith, 850 F.2d 917 (2d Cir. 1988). Defendants state in conclusory terms that "the allegations contained in the Complaint reaffirm that this is an official capacity action" and that "nowhere in the caption or the body of the Complaint are defendants Artuz, Zwillinger and Manion named in their individual capacities." While it is true that the Complaint itself does not expressly state that Hall is suing the defendants in their individual capacities, Hall's "Response to Answer," filed May 18, 1995, states that "state officials can be held liable in individual capacities under § 1983." Thus, the Complaint and the Response to Answer together suggest that Hall is suing the officials in their individual capacities. Accordingly, I treat this action as one against the defendants in their individual capacities.

 Summary judgment is appropriate "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). To defeat a motion for summary judgment brought by the party that does not bear the burden of proof, the party with the burden of proof must make a showing sufficient to establish the existence of every element essential to that party's claim. Celotex Corporation v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). In deciding whether a genuine issue of material fact exists, the court must "examine the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." In re Chateaugay Corporation, 10 F.3d 944, 957 (2d Cir. 1993) (citation omitted). In addition, because plaintiff proceeds pro se, I must read his papers liberally and "interpret them to raise the strongest arguments that they suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (citation and internal quotation marks omitted); see also Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam) (pro se complaints held to less stringent standards than pleadings drafted by attorneys).

 Eighth Amendment Claim

 In order to succeed on his § 1983 claim based on a violation of the Eighth Amendment by inadequate prison medical care, Hall must prove "deliberate indifference" to his "serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). The "deliberate indifference" standard encompasses both an objective and a subjective prong. Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); Hathaway v. Coughlin, 99 F.3d 550 (2d Cir. 1996). First, the alleged deprivation must be, in objective terms, "sufficiently serious." Hathaway, 99 F.3d at 553. Second, the prison official must act with a sufficiently culpable state of mind. Id. A prison official is not deliberately indifferent unless he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of ...


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