submitting affidavits demonstrating that the defendants had delayed emergency medical aid in order to make the plaintiff suffer. The plaintiff in Archer was a pregnant woman who was suffering "torturous cramping and vaginal bleeding . . . [and] ultimately miscarried." Id., at 15. As in the present case, the district court in Archer concluded that the medical records and the defendants' affidavits demonstrated that the plaintiff had received extensive medical attention for her serious condition. The Court of Appeals reversed because the plaintiff's allegations demonstrated the possibility that the defendants had intentionally delayed medical care for five hours, knowing that plaintiff was in "extreme pain," for the primary purpose of making the plaintiff suffer. The five- to six-hour delay was not the determinative fact in Archer. Instead, the seriousness of the plaintiff's condition, the extent of her suffering, and the defendants' desire to cause the plaintiff to suffer all led to the Second Circuit's decision to reverse the summary judgment order.
The present case can be distinguished from Archer in two important ways. First, plaintiff has failed to allege or demonstrate that his medical condition was in any way as serious as the plaintiff's condition in Archer. Not only has he failed to claim that he was in "extreme pain," but he has failed to controvert defendants' evidence that his condition was never sufficiently serious while he was at ECMC. Second, plaintiff has failed to allege that the defendants delayed rendering medical care for the purpose of causing him to suffer. Had he alleged and offered support for such motives, Archer would have been persuasive authority for his opposition to this motion.
Even if plaintiff's contention that defendants delayed treating him in retaliation for his litigiousness is true, this claim is not tantamount to a claim that defendants intended for plaintiff to suffer.
As for the second prong of the deliberate indifference standard, the defendants' state of mind, plaintiff has failed to demonstrate that defendants were both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and that they also drew the inference. See Farmer, 511 U.S. at 837. However, since state of mind is a more difficult fact issue to prove and since plaintiff did not have the opportunity to depose any of the defendants in this case, the court declines to base its finding on this prong. Nevertheless, having found that plaintiff has failed to satisfy the objective prong, the court does not have to address the subjective prong.
III. Retaliatory Denial of Medical Care
In addition to his deliberate indifference claim, plaintiff has claimed that defendants delayed treating plaintiff and "stayed away" from plaintiff as much as possible in retaliation for plaintiff's reputation for being litigious. Specifically, plaintiff contends that the same six-to eight-hour delay in administering oxygen and pain medicine following his arrival in the emergency room, as well as subsequent denials of treatment during his hospitalization from July 8, 1995, through July 11, 1995, were motivated by the defendants' desire to punish plaintiff for his propensity to resort to the courts.
In his complaint, plaintiff alleges that upon entry to the ECMC emergency room, prison officials advised defendants and other medical personnel of plaintiff's propensity to resort to the courts (Item 1, P 7). He further alleges that defendants were told to keep their distance from plaintiff as much as possible in order to avoid being named in a future lawsuit, and that they heeded these warnings (Id., PP 8-9). He claims that defendants explicitly told him that they were ignoring him based on the prison officials' warnings (Id., P 13). Plaintiff admits that after pleading with the defendants for medical care, he told them that if he did not receive the care that he needed and to which he was entitled, he would be forced to sue, and he alleges that Dr. Harris responded by saying: "Go ahead, I have lawyers in my family and malpractice insurance" (Id., P 15).
Defendants correctly note that the federal courts approach prisoner claims of retaliatory conduct with caution. The Second Circuit has repeatedly advised that because claims of retaliation can easily be fabricated, courts should examine prisoner claims for retaliation with skepticism and care. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Flaherty v. Coughlin, 713 F.2d 10, 13 (2d. Cir. 1983).
The Second Circuit has further instructed the district courts that
a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone. . . . [A] complaint which alleges facts giving rise to a colorable suspicion of retaliation . . . will support at least documentary discovery. However, if the production of all relevant documents fails to add substance to the allegations and if the relevant officials submit affidavits explaining their reasons for the challenged actions, summary judgment dismissing the complaint may be granted . . . .
Flaherty, 713 F.2d at 13. In addition, it is the law in this circuit that "in order for [a] plaintiff to maintain a retaliation claim, [he] must prove that the alleged wrong would not have been taken but for the exercise of his constitutional rights." Banks v. Mannoia, 890 F. Supp. 95, 99 (N.D.N.Y. 1995); Haymes v. Montanye, 547 F.2d 188, 191 (2d Cir. 1976).
The court believes that although plaintiff's complaint alleges facts giving rise to a colorable suspicion of retaliation, the medical records and the defendants' affidavits document continuous, ongoing treatment while plaintiff was in the emergency room and throughout his stay at ECMC. The repeated care, examination, diagnostic testing, and provision of medication when medical personnel determined such medication was required necessarily defeats any inference that defendants engaged in any delay or retaliatory denial of care for any serious medical needs with which plaintiff presented. The medical records conclusively establish that rather than remaining ignored and untreated, plaintiff received a significant amount of treatment in the hours following his arrival at ECMC. If there was any delay, it was minor. Thus, the record strongly suggests that plaintiff's treatment was unaffected by anything the prison officials or anyone else said, and was dictated solely by the defendants' evaluation of plaintiff's medical needs.
The court rejects plaintiff's argument that summary judgment is inappropriate in this case since he has not had a full opportunity to carry out meaningful discovery for the same reasons discussed above. The medical records and affidavits clearly set forth the precise medical care that plaintiff received during his stay at ECMC from July 8, 1995, to July 11, 1995. The court fails to see how the depositions which plaintiff seeks to take of the defendants and certain non-party witnesses, all of whom are ECMC medical personnel, would contradict the evidence currently before the court. The court also believes that oral testimony, although arguably helpful, is not necessary to resolve this motion.
For the foregoing reasons, this court finds that plaintiff has failed to state a claim of either deliberate indifference to serious medical needs or retaliatory denial of medical care and therefore grants defendants' motions for summary judgment (Items 11 and 23).
Because the court has granted summary judgment in this case, the remaining three pending motions involving discovery issues (Items 34, 36, and 37) are now moot. Therefore, the complaint is dismissed, and judgment shall enter for defendants.
For the reasons set forth above, I hereby certify that any appeal from this order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a), and leave to appeal to the Court of Appeals as a poor person is hereby denied. Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
Further requests to proceed on appeal as a poor person should be directed, on motion, to the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
JOHN T. CURTIN
United States District Judge
Dated: February 12, 1997