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September 11, 1997

SALLY B. JOHNSON, et al., Defendants.

The opinion of the court was delivered by: HECKMAN

 This matter was referred to the undersigned by the Hon. William M. Skretny, to hear and report, in accordance with 28 U.S.C. § 636(b). Defendants have moved for summary judgment. *fn1" For the reasons that follow, it is recommended that defendants' motion be granted.


 On October 4, 1995, plaintiff filed his complaint in this action. He alleges that defendant Sally B. Johnson, Superintendent of the Orleans Correctional Facility maintained by the New York State Department of Corrections ("DOCS"), and defendant Karen Crowley, a DOCS correction counselor, violated his constitutional rights when they assigned him to work in the mess hall of the Orleans facility. He seeks $ 100,000.00 in compensatory damages.

 The following facts are not disputed. On May 5, 1995, plaintiff was transferred to the Orleans facility. He was examined by medical staff on reception. No acute physical problems were observed (Item 21, Ex. A., pp. 4, 37). On May 23, 1995, plaintiff met with the Program Committee at the Orleans facility for a job placement interview. As a result of the interview, plaintiff was assigned to the mess hall, subject to medical clearance (see Crowley Aff., PP 5-6 (Item 18); Sinha Aff., PP 6-7 (Item 21); Defendants' Statement of Undisputed Facts, PP 6-9 (Item 19)).

 On May 26, 1995, plaintiff was examined by medical staff. No acute problems were noted, and plaintiff was not taking any medications. However, he was not given medical clearance for his mess hall assignment because he had previously tested positive for tuberculosis (see Item 18, P 8 & Ex. A; Item 21, P 8 & Ex. A, pp. 37, 177-78, 195, 213). On May 30, 1995, plaintiff again met with the Program Committee and was advised that additional lab work was needed for medical clearance (Item 18, P 8; Item 19, PP 13-14).

 On June 2, 1995, plaintiff complained to medical staff that he wanted to change his bunk assignment from the top bunk to the lower bunk because he fell out of bed (Item 21, Ex. A, p. 36). He was examined by Dr. Sinha on June 9, 1995. Dr. Sinha found "no medical justification" for reassigning plaintiff to the lower bunk (id.). On June 11, 1995, plaintiff wrote a letter to "N.Y.S. Department of Health Director" in which he stated that he had difficulty getting into the top bunk because of a "leg & hip problem" resulting from his involvement in an automobile accident "about two years" prior to his incarceration. He stated that he informed the doctor about his problem, but the doctor told him that there was nothing wrong with him and that he did not need a lower bunk. He stated that if the problem continued he would "drop a law suit on" the Orleans facility (Item 21, Ex. B).

 On June 13, 1995, Deputy Superintendent R. J. Kirby notified plaintiff that his June 11, 1995 letter had been forwarded to Dr. Sinha (id.). On June 20, 1995, Dr. Sinha sent Mr. Kirby a memorandum in which he explained that plaintiff came to see him on June 9 upon referral from nurse's sick call. Dr. Sinha did not find any evidence to substantiate plaintiff's claim that he fell out of the top bunk (id.).

 Meanwhile, on June 18, 1995, plaintiff wrote a letter to defendant Crowley, who at the time was the correction counselor assigned to the Program Committee. Plaintiff requested that he be assigned to the afternoon/evening shift in the mess hall, rather than the morning/afternoon shift, because he had a problem getting up in the morning (Item 18, Ex. B). He reiterated this request in a letter dated June 20, 1995 (id.). On June 21, 1995, Ms. Crowley notified plaintiff that he would be assigned to the afternoon/evening shift in the mess hall upon medical clearance (id.).

 Plaintiff was examined by Dr. Sinha on June 19, 1995, and was cleared for food service work without restrictions (Item 21, Ex. A, p. 36; Item 18, Ex. D). He began work in the mess hall on June 26, 1995 (Item 19, P 26).

 Plaintiff's medical records show that he was seen at the Orleans facility health services unit on June 20, 1995 for instruction on proper hand washing technique (Item 21, Ex. A, p. 35), on June 26, 1995 for cold symptoms (id.), and on July 13, 1995 for cold symptoms (id., p. 34). On July 13, 1995 plaintiff also requested a complete physical and an appointment with the facility's psychologist, stating that he was "under stress" (id.). He did not attend sick call scheduled for June 21, June 23, July 7 and July 10, 1995 (id., pp. 34-35).

 On July 19, 1995, plaintiff was seen by a nurse at the health services unit. He complained about back pain and continuing cold symptoms from working in the mess hall, as well as a history of back problems (id., p. 33). The nurse contacted the mess hall to advise that plaintiff was to be relieved of duty for the remainder of his shift, and placed on light duty for the next few days (id.).

 On July 21, 1995, plaintiff was examined by Dr. Sinha. Plaintiff requested a general check-up. No medical complaints were noted, and the results of the examination were within normal limits (id.).

 On August 6, 1995, plaintiff was taken to the emergency room at the Orleans facility. He stated that he had fallen while working in the mess hall and complained of lower right back pain. On examination he had full range of motion, appropriate flexion, extension and rotation, with no warmth, swelling or discoloration. He was given an analgesic and an ice pack, and was advised to report to sick call for follow-up treatment as necessary (id., p. 32). He failed to show for sick call on August 7, August 8 and August 18, 1995 (id., pp. 31-32).

 On August 6, 1995, plaintiff wrote to defendant Crowley requesting call-out for a Program Committee meeting. He stated that he was having problems in the mess hall, and requested reassignment to a porter job (Item 18, Ex. E). On August 20, 1995, plaintiff was reassigned to custodial maintenance (id.).

 Plaintiff was transferred from the Orleans facility to the Oneida Correctional Facility in October, 1995, and was examined by Oneida facility medical staff on October 27, 1995 (id., pp. 4, 31). The "Reception Nursing Assessment" form indicated that plaintiff had complained of mid-back pain off and on for the past six months, but was not under any medical care or taking any medications (id., pp. 4, 30).

 Plaintiff's ambulatory health records show that no further complaints of back pain were noted until February 23, 1996, when he requested reassignment to a lower bunk because of back pain (id., p. 26). On February 28, 1996, the facility physician ordered an x-ray of plaintiff's spine (id.). On March 5, 1996, an x-ray was taken at the Mohawk Correctional Facility. The radiologist noted curvature of the lumbar spine, and "essentially unremarkable examination of the thoracic spine" (id., p. 130).


 I. Summary ...

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