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WALKER v. KUBICZ

March 16, 1998

MICHAEL H. WALKER, Plaintiff, against STANLEY KUBICZ, Physician Assistant, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Plaintiff Michael H. Walker, a federal prisoner, suffers from end-stage renal failure and requires ongoing dialysis treatment. He claims that the defendants *fn1" showed deliberate indifference to his medical needs during his incarceration at FCI-Otisville by exhibiting "a pattern and practice" of shortening or delaying his dialysis treatments and by failing promptly to diagnose and treat his case of pneumonia. He brings this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics2 claiming that the defendants violated his Eighth Amendment rights by failing to provide adequate medical care. *fn3"

 The defendants move to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6) or, in the alternative, for summary judgment pursuant to FED. R. CIV. P. 56. They contend that Walker has not shown either that he had any serious unmet medical needs or that any defendant was deliberately indifferent to such needs. Defendants argue, moreover, that each is qualifiedly immune because Walker has failed to show that he or she knowingly violated a clearly established Eighth Amendment right. Walker disputes these assertions and requests a continuance of the motion pursuant to FED. R. CIV. P. 56(f) until defendants comply with additional discovery.

 Discussion

 The Eighth Amendment prohibition against the infliction of cruel and unusual punishments applies to prison officials in providing medical care to inmates. *fn4" In order to state a sufficient Eighth Amendment claim based on inadequate medical care, the plaintiff must make both an objective and a subjective showing as described by the Supreme Court in Farmer v. Brennan.5 "Objectively, the alleged deprivation must be 'sufficiently serious' in the sense that 'a condition of urgency, one that may produce death, degeneration, or extreme pain' exists." *fn6" As for the subjective showing, the plaintiff must demonstrate that the prison official acted with a "sufficiently culpable state of mind." *fn7" This latter requirement involves proof both that the prison official was aware of facts from which he or she could have inferred that a substantial risk of serious harm existed and that the official in fact drew the inference. *fn8" Mere disagreement with prison officials about what constitutes appropriate medical care does not make out a cognizable Eighth Amendment claim. *fn9"

 The burden of establishing that no genuine issue of material fact exists rests with the defendants, the moving parties. *fn10" "The defendants' burden 'will be satisfied if [they] can point to an absence of evidence to support an essential element of the nonmoving party's claim.'" *fn11" If the defendants meet their burden, then the plaintiff must point to specific facts which demonstrate that there is a genuine issue for trial. *fn12" All evidence must be viewed in the light most favorable to the plaintiff, the non-moving party, and all reasonable inferences must be drawn in his favor. *fn13"

 Dialysis Claims Against Defendants Dr. Sundaram, Moore, Sizer and Spears

 There is no dispute that plaintiff suffers from end-stage renal failure and pericardial effusion, that he must receive regular dialysis treatment, and that he normally receives dialysis treatment at the Middletown Dialysis Center ("MDC") three times per week for four hours per visit. *fn14" Plaintiff's claims against Dr. Sundaram, Moore, Sizer and Spears stem from approximately four occasions on which his treatment either was reduced by periods ranging from 15 minutes to one hour or was delayed for a couple of days. According to plaintiff, these reductions and delays caused him extreme pain and discomfort, and defendants ignored and trivialized his complaints and failed to ensure that he receive the proper amount of treatments. *fn15"

 Defendants do not dispute that plaintiff's treatment times vary occasionally. They contend, however, that some variations in treatment are necessary for medical or prison security reasons and, in any event, that such slight variations do not pose an adverse risk to plaintiff's health. The motion is supported principally by a declaration from Dr. Sundaram which states that the MDC staff nephrologist advised him that "the time for each individual session of dialysis may vary depending on Walker's laboratory results and daily weight" and that "shortened dialysis treatment from time to time and/or an occasional missed treatment will not affect Walker's current condition." *fn16" It reports also that Dr. Sundaram saw no "significant adverse medical effects that appeared to stem from shortened or missed dialysis treatments" in his own examinations of plaintiff. *fn17"

 Whether defendants have demonstrated the absence of evidence on the first prong of the Farmer test -- the sufficiently serious and unmet medical need -- presents a close question, chiefly because the Sundaram declaration appears to reflect poor drafting. The issue whether the apparently minor variations in the prescribed treatment regime involved a serious medical risk to the plaintiff obviously is a matter calling for expert medical testimony. Had Dr. Sundaram's declaration explicitly stated his professional opinion that the variations did not pose such a risk, the matter would be resolved because there is no competent evidence to the contrary. But his declaration does not explicitly do so. Rather, it quotes the opinion Dr. Sundaram obtained from the MDC staff nephrologist and adds Dr. Sundaram's testimony that his own observations were consistent with that view. Thus, the declaration inferentially asserts that Dr. Sundaram is of the opinion that there was no serious medical risk, but does not say so directly.

 This is a potentially significant point. The staff nephrologist's opinion, to the extent offered for the truth of the matters asserted, is inadmissible hearsay and therefore not appropriately considered for that purpose on this motion. *fn18" If Dr. Sundaram's declaration, however, were construed as stating his opinion that there was no serious medical risk and that his opinion is based on his own observations and the advice of a qualified specialist, summary judgment would be appropriate on this record. *fn19" But it is unnecessary to decide whether Dr. Sundaram's declaration, given the requirement that the evidence on this motion be viewed in the light most favorable to the plaintiff, may be so construed because there clearly is no genuine issue of fact with regard to the defendants' state of mind, the second prong of the Farmer test.

 To begin with, Dr. Sundaram's declaration amply demonstrates that he believed that the treatment variations involved no material risk to the plaintiff. While the MDC nephrologist's opinion is inadmissible to prove the truth of the matters asserted, it is admissible for the non-hearsay purpose of demonstrating that a qualified specialist told Dr. Sundaram that there was no serious risk. This advice was confirmed by his own observations, which revealed no ill effects to plaintiff. Indeed, as far as the record discloses, plaintiff complained of alleged ill effects to Dr. Sundaram on only one occasion, reporting only that he was "not feeling well." *fn20" ...


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