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June 10, 1998

LUIS ROSALES, Plaintiff,
THOMAS A. COUGHLIN, et al., Defendants.

The opinion of the court was delivered by: LARIMER


 Plaintiff, Luis Rosales, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, who is an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that defendants, who include various DOCS employees and officials, deliberately failed to provide plaintiff with adequate medical care for back and leg problems stemming from a work-related accident in 1986, prior to plaintiff's incarceration. Plaintiff alleges that defendants have violated his rights under the Eighth Amendment to the United States Constitution. Both sides have moved for summary judgment.


 There is no dispute that plaintiff was injured in 1986, and that at the time that he entered DOCS' custody in 1991, he had some ongoing problems with his back and his left leg. The complaint contains some fifteen pages of factual allegations concerning defendants' actions, but in general plaintiff alleges that he frequently complained about back pain and other medical problems, and that defendants either did nothing or provided him with inadequate care and treatment.

 Defendants, and their alleged roles in connection with this action, are as follows. Thomas A. Coughlin was the Commissioner of DOCS at the time of the relevant events. Defendants Lee, Shah, and MGee [sic] are all physicians who were employed at correctional facilities where plaintiff was housed. Defendant John Mitchell was at the relevant times a nurse administrator at Clinton Correctional Facility, and plaintiff has also named as a defendant a nurse administrator at Southport Correctional Facility, who, according to defendants, is B.J. Obremski. Defendant Robert Greifinger was the Chief Medical Officer of DOCS. Defendants Jimmie Harris and Joan Rosado were both DOCS Regional Health Services Administrators. Defendants Kelly and Donnelly were respectively the Superintendent and the Deputy Superintendent of Security at Attica Correctional Facility while plaintiff was incarcerated there. Defendants Sticktch and Monin were sergeants at Attica, and defendant Witowski was a corrections officer there.

 The gist of plaintiff's allegations is that the medical treatment he received was inadequate, that he complained about these matters to DOCS officials, and that nothing was done in response. Plaintiff admits that he was seen by physicians and other medical personnel on many occasions, but he claims that their treatment was not sufficient. About the only allegations that do not fall within this broad characterization are plaintiff's claims that on several occasions Witowski seized from him a cane that had been prescribed by a physician. Plaintiff alleges that on October 30, 1993, Witowski took plaintiff's cane and refused to return it. Plaintiff alleges that on November 3, 1993, while attempting to walk to the shower without his cane, he collapsed, suffering a concussion and severe back pain as a result.

 In a supplemental complaint filed on May 27, 1994, plaintiff also alleges that in late 1993 he complained to Kelly about Witowski's continued harassment of him and that Kelly did nothing in response. He also alleges that on January 27, 1994, Witowski again took his cane. Plaintiff alleges that he complained to defendants Monin, Kelly, and Coughlin, but none of them made any serious effort to investigate the matter.

 In response, defendants contend that the treatment plaintiff has received while in DOCS' custody has been fully adequate and that plaintiff's allegations amount to nothing more than a difference of opinion between him and his health care providers about the nature and extent of the treatment that he requires. Defendants also contend that they are all entitled to qualified immunity because none of their alleged actions or inactions violated any of plaintiff's clearly established rights.


 I. General Standards

 To show that prison medical treatment was so inadequate as to amount to "cruel or unusual punishment" prohibited by the Eighth Amendment, plaintiff must prove that defendants' actions or omissions amounted to "deliberate indifference to a serious medical need." Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); Chance v. Armstrong, 143 F.3d 698, 1998 U.S. App. LEXIS 9280, *8, 1998 WL 228075 *3 (2d Cir. 1998). As the Supreme Court explained in Wilson v. Seiter, 501 U.S. 294, 298-99, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991), this standard includes both an objective and a subjective component. With respect to the objective component, the court must ask whether there has been a sufficiently serious deprivation of the prisoner's constitutional rights. With respect to the subjective component, the court must consider whether the deprivation was brought about by defendants in wanton disregard of those rights. Id. To establish deliberate indifference, therefore, plaintiff must prove that the defendants had a culpable state of mind and intended wantonly to inflict pain. See Wilson, 501 U.S. at 299; DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir. 1991); Steading v. Thompson, 941 F.2d 498, 500 (7th Cir. 1991), cert. denied, 502 U.S. 1108, 117 L. Ed. 2d 445, 112 S. Ct. 1206 (1992); Ross v. Kelly, 784 F. Supp. 35, 44 (W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied, 506 U.S. 1040, 121 L. Ed. 2d 698, 113 S. Ct. 828 (1992).

 The Court in Estelle, however, also cautioned that mere negligence is not actionable. "A [prisoner's] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106. Rather, the plaintiff must allege conduct that is "repugnant to the conscience of mankind" or "incompatible with the evolving standards of decency that mark the progress of a maturing society." Id. at 102, 105-06.

 It is clear, then, that allegations of malpractice do not state a constitutional claim. Estelle, 429 U.S. at 106 and n.14; Chance, 143 F.3d at , 1998 WL 228075 *5; Ross, 784 F. Supp. at 44. Likewise, an inmate's "mere disagreement over the proper treatment does not create a constitutional claim. So long as the treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to an Eighth Amendment violation." Chance, 143 F.3d at , 1998 WL 228075 *5; see also Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) ("The courts will not intervene upon allegations of mere negligence, mistake or difference of opinion"); Massey v. Hutto, 545 F.2d 45, 46 (8th Cir. 1976) (affirming dismissal of inmate's Eighth Amendment claim where evidence showed that "to the extent that [the plaintiff] is not receiving the treatment he desires, his complaint reflects a mere disagreement over proper medical care"); United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970) (affirming dismissal of an inmate's complaint alleging Eighth Amendment violations, because entire basis of his claim was his disagreement with the prison doctor's professional judgment).

 Prison officials also have broad discretion in determining the type and extent of medical treatment given to inmates. Thomas v. Pate, 493 F.2d 151, 157 (7th Cir. 1974), cert. denied, 423 U.S. 877, 46 L. Ed. 2d 110, 96 S. Ct. 149 (1975). Moreover, courts have repeatedly held that a prisoner does not have an absolute right to the treatment of his choice. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986); see also Jackson v. Fair, 846 F.2d 811, 817-18 (1st Cir. 1988) (no claim of deliberate indifference to serious medical needs when prisoner was transferred from high-security psychiatric hospital to general prison population of another institution, because treatment at new facility was adequate and prisoner did not have right to treatment of his choice).

 Nor can the same standards of medical care be imposed upon a prison as those expected of a hospital. In Dean, the Second Circuit stated that a "correctional facility is not a health spa, but a prison in which convicted felons are incarcerated." 804 F.2d at 215; see also Ruiz v. Estelle, 679 F.2d 1115, 1149 (5th Cir.) ("The Constitution does not command that inmates be given the kind of medical attention that judges would wish to have for themselves"), vacated in part as moot, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983).

 II. Plaintiff's Claims

 Applying these standards to the case at bar, it is clear that plaintiff's claims against defendants Lee, Shah, MGee, Mitchell, and the nurse administrator at Southport (collectively "the medical defendants") must be dismissed. Even accepting the allegations of the complaint as true, all that plaintiff can show with respect to these defendants is that he disagreed with them concerning the medical care plaintiff needed.

 Plaintiff's own allegations show that he received extensive care and treatment. For instance, he states that in April 1991, shortly after he entered into custody, he was seen by an orthopedic specialist at Elmira Correctional Facility. Complaint P21. The specialist determined that plaintiff did not need a back brace. Complaint Ex. D-1. Plaintiff disagreed with that conclusion.

 In August 1992, after he had been transferred to Clinton, plaintiff was seen by defendant Dr. Lee. Dr. Lee allegedly told plaintiff that plaintiff did not need a back brace that plaintiff had requested. Complaint P 24. In September 1992, plaintiff was provided with a rib supporter. He insisted that he needed a back brace instead, but defendants did not provide him one. Complaint P 26.

 Defendant Mitchell told plaintiff in September 1992 that plaintiff would be put on a waiting list for examination by an orthopedic specialist at Helen Hayes Hospital. Complaint P 25. In November 1992, plaintiff was temporarily transferred to Downstate Correctional Facility so that he could be taken to Helen Hayes Hospital. Complaint P 28. Plaintiff was dissatisfied with his treatment, however, because he was only examined with respect to his knee problems and not his back pain. Apparently the reason for this was that the person at Clinton who arranged for this examination had determined that plaintiff's back problems had been adequately addressed at Clinton. Complaint Ex. N.

 In November 1992, prior to his transfer to Downstate, a physician at Clinton examined plaintiff after plaintiff complained of back pain. The physician provided plaintiff with a cane. Complaint P 27. Although Witowski allegedly later seized this ...

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