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SMITH v. MONTEFIORE MED. CENTER-HEALTH SERVS. DIV.

October 14, 1998

KENNETH SMITH, Plaintiff, against MONTEFIORE MEDICAL CENTER-HEALTH SERVICES DIVISION; NEW YORK CITY DEPARTMENT OF CORRECTION; DEPUTY WARDEN OF PROGRAMS MANZI; JOHN DOE 1 (ASBESTOS COORDINATOR); JOHN DOE 2 (DOCTOR-PHYSICIAN ASSISTANT) and JANE DOE, Defendants. THE CITY OF NEW YORK s/h/a THE NEW YORK CITY DEPARTMENT OF CORRECTION, Third-Party Plaintiffs, - against - DAKAR CONSTRUCTION CORPORATION and DAKAR DEVELOPERS INC., Third-Party Defendants, DAKAR DEVELOPERS INC., Fourth-Party Plaintiff, - against - A.L. EASTMOND & SONS INC. d/b/a ALE, INC., D & S RESTORATION, INC. and RELIANCE NATIONAL INSURANCE COMPANY OF NEW YORK, Fourth-Party Defendants.


The opinion of the court was delivered by: SCHEINDLIN

OPINION & ORDER

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Plaintiff, proceeding pro se, brings this action under 42 U.S.C. § 1983 against Montefiore Medical Center, the City of New York, *fn1" and Deputy Warden Angelo Manzi (the "municipal defendants") alleging, inter alia, that he was denied medical care while he was in the custody of the New York City Department of Correction. See Amended Complaint, P IV(3)-(5). Thereafter, the municipal defendants instituted a third-party action against Dakar Developers Inc. seeking contractual indemnification. Dakar Developers Inc. then brought a fourth-party action for breach of contract against A.L. Eastmond & Sons, Inc., Reliance National Insurance Company of New York, and D&S Restoration, Inc. (collectively "D&S").

 By Order of Magistrate Judge James C. Francis dated June 5, 1997, defendants were granted permission to move for summary judgment. The municipal defendants and D&S moved on the ground that there is no evidence that plaintiff suffered from a serious medical condition as the result of his alleged exposure to asbestos. For the following reasons, summary judgment is granted in defendants' favor and plaintiff's complaint is hereby dismissed.

 I. The Facts

 A. Plaintiff's Claims

 In May 1994, plaintiff was arrested and charged with second-degree robbery. See Deposition of Kenneth Smith ("Smith Dep."), p. 53, annexed as Exhibit C to the Declaration of Christopher Reo, attorney for the municipal defendants, sworn to June 19, 1998 ("Reo Decl."). He was taken into the custody of the New York City Department of Correction ("NYCDOC") on May 10, 1994. Smith Dep., p. 9. On August 12, 1994, while housed in the George Motchan Detention Center ("GMDC"), *fn2" plaintiff alleges that a corridor ceiling covering collapsed causing him to be showered with debris, dust, rocks and insulation material. Id., pp. 56, 107, 111.

 Plaintiff alleges that the debris and dust entered his mouth, eyes, nose, and covered his body. Id., pp. 95, 111, 115, 119. Plaintiff claims he was trapped in the hallway between 30 and 45 seconds and breathed 15 to 20 times before someone inside the prison law library opened the door and allowed him to enter. Id., pp. 115, 117, 124-25. Plaintiff states that he rinsed the material from his mouth, eyes and nose at a sink in the law library. Id., pp. 122-24. The material, according to plaintiff, was later discovered to be asbestos. *fn3" See Amended Complaint, P IV. After the incident, plaintiff allegedly began having trouble breathing, his eyes reddened and teared, and his nose was clogged and runny. Smith Dep., pp. 130-31; 205-08.

 Plaintiff states that he signed up for sick call on the day of the exposure but was not called to the prison's Montefiore Medical Clinic until August 15, 1994, three days later. Amended Complaint, P IV(4). Plaintiff asserts that he repeatedly asked to go to emergency sick call over the weekend. Id. In response to these requests, plaintiff was allegedly told by Montefiore staff that asbestos exposure was not an emergency. Id.

 Plaintiff also claims that Deputy Warden Manzi was of no assistance in securing medical assistance. When confronted with plaintiff's exposure, Warden Manzi allegedly responded: "What are you wooried [sic] about it for? It'll be twenty to thirty years before that kind of asbestoes [sic] will make you sick!" Id., P IV(3). In a declaration sworn to September 15, 1998 ("Manzi Decl.") (a copy of which is attached as Exhibit A to the Reply Declaration of Christopher Reo, attorney for the municipal defendants, sworn to September 17, 1998), Deputy Warden Manzi states that he is "not aware of any instance in which an inmate at G.M.D.C. informed [him] that he had been exposed to asbestos." Manzi Decl., P 3. Furthermore, Deputy Warden Manzi refutes plaintiff's contention that he observed plaintiff in clothing covered with a white dusty substance which he had reason to know was asbestos. Id., P 4. Although Deputy Warden Manzi has no recollection of plaintiff's alleged request for medical attention on August 12, 1994, he states that it is his practice and procedure to assist inmates in obtaining medical attention. Id., P 5. Accordingly, Deputy Warden Manzi denies plaintiff's allegation that he directed personnel at the GMDC prison health clinic to neither treat nor record plaintiff's alleged exposure to asbestos. Id., P 6. Once again, for the purposes of this motion, I will accept Smith's allegations at true.

 Plaintiff went to the Montefiore Medical Clinic on August 15, 1994 and complained that he was coughing and had difficulty breathing, and that his eyes were irritated. Smith Dep., pp. 207-08. He was given cough medication and eye solution for his symptoms. Amended Complaint, P IV(5). He was also sent for x-rays and sputum tests. Id. According to plaintiff, on subsequent sick call appearances he was refused treatment by Montefiore staff who allegedly stated that "it was institutional policy not to deal any longer with the individuals reporting to sick-call for treatment of asbestoes [sic] exposure." Id.

 Plaintiff claims that as a result of the August 12 incident, he suffers from nasal congestion, shortness of breath, pain in his rib cage, and dizziness. Smith Dep., p. 226. He also claims to suffer from the following progressively degenerating maladies: respiratory infections, pleuritis, asthma, acute bronchitis, conjunctivitis, rhinitis, and inflammatory disease of the paranasal sinuses. See Affidavit of Kenneth Smith, sworn to August 6, 1998 ("Smith Aff."), P 1(a). He also claims that a pre-existing hearing condition worsened due to the alleged asbestos exposure. Finally, plaintiff avers that he suffers emotional and mental anguish as well as a fear of developing asbestos-related illness in the future. Id., P 1(c).

 B. Plaintiff's Medical Records

 While incarcerated by the NYCDOC, plaintiff was housed at the GMDC and the Otis Bantum Correctional Center ("OBCC"). While at the GMDC, plaintiff admits that he was treated at the Montefiore Medical Clinic 5 to 10 times for his asbestos complaints. Smith Dep., p. 224. At the OBCC, plaintiff went to the clinic approximately 10 to 15 times for respiratory and other problems and saw more than 20 health professionals while he was there. Id., pp. 237-38. Plaintiff was evaluated by medical personnel upon transfer from the GMDC to the OBCC. However, this evaluation does not indicate that plaintiff complained of asbestos exposure or that he suffered from any respiratory condition. See Reo Decl., Exh. L (November 11, 1994 OBCC Intake History and Physical Examination form). Similarly, plaintiff's December 28, 1994 admission record into Bellevue Hospital for treatment for unrelated injuries does not mention exposure to asbestos or indicate that plaintiff suffered from any respiratory conditions at that time. See Reo Decl., Exh. M.

 In March 1995, plaintiff was transferred from the NYCDOC to the New York State Department of Correctional Services ("NYSDOCS"). Upon transfer, plaintiff was examined and interviewed by medical professionals. At that time, plaintiff did not complain, nor do his medical records indicate, that he was exposed to asbestos or suffered from any respiratory condition. See Reo Decl., Exh. N (March 16, 1995 NYSDOCS Medical Pre-Screening Form). While incarcerated by the NYSDOCS, plaintiff was admitted to the Erie County Medical Center ("ECMC") for treatment for unrelated injuries. Upon admission, plaintiff's medical history and physical condition were reviewed by medical professionals ...


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