permits the injury to focus on levels of pain and degeneration.
See, e.g., Chance, 143 F.3d at 702; Hathaway, 37 F.3d at 67.
Nor do the cases cited in Defendant McCollum's opposition to
the Report-Recommendation support a conclusion that Plaintiff's
injuries fail to rise to the level of a serious medical need.
Gibson v. McEvers, 631 F.2d 95, 98 (7th Cir. 1980), which found
that a cold was not a serious medical condition, is inapplicable
here because a cold is fundamentally and factually different from
a persistent elbow injury that has received consistent medical
attention over the past several years. Tyler v. Rapone,
603 F. Supp. 268, 271-72 (E.D.Pa. 1985), is also factually distinct in
that there the inmate's complaint did not allege his condition
was serious and, in fact, the inmate at his deposition indicated
the condition was never serious. In contrast, Plaintiff in the
instant case maintains his condition was and continues to be
serious. The Court is unable to determine whether Dickson v.
Colman, 569 F.2d 1310, 1311 (5th Cir. 1978), is applicable
because the decision fails to provide a sufficient factual basis
underlying its holding. The remaining cases cited by Defendant
McCollum are not on point with respect to the first prong of the
Eighth Amendment test. Each focuses on an inmates's failure to
satisfy the second prong involving deliberate indifference,
rather than the seriousness of the medical condition. See Wood
v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990); Jones v.
Lewis, 874 F.2d 1125, 1128 (6th Cir. 1989); Hutchinson v.
United States, 838 F.2d 390, 394 (9th Cir. 1988); Rodriguez v.
Joyce, 693 F. Supp. 1250, 1253 (D.Me. 1988); Glasper v. Wilson,
559 F. Supp. 13, 14 (W.D.N.Y. 1982).
Therefore, based on the evidence and case law presented, this
Court agrees with Magistrate Judge Sharpe's conclusion that
Plaintiff had an objectively serious medical need and thereby
satisfies the first element of this Eighth Amendment claim.
2. Deliberate Indifference
Turning to the second prong of the Eighth Amendment analysis,
Magistrate Judge Sharpe found that questions of fact exist as to
whether Defendant McCollum was deliberately indifferent to
Plaintiff's health when she allegedly ignored his requests for
medical leave and job reassignment. Deliberate indifference means
that a prison official was both aware of facts from which the
inference could be drawn that a substantial risk of serious harm
existed and drew that inference. See Farmer v. Brennan,
511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
Non-medical prison personnel engage in deliberate indifference
where they "intentionally delayed access to medical care when the
inmate was in extreme pain and has made his medical problem known
to the attendant prison personnel." Hodge v. Coughlin, No. 92
Civ. 0622, 1994 WL 519902, at * 11 (S.D.N.Y. Sept. 22, 1994),
aff'd, 52 F.3d 310 (2d Cir. 1995) (table); see also Estelle,
429 U.S. at 104-05, 97 S.Ct. 285 (noting that deliberate
indifference can be manifested "by prison guards in intentionally
denying or delaying access to medical care.").
Plaintiff alleges that Defendant McCollum ignored his
complaints about his injured elbow and later denied Plaintiff
prompt emergency treatment after he re-injured that same elbow.
Specifically, Plaintiff alleges that he immediately notified
Defendant McCollum of his September 15, 1995 accident and injury
when he allegedly fell from the shelves in the storage room where
he worked. According to Plaintiff's complaint, Defendant McCollum
ignored Plaintiff's request for immediate treatment, despite
knowing that he was injured and in pain. She is said to have
denied access to treatment again on October 4, 1995, when
Plaintiff re-injured his arm while working in the State Shop.
Defendant McCollum denies Plaintiff's claims and asserts that had
Plaintiff informed her of the accident on September 15, which he
did not, she would have immediately sought medical treatment for
any injuries. Defendant McCollum explains that she denied
Plaintiff's October 4 request for sick leave because it was her
practice to relieve prisoners from work only if they were visibly
ill or injured, and Plaintiff appeared to be neither.
Although records maintained by prison officials lend credence
to Defendant McCollum's version of events in that they
show Plaintiff was provided with substantial medical care and
treatment, Plaintiff's affidavits in support of summary judgment
nonetheless raise material factual disputes, regardless of their
likely resolution. For example, Plaintiff identifies intentional
attempts by Ms. McCollum to deny or delay access to medical
treatment when Plaintiff was in severe pain. Specifically his
affidavit filed September 15, 1997 (Docket No. 71) alleges:
9. When I climbed down from the shelf [on September
15, 1995], Ms. McCollum was informed right away, and
I requested to be sent to sick call and have my arm
looked at. My arm-elbow was in such severe pain, from
what just happened with the lifting and the foregoing
banging, that I felt shooting pain throughout my
right arm, up to the side of my neck. Ms. McCollum
told me my injury wasn't life threatening and it was
not an emergency, that I would have to wait until
tomorrow to go to sick call. I asked Ms. McCollum to
look at my arm, because it was already black and blue
and swelling. Ms. McCollum refused to look at my arm
and told me to continue working. . . .
14. On October 4, 1995, Plaintiff again sustained
injury again [sic] to his right elbow, while
performing lifting chores amidst his job assignment.
Plaintiff heard the popping sound which accompanied
[sic] by excruciating pain along his arm. Once again,
Ms. McCollum was informed of this incident, Ms.
McCollum was previously made aware of Plaintiff's
X-ray results. . . . When I asked Ms. McCollum for
the rest of the day off, knowing Plaintiff's pain and
suffering, Ms. McCollum said no. Ms. McCollum also
informed her co-worker, Ms. Johnson, that Mr.
Baumann, will be working late today. . . .
As Magistrate Judge Sharpe noted, if Defendant McCollum were
aware of Plaintiff's injuries and subsequent pain at the time
those injuries occurred, yet failed to provide access to
necessary medical care or treatment, then an Eighth Amendment
violation would be established despite the fact that medical
treatment was later received. See Archer v. Dutcher,
733 F.2d 14, 16 (2d Cir. 1984) (observing that a delay in medical
treatment for the purpose of making an inmate suffer would state
an Eighth Amendment claim). Accordingly, summary judgment is
inappropriate, as questions of fact exist that are dependent upon
the credibility of these two witnesses. The Court cannot accept
Defendant McCollum's version of the facts — despite their
apparent plausibility — over Plaintiff's version in this motion
for summary judgment. See id. at 16, 17 (reversing grant of
summary judgment where inmate's affidavits raised conflicting
factual issues, even though the inmate's case appeared meritless
when considered in light of defendant's affidavits).
B. Unsafe Working Conditions: Deliberate Indifference to
Magistrate Judge Sharpe also recommends denying Defendant
McCollum's motion for summary judgment with respect to
Plaintiff's Eighth Amendment claim of unsafe working conditions.
For Plaintiff to succeed with this particular claim, he must
establish that (1) he was incarcerated under conditions which
posed a substantial risk of serious harm, which is an objective
element; and (2) prison officials acted with deliberate
indifference to his health or safety, which is a subjective
element. See Farmer, 511 U.S. 825, 834, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994). The deliberate indifference standard is the
same as that used for a medical care claim. See Wilson v.