In 1989, three years prior to his incarceration, plaintiff
fractured his left elbow when he fell from a horse. Plaintiff did
not receive treatment for this injury and his elbow healed
abnormally as a result. After arriving at Ray Brook in 1992,
plaintiff was examined by the defendant, an orthopedic surgeon
who provides medical services to inmates referred by physicians
employed by the Federal Bureau of Prisons. While plaintiff had
limited range of motion, he had functional use of his left elbow
and reported only mild pain. Dr. Horn initially treated Nunez
Plaintiff increasingly complained of pain, crepitus, and
locking. X-rays indicated a possible loose body or bone chip in
the elbow. Dr. Horn sought and received permission to perform
arthroscopic surgery in order to attempt to alleviate the pain,
crepitus, and locking that Nunez was experiencing. On August 4,
1993, defendant performed the surgery at Alice Hyde Hospital in
Malone, New York. He found no loose body or bone chip, but
removed synovial and scar tissue. Dr. Horn observed, but did not
remove, a bony block which prevented plaintiff from having full
range of motion in his elbow. After the surgery, plaintiff's
range of motion remained approximately the same, but he
experienced less pain.
Plaintiff commenced this action, contending that Dr. Horn's
failure to remove the bony block from his left elbow and failure
to provide proper pain medication violated his Constitutional
rights under the Eighth Amendment.
A. Summary Judgment Standard
Summary judgment must be granted when the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits show that there is no genuine issue as to any material
fact, and that the moving party is entitled to summary judgment
as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir.
1991). The moving party carries the initial burden of
demonstrating an absence of a genuine issue of material fact.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje,
896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and
ambiguities must be viewed in a light most favorable to the
nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983).
When the moving party has met the burden, the non-moving party
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co.,
475 U.S. at 586, 106 S.Ct. 1348. At that point, the non-moving
party "must set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56: Liberty Lobby Inc.,
477 U.S. at 250, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. To withstand a summary judgment
motion, evidence must exist upon which a reasonable jury could
return a verdict for the nonmovant. Liberty Lobby, Inc., 477
U.S. at 248-249, 106 S.Ct. 2505; Matsushita Elec. Indus. Co.,
475 U.S. at 587, 106 S.Ct. 1348. Thus, summary judgment is proper
where there is "little or no evidence . . . in support of the
non-moving party's case." Gallo v. Prudential Residential
Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994) (citations
B. Whether Defendant Acted Under Color of State Law
"[I]n any § 1983 action the initial inquiry must focus on . . .
(1) whether the conduct complained of was committed by a person
acting under color of state law; and (2) whether this conduct
deprived a person
of the rights, privileges, or immunities secured by the
Constitution or laws of the United States." Parratt v. Taylor,
451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981),
overruled on other grounds by Daniels v. Williams,
474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); West v. Atkins,
487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Bryant v.
Maffucci, 923 F.2d 979, 982-83 (2d Cir.), cert. denied,
502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991). Therefore, in
order to prevail on his motion, the defendant must prove either
that he did not deprive plaintiff of a federal statutory or
Constitutional right by his actions, or that, notwithstanding his
alleged actions, he did not act under color of state law.
In order to act under color of state law, a person must have
exercised power "possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority
of state law." Polk County v. Dodson, 454 U.S. 312, 317-18, 102
S.Ct. 445, 70 L.Ed.2d 509 (1981) (quoting United States v.
Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368
(1941)). Similarly, as is the case in the context of the
Fourteenth Amendment's state action requirement, a deprivation of
a federal or constitutional right is actionable pursuant to §
1983 when the deprivation was caused "by the exercise of some
right or privilege created by the State . . . or by a person for
whom the State is responsible." Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).
The crucial inquiry in determining whether a physician who
provides medical services to inmates is a state actor for
purposes of § 1983, is the relationship among the State, the
physician, and the plaintiff. West, 487 U.S. at 56, 108 S.Ct.
2250. In West, the United States Supreme Court held that the
defendant-physician who had contracted with the state to furnish
medical services within the confines of the prison to inmates of
state-prisons, was acting "under color of state law for purposes
of § 1983" when he treated the plaintiff-inmate. Id. at 57, 108
S.Ct. 2250. The Supreme Court found that the state was
affirmatively obligated to provide medical care to the inmate, it
had delegated that function to an otherwise private physician,
and the physician voluntarily assumed that obligation by
contract. Id. at 56, 108 S.Ct. 2250.
The instant case, however, is distinguishable from the factual
setting in West. First, the physician in West treated the
plaintiff-inmate in the prison hospital, subject to all of the
pressures and constraints resulting from security concerns, while
the defendant in this case freely performed his medical duties in
a much more physician-controlled environment. "Unlike the
situation confronting free patients, the non-medical functions of
prison life inevitably influence the nature, timing, and form of
medical care provided to inmates such as [the plaintiff]." Id.
at 57 n. 15, 108 S.Ct. 2250. Moreover, the physician inWest had
contracted with the state to provide medical care to inmates in a
state-prison hospital. Id. at 54, 108 S.Ct. 2250. Here,
however, Dr. Horn was not employed by the Bureau of Prisons, nor
was he under contract with the state to render medical services
to prison inmates. Consequently, plaintiff has not shown that
defendant in this case acted under color of state law.
Even assuming, arguendo, that defendant did act under color of
state law, plaintiff has nonetheless failed to come forward with
facts demonstrating a violation of his Eighth Amendment right to
adequate medical treatment.
C. Eighth Amendment Claim
To state a claim under § 1983 based on inadequate medical
treatment, plaintiff must allege that defendant acted with
"deliberate indifference to [a] serious medical need." Estelle
v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976); see also Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.
1994), cert. denied sub
nom. Foote v. Hathaway, 513 U.S. 1154, 115 S.Ct. 1108, 130
L.Ed.2d 1074 (1995). To allege deliberate indifference, plaintiff
must assert facts establishing that either his access to
physicians for necessary medical care was unreasonably delayed or
denied, or that prescribed medical treatment was withheld by a
defendant for the sole purpose of causing plaintiff unnecessary
pain. See Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987);
see also Tomarkin v. Ward, 534 F. Supp. 1224, 1230 (S.D.N Y
1982) (citing Todaro v. Ward, 431 F. Supp. 1129, 1133 (S.D.N.Y.),
aff'd, 565 F.2d 48 (2d Cir. 1977)). Negligence or malpractice
in providing medical care cannot establish a claim under § 1983.
See Estelle, 429 U.S. at 105-06, 97 S.Ct. 285; Mendoza v.
Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). The Supreme Court
stated, "a 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, 97
Assuming, without deciding, that plaintiff had a "serious
medical need," he cannot demonstrate that the defendant acted
with the intent to cause plaintiff pain. Plaintiff was referred
to Dr. Horn, thoroughly examined, and initially treated
conservatively because he had functional use of his left arm.
Plaintiff's pre-operative range of motion varied from 85-90
degrees flexion and 20-45 degrees extension. (See Horn Aff. Ex.
H at 50, 55.) X-rays were taken after Nunez increasingly
complained of pain, crepitus, and locking. Contrary to
plaintiff's unsupported allegations, the medical records show
that Dr. Horn advised Nunez that arthroscopic surgery would not
increase his range of motion, but might relieve the pain and
other symptoms. Id. at 12, 43, 44, 47.
Plaintiff requested "big surgery" to return the functioning of
his elbow to normal. Id. at 37. However, Dr Horn's notes reveal
that such surgery was not indicated because of plaintiff's young
age, the degree of functionality he already enjoyed, and the fact
that such surgery was not guaranteed to be successful. Id. at
35, 42. Dr. Horn's assessment in this respect is supported by the
opinions of Dr. David Hootnick, (Hootnick Aff. ¶ 34), and Dr.
William Bowen. (Horn Aff. Ex. I at 114.)
Plaintiff's post-operative range of motion was approximately
80-90 degrees flexion and 30 degrees extension. Id. at 3, 6.
Thus, as Dr. Horn expected, plaintiff's range of motion did not
significantly improve, nor did it worsen. However, plaintiff
exhibited less pain when performing range of motion movements.
With respect to post-operative pain management, plaintiff
complained of mild pain, and no swelling or infection was
observed. Plaintiff requested a muscle relaxant by name for his
joint pain, but his request was denied. Instead, plaintiff was
prescribed medications such as Motrin, Tylenol, and Ibuprofen,
and was administered an injection of Xylocaine and Depo-Medrol.
Id. at 4, 36.*fn1
The evidence clearly shows that the treatment provided by the
defendant was reasonable and was not administered with the intent
to unnecessarily and wantonly inflict pain upon the plaintiff.
Plaintiff's claim is essentially grounded upon his complaint that
the defendant did not remove the bony block which would have
restored his range of motion. However, as discussed above,
plaintiff was advised that arthroscopic surgery could not
accomplish this result. In addition, Dr. Horn determined that
plaintiff was not a candidate for the major surgery necessary to
return his elbow to normal. Such a decision, which is supported
by the opinions of Dr. Hootnick and Dr. Bowen, is within the
purview of the defendant's medical judgment, and at
best, may be considered a negligent error in judgment. However,
mere negligence does not give rise to a Constitutional violation
under the Eighth Amendment.
Accordingly, it is
ORDERED, that defendant's motion for summary judgment is
GRANTED, and the complaint is dismissed in its entirety.
IT IS SO ORDERED.