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RUFFIN v. DEPERIO

March 30, 2000

DERRY RUFFIN, PLAINTIFF,
V.
JOSE DEPERIO, M.D. AND ROMEO PUNZAL, M.D., DEFENDANTS.



The opinion of the court was delivered by: Heckman, United States Magistrate Judge.

  ORDER

The parties have consented to have the undersigned conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c) (Item 16).

Presently before me is the plaintiff's motion for summary judgment (Items 75-1 and 75-2), the defendants' cross-motion for summary judgment (Item 79-1), and plaintiff's motion to reinstate claims against the State of New York and the Department of Correctional Services nunc pro tunc (Item 92-1). For the following reasons, plaintiff's motions for summary judgment and to reinstate claims nunc pro tunc are denied. Further, defendants' cross-motion for summary judgment is denied as to the Eighth Amendment claim against the defendants in their individual capacities, but is granted as to the both the Eighth Amendment claim against the defendants in their official capacities and the pendent claims. Further, plaintiff may have forty-five days from the date of this Order to file his negligence and medical malpractice claims in the New York State Court of Claims.

BACKGROUND

The following facts are undisputed. Plaintiff, Derry Ruffin, is an inmate incarcerated in the custody of the New York State Department of Correctional Services ("DOCS") (Item 81, ¶ 1, Item 88, ¶ 1). In March of 1994, while incarcerated at Wende Correctional Facility ("Wende"), plaintiff, who suffers from a variety of serious health problems including but not limited to diabetes and hypertension, was injured when a table fell on his left foot (Id. at ¶ 6, Id. at ¶ 6). Plaintiff subsequently advised the medical staff at Wende that he was continuing to experience pain and swelling in his left foot (Id. at ¶ 9, Id. at ¶ 9). On March 30, 1994, Dr. Punzal ordered x-rays of plaintiff's left foot and ankle which were found to be negative for fractures (Id. at ¶ 14, Id. at ¶ 14).

Throughout the period between March 30 and August 17, 1994, plaintiff was regularly seen by several members of the Wende medical staff, including the defendants, for medical problems including continued pain and swelling of his foot (Id. at ¶¶ 14-22, Id. at ¶¶ 14-22). On August 17, 1994, because of the continuing problems with his foot, plaintiff was referred for an appointment with a neurologist at the Erie County Medical Center ("ECMC") (Id. at ¶ 22, Id. at ¶ 22). As a result of that consultation in September 1994, EMG and Doppler diagnostic tests were ordered (Id. at ¶ 23, Id. at ¶ 23). Plaintiff continued to be seen frequently by the defendants and other members of the medical staff throughout the remainder of 1994 (Id. at ¶¶ 23-28, Id. at ¶¶ 23-28). On December 9, 1994, plaintiff was admitted to the infirmary at Wende (Id. at ¶ 28, Id. at ¶ 28). On December 16, 1994, plaintiff was admitted to ECMC by an ECMC neurologist for a femoral/peroneal bypass (Id. at ¶ 28, Id. at ¶ 28).

Plaintiff was confined, either at the infirmary at Wende or at ECMC, throughout the majority of January, February, March, and April of 1995 (Id. at ¶¶ 28-37, Id. at ¶¶ 28-37). Plaintiff underwent further surgical procedures at ECMC in June and July of 1995, which resulted in the amputation of several toes and part of plaintiff's left foot (Id. at ¶¶ 38-44, Id. at ¶¶ 38-44). In January 1996, plaintiff was transferred to another correctional facility (Id. at ¶ 56, Id. at ¶ 56).

Plaintiff filed the instant action pursuant to 42 U.S.C. § 1983 on December 13, 1995. Plaintiff filed a motion to amend the complaint on February 28, 1997 (Item 24). Plaintiff filed a second amended complaint (Item 29) on March 20, 1997. He filed a third amended complaint (Item 47) on August 20, 1997. The third amended complaint (Item 47) alleges that the defendants were deliberately indifferent to plaintiff's serious medical needs, and that their failure to properly treat plaintiff's diabetes and foot injury led to the amputation of plaintiff's left leg below the knee. Plaintiff further alleges pendent state law claims for negligence and medical malpractice.*fn1

Plaintiff has filed a motion for summary judgment (Item 75) alleging that the defendants' failure to provide proper medical treatment for plaintiff violated his Eighth Amendment right to be free from cruel and unusual punishment as a matter of law. Also, defendants have filed a cross-motion for summary judgment (Item 79), arguing that plaintiff failed to establish the necessary deliberate indifference to sustain an Eighth Amendment claim, that this court lacks subject matter jurisdiction over plaintiff's pendent claims, and that the defendants are entitled to qualified immunity. Defendants filed a response (Item 89) to plaintiff's summary judgment motion. Plaintiff also filed a response (Item 87) to defendants' cross-motion for summary judgment and a motion for an order permitting reinstatement of plaintiff's claims against the State of New York and the Department of Correctional Services nunc pro tunc (Item 92). Defendants have filed a response to plaintiff's motion (Item 95). Oral argument was conducted before me on February 3, 2000.

DISCUSSION

I. Summary Judgment

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 166-67 (2d Cir. 1991). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, supra, 477 U.S. at 248, 106 S.Ct. 2505; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

Once the moving party has met its burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a "metaphysical doubt" concerning the facts, or on the basis of conjecture or surmise. Maffucci, supra (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

II. The Eighth Amendment Claim Against the Defendants in their Individual Capacities

Plaintiff claims that the defendants' failure to provide him with adequate medical treatment violated his Eighth Amendment right to be free from cruel and unusual punishment. The prohibition against cruel and unusual punishment includes an inmate's right to adequate medical care. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Hathaway v. Coughlin, 37 F.3d 63 (2d Cir. 1994), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). In order to establish a violation of the right to adequate medical care, the plaintiff must satisfy a two-part test.

The first part of the test is objective and requires the plaintiff to show that the alleged deprivation is "sufficiently serious." Farmer, 511 U.S. at 834, 114 S.Ct. 1970 (quoting Wilson v. Seiter, 501 U.S. 294, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). In other words, plaintiff must show that he is incarcerated under conditions posing a substantial risk of serious harm. Id. This includes not only conditions affecting plaintiff's current health problems, but also those that are "sure or very likely to cause serious illness and needless suffering the next week or month or year." Helling v. McKinney, 509 U.S. 25, 33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). According to the Second Circuit, this standard contemplates "`a condition of urgency, one that might produce death, degeneration, or extreme pain.'" Hathaway, 37 F.3d at 66 (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting)).

The second prong of the test is subjective and requires the plaintiff to show that the official had a "sufficiently culpable state of mind." Wilson, 501 U.S. at 297, 111 S.Ct. 2321, quoted in Farmer, 511 U.S. at 834, 114 S.Ct. 1970. Plaintiff must establish that the official acted or failed to act with deliberate indifference to the inmate's health or safety. As stated by the Second Circuit:

[A] prison official does not act in a deliberately indifferent manner in violation of the Eighth Amendment unless that official "knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."

Hathaway, 37 F.3d at 66 (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970). "Mere negligence in providing medical treatment or differences of opinion as to matters of medical judgment do not give rise to an Eighth Amendment claim." Muhammad v. Francis, 1996 WL 657922 at *5 (S.D.N.Y. November 13, 1996) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (to the effect that "a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim under the Eighth Amendment")); Hathaway, 37 F.3d at 66 (citing Farmer, 511 U.S. at 825, 114 S.Ct. 1970 (deliberate indifference "requires more than negligence but less than conduct undertaken for the very purpose of causing harm")). 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 v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Lastly, it is clear that "[m]edical malpractice does not become a constitutional violation merely because the ...


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