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September 30, 2002


The opinion of the court was delivered by: Larimer, Chief Judge



Plaintiff, Roberto Rodriguez ("Rodriguez"), brought this action alleging numerous violations of 42 U.S.C. § 1983. At all times relevant to this action, plaintiff was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). Counts two, five, and six of plaintiff's twelve-count complaint were previously dismissed by this Court pursuant to 28 U.S.C. § 1915(e)(2)(B).*fn1 Defendants now move for partial summary judgment pursuant to Fed.R.Civ.P. 56(c), seeking the dismissal of counts three, four, and seven through eleven. Defendants also request the denial of all declaratory and injunctive relief sought by plaintiff, as well as the dismissal of all causes of action brought against them in their official capacities.


Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court "must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor." Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000) (quotations omitted). Where, as here, the plaintiff is proceeding pro se, the court must "read the pleadings . . . liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Authority, 202 F.3d 530, 536 (2d Cir. 1999) (quotations omitted). Nonetheless, "[p]roceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment." Rodriguez v. Hahn, 209 F. Supp.2d 344, 348 (S.D.N.Y. 2002) (quoting Parkinson v. Goord, 116 F. Supp.2d 390, 393 (W.D.N.Y. 2000)).

A. Denial of Medical Care Claims

Prison medical care, or a lack thereof, may constitute cruel and unusual punishment, in violation of the Eighth Amendment, where a defendant acts with `deliberate indifference to [a prisoner's] serious medical needs.'" Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). A deliberate indifference claim includes both an objective and a subjective component. "First, the alleged deprivation must be, in objective terms, `sufficiently serious.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). A sufficiently serious medical condition is "a condition of urgency that may result in degeneration or extreme pain." Id.(quotations omitted).

Second, subjectively "the defendant `must act with a sufficiently culpable state of mind.'"Id. (quoting Hathaway, 37 F.3d at 66). To establish that a defendant acted with the requisite deliberate indifference, the plaintiff must show that "`the prison official knew of and disregarded the plaintiff's serious medical needs.'" Harrison, 219 F.3d at 137 (quoting Chance, 143 F.3d at 703).

Here plaintiff alleges that various medical personal from two different facilities were deliberately indifferent to his medical needs. Plaintiff was incarcerated at the Southport Correctional Facility ("Southport") from April 7, 1998 to August 7, 1998. Plaintiff alleges that during his stay at Southport, defendant John Alves, a physician and the Facility Health Services Director, failed to diagnose plaintiff's bowel disorder.

In August of 1998, plaintiff was transferred from Southport to the Collins Correctional Facility ("Collins"). Plaintiff claims that while at Collins, defendant Joseph Tan, a physician, also failed to diagnose his bowel disorder and performed an improper examination in plaintiff's cell. Plaintiff also claims that Tan failed to provide him with orthopedic sneakers. Defendant Victor Herbert, the Superintendent at Collins, supported Tan's determination regarding the sneakers and is also charged with deliberate indifference. Finally, plaintiff alleges that defendant Shelley Steeprock, a nurse practitioner, failed to properly treat an injury to his right hand.

1. Treatment of Plaintiff's Bowel Disorder

a. Claim Against Defendant Alves

Plaintiff claims that he first observed and complained of the presence of blood in his stool on March 8, 1998, while incarcerated at the Auburn Correctional Facility ("Auburn"). It was determined at the time that plaintiff was suffering from hemorrhoids. Plaintiff complained about this condition several times in April of 1998. Plaintiff's stool tested positive for the presence of blood and he was scheduled to see a Dr. Graceffo. However, plaintiff was transferred to Southport before this examination could be performed.

Plaintiff charges that Dr. John Alves ("Alves"), the Facility Health Services Director at Southport, was deliberately indifferent to his serious medical needs because he failed to diagnose and treat this condition, despite the presence of blood in plaintiff's stool documented during his stay at Auburn. Complaint, Count 3, ¶ 4. In his response to Alves's motion for summary judgment, plaintiff also suggests that Alves must have been notified of his condition because the Inmate Records Coordinator at Auburn would have informed Alves of plaintiff's bowel disorder. Aff. Rebutting Alves Aff., ¶ 12. Plaintiff, concedes, however, that during his time at Southport, Alves never actually examined him. Id. at ¶ 4.

A careful examination of the record has not revealed any evidence that Alves was personally aware of plaintiff's medical condition. When plaintiff was transferred from Auburn to Southport, he was initially interviewed concerning his current medical condition. The record of that health screening and medical orientation make no mention of plaintiff's complaints of blood in his stool. Aff. Rebutting Alves Aff., Ex. F. Plaintiff's medical records from Southport show that he first complained of this condition on April 17, 1998. Alves Aff., Ex. D. It was noted that plaintiff suffered from hemorrhoids. A record from May 3, 1998, states that plaintiff tested positive for blood in his stool in March of 1998, before his transfer to Southport. This condition is not mentioned again until July 13, 1998, when it is noted that there has been no follow up on the March 1998 test result. A check of his stool for occult blood was ordered, and it was noted that the examiner would follow up with a nurse practitioner. On July 18, 1998, the test returned positive for blood. There is no indication in any of these records that Alves was informed of plaintiff's condition. Moreover, other than making a general allegation that Alves must have known of his condition, plaintiff offers no evidence to suggest that any of the medical staff had as of yet informed Alves of plaintiff's disorder.

On July 27, 1998, plaintiff was examined by a nurse practitioner. Alves Aff., Ex. B. The examination was normal, with the exception of the report of blood in plaintiff's stool. The record indicates that the nurse practitioner would follow up with Dr. Alves. Two days later, Dr. Alves order a sigmoidoscopy. Alves Aff., Ex. A. Unfortunately, plaintiff was transferred from Southport before this test could be performed.

Assuming arguendo that plaintiff's medical condition was, in fact, sufficiently serious, in order to establish that Alves acted with a sufficiently culpable state of mind, plaintiff must show that Alves "knew of and disregarded the plaintiff's serious medical needs.'" Harrison, 219 F.3d at 137 (quoting Chance, 143 F.3d at 703). Alves is not responsible for delays or gaps in treatment solely because he is the Facility Health Services Director. Brady v. Griffith, 1998 WL 814630, at *5 (S.D.N.Y. Nov. 23, 1998). The only evidence concerning Alves's knowledge of plaintiff's condition indicates that he first was notified of plaintiff's problem on July 27, 1998. Alves then quickly scheduled the necessary testing.

Based on the evidence discussed above, plaintiff has not established that Alves was deliberately indifferent to his serious medical needs. Therefore, defendants' motion for summary judgment is granted, and count three of plaintiff's complaint is dismissed.

b. Claim Against Defendant Tan

Plaintiff charges that further delays in his treatment occurred following his transfer to Collins in August of 1998. Plaintiff claims that Dr. Joseph Tan ("Tan"), a physician at Collins, somehow contributed to this delay. Plaintiff also claims that Tan ...

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