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United States District Court, Western District of New York

February 6, 2003


The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge



This prisoner civil rights case is before the Court on defendants' motion for summary judgment. Specifically, defendants' are moving to dismiss plaintiff's amended complaint in its entirety on the basis that plaintiff has failed to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a). See Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983 (2002). Alternatively, defendant Tan is moving for summary judgment on counts one and two of the amended complaint, requesting that these causes of action be dismissed on the merits. For the reasons to be stated below, defendants' motion for summary judgment based upon failure to exhaust remedies is denied, but defendant Tan's motion for summary judgment as to counts one and two is granted.


The Decision and Order of this Court filed November 8, 2001, dismissed four of the eight causes of action stated in the proposed Amended Complaint, which was subsequently filed on December 13, 2001. Of the remaining causes of action, which are the subject of defendants' pending application, the first two pertain only to Dr. Tan and are: (1) deliberate indifference to plaintiff's serious medical needs by Dr. Tan's alleged failure to respond adequately and appropriately to plaintiff's complaints of problems with his medications and medical treatments between August 8, 1997 and May 24, 1998, in violation of plaintiff's Eighth Amendment rights; and (2) deliberate indifference to plaintiff's serious medical needs by Dr. Tan's alleged failure to properly treat plaintiff's hypertension between July 30, 1997 and May 24, 1998, in violation of plaintiff's Eighth Amendment rights. The third cause of action is asserted against defendants Dr. Tan, Dr. Cetin*fn1, Day, Havey, Bensley, Bouquin, Pracht, CPM*fn2, Jane Doe 1, Jane Doe 2 and West, and alleges they failed to ensure plaintiff was provided with some modicum of bedside care between May 27, 1998 and June 3, 1998 in violation of plaintiff's Eighth Amendment rights. The fourth cause of action is against Deputy Superintendent of Administration Mudra and Facility Health Services Director Cetin only and alleges they failed to remedy a constitutional deprivation of which they had notice, despite their administrative positions, specifically, the deliberate indifference to plaintiff's serious medical needs by*fn3 Dr. Tan, Day, Harvey, Bensley, Bouquin, Pracht, CPM, Jane Doe 1, Jane Doe 2, and West, between May 17, 1998 and June 3, 1998. This fourth cause of action uses the same language of deliberate indifference as the other causes of action, but does not specifically refer to the Eighth Amendment.


The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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 a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) (en banc). Where the nonmoving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the nonmovant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Once that burden has been met, the burden then shifts to the nonmoving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). 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, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the nonmoving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the nonmoving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV. P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).


A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act of 1995 ("PLRA" or "Act"), as amended, 42 U.S.C. § 1997e(a), provides: "No action shall be brought with respect to prison conditions under section 1983 . . ., or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted." "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. at 532. In New York, the process generally requires the inmate to: (a) file a grievance with the Inmate Grievance Resolution Committee ("IGRC"); (b) seek review of the IGRC decision by the facility superintendent; and (c) appeal to the Central Office Review Committee ("CORC"). See 7 N.Y.C.R.R. § 701.7; Thomas v. Wright, No. CIV.9:99CV2071FJSGLS, 2002 WL 31309190 (N.D.N.Y. Oct. 11, 2002); Cruz v. Jordan, 80 F. Supp.2d 109, 117-18 (S.D.N.Y. 1999).

In the case at bar, plaintiff has alleged in his affidavit that he consulted numerous times with the Inmate Grievance Clerk, the inmate designated as the intake clerk for the IGRC, and was told each time that his medical complaints were not cognizable under the IGRC system and was advised to contact the medical staff directly. Preslar aff. (document # 51) at ¶¶ 36-37. In support, plaintiff has submitted affidavits from James McDaniel ("McDaniel") and Christopher Battee ("Battee").

Battee states in his affidavit that he was an inmate at Collins Correctional Facility during the period from July 1997 through July 1998 and that from July 15, 1997 until July 15, 1998, he was a member of the IGRC and Head Grievance Clerk at Collins Correctional Facility. He states, in particular, that, "[a]t Collins during the relevant period, the IGRC was not permitted to review medical records, and an inmate could not obtain review of his medical treatment or lack thereof via the grievance process." Battee aff. at ¶ 10 (emphasis in original). Further, he states that an inmate attempting to "file a grievance seeking review of or modification of his medical treatment or his mental health treatment would have been advised that the issue was not grievable via the Inmate Grievance Process." Id. at ¶ 16. Battee also recalled that plaintiff filed many grievances at Collins and that, "[s]ome of those grievances, which addressed his mental health medications and other medications, were not logged or filed pursuant to DOCS Directive 4040(III)(F)." Id. at ¶ 21.

McDaniel, in his affidavit, states that he was also an inmate at Collins during the same period and was a member of its IGRC. He stated that the IGRC at Collins did not retain copies of grievances informally resolved and that, "[w]ith respect to claims raised by inmates regarding their medical care, our (the IGRC's) typical practice in 1997-98 was to advise inmates that medical claims were not grievable." McDaniel aff. at ¶ 11.

Defendants filed an affidavit by David LaGraves ("LaGraves") in reply. In his affidavit, LaGraves states that his review of grievance records from July 16, 1997 through August 31, 1998 revealed twenty-two entries of grievances pertaining to medical issues, thereby circumstantially contradicting the assertions of McDaniel and Battee.

Exhaustion is a threshold question, see Crawford v. Braun, No. 99 Civ. 5851 (RMB)(JC), 2002 WL 31426262, *3 (S.D.N.Y. Oct. 28, 2002) requiring resolution prior to the Court's determination of summary judgment on that ground. Other courts in this Circuit have held that where a prisoner has made a "reasonable attempt" to file a grievance, and prison officials have prevented the prisoner from filing that grievance, the grievance procedures are not "available" to him and, thus, the Act does not preclude the prisoner from suing in federal court. See Thomas v. N.Y. State Dept. of Correctional Services, No. 00 CIV. 7163(NRB), 2002 WL 31164546 (S.D.N.Y. Sep. 30, 2002); O'Connor v. Featherston, No. 01 Civ. 3251(HB), 2002 U.S. Dist. LEXIS 7570 (S.D.N.Y. Apr. 29, 2002); Rodriguez v. Hahn, No. 99 Civ. 11663(VM), 2000 U.S. Dist. LEXIS 16956 (S.D.N.Y. Nov. 20, 2000); see also Davis v. Milwaukee County, 225 F. Supp.2d 967, 976 (E.D. Wisc. 2002) (advising plaintiff that medical complaint was not a grievable situation, they hindered him from exhausting, thus, from complying with PLRA). The evidence presented on this motion creates a material issue of fact for resolution by the jury regarding plaintiff's exhaustion of administrative remedies. Boomer v. Grant, No. 00 Civ. 4709(DLC), 2002 WL 31441180, *5 & n. 4 (S.D.N.Y. Oct. 29, 2002).

B. Dr. Tan's Motions*fn4

Defendant Tan argues that he acted reasonably in his evaluation and treatment of plaintiff and, thus, the evidence fails to show deliberate indifference to a serious medical need and he is, therefore, entitled to summary judgment on the first and second causes of action. Alternatively, he argues that he is entitled to qualified immunity. Viewing the evidence in the light most favorable to plaintiff, the Court concludes that Dr. Tan is entitled to summary judgment on the merits, since the evidentiary proof in admissible fails to establish the existence of a genuine issue as to a material fact sufficient to defeat defendant's application.

In order to prove an Eighth Amendment violation, plaintiff must show that Dr. Tan was deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). In Estelle, the Supreme Court concluded that "deliberate indifference to serious medical needs of prisoners constitutes the `unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment." Id. at 104, quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976). However, the Court was careful to note that "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Id. 429 U.S. at 106. The Court must look to the needs of the individual patient, not to the standard of care for an average plaintiff. Liscio v. Warren, 901 F.2d 274 (2d Cir. 1990). Moreover, the Court of Appeals has held that when a genuine issue of material fact exists as to whether officials demonstrated deliberate indifference to inmate's serious medical needs, it is inappropriate to grant summary judgment. Hathaway v. Coughlin, 841 F.2d 48 (2d Cir. 1988). Allegations of negligence in diagnosis or treatment alone, without facts supporting a charge of deliberate indifference, cannot support a claim under § 1983. Cf. Hathaway v. Coughlin, 841 F.2d 48 (2d Cir. 1988) (delay of over two years in arranging surgery to correct broken pins in hip could amount to deliberate indifference to serious medical needs); Gill v. Mooney, 824 F.2d 192, (2d Cir. 1987) (plaintiff may have valid claim for relief where medical treatment refused for misconduct unrelated to medical condition or treatment); Archer v. Dutcher, 733 F.2d 14 (2d Cir. 1984) (summary judgment inappropriate where plaintiff raises issue of material fact regarding possibility that defendants delayed emergency medical aid to cause suffering for obstreperous inmate); Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (colorable claim of deliberate indifference presented where doctors chose treatment of discarding prisoner's ear and stitching stump rather than attempting to save the severed portion).

"On a motion for summary judgment, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, with the burden on the moving party to demonstrate the absence of any material fact genuinely in dispute." Hathaway, 841 F.2d at 50 (internal quotations and citations omitted). Plaintiff concedes that Dr. Tan provided him with repeated access to medical care. Pl.'s Mem. Opp'n Summ. J. at 18. However, plaintiff contends that Dr. Tan modified a treatment plan that plaintiff reported to him had been arrived at after "careful and cooperative work on the part of doctors at Attica and [plaintiff] to identify the most effective mix of medications and dosages to treat [his] various medical problems." Preslar aff. at ¶ 9. Plaintiff's affidavit lists eleven different medications he was taking at the time of his arrival at Collins Correctional facility. Id at ¶ 8. Plaintiff alleges that Dr. Tan failed to review his entire medical record, examined him for only five minutes upon his arrival at Collins, and on that basis, modified plaintiff's medications. Id. at ¶¶ 10-18. Plaintiff began experiencing difficulties on the new medical regime prescribed by Dr. Tan, and Dr. Tan thereafter modified the medications. Id. at ¶¶ 23, 27, 29-30. Plaintiff continued to complain about Dr. Tan's prescribed medications, including losing consciousness in the prison commissary twice on August 18, 1997, and requested to be returned to the medications he had been taking when he arrived at Collins. Id. at ¶ 47. His requests were refused. Id. at ¶ 50. On May 24, 1998, plaintiff experienced another episode of unconsciousness, fell and suffered a fracture. Id. at ¶ 52.

Dr. Tan has filed an affidavit in support of his motion. In that affidavit, Dr. Tan acknowledges that plaintiff suffered from a number of different ailments including bipolar disorder, hytertension, neurogenic bladder, hypercholesterolemia, emphysema and chest pain induced by anxiety. Tan aff. at ¶ 4. Dr. Tan states that he "reviewed the Ambulatory Health Records from Attica Correctional Facility . . . [which] showed a history of labile (unstable) high blood pressure." Id. at ¶ 7. Dr. Tan alleges that the combination medications prescribed by the physician at Attica Correctional Facility, "created the potential for postural hypotension." Id. at ¶ 9 (emphasis in original). Essentially, he states that the medications plaintiff was taking when he arrived at Collins, the same medications that Dr. Tan changed, had the potential to cause plaintiff to black out. Dr. Tan's affidavit continues with a detailed discussion of his reasoning for changing plaintiff's medications, and relates that plaintiff's fainting in the prison commissary on August 18, 1997, was `most likely . . . an episode of postural hypotension." Id. at ¶ 16. Dr. Tan points out that plaintiff's medical records contain "no record of a second postural hypotensive event until May 24, 1998, when [plaintiff] suffered his fracture." Id. at ¶ 28. Dr. Tan also emphasizes that when plaintiff was discharged from Strong Memorial Hospital, he was discharged on the same ten medications he had been taking when he entered, plus one additional for pain. Id. at ¶ 29. "In other words, the discharge medication plan for [plaintiff] from Strong Memorial, despite initial concerns, did not make any changes from the plan prescribed at Collins Correctional." Id. at ¶ 33.

Even viewing the facts in the light most favorable to plaintiff, nothing indicates that Dr. Tan operated with deliberate indifference, or in a manner designed to inflict unnecessary and wanton pain. Plaintiff has alleged only that Dr. Tan prescribed different medications, and that those medications may have led to his blackout on May 24, 1998, causing his fracture. Although plaintiff has alleged what may amount to malpractice, clearly, even from plaintiff's own affidavit, one can conclude that Dr. Tan was working to adjust plaintiff's medications to treat his symptoms, not increase his pain, and not to deliberately mistreat him. Nothing in plaintiff's submissions establishes the type of unnecessary and wanton pain shown by successful plaintiffs in the cases cited above. Quite the contrary, the evidentiary proof in admissible form establishes that Dr. Tan saw plaintiff on numerous occasions and responded in a manner that was designed to address plaintiff's specific complaints, and that he did not deliberately ignore plaintiff's complaints or deliberately cause plaintiff more pain. Thus, with regard to Dr. Tan, his motion for summary judgment, as to the First and Second causes of action, pertaining to his medical treatment of plaintiff's various ailments by adjusting his medications, is granted on the merits. Since the motion is granted on the merits, the Court need not address Dr. Tan's alternative argument for the application of qualified immunity.


Accordingly, the Court grants Dr. Tan's motion (document #43) for summary judgment as to the first and second causes of action in the amended complaint, and, in accordance with the above, denies the motion (document #43) with respect to all other defendants and causes of action. Further, the Court denies defendants' motion for summary judgment on the issue of exhaustion, because the evidence presented on this motion creates a material issue of fact for resolution by the jury regarding plaintiff's exhaustion of administrative remedies.


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