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March 28, 2003


The opinion of the court was delivered by: Theodore H. Katz, United States Magistrate Judge.

Pro Se

In this prisoner's civil rights action, Plaintiff William Pabon, proceeding pro se*fn1 claims that his constitutional rights under the Eighth Amendment were violated by Defendants' deliberate indifference with respect to his serious medical needs. He also asserts state law negligence claims. The parties consented to trial before this Court, pursuant to 28 U.S.C. § 636 (c), and were given an opportunity to conduct pretrial discovery. Defendants Glenn Goord, Dr. Norman Selwin, Lawrence Zwillinger, Dr. Charles Bendheim, Christopher Artuz, Dr. Carl J. Koenigsmann, Donald Stevens, Dr. Han Chakravorty, and Dr. John J. Cunningham, Jr. (collectively referred to as "the State Defendants"); Westchester County Medical Center ("WCMC"); Dr. Craig Goldberg; Dr. Kraig Moore; Correctional Physicians Services, Inc. ("CRS"); and Dr. Harold Pikus, now move for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, Defendants' motions for summary judgment are granted and this action is dismissed with prejudice.


Plaintiff is an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). He is currently serving a sentence of fifty years to life at Green Haven Correctional Facility ("Green Haven"). Plaintiff claims that during his incarceration at Green Haven, Defendants have been deliberately indifferent in providing care and treatment for a lesion on the base of his skull, as well as for his spinal and right elbow conditions.

Plaintiff has been incarcerated for over a decade. During that time he has required medical attention for many different conditions, some mundane and others serious. He has received medical attention from numerous healthcare providers, both within Green Haven and at hospitals and clinics. Indeed, just the portions of Plaintiff's medical records which are before the Court consume hundreds of pages, and in the three-year period most relevant to this action Plaintiff had close to 200 specialty consults at non-correctional facilities. During most of the period relevant to this action, 1997 to 2000, Plaintiff's primary care providers at Green Haven were, at different times, Dr. Joel Bendheim and Dr. Han Chakravorty. In addition to providing direct care, Drs. Bendheim and Chakravorty wrote recommendations for specialty care and consultations where required. Beginning on June 1, 1998, pursuant to a contract with DOCS, CPS assumed responsibility for providing specialty consultative services to Green Haven inmates. Most of the specialists who treated Plaintiff, including Drs. Moore and Goldberg, were employed by Westchester County Medical Center.

As discussed in detail below, Plaintiff was seen many times by specialists, and received extensive care for his cranial, cervical, and elbow conditions. Nevertheless, he contends that Defendants treated him with deliberate indifference in a variety of ways, most significantly by delaying specialty consults and necessary surgery. Defendants have moved for summary judgment, contending that Plaintiff's cranial lesion and cervical spine and elbow conditions were not sufficiently serious to give rise to an Eighth Amendment claim, and that no Defendant treated Plaintiff with deliberate indifference with respect to any of his medical complaints. Dr. Pikus also contends that he was in no way involved in Plaintiff's treatment and is therefore not a proper party to this action. In addition, the non-physician Defendants contend that they are not proper parties to this action because they too did not provide Plaintiff with medical care. Finally, the State Defendants contend that they are entitled to qualified immunity with respect to Plaintiff's claims.


I. Summary Judgment Standard

Under Rule 56(c), Fed.R. Civ. P., a motion for summary judgment may not be granted unless the Court determines that there is no genuine issue of material fact to be tried, and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53 (1986); Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995). The moving party must show that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 323-25, 106 S.Ct. at 2553-54; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir. 2000)

In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513 (1986); Sologub, 202 F.3d at 178.

On a motion for summary judgment, a court "cannot try issues of fact; it can only determine whether there are issues to be tried." Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975); see also Flaherty v. Lang, 199 F.3d 607, 615 (2d Cir. 1999); Cronin, 46 F.3d at 203. "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Cronin, 46 F.3d at 203. However, "summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Reeves v. Johnson Controls World Servs., Inc., 140 F.3d 144, 149 (2d Cir. 1998) (quoting Celotex, 477 U.S. at 322, 106 S.Ct. at 2552) (internal citations omitted). "[I]n order to defeat summary judgment, the nonmoving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor," and "the nonmoving party may not rely on conclusory allegations or unsubstantiated speculation." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) (internal quotations omitted)

II. Eighth Amendment Standard

In order to establish a violation of the Eighth Amendment due to inadequate medical care, a prisoner must prove "deliberate indifference" to a "serious medical need." Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 (1994); see also Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000); Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).

The deliberate indifference standard contains both an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 2324 (1991); see also Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Factors that are relevant in determining whether a serious medical condition exists include "the existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)); see also Harrison, 219 F.3d at 137. Trivial or insignificant conditions do not fall within the scope of Eighth Amendment protection. Rather, the Eighth Amendment "contemplates a condition of urgency that may result in degeneration or extreme pain." Chance, 143 F.3d at 702 (internal quotation marks omitted) See also Smith v. Carpenter, 316 F.3d 178, 187 (2d Cir. 2003) ("a serious medical need exists when the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain") (internal quotation marks omitted).

Second, the charged official must act with a sufficiently culpable state of mind. See Wilson, 501 U.S. at 298-99, 111 S.Ct. at 2324; Hathaway, 37 F.3d at 66. Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm. See Farmer v. Brennan, 511 U.S. 825, 835, 114 S.Ct. 1970, 1978 (1994); Hathaway, 37 F.3d at 66. The necessary state of mind has been likened to one of criminal recklessness. See Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998); Hathaway v. Coughlin, 99 F.3d 550, 554 (2d Cir. 1996). A prison official does not act in a deliberately indifferent manner unless that official "knows of and disregards an excessive risk to inmate health or 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." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; see also Cuoco, 222 P.3d at 106; Hathaway, 37 F.3d at 66.

A difference of opinion between a prisoner and medical personnel regarding medical treatment does not constitute deliberate indifference. See Chance, 143 F.3d at 703. Nor can deliberate indifference be demonstrated simply because an inmate prefers an alternative treatment, or feels that he did not get the level of medical attention he desired. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986).

Finally, simple negligence, or an inadvertent failure to provide adequate medical care, even if it amounts to medical malpractice, is insufficient to establish deliberate indifference, or any other constitutional deprivation. See, e.g., Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670 (1986) (although negligence of prison official led to prisoner's serious injury, Constitution requires no procedure to compensate injury arising from negligence); Chance, 143 F.3d at 703; Hathaway, 37 F.3d at 66; cf. Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir. 1991) (more than simple negligence required for pretrial detainee to allege constitutional deprivation under Fourteenth Amendment due process clause)

III. Plaintiff's Claims

A Clival Lesion

1. Seriousness of Condition

Plaintiff claims that various Defendants were deliberately indifferent to his complaints regarding his clival lesion.*fn2 Plaintiff claims that from July 1994 until the present he has been experiencing "excruciating headaches," which he attributes to a lesion at the base of his skull, or clivus. The lesion appears to have first been noted in 1995, after Plaintiff received a CT scan to his skull. See Pl.'s Ex. 12. Plaintiff claims that thereafter, his healthcare providers have been negligent in monitoring the lesion's growth and have failed to treat it appropriately. See Am. Complaint ¶ 48. Although not raised in his Complaint, Plaintiff further contends, in his response to Defendants' motions, that in 1999 he was diagnosed with a second brain tumor, which Defendants have failed totally to monitor and treat.

Despite the superficially serious implications of a claim of a tumor near the brain, the extensive, undisputed medical evidence submitted by Defendants demonstrates that Plaintiff's lesion is benign and harmless.

Plaintiff was referred to the Department of Neurosurgery at WCMC, and in June 1998 Plaintiff was evaluated by Dr. Goldberg, a senior resident in the neurology department, and Dr. F. Myles Little, an attending physician. See Ex. D to Affirmation of Jonathan A. Bath, Esq., dated September 13, 2002 ("Bath Aff.") at 176; Deposition of William Pabon ("Pabon Dep.") at 210-11. The doctors reviewed the results of Plaintiff's MRIs, the most recent of which was taken on December 12, 1997, which revealed a lesion of the clivus that appeared unchanged over the course of time. See Bath Aff. at 173. Dr. goldberg ordered another MRI of Plaintiff's brain, see Rule 56.1 Statement of CPS ("CPS 56.1 St.") ¶ 7; Ex. D to Bath Aff. at 761, and on October 25, 1998, Dr. Goldberg ordered a CT scan of Plaintiff's head, which demonstrated "no interval change in clival lytic lesion with well defined sclerotic borders without associated soft tissue mass. The appearance is suggestive of a benign lesion, possibly epidermal." Ex. D to Bath Aff. at 173.

Plaintiff was evaluated again at WCMC on February 19, 1999, by a neurosurgeon, Dr. Moore, to follow up on Plaintiff's continuing complaints. Plaintiff was given another MRI and CT scan, both of which indicated, according to Dr. Moore, a clival lesion consistent with epidermoid cyst. See Ex. D to Bath Aff. at 103. Dr. Moore noted no increase in size over successive MRIs or CT scans, no parenchymal abnormalities, no hydracephalus, and no involvement of the pons. See id. Dr. Moore also gave Plaintiff a complete physical exam, which indicated that the pertinent cranial nerves were intact and that Plaintiff did not demonstrate any motor deficits or asymmetrical reflexes. See id.

Plaintiff was later referred by Dr. Chakravorty to see Dr. Moore again. Dr. Moore examined Plaintiff on May 28, 1999, and concluded that Plaintiff had a small cystic lesion in the clivus with no breach of the posterior cortex of the clivus and no encroachment upon the neural structures. See Ex. F to Affirmation of Michael T. Loffrede, Esq., dated July 19, 2002 ("Loffredo Aff."). Dr. Moore found that there was no need for surgery to treat the lesion, but forwarded Plaintiff's records to Dr. Pikus, the attending neurosurgeon at WCMC's neurosurgery clinic, for review. After reviewing Plaintiff's records, Dr. Pikus wrote Dr. Chakravorty on July 12, 1999, corroborating Dr. Moore's findings, and indicating that he observed no condition requiring surgical intervention. See Ex. F. to Loffredo Aff.; Affirmation of Dr. Harold Pikus ("Pikus Aff."), appended to Loffredo Aff., ¶¶ 7-8.

Dr. Neil S. Lava, a professor of neurology at Albany Medical College and a specialist in neurology, reviewed Plaintiff's medical records relating to the clival lesion. See Lava Aff. ¶ 3*fn3 According to Dr. Lava, the records, including films of MRIs and CT scans performed on Plaintiff, indicate that he has a clival lesion which has remained the same size and has not changed over time. Dr. Lava concluded that nothing in the records indicated any neurological abnormality. Id. ¶ 12. Dr. Lava opined that, although Plaintiff has a lesion of the clivus, it has not broken through the bone and is in no way compressing the brain stem or any other part of the brain or spinal cord. Id. ¶ 15. He further found that the lesion could not cause a neurological deficit, and that Plaintiff's lesion "is benign and definitely not compromising his nervous system." Id. ¶ 16.

The Court does not question Plaintiff's contention that he has experienced severe headaches, or that a condition leading to such severe pain would be one that "a reasonable doctor or patient would find important and worthy of comment or treatment." Chance, 143 F.3d at 702. Moreover, it is entirely reasonable for a layperson such as Plaintiff to be anxious about a growth in his skull. However, apart from Plaintiff's conclusory assertions to the contrary, there is nothing in the record to suggest that Plaintiff's clival lesion is responsible for the symptoms of which he complains, or is in any way threatening to his health. To the contrary, the evidence indicates that the lesion was most likely an incidental finding and not the cause of Plaintiff's symptoms. See Affidavit of Dr. Carl J. Koenigsmann ("Koenisgsmann Aff."), appended to State Defendants' Notice to Pro Se Plaintiff Pursuant to Local Rule 56.1 ("State 56.1 Notice") ¶ 24. The lesion is attached to the base of Plaintiff's skull, has not grown or changed shape, and is not impinging on Plaintiff's neural structures. Plaintiff's physicians have therefore determined that it could not be responsible for his headaches. In addition, there is no evidence that the lesion is capable of causing death or degeneration, or that it has interfered with Plaintiff's daily activities — he has continued to work as a clerk at Green Haven at all relevant times. Id. ¶ 31. Cf. Brock v. Wright, 315 F.3d 158, 163 (2d Cir. 2003) (scar that interfered with daily activities was serious condition); Hathaway, 37 F.3d at 67 (hip condition that prevented plaintiff from walking was a serious condition)

In short, the undisputed evidence indicates that Plaintiff's clival lesion is benign in all respects. Thus, while it clearly merited medical attention to diagnose it, the lesion did not turn out to be a "serious" condition.*fn4

2. Defendants' Culpability

Even if Plaintiff's lesion were viewed as a "serious" medical condition, Plaintiff has failed to establish that any of his healthcare providers were negligent in his care, let alone that they ...

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