United States District Court, Southern District of New York
March 31, 2003
ESTHER RODRIGUEZ, AS PUBLIC ADMINISTRATOR OF THE ESTATE OF GREGORY DARBY, DECEASED, PLAINTIFF,
DOWNSTATE CORRECTIONAL FACILITY, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Loretta A. Preska, United States District Judge
MEMORANDUM AND ORDER
Plaintiff Esther Rodriguez brings this action pursuant to 42 U.S.C. § 1983 as public administrator of the estate of Gregory Darby, who died shortly after his release from Willard Drug Treatment Campus ("Willard") in December of 1998. Plaintiff alleges that defendants' deliberate indifference to Darby's medical needs while he was at Willard constitutes a violation of the Eighth Amendment. By notice of motion filed July 26, 2002, defendants Merry Ann Behm, Martin Buonanno and Dr. David Walrath*fn1 moved for summary judgment. For the reasons set forth below, defendants' motion is denied.
The following facts, taken from the parties' statements of facts and affidavits, are undisputed unless otherwise indicated. Gregory Darby*fn2 began serving a 90-day term at Willard on September 25, 1998, as a result of a conviction for possession of a controlled substance in the fifth degree. (State Defendants' Statement Pursuant to Local Rule 56.1 ("Defs' Statement of Facts") ¶¶ 18-19, 27). Upon Darby's arrival at Willard, staff nurses filled out a medical summary form noting that he had congestive heart failure, dilated cardiomyopathy and hypertension. (Id. ¶ 20). Defendant Dr. David Walrath, the Medical Director of Willard, examined Darby after having reviewed his medical records from Downstate Correctional Facility and learning that Darby had been diagnosed with congestive heart failure and cardiomyopathy. (Affidavit of David Walrath, M.D. ("Walrath Aff.") ¶¶ 24-25). Walrath placed Darby in the C-2 Medical Platoon, where parolees identified as having a significant medical problem which prevented them from functioning as part of the regular population were placed. (Id. ¶ 27; Defs' Statement of Facts ¶¶ 33, 39).
During the relevant time period, defendant Merry Ann Behm was a Parole Officer at Willard assigned to the C-2 Medical Platoon. (Defs' Statement of Facts ¶ 7). Defendant Martin Buonanno worked at Willard as a program assistant. (Id. ¶ 13). Both defendants Behm and Buonanno were members of Darby's treatment team at Willard.
Darby was hospitalized at Cayuga Medical Center twice during his stay at Willard — from October 23 to 26 and from November 28 to December 3, 1998. (Id. ¶¶ 59, 62, 87, 90). Upon his return after the second hospital visit, Darby was placed in the infirmary at Willard, where he remained until his release on December 15. (Id. ¶ 90). Darby entered North General Hospital the day after his release and died on December 26, 1998. (Id. ¶ 140).
I. Standard Applicable to a Motion for Summary Judgment
"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." Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 36 (2d Cir. 1994); see also Fed.R.Civ.P. 56(c). See generally Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue of fact is genuine when "a reasonable jury could return a verdict for the nonmoving party," and facts are material to the outcome of the particular litigation if the substantive law at issue so renders them. Anderson, 477 U.S. at 248.
The burden of establishing that no genuine factual dispute exists rests on the party seeking summary judgment. See Chambers, 43 F.3d at 36. "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial," however, "the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim." Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995); accord Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994) ("The moving party may obtain summary judgment by showing that little or no evidence may be found in support of the nonmoving party's case."). The moving party, in other words, does not bear the burden of disproving an essential element of the nonmoving party's claim.
If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Instead, the nonmovant must "`come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely . . . on the basis of conjecture or surmise.'" Trans 4 Sport v. Starter Sportswear, 964 F.2d 186, 188 (2d Cir. 1992) (citation omitted).
In assessing materials such as affidavits, exhibits, interrogatory answers and depositions to determine whether the moving party has satisfied its burden, the court must view the record "in the light most favorable to the party opposing the motion" by resolving "all ambiguities and drawing all factual inferences in favor of the party against whom summary judgment is sought." Chambers, 43 F.3d at 36. "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." Id. at 37 (emphasis added).
The Eighth Amendment prohibits the infliction of "cruel and unusual punishment" which encompasses punishments that "involve the unnecessary and wanton infliction of pain." Gregg v. Georgia, 428 U.S. 153 (1976). In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court established that deliberate indifference to a prisoner's serious medical needs constitutes a violation of the prisoner's Eighth Amendment right against cruel and unusual punishment. See id. at 104-05. A prisoner can receive damages for a violation of his or her Eighth Amendment rights through a claim under 42 U.S.C. § 1983.
The deliberate indifference standard is comprised of two prongs: an objective and a subjective prong. See Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). To satisfy the objective prong, a plaintiff must demonstrate that the alleged deprivation of rights is "`sufficiently serious', in the sense that `a condition of urgency, one that may produce death, degeneration, or extreme pain' exists." Id. (quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). The subjective prong relates to the defendants' state of mind. In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court explained that the necessary state of mind is equivalent to that of criminal recklessness. See id. at 839-40. That is, the requisite state of mind exists when the prison 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." Id. at 837. Allegations of unintentionally or negligently inflicted harms are not sufficient to state an Eighth Amendment claim. See Wilson v. Seiter, 501 U.S. 294 (1991). Similarly, allegations of medical malpractice do not rise to the level of a constitutional violation. See Estelle, 429 U.S. at 106. Rather, "in order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Id.
See also Harding v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y. 1984) (deliberate indifference is "properly pleaded by allegations of `intentional efforts on the part of [prison officials] to delay [the prisoner's] access to medical care at a time when he was in extreme pain[,]' and has made his medical problems known `to the attendant prison personnel'") (quoting Archer v. Dutcher, 733 F.2d 14, 16, 17 (2d Cir. 1984)) (first, third and fourth alteration in original).
Defendants do not dispute that Darby suffered from congestive heart failure, an illness that constitutes a "sufficiently serious" condition to satisfy the objective prong of the deliberate indifference standard. Thus, summary judgment in this case turns on the subjective prong of the standard: whether the record contains evidence such that a rational jury could find that defendants knew of and disregarded an excessive risk to Darby's health.
A. Defendants Behm and Buonanno
With respect to defendants Behm and Buonanno, I find that material issues of fact exist as to whether they disregarded Darby's medical needs by ignoring his complaints and failing to take steps to advance his transfer or release from Willard. Both defendants argue that their positions — as parole officer and program assistant, respectively — gave them no responsibility for Darby's medical care and that, therefore, they cannot be said to have been deliberately indifferent to his medical needs. However, a review of Behm and Buonanno's affidavits and deposition testimony contains evidence of their involvement in Darby's medical care and their awareness of the serious nature of his condition.
As noted above, defendant Behm was assigned to the C-2 Medical Platoon, the platoon in which Darby was placed, on October 22, 1998. (Affidavit of Merry Ann Behm ("Behm Aff.") ¶ 55). In her affidavit, Behm states that parolees at Willard "are assigned a `treatment team', which is comprised of parole officers, counselors, . . ., and a number of other correctional officers. The treatment teams evaluates [sic] the parolee's progress weekly." (Id. ¶ 10). At her deposition in this case, Behm testified that as a parole officer and member of a parolee's treatment team, she had weekly meetings with medical staff and others to "discuss individual parolee's health issues." (Deposition of Merry Ann Behm ("Behm Dep.") at 32-33, Ex. B to Affirmation in Opposition of Robert Androsiglio ("Androsiglio Aff. ")). Behm also testified that as part of her initial investigation of Darby's file, "[t]he scope of [her] looking into things was to determine what his medical condition was and how to treat him accordingly." (Id. at 86). She further stated: "it's my job to determine what the facts are with an individual concerning their [sic] progress and [in Darby's] case, his medical diagnosis, treatment, level of the treatment needed." (Id. at 92). Indeed, Behm was instructed by Senior Parole Officer Smith to determine Darby's "true medical status." (Id. at 102). Before Darby's release from Willard, Behm met with him to make arrangements for his family to pick him up and she advised Darby's wife of his physical condition and that "it was vital that [Darby] follow through on his aftercare program, including seeking medical attention." (Behm Aff. ¶ 69).
Defendant Buonanno was also a member of Darby's treatment team and attended the regular meetings where staff reviewed parolees' cases and discussed their health concerns. (Affidavit of Martin Buonanno ("Buonanno Aff.") ¶ 13). In his affidavit, Buonanno states that "[t]hese meetings were held so that the parolee's treatment team would have an idea of the parolee's medical condition. Thus, the parolee's program could be individualized to meet his physical limitations." (Id. ¶ 14).
On November 3, Buonanno was present with Behm at a meeting with Darby where Darby expressed his medical concerns to them, which they then relayed to the Nurse Administrator of Willard, Edmund Eisley. (Deposition of Martin Buonanno ("Buonanno Dep.") at 54, Ex. A to Androsiglio Aff.). Thus, even if Behm and Buonanno were not the final decisionmakers as to Darby's medical needs, their own testimony raises an issue of fact whether they had input regarding Darby's treatment and at least some responsibility for making sure Darby received the care he needed. Accordingly, for summary judgment purposes, I cannot say that defendants Buonanno and Behm had no responsibility for Darby's medical needs.
With respect to these defendants' awareness of the serious nature of Darby's condition, the record contains evidence that Behm and Buonanno did not think Darby's condition was as serious as Darby himself maintained. At the summary judgment stage, however, whether Behm and Buonanno disagreed with Darby's assessment of the risk to his health does not matter, because "a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Farmer, 511 U.S. at 842; Hudak v. Miller, 28 F. Supp.2d 827, 831 (S.D.N.Y. 1998) ("if the evidence shows that the risk of serious medical problems was so obvious that a reasonable factfinder could infer actual knowledge of them on [defendants'] part, this Court must deny summary judgment"). For example, defendant Behm knew that Darby was diagnosed with congestive heart failure and yet she testified that she "was not made aware of any significant medical problem until [Darby] went back to the infirmary about the end of November and at that time it was believed that he was going to die or that he had a high risk of dying." (Id. at 124).
Behm gave this testimony despite her admission that at the beginning of November she had given Darby a book about death "[b]ecause he spoke to [her] about his belief that he was going to die." (Id. at 103). Similarly, despite Darby's complaints, numerous trips to the infirmary and hospitalizations, Buonanno stated that he did not notice any change in Darby's condition during the time he was at Willard. (Id. at 62). By contrast, plaintiff's expert stated in his affidavit that Darby's medical records indicate that Darby's condition "deteriorated disastrously" while Darby was at Willard. (Affidavit of Bruce David Charash, M.D. ("Charash Aff.") ¶ 16). On the record before me, I find enough evidence of a serious risk to Darby's health that a reasonable jury could conclude that defendants Behm and Buonanno had actual knowledge of the risk.
The closer question — assuming that these defendants did have actual knowledge of the substantial risk to Darby's health — is whether plaintiff has raised an issue of fact with regard to defendants' actions or inactions in response to that risk. For, "prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S. at 844. The record before me is conflicted on this issue. However, plaintiff has put forth evidence that Behm and Buonanno believed Darby was manipulative or a malingering patient and therefore, a jury finding that their responses to his complaints were less than reasonable would not be without a rational basis. See Ruffin v. Deperio, 97 F. Supp.2d 346, 353 (W.D.N.Y. 2000) (denying summary judgment because plaintiff demonstrated that defendants' actions "displayed a sufficient degree to apathy to his serious medical needs").
Defendant Behm states in her affidavit that at her first in-person meeting with Darby on November 3, Darby told Behm "that he wanted a medical release due to his heart condition" and informed her that "he was on a heart transplant list at two New York City hospitals." (Behm Aff. ¶¶ 57-58). Apparently, however, Behm did not forward this information to Nurse Administrator Eisley until November 19 in the form of a memorandum. (Ex. F to Behm Aff.). Behm acknowledges that Darby complained to her about "having difficulty walking" and "expressed a desire to be medically released from Willard." (Behm Dep. at 48-49). Darby also "wrote a number of letters" to Behm containing medical complaints, including a letter in which he complained of his heart condition and inability to walk without losing his breath, but Behm stated that her personal observations of Darby did not match up to his written descriptions and that she disagreed with his characterization of his condition. (Id. at 65-68). At her deposition Behm stated that she "questioned whether [Darby] was being manipulative" at their first meeting. (Id. at 94). Behm testified that the general population at Willard, because they "are known felons," are less reliable and more likely to lie to parole officers and other staff. (Id. at 55-56). She further testified that Darby had not been honest with her when she questioned him in November about his use of his brother's name to receive medical treatment paid for by Medicaid. (Id. at 56). Although Behm stated that Darby complained to her early on in their meetings that his condition had worsened, (Behm Dep. at 98), she seems to have believed Darby's complaints were disingenuous. For example, Behm stated that Darby "would complain, he would go to the infirmary. He would come back, he would go back to the infirmary. He would go to the hospital, he would come back from the hospital." (Id. at 124).
Similarly, Buonanno testified that at the November 3 meeting he suspected Darby was being manipulative; specifically he noted that "we [he and Behm] questioned his sincerity and true ability to perform based on him contradicting himself [in his discussion of the medical staff]." (Buonanno Dep. at 54-55).
Buonnano states that the only complaint he received from Darby was in the form of a note and that Darby never complained to him directly about shortness of breath or chest pain. (Buonanno Aff. ¶¶ 18-19, 29). However, at his deposition when Buonnano was asked, "Had he [Darby] made such complaints to you [in your meetings with him], would you have written them down?" he replied, "No, I would not have." (Buonanno Dep. at 44-45). In addition, as noted above, plaintiff's expert has opined that Darby's medical condition worsened on an objective basis during his stay at Willard, (Charash Aff. ¶ 16), thus undermining Behm and Buonanno's opinions that Darby's complaints were disingenuous. Taking into account the statements of Behm and Buonanno and construing the surrounding circumstances in favor of plaintiff, a reasonable jury could find that these defendants were aware of the serious nature of Darby's condition and that they disregarded complaints about his need for medical attention.
Finally, plaintiff has raised an issue of fact with respect to the reasonableness of Buonanno and Behm's failure to act to advance Darby's transfer or release from Willard. See Estelle, 429 U.S. at 104-05 (deliberate indifference may be manifested by prison officials "intentionally denying or delaying access to medical care"). Both defendants received a copy of the memorandum written by Dr. Walrath, see infra, recommending that Darby be given a medical release from Willard, but there is no evidence that they took any action regarding this recommendation.
In fact, Buonanno stated that upon receipt of the letter he felt he did not have to do anything because there was no action he could take "at [his] level" to get a parolee released early due to a medical condition. (Buonanno Dep. at 31, 63). Behm's supervisor ultimately made the decision to release Darby, (Defs' Memo. at 15), but there is no indication that Behm took any affirmative steps to advocate for Darby's release. Plaintiff argues that Behm and Buonanno had the duty and means to fight for Darby's release. While they argue that they had no such duty or responsibility, I find that as members of Darby's treatment team there is at least an issue of fact whether they had the opportunity and ability to take steps to obtain his release. Thus, a jury could infer deliberate indifference from the fact that Behm and Buonanno knew of the seriousness of Darby's condition and that the Medical Director of Willard believed he should be released, and yet they did not act to improve Darby's chances of being medically paroled or released from Willard.
Accordingly, because I find that there is evidence from which a jury could infer that defendants Behm and Buonanno were deliberately indifferent to Darby's medical needs, the claims against them cannot be resolved on summary judgment.
B. Defendant Walrath
Defendant Dr. David Walrath is the Medical Director of Willard, where it is his responsibility to "render general medical care to the parolees during sick call and perform chart reviews." (Walrath Aff. ¶¶ 1, 14). Thus, unlike defendants Behm and Buonanno, there is no question that Walrath was responsible for Darby's medical needs. On the record before me, there is evidence that Walrath provided some care for Darby in that he prescribed medication and special accommodations for Darby and admitted Darby to the infirmary and the hospital when he thought it appropriate. However, the mere fact that Darby received some medical treatment, "while it may `substantially weaken' his claim, does not foreclose a finding of deliberate indifference if [Walrath] knew that this treatment was inadequate." Hudak, 28 F. Supp.2d at 832 (internal citation omitted) (first alteration in original).
The facts, read in the light most favorable to plaintiff, reveal that Walrath had concerns about the adequacy of the treatment provided to Darby and thought Darby should be transferred out of Willard. According to Walrath, he has the authority to request medical consultations for parolees — which are subject to occasional review — and to send a parolee to the emergency room or the hospital, but he does not have the authority to order the transfer or release of a parolee from the facility. (Walrath Aff. ¶ 16). Plaintiff argues that although Walrath does not have the authority to order a transfer or release, he did "have the power to expeditiously and adamantly alert the Department of Parole as to [Darby's] medical condition to obtain said transfer or medical release. . . ." (Plaintiff's Response to Defendants' Statement of Material Facts ¶ 2). In fact, Walrath's conduct indicates that he had at least some influence on a parolee's ability to obtain a medical release given that he wrote a memorandum on November 9, 1998 requesting that Darby be considered for medical parole or transfer to another facility. (Ex. L to Walrath Aff.). In the memorandum Walrath voiced his concern that "we will have trouble meeting [Darby's] needs here . . . and that he will have an adverse outcome." (Id.). At his deposition, Walrath clarified that by "adverse outcome" he meant "when someone dies." (Deposition of David Walrath, M.D. ("Walrath Dep.") at 70, Ex. D to Androsiglio Aff.). This evidence raises an issue of fact as to whether Walrath's failure to get Darby released from Willard — taking into account Darby's "life-threatening and fast degenerating" condition — constitutes deliberate indifference. Liscio v. Warren, 901 F.2d 274, 277 (2d Cir. 1990) (failure of doctor to examine plaintiff over a three-day period could constitute deliberate indifference because plaintiff's condition was "both life-threatening and fast-degenerating").
More than a month passed from the time of Walrath's writing the memorandum to the time of Darby's release from Willard. While Walrath continued to provide Darby with some treatment in the interim period, a factfinder could conclude that Walrath knew the treatment rendered during this period was inadequate and ineffective given the record of Darby's continued complaints, trips to the infirmary and hospitalization, as well as plaintiff's expert's opinion that Darby's medical condition "deteriorated disastrously" on an objective basis. (Charash Aff. ¶ 16). See Ruffin, 97 F. Supp.2d 346, 353 (W.D.N.Y. 2000) ("the mere fact that plaintiff was frequently examined by the defendants and eventually referred to outside specialists is insufficient, when, as in the instant case, the `course of treatment was largely ineffective'") (quoting Hathaway, 37 F.3d at 68) (collecting cases). Indeed, having reviewed Darby's medical records, plaintiff's expert questioned the fact that "despite his documented medical condition as of November 3, 1998 [around the time that Walrath wrote his memorandum], [Darby] was not transferred to a medical facility, he did not receive intravenous therapies and he was not assessed by a cardiologist until he was admitted to Cayuaga [M]edical [C]enter on November 28, 1998." (Id. ¶ 16). Plaintiff's attack on the particular type of treatment ordered by Walrath (e.g., oral medication versus intravenous therapies and the like) is unavailing, because mere differences of opinion as to the type of treatment rendered do not state a claim for deliberate indifference. See Wandell v. Koenigsmann, 99 Civ. 8652, 2000 U.S. Dist. LEXIS 10466, at *8 (S.D.N.Y. July 27, 2000). However, given that Walrath himself recognized that Darby was "too sick to be anywhere" as of the beginning of November, (Walrath Dep. at 90), "[a] jury could infer deliberate indifference from the fact that [Walrath] knew the extent of [Darby's] pain, knew that the course of treatment was largely ineffective, and declined to do anything more to attempt to improve [Darby's] situation." Hathaway v. Coughlin, 37 F.3d 63, 68 (2d Cir. 1994); see also Hudak, 28 F. Supp. at 833 (denying summary judgment because a rational jury could decide, based on the facts and testimony of witnesses, that defendant doctor "must have known something was seriously wrong but chose not to investigate or test further"). Thus, plaintiff has raised an issue of fact with regard to whether Walrath acted with deliberate indifference to the adequacy or effectiveness of the treatment rendered. Accordingly, summary judgment is not appropriate on this record.
By way of a defense, Walrath argues that Darby was non-compliant with his orders by, inter alia, failing to follow a low salt diet and elevate his legs, and that such non-compliance somehow vitiates Darby's ability to claim deliberate indifference. While it may be that in certain cases a patient's refusal of medical care defeats a claim of deliberate indifference, see McClemoore v. Dingman, No. 99-117, 2000 U.S. App. LEXIS 25379, at *8 (2d Cir. Oct. 6, 2000) (affirming summary judgment for defendants in part because plaintiff's "multiple refusals for medical attention . . . precludes a recovery on the ground of deliberate indifference"), the evidence in this case does not support such a finding. In fact, as plaintiff's expert points out, Walrath's awareness of Darby's non-compliance arguably put him on notice that Darby's condition needed to be monitored more closely. (Charash Aff. ¶¶ 19-20). See generally Liscio, 901 F.2d at 276 (where medical records indicated that prisoner was "poor historian" of his condition, defendant doctor was on notice that prisoner might be suffering from additional ailments). A jury could infer that Walrath's seeming disregard of Darby's non-compliance demonstrates deliberate indifference to his medical needs. Resolving all ambiguities and drawing all inferences in favor of plaintiff, Walrath has been unable to show that he is entitled to judgment as a matter of law. Accordingly, Walrath's motion for summary judgment is denied.
III. Qualified Immunity
Defendants also argue that they are entitled to the defense of qualified immunity. Public officials are entitled to qualified immunity if their conduct does not violate clearly established rights or if it was objectively reasonable for them to believe their actions were lawful. See Weyant v. Okst, 101 F.3d 845, 857 (2d Cir. 1996). It is clearly established law that deliberate indifference to the serious medial needs of a prisoner violates the Eighth Amendment. See Estelle, 429 U.S. at 106. However, I have found that there is a genuine issue of material fact whether defendants acted with deliberate difference to Darby's serious medical needs. Therefore, "because a factual finding is essential to resolving the issue of qualified immunity," Kaminsky v. Rosenblum, 929 F.2d 922, 927 (2d Cir. 1991), I cannot determine at this time whether it was objectively reasonable for defendants to believe that their acts were lawful. Accordingly, defendants' motion for summary judgment on the basis of qualified immunity is denied.
For the reasons stated above, defendants' motion for summary judgment (docket no. 24) is denied. Counsel shall confer and inform the Court by letter no later than April 11, 2003 as to the steps necessary to resolve the action.