United States District Court, Southern District of New York
April 17, 2003
IVAN RODRIGUEZ, PLAINTIFF,
WESTCHESTER COUNTY JAIL CORRECTIONAL DEPARTMENT, ASSOC. WARDEN MIRANDA, EMERGENCY RESPONSE TEAM (ERT), WESTCHESTER COUNTY JAIL, SGT. GARY JOHNSON, SUPERVISOR (ERT), OFFICER ROSENDORN 733 (ERT), TWO UNKNOWN MEMBERS OF ERT (HEREINAFTER) JOHN DOE-1, JOHN DOE-2, EMSA CORRECTIONAL CARE, DEFENDANTS.
The opinion of the court was delivered by: Robert P. Patterson, Jr., United States District Judge.
OPINION AND ORDER
Defendant EMSA Correctional Care ("Defendant" or "EMSA") moves for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure. For the following reasons, Defendant's motion is granted.
Plaintiff Ivan Rodriguez ("Plaintiff'), a prison inmate proceeding pro se, brought suit against Defendant pursuant to 42 U.S.C. § 1983. Plaintiff alleges that Defendant was deliberately indifferent to Plaintiff's serious medical needs and thereby violated Plaintiff's rights under the Eighth and Fourteenth Amendments of the United States Constitution.
According to the allegations in Plaintiff's Third Amended Complaint, during a search of Plaintiff's person on October 26, 1997 at Westchester County Jail, corrections officers uncovered a sharpened piece of metal, or "shank," hidden in the collar area of Plaintiff's t-shirt. (Plaintiff's Third Amended Complaint ¶¶ 8-9.) Plaintiff alleges that after removing the shank from his possession, one of the officers "twisted Plaintiff's right arm behind his back," "grabbed Plaintiff by the back of his head/hair," and threw him to the ground. (Id. ¶ 9.) Plaintiff suffered injuries to his face, including "an open wound over Plaintiff's left eyebrow," and was knocked unconscious as a result of being forcibly thrown to the ground. (Id.) Plaintiff claims he was subsequently taken back to his cell, where he was beaten in "an unprovoked wanton assault." (Id.)
Thereafter, Plaintiff was brought to the facility clinic, where he alleges EMSA employees refuse[d] to listen [to] and adequately examine Plaintiff when he complained about having pain in his chest, head, back, left wrist and right rib cage." (Id. ¶ 10.) Plaintiff also claims "it was obvious to the medical staff that the large cut over Plaintiff's left eyebrow needed to be use [sic] of real stitches instead of the butterfly stitches he received," which resulted in a "permanent ugly and noticeable" scar on his face. (Id.) Furthermore, he claims Defendant "had the responsibility to refer Plaintiff to the outside hospital" so he could receive adequate medical care. (Id.)
Plaintiff alleges that as a result of the injuries he sustained on October 26, 1997, he still suffers from headaches and "dark pa[t]ches" on the top of his skull, a scar over his left eyebrow, a "possibly fractured wrist which [has] never been the same since the incident," "bruises on [his] legs where dark pa[t]ches still exist and still hurt upon light contact," and a worsened heart problem. (Id. ¶ 15.)
Defendant offers its medical records taken in the regular course of business to support its factual allegations about the treatment it provided to Plaintiff in response to his injuries of October 26, 1997. Plaintiff's admissions in his deposition, taken on April 2, 2001, support Defendant's Local Rule 56.1 Statement of Material Facts as follows.
First, Defendant claims that "[a]ppropriate treatment was afforded to [P]laintiff especially in light of the fact that [P]laintiff stated that he fell in the day room and denied any other injuries." (Defendant's Rule 56.1 Statement of Material Facts ¶ 7, citing Defendant's Notice of Motion Exhibit E, EMSA Correctional Care Progress Notes Dated 10/26/97.) During his deposition, Plaintiff admitted that, in view of the presence of a corrections officer, he told the EMSA nurse that he had slipped and fallen in the day room when she asked him what had happened, and Plaintiff did not show her his bruises or otherwise apprise her of the full extent of his injuries: "I didn't tell anything to her. I just said I was in pain and my body hurt, my chest hurt and my leg and my back hurt too." (Def.'s Notice of Mot. Ex. F, Deposition of Plaintiff on 4/2/01 at 53-54.)
In addition, Defendant claims that on October 26, 1997, it treated Plaintiff's injuries with Tylenol and conducted "a physical examination of [P]laintiff's color, respiration and perspiration, cleaning and shaving of [P]laintiff's eyebrow for proper application of five (5) steri strips to close a three (3) centimeter long, two (2) millimeter deep cut to the [P]laintiff's eyebrow." (Def.'s Rule 56.1 Statement ¶ 7, citing Def.'s Notice of Mot. Ex. E, EMSA Correctional Care Progress Notes Dated 10/26/97.) Plaintiff admitted during his deposition that the EMSA nurse treated him by taking his blood pressure and by applying five butterfly stitches, a bandage to the cut over his eye and by giving him medicine. (Def.'s Notice of Mot. Ex. F, Dep. of Pl. at 53-54.)
Furthermore, Defendant claims a nurse visited Plaintiff's cell approximately forty-five minutes after he left the clinic to investigate the chest pains Plaintiff had complained of earlier; the nurse noted he was "not in any respiratory distress," his color was "good," his skin was "warm and dry" and "his cut was no longer bleeding." (Id. at ¶ 8.) At his deposition, Plaintiff stated that the EMSA nurse visited him in his cell about an hour after he left the clinic to again take his blood pressure, at which time Plaintiff repeated his complaints about chest and body pain. (Def.'s Notice of Mot. Ex. F, Dep. of Pl. at 55-57.) He has admitted the nurse "gave [him] an appointment and said [she] would take [him] back to the clinic," where he was checked again and referred by a doctor for x-rays. (Id. at 57-58.) Two days after the incident, Defendant authorized x-rays to be taken of Plaintiff's skull and rib cage, and it was determined that Plaintiff had sustained a fractured rib. (Def.'s Rule 56.1 Statement ¶ 9; Def.'s Notice of Mot. Ex. E, Progress Notes of 11/3/97.) Plaintiff confirmed these facts in his deposition. (Def.'s Notice of Mot. Ex. F, Dep. of Pl. at 58.)
Defendant has also provided evidence that one of its doctors prescribed Procardia 20 mg, and Plaintiff concedes he was given pills for high blood pressure as well as a pain killer. (Id.; Def.'s Rule 56.1 Statement ¶ 8, citing Def.'s Notice of Mot. Ex. E, EMSA Correctional Care Progress Notes Dated 10/26/97.)
In addition to the claims that Plaintiff has alleged in his Complaint, Plaintiff has raised three new Eight Amendment claims for the first time in his Reply.
First, Plaintiff claims that as a result of the injuries he sustained on October 26, 1997, he suffered "headaches, dizziness and great pain in the his head." (Plaintiff's Reply at 4.) He states that due to his head injuries, he has suffered a "serious problem with [his] vision" over "the last few years" and needs to wear "contact glasses to see for long distance." (Id.) In support of his claim that Defendant acted with deliberate indifference to his medical needs, he alleges that EMSA doctors "never did an MRI or a CT Scan to make sure [P]laintiff was OK after the assault," and he points to a report in his medical records by EMSA doctors, Walter E. Bottizer and Oscar D. Bentinganan, which states, "If indicated clinically, CT scan of the head may be more helpful." (Id.; Def.'s Notice of Mot. Exhibit E, Report of Doctors Bottizer and Bentinganan Regarding Skull Series of 10/28/97.)
Also in his Reply, Plaintiff claims that in April of 1998, he complained to a nurse about pain in his right shoulder, the center of his upper back and in his left arm. Plaintiff claims the nurse incorrectly recorded his complaints in his medical records and "never made proper arrangements to have x-ray [sic] done" to investigate his back pain. (Pl.'s Reply at 3; see also Def.'s Notice of Mot. Ex. E, Inmate Medical Request Form of 4/7/98.)
Finally, Plaintiff's Reply states that when he arrived at Westchester County Jail,*fn1 Plaintiff's medical records reflected the fact that he had previously suffered three strokes and one heart attack and had been referred by the doctors of Beckman Downtown Hospital to Westchester Medical Center for physical therapy. (Pl.'s Reply at 2.) Plaintiff claims Defendant provided inadequate medical attention by failing to follow up on Beekman Downtown's recommendation that he receive physical therapy at Westchester Medical Center, (id. at 2),*fn2 and that he needs six weeks of physical therapy for his back, feet, legs, left wrist, right shoulder and neck. (Id. at 4-5.)
In his deposition, however, Plaintiff stated that on October 26, 1997, he had at that time been housed in unit 2-K of the prison for "two months because I just came back from the hospital. I just finished my physical therapy." Plaintiff further reported that he had been at Westchester Medical because, "Like I said before the doctor from Beacon [sic] Downtown sent me there." (Def.'s Notice of Mot. Ex. F, Dep. of Pl. at 10-11.)
I. Summary Judgment Standard
The Second Circuit has articulated the following standard for granting summary judgment:
First, 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).
Second, the burden is upon the moving party to
demonstrate that no genuine issue respecting any
material fact exists. In considering that, third, all
ambiguities must be resolved and all inferences drawn
in favor of the party against whom summary judgment is
sought. Fourth, 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. When
no rational [fact finder] could find in favor of the
nonmoving party because the evidence to support its
case is so slight, there is no genuine issue of
material fact and grant of summary judgment is
Gallo v. Prudential Residential Svcs., 22 F.3d 1219
, 1223-24 (2d Cir. 1994) (citations omitted). See also Santiago v. City of New York, 2000 U.S. Dist. LEXIS 15071, 8-9 (S.D.N.Y. 2000).
Pleadings submitted by pro se plaintiffs are held to "less stringent standards than those applicable to formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Their papers are read "liberally" and interpreted "to raise the strongest possible arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). The Second Circuit has stated that "implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). However, pro se plaintiffs are not exempt from the "rules of procedural and substantive law." Id. (quoting Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981)).
II. Standard of Analysis for Plaintiff's Claims
In order to establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 105 (1976). To prevail, the plaintiff must satisfy a two-pronged test with both an objective and a subjective element. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998).
The objective prong requires that the alleged deprivation be "sufficiently serious." Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). There must be "a condition of urgency, one that may produce death, degeneration or extreme pain," id. (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990)), and a condition may be sufficiently serious where "the failure to treat [it] could result in further significant injury or the "unnecessary and wanton infliction of pain."' Chance, 143 F.3d at 702 (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)). See also Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986) ("`The essential test is one of medical necessity and not one simply of desirability.'") Although there is "no settled, precise metric to guide a court in its estimation of the seriousness of a prisoner's medical condition," Brock v. Wright, 315 F.3d 158 (2d Cir. 2002), the Second Circuit has established a nonexhaustive list of factors which are "highly relevant to the inquiry into whether a given medical condition is a serious one," including: (1) whether a reasonable doctor or patient would perceive the medical need in question as "important and worthy of comment or treatment;" (2) whether the medical condition significantly affects daily activities; and (3) "the existence of chronic and substantial pain." Chance, 143 F.3d at 702, 703.
The subjective prong in Chance requires that the defendant "must act with a sufficiently culpable state of mind." Hathaway, 37 F.3d at 66. An official acts with deliberate indifference when 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 that inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). In contrast to deliberate indifference, "an inadvertent failure to provide adequate medical care" or "a complaint that a physician has been negligent in diagnosing or treating a medical condition" do not satisfy the subjective requirement; "[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 105-106. Therefore, a plaintiff "must show that the acts of defendants involved more than lack of due care, but rather involved obduracy and wantonness in placing his health in danger." LaBounty v. Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998).
III. Application of Standards to Plaintiff's Claims
Although Plaintiff's Complaint makes various allegations of inadequate medical care, there are no genuine issues of material fact which a reasonable jury, properly instructed, could conclude amount to a valid claim for inadequate medical care.
First, Plaintiff claims Defendant "refuse[d] to listen [to] and adequately examine Plaintiff when he complained about pain in his "chest, head, back, left wrist and right rib cage." (Pl.'s Compl. ¶ 9.) However, EMSA's record of October 26, 1997 suggests Defendant took several steps to address Plaintiff's complaints, including a physical examination both at the facility clinic and shortly thereafter in Plaintiff's cell, x-rays of Plaintiff's skull and rib cage, and medications, and this record is supported by plaintiffs deposition testimony. (Def.'s Rule 56.1 Statement ¶¶ 7-9; Def.'s Notice of Mot. Ex. F, Dep. of Pl. at 52-59.) While courts have held that a complete failure to provide any medical care may in some circumstances be indicative of deliberate indifference, in this case, in light of Plaintiff's admission that he did not apprise the EMSA nurse of the full extent of his injuries and, instead, stated only that he had fallen in the day room and had hit his head, (Def.'s Notice of Mot. Ex. F, Dep. of Pl. at 53-54), the allegations of the Plaintiff amount at most to negligence or disagreement about a course of treatment. See, e.g., Hathaway, 37 F.3d at 70 (`"We do not sit as a medical board of review. Where the dispute concerns not the absence of help, but the choice of a certain course of treatment, or evidences mere disagreement with considered medical judgment, we will not second guess the doctors."' (quoting Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987))). Plaintiff's claim that Defendant disregarded an obvious need for "real stitches" and instead used butterfly stitches to treat the cut over his left eyebrow, which resulted in a "permanent ugly and noticeable" scar (Pl.'s Compl. ¶ 10), is, at most, an allegation of negligence and evidence of a difference of opinion about the preferred medical treatment.
Even if Plaintiff's claim satisfies the deliberate indifference requirement, see, e.g., Chance, 143 F.3d at 703 ("In certain instances, a physician may be deliberately indifferent if he or she consciously chooses "an easier and less efficacious' treatment plan."), Plaintiff has failed to demonstrate that this cut was a sufficiently serious medical condition. In Chance, the Second Circuit distinguished between "a prisoner who nicks himself shaving," who "obviously does not have a constitutional right to cosmetic surgery," and a prisoner who "has a five-inch gash on his cheek that is becoming infected," in which case "the failure to provide appropriate treatment might well violate the Eighth Amendment." 143 F.3d at 702. Plaintiff does not dispute Defendant's statement that Plaintiff's cut, which was treated and is not claimed to have been infected, was approximately three centimeters long and two millimeters deep. As a matter of law, such a cut does not suffice as "a condition of urgency, one that may produce death, degeneration or extreme pain." Hathaway, 37 F.3d at 66.
Third, Plaintiff claims Defendant should have referred him to an "outside hospital" for adequate treatment. (Pl.'s Compl. ¶ 10.) However, Plaintiff has not shown why Defendant's failure to make such a referral, particularly in light of his admitted withholding from Defendant of information about the cause and extent of his injuries, constituted "obduracy and wantonness in placing his health in danger." LaBounty, 137 F.3d at 72-73. This complaint amounts at most to a disagreement over the proper course of treatment and does not amount to "deliberate indifference to serious medical needs." See Nelson v. Rodas, 2002 U.S. Dist. LEXIS 17359 (S.D.N.Y. 2002) (complaint that doctors refused prisoner's request for a consultation with an outside physician was not a sufficient basis for an Eighth Amendment claim), citing Randle v. Mesrobian, 1998 U.S. App. LEXIS 21161 (7th Cir. 1998) ("inmates have no automatic right to consult with outside physicians").
Fourth, in his Reply, Plaintiff claims for the first time that as a result of the head injuries he sustained on October 26, 1997, he has suffered "a serious problem with [his] vision" over "the last few years." (Pl.'s Reply at 4.) In contrast to his other claims, this vision problem could potentially qualify as a "serious medical condition." Drawing all inferences in favor of Plaintiff, the non-moving party, Gallo, 22 F.3d at 1223, and holding Plaintiff to "less stringent standards" afforded to pro se parties, Haines, 404 U.S. at 520, this injury may significantly affect Plaintiff's daily activities and be worthy of treatment, two of the three factors enumerated by the Second Circuit in Chance. See also Young v. Doe, 1999 U.S. App. LEXIS 6112 (2d Cir. 1999) (pro se plaintiff adequately alleged prison doctors' indifference to plaintiff's rapidly deteriorating eyesight to the point of blindness); Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (inmate's need for prescription eyeglasses constituted a serious medical condition where, as a result of not having glasses, the inmate suffered headaches, his vision deteriorated, and he was impaired in daily activities).
However, Plaintiff has failed to articulate a sufficient factual basis on which a reasonable fact finder could conclude Defendant was deliberately indifferent to Plaintiff's head injuries and vision problem. Although Plaintiff suggests Defendant should have performed, in addition to x-rays, an MRI or CT scan to diagnose the extent of his head injury after the October 26, 1997 incident (Pl.'s Reply at 4), as stated in Estelle, "a medical decision not to order an [x]-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court . . ." 429 U.S. at 107. See also Nelson, 2002 U.S Dist. LEXIS 17359 (S.D.N.Y. 2002); Vento v. Lord, 1997 U.S. Dist. LEXIS 11022 (S.D.N.Y. 1997); Sharp v. Jeanty, 1993 U.S. Dist. LEXIS 16780 (S.D.N.Y. 1993); Johnson v. Department of Corr., 1995 U.S. Dist. LEXIS 3457 (S.D.N.Y. 1995). Furthermore, here the record upon which Plaintiff relies states, "If indicated clinically, CT scan of the head may be more helpful." (Def.'s Notice of Mot. Exhibit B, Report of Doctors Bottizer and Bentinganan Regarding Skull Series of 10/28/97.) Plaintiff does not provide evidence that thereafter he continued to bring his complaints of head injuries and vision problems to the clinic's attention.
The factual record is notably devoid of any evidence that Plaintiff notified Defendant of his vision needs and was deliberately denied adequate medical care. To the contrary, Plaintiff's allegation that he needs to wear "contact glasses to see for long distance" suggests Plaintiff's vision problem has been diagnosed and treated. If however, within thirty days of the date of this opinion granting summary judgment for Defendant, Plaintiff submits an affidavit demonstrating (1) when, where and in what manner he notified Defendant of his deteriorating vision, (2) Defendant took no action or inadequate action with respect to Plaintiff's deteriorating vision, and (3) his vision problem was a sufficiently serious and urgent condition, this Court will permit the Defendant to move to file an amended complaint pursuant to Fed.R.Civ.P. 15(a), but only with respect to this particular claim of deteriorating vision.*fn3
Plaintiff's fifth claim, also raised for the first time in his Reply — that a nurse incorrectly recorded his complaints and failed to order an x-ray to investigate his back pain (Pl.'s Reply at 3) — clearly fails the subjective requirement. "An accident, although it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of unnecessary pain." Estelle, 429 U.S. at 105. Additionally, as noted above, a doctor's decision not to order an x-ray or other diagnostic tests is not violative of the Eighth Amendment.
Finally, Plaintiff alleges in his Reply that Defendant deliberately denied him adequate care by failing to follow up on a previous medical care provider's recommendation that he undergo physical therapy. (Pl.'s Reply at 2, 4-5.) His deposition reflects that he received the physical therapy recommended by Beekman Downtown at Westchester Medical Center immediately prior to his arrival at the Westchester County Jail. (Def.'s Notice of Mot. Ex. F, Dep. of Pl. at 10-11.) Accordingly, his claim of not receiving the physical therapy recommended by Beekman Downtown appears to be baseless.
For the above reasons, Defendant's Motion for Summary Judgment is granted. The parties agree on the material facts pertaining to the medical treatment which Plaintiff has received; there are no relevant factual disputes. Furthermore, based on the undisputed factual record, no reasonable, properly instructed juror could conclude that Defendant acted with deliberate indifference to a serious medical need. As a result, judgment as a matter of law is appropriate. However, in view of Plaintiff's allegations raised for the first time in his Reply papers, if within thirty days of the date of this opinion, Plaintiff submits an affidavit to this Court showing (1) when, where and in what manner Plaintiff notified Defendant of his vision problem, (2) that Defendant took no action or inadequate action with respect to this problem, and (3) his vision problem was sufficiently serious to qualify as "a condition of urgency, one that may produce . . . degeneration or extreme pain," Hathaway, 37 F.3d at 66, this Court will vacate its summary judgment order solely with respect to this particular claim and grant Plaintiff leave to move to amend his Complaint to include the claim of deliberate indifference to his vision problem.
IT IS SO ORDERED.