United States District Court, W.D. New York
March 22, 2004.
NATHANIEL LEWIS Plaintiff,
DR. JOHN ALVES, Facility Health Services Director for Southport Correctional Facility, Defendant.
The opinion of the court was delivered by: KEN SCHROEDER, Magistrate Judge
DECISION AND ORDER
Pursuant to 28 U.S.C. § 636(c), the parties have consented to
the assignment of this case to the undersigned to conduct all
proceedings in this case, including the entry of final judgment.
On September 10, 2001, plaintiff filed his complaint pro se,
pursuant to 42 U.S.C. § 1983, seeking compensatory damages for
inadequate medical treatment during his incarceration at
Southport Correctional Facility ("Southport"), in violation of
his constitutional rights under the Eighth and Fourteenth
Amendments to the United States Constitution. Dkt. #1.*fn1
Specifically, plaintiff complains that Dr. Alves, Director of
Medical Services at Southport, failed to treat plaintiff's
diagnosis of chronic hepatitis C and refused to administer
interferon and ribavirin treatment as prescribed by the
consulting physician at Strong Memorial Hospital. Dkt. ##1, 26. Currently before me is plaintiff's motion for summary judgment
(Dkt. #25), and defendant's motion for summary judgment. Dkt.
#29. For the following reasons, plaintiff's motion for summary
judgment is denied and defendant's motion for summary judgment is
Plaintiff was diagnosed with chronic hepatitis C*fn2 prior
to his transfer to Southport on June 30, 2000. Dkt. #26, ¶¶ 1-2;
Dkt. #32, ¶¶ 5, 7a.
On July 1, 2000, plaintiff complained of itching and was given
a dandruff shampoo and benadryl. Dkt. #32, ¶ 7b.
On July 6, 2000, plaintiff complained of a rash on his foot and
stomach pains and was given a foot cream and antacids. Dkt. #32,
On July 10, 2000, plaintiff complained that he was not
receiving treatment for Hepatitis C. Dkt. #32, ¶ 7d. Dr. Alves
reviewed plaintiff's records and, noting no significant symptoms,
scheduled an appointment for plaintiff in four weeks. Dkt. #32, ¶
7d. On July 13, 2000, plaintiff complained of stomach pain and
diarrhea and received immodium. Dkt. #32, ¶ 7e.
Plaintiff complained that he was itching on July 17, 2000 and
was examined by Dr. Alves on July 20, 2000. Dkt. #32, ¶ 7f-g. Dr.
Alves noted that plaintiff had lost weight and, because itching
can be a symptom of hepatitis, ordered blood work and referred
plaintiff for a gastroenterology consultation. Dkt. #32, ¶ 7g.
Dr. Alves also prescribed a multivitamin and a high protein, high
calorie diet for plaintiff. Dkt. #32, ¶ 7g.
On July 25th, July 29th, August 7th, and August
8th, plaintiff received over the counter medication in
response to complaints of diarrhea and ear pain. Dkt. #32, ¶ 7h.
Plaintiff's blood was collected on August 18, 2000. Dkt. #32,
Dr. Alves examined plaintiff again on August 24, 2000, at which
time he observed that plaintiff's weight had increased. Dkt. #32,
¶ 7i. Dr. Alves noted plaintiff's report of decreased itching but
continued diarrhea and continued plaintiff's medication pending
the gastroenterology consultation. Dkt. #32, ¶ 7i.
Plaintiff received over-the-counter medication in response to
complaints of a sore shoulder and itchy feet on August 27th,
September 5th, and September 17th. Dkt. #32, ¶ 7j. Plaintiff was evaluated by Dr. Shaw-Stiffel at Strong Memorial
Hospital's Liver Clinic on October 9, 2000. Dkt. #32, Exh. A. Dr.
Shaw-Stiffel's impression/recommendations were, inter alia, as
Nathaniel apparently has chronic hepatitis C,
although confirmation of this with a hepatitis C RNA
by PCR will be required prior to embarking [upon] a
liver biopsy. As well, hepatitis C genotype would be
of help in terms of prognostic and therapeutic
implications, as you may know. Genotype 1 is more
difficult to treat compared to type 2 or 3.
A liver biopsy would help evaluate the degree of
any liver damage prior to starting treatment with
Rebetron or the new pegylated (once a week)
interferon, once it is approved next year by the FDA.
Dkt. #32, Exh. A.
Dr. Alves reviewed Dr. Shaw-Stiffel's report on October 17,
2000 and ordered the recommended blood work. Dkt. #32, ¶ 7m. Dr.
Alves also prescribed Actigall, a drug which treats liver
cirrhosis and is commonly prescribed to hepatitis C patients.
Dkt. #32, ¶ 7m. Plaintiff's blood was collected on October 18,
2000. Dkt. #32, Exh. A.
Dr. Shaw-Stiffel examined plaintiff again on December 13, 2000
and noted that the Actigall had decreased plaintiff's itching
symptoms. Dkt. #32, Exh. A. Dr. Shaw-Stiffel also noted that the
blood work collected on October 18, 2000 revealed Hepatitis C
genotype 1 and reported the following impression/recommendations:
Nathaniel will require a liver biopsy to assess the
degree of any liver damage prior to deciding on any
treatment. Ideally, we could wait until the pegylated
(one-a-week) interferon plus ribavirin is approved by the FDA early next year. Nevertheless, if you would
like to schedule a liver biopsy, please feel free to
Prior to that, he will need [blood work] done and
the results faxed to [the Liver Clinic].
For now, Nathaniel will remain on Actigall and a
Dkt. #32, Exh. A. Dr. Alves made the referral for a liver biopsy
on December 20, 2000. Dkt. #32, Exh. A. Plaintiff's blood was
collected on December 21, 2000. Dkt. #32, Exh. A.
On January 9, 2001, Dr. Alves prescribed the Hepatitis A
vaccine for plaintiff. Dkt. #32, ¶ 7q. Plaintiff refused the
vaccine because he believed that he would not be exposed to the
disease due to the length of his prison term. Dkt. #32, ¶ 17x.
The liver biopsy was performed by Dr. Shaw-Stiffel on February
20, 2001. Dkt. #32, Exh. A. The biopsy revealed "chronic
hepatitis with mild activity and bridging fibrosis." Dkt. #32,
Exh. A. Dr. Shaw-Stiffel reviewed these results with plaintiff on
August 15, 2001, at which time he noted the following
Chronic hepatitis C. We will repeat [blood work]
We will start the patient on the newly FDA-approved
pegylated interferon PEG-Intron once a week subQ plus
ribavirin 400 mg p.o.q.a.m. and 600 mg 1. p.m. . . .
We will need to monitor his [blood work] at least
twice a week for the first month, then monthly.
Dkt. #32, Exh. A. Dr. Alves reviewed plaintiff's medical chart and considered Dr.
Shaw-Stiffel's recommendations on September 4, 2001. Dkt. #32, ¶
7z. However, Dr. Alves rejected the interferon/ribavirin
treatment because plaintiff "had tested positive for drug/alcohol
use on May 28, 2001." Dkt. #32, ¶ 7z. Dr. Alves informed
plaintiff that he would have to complete Alcohol Substance Abuse
Treatment before he would reconsider interferon/ribavirin
treatment. Dkt. #32, ¶¶ 7z, aa.
In support of his motion for summary judgment, Dr. Alves
explains that "due to the potentially adverse side effect of
drugs and alcohol on the liver," interferon/ribavirin treatment
was contraindicated for plaintiff. Dkt. #32, ¶ 10. Dr. Alves also
noted that the DOCS protocol, which "was developed in December of
1999 in accordance with guidelines from the Center for Disease
Control and Prevention," required a patient to be drug and
alcohol free for six months before commencing interferon
treatment. Dkt. #32, ¶ 11.
Plaintiff refused blood work on December 4, 2001 and complained
of liver pain on December 4th, 5th, 6th, 12th,
20th, and 21st. Dkt. #32, ¶ 7bb-dd. Dr. Alves examined
plaintiff on December 24, 2001 and advised him that he needed
current blood work in order to consider treatment options. Dkt.
#32, ¶ 7ee. The plaintiff informed Dr. Alves that he was "not
giving any more" blood. Dkt. #32, ¶ 7ee.
Plaintiff complained of stomach and liver pain on January
11th, 15th and 23rd. Dkt. #32, ¶ 7ff. Dr. Alves
reiterated to plaintiff the need for current blood work on
January 23, 2002. Dkt. #32, ¶ 7gg. Plaintiff continued to complain of pain on February 4th,
6th, and 11th, as well as March 3rd, 15th and
25th, and April 24th, but refused blood work on February
19th and 26th, as well as on March 5th and 26th
and April 12th. Dkt. #32, ¶ 7hh & Exh. A & C. Plaintiff
refused to see Dr. Alves on May 6, 2002. Dkt. #32, ¶ 7pp.
In support of his motion for summary judgment, Dr. Alves states
that although plaintiff
has exhibited no further evidence of drug or alcohol
use since May 28, 2001 and therefore is not
necessar[ily] excluded from interferon/ribavirin
treatment by DOCS protocol, plaintiff has refused to
submit to blood work since December of 2001 and as
such, cannot be considered for said treatment. These
tests are absolutely critical in determining the
severity of plaintiff's condition and what course of
treatment can be considered.*fn3 Until such
blood work is completed, Dr. Shaw Stiffel's
recommendation cannot be re-evaluated. Mr. Lewis has
been counseled on the consequences of failing to
submit to said blood testing on numerous occasions to
Dkt. #32, ¶ 13. Dr. Alves also states that "due to the nature of
the interferon/ribavirin treatment and the potential serious side
effects when such treatment is provided, plaintiff's blood levels
must be monitored closely." Dkt. #32, ¶ 14. The DOCS protocol
warns that treatment with interferon/ribavirin "almost
universally results in side effects." Dkt. #32, Exh. B. These
side effects include severe depression, bone marrow suppression
including anemia, leukopenia and thrombocytopenia, thyroiditis, hyperthyroidism, deterioration of cardiac function, and
exacerbation of the symptoms of coronoary disease. Dkt. #32, ¶ 14
& Exh. B.
In light of these concerns, Dr. Alves states that "in order to
be [a] candidate for interferon/ribavirin treatment, plaintiff
must demonstrate that he will comply with the dispensing of
future medications and submit to the necessary lab work." Dkt.
#32, ¶ 15. Given plaintiff's history of refusing treatment, Dr.
Alves determined that plaintiff was not motivated to "complete
the interferon/ribavirin treatment and participate in the
necessary lab work that is necessary for said treatment." Dkt.
#32, ¶ 17. Accordingly, it is Dr. Alves' medical opinion that
interferon/ribavirin "treatment has never been nor is it now
medically appropriate for the plainitff." Dkt. #32, ¶ 18.
Summary judgment is appropriate "if 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
judgment as a matter of law." Fed.R.Civ.P. 56(c). "In reaching
this determination, the court must assess whether there are any
material factual issues to be tried while resolving ambiguities
and drawing reasonable inferences against the moving party, and
must give extra latitude to a pro se plaintiff." Thomas v.
Irvin, 981 F. Supp. 794, 799 (W.D.N.Y. 1997) (internal citations
omitted). A fact is "material" only if it has some effect on the outcome
of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); see 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; see
Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied,
502 U.S. 849 (1991).
Once the moving party has met its burden of "demonstrating the
absence of a genuine issue of material fact, the nonmoving party
must come forward with enough evidence to support a jury verdict
in its favor, and the motion will not be defeated merely upon a
`metaphysical doubt' concerning the facts, or on the basis of
conjecture or surmise." Bryant, 923 F.2d at 982. A party
seeking to defeat a motion for summary judgment
must do more than make broad factual allegations and
invoke the appropriate statute. The [party] must also
show, by affidavits or as otherwise provided in Rule
56 of the Federal Rules of Civil Procedure, that
there are specific factual issues that can only be
resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Pursuant to Fed.R.Civ.P. 56(e), affidavits in support of or
in opposition to a motion for summary judgment "shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein."
Thus, affidavits "must be admissible themselves or must contain evidence that will be
presented in an admissible form at trial." Santos v. Murdock,
243 F.3d 681, 683 (2d Cir. 2001), citing Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986); see also H.Sand & Co. v.
Airtemp Corp., 934 F.2d 450, 454-55 (2d Cir. 1991) (hearsay
testimony that would not be admissible if testified to at trial
may not properly be set forth in an affidavit).
Deliberate Indifference to Serious Medical Needs
In Estelle v. Gamble, the Supreme Court of the United States
determined that "deliberate indifference to serious medical needs
of prisoners constitutes the `unnecessary and wanton infliction
of pain' proscribed by the Eighth Amendment" to the United States
Constitution. 429 U.S. 97, 104 (1976). To establish such a claim,
the prisoner must demonstrate both that the alleged deprivation
is, in objective terms, "sufficiently serious," and that,
subjectively, the defendant is acting with a "sufficiently
culpable state of mind." Hathaway v. Coughlin, 37 F.3d 63, 66
(2d Cir. 1994).
In assessing whether a medical condition is "sufficiently
serious," the Court considers all relevant facts and
circumstances, including whether a reasonable doctor or patient
would consider the injury worthy of treatment; the impact of the
ailment upon an individual's daily activities; and the severity
and persistence of pain. See Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998). A serious medical condition exists where the
failure to treat a prisoner's condition could result in further
significant injury or the unnecessary and wanton infliction of
pain. Id. "When the basis for a prisoner's Eighth Amendment claim is a
temporary delay or interruption in the provision of otherwise
adequate medical treatment, it is appropriate to focus on the
challenged delay or interruption in treatment rather than the
prisoner's underlying medical condition alone in analyzing
whether the alleged deprivation is, in `objective terms,
sufficiently serious,' to support an Eighth Amendment claim."
Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003), quoting
Chance, 143 F.3d at 702. Moreover, although an Eighth Amendment
violation may be based upon exposure to an unreasonable risk of
future harm, "the absence of present physical injury will often
be probative in assessing the risk of future harm." Smith, 316
F.3d at 188. "[I]n most cases, the actual medical consequences
that flow from the alleged denial of care will be highly relevant
to the question of whether the denial of treatment subjected the
prisoner to a significant risk of serious harm." Id. at 187.
With respect to the defendant's state of mind, it is clear that
"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.'" Hathway, 37 F.3d at 66, quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994). "Deliberate indifference
requires more than negligence, but less than conduct undertaken
for the very purpose of causing harm." Hathaway, 37 F.3d at 66,
citing Farmer, 511 U.S. at 835. Accordingly,
It is well-established that mere disagreement over
the proper treatment does not create a constitutional
claim. So long as the treatment given is adequate,
the fact that a prisoner might prefer a different treatment does not give rise
to an Eighth Amendment violation. Moreover,
negligence, even if it constitutes medical
malpractice, does not, without more, engender a
Chance, 143 F.3d at 703.
In the instant case, Dr. Alves has established entitlement to
summary judgment with respect to the subjective component of an
Eighth Amendment claim. Nothing in the record before me suggests
that Dr. Alves was deliberately indifferent to plaintiff's
medical needs. To the contrary, the record before the Court
demonstrates that within a month of his transfer to Southport,
Dr. Alves ordered blood work and referred plaintiff for a
gastroenterology consultation following plaintiff's complaints of
symptoms consistent with hepatitis disease. Dkt. #32, ¶ 17g.
While that consultation was pending, Dr. Alves treated
plaintiff's symptoms of itching, diarrhea, stomach pain and
weight loss with dandruff shampoo, benadryl, immodium, a daily
multivitamin and a high protein and high calorie diet. Dkt. #32,
Within ten weeks of that referral, plaintiff was seen by Dr.
Shaw-Stiffel at Strong Memorial Hospital's Liver Clinic. Dkt.
#32, Exh. A. Within ten days of that consultation, Dr. Alves had
ordered the recommended blood work and prescribed Actigall to
treat plainitff's liver cirrhosis. Dkt. #32, ¶ 7m; Dkt. #32, Exh.
A. Two months later, plaintiff was again seen by Dr.
Shaw-Stiffel, who noted that plaintiff's itching symptoms had
decreased with the Actigall and recommended additional blood work
in anticipation of a liver biopsy. Dkt. #32, Exh. A. Dr. Alves
ordered the blood work and referred plaintiff for the liver biopsy within a week of that
second consultation. Dkt. #32, Exh. A. The liver biopsy was
performed by Dr. Shaw-Stiffel less than two months later. Dkt.
#32, Exh. A.
Thereafter, plaintiff tested positive for drug or alcohol use.
Dkt. #32, ¶ 7z. Thus, when Dr. Alves was reviewing Dr.
Shaw-Stiffel's recommendation of interferon/ribavirin treatment,
he had to consider that such treatment was contraindicated for
individuals using drugs or alcohol due to the potentially adverse
side effects of such substances on the liver. Dkt. #32, ¶ 10.
This determination was supported by DOCS protocol, which required
a patient to be drug and alcohol free for six months before
commencing interferon treatment. Dkt. #32, ¶ 11. Accordingly, Dr.
Alves' decision to deny interferon/ribavirin treatment while
plaintiff completed an alcohol and drug treatment program was
based upon objective medical criteria and the exercise of Dr.
Alves' medical judgment. It cannot, therefore, support a claim of
Plaintiff argues that DOCS policy required Dr. Alves to
prescribe the interferon/ribavirin treatment in November of 2001
six months after plaintiff's last indication of drug or alcohol
use. Dkt. ##35, 36, 37. DOCS policy does not mandate
interferon/ribavirin treatment under any circumstances. Rather,
it provides guidelines for physicians to assess the most
appropriate treatment for an inmate with hepatitis C. Dkt. #32,
Exh. B. In addition to concerns about alcohol and drug use, the
practice guidelines also warn of serious adverse consequences of
prescribing interferon/ribavirin to individuals with advanced cirrhosis and the need for baseline
blood work to be able to assess whether treatment is appropriate
and, if treatment is prescribed, to be able to gauge whether the
treatment is improving or worsening plaintiff's condition. Dkt.
#32, Exh. B. Thus, the decision to prescribe interferon/ribavirin
treatment is always dependent upon the exercise of medical
judgment. Plaintiff's disagreement with Dr. Alves' judgment with
respect to plaintiff's treatment does not rise to the level of a
Plaintiff declares that he never "refused to provide the
defendant or any of his medical staff with blood work which was
necessary for evaluation in prescribing the plaintiff with the
interferon/ribavirin medication." Dkt. ##35, 36, 37. Plaintiff
does not, however, attempt explanation as to why multiple
healthcare providers at Southport have documented, often with
witnesses present, plaintiff's refusal to submit to blood work
subsequent to Dr. Alves' initial denial of interferon/ribavirin
treatment. Dkt. #32, Exh. A & C. Plaintiff also does not deny
that he was seen by healthcare providers at Southport, in
response to his complaints of stomach and liver pain, on multiple
dates in which the medical records document that the need for
such blood work was explained to plaintiff. Dkt. #32, Exh. A & C.
Plaintiff's unsubstantiated challenge to the accuracy of numerous
detailed medical records cannot create a genuine issue of
material fact sufficient to defeat summary judgment. CONCLUSION
For the foregoing reasons, plaintiff's motion for summary
judgment (Dkt. #25), is DENIED, and defendants' motions for
summary judgment (Dkt. #29), is GRANTED.
The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3),
that any appeal from this Order would not be taken in good faith,
and leave to appeal to the Court of Appeals as a poor person is
denied. Coppedge v. United States, 369 U.S. 438 (1962). Further
requests to proceed on appeal as a poor person should be
directed, on motion, to the United States Court of Appeals for
the Second Circuit, in accordance with Rule 24 of the Federal
Rules of Appellate Procedure.