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United States District Court, W.D. New York

March 22, 2004.

DR. JOHN ALVES, Facility Health Services Director for Southport Correctional Facility, Defendant.

The opinion of the court was delivered by: KEN SCHROEDER, Magistrate Judge


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. Dkt. #13.

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 granted.


  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, ¶ 7c.

  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, Exh. A.

  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 follows:

• 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 contact us.
• 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 high-protein diet.
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 impression/recommendations:

• Chronic hepatitis C. We will repeat [blood work] today.
• 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 no avail.
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

  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 constitutional claim.
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, ¶ 7.

  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 deliberate indifference.

  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 constitutional violation.

  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.


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