The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Nelson Rodriguez, appearing pro se, commenced this
action under 42 U.S.C. § 1983. Plaintiff, an inmate in the
custody of the New York State Department of Correctional Services
("DOCS"), has sued two physicians, Drs. Cheng Yin and Kureshi,
who at all relevant times were employed by DOCS at the Elmira
Correctional Facility ("Elmira").
Plaintiff alleges that while he was incarcerated at Elmira from
1994 to 1996, he was treated by defendants for severe back pain.
The gist of his claim is that defendants attributed his pain to
nothing more than muscle spasms, but that a later MRI revealed
that plaintiff had a herniated disc. He alleges that defendants
either lied to him about, or misdiagnosed, plaintiff's condition,
causing him to suffer pain. Plaintiff alleges that defendants
were thereby deliberately indifferent to his medical needs, in
violation of plaintiff's rights under the Eighth Amendment to the
United States Constitution. Defendants have moved for summary judgment. For the reasons
that follow, their motion is granted, and the complaint is
I. Eighth Amendment Claims: General Standards
To show that prison medical treatment was so inadequate as to
amount to "cruel or unusual punishment" prohibited by the Eighth
Amendment, plaintiff must prove that defendants' actions or
omissions amounted to "deliberate indifference to a serious
medical need." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The
Second Circuit has stated that a medical need is "serious" for
constitutional purposes if it presents "`a condition of urgency'
that may result in `degeneration' or `extreme pain.'" Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Hathaway
v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994), cert. denied,
513 U.S. 1154 (1995)). See also Harrison v. Barkley, 219 F.3d 132,
136-137 (2d Cir. 2000) ("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'") (quoting Chance, 143 F.3d at 702).
Among the relevant factors for determining whether a serious
medical need exists are "[t]he existence of an injury that a
reasonable doctor or patient would find important and worthy of
comment or treatment; the presence of a medical condition that
significantly affects an individual's daily activities; or the
existence of chronic and substantial pain." Chance, 143 F.3d at
702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th
Cir. 1992), overruled on other grounds, WMX Tech., Inc. v.
Miller, 104 F.3d 1133 (1997)). At the same time, however, "[a]n
assertion of pain sensation alone, unaccompanied by any large medical
complications, does not amount to a serious medical need under
the Eighth Amendment." Livingston v. Goord, 225 F. Supp.2d 321,
329 (W.D.N.Y. 2002) (quoting Inciarte v. Spears, No. 97 Civ.
3155, 1998 U.S.Dist. LEXIS 5731, *11 (S.D.N.Y. Apr. 20, 1998))
(collecting cases); see, e.g., Zentmyer v. Kendall County,
Ill., 220 F.3d 805, 810 (7th Cir. 2000) ("Failure to
`dispense bromides for the sniffles or minor aches and pains or a
tiny scratch or a mild headache or minor fatigue the sorts of
ailments for which many people who are not in prison do not seek
medical attention does not . . . violate the Constitution")
(quoting Cooper v. Casey, 97 F.3d 914, 916 (7th Cir.
As to the "deliberate indifference" component, the Supreme
Court explained in Wilson v. Seiter, 501 U.S. 294, 298-99
(1991), that this standard includes both an objective and a
subjective prong. With respect to the objective aspect, the court
must ask whether there has been a sufficiently serious
deprivation of the prisoner's constitutional rights. With respect
to the subjective component, the court must consider whether the
deprivation was brought about by defendants in wanton disregard
of those rights. Id. To establish deliberate indifference,
therefore, plaintiff must prove that the defendants had a
culpable state of mind and intended wantonly to inflict pain.
See Wilson, 501 U.S. at 299; DesRosiers v. Moran,
949 F.2d 15, 19 (1st Cir. 1991); Ross v. Kelly, 784 F. Supp. 35, 44
(W.D.N.Y.), aff'd, 970 F.2d 896 (2d Cir.), cert. denied,
506 U.S. 1040 (1992).
The Court in Estelle also cautioned that mere negligence is
not actionable. "A [prisoner's] complaint that a physician has
been negligent in diagnosing or treating a medical condition does
not state a valid claim of medical mistreatment under the Eighth
Amendment. Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner." Estelle,
429 U.S. at 106. Rather, the plaintiff must allege conduct that
is "repugnant to the conscience of mankind," id. at 102, or "incompatible with the evolving standards of decency
that mark the progress of a maturing society," id. at 105-06.
It is clear, then, that allegations of malpractice alone do not
state a constitutional claim. Id. at 106 n. 14; Chance, 143
F.3d at 703-04; Ross, 784 F. Supp. at 44.
Likewise, an inmate's "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." Chance, 143 F.3d at 703; see also
Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977) ("The
courts will not intervene upon allegations of mere negligence,
mistake or difference of opinion").
II. Application to this Case
Applying these principles to the case at bar, I conclude that
defendants are entitled to summary judgment. Even viewing the
record in the light most favorable to plaintiff, and drawing all
reasonable inferences in his favor, it is clear that this case
presents no more than a disagreement between plaintiff and
defendants over his medical condition and the best course of
treatment for that condition. That does not amount to an Eighth
Plaintiff's extensive DOCS medical record (Ex. A to Yin Aff.,
Docket #53) shows that he was seen a number of times by
defendants, and that they ordered a number of tests and
prescribed medications for his pain. He was also seen by at least
two outside specialists, Dr. Coughlin and Madden. Dr. Madden
indicated in his March 15, 1995 report that an MRI suggested
"minimal left paracentral disc herniation . . .," but he also
described the MRI results as "fairly unremarkable," he reached no
firm conclusion on what was causing plaintiff's pain, and he
suggested an initial plan of "conservative therapy with non-steroidal anti-inflammatory
drugs," which is essentially what plaintiff had been getting from
It appears that a second MRI performed in November 1996, at
which time plaintiff was at Wende Correctional Facility and no
longer under defendants' care, indicated a second "small
herniated disc" in plaintiff's back. Id. There is no indication
that defendants were aware of that herniated disc while they were
treating plaintiff, however, ...