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April 19, 2005.

SHAWN KEMP, also known as "Albert Massie," Plaintiff,

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Plaintiff Shawn Kemp, also known as "Albert Massie,"*fn1 brought this action pursuant to 42 U.S.C. § 1983 alleging that defendants, who are physicians and officials in the New York State Department of Correctional Services ("DOCS"), failed to provide him with adequate medical treatment in violation of his Eight Amendment right to be free from cruel and unusual punishment. The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

  In their motion, defendants argue that (1) Kemp's conditions, plantar fasciitis and a sinus condition, were not sufficiently serious to implicate the Constitution; (2) defendants were not deliberately indifferent in treating Kemp's conditions; (3) the non-medical defendants and Dr. Lester Wright were not personally involved; and (4) defendants have qualified immunity because it was objectively reasonable for them to believe that their conduct conformed with the law. I heard oral argument by telephone on March 25, 2005. For the following reasons, the defendants' motion is granted.


  Kemp was originally sent to Downstate Correctional Facility for intake on April 19, 1999. When examined by a physician's assistant, he had a firm, hard, non-tender mass of one-half to three-quarter inches on the arch of each foot. (Schulman Decl., Ex. B at K1.) He was given a thirty-day sneaker pass*fn3 and recommended for referral to a podiatrist. (Id. at K2-K3.) Once approved by the Facility Health Services Director at Downstate, the referral was forwarded to Physician Health Services ("PHS"), a private entity that provided specialist services for inmates. PHS conducted a utilization review on all referral recommendations, and denials by PHS were reviewed by the corresponding DOCS regional medical director. A denial by the DOCS regional medical director was appealable by the facility health services director who initially approved the referral.

  On April 23, 1999, Kemp was transferred to Sing Sing Correctional Facility. His sneaker pass remained valid. However, his podiatry referral was denied. For approval, the medical necessity of his podiatry referral now had to be confirmed by the facility health services director at Sing Sing. From the end of April 1999 to the end of June 1999, Kemp was seen numerous times by medical staff at Sing Sing. Four visits were related to his feet. The nurses observed tissue growth at the bottom of each foot, out pouching of skin near his great toe, and fungus. (Id. at K3.) They provided foot pads, foot powder and antifungal cream. (Id.)

  On June 15, 1999 and again on June 25, 1999, Kemp complained of "difficulty walking because of excess tissue growth on bottom of feet." (Id.) The nurses' notes reveal a request for a podiatry consult and indicate that a previous request from April 19, 1999 (i.e., the one from Downstate) was pending. Kemp also requested a renewal of his sneaker pass. On June 30, 1999, his sneaker pass was renewed for three months. Thereafter, on July 13, 1999, physician's assistant Williams reported edema to Kemp's ankles and shins. (Id. at K5.) The condition was treated with leg elevation, compression hose, antifungal medication and a diuretic. The same day, a psychologist reported that Kemp had a history of major depression, which led the doctor to fear that Kemp would not be "motivated" to seek needed medical treatment for the swelling in his legs. (Id. at K6.) Kemp saw a nurse for the edema again on August 10, 1999. He missed scheduled appointments with Dr. Maw on August 11 and August 16, 1999 due to failure to receive notification. (Kemp. Dep. 53-54.) Treatment for his edema continued in August and September of 1999, with Dr. Halko performing an examination and a number of tests, including a CAT scan and blood work. Kemp also continued to complain about the growths on the bottom of his feet.

  On September 17, 1999, Kemp was taken to the emergency room at St. Agnes Hospital for "extreme swelling" resulting from edema at the direction of Dr. Maw. (Maw Aff. ¶ 5; Schulman Decl., Ex. C at 52.) Upon Kemp's return to Sing Sing that same day, he was admitted to the infirmary because of his widespread edema. He remained in the infirmary from September 17, 1999 to March 10, 2000. The progress notes for that period reveal multiple entries each day. (See Schulman Decl., Ex. C at 51-101.)

  "Until the late stages of plaintiff's stay in the infirmary, [Dr. Halko] was concerned that [Kemp's] edema was a potentially life threatening condition." (Halko Aff. ¶ 8.) Dr. Halko referred Kemp to numerous specialists for his edema, and did not believe that the masses on Kemp's feet could be the cause of the edema. However, during his stay in the infirmary, Kemp was examined by a podiatrist, Dr. Shapiro, based on a consult request by Dr. Halko. (Id. at ¶¶ 11-12.) Dr. Shapiro wanted to rule out fibrosarcoma, which is malignant, but noted that that would require a biopsy. Because of Kemp's edema, the surgery required for a biopsy was not recommended. Instead, Dr. Shapiro recommended x-rays and consultation with an orthopedist.

  Kemp's edema stabilized during the end of February and early March of 2000. On March 10, 2000, he was transferred out of the infirmary for a court trip. (Schulman Decl., Ex. C at 101.) When Kemp returned to Sing Sing on April 24, 2000, he was again having edema and problems with the masses on his feet. He received referrals for podiatry and orthopedics in late April and early May of 2000. Although he was seen by other physicians, there is no record of his being seen by either a podiatrist or an orthopedist. Dr. Maw requested another orthopedist consult in July of 2000.

  On July 26, 2000, Kemp was transferred to Arthur Kill Correctional Facility. His edema continued. His sole claim at Arthur Kill is that Dr. Lang and Superintendent Breslin did not approve a referral for surgery on his sinuses. (Kemp Dep. 87.) Dr. Mitchell evaluated Kemp for a chronic sinus problem on August 11, 2000 and prescribed antibiotics and referred him for an ear, nose and throat procedure (surgery) that had been suggested by a specialist at St. Agnes Hospital. After consultation with PHS, Dr. Mitchell agreed that another referral and examination by an otolaryngologist would be beneficial before a decision was made regarding surgery.

  On October 18, 2000, Kemp was seen by the otolaryngologist, who recommended continued antibiotics, nasal spray and a CT scan of Kemp's sinuses. On December 4, 2000, a CT scan was performed and it showed polyps, opacification, and remodeling of some bony structures. (Schulman Aff., Ex. B at K32-33.) After returning to the infirmary with complaints about his sinuses in December 2000 and January 2001, Kemp was told on January 11, 2001 that he would be referred to otolaryngology once more. On April 16, 2001, at his follow-up appointment, the physician recommended that he continue the antibiotics, get another CT scan and noted that surgery may be indicated. Kemp continued visits to the otolaryngology clinic, with at least seven visits through February of 2002. Surgery was not recommended in any of those visits. His sinuses cleared up in roughly September of 2001, after receiving only medical (as opposed to surgical) treatment. (Kemp. Dep. 88.)

  On March 16, 2001, Dr. Armen Kasabjan successfully performed surgery on Kemp's feet to remove the masses.


  A. Standard for Summary Judgment

  Under Rule 56 of the Federal Rules of Civil Procedure, a party is entitled to summary judgment "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). The substantive law governing the case identifies the facts that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, ...

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