United States District Court, W.D. New York
June 9, 2005.
MARK A. SMITH, Plaintiff,
DR. JOHN ALVES, M.D., Defendant.
The opinion of the court was delivered by: LESLIE FOSCHIO, Magistrate Judge
DECISION and ORDER
The parties have consented to proceed before the undersigned
pursuant to 28 U.S.C. § 636(c). The matter is before the court on
the Defendant's motion, dated June 28, 2004, for summary judgment
(Docket No. 37).
Plaintiff commenced this § 1983 action on April, 21, 2003,
claiming a violation of the Eighth and Fourteenth Amendments for
alleged deliberate indifference to his medical needs (Docket No. 1). On May 3, 2003, Plaintiff was
granted in forma pauperis status, however, his request for
assigned counsel was denied (Docket No. 4). Additionally,
Plaintiff's equal protection claim and a claim against another
physician were dismissed. On June 4, 2003, Defendant filed an
Answer to the Complaint (Docket No. 6). Defendant moved for
summary judgment on June 28, 2004, arguing that Plaintiff has not
established a sufficiently serious injury and that Defendant is
shielded by qualified immunity (Docket No. 37).
Plaintiff filed a response to the motion on August 26, 2004
(Docket Nos. 43-45). Oral argument was deemed unnecessary. For
the following reasons, Defendant's motion for summary judgment is
At the time of the alleged deprivation, Plaintiff was an inmate
in the custody of the New York State Department of Correctional
Services incarcerated at the Southport Correctional Facility.
Plaintiff was diagnosed with a herniated disk in his lower back,
and was treated with pain medication, anti-inflammatory
medications, electronic stimulation and physical therapy.
Plaintiff alleges that Defendant terminated his physical therapy
sessions in deliberate indifference to Plaintiff's medical needs.
In support of the motion for summary judgment, Defendant
submitted a declaration in which Defendant summarized Plaintiff's
medical care while Plaintiff was housed at Southport (Docket No. 38).*fn2 Plaintiff suffers
from a herniated disk in his lower back which was diagnosed in
April 1999 (Docket No. 38, ¶ 5). While at Southport, his back
condition was treated with pain medication, anti-inflammatory
medication, physical therapy, transcutaneous electrical nerve
stimulation (TENS), a double mattress and home exercise. Id.
Plaintiff had diagnostic X-rays, including an MRI, and was seen
by outside specialists, including a neurosurgeon. Id., ¶ 7.
In September 2002, Plaintiff was prescribed a physical therapy
regime (Docket No. 38, ¶ 8). Plaintiff attended the sessions on
September 9, 18, and 26, and October 1, and 4, 2002. Id., ¶ 9.
On October 9, 2002, Plaintiff was involved in a physical
altercation with corrections officers, and therefore did not
attend physical therapy on October 7, 14, and 16, 2002, stating
that he was physically unable. Id., ¶¶ 10-11. On October 17,
2002, a facility nurse attempted to speak with Plaintiff
regarding the missed sessions, but Plaintiff was uncooperative.
Id., ¶ 13. Because Plaintiff had missed five of twelve
scheduled sessions, including September 16, and 23, 2002,
Defendant cancelled Plaintiff's physical therapy. Id.
On October 25, 2002, Plaintiff was examined by a nurse
practitioner. Plaintiff was prescribed a different pain
medication and was advised to continue with his exercise program.
Id., ¶ 16. Plaintiff was familiar with the exercises as
indicated in the notes of his physical therapy sessions. Id.,
Exh. A. On November 27, 2002, Plaintiff filed a grievance seeking
to have his physical therapy reinstated. At that time, Defendant
determined that physical therapy was not medically necessary.
Id., ¶ 20. On December 31, 2002, Plaintiff requested and was prescribed a
stronger pain medication. Id., ¶ 20. On January 28, 2003,
Defendant referred Plaintiff to a neurosurgeon for further
evaluation and recommendation for further treatment. Id., ¶ 24.
Between January and June 2003, Plaintiff continued to take
medication for his pain, including Tylenol with codeine and
Darvocet. Id., ¶¶ 25-27, 31, 36. On March 24, 2003, Plaintiff
requested a TENS unit and a double mattress. Id., ¶ 29.
Plaintiff was seen by the neurosurgeon on June 18, 2003. The
specialist diagnosed lower back pain and paresthesia of the left
leg, but Plaintiff indicated he was not interested in surgery.
Id., ¶ 37.
On June 22, 2003, Defendant ordered additional spinal x-rays
and an MRI. Id., ¶ 38. The MRI of July 17, 2003 indicated "left
lateral HNP ("herniated nucleus pulposus" or herniated disk)
abutting and slightly deviating the proximal left L3 spinal
nerve, and L5-S1 posterior disk bulge barely abutting the ventral
margins of the S1 nerve roots" without displacement. Id., ¶ 40.
No other abnormalities were noted. Plaintiff continued to take
medication for the back pain. Id., ¶¶ 41, 48. On October 1,
2003, Plaintiff was again sent to the Neurosurgery Clinic for a
follow-up visit, however, the neurosurgeon made no new
recommendations. Id., ¶ 47.
On October 7, 2003, Plaintiff was involved in another
altercation with corrections officers, after which he again
complained of back pain. Id., ¶ 49. On October 20, 2003,
Plaintiff complained of severe back pain and was seen by a nurse,
who advised bed rest and Flexaril, 10 mg., three times daily.
Id., ¶ 51. In November 2003, Plaintiff requested an increase in
the dosage of Darvocet, but the medical staff saw no apparent reason for increasing the dosage and therefore denied Plaintiff's
request. Id., ¶ 55.
On November 25, 2003, Defendant ordered physical therapy and a
plan was devised for twice weekly sessions. Id., ¶ 56.
Defendant stated that ongoing physical therapy for a chronic
condition is not considered an "emergent medical need." Id., ¶
57. During the year between the cancellation and resumption of
Plaintiff's physical therapy regime, Plaintiff was treated with
medication, referred to outside specialists, utilized a TENS
unit, was given a double mattress, and was advised to continue
home exercises. Id.
In opposition to the motion, Plaintiff states that he did not
willingly refuse to attend his physical therapy sessions, but was
unable to attend the sessions due to pain and unrelated injuries.
Plaintiff states that the termination of his physical therapy,
without a prior evaluation of his condition, demonstrated a
deliberate indifference to Plaintiff's medical needs. (Docket No.
44, ¶ 19).
1. Summary Judgment Standard
The standard of review on a motion for summary judgment is well
established. Summary judgment will be granted if the "pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The burden of establishing that no genuine factual
dispute exists rests on the party seeking summary judgment. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.
1994). The movant may discharge this burden by demonstrating that
there is an absence of evidence to support the nonmoving party's
case on an issue on which the non-movant has the burden of proof.
See Celotex, 477 U.S. at 323.
If the moving party meets its burden of demonstrating the
absence of any genuine issue of material fact, the nonmoving
party must come forward with "specific facts showing that there
is a genuine issue for trial." Fed.R.Civ.P. 56(e). The
function of a district court in considering a summary judgment
motion is not to resolve disputed issues of fact, but to
determine whether there is a genuine issue to be tried. Gallo v.
Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir.
1994). In assessing the record, including any affidavits,
exhibits, and other submissions, the court is required to resolve
all ambiguities and to draw all factual inferences in favor of
the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986); Rattner v. Netburn, 930 F.3d 204, 209 (2d Cir.
1991). The nonmoving party may not rest upon unsubstantiated
allegations, conclusory assertions or mere denials, but must set
forth and establish specific facts showing that there is a
genuine issue for trial. Fed.R.Civ.P. 56(e). A metaphysical or
other whimsical doubt concerning a material fact does not
establish a genuine issue requiring trial. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584 (1986). If
there is any evidence in the record from any source from which a
reasonable inference could be drawn in favor of the nonmoving
party, summary judgment is improper. Chambers, 43 F.3d at 37. 2. Deliberate Indifference to Medical Needs
Inadequate medical care violates the Eighth Amendment's
proscription against cruel and unusual punishment when a
defendant acts with "deliberate indifference to [a prisoner's]
serious medical needs." Harrison v. Barkley, 219 F.3d 132, 136
(2d Cir. 2000) (quoting Estelle v. Gamble, 429 U.S. 97, 104
(1976)). The "deliberate indifference" inquiry has both a
subjective and objective factor. Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998). Objectively, Plaintiff must demonstrate
"a condition of urgency, one that may produce death,
degeneration, or extreme pain." Morales v. Mackalm,
278 F.3d 126, 132 (2d Cir. 2002) (quoting Hathaway v. Coughlin,
37 F.3d 63, 66 (2d Cir. 1994)). 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). 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, 1998 WL 190279, *3 (S.D.N.Y. April 20, 1998)).
With respect to the subjective component, the court must
consider whether the deprivation was brought about by defendants
in wanton disregard, or deliberate indifference, of the inmate's
constitutional rights. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). To establish such 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; 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). Plaintiff must demonstrate that defendants
were (1) aware of facts from which the inference could have been
drawn that a substantial risk of serious harm existed, and (2)
that defendants in fact drew such an inference. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994); Morales v. Mackalm,
278 F.3d at 132.
"Because the Eighth Amendment is not a vehicle for bringing
medical malpractice claims, nor a substitute for state tort law,
not every lapse in prison medical care will rise to the level of
a constitutional violation." Smith v. Carpenter, 316 F.3d 178,
184 (2d Cir. 2003). Rather, the plaintiff must allege conduct
that is "repugnant to the conscience of mankind," Estelle v.
Gamble, 429 U.S. at 102, or "incompatible with the evolving
standards of decency that mark the progress of a maturing
society," id. at 105-06. Likewise, a disagreement as to the
appropriate course of treatment is not a sufficient basis for a
deliberate indifference claim. Chance, 143 F.3d at 703.
Although a prisoner has a right to medical care, "there is no
right to the medical treatment of one's choice." McCloud v.
Delaney, 677 F.Supp. 230, 232 (S.D.N.Y. 1988). "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.
Viewing the record in the light most favorable to Plaintiff,
and drawing all reasonable inferences in his favor, it is apparent that this case
presents no more than a disagreement between Plaintiff and
Defendant over the specific nature of his medical condition and
the best course of treatment for this condition. Plaintiff's
extensive medical record (Docket No. 38, Exh. A) indicates that
Plaintiff was seen a number of times by the facility medical
staff, and that they responded to his complaints of pain, ordered
spinal x-rays and an MRI, and prescribed medications for his
pain. Plaintiff was also seen twice by a neurosurgeon, and
eventually was put back on a physical therapy regime. That
Plaintiff felt he should have been treated with physical therapy
does not amount to an Eighth Amendment violation. See Rodriguez
v. Yin, 328 F.Supp.2d 414 (W.D.N.Y. 2004) (conservative
treatment for back pain and herniated disk did not rise to the
level of deliberate indifference).
Moreover, even if the denial of physical therapy for
Plaintiff's chronic back condition satisfied the objective prong,
Plaintiff cannot, based on this record, satisfy the subjective
component of the deliberate indifference inquiry. Specifically,
there is no evidence that Defendant was aware that a substantial
risk of serious harm to Plaintiff existed, because there was no
such risk in terminating physical therapy for Plaintiff's chronic
condition. Plaintiff fails to point to any evidence to the
contrary. Plaintiff was regularly seen by the medical staff at
Southport, his back condition was treated with medication, he was
sent for neurosurgery consultations, and was ultimately
rescheduled for continued physical therapy.
For these reasons, the court finds that Plaintiff has not
presented any admissible evidence creating a genuine issue of
fact concerning either the objective or subjective component of
the Eighth Amendment standard. In sum, is simply no evidence upon which a rational factfinder could conclude either that there was
a "sufficiently serious" deprivation of Plaintiff's rights,
Hathaway, 37 F.3d at 66, or that Defendant was deliberately
indifferent to Plaintiff's needs as regards his chronic back
pain. Defendant's motion for summary judgment is therefore
GRANTED. As the court finds that there is no genuine issue for
trial, it is unnecessary to address Defendant's alternative
qualified immunity defense.
The Defendant's motion for summary judgment is GRANTED (Docket
No. 37). The Complaint is dismissed and the case closed.
Any appeal to the United States Court of Appeals for the
Second Circuit, New York, New York, must be filed within thirty
(30) days of the date of judgment in this action. See
Fed.R.App. 4(a)(1). Further, the court certifies under Rule
24(a)(3)(A) of the Federal Rules of Appellate Practice that any
appeal by Plaintiff of the foregoing Decision and Order would not
be in good faith as the paucity of the record fails to establish
a triable issue of fact for any Eighth Amendment claim. As such,
requests to proceed on appeal as a poor person must be filed with
the United States Court of Appeals for the Second Circuit in
accordance with the requirements of Rule 24(a)(5) of the Federal
Rules of Appellate Procedure.