United States District Court, W.D. New York
August 22, 2005.
OSIRIS MOSLEY a/k/a ELTON MOSLEY, Plaintiff,
ANTHONY DEPERIO, et al, Defendants.
The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
DECISION & ORDER
This is an action pursuant to 42 U.S.C. § 1983, brought by
plaintiff acting pro se, in which he contends that defendants
violated his right as guaranteed by the Eighth Amendment to the
U.S. Constitution. Now before the Court is defendants' motion
 for summary judgment pursuant to Rule 56(c) of the Federal
Rules of Civil Procedure. For the reasons that follow, the
application is granted. BACKGROUND
At all times relevant to this lawsuit plaintiff was an inmate
at Wyoming Correctional Facility ("Wyoming"). On January 11,
2003, while working on the prison farm, plaintiff was allegedly
kicked in the head by a cow. Between January 11, 2003, and May 9,
2003, he was seen on numerous occasions by the facility medical
staff, including both doctors and nurses, for complaints of
headaches. However, although plaintiff was examined and
prescribed different pain medications, his complaints of
On May 9, 2003, plaintiff was seen by Nurse Mohring ("Mohring")
for his recurring complaint of headaches. Mohring told plaintiff
that he would be seen by a doctor, and she listed his need to see
a physician as a level three, with level one being the most
serious, and level three the least serious. On May 10, 2003,
plaintiff was seen by an optometrist with regards to whether his
vision was causing his headaches, and was subsequently issued
glasses. Plaintiff was also seen by two nurses, Nurse Wheeler
("Wheeler") on May 12, 2003, and Nurse Almeter ("Almeter") on May
27 and 29, 2003, regarding his headaches. Plaintiff filed a
grievance dated May 28, 2003, in which he complained about the
delay in being seen by a doctor. On June 4, 2003, the Inmate
Grievance Resolution Committee ("IGRC") found the grievance to be
beyond the scope of the IGRC mechanism, and on June 5, 2003,
plaintiff appealed to the Superintendent of Wyoming. On June 9,
2003, Deputy Superintendent Elmore ("Elmore") denied the appeal,
and on June 10, 2003, plaintiff appealed the Deputy
Superintendent's decision to the Central Office Review Committee
("CORC"). On July 9, 2003, CORC issued a decision in which it
upheld Elmore's decision, and asserted that plaintiff was
receiving proper medical care, noting that he had eyeglasses on order, and was receiving pain medication.
CORC further commented that the monetary compensation sought by
plaintiff is not a remedy through the inmate grievance mechanism.
Plaintiff was, in fact, seen by a medical doctor, Dr. DePerio
("DePerio") on June 9, 2003, and upon examining plaintiff,
DePerio prescribed pain medication for him.
Defendants filed their Notice of Motion on May 19, 2004 ,
and served plaintiff on the same day by U.S. Mail. The document
contained the following language pursuant to Irby v. New York
City Transit Auth., 262 F.3d 412, 413 (2d Cir. 2001):
PLEASE NOTE that pursuant to Rule 56(e) of the
Federal Rules of Civil Procedure, when a motion for
summary judgment is made and properly supported, you
may not simply rely upon your complaint but you must
respond, by affidavits or as otherwise provided in
that rule, setting forth specific facts showing that
there is a genuine issue of material fact for trial.
Any factual assertions arising out of the exhibits
attached to defendant's counsel's affidavit will be
accepted by the District Judge as being true unless
you submit affidavits or other documentary evidence
contradicting those assertions. If you do not so
respond, summary judgment, if appropriate, may be
entered against you. If summary judgment is granted
against you, your case will be dismissed and there
will be no trial.
NOTE also that Local Rule 56 of the Western District
of New York requires that you must include a separate
short and concise statement of any material facts as
to which you contend there exists a genuine issue. In
the absence of such a statement, all material facts
set forth in defendant's Rule 56 Statement will be
(Defs.' Notice of Motion at 2.)
STANDARDS OF LAW
The standard for granting summary judgment is well established.
Summary judgment may not be granted unless "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 a judgment as a matter of law." FED. R. CIV. P.
56(c). A party seeking summary judgment bears the burden of
establishing that no genuine issue of material fact exists. See,
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "[T]he
movant must make a prima facie showing that the standard for
obtaining summary judgment has been satisfied." 11 MOORE'S
FEDERAL PRACTICE, § 56.11[a] (Matthew Bender 3d ed.). "In
moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant may satisfy this
burden by pointing to an absence of evidence to support an
essential element of the nonmoving party's claim." Gummo v.
Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)), cert
denied, 517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to demonstrate
"specific facts showing that there is a genuine issue for trial."
FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). To do this, the non-moving party must
present evidence sufficient to support a jury verdict in its
favor. Anderson, 477 U.S. at 249; see also, FED. R. CIV. P.
56(e) ("When a motion for summary judgment is made and supported
as provided in this rule, an adverse party may not rest upon the
mere allegations or denials of the adverse party's pleading, but
the adverse party's response, by affidavits or as otherwise
provided in this rule, must set forth specific facts showing that
there is a genuine issue for trial."). Summary judgment is
appropriate only where, "after drawing all reasonable inferences
in favor of the party against whom summary judgment is sought, no
reasonable trier of fact could find in favor of the non-moving
party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993). The
parties may only carry their respective burdens by producing evidentiary proof in admissible form. FED. R. CIV. P.
56(e). The underlying facts contained in affidavits, attached
exhibits, and depositions, must be viewed in the light most
favorable to the non-moving party. U.S. v. Diebold, Inc.,
369 U.S. 654, 655 (1962). A court should read a pro se litigant's
papers liberally, interpreting them "to raise the strongest
arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787,
790 (2d Cir. 1994).
"Excessive bail shall not be required, nor excessive fines
imposed, nor cruel or unusual punishments inflicted." U.S. CONST.
amend. VIII. The Eighth Amendment has also been held to apply to
conditions of incarceration, including administration of medical
We therefore conclude that deliberate indifference to
serious medical needs of prisoners constitutes the
"unnecessary and wonton infliction of pain" Gregg v.
Georgia, 482 U.S. 153, 173 (1976), proscribed by the
Eighth Amendment. This is true whether the
indifference is manifested by the prison doctors in
response to the prisoner's needs, or by prison guards
in intentionally denying or delaying access to
medical care or intentionally interfering with the
treatment once prescribed. Regardless of how
evidenced, deliberate indifference to a prisoner's
serious illness or injury states a cause of action
under § 1983.
Estelle v. Gamble, 429 U.S. 97
, 104-05 (1976). In addition, the
Supreme Court has held:
Our cases have held that a prison official violates
the Eighth Amendment only when two requirements are
met. First, the deprivation alleged must be,
objectively, "sufficiently serious[.]" Wilson v.
Seiter, 501 U.S. 294, 298 (1991). . . . The second
requirement follows from the principle that "only the
unnecessary and wanton infliction of pain implicates
the Eighth Amendment." To violate the Cruel and
Unusual Punishments Clause, a prison official must
have a "sufficiently culpable state of mind."
Wilson, 501 U.S. at 297.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The court further
We hold . . . that a prison official cannot be found
liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the
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
Id. at 837.
The first, or objective, prong of the test for Eighth Amendment
violations requires plaintiff to prove that the injury allegedly
suffered is serious. Farmer, 511 U.S. at 834. Here, plaintiff
has offered only conclusory statements, rather than evidentiary
proof that his headaches constitute a serious medical condition.
Plaintiff cites several cases which essentially hold that a
condition is serious if it has been diagnosed by a physician as
requiring treatment, or is obvious to a layperson. Johnson v.
Busbee, 953 F.2d 349, 351 (8th Cir. 1991); Gaudreault v.
Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990);
Monmouth County Correctional Institution Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987); Ramos v. Lamm, 639 F.2d 559,
575 (10th Cir. 1980). These cases, however, are inapposite to the
case at bar.
In Johnson, the Eighth Circuit, affirming a judgment entered
after a jury verdict, stated, "[f]inally, the instruction
defining serious medical need was proper. Defendants could not
act with deliberate indifference to medical problems that were
not obvious or diagnosed." This sentence hardly supports
plaintiff's position that the objective prong of an
Eighth Amendment claim is met if a medical doctor makes a diagnosis.
Moreover, the instruction given to the jury was not detailed in
the circuit court's decision; thus, there is no basis to conclude
that the circuit court was holding that a mere diagnosis is
sufficient to meet the objective standard. In Gaudreault, the
plaintiff complained that he had been arrested and held for ten hours before being provided with
medical care. In upholding the district court's grant of summary
judgment to the defendants, the First Circuit stated:
The doctors and nurses who examined Gaudreault on the
morning after his arrest, in short, found him bruised
but unbroken, requiring no more medical care than a
sling, an eye-patch and the application of some
disinfectant. If that was all the medical
professionals could find to treat, we do not think
that Gaudreault's jailers could be required to see
more. While Gaudreault's injuries may have been
"obvious" in the sense that his bruises and abrasions
were visible, the medical record demonstrates that he
did not display any needs so patent as to make lay
persons such as Officer Tucker, Captain Wrigley or
Lieutenant Oulette remiss in failing to arrange for
immediate medical attention.
Gaudreault, 923 F.2d at 208. This case actually supports
defendants' position, that plaintiff's needs were not so patent
that any delay in having plaintiff seen by a medical doctor was
tantamount to an Eighth Amendment constitutional violation.
In Lanzaro, the Third Circuit was concerned about the
defendants erecting barriers to treatment. The plaintiff was
challenging the county's policy of requiring pregnant inmates
desiring an abortion to pay for the procedures themselves.
Upholding a preliminary injunction, the Third Circuit held that,
"[d]eliberate indifference is also evident where prison officials
erect arbitrary and burdensome procedures that `result? in
interminable delays and outright denials of medical care to
suffering inmates.'" Lanzaro, 834 F.2d at 347 (quoting Todaro
v. Ward, 565 F.2d 48, 53 (2d Cir. 1977)). In Ramos,
639 F.2d at 575, the Tenth Circuit, addressing an appeal from a certified
class action, held that,
In class actions challenging the entire system of
health care, deliberate indifference to inmates'
health needs may be shown by proving repeated
examples of negligent acts which disclose a pattern
of conduct by the prison medical staff . . ., or by
proving there are such systemic and gross
deficiencies in staffing, facilities, equipment, or
procedures that the inmate population is effectively
denied access to adequate medical care. . . . Much of
the evidence presented at trial is relevant to this
last standard of "deliberate indifference." Ramos, 639 F.2d at 575 (citations omitted).
In contrast to the situations in Lanzaro and Ramos,
plaintiff here was seen numerous times by the facility medical
staff, including a doctor. The doctor prescribed medication,
which by plaintiff's own admission has reduced, if not
eliminated, his pain. To date, there is no physician's diagnosis
characterizing plaintiff's condition as serious. As such, the
Court determines that plaintiff has failed to meet his burden
with respect to the first, or objective, prong of the test.
The second prong of the Eighth Amendment claim test requires
that the defendants have a "sufficiently culpable state of mind"
Wilson, 501 U.S. at 297. Not only must the defendant "be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, . . . he must also draw
the inference." Farmer, 511 U.S. at 837. Since plaintiff has
submitted no evidentiary proof, in admissible form, to show that
a substantial risk of serious harm existed, it follows that he
has not shown that defendants drew any such inference.
At the heart of plaintiff's complaint is the claim that he was
made to wait too long to see a doctor. Even if plaintiff's claim
of unreasonable delay is true, such a delay does not rise to the
level of deliberate indifference.
[I]n the medical context, an inadvertent failure to
provide adequate medical care cannot be said to
constitute "an unnecessary and wanton infliction of
pain" or to be "repugnant to the conscience of
mankind." Thus, a 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. In
order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical
needs. Estelle, 429 U.S. at 105-06. The facts in the instant case are
similar to those in Estelle. In Estelle, the Court related
the following facts:
Gamble [the inmate] was seen by medical personnel on
17 occasions spanning a three-month period. . . .
They treated his back injury, high blood pressure,
and heart problems. . . . The doctors diagnosed his
[back] injury as a lower back strain and treated it
with bed rest, muscle relaxants, and pain relievers.
Respondent contends that more should have been done
by way of diagnosis and treatment, and suggests a
number of options that were not pursued.
Estelle, 429 U.S. at 107-08 (internal citations omitted). As in
Estelle, plaintiff was seen repeatedly by the medical staff,
but claimed that more should have been done to diagnose and treat
him. Each also speculated as to what would treatment have been
appropriate, in this case a shorter wait for a doctor, and
prescription medication. Plaintiff's claim is, at best, an
allegation of medical malpractice, which does not rise to the
level of an Eighth Amendment violation. Estelle,
429 U.S. at 106 ("Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner."). As such,
plaintiff has also failed to meet his burden with respect to the
second, or subjective, prong of the test.
Accordingly, defendants' motion for summary judgment is
IT IS SO ORDERED.
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