United States District Court, S.D. New York
October 11, 2005.
GEORGE JOSEPH, Plaintiff,
DR. J. SUPPLE, M.D., DR. C.F. KURTZ, M.D., DR. WRIGHT, M.D., Defendants.
The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
George Joseph, proceeding pro se, brought this action while
a state prisoner against three physicians employed by the New
York State Department of Correctional Facilities. Plaintiff sues
under 42 U.S.C. § 1983 for failure to provide speech therapy
following his throat operation on May 16, 1995. By letter dated
September 1, 1998, plaintiff requested that Dr. Wright be
withdrawn as a defendant from the case. On February 25, 2000,
Drs. Supple and Kurtz ("defendants") moved for summary judgment dismissing the Amended Complaint pursuant to
Fed.R.Civ.P. 56. Defendants served plaintiff with the motion
accompanied by the notice required by the Second Circuit,
including a statement that plaintiff's claims could be dismissed
without a trial if he failed to respond. See Champion v.
Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Plaintiff has not
responded, despite that notice and despite having been directed
on three separate occasions to do so. For the reasons that
follow, defendants' motion is granted.
I. Procedural History
In order to ready this case for trial, the parties were
initially directed by letter dated May 26, 1999 to submit a
written narrative statement of the facts to be proven and
witnesses and documents to be presented at trial. Defendants
thereafter indicated their intention to move for summary
judgment, and on February 7, 2000 I directed them to serve their
motion papers by no later than February 25, 2000. Plaintiff was
in turn directed on March 28, 2000 and again on October 25, 2000
to respond to the motion, and was each time advised that failure
to respond would result in the motion being treated as unopposed.
Nevertheless, plaintiff did not respond by the required dates. On March 21, 2002, both plaintiff and defendants were directed
to show cause why the action should not be dismissed without
prejudice in light of the Supreme Court's February 26, 2002
decision in Porter v. Nussle, 534 U.S. 516 (2002). Rather than
respond, plaintiff made multiple requests to stay the action
until his scheduled release from prison in November 2002.
Plaintiff's request was granted, however plaintiff was not
released from prison at that time. Plaintiff was therefore again
directed by order dated April 21, 2003 to show cause why the case
should not be dismissed as barred by the rule of Porter v.
Nussle. Plaintiff's requests for further lengthy extensions of
time to show cause were denied on May 13, 2003 and May 23, 2003.
Ultimately, plaintiff did show exhaustion of his administrative
remedies in response to the April 21, 2003 order to show cause,
and his application to stay the action until his release from
prison was granted on June 11, 2003. Plaintiff was released from
prison on May 21, 2004. A court conference was scheduled for
November 18, 2004, rescheduled at defense counsel's request, and
rescheduled again and finally cancelled because of plaintiff's
arrest for violation of parole.
On January 10, 2005, I directed the parties to advise me
whether they were ready for trial. Both sides indicated they were
ready to proceed, but defendants renewed their request to dismiss the case on summary judgment. By letter dated February 2,
2005, and again by order dated February 16, 2005, plaintiff was
directed to respond to defendants' motion for summary judgment by
no later than March 15, 2005. Plaintiff was advised that if he
failed to respond by that date, the facts submitted by defendants
would be deemed admitted. Plaintiff requested that he be
appointed counsel to assist him in opposing the motion and sought
a sixty-day extension of time. Those requests were denied on
March 2, 2005. Plaintiff has submitted no response to defendants'
II. Admitted Facts
Pursuant to Local Civil Rule 56.1(c), the material facts as to
which defendants contend there is no genuine issue for trial are
deemed admitted for purposes of this motion. Those facts, gleaned
from plaintiff's medical records and the sworn affidavits of
defendants, are as follows.
Plaintiff has a history of vocal hoarseness dating back to
childhood. He also has a history of smoking, which contributes to
hoarseness. On May 16, 1995, while an inmate at the Fishkill
Correctional Facility ("Fishkill"), plaintiff underwent surgery
to remove a growth from one of his vocal cords. His medical
records indicate that he tolerated the procedure well.
Dr. Supple first became involved in plaintiff's treatment on
May 16, 1995 following plaintiff's surgery, when he continued a consult started by another provider who left the facility. Dr.
Supple never treated plaintiff personally. He based his
consultation on his review of plaintiff's medical records. On the
day of plaintiff's surgery, Dr. Supple referred plaintiff to the
ENT clinic at St. Agnes Hospital in White Plains, New York.
Plaintiff was seen at the ENT clinic on June 2, 1995. The
clinic recommended speech therapy and a six-month follow-up
examination as needed. On June 5, 1995, Dr. Supple entered a
request in plaintiff's medical record for the recommended
six-month follow-up examination, but did not schedule speech
therapy at that time because he did not in his medical judgment
believe it was necessary or that it would be helpful.
On September 22, 1995, plaintiff filed a grievance against Dr.
Supple with the Inmate Grievance Review Committee ("IGRC"),
asking why it was taking so long to receive the recommended voice
therapy. On September 25, 1995, Dr. Supple responded to
plaintiff's grievance by scheduling him for voice therapy. He did
this not because he thought the therapy was necessary, but simply
because plaintiff grieved the issue. On September 27, 1995, the
IGRC concluded that the action plaintiff was requesting had been
As a result of Dr. Supple's referral, plaintiff met on November
2, 1995 with Diane Phelan, a speech-language pathologist at St.
Francis Hospital in Poughkeepsie, New York. Phelan wrote in her evaluation that, according to plaintiff, his
hoarseness had been fairly consistent over time and his voice was
the same then as it had been before the surgery. Dr. Supple
interpreted this as an indication that plaintiff's hoarseness was
not getting worse over time.
Phelan also reported that plaintiff appeared able to attain
adequate vocal loudness for conversation and had a vocal pitch
that was within normal limits. She noted that plaintiff had his
two lower central incisors pulled in August 1995, three months
after his vocal cord surgery, and that he had mildly reduced
vocal precision with regard to a few different sounds, but that
his language skills were adequate for daily functional
communication. Phelan further noted her impression that plaintiff
"may have some potential to achieve improved vocal quality and
functioning" and that "[h]e demonstrated limited potential for
improved articulatory precision." Based on her evaluation, Phelan
recommended that plaintiff receive voice therapy once or twice
per week for a two-to-three week trial period. The next day, on
November 3, 1995, Dr. Supple requested the voice therapy that
Plaintiff was transferred to Arthur Kill Correctional Facility
in Staten Island, New York ("Arthur Kill") on November 29, 1995.
He had not yet begun the therapy Dr. Supple had requested. On the
day prior to plaintiff's transfer, the Nurse Administrator at Fishkill sent a message to the Nurse
Administrator at Arthur Kill advising that plaintiff was being
transferred, that plaintiff had been scheduled for voice therapy
but had not yet begun it, and that it was the decision of the
doctor at Arthur Kill whether to pursue the therapy. After
plaintiff's transfer to Arthur Kill, Dr. Supple had no more
involvement in plaintiff's treatment.
According to the Amended Complaint, plaintiff was interviewed
by a physician at Arthur Kill who scheduled him to be seen by an
ENT specialist, but plaintiff was transferred to Collins
Correctional Facility ("Collins") before he was actually seen.
Plaintiff was transferred to Collins on January 25, 1996. Dr.
Kurtz had no contact with plaintiff prior to the transfer, and
his treatment of plaintiff at Collins was based on his personal
evaluations of plaintiff as well as his review of plaintiff's
medical records. Dr. Kurtz examined plaintiff for the first time
the day after plaintiff arrived at Collins, at which time he
found no significant hoarseness. Dr. Kurtz examined plaintiff
again on February 21, 1996 for his complaint of persistent
hoarseness. At that time, plaintiff was moderately hoarse.
On February 22, 1996, Dr. Kurtz reviewed plaintiff's medical
records, noting plaintiff's history of hoarseness "since childhood," the ENT clinic's recommendation for speech therapy
and a six-month follow-up, and Phelan's report of November 2,
1995. After examining plaintiff and reviewing his records, Dr.
Kurtz's assessment was that plaintiff's longstanding hoarseness,
which preceded his imprisonment, would not be helped by speech
therapy. Plaintiff's hoarseness was intermittent, and on that
basis, Dr. Kurtz saw no indication for voice therapy or further
evaluation or treatment of plaintiff's condition. Dr. Kurtz
personally observed that plaintiff's hoarseness was not serious,
was not getting progressively worse, and did not significantly
interfere with his ability to speak. He further observed that
plaintiff was able to verbally communicate effectively.
Dr. Kurtz evaluated plaintiff again on May 30, 1996, and his
opinion about whether voice therapy was indicated did not change.
He did not prescribe any treatment for plaintiff's hoarseness
because it was his opinion that nothing could be done to improve
it. Dr. Kurtz has not seen or treated plaintiff since 1996.
Plaintiff's subsequent medical records suggest that plaintiff
may have continued smoking after his throat surgery.
Specifically, when plaintiff was reviewed on June 22, 1998 for
purposes of double celling, he indicated a preference to be
housed in a cell with a smoker. According to Dr. Supple,
continued smoking could be a cause of plaintiff's persistent hoarseness. Medical records from 1997 and 1998 do not indicate
that plaintiff's hoarseness has gotten worse since 1996, or that
plaintiff has requested or received treatment for his condition
since that time.
I. Summary Judgment Standard
A motion for summary judgment should be granted when "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); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The judge's role in summary judgment is
not "to weigh the evidence and determine the truth of the matter
but to determine whether there is a genuine issue for trial."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
deciding whether a genuine issue exists, a court must "examine
the evidence in the light most favorable to the party opposing
the motion, and resolve ambiguities and draw reasonable
inferences against the moving party." In re Chateaugay Corp.,
10 F.3d 944, 957 (2d Cir. 1993). In addition, because plaintiff
proceeds pro se, I must read his papers liberally and
"interpret them to raise the strongest arguments that they
suggest." Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995)
(citation and internal quotation marks omitted); see also Haines v.
Kerner, 404 U.S. 519, 520 (1972) (pro se complaints held to less
stringent standards than pleadings drafted by lawyers).
Nevertheless, "Rule 56(c) mandates the entry of summary
judgment . . . against a party who fails to make a showing
sufficient to establish the existence of an element to that
party's case, and on which that party will bear the burden of
proof at trial." Celotex, 477 U.S. at 322. The non-movant "may
not rest upon the mere allegations or denials of [his] pleading,"
but rather "must set forth specific facts showing that there is a
genuine issue for trial." Fed.R.Civ.P. 56(e). If the
non-movant fails to so respond, then summary judgment, if
appropriate, will be entered against him. Id.
II. Deliberate Indifference to a Serious Medical Need
In his written narrative statement of facts, plaintiff states
that "defendants were reckless and acted with deliberate
indifference, which caused the plaintiff pain, suffering, and
possibly degeneration and further voice problems."
The Eighth Amendment prohibits deliberate indifference to a
prisoner's serious medical needs. Estelle v. Gamble,
429 U.S. 97, 104 (1976). The test for deliberate indifference has both an
objective and a subjective component. The objective showing
required is that "the alleged deprivation [is] . . .
`sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)). The subjective showing required is that "the charged
official [acted] with a sufficiently culpable state of mind."
Id. A prison official acts in a deliberately indifferent manner
when 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.'"
Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Plaintiff's claim fails both prongs of the deliberate
indifference test. First, plaintiff's condition was not
"sufficiently serious." The standard for deliberate indifference
"contemplates `a condition of urgency, one that may produce
death, degeneration, or extreme pain.'" Hathaway, 37 F.3d at 66
(quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990)
(Pratt, J., dissenting)); see also Chance v. Armstrong,
143 F. 3d 698, 702 (2d Cir. 1998). Plaintiff's Amended Complaint and
his narrative statement of facts do not allege such an urgent
condition. The uncontroverted evidence shows, among other things,
that plaintiff has a history of vocal hoarseness since childhood,
that plaintiff himself reported that his hoarseness had been
fairly consistent over time, and that his voice was the same
after surgery as it had been before. Plaintiff was observed by the speech-language pathologist to have
adequate vocal loudness for conversation and a vocal pitch that
was within normal limits. Dr. Kurtz personally observed that
plaintiff's hoarseness was not serious, was not getting
progressively worse, and did not significantly interfere with his
ability to speak. Moreover, medical records subsequent to
defendants' treatment of plaintiff show no indication that
plaintiff's hoarseness worsened, or that plaintiff requested or
received treatment for his hoarseness after 1996.
Moreover, even assuming plaintiff's vocal condition was
"sufficiently serious," the undisputed evidence establishes that
defendants did not act with deliberate indifference to
plaintiff's serious medical needs. Plaintiff's complaint is not
that he was completely denied medical care; in fact, his
condition was repeatedly evaluated by medical personnel,
including defendants. The gravamen of plaintiff's complaint,
rather, is that he should have received the voice therapy that
his surgeon and the speech-language pathologist recommended.
However, "[i]t 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." Chance, 143 F.3d at 703. Although Dr. Supple did ultimately schedule plaintiff for
therapy in response to plaintiff's formal grievance, neither he
nor Dr. Kurtz actually believed in their medical judgment that
the therapy would be helpful. As Dr. Supple explained in his
affidavit in support of the motion:
I did not schedule speech therapy [on June 5, 1995]
because, in my medical judgment, I did not believe it
was necessary. In my prior experience with vocal cord
nodule removal, many patients have improved following
surgery without any speech therapy. If surgical
removal of the nodule does not improve hoarseness, I
do not believe speech therapy would help either.
Moreover, in my experience and professional opinion,
a delay between vocal cord surgery and voice therapy
would not cause any degeneration in the vocal
condition of the patient. Furthermore, with respect
to plaintiff, this was not a degenerative condition
at all. As stated above, it was a lifelong condition,
which has been intermittent and has not significantly
changed over time. Given the failure of the surgery
to correct whatever hoarseness there may have been,
it was my opinion that plaintiff's chances for
improvement were not good, with or without voice
Even the speech-language pathologist acknowledged plaintiff's
"limited potential for improved articulatory precision" and
recommended therapy only on a "trial basis." At most, plaintiff
states a claim for medical malpractice arising from defendants'
negligence. See Amended Complaint ¶ 9a (requesting damages for
"past and future pain and suffering, negligence, and permanent
physical impairment"). A claim for negligent malpractice,
however, "does not become a constitutional violation merely
because the victim is a prisoner." Estelle, 429 U.S. at 106; see also Hathaway v. Coughlin, 99 F.3d 550, 553, 554 (2d
III. Qualified Immunity
Defendants argue in the alternative that they are qualifiedly
immune from suit. The defense of qualified immunity shields
public officials from liability for damages arising from their
performance of discretionary acts "insofar as their conduct does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have known." Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982); see also Ying Jing Gan
v. City of New York, 996 F.2d 522, 531 (2d Cir. 1993). "Even
where . . . a plaintiff's federal rights are well-established,
qualified immunity is still available to an official if it was
`objectively reasonable for the public official to believe that
his acts did not violate those rights.'" Hathaway,
37 F.3d at 67 (quoting Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir.
1991)); see also Robison v. Via, 821 F.2d 913, 921 (2d Cir.
As explained above, defendants' evidence in support of their
motion shows that they exercised their medical judgment in
treating plaintiff. It was objectively reasonable for them to
believe that in doing so, their acts did not violate plaintiff's
constitutional rights. Accordingly, defendants are entitled to
summary judgment on the alternative ground that they are qualifiedly immune from suit for damages in their individual
For the foregoing reasons, defendants' motion for summary
judgment is granted.
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