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BROWN v. WRIGHT

December 6, 2005.

EDWARD BROWN, Plaintiff,
v.
LESTER WRIGHT, CARL J. KOENIGSMANN, HARRY MAMIS, STEVEN WEINSTEIN, Defendants.



The opinion of the court was delivered by: ROBERT SWEET, District Judge

OPINION

The defendants Dr. Lester Wright, Chief of Medical Services for the New York State Department of Correctional Services ("Dr. Wright"), Dr. Carl Koenigsmann, Chief of Medical Services at Green Haven Correctional Facility ("GHCF") ("Dr. Koenigsmann"); Dr. Harry Mamis, a physician employed at GHCF and primary medical provider ("Dr. Mamis"), and Dr. Steven Weinstein, a physiatrist employed part-time at GHCF ("Dr. Weinstein") (collectively, the "Defendants") have moved for summary judgment under Rule 56, Fed.R.Civ.P., to dismiss the complaint of plaintiff pro se Edward Brown ("Brown"), an inmate at GHCF. For the reasons set forth below, the motion is granted.

Prior Proceedings

  Brown filed his complaint on January 21, 2004 alleging violations of Section 1983 and deliberate indifference in medical care involving his absence of a leg. The leg was lost as a result of an accident in 1988, when Brown was 14 years old. Brown has asserted that a wheelchair was withheld from him improperly for a period of about eleven months in 2003, that surgery on his hip to cure a bone spur was delayed unreasonably, that he has been denied wrongfully from placement in Green Haven Unit for the Physically Disabled ("UPD") and that he has been denied effective pain medication. These allegations are made under the Eighth Amendment and Americans With Disabilities Act ("ADA").

  Discovery was had and the notice to pro se litigant and of the motion for summary judgment was given, and the instant motion was heard and marked fully submitted on August 16, 2005.

  The Facts

  Brown lost his leg due to a subway accident in 1988 at the age of 14 (Tr. 43-44). He was able to walk well with a prosthesis. Over the years, he has had increased difficulty ambulating with a prosthesis due to the shortness of his leg stump and the consequent relatively heavy weight of the artificial limb (Tr. 37-38). He has not expressed a wish to have the surgery which would be involved in preparing the hip for a possibly nimbler prosthesis (Tr. 31, 85).

  Brown has compensated by walking effectively with crutches (Tr. 13, 28). He does not like using the wheelchair he was provided in December 2003 full time but prefers walking with crutches for modest distances, including for meals and recreational purposes (Tr. 11, 18-20). Brown weighs 160 pounds, though 6 feet tall (Tr. 33), in part as a result of not being wheelchair-bound full time. Brown has acknowledged that GHCF staff have on very many occasions examined and treated him (Tr. 29, 70, 73-74, 76, 78, 86, 92); have prescribed pain mediation to him (Tr. 13, 47, 70, 75-76, 86) (he is presently taking Tylenol 3) (Tr. 6-7); have had his condition evaluated by specialists, including a physiatrist and orthopedic surgeon (Tr. 73-74, 76, 78); have provided x-rays and physical therapy (Tr. 11, 17, 29, 74); have provided him with a wheelchair (through Dr. Weinstein by way of referral from Dr. Mamis) in December 2003 with which Brown is comfortable (Tr. 10, 17, 19, 92); and have arranged for and had performed surgery on his hip bone spur (Tr. 78-80). Brown also acknowledged that he has "civil" communication with his medical provider, Dr. Mamis (Tr. 28-29), and that Dr. Mamis has referred him to specialists (Tr. 73, 92).

  Brown was asked at his deposition to state his complaints against each of the four Defendants. As to Dr. Wright, Brown mentioned speaking with Dr. Wright two or three times while housed at Clinton Correctional Facility in 2002 and writing to Dr. Wright approximately seven letters on his treatment. When asked to produce this correspondence, Brown stated that he had sent his copy of the same to an attorney. Brown alleged that Dr. Wright did not respond substantively to his communications at Clinton, except to have staff advise Brown that the records showed he was receiving proper care (Tr. 62-66). He further claims that he has written Dr. Wright two to three times while at GHCF about the lack of proper pain medication. Finally, Brown linked Dr. Wright to his non-placement in UPD (Tr. 93). He acknowledged not having submitted a grievance against Dr. Wright (Tr. 92-96).

  As to Dr. Koenigsmann, Brown testified that he has suffered from the failure of the facility to provide proper pain medication. He claims to have written Dr. Koenigsmann "several letters" but has not produced the letters (Tr. 96). He did not recall filing a grievance against Dr. Koenigsmann (Tr. 96-98).

  Brown testified that his complaint against Dr. Mamis focuses on the question of whether proper pain medication was afforded him (Tr. 98-100). He acknowledged that Dr. Mamis would refer his continuing complaints to Dr. Weinstein (Tr. 101). As to Dr. Weinstein, Brown's complaint derives from his temporary denial of a wheelchair and the question of whether proper pain medication was made available to him (Tr. 100-01).

  Dr. Mamis has submitted an affirmation in support of the motion for summary judgment, stating: that Brown was not provided with a wheelchair at first because walking was believed to be better for his overall health; that Dr. Mamis had not wanted to provide him with a narcotic-based pain medication; that he has not been placed in the UPD because Brown can function day-to-day in general population facilities; and that prescription of Elavil to Brown on a trial basis by Dr. Weinstein was appropriate (Affirmation of Dr. Mamis, ¶¶ 3, 4, 6, 7).

  During 2003, Brown filed four grievances at GHCF pertaining to his interactions with medical personnel.

  1. February 11: Brown cited having written to Dr. Koenigsmann about pain in the lower back and right hip, hearing "nothing" in response for two weeks.

  Brown stated that in a January 16 visit with Dr. Mamis, who had been designated Brown's medical provider, he requested a wheelchair for "temporary" use due to his leg "lock[ing] up" on him when he would "walk too much," as well as a change in medication. He claimed that Dr. Mamis "was not trying to hear" what he was saying, denied saying to Dr. Mamis that it was not needed, and asserted that Dr. Mamis stated Brown "would have a better chance of banging [his] head on the floor" if Brown expected to have his medication changed. Brown also mentioned falling ("tripped over my [double celled roommate's] cord") on January 24, bruising his back and hip and requested a "new medical provider" as well as a change in medication.

  The grievance committee ("IRGC") stated in response that Brown was entitled to "proper medical care" and a "second opinion," action being "beyond the [purview] of this committee." The superintendent denied the grievance as "not medically indicated," citing Brown's evaluation by medical staff "on many occasions since his arrival [on] [1/9/03," his having been referred to a specialist on ambulatory needs, the prescription of Brown of pain medication, and his having on January 28 been given a single cell on "the flats," i.e., the first floor.

  The Central Office Review Committee ("CORC"), on a "second appeal," upheld the superintendent's decision, citing Brown's visits to specialists, the surgical procedure performed in August, and the physician's denial of having made improper comments. See Record of Grievance, Aff. Counsel, Ex. B.

  2. March 5: Brown cited having challenged Dr. Mamis on the prescription of Elavil, stating that other medical personnel and the "medication dictionary" regarded that medication to be for "stress disorder and sleep discomfort." In his appeal, he acknowledged having been taken off Elavil. He requested a "new medical provider."

  The grievance committee found Brown's request to be "beyond our purview." The superintendent denied the grievance citing two visits by Brown with a physiatrist and the medications prescribed. CORC upheld the superintendent's decision, citing the prescription of alternate medication and his visit with an orthopedist. See Record of Grievance, Aff. Counsel, Ex. C. 3. March 6: Brown cited diagnosis by the physiatrist of a "bone in my lower back on top of my hip," and requested a new medical provider, a wheelchair, and $1 million "in damages [for] pain, ...


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