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