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Walker v. McGinnis

March 5, 2008

ROBERT WALKER, PLAINTIFF,
v.
MICHAEL MCGINNIS, SUPT. SOUTHPORT CORR. FACILITY, (CONSENT) NURSE WEAVER, SOUTHPORT CORR. FACILITY, NURSE DOHL, SOUTHPORT CORR. FACILITY, PAUSCHE, C.O., DR. SILVERBERG, GREAT MEADOW CORRECTIONAL FACILIY, SGT. BROWN, GREAT MEADOW CORRECTIONAL FACILITY, P.A. NURSE "TED," GREAT MEADOW CORR., DEFENDANTS.



The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge

DECISION and ORDER

JURISDICTION

The parties to this action consented to proceed before the undersigned on May 8, 2006. The matter is presently before the court on motions for summary judgment filed by Plaintiff on February 20, 2007 (Doc. No. 44), and by Defendants on March 13, 2007 (Doc. No. 47).

BACKGROUND

Plaintiff Robert Walker ("Plaintiff"), commenced this civil rights action pro se, on June 10, 2005, claiming Defendants, employees of Southport Correctional Facility ("Southport") and Great Meadow Correctional Facility ("Great Meadow"), violated his civil rights pursuant to 42 U.S.C. § 1983, by denying Plaintiff necessary medical care for Hepatitis B, Hepatitis C and an enlarged prostate, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The Complaint named as Defendants Southport Superintendent Defendants Michael McGinnis ("McGinnis"), Southport nurses Weaver ("Weaver") and Dohl ("Dohl"), Great Meadow physician Dr. Silverberg ("Dr. Silverberg"), Corrections Officer ("C.O.") Pausche ("Pausche"), and Great Meadow Sergeant Brown ("Sgt. Brouwn"). On August 9, 2005, Plaintiff filed an amended complaint (Doc. No. 7) ("Amended Complaint"), adding as a Defendant Great Meadow P.A. Nurse "Ted" ("Nesmith").*fn1 A Second Amended Complaint (Doc. No. 11) ("Second Amended Complaint") was filed on October 7, 2005. By Order filed November 29, 2005 (Doc. No. 12), all claims were dismissed as against Defendants Pausche and Sgt. Brown, who were terminated as Defendants to this action. Answers to the Second Amended Complaint were filed on January 18, 2006, by McGinnis (Doc. No. 13), on February 8, 2006, by Dr. Silverberg (Doc. No. 20), and Nesmith (Doc. No. 21), and on March 1, 2006 by Weaver (Doc. No. 23).*fn2

On February 20, 2007, Plaintiff filed a motion for summary judgment (Doc. No. 44) ("Plaintiff's motion"), supported by the attached Affidavit in Support of Motion for Summary Judgment ("Plaintiff's Affidavit"). On March 13, 2007, Defendants filed a motion for summary judgment (Doc. No. 47) ("Defendants' Motion"), along with the Declaration of Dr. Silverberg (Doc. No. 48) ("Dr. Silverberg Declaration") with attached exhibits ("Defendants' Exh(s). __"), a Statement of Undisputed Facts (Doc. No. 49) ("Defendants' Statement of Facts"),*fn3 and a Memorandum of Law in Support of Defendants' Motion for Summary Judgment (Doc. No. 50) ("Defendants' Memorandum").

On March 30, 2007, Defendants filed the Declaration of Assistant New York Attorney General Ann C. Williams ("Williams") in Opposition to Plaintiff's Summary Judgment Motion and in Further Support of Defendants' Motion for Summary Judgment (Doc. No. 55) ("First Williams Declaration"). On April 20, 2007, Plaintiff filed a Declaration in Opposition to Counsel's Summary Judgment Motion and in Further Support of Plaintiff's Motion for Summary Judgment (Doc. No. 56) ("First Plaintiff's Declaration"). On June 1, 2007, Defendants filed the Declaration of Assistant Attorney General Williams in Further Support of Defendants' Motion for Summary Judgment (Doc. No. 57) ("Second Williams Declaration"). On June 18, 2007, Plaintiff filed a Declaration in Further Support / Cross-Motion of Plaintiff's Motion for Summary Judgment (Doc. No. 58) ("Second Plaintiff's Declaration"). On November 15, 2007, Defendants filed the Declaration of Assistant Attorney General Ann C. Williams to Submit Additional Documents Referenced in the Declaration of Howard E. Silverberg, M.D., Dated March 9, 2007 (Doc. No. 59) ("Third Williams Declaration"). On February 28, 2008, Defendants filed the Declaration of Assistant Attorney General Delia D. Cadle (Doc. No. 63) ("Cadle Declaration"), attached to which is a Supplement to Defendants' Exh. A, consisting of additional medical records of Plaintiff. Oral argument was deemed unnecessary.

Based on the following, Plaintiff's motion is DENIED; Defendants' motion is GRANTED.

FACTS*fn4

Plaintiff Robert Walker ("Plaintiff" or "Walker"), an inmate incarcerated with the New York State Department of Correctional Services ("DOCS"), was diagnosed in February 2003 with past exposure to and recovery of Hepatitis B and ongoing Hepatitis C*fn5 while housed at Sing Sing Correctional Facility ("Sing Sing"). In support of Defendants' motion for summary judgment, Defendants submitted as Defendants' Exh. A, a copy of Plaintiff's Ambulatory Health Record ("AHR"), the page numbers of which are numerically Bates stamped.*fn6 According to the Ambulatory Health Record, upon transferring to Southport Correctional Facility ("Southport") on December 31, 2004, Plaintiff's chronic medical problems included Hepatitis B and C, hypertension, and benign prostatic hyperplasia ("BPH"),*fn7 and Plaintiff's medications included Adalat for hypertension and Proscar and Flomax for BPH. AHR 000038-000039. Between February 1 and 5, 2005, Plaintiff underwent a series of routine laboratory tests to monitor his Hepatitis and BPH conditions. AHR 000054, 000055, and 000057 Additional routine laboratory tests to monitor Plaintiff's Hepatitis and BPH conditions were done on March 8, 2005, with the results of such tests reviewed by Nurse Northrup, who is not a party to this action. AHR 000032. Plaintiff was also examined by a medical doctor on March 11, 2005. AHR 000032. Plaintiff's prescription medications were continued throughout his incarceration at Southport. AHR 000031-000039.

Upon being transferred on April 8, 2005, to Great Meadow Correctional Facility ("Great Meadow"), Plaintiff's Ambulatory Health Record indicated that Plaintiff had Hepatitis, hypertension, and BPH with acute urinary retention. AHR 000031. Plaintiff's medications, including Adalat, Proscar and Flomax were ordered, and Plaintiff was to be scheduled for a follow-up examination by a physician and additional laboratory work. Id. Throughout his incarceration at Great Meadow, Plaintiff's medications continued to be prescribed, and Plaintiff underwent routine laboratory testing on June 13, 2005, AHR 000025 and 000052-000053, July 11, 2005, AHR 000024 and 000051, January 5, 2006, AHR 000020 and 000050, February 7, 2006, AHR 000018 and 000047-000049, and March 15, 2006, AHR 000017 and 000045-000046, to monitor Plaintiff's Hepatitis and BPH conditions. The laboratory reports issued in connection with the laboratory tests in 2006 indicate that Plaintiff's Hepatitis C condition was both "chronic and stable." AHR 000050 (January 5, 2006); AHR 0900049 (February 7, 2006); AHR 000046 (March 15, 2006).

On April 20, 2005, Plaintiff's medical record was reviewed by John Koella, M.D. ("Dr. Koella"), who renewed Plaintiff's Adalat and scheduled Plaintiff for further examination on May 4, 2005. AHR 000029. When Plaintiff did not keep his May 4, 2005 appointment, he was issued a pass to go to the facility's medical clinic on May 5, 2005, but also failed to keep that appointment. AHR 000028-000029.

On May 12, 2005, Plaintiff was admitted to Great Meadow's infirmary in connection with an inability to urinate. AHR 000028, and 000115-000116. Dr. Silverberg explains, and Plaintiff does not dispute, that Plaintiff's inability to urinate, as well as other urination problems Plaintiff experienced, were related to his BPH condition, but is unrelated to his Hepatitis condition. Silverberg Declaration ¶ 25.

Plaintiff was examined by with regard to his Hepatitis and BPH conditions, by Dr. Silverberg on May 15 and July 22, 2005. AHR 000024 and 000028. During the July 12, 2005 examination, Dr. Silverberg reviewed Plainitff's laboratory work of July 11, 2005. AHR 000024. Upon examining Plaintiff on July 22, 2005, Plaintiff expressed concern about recently losing 20 pounds for which he requested Ensure as a dietary supplement, as well as his hypertension and BPH. Id. Dr. Silverberg noted that Plaintiff looked well, his blood pressure was normal, and Plaintiff had gained two pounds since May 2005. Id. Dr. Silverberg explained to Plaintiff that his Hepatitis condition was stable and that Plaintiff would be followed every four to six months with additional laboratory testing and physical examinations. Id. Because Plaintiff's medical records did not show any weight loss, Ensure was not prescribed at ...


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