The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
REPORT-RECOMMENDATION AND ORDER*fn1
Plaintiff pro se Conrad Hines ("Hines"), formerly an inmate in the custody of the New York State Department of Correctional Services (DOCS),*fn2 brings this action pursuant to 42 U.S.C. § 1983 alleging that defendants, four DOCS medical staff and two unidentified individuals,*fn3 violated his constitutional rights under the Eighth Amendment. Compl. (Docket No. 1). Presently pending is the motion of the four named defendants to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Docket No. 20. Hines opposes the motion. Docket No. 21. For the reasons which follow, it is recommended that defendants' motion be granted and that the case be terminated.
The facts are related herein in the light most favorable to Hines as the non-moving party. See subsection II(A) infra.
Prior to Hines' incarceration in DOCS custody, he was incarcerated at the City of New York facility at Rikers Island where he was diagnosed with glaucoma. Compl. ¶ 7. One month after being diagnosed, Hines was transferred to DOCS' Ulster Correctional Facility where an unidentified doctor prescribed him an allergy medication which exacerbated his glaucoma. Id. ¶¶ 9-10. Hines' began experiencing persistent headaches and blurred vision. Id. ¶ 10.
In June 2003, Hines was transferred to Mt. McGregor Correctional Facility. Compl. ¶ 12. In August 2003, Hines was evaluated at DOCS' Coxsackie Regional Medical Unit ("RMU").
Id. ¶ 13. Hines underwent multiple eye examinations there which revealed that his headaches and vision problems were the result of taking the allergy prescription. Id. ¶ 13. On May 10, 2004, the RMU recommended that Hines see an ophthalmologist. Id. ¶ 14.
The following day, defendant Dr. Gandham evaluated Hines and explained that the pressure in Hines' right eye had risen so dramatically that an operation was required. Compl. ¶ 15. The operation would install a drainage system into Hines' eye to control the increasing pressure. Id. ¶ 16. Hines was told neither the risks of the procedure nor whether he had any other alternatives. Id. ¶ 15. In May 2003, following the operation, Hines learned that he could have undergone a laser procedure to regulate the pressure in his right eye. Id. ¶ 17. Hines' post-operative recovery went well until the area around the incision site on his eye became irritated and his vision began to deteriorate. Id. ¶ 18.
In November 2004, Hines was transferred to Green Correctional Facility's Special Housing Unit ("SHU").*fn4 Compl. ¶ 19. Hines complained that the dust particles in the air and the dryness inflamed his injured eye and further exacerbated his vision problems. Id. Hines was promptly taken to Albany Medical Center where Dr. Gandham prescribed him liquid gel drops for use on his eye. Id. ¶ 20.
In February 2005, while still using the liquid gel drops, Hines was transferred to Great Meadow Correctional Facility. Compl. ¶ 21. Sometime thereafter, Hines approached the medical department seeking a refill of the drops. Id. ¶ 22. Without consulting Dr. Gandham or Hines' medical record, defendant Nesmith, a physician's assistant, informed Hines that he did not need the drops, denied his refill of the prior prescription, and instead gave him tear drops. Id. ¶¶ 23-24. Hines reluctantly used the tear drops and experiencing increased pain, dryness, and blurry vision. Id. ¶ 25. Hines began lodging complaints with the medical department. Id. ¶ 27.
On September 15, 2005, Dr. Gandham evaluated Hines, noting that his eye was slightly red. Compl. ¶ 28. Hines complained of intense pain and constant throbbing in his eye and requested that Dr. Gandham communicate to the staff at Great Meadow the importance of providing Hines with liquid gel drops. Id. ¶¶ 28-29, 32. Dr. Gandham indicated that he would prescribe the liquid eye drops, but could not compel Great Meadow to provide them to Hines. Id. ¶ 32. Dr. Gandham performed multiple tests on Hines, using various eye drops to identify any damage and measure the pressure in Hines' eyes. Id. ¶ 33-34. The drops caused Hines intense pain. Id.
The following morning, Hines' eye was throbbing and he was in intense pain. Compl. ¶ 35. The pain began the prior day when Dr. Gandham inserted the various drops in Hines' eyes and had now spread to his right eye. Id. By the following day, the area surrounding the incision site in the right eye was completely yellow and Hines' eyes were extremely bloodshot. Id. ¶ 36. Hines asked an unidentified officer to allow Hines to visit the clinic, but Hines never saw a physician. Id. ¶ 37.
On September 18, 2005, the pain in Hines' right eye was unbearable. Compl. ¶ 39. He saw fluids moving in his field of vision, his eyesight was blurry, and there was a discharge from the corner of his right eye. Id. Other inmates encouraged Hines to seek medical attention for his eye. Id. ¶ 40; Romero Aff. (Docket No. 1) at 34; Boone Aff. (Docket No. 1) at 35; Reyes Aff. (Docket No. 1) at 36. Hines again communicated to the unidentified officer that he required medical attention, The officer called the medical clinic, and a nurse at the clinic informed him that Hines did not need to see a physician because he was only suffering from conjunctivitis, or pink eye. Compl. ¶¶ 42-44. Hines complained to the officer that the nurse had failed to examine him. Hines was instructed to request an examination in writing. Id. ¶ 45-46.
The following day, Hines was in extreme pain and still suffering from a headache. Compl. ¶ 47. He was not examined. Id. Later in the day, on the way to the mess hall, Hines showed an unidentified sergeant his injured eye, which eventually led to the provision of an emergency medical pass. Id. ¶¶ 47-48. Upon arriving at the clinic, an unidentifed nurse again told Hines that he had pink eye, without physically examining him or consulting his medical records. Id. ¶ 50. The nurse's diagnosis was confirmed a few minutes later by Nesmith, who assessed Hines' condition without examination. Id. ¶¶ 52, 54-55. Nesmith prescribed Hines eye drops and assured him that he had experience with pink eye and that Hines did not require an evaluation by a specialist. Id. ¶ 55. Immediately after applying the prescription eye drops, Hines experienced sharp, painful stinging in his right eye. Id. ¶ 57. Hines' headache had intensified to the point that he was unable to focus through his right eye. Id. ¶ 58. Additionally, he no longer saw any fluid in his field of vision and a yellow substance was oozing from the corners of his eye. Id.
The following day, Hines could not sleep and was in extreme pain. Compl. ¶ 59. He went to his work assignment and told his supervisor that (1) the medical department diagnosed him with pink eye, (2) he was in extreme pain, and (3) he was unable to see. Id. The supervisor called the medical clinic, informing Hines that he had an appointment for that morning. Id. ¶ 60. Shortly thereafter, Hines went to sick call and saw Nesmith. Id. ¶ 61. Hines complained of excruciating pain and a constant decline in his vision which had resulted in total blindness in his right eye. Id. ¶¶ 61-62. Hines was given a pain reliever and told to continue using the medication as, despite Hines' reported side effects, the prescription was working properly. Id. ¶ 62.
On September 21, 2005, Hines went unseen by medical staff and wrote to the Superintendent describing his condition and pain. Compl. ¶ 63. The following day, Hines again reported to work. Id. ¶ 64. Hines' eye was swollen, bloodshot, and yellow. Id.; Romero Aff. at 34; Boone Aff. at 35; Toms Aff. at 37. The supervisor again attempted to call the clinic to arrange for Hines to see a doctor but was unsuccessful. Compl. ¶ 64. However, that same day Hines saw Nesmith again. Id. ¶ 65. Hines told him that he was suffering significant pain in his eye and head, he needed to see a doctor immediately, and he could not see out of his right eye. Id. Hines was given a medical pass for the following day. Id.
On September 23, 2005, all medical examinations were cancelled. Compl. ¶ 67. Later that day, another inmate noticed Hines' eye and called a nurse. Id. ¶ 68; Docket No. 1 at 30; see also Romero Aff. at 34; Boone Aff. at 35. A nurse arranged for Hines to be evaluated immediately by Dr. Silverberg, a defendant herein, who opined that Hines could have an infection related to his glaucoma. Compl. ¶ 70-74. He recommended that Hines contact Dr. Gandham as there was nothing that Dr. Silverberg could do to assist Hines. Id. ¶¶ 70-74.
Later that day, Hines saw defendant Dr. Polano, a defendant herein, who immediately sent Hines to the hospital. Id. ¶ 76. Hines was subsequently evaluated by Dr. Gandham who diagnosed Hines with an untreated, rampant eye infection which was spreading and would leave him blind. Id. ¶ 77, 79. Hines underwent a draining procedure, received antibiotics, and was told that the infection and delay in treatment had broken down Hines' retina. Id. ¶ 81-82. Hines was also informed by a medical intern that had the infection been treated earlier, the damage to his sight would have been minimal. Id. ¶¶ 85. Currently, Hines suffers from inter alia black, floating spots in his left eye, constant pain and headaches, fatigue in his left eye, blurry vision, white flashes, ...